Able v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 03/21/2016. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JOHN ANTHONY ABLE,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 1:14cv00071
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, John Anthony Able, (“Able”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), determining
that he was not eligible for disability insurance benefits, (“DIB”), under the Social
Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of
this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
magistrate judge by transfer based on consent of the parties pursuant to 28 U.S.C.
§ 636(c)(1).
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
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be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Able protectively filed his application for DIB on
March 28, 2011, alleging disability as of November 1, 2009, due to back and knee
pain, gout, neuropathy, diabetes, arthritis in hips and right wrist, broken left
shoulder, heart attack and hypertension. (Record, (“R.”), at 219-20, 226, 229.) The
claim was denied initially and on reconsideration. (R. at 100-05, 113-16.) Able
then requested a hearing before an administrative law judge, (“ALJ”), (R. at 123),
and a hearing was held on June 17, 2013, at which Able was represented by a nonattorney representative. (R. at 35-75.)
By decision dated June 25, 2013, the ALJ denied Able’s claim. (R. at 1930.) The ALJ found that Able met the nondisability insured status requirements of
the Act for DIB purposes through June 30, 2013. 1 (R. at 21.) The ALJ also found
that Able had not engaged in substantial gainful activity since November 1, 2009,
his alleged onset date. (R. at 21.) The ALJ found that the medical evidence
established that Able suffered from severe impairments, namely diabetes with
peripheral

neuropathy,

hypertension,

degenerative

disc

disease,

obesity,

dyslipidemia and history of coronary artery disease, but he found that Able did not
have an impairment or combination of impairments listed at or medically equal to
one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 21-22.) The ALJ
1

In order to be eligible for disability benefits, Able must prove disability between
November 1, 2009, the alleged onset date, and June 25, 2013, the date of the ALJ’s decision.

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found that Able had the residual functional capacity to perform a range of light
work2 that would allow him to sit for two hours throughout the work day, required
no exposure to hazardous machinery, unprotected heights or climbing of ladders,
ropes and scaffold or driving and no more than occasional climbing of ramps and
stairs, balancing, stooping, kneeling, crouching and crawling and occasional
exposure to temperature extremes, wetness, humidity and excessive vibration. (R.
at 22-28.) The ALJ found that Able was able to perform his past relevant work as a
cashier. (R. at 28-29.) The ALJ also found that other jobs existed in the national
economy that Able could perform, including jobs as a ticket taker, a mail routing
clerk and a gate guard. (R. at 28-29.) Therefore, the ALJ found that Able was not
under a disability as defined by the Act and was not eligible for DIB benefits
through the date of the decision. (R. at 30.) See 20 C.F.R. § 404.1520(f), (g)
(2015).
After the ALJ issued his decision, Able pursued his administrative appeals,
(R. at 13-14), but the Appeals Council denied his request for review. (R. at 1-4.)
Able then filed this action seeking review of the ALJ’s unfavorable decision,
which now stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981
(2015). The case is before this court on Able’s motion for summary judgment filed
June 3, 2015, and the Commissioner’s motion for summary judgment filed June
30, 2015. Oral argument has not been requested; therefore, the matter is ripe for
decision.

2

Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, he
also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2015).

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II. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2015); see also Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). This process requires
the Commissioner to consider, in order, whether a claimant 1) is working; 2) has a
severe impairment; 3) has an impairment that meets or equals the requirements of a
listed impairment; 4) can return to his past relevant work; and 5) if not, whether he
can perform other work. See 20 C.F.R. § 404.1520. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 404.1520(a) (2015).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
The court must not weigh the evidence, as this court lacks authority to substitute its
judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Thus, it is the ALJ’s responsibility to weigh the evidence, including the
medical evidence, in order to resolve any conflicts which might appear therein.
See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.
1975). Furthermore, while an ALJ may not reject medical evidence for no reason
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or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
an ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R.
§ 404.1527(c), if he sufficiently explains his rationale and if the record supports his
findings.
Able argues that the ALJ erred by improperly assessing his credibility under
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). (Plaintiff’s Brief In Support Of
Summary Judgment, (“Plaintiff’s Brief”), at 2-4.) Able also argues that the ALJ
erred by finding that a significant number of jobs exist in the national economy
that Able could perform, thereby making him ineligible for disability benefits.
(Plaintiff’s Brief 4-9.) In particular, Able claims that the hypothetical presented to
the vocational expert did not take into account his need to urinate frequently.
(Plaintiff’s Brief at 4-9.)
In Mascio v. Colvin, 780 F.3d at 639, the Fourth Circuit held that the ALJ
erred by determining the claimant’s residual functional capacity before assessing
the claimant’s credibility with regard to the claimant’s subjective complaints and
alleged functional limitations. The Fourth Circuit held that the ALJ who had
decided Mascio’s claim had gotten “things backwards” by first determining
Mascio’s residual functional capacity, then using that finding to determine his
credibility. Mascio, 780 F.3d at 639. The court held that the Social Security
Regulations require an ALJ to “‘determine the extent to which [the claimant’s]
alleged functional limitations and restrictions due to pain or other symptoms can
reasonably be accepted as consistent with the medical signs and laboratory findings
and other evidence to decide how [the claimant’s] symptoms affect [his or her]
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ability to work.’” Mascio, 780 F.3d at 639 (quoting 20 C.F.R. § 416.929(a)). While
Mascio’s claim was for supplemental security income, (“SSI”), the same
requirements exist in the Regulations governing DIB claims. See 20 C.F.R.
§ 404.1529(a) (2015).
The Fourth Circuit held that the ALJ’s error was reflected in “boilerplate”
language used by him. The ALJ had written:
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.
Mascio, 780 F.3d at 639. The court further held that use of this language would
have been harmless, if the ALJ had properly analyzed the claimant’s credibility
elsewhere, which he did not. See Mascio, 780 F.3d at 639.
In this case, a review of the ALJ’s opinion shows that he addressed the issue
of Able’s credibility as required by the Regulations and the Fourth Circuit’s
opinion in Mascio. In particular, the ALJ spent more than five pages of his opinion
analyzing whether the medical evidence of record supported Able’s subjective
complaints. (R. at 23-28.) In the end, the ALJ found that Able’s statements
concerning the intensity, persistence and limiting effects of his symptoms were
“not entirely credible….” (R. at 26-27.) In particular, the ALJ found that Able’s
statement that he would travel with friends indicated a greater ability to sit for
extended periods of time than he alleged. (R. at 27.) He also found that Able’s
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allegations that he had no feeling in his hands, arms, feet and legs were not
supported by medical evidence. (R. at 27.) The ALJ further found that Able’s
allegations that he passed a kidney stone every three days and urinated at least 40
times a day simply were not supported by the medical evidence. (R. at 27.) The
ALJ concluded: “The credibility of the claimant’s allegations is weakened by
inconsistencies between the extent of his allegations and the objective medical
evidence. The claimant does experience some limitations but only to the extent
described in the residual functional capacity above.” (R. at 28.)
Furthermore, I find that the ALJ’s findings as to Able’s credibility and his
residual functional capacity are supported by substantial evidence in the record. In
particular, the medical evidence shows that on November 4, 2009, three days after
Able’s alleged onset date of disability, he reported that he had passed his
Department of Transportation, (“DOT”), physical a few days prior and was
working driving a truck out of town on a regular basis. (R. at 475.) Approximately
three months later, on February 18, 2010, Able stated that he “drives a truck; he is
out of town most of the time.” (R. at 469.) On July 31, 2012, Able saw his primary
care physician for completion of a DOT physical. (R. at 830-33, 840-41.) A health
history section, completed and signed by Able, indicated that he had no issues with
his kidneys, back pain, fainting or impaired hands and feet. (R. at 830.) On October
4, 2012, Able called his physician’s office and requested a letter stating that his
physician was aware of the medications he was taking and that they should not
affect his driving ability. (R. at 822-23.) A January 30, 2013, office note reflects
that Able stated that he was resistant to taking Insulin for his diabetes because he
“drives a truck.” (R. at 811.)

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The record does reveal that Able has sought treatment in an emergency room
on occasion for kidney stones. (R. at 548-51, 553, 557-60, 702-10, 750-54, 78186.) While the notes of these visits state that Able has claimed to have passed
numerous kidney stones, there is no report that he complained of urinating at least
40 times a day. (R. at 548-50, 557-60, 702-10, 750-54, 781-86.) At most there is a
complaint of “frequency.” (R. at 812.) On October 12, 2012, Able specifically
denied any problems with urinary frequency or urge to urinate. (R. at 816.) A CT
scan performed on October 15, 2010, noted only one kidney stone in Able’s left
kidney. (R. at 553.) An ultrasound performed on October 24, 2012, showed stones
in both kidneys. (R. at 764, 770-71.) Although he was referred to a urologist for
treatment, (R. at 557), there is no evidence that he ever saw this specialist, as he
likely would have done if his urological symptoms were as severe as he claims.
For the above-stated reasons, I also reject Able’s argument that the ALJ
erred by not including Able’s allegation of a need to urinate at least 40 times a day
in his hypothetical to the vocational expert.
Based on the above-stated reasons, I find that substantial evidence supports
the ALJ’s decision denying benefits. I will deny Able’s motion for summary
judgment, grant the Commissioner’s motion for summary judgment and affirm the
decision of the Commissioner denying benefits. An appropriate Order and
Judgment will be entered.
ENTERED: March 21, 2016.
s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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