Kincer v. Colvin
Filing
23
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 09/30/2014. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
KIESHA C. KINCER,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant
)
)
)
)
)
)
)
)
Civil Action No. 2:13cv00025
MEMORANDUM OPINION
By: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Kiesha C. Kincer, (“Kincer”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), denying
plaintiff’s claims for disability insurance benefits, (“DIB”), and supplemental
security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42
U.S.C.A. §§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this
court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 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). Oral argument has not been requested, therefore, the
matter is ripe for decision.
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
-1-
particular conclusion. It consists of more than a mere scintilla of evidence but may
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 Kincer protectively filed her applications for SSI and
DIB on November 6, 2008, alleging disability as of February 21, 2008, due to a
neck and back injury, anxiety with tremors, headaches and depression. (Record
(“R.”), at 12, 219-20, 221-23, 233, 267.) The claims were denied initially and upon
reconsideration. (R. at 56-79, 82-111, 140, 141-43, 145-50, 152-54.) Kincer then
requested a hearing before an administrative law judge, (“ALJ”). (R. at 155-56.) A
videoconference hearing was held on Kincer’s claims on December 13, 2011. (R.
at 28-55.) Kincer was represented by counsel at this hearing. (R. at 28.)
By decision dated January 10, 2012, the ALJ denied Kincer’s claims. (R. at
12-22.) The ALJ found that Kincer met the disability insured status requirements
of the Act for DIB purposes through June 30, 2014. (R. at 12, 14.) The ALJ found
that Kincer had not engaged in substantial gainful activity since February 21, 2008,
the alleged onset date. (R. at 14.) The ALJ found that the medical evidence
established that Kincer had severe impairments, namely fibromyalgia/arthralgias,
degenerative disc disease of the cervical spine, headaches, depression, anxiety and
a personality disorder, but the ALJ found that Kincer did not have an impairment
or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15.) The ALJ
-2-
found that Kincer had the residual functional capacity to perform light work 1 that
did not require her to climb ladders, ropes or scaffolds or crawl, to be exposed to
unprotected heights or moving machinery or concentrated exposure to excessive
noise or excessive vibrations or more than occasionally climbing ramps or stairs,
balancing, stooping, kneeling or crouching. (R. at 16-20.) The ALJ also found that
Kincer was limited to simple, routine, repetitive unskilled tasks with no more than
occasional interaction with the public, co-workers or supervisors. (R. at 16-20.)
The ALJ found that Kincer had no past relevant work. (R. at 20.) Based on
Kincer’s age, education, work experience, residual functional capacity and the
testimony of a vocational expert, the ALJ found that a significant number of jobs
existed in the national economy that Kincer could perform, including jobs as a
general office clerk, an order clerk and an office messenger. (R. at 20-21.) Thus,
the ALJ concluded that Kincer was not under a disability as defined by the Act and
was not eligible for DIB or SSI benefits. (R. at 21.) See 20 C.F.R. §§ 404.1520(g),
416.920(g) (2013).
After the ALJ issued his decision, Kincer pursued her administrative
appeals, but the Appeals Council denied her request for review. (R. at 1-5, 7.)
Kincer 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,
416.1481 (2013). The case is before this court on Kincer’s motion for summary
judgment filed January 15, 2014, and the Commissioner’s motion for summary
judgment filed April 21, 2014.
1
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, she
also can perform sedentary work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2013).
-3-
II. Facts and Analysis
Kincer was born in 1978, (R. at 56), which, at the time of the ALJ’s
decision, classified her as a “younger person” under 20 C.F.R. §§ 404.1563(c),
416.963(c). Kincer graduated from high school and attended two years of college.
(R. at 240.) In rendering his decision, the ALJ reviewed records from Wise
Resident’s Clinic; Wise Medical Group Health Care; Dr. Michael Moore, M.D.;
Norton Community Hospital; Dickenson Clinic; Mountain View Regional Medical
Center; Dr. Kevin Blackwell, D.O.; Wise County Behavioral Health Services; Blue
Ridge Neuroscience Center; Richard J. Milan Jr., Ph.D., a state agency
psychologist; B. Wayne Lanthorn, Ph.D.; Frontier Health Assessment and Forensic
Services; Julie Jennings, Ph.D., a state agency psychologist; Dr. Richard Surrusco,
M.D., a state agency physician; Dr. Galileo Molina, M.D.; Dr. Erin Mullins, M.D.,
with Norwise, OB-GYN; Dr. Uzma Ehtesham, M.D., a psychiatrist; and Dr.
Thomas Phillips, M.D., a state agency physician. Kincer’s attorney also submitted
medical reports from Dr. Moore to the Appeals Council.2
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2013). 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 her past relevant
work; and 5) if not, whether she can perform other work. See 20 C.F.R. §§
2
Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-5), this court must also take these new findings into
account when determining whether substantial evidence supports the ALJ's findings. See Wilkins
v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
-4-
404.1520, 416.920. 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), 416.920(a) (2013).
Under this analysis, a claimant has the initial burden of showing that she is
unable to return to her past relevant work because of her impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011 & West 2012); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.
1980).
By decision dated January 10, 2012, the ALJ denied Kincer’s claims. (R. at
12-22.) The ALJ found that the medical evidence established that Kincer had
severe impairments, namely fibromyalgia/arthralgias, degenerative disc disease of
the cervical spine, headaches, depression, anxiety and a personality disorder, but
the ALJ found that Kincer did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15.) The ALJ found that Kincer had
the residual functional capacity to perform light work that did not require her to
climb ladders, ropes or scaffolds or crawl, to be exposed to unprotected heights or
moving machinery or concentrated exposure to excessive noise or excessive
vibrations or more than occasionally climbing ramps or stairs, balancing, stooping,
kneeling or crouching. (R. at 16-20.) The ALJ also found that Kincer was limited
-5-
to simple, routine, repetitive unskilled tasks with no more than occasional
interaction with the public, co-workers or supervisors. (R. at 16-20.) The ALJ
found that Kincer had no past relevant work. (R. at 20.) Based on Kincer’s age,
education, work experience, residual functional capacity and the testimony of a
vocational expert, the ALJ found that a significant number of jobs existed in the
national economy that Kincer could perform, including jobs as a general office
clerk, an order clerk and an office messenger. (R. at 20-21.) Thus, the ALJ
concluded that Kincer was not under a disability as defined by the Act and was not
eligible for DIB or SSI benefits. (R. at 21.) See 20 C.F.R. §§ 404.1520(g),
416.920(g).
In her brief, Kincer argues that the ALJ’s finding that she was not disabled is
not supported by substantial evidence. (Plaintiff’s Memorandum In Support Of Her
Motion For Summary Judgment, (“Plaintiff’s Brief”), at 5-8.) In particular, Kincer
argues that the ALJ erred by making incomplete findings at step three of the
sequential process. (Plaintiff’s Brief at 5-6.) Kincer also argues that substantial
evidence does not exist in the record to support the ALJ’s findings as to her
residual functional capacity. (Plaintiff’s Brief at 6-8.)
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.
This 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
-6-
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
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), 416.927(c), if he sufficiently explains his rationale and if the record
supports his findings.
I will first address Kincer’s argument that the ALJ erred by making
incomplete findings at step three of the sequential process. In particular, Kincer
argues that the ALJ erred in his analysis of whether her condition met a listed
mental impairment. The ALJ’s decision states that he considered whether Kincer’s
mental condition met or equaled the listed impairments for affective disorders,
Section 12.04, or anxiety related disorders, Section 12.06. (R. at 15.) The ALJ
further considered whether Kincer’s condition satisfied the “paragraph B” criteria
for these listed impairments. (R. at 15-16.) To meet the “paragraph B” criteria, a
claimant’s mental impairment must result in two of the following:
marked
restrictions of activities of daily living, marked difficulties in maintaining social
functioning, marked difficulties in maintaining concentration, persistence or pace
or repeated episodes of decompensation, each of extended duration. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1 §§ 12.04, 12.06. The ALJ found that Kincer experienced
mild limitations in activities of daily living based on Kincer’s statements as to her
-7-
daily activities. (R. at 16.) The ALJ also found that Kincer experienced moderate
difficulties in social functioning and maintaining concentration, persistence or
pace, but he did not cite any of the evidence of record to support or explain his
findings. (R. at 16.) Kincer argues that this failure warrants reversal or, in the
alternative, remand for further consideration.
A closer review of the ALJ’s opinion, however, shows that, while he did not
weigh the psychological evidence of record at that particular point in his decision,
he did recite the evidence of record and explain the weight he gave that evidence.
(R. at 17-20.) In particular, the ALJ stated that he was giving limited weight to Dr.
Ehtesham’s opinions because his findings were inconsistent with the claimant’s
activities of daily living, the objective findings of the consultative examiners and
other objective evidence and because Dr. Ehtesham only evaluated Kincer on one
occasion. (R. at 19.) Based on my review of the ALJ’s opinion and the record, I
find that the ALJ adequately explained his weighing of the psychological evidence
and that substantial evidence supports his weighing and his findings as to Kincer’s
mental residual functional capacity.
The record shows that in April 2009 the Department of Social Services
removed Kincer’s child from her home, and Kincer was ordered by Social Services
to participate in a therapy group at Wise County Behavioral Health. (R. at 509-31.)
Upon intake, Kincer denied a history of substance abuse, but the notes reflect that
her youngest child, who later died, had been born with opiates in her system. (R. at
509.) Kincer stated that she had worked as a waitress for about eight years, but she
was then happy to be able to be a full-time mother; Kincer did not claim that she
was disabled from working. (R. at 512.) The intake notes also stated that Kincer
was able to complete all activities of daily living and independent living with no
-8-
intervention. (R. at 514.) A checklist of Kincer’s then-current psychological
symptoms indicated that she suffered from no symptoms other than mild academic
or work inhibition, social withdrawal, jitteriness, recurrent recollection of
distressing events, depressed mood, excessive or inappropriate guilt, excitability,
feeling worthless, helplessness, hopelessness and hostility and moderate anxiety,
panic attacks, worrying and insomnia. (R. at 518-20.) Kincer was diagnosed with
opioid intoxication and assessed with a then-current Global Assessment of
Functioning, (“GAF”), score of 60.3 (R. at 521.) A GAF score of 51-60 indicates
that the individual has moderate symptoms or moderate difficulty in social,
occupational or school functioning. See DSM-IV at 32.
On April 28, 2008, Dr. Ehtesham completed an assessment of Kincer’s
psychological condition. (R. at 570-75.) Dr. Ehtesham noted that Kincer presented
with complaints of agitation, excessive worry, fatigue, irritability, restlessness,
poor concentration, sleep disturbance, trembling, sweating, shortness of breath,
chest pain, sadness, fatigue, low self-esteem, hopelessness and property
destruction. (R. at 570.) Kincer complained of severe mood swings, crying and
feeling sad. (R. at 570.) Kincer stated that her symptoms of depression started five
years previously. (R. at 571.) Dr. Ehtesham’s assessment did not address any prior
history of substance abuse by Kincer. (R. at 571.) On Dr. Ehtesham’s mental status
exam, it was noted that Kincer avoided eye contact and exhibited normal motor
activity, but her affect was anxious and labile. (R. at 573.) Dr. Ehtesham noted that
Kincer denied any suicidal or homicidal ideations, no delusions were elicited, there
was no evidence of mania, and she did not appear to be responding to internal
3
The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
-9-
stimuli. (R. at 573.) Dr. Ehtesham noted that Kincer’s thought processes were goaloriented, her insight was good, and her judgment was intact. (R. at 573.) Dr.
Ehtesham diagnosed Kincer with a generalized anxiety disorder and major
depressive disorder and prescribed Lexapro and Vistaril. (R. at 575.) Dr. Ehtesham
placed Kincer’s then-current GAF score at 60. (R. at 575.)
About a year and a half later, on September 18, 2009, Dr. Ehtesham
completed a Medical Source Statement Of Ability To Do Work-Related Activities
(Mental), stating that Kincer was permanently disabled. (R. at 584-86.) Dr.
Ehtesham stated that Kincer had no useful ability to carry out simple or complex
instructions, to make judgments on simple or complex work-related decisions, to
interact appropriately with the public, supervisors or co-workers or to respond
appropriately to usual work situations and changes in a routine work setting. (R. at
584-85.) Dr. Ehtesham also stated that Kincer had an unsatisfactory ability to
understand and remember simple and complex instructions. (R. at 584.)
In
response to a request on this form to identify the factors (e.g., the particular
medical signs, laboratory findings or other factors) that supported her assessment,
Dr. Ehtesham stated “none.” (R. at 585.)
The medical records also show that Kincer was treated at Dickenson Clinic
for depression and anxiety in 2008. (R. at 358-61, 364.) Kincer was treated with
Effexor. (R. at 358-61.)
A January 11, 2007, note from Norwise Ob-Gyn states that an anonymnous
caller reported that Kincer was using marijuana and other street drugs during her
first pregnancy. (R. at 627.) These records also include the results of a drug screen
collected on January 15, 2007, which tested negative for drug use. (R. at 638.) A
-10-
March 6, 2008, note from Norwise Ob-Gyn states that a provider spoke with
Kincer about a positive urine drug screen, and Kincer stated that she had been
taking hydrocodone since being injured in a motor vehicle accident a couple of
years previous. (R. at 618.) On June 24, 2008, Kincer was seen at Norwise ObGyn for a post-partum visit. (R. at 607.) The note by Dr. Erin Mullins, M.D.,
states that Kincer denied suffering from any depression at that time. (R. at 607.)
On June 29, 2009, Richard J. Milan, Jr., Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), on Kincer. 4 (R. at 6162.) Milan specifically considered whether Kincer’s impairment met or equaled
the listed impairments for affective disorders, found at § 12.04, anxiety-related
disorders, found at § 12.06, or substance addiction disorder, found at § 12.09. (R.
at 61.) He found that there was a medically determinable impairment present, but
that it did not precisely satisfy the diagnostic criteria for these listed impairments.
(R. at 61.) Milan stated that Kincer experienced mild restrictions of activities of
daily living, mild difficulties in maintaining social functioning and mild difficulties
in maintaining concentration, persistence or pace and no repeated episodes of
decompensation of extended duration. (R. at 61.)
A urine drug screen performed on Kincer at Norton Community Hospital on
November 18, 2009, tested positive for the use of benzodiazepines and opiates. (R.
at 653.) On that same date, Dr. Mullins with Norwise Ob-Gyn, noted that Kincer
was addicted to Lortab and Xanax, but refused treatment and continued to take the
medications despite being pregnant. (R. at 603.) A urine drug screen at the same
facility on January 8, 2010, again tested positive for benzodiazepines and opiates.
4
The only evidence of this contained in the Record is found in the Initial Disability
Determination Explanation. (R. at 61-62, 73-74.)
-11-
(R. at 657.) Dr. Mullins noted her continued use on that date as well. (R. at 603.) In
an undated medical history completed for Tru-Care Medical Clinic, (“Tru-Care”),
Kincer stated that she had used LSD or hallucinogens and marijuana on one
occasion in the past. (R. at 672.) She also stated that she had taken stimulants and
tranquilizers or sleeping pills routinely in the past. (R. at 673.) Kincer also stated
that she was taking pain killers “a lot, all day.” (R. at 672.) On February 16, 2010,
Kincer told Dr. Virginia A. Baluyot, M.D., with Tru-Care that she had been
abusing pain medication and Xanax since she was in a motor vehicle accident in
2003. (R. at 676.) In particular, Kincer said that she had crushed and snorted an
average of 10 Percocet, Roxicet or OxyContin tablets a day. (R. at 676.) Kincer
entered Subutex treatment for opiate addiction in February 2010. (R. at 677-99,
730-41.) She was pregnant at the time. (R. at 695.) Nonetheless, on March 18,
2010, Kincer admitted that she had used Percocet two days previous. (R. at 689.)
The evidence shows that Kincer had returned to the use of Lortab and Xanax by
October 2011. (R. at 744.)
In April 2010, Elizabeth Jones, M.A., a senior psychological examiner,
performed a psychological evaluation on Kincer. (R. at 701-06.) Jones noted that
Kincer was pregnant with her third child, which was due in July. (R. at 701.) Jones
noted that Kincer’s grooming and hygiene were excellent, her affect was bright
with congruent mood, and she was cooperative. (R. at 702.) Jones stated that
Kincer did not appear to have memory problems, and she had no difficulty with
attention or concentration. (R. at 703.) Although Kincer claimed that she
experienced tremors due to anxiety, Jones noted that Kincer’s hands did not shake
during the interview other than when she held them up to show Jones how they
would shake. (R. at 704.) Kincer denied delusions and hallucinations, and Jones
said that there was no evidence of any disordered thought process. (R at 704.)
-12-
Jones said that Kincer appeared to be functioning in the average range of
intelligence. (R. at 704.)
Kincer told Jones that she was applying for disability because she had
“issues with [her] neck and back.” (R. at 702.) Kincer also said that she had
suffered from “nerve problems since high school.” (R. at 702.) Kincer said that she
was put on antidepressants in July 2008 after her infant daughter died. (R. at 702.)
Kincer told Jones that she currently was in Subutex treatment, but she stated, “It
really sucks but I have to do it for my baby.” (R. at 702.) Regarding her history of
substance abuse, Kincer stated, “One drug led to another. I went to college and
experimented with alcohol and marijuana. I did pills and cocaine but never IV
drugs. Seven years ago in 2003 I was in a car accident and was taking [m]orphine.
I didn’t know what the hell I was doing. I ended up buying it.” (R. at 702.) Kincer
also told Jones, “I [have] been arrested for all kinds of things.” (R. at 702-03.)
Kincer told Jones that she last worked as a waitress in 2008. (R. at 703.) Kincer
stated that she could not keep a job. (R. at 703.) When asked why, Kincer replied,
“I don’t know. I get fired. I just get into it with the other girls.” (R. at 703.)
Kincer complained of sleep difficulties due to pain, low appetite and low
energy level. (R. at 704.) Jones stated that Kincer had no difficulty relating to her
and should have no difficulty relating to others. (R. at 705.) Jones stated that
Kincer displayed significant symptoms of a personality disorder. (R. at 705.)
Jones assessed Kincer’s then-current GAF score at 70, which indicates mild
symptoms and/or functional limitations. (R. at 706.) See DSM-IV at 32. Jones also
stated that Kincer was not limited in her ability to understand and remember and
should be able to understand and remember simple and detailed instructions and
-13-
was not limited in her ability to make work-related decisions. (R. at 706.) Jones did
state that Kincer did have mild limitations in social interaction and adaptation, she
displayed poor judgment and impulsivity and that she might have difficulty
responding appropriately to criticism from supervisors. (R. at 706.) Jones
diagnosed opioid dependence; anxiety disorder, not otherwise specified, and
personality disorder, not otherwise specified, with borderline and histrionic
features. (R. at 706.)
Kincer’s family doctor, Dr. R. Michael Moore, M.D., completed a Medical
Assessment Of Ability To Do Work-Related Activities (Mental) on December 19,
2011. (R. at 821-23.) Dr. Moore stated that Kincer had poor or no ability to
making all occupational, performance and personal/social adjustments except for a
seriously limited ability resulting in unsatisfactory work performance to follow
work rules, to function independently, to maintain attention/concentration, to
understand, remember and carry out simple job instructions, to maintain personal
appearance and to behave in an emotionally stable manner. (R. at 821-22.) Dr.
Moore also stated that Kincer would be absent from work more than two days a
month due to her mental impairments or treatment. (R. at 823.)
On April 29, 2010, Julie Jennings, Ph.D., a state agency psychiatrist,
completed a Psychiatric Review Technique form (“PRTF”), on Kincer. 5 (R. at 9091.) Jennings specifically considered whether Kincer’s impairment met or equaled
the listed impairments for affective disorders, found at § 12.04, anxiety-related
disorders, found at § 12.06, or substance addiction disorders, found at § 12.09. (R.
at 90.) She found that there was a medically determinable impairment present, but
5
The only evidence of this contained in the Record is found in the Initial Disability
Determination Explanation and on reconsideration. (R. at 90-91, 105-06.)
-14-
that it did not precisely satisfy the diagnostic criteria for these listed impairments.
(R. at 90.) Jennings stated that Kincer experienced no restrictions of activities of
daily living, mild difficulties in maintaining social functioning, mild difficulties in
maintaining concentration, persistence or pace and no repeated episodes of
decompensation of extended duration. (R. at 90.) Jennings stated that Kincer did
not suffer from a severe mental impairment. (R. at 91.)
Based on the above evidence, I find that substantial evidence supports the
ALJ’s findings that Kincer’s mental impairments did not meet or equal a listed
impairment. I also find that substantial evidence exists in the record to support the
ALJ’s rejection of Dr. Ehtesham’s extreme findings. I further find that the ALJ’s
finding as to Kincer’s mental residual functional capacity is supported by the
above evidence.
I also find that substantial evidence supports the ALJ’s finding at to Kincer’s
physical residual functional capacity. In particular, Kincer argues that the ALJ
erred in rejecting the opinion of her treating physician, Dr. Moore, regarding her
residual functional capacity. Based on my review of the record, I find that
substantial evidence supports the rejection of the opinions of Dr. Moore. Dr.
Moore’s assessment of Kincer’s mental residual functional capacity, summarized
above, basically found that Kincer had no work-related mental abilities. Dr.
Moore’s assessment of Kincer’s physical residual functional capacity is almost as
extreme. Dr. Moore stated that Kincer could lift and carry items weighing up to
only five pounds occasionally. (R. at 818.) He stated that she could stand and/or
walk for only two hours and sit for only three hours in an eight-hour workday. (R.
at 818-19.) Dr. Moore also stated that Kincer could never climb, stoop, kneel,
balance, crouch or crawl. (R. at 819.)
-15-
While the medical record shows that Dr. Moore treated Kincer from May 6,
2008, to June 29, 2009, each medical report is sparse and, often, illegible. (R. at
456-59, 578-79, 810-23.) From the medical records, it appears that Dr. Moore
treated Kincer primarily for complaints of low back and neck pain and feeling
nervous. (R. at 456-59, 478-79.) Other than documenting some muscle tenderness,
Dr. Moore’s reports contain few, if any, mention of supporting findings. Dr. Moore
routinely prescribed Xanax and Lortab for Kincer’s complaints. (R. at 456-59, 47879.) On June 23, 2008, Kincer requested a prescription for Adderall, which Dr.
Moore did not write. (R. at 458.)
Dr. Moore did refer Kincer to see a Dr. Rebekah C. Austin, M.D., a
neurosurgeon with Blue Ridge Neuroscience Center on May 11, 2009. (R. at 48790.) Kincer told Dr. Austin that she had suffered a cervical strain in a motor
vehicle accident on September 30, 2008, and that her cervical difficulties had
worsened since that time. (R. at 487.) She also complained of persistent low back
pain. (R. at 487.) Dr. Austin’s musculoskeletal examination showed mild cervical
paraspinous muscle contractions with tenderness of the cervical spine. (R. at 488.)
Range of motion of the neck was limited in left rotation to 60 degrees and right
rotation to 60 degrees with increase in pain. (R. at 488.) There was no
misalignment, asymmetry, crepitation, tenderness, masses, deformities or effusions
and no limitation in the range of motion in the upper or lower extremities. (R. at
488.) Straight leg raise was negative bilaterally. (R. at 488.) Muscle tone was
normal with no evidence of any atrophy. (R. at 489.) Dr. Austin stated that an
MRI of Kincer’s cervical spine taken on November 18, 2008, revealed cervical
disc degeneration and a broad-based disc protrusion at the C5-C6 level. (R. at 489.)
-16-
After reviewing Kincer’s medical records and radiographic images and
examining Kincer, Dr. Austin stated that Kincer complained of diffuse
musculoskeletal pain with no clearcut evidence of radiculopathy on exam. (R. at
489.) She recommended maximizing conservative treatment. (R. at 489.) Dr.
Austin stated that she did not believe that surgical intervention was warranted or
would significantly improve her condition. (R. at 489.) Dr. Austin did prescribe a
course of physical therapy, but there is no indication in this record that Kincer ever
attended physical therapy other than in 2003. (R. at 329-31, 333-37, 490.)
Regarding Kincer’s work, Dr. Austin simply stated “patient does not work outside
of the home.” (R. at 490.)
The medical record also shows that Kincer treated with Dr. Galileo Molina,
M.D., beginning in 2007 to 2008 for neck and back pain. (R. at 379-83.) At Dr.
Molina’s initial assessment, Kincer stated that she had suffered from chronic neck
pain since injuring her neck in a motor vehicle accident in 2003. (R. at 382.)
Kincer complained of a pain level of 10 on a 10-point scale, but Dr. Molina noted
that Kincer moved her neck in all directions with no apparent pain or difficulty and
did not appear to be in pain. (R. at 382.) Kincer also complained of suffering from
chronic low back pain her entire life. (R. at 382.) Dr. Molina ordered x-rays and
gave Kincer a prescription for Anabar. (R. at 382.) Dr. Molina noted that when
Kincer looked at the prescription “she had a sour expression on her face and asked
‘what is this[?]’” (R. at 382.)
Dr. Kevin Blackwell, D.O., performed a consultative examination of Kincer
on May 18, 2009. (R. at 504-07.) Kincer complained of neck and back pain so
severe that she could not sleep or sit for any period of time. (R. at 504.) Kincer
also complained of arthritis pain in most of her joints. (R. at 504.) Kincer told Dr.
-17-
Blackwell that her pain was a 7-8 on a 10-point scale on a good day and a 9-10 on
a bad day. (R. at 504.) She also stated that she had problems with anxiety and
depression. (R. at 504.)
Physical examination revealed some tenderness in Kincer’s knees and in her
trapezius and lumbar muscles. (R. at 506.) All other findings were normal,
including good grip strength, normal upper and lower extremity strength and
reflexes. (R. at 506.) Dr. Blackwell diagnosed chronic cervical/lumbar pain,
anxiety/depression, bilateral knee pain and headaches secondary to chronic
cervical pain. (R. at 506.) Dr. Blackwell stated that Kincer was capable of lifting
items weighing up to 35 pounds maximally and 20 pounds frequently. (R. at 506.)
He stated that Kincer could bend at the waist and kneel up to one-third of the
day.(R. at 506.) He stated that Kincer could not squat, crawl, climb ladders or work
at unprotected heights. (R. at 506-07.) Dr. Blackwell stated that Kincer could sit
for eight hours in an eight-hour workday and stand for eight hours with normal
postural changes. (R. at 507.)
Dr. Thomas M. Phillips, M.D., a state agency physician, completed a
Physical Residual Functional Capacity Assessment on Kincer on June 22, 2009.
(R. at 63-64.)6 Dr. Phillips stated that Kincer could occasionally lift and carry
items weighing up to 20 pounds and frequently lift and carry items weighing up to
10 pounds. (R. at 63.) He stated that Kincer could stand and/or walk up to six hours
in an eight-hour workday and sit about six hours in an eight-hour workday. (R. at
63.) Dr. Phillips stated that Kincer could never climb ladders, ropes or scaffolds,
6
The only evidence of this contained in the Record is found in the Initial Disability
Determination Explanation. (R. at 63-64.)
-18-
but could occasionally climb ramps or stairs, stoop, kneel, crouch and crawl and
could frequently balance. (R. at 63-64.)
Dr. Richard Surrusco, M.D., a state agency physician, completed a Physical
Residual Functional Capacity Assessment on Kincer on April 29, 2010. (R. at 9293.)7 Dr. Surrusco stated that Kincer could occasionally lift and carry items
weighing up to 50 pounds and frequently lift and carry items weighing up to 25
pounds. (R. at 92.) He stated that Kincer could stand and/or walk up to six hours
in an eight-hour workday and sit about six hours in an eight-hour workday. (R. at
92.) Dr. Surrusco stated that Kincer could occasionally climb ladders, ropes or
scaffolds, climb ramps or stairs, balance, stoop, kneel, crouch and crawl. (R. at 93.)
Based on this evidence, I find that the ALJ did not err in rejecting the
opinions of Dr. Moore. I further find that this evidence supports the ALJ’s finding
as to Kincer’s physical residual functional capacity and his decision that she was
not disabled. An appropriate order and judgment will be entered.
ENTERED: September 30, 2014.
/s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
7
The only evidence of this contained in the Record is found in the Disability
Determination Explanation on reconsideration. (R. at 92-93.)
-19-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?