Mitchell v. Colvin

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 01/29/2016. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
RUTH C. MITCHELL,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 2:14cv00046
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Ruth C. Mitchell, (“Mitchell”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”),
determining that she 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). Mitchell has requested oral argument in this
matter.
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
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“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
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 Mitchell protectively filed her application for DIB on
October 14, 2011, alleging disability as of April 1, 2006, due to agoraphobia,
anxiety, depression, polycythemia, 1 hypertension, nerves, skin rash eczema,
synovial cysts on the spine and herniated discs at the L4-L5 level of the spine.
(Record, (“R.”), at 183-84, 188, 192, 211, 219.) The claim was denied initially and
on reconsideration. (R. at 91-93, 97-99, 102, 103-05, 107-09.) Mitchell then
requested a hearing before an administrative law judge, (“ALJ”), (R. at 110), and a
hearing was held by video conferencing on July 23, 2013, at which Mitchell was
represented by counsel. (R. at 29-70.)
By decision dated August 8, 2013, the ALJ denied Mitchell’s claim. (R. at
12-24.) The ALJ found that Mitchell met the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2007.2 (R. at 14.)
The ALJ also found that Mitchell had not engaged in substantial gainful activity
since April 1, 2006, her alleged onset date. (R. at 14.) The ALJ found that the
1

Polycythemia refers to an increase in the total red cell mass of the blood.
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, (“Dorland’s”), 1330 (27th ed. 1988).
2

See

Therefore, in order to be eligible for DIB benefits, Mitchell must show that she was
disabled between April 1, 2006, the alleged onset date, and December 31, 2007, the date last
insured.

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medical evidence established that Mitchell suffered from severe impairments,
namely polycythemia; chronic obstructive pulmonary disease, (“COPD”);
depression; and anxiety, but she found that Mitchell 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 14-16.) The ALJ found that Mitchell had
the residual functional capacity to perform a range of light work,3 which did not
require more than occasional climbing, balancing, stooping, kneeling, crouching
and crawling, and which did not require more than occasional social interaction.
(R. at 16-21.) The ALJ found that, through the date last insured, Mitchell was able
to perform her past relevant work as an accounting clerk. (R. at 21-22.) Based on
Mitchell’s age, education, work history and residual functional capacity and the
testimony of a vocational expert, the ALJ also found that jobs existed in significant
numbers in the national economy that Mitchell could perform, including jobs as an
assembler, a packer and an inspector. (R. at 22-23.) Thus, the ALJ found that
Mitchell was not under a disability as defined by the Act and was not eligible for
DIB benefits through her date last insured. (R. at 23.) See 20 C.F.R. §
404.1520(f),(g) (2015).
After the ALJ issued her decision, Mitchell pursued her administrative
appeals, (R. at 7), but the Appeals Council denied her request for review. (R. at 15.) Mitchell 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 Mitchell’s motion for summary
judgment filed June 15, 2015, and the Commissioner’s motion for summary
3

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) (2015).

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judgment filed July 20, 2015.
II. Facts
Mitchell was born in 1955, (R. at 183), which, at the time of the ALJ’s
decision, classified her as a “person of advanced age” under 20 C.F.R. §
404.1563(e). She has a high school education and two years of college instruction.
(R. at 193.) Mitchell has past relevant work experience as an office manager in a
dentist’s office and as a dental hygienist. (R. at 31-32, 193.)
Mitchell testified at her hearing that she last worked as dental
receptionist/office manager/bookkeeper in April 2002. (R. at 44-45.) However,
she stated that she left that job due to her nerves and increasing difficulty being
around people and dealing with the public. (R. at 38, 45.) Mitchell stated that her
“nerves” were treated by her primary care physician. (R. at 38.) She stated that
she was agoraphobic, sometimes requiring her to cancel medical appointments
because she could not go out. (R. at 33-34.) She stated that the only place she felt
safe was at home. (R. at 35.) Mitchell testified that in 2006 and 2007, she simply
“stopped socially.” (R. at 41.) She stated that she did not want company unless
announced, and she did not enjoy people anymore. (R. at 41.) Mitchell testified
that she did not leave the house to grocery shop and had not been to Walmart “in
years.” (R. at 41.) She stated that she last time she had been shopping was
“probably three years ago.” (R. at 41.) Mitchell testified that she might go into the
Dollar Store if she was going to the doctor and was able to do so. (R. at 41.) She
stated that her neighbor cut her hair, she did not attend church, and she did not go
out to dinner. (R. at 41-42.) Mitchell estimated that she had not eaten out since
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2003. (R. at 42.) She testified that she did not drive, and was not doing so in 2006
or 2007, due to her back problems and panic attacks, unless her husband was
unavailable, in which case she only to drove to and from medical appointments.
(R. at 43-44.)
Mitchell testified that she began having back pain in 2006, resulting in
difficulty getting up and down by herself, difficulty standing and limited physical
activity. (R. at 47-48.) She stated that she had seen an orthopedic doctor for her
back and had taken Lortab for back pain for the previous five or six years. (R. at
38-39.) She stated that Lortab alleviated some of her pain, and she admitted that
her pain was worse when she did not take it. (R. at 40.) Although Mitchell
testified that her conditions worsened in January 2012, she stated that she refused
to see a neurosurgeon, contrary to her physician’s advice in January 2013, because
she “[does not] travel” due to her back and her nerves. (R. at 34-35, 38.) Mitchell
did treat with Blue Ridge Neuroscience Center, P.C., in April 2011, but did not
follow through with the recommendation for physical therapy. (R. at 39.) She
testified that she did not file for disability until October 2011, despite an alleged
onset date of April 1, 2006, because she thought she could “overcome” it, and she
was embarrassed and did not want to “give in to it.” (R. at 34.)
Mitchell stated that her husband did the laundry and cooked. (R. at 48.) She
stated that she could make crockpot meals, but had to sit down for at least 20
minutes due to lower back pain. (R. at 48-49.) She also testified that she had to lie
down throughout the day and sit in a recliner with her feet up. (R. at 49.) Mitchell
testified that her husband did the grocery shopping in December 2007. (R. at 51.)
She described a typical day in December 2007 to include simply staying home. (R.
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at 51.) She stated that she had to move from one point to another just to get
comfortable. (R. at 52.) Mitchell testified that, in December 2007, she went to bed
around 10:30 p.m. and would sleep for six or seven hours on Flexeril. (R. at 52.)
After getting up, she would make a cup of coffee and proceed to alternate from
spending time in a recliner and lying back down. (R. at 53.) She stated that she
did not eat breakfast or lunch, and she would have dinner with her husband around
5:00 p.m. (R. at 53-54.) Mitchell testified that she would continue alternating
positions after dinner. (R. at 54.) She stated that she would plant flowers when
she could, but her husband brought her the dirt. (R. at 51.) She further testified
that she had not taken a vacation since 2003. (R. at 52.)
John Newman, a vocational expert, also was present and testified at
Mitchell’s hearing. (R. at 55-68.) Newman characterized Mitchell’s past work as
a dental receptionist as sedentary4 and semi-skilled, as a bookkeeper as sedentary
and skilled and as a dental assistant as light and skilled. (R. at 55-56.) As an
aggregate assessment, Newman characterized Mitchell’s work as a dental assistant
at the dentist’s office as light and skilled. 5 (R. at 56.) When asked to consider a
hypothetical individual who could perform light work that required no more than
occasional climbing of ramps, stairs, ladders, scaffolds and ropes and no more than
occasional crouching and crawling, Newman testified that such an individual could
perform Mitchell’s past work as a dental assistant. (R. at 57-58.) Newman further
4

Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and standing
is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a) (2015).
5

Newman testified that the final Dictionary of Occupational Titles, (“DOT”),
classification that was relevant was “dental assistant,” found at 079.361-018. (R. at 58.)

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testified that such an individual could perform other jobs existing in significant
numbers in the national economy, including those of a receptionist, a telephone
order clerk and an accounting clerk, all classified as sedentary. (R. at 58-59.)
Newman also testified that such an individual could perform the jobs of a cashier,
an amusement or recreational attendant and a counter clerk, all at the light level of
exertion. (R. at 61.) Newman testified that all of the jobs listed, except for the
accounting clerk job, required dealing with the public. (R. at 64-65.) He stated
that, if a hypothetical individual was unable to deal with the public due to fear,
anxiety and panic, requiring a retreat from the environment, she would not be able
to perform those jobs. (R. at 65.) Newman testified that the accounting clerk job
probably would require an individual to sit for a minimum of six hours in an eighthour day, and if a hypothetical individual was not able to do so due to back pain or
was required to shift and change positions throughout the day for at least 15 to 20
minutes at a time, the individual would not be able to perform that job or any other
sedentary job. (R. at 65-66.) Newman further testified that if a hypothetical
individual had to sit in a position to recline or prop up her feet at least waist-high
or higher, such individual could not perform those sedentary jobs or any other jobs.
(R. at 66.) Newman was next asked to consider a hypothetical individual with no
exertional limitations, but who could have no more than occasional social
interaction. (R. at 67.) He testified that such an individual could not perform
Mitchell’s past work, but could perform the job of the accounting clerk, as well as
the jobs of an assembler, a laundry folder and an inspector/tester/sorter, at the light
level of exertion. (R. at 67.) Lastly, when asked to consider a hypothetical
individual who could perform light work that required no more than occasional
climbing of ramps, stairs, ropes, ladders and scaffolds, no more than occasional
crouching and crawling and which required no more than occasional social
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interaction, Newman testified that such an individual could perform the jobs just
listed. (R. at 68.)
In rendering her decision, the ALJ reviewed medical records from Wellmont
Lonesome Pine Hospital; Dr. Joseph Duckwall, M.D., a state agency physician;
Julie Jennings, Ph.D., a state agency psychologist; James Wickham, a state agency
consultant; Richard Luck, Ph.D., a state agency psychologist; Dr. Lawrence J.
Fleenor, M.D.; Solstas Lab Partners; Blue Ridge Neuroscience Center, P.C.;
Dermatology Associates; Medical Associates of Big Stone Gap; and Wellmont
Medical Associates.
Mitchell saw Dr. Lawrence J. Fleenor, M.D., from November 28, 2001,
through November 19, 2011. Over this time, Dr. Fleenor treated Mitchell for
anxiety, depression, agoraphobia, polycythemia, spinal stenosis, right sacroiliac,
(“SI”), joint arthritis and low back syndrome, among other things. (R. at 268-366,
370-95, 422-53.) With regard to her psychological impairments prior to April 1,
2006, Dr. Fleenor treated Mitchell’s depression and anxiety with agoraphobic
symptoms conservatively with Zoloft, Serax, Librax and Lexapro. (R. at 268-69,
271-72, 274, 277, 279, 281, 283-84, 288.) On December 12, 2001, Mitchell
reported doing better, and Dr. Fleenor stated that she showed dramatic
improvement. (R. at 269.) On January 9, 2002, she reported doing some better.
(R. at 269.) By February 13, 2002, her nerves were “good.” (R. at 270.) On April
24, 2002, Mitchell reported significant emotional stress, she had sweaty palms and
was tremulous. (R. at 271.) On May 29, 2002, Mitchell’s nerves were fair,6 and
6

It is difficult to decipher from the handwritten notes whether Mitchell stated that she
was doing “fair” or “fine.”

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Dr. Fleenor increased her dosage of Zoloft. (R. at 271.) By July 30, 2002, she
reported that this increased dosage helped, but she described herself as a social
recluse. (R. at 272.) On December 12, 2002, Mitchell continued to report doing
fair. (R. at 273.) On March 11 and June 16, 2003, Mitchell stated that her nerves
were good. (R. at 276-77.) On September 19, 2003, Dr. Fleenor deemed her
conditions stable. (R. at 277.)
On February 6, 2004, Mitchell reported that she had been out of her
medication for a week and was agoraphobic. (R. at 274.) Dr. Fleenor prescribed
Lexapro, and by March 12, 2004, Mitchell reported feeling calmer and not as
worried. (R. at 275.) She again reported feeling better on April 8, 2004. (R. at
280.) On August 11, 2004, Mitchell stated that she felt well. (R. at 283.) On
September 10, 2004, she reported feeling well, and she conveyed no concerns. (R.
at 283.) On November 12, 2004, Mitchell stated that she was doing fine, and she
was continued on Lexapro. (R. at 284.) On January 12, 2005, she continued to do
fine. (R. at 285.) By September 19, 2005, Mitchell complained of increased
agitation, irritability and reclusivity, but admitted she had stopped taking Lexapro.
(R. at 286.) She requested more Serax. (R. at 286.) On October 31 and November
30, 2005, Mitchell reported doing fine and feeling well. (R. at 287.) By January
25, 2006, she stated that she did not feel well and asked to resume Lexapro, which
Dr. Fleenor prescribed. (R. at 288.) By March 1, 2006, Mitchell reported that the
Lexapro helped. (R. at 289.)
With regard to Dr. Fleenor’s treatment of Mitchell during the relevant time
period, she reported on August 18, 2006, that she was reclusive, agoraphobic and
hypomanic. (R. at 290.) On November 18, 2006, she stated that she was doing
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fair, but noted that her depression was worse and that she was reclusive and
agoraphobic. (R. at 291.) Dr. Fleenor noted a visible tremor. (R. at 291.) He
discontinued Lexapro and prescribed Cymbalta.

(R. at 291.)

However, on

December 2, 2006, Mitchell reported that she felt no different, so he increased her
dosage of Cymbalta to 60 mg. (R. at 292.) By March 16, 2007, Mitchell reported
that her depression was improving with this increased dosage, which Dr. Fleenor
continued. (R. at 292-93.) On March 23, 2007, Mitchell again reported that her
depression was doing better, and on May 19, 2007, she stated that she really liked
how she felt. (R. at 294.) On July 18 and October 22, 2007, she reported doing
fair on Cymbalta. (R. at 296-97.) Mitchell noted a fear of leaving her home, but
she noted decreased depressive symptoms. (R. at 297.)
Dr. Fleenor continued to treat Mitchell’s psychological impairments after the
expiration of her date last insured. On February 15 and May 14, 2008, Mitchell’s
diagnoses and medications remained unchanged, and on July 9, 2008, she reported
doing fair. (R. at 298-99.) On October 24, 2009, Mitchell stated that she was
doing “alright,” but on July 13, 2011, she reported feeling agitated. (R. at 442.)
When Mitchell presented to the emergency department at Wellmont Lonesome
Pine Hospital, (“Lonesome Pine”), on March 15, 2011, with complaints of
dizziness and near syncope, she was treated by Dr. Fleenor. (R. at 370-82.)
Despite being described as anxious, to varying degrees, she was fully oriented and
cooperative. (R. at 374, 376, 379.) Mitchell saw Dr. Fleenor one last time on
November 19, 2011, at which time he continued to diagnose her with agoraphobia.
(R. at 449.)
On October 21, 2011, Dr. Fleenor completed a mental assessment of
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Mitchell, finding that she had a seriously limited ability to understand, remember
and carry out simple, detailed and complex job instructions and to maintain
personal appearance, and no useful ability to follow work rules, to relate to coworkers, to deal with the public, to use judgment, to interact with supervisors, to
deal with work stresses, to function independently, to maintain attention and
concentration, to behave in an emotionally stable manner, to relate predictably in
social situations and to demonstrate reliability. (R. at 451-53.) He further found
that she would be absent from work more than two days monthly due to her
impairments or treatment.

(R. at 453.)

Dr. Fleenor based his findings on

Mitchell’s chronic depression, agoraphobia, hypomania, lethargy, expected alcohol
abuse and known cigarette abuse. (R. at 451.) In a letter to Mitchell’s counsel,
dated October 21, 2011, Dr. Fleenor stated that her primary diagnoses were
depression,

hypertension,

chronic

obstructive

lung

disease,

secondary

polycythemia and low back syndrome. (R. at 450.) He opined that Mitchell’s
prognosis for recovery, particularly from her dominating emotional difficulties,
was poor. (R. at 450.) Dr. Fleenor further opined that Mitchell was disabled from
gainful employment long before April 1, 2006, and continued to be so disabled.
(R. at 450.)
With regard to Mitchell’s physical impairments, the record reveals that Dr.
Fleenor treated her for hypertension, polycythemia and low back problems.
However, because Mitchell’s argument on appeal focuses mainly on her low back
problems, in relation to her physical impairments, the court also will focus its
attention on the notes pertaining thereto. At the outset, the court notes that there
are no treatment records from the relevant time period relating to Mitchell’s low
back problems. The first mention of back problems was on September 6, 2008,
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when Mitchell reported falling two weeks previously and hurting her back, causing
back pain which radiated into her leg.

(R. at 299-300.)

She received a

Depomedrol injection. (R. at 300.) On September 29, 2008, she had pain on
pressure to the caudal SI joint. (R. at 300.) Dr. Fleenor diagnosed right SI joint
arthritis, and he administered a Toradol injection. (R. at 301.) On November 15,
2008, Mitchell had pronounced lower back pain with sciatica, and she was
diagnosed with low back syndrome. (R. at 302.) Dr. Fleenor prescribed Lortab,
and he ordered an MRI of the lumbosacral spine. (R. at 302.) This MRI, dated
December 5, 2008, showed spinal stenosis at the L4-L5 level due to a bulging
annulus and hypertrophy of the posterior facet joints. (R. at 475-76.) There also
was a synovial cyst at the right facet joint, causing some additional compression to
the exiting spinal nerve on the right side. (R. at 476.) Facet joint arthrosis was
noted at all lumbar levels, and there was an arachnoid cyst in the sacral canal. (R.
at 476.) On December 13, 2008, Dr. Fleenor diagnosed Mitchell with spinal
stenosis, herniated discs and spinal cysts, among other things, and on April 18,
2009, he diagnosed spinal stenosis. (R. at 303, 430.)
Mitchell returned to Dr. Fleenor on June 20, 2009, and was continued on her
medications. (R. at 431.) On October 24, 2009, she reported doing “alright.” (R.
at 432.) Mitchell’s conditions remained essentially unchanged through February
22, 2011. (R. at 439.) By March 25, 2011, she reported severe low back pain, but
stated that she was feeling “so much better.” (R. at 440.) Dr. Fleenor continued to
diagnose low back syndrome. (R. at 440.) On September 19, 2011, Mitchell stated
that she was managing her back pain and radiating pain “okay.” (R. at 443-44.)
An MRI of Mitchell’s lumbosacral spine, dated March 16, 2011, showed
significant bilateral facet arthropathy at the L4-L5 level with a synovial cyst at the
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right facet joint protruding into the thecal sac. (R. at 423-25.) There also was a
bulging annulus and bilateral facet arthropathy, as well as a synovial cyst of the
right facet joint impinging on the thecal sac and causing impingement on multiple
nerve roots, especially on the right side. (R. at 424-25.) Mild central canal
stenosis and moderate bilateral foraminal narrowing were noted at this level, as
well. (R. at 425.) At the L2-L3 level, there was a moderate asymmetrically
bulging annulus on the left with a small annular tear and facet arthropathy causing
moderate left foraminal narrowing. (R. at 425.) Mitchell’s dosage of Lortab was
increased, and she was referred to a neurosurgeon. (R. at 372.) Dr. Fleenor
diagnosed low back syndrome and lumbar disc disease, among other things. (R. at
372.) When Mitchell returned to Dr. Fleenor for the last time on November 19,
2011, he continued to diagnose low back syndrome. (R. at 449.)
While Mitchell treated with other sources, none of the treatment was during
the time period relevant to the disability determination.

On April 19, 2011,

Mitchell saw Dr. David M. Pryputniewicz, M.D,. a neurosurgeon at Blue Ridge
Neuroscience Center, P.C., for complaints of right lower extremity pain and lower
lumbar pain for the previous two and one-half years. (R. at 404-07.) She reported
that the pain changed notably in January 2011 for no specific reason. (R. at 404.)
Mitchell advised that she had not undergone any physical therapy or received any
epidural steroid injections. (R. at 404.) She reported anxiety and depression. (R.
at 405.) Her gait was antalgic to the right, and she ambulated flexed at the waist.
(R. at 405.) Mitchell was tender at the right SI joint, but she had no limitation of
range of motion of the right lower extremity, and she exhibited full strength and
normal tone. (R. at 405.) No atrophy was noted in the right lower extremity. (R.
at 405.) She was fully oriented, and her mood and affect were appropriate for her
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age and the situation. (R. at 406.) After reviewing the March 16, 2011, lumbar
spine MRI and the March 15, 2011, hospital admission records, Dr. Pryputniewicz
diagnosed Mitchell with a synovial cyst, unspecified; lumbar stenosis at the L4-L5
level; lumbar radiculopathy at the L5 level on the right; and right-sided low back
pain, among other things. (R. at 406.) He recommended physical therapy and an
epidural steroid injection before surgical intervention for the synovial cyst. (R. at
406.) Mitchell wished to proceed with surgery. (R. at 406.) She was scheduled
for physical therapy for three weeks and for a pain clinic evaluation with Dr.
William Platt, M.D., for a lumbar epidural steroid injection. (R. at 406.)
On January 4, 2012, Mitchell saw Dr. Christopher M. Basham, M.D., at
Medical Associates of Big Stone Gap, to establish care as a new patient. (R. at
460-62.) She complained of chronic lumbar back pain and anxiety. (R. at 460.)
At that time, Mitchell was taking Cymbalta and Lortab, among other medications.
(R. at 460.) At the time of the examination, Mitchell noted joint pain and anxiety,
but she denied depression and mood changes. (R. at 460.) It does not appear that a
musculoskeletal or back examination was performed.

Dr. Basham diagnosed

hypertension, anxiety, depression and chronic back pain, among other things. (R.
at 461.) He continued her on her medications, including Cymbalta, and he added
Neurontin for pain and anxiety. (R. at 461.) Mitchell declined a pain management
evaluation. (R. at 461.) On January 23, 2012, Dr. Basham ordered a 30-day
supply of Lortab for pain management, which he continued on February 28, 2012.
(R. at 457, 459.)
On January 17, 2012, in connection with Mitchell’s initial disability claim,
Dr. Joseph Duckwall, M.D., a state agency physician, concluded that there was
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insufficient evidence to determine whether Mitchell was disabled prior to
December 31, 2007. (R. at 75.) Dr. Duckwall noted that there was no medical or
other opinion evidence and that no physical or mental residual functional capacity
evaluations were associated with her claim. (R. at 76.) Likewise, on January 23,
2012, Julie Jennings, Ph.D., a state agency psychologist, concluded that no mental
medically determinable impairments were established as of the date last insured
due to insufficient evidence. (R. at 75.) All of this being the case, the state agency
consultants concluded that they could not find Mitchell disabled at any time
through December 31, 2007. (R. at 76.)
On May 29, 2012, in connection with the reconsideration of Mitchell’s
disability claim, Richard Luck, Ph.D., a state agency psychologist, found that there
was insufficient evidence to determine the degree to which Mitchell was restricted
in the performance of her activities of daily living and in her abilities to maintain
social functioning and to maintain concentration, persistence or pace. (R. at 85.)
Luck found that Mitchell had experienced no repeated episodes of decompensation
of extended duration. (R. at 85.) He concluded that, prior to December 31, 2007,
the evidence showed that Mitchell was treated for depression and exposed social
anxiety when going outside, but that there was no definitive diagnosis of anxiety
contained in the record. (R. at 85.) Instead, the record showed that Mitchell was
improving in October 2007 with medication and treatment. (R. at 85.) Luck
further noted the lack of a good record of Mitchell’s activities of daily living
during the appropriate time period. (R. at 85.) Therefore, he found that there was
insufficient evidence to fully evaluate Mitchell’s mental conditions prior to her
date last insured. (R. at 85.) Additionally, James Wickham, another state agency

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consultant,7 found that the evidence prior to December 31, 2007, showed that
Mitchell was being treated for COPD, polycythemia, depression and symptoms of
anxiety, but no pulmonary function studies were conducted to fully evaluate her
COPD, there was not a full record to evaluate her polycythemia, and there was not
a complete record of how Mitchell’s depression and anxiety symptoms affected her
mental abilities and daily activities.

(R. at 87.)

All of that being the case,

Wickham found that there was insufficient evidence to fully evaluate Mitchell’s
conditions prior to her date last insured, and he concluded that she could not be
deemed disabled. (R. at 87.)
Mitchell saw Dr. Sam Vorkpor, M.D., at Medical Associates of Big Stone
Gap on May 30, 2012, for chronic low back pain. (R. at 487-88.) She reported
injuring her back a week previously due to prolonged use, prolonged standing and
prolonged sitting. (R. at 487.) Mitchell described the pain as severe, sharp,
constant and radiating into the right foot. (R. at 487.) Dr. Vorkpor noted no prior
injury, but previous MRI findings of herniated disc and synovial cyst. (R. at 487.)
Mitchell also complained of anxiety, and previous diagnoses of anxiety and
agoraphobia were noted.

(R. at 487.)

Mitchell was then-currently taking

Cymbalta, among other medications. (R. at 487.) Dr. Vorkpor indicated that
Mitchell described symptoms consistent with agoraphobia. (R. at 487.) She also
complained of depression, but she denied suicidal ideation or planning. (R. at
487.) Mitchell was alert and fully oriented. (R. at 487.) On physical examination,
she exhibited abnormal strength and tone, abnormal posture and abnormal gait. (R.
at 488.)

Dr. Vorkpor diagnosed Mitchell with chronic back pain, anxiety,

depression and hypertension. (R. at 488.) He prescribed Neurontin and Lortab.
7

Wickham’s professional title is not included in the record.

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(R. at 488.) Mitchell again declined a pain management evaluation. (R. at 488.)
Mitchell saw Dr. Bryan L. Watson, D.O., at Medical Associates at Big Stone
Gap, on January 3, 2013, to establish her care as a new patient. (R. at 493-95.)
She complained of chronic back pain and moderate anxiety with panic attacks. (R.
at 493.) She described her general health since her last visit as “poor,” and she
admitted smoking two packs of cigarettes and drinking three alcoholic drinks daily.
(R. at 493.) Mitchell advised that her anxiety symptoms occurred daily. (R. at
493.) She reported good medication compliance and fair symptom control. (R. at
493.) The note indicates that Mitchell was taking Cymbalta 60 mg and Lortab, as
well as other medications, at that time. (R. at 493.) She denied a change in sleep
pattern, depression, mood changes and suicidal ideation. (R. at 494.) Mitchell was
cooperative, well-groomed and fully oriented.

(R. at 494.)

On physical

examination, she had no edema of the lower extremities, and she exhibited normal
muscle strength throughout. (R. at 494.) Deep tendon reflexes were +2 bilaterally,
and there was no pronator drift. (R. at 494.) On musculoskeletal examination,
range of motion was intact, and there was no tenderness. (R. at 494.) Mitchell had
an abnormal gait and station, but Dr. Watson noted that she was in a wheelchair
due to back pain. (R. at 494.) She had tenderness to the lumbosacral spine. (R. at
494.) Dr. Watson diagnosed polycythemia, chronic back pain, hypertension and
depression, among other things. (R. at 495.) Mitchell’s request to return to
narcotics was granted, as Dr. Watson noted MRI findings that would cause pain.
(R. at 495.) However, Mitchell refused to see a neurosurgeon. (R. at 495.) She
was continued on Cymbalta 60 mg. (R. at 495.) Mitchell returned to Dr. Watson
on July 16, 2013, at which time she rated her back pain as a six on a 10-point scale.
(R. at 505.)

She also complained of anxiety, including panic attacks, with
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moderate symptoms occurring daily. (R. at 505.) Nonetheless, she reported good
treatment compliance with fair symptom control. (R. at 505.) Mitchell was taking
Cymbalta 60 mg, as well as Lortab, at that time.

(R. at 505.)

She denied

claudication, joint pain, muscle cramps and muscle weakness, as well as a change
in sleep pattern, depression, mood changes and suicidal ideation. (R. at 506.) Dr.
Watson described Mitchell as cooperative, well-groomed and fully oriented. (R. at
506.) She exhibited no edema of the lower extremities, and muscle strength was
normal throughout. (R. at 507.) Deep tendon reflexes were +2 bilaterally, and
there was no pronator drift. (R. at 507.) A musculoskeletal examination showed
intact range of motion without tenderness, but an abnormal gait and station. (R. at
507.)

Examination of the spine, ribs and pelvis revealed normal movements

without pain and no instability, subluxation or laxity. (R. at 507.) Mitchell did
exhibit tenderness in the lumbosacral spine region. (R. at 507.) Dr. Watson
diagnosed polycythemia, hypertension, depression and chronic back pain, among
other things. (R. at 507-10.) Mitchell refused to see a psychiatrist, despite Dr.
Watson’s opinion that it was in her best interest to see a mental health professional.
(R. at 509.) He continued her on Cymbalta 60 mg. (R. at 509.)
III. 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 her past relevant work; and 5) if not, whether
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she 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 her findings and her 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), if she sufficiently explains her rationale and if the record supports her
findings.
Mitchell argues that the ALJ erred by failing to adhere to the treating
physician rule and give controlling weight to Dr. Fleenor’s opinions. (Plaintiff’s
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Memorandum In Support Of Her Motion For Summary Judgment, (“Plaintiff’s
Brief”), at 5-6.)
After a review of the evidence of record, I find Mitchell’s argument
unpersuasive. The ALJ must consider objective medical facts and the opinions
and diagnoses of both treating and examining medical professionals, which
constitute a major part of the proof of disability cases. See McLain v. Schweiker,
715 F.2d 866, 869 (4th Cir. 1983). The ALJ must generally give more weight to
the opinion of a treating physician because that physician is often most able to
provide “a detailed, longitudinal picture” of a claimant’s disability. 20 C.F.R. §
404.1527(c)(2) (2015).

However, “[c]ircuit precedent does not require that a

treating physician’s testimony ‘be given controlling weight.’” Craig v. Chater, 76
F.3d 585, 590 (4th Cir. 1996) (quoting Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.
1992) (per curiam)). In fact, “if a physician’s opinion is not supported by clinical
evidence or if it is inconsistent with other substantial evidence, it should be
accorded significantly less weight.” Craig, 76 F.3d at 590.
Based on my review of the record, I find that substantial evidence exists to
support the ALJ’s decision to accord little weight to the opinions of Dr. Fleenor.
In October 2011, Dr. Fleenor opined that Mitchell had little to no ability to perform
all work-related mental abilities, and in a letter penned the same month, he opined
that she had been disabled long before April 1, 2006, and continued to be so,
primarily due to her dominating emotional difficulties. At the outset, the court
notes that the ultimate disability determination is reserved to the Commissioner.
See 20. C.F.R. § 404.1527(d)(1) (2015). Therefore, the ALJ is not obligated to
grant any special consideration to the opinion of a medical source, even a treating
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physician, that a claimant is disabled. See 20 C.F.R. § 404.1527(d)(1). Next, as
the ALJ stated in her decision, the highly restrictive limitations as found in the
October 2011 mental assessment are not supported by Dr. Fleenor’s own treatment
notes. The ALJ correctly stated that these notes indicate no acute psychological or
mental dysfunction, and they include no recommendations that Mitchell seek
additional psychiatric therapy or inpatient mental health treatment. (R. at 21.)
Second, as the ALJ stated in her decision, Dr. Fleenor’s opinion is not supported
by clinical treatment notes, in which Mitchell reported improved psychological
symptoms, including lessened depression, good sleep and adequate appetite with
no ongoing complaints of serious impairment or dysfunction. (R. at 21.)
Specifically, during the relevant time period, Dr. Fleenor diagnosed Mitchell with
depression and agoraphobia, which he treated conservatively with Cymbalta. (R.
at 290-93.) In August 2006, Mitchell reported that she was agoraphobic, reclusive
and hypomanic, but after her dosage of Cymbalta was increased to 60 mg in
December 2006, she reported improved depression. (R. at 290, 292.) She again
reported doing better in March 2007, and in May 2007 she stated that she “really
liked how she felt.” (R. at 294.) In both July and October 2007, Mitchell stated
that she was doing fair, but she continued to report decreased depressive
symptoms.

(R. at 296-97.)

“If a symptom can be reasonably controlled by

medication or treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986). These are the sole treatment notes from Dr. Fleenor during
the relevant time period.
Dr. Fleenor’s treatment notes subsequent to December 31, 2007, also
support the ALJ’s decision to give his opinion little weight. For instance, in July
2008, Mitchell reported doing fair, and in October 2009, she stated that she was
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“alright.” (R. at 299, 432.) All of this time, Mitchell was maintained on Cymbalta
60 mg. Dr. Fleenor never referred Mitchell for further mental health evaluation or
treatment. When she was treated by Dr. Fleenor at Lonesome Pine in March 2011,
she was oriented and cooperative, despite being described as anxious, to varying
degrees. (R. at 374, 376, 379.) There are no other treatment notes from Dr.
Fleenor prior to his completion of the October 2011 mental assessment and letter to
Mitchell’s counsel.
As noted by the ALJ, Dr. Fleenor’s opinions also are not supported by the
other substantial evidence of record. While this other evidence of record is dated
subsequent to Mitchell’s date last insured, most of it, nonetheless, supports the
ALJ’s weighing of the evidence. For instance, when she saw Dr. Pryputnewicz in
April 2011, she was fully oriented with an appropriate mood and affect, despite her
report of anxiety and depression. (R. at 405-06.) When Mitchell saw Dr. Basham
in January 2012, she denied depression and mood changes. (R. at 460.) In May
2012, Mitchell was alert and oriented, despite complaints of anxiety with
agoraphobic symptoms and depression. (R. at 487.) She denied suicidal ideation
or planning.

(R. at 487.)

In January 2013, Mitchell was cooperative, well-

groomed and fully cooperative, despite complaints of moderate daily anxiety,
including panic attacks. (R. at 493-94.) She reported fair symptom control with
good medication compliance. (R. at 493.) In particular, she denied a change in
sleep pattern, depression, mood changes and suicidal ideation.

(R. at 494.)

Mitchell was treated conservatively with medication throughout this time period.
In July 2013, Mitchell was once again cooperative, well-groomed and fully
oriented, despite complaints of anxiety. (R. at 505-06.) She continued to report
fair symptom control with good treatment compliance. (R. at 505.) At this time,
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Dr. Watson recommended a psychiatric referral, but Mitchell refused. (R. at 509.)
Thus, the medical records subsequent to Mitchell’s date last insured
evidence that her medical providers continued to treat her mental impairments
conservatively with medications, that she reported fair symptom control with good
treatment compliance, that she was cooperative and fully oriented and that, when
psychiatric treatment was recommended in January 2013, approximately five years
subsequent to her date last insured, she declined.
I find that the ALJ’s decision to give little weight to Dr. Fleenor’s opinions
also is supported by the state agency psychologists’ conclusions that Mitchell’s
mental impairments were stable with prescribed medication therapy from
September 2003 through March 2007 and that the clinical records indicated that
she reported symptom improvement with ongoing treatment with no serious
concerns.
With regard to Mitchell’s back impairment, there simply is no medical
evidence in the record evidencing the existence of a disabling back impairment
from April 1, 2006, through December 31, 2007. The first mention of back
problems was in September 2008, when Mitchell sought treatment after injuring
her back from a fall. Additionally, Dr. Fleenor placed no physical restrictions on
Mitchell due to a back impairment. There is no physical assessment contained in
the record. The only radiographic evidence is dated from 2008 and 2011, nearly a
year and more than three years, respectively, following the expiration of Mitchell’s
date last insured. Given these circumstances, I find that substantial evidence
supports the ALJ’s decision to give Dr. Fleenor’s opinions little weight.
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For all of the reasons stated herein, I find that substantial evidence supports
the ALJ’s weighing of the medical evidence. I also find that substantial evidence
exists to support the ALJ’s finding as to Mitchell’s residual functional capacity and
her finding that Mitchell was not disabled. An appropriate order and judgment will
be entered.
I will deny the plaintiff’s request to present oral argument based on my
finding that the written arguments adequately address the relevant issues.
ENTERED: January 29, 2016.
s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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