Bishop v. Colvin et al

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 12/14/2017. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
BILLY JAMES BISHOP, JR.,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 2:16cv00029
MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Billy James Bishop, Jr., (“Bishop”), filed this action challenging
the final decision of the Commissioner of Social Security, (“Commissioner”),
denying his 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 upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case
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
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of
Social Security.
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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 Bishop protectively filed his applications for DIB and

SSI on March 29, 2012, alleging disability as of December 10, 2011, due to posttraumatic stress disorder, (“PTSD”); anxiety; panic attacks; problems with the sciatic
nerve in his right leg; back pain; hepatitis C; and dermatitis herpetiformis. 2 (Record,
(“R.”), at 218-25, 240, 244, 287, 305.) The claims were denied initially and on
reconsideration. (R. at 114-16, 120-22, 125-27, 131-33, 136, 138-40, 142-47, 14951.) Bishop then requested a hearing before an administrative law judge, (“ALJ”).

(R. at 152-53.) A video hearing was on October 2, 2015, at which Bishop was
represented by counsel. (R. at 43-71.)
By decision dated October 27, 2015, the ALJ again denied Bishop’s claims.
(R. at 23-35.) The ALJ found that Bishop met the nondisability insured status
requirements of the Act for DIB purposes through September 30, 2012. (R. at 25.)
The ALJ found that Bishop had not engaged in substantial gainful activity since
December 10, 2011, the alleged onset date. (R. at 25.) The ALJ found that the
medical evidence established that Bishop had severe impairments, namely hepatitis
C; dermatitis herpetiformis; hypertension; depression; and anxiety, but he found
that Bishop 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,
2

Dermatitis herpetiformis is a chronic disease of the skin marked by severe itching and
the extensive eruption of vesicles and groups of papules. It is also called Duhring’s disease. See
STEDMAN'S MEDICAL DICTIONARY, (“Stedman’s”), 221 (1995).
-2-

Appendix 1. (R. at 25-26.) The ALJ found that Bishop had the residual functional
capacity to perform simple, routine, unskilled medium3 work that allowed
regularly scheduled breaks; that did not require him to perform food handling or
preparation pre-consumption; that did not require him to work around hazardous
machinery, unprotected heights and climbing of ladders, ropes or scaffolds; that
did not have strict production rate or pace requirements; and that did not require
more than occasional interaction with the public, co-workers and supervisors. (R.
at 27-28.) The ALJ found that Bishop was unable to perform his past relevant
work. (R. at 33.) Based on Bishop’s age, education, work history and residual
functional capacity and the testimony of a vocational expert, the ALJ found that a
significant number of other jobs existed in the national economy that Bishop could
perform, including jobs as a night cleaner, a garment folder, a hospital cleaner and
a hand packer. (R. at 33-34.) Thus, the ALJ concluded that Bishop was not under a
disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at
34-35.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2017).
After the ALJ issued his decision, Bishop pursued his administrative
appeals, (R. at 16), but the Appeals Council denied his request for review. (R. at 15.) Bishop 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 (2017). This case is before this court on the Commissioner’s motion for
summary judgment filed April 24, 2017.4

3

Medium work involves lifting items weighing up to 50 pounds at a time with frequent
lifting or carrying of items weighing up to 25 pounds. If an individual can do medium work, he
also can do sedentary and light work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (2017).
4

Bishop did not file a motion for summary judgment, but on March 23, 2017, he filed a
Memorandum Brief In Support Of Plaintiff’s Claim For Social Security Disability Benefits.
(Docket Item No. 16).
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II. Facts
Bishop was born in 1981, (R. at 218, 220), which classifies him as a
“younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a high
school education and some college course work. (R. at 52.) Bishop has past
relevant work as a cook, a general laborer and a tile installer. (R. at 49, 52-54,
251.) He stated that he took Paxil for depression and anxiety. (R. at 54.) Bishop
stated that he took Subutex. (R. at 54.) He stated that he had used marijuana for a
couple of years because “it helps my nerves and calm[s] [me] down from my
anxiety attacks….” (R. at 56.) Bishop stated that his skin condition, a gluten-type
allergy, would flare up two weeks out of the month. (R. at 58.) He stated that,
when these flare-ups occur, he itches all over, which causes him to scratch and
bleed. (R. at 59.) Bishop stated that his medication for the allergy helped, but he
still continued to break out. (R. at 59-60.)
Asheley Wells, a vocational expert, was present and testified at Bishop’s
hearing. (R. at 67-70.) Wells was asked to consider a hypothetical individual of
Bishop’s age, education and work history, who could perform simple, unskilled
medium work that did not require him to handle food or anything preconsumption; that did not require him to work around hazardous machinery,
unprotected heights or climbing of ladders, ropes or scaffolds; who would require
regularly scheduled breaks every two hours; who could not work with a strict
production rate or pace requirement; and who would not be required to have more
than occasional interaction with the public, co-workers or supervisors. (R. at 6768.) She stated that the individual could not perform any of Bishop’s past work,
but that other jobs existed in significant numbers that the individual could perform,

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including jobs as a night cleaner and a garment folder, both at the light 5 exertion
level, and jobs as a hospital cleaner and hand packager, both at the medium
exertion level. (R. at 69.) Wells stated that there would be no jobs available should
the individual miss four or more days of work a month. (R. at 69.) She also stated
that there would be no jobs available if the individual was unable to maintain
attention and concentration for extended periods, to understand and remember
short and simple instructions, to complete a normal workweek without
interruptions, to perform at a consistent pace without extended breaks and to get
along with co-workers or peers. (R. at 70.)
In rendering his decision, the ALJ reviewed records from Dr. Carolina
Bacani-Longa, M.D., a state agency physician; Dr. Jack Hutcheson, M.D., a state
agency physician; Dr. Kevin Blackwell, D.O.; Dr. Art Van Zee, M.D.; and Dr.
Russell D. Mader, M.D.
The record shows, that at age 16, Bishop started snorting Percocet and
Lortab; at age 18, he began snorting and injecting OxyContin; he then injected
opioids for roughly 10 years, with OxyContin being his drug of choice; and at age
21, he was using IV heroin before switching back to OxyContin. (R. at 429.) In
2004, Bishop went to prison for forged checks, where he was drug-free until his
release in July 2006. (R. at 429.) He relapsed three weeks after his release from
prison and continued to abuse drugs until July 2008, when he entered a
buprenorphine treatment program. (R. at 429-30.) He was initially placed on
Suboxone. (R. at 431.)

5

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), 416.967(b) (2017).
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The record shows that Dr. Art Van Zee, M.D., treated Bishop from April
2009 through July 2015. Dr. Van Zee diagnosed opioid type dependence;
nondependent tobacco use disorder; hepatitis C; mixed or unspecified drug abuse;
leg pain; probable lumbar radiculopathy; depression; anxiety, acute gastroenteritis;
dermatitis herpetiformis; nocturnal leg cramps; and plantar warts. (R. at 351, 353,
356, 359, 362, 365, 371, 373, 376, 378-79, 393, 396, 398, 405, 407, 410, 417, 419,
421, 426-27, 431, 433, 435, 472, 475-77, 479, 481-94, 497, 501, 504, 508, 512,
516, 519, 527, 530, 534, 538, 542, 546, 550, 553, 556, 559, 562, 565, 568, 571,
574, 578, 581, 585, 589, 595, 603-04, 638-39, 641-42, 646, 650-51, 654-55, 65859, 662-63, 666-67, 670-71, 674-75, 679.)
On April 1, 2009, Dr. Van Zee reported that Bishop had been referred to him
from the Addiction Education Center for entry into the buprenorphine treatment
program. (R. at 429.) On July 2, 2009, Bishop reported that he had taken a “few
Klonopin” that someone had given him. (R. at 478.) When Dr. Van Zee observed
that Bishop had needle marks, he admitted to recently injecting Ritalin. (R. at 478.)
Bishop went to jail from September 9, 2009, through October 5, 2009, because he
violated his probation; a urine drug screen was positive for benzodiazepines. (R. at
487.) In December 2009, Bishop requested consideration for reentry into the
buprenorphine treatment program. (R. at 487.) On July 24, 2011, x-rays of
Bishop’s cervical spine showed mild spondylosis, and an x-ray of Bishop’s
thoracic spine showed nominal scoliosis and spondylosis. (R. at 443, 445.)
On January 10, 2012, Bishop complained of nausea, vomiting and diarrhea,
as well as a rash on his elbows, buttocks and legs. (R. at 576.) He stated that he had
missed work the previous day and asked for a work excuse. (R. at 576, 578.). Dr.
Van Zee completed a work excuse indicating that Bishop could return to work on

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January 11, 2012. 6 (R. at 578.) Bishop continued to complain of a rash at visits in
February and March 2012. (R. at 579, 583.) On May 22, 2012, Bishop reported
that he had stopped working due to increased depression and leg pain, but stated
that the main reason he stopped working was because of right leg pain. (R. at 428.)
Dr. Van Zee performed a physical examination which revealed that Bishop’s
reflexes were 2+ and equal. (R. at 427.) He was able to walk on his toes and heels,
and a straight leg raising test was negative on the left at 75 degrees and positive on
the right at 60 degrees. (R. at 427.) X-rays of Bishop’s right knee and lumbosacral
spine were normal. (R. at 442.) On July 3, 2012, Dr. Van Zee saw Bishop for
follow-up care, at which time he reported that he was still somewhat reclusive at
home. (R. at 597.) He also reported that he had applied for a job and was applying
for other jobs. (R. at 597.) On September 11, 2012, Dr. Van Zee noted that
Bishop’s depression had improved with medication. (R. at 435.) Bishop once again
reported that he had not been able to find work. (R. at 435.) Diagnoses included
dermatitis herpetiformis; depression, improved; and opioid dependence. (R. at
435.)
On November 20, 2012, Dr. Van Zee wrote a reference letter for Bishop for
employment purposes. 7 (R. at 421.) The record shows that throughout 2012 and
2013 Bishop reported that he was doing well and that his symptoms of anxiety and
dermatitis herpetiformis had improved with medication. (R. at 358, 361, 420, 433,
435, 579, 587, 601, 604.) In addition, the record shows that throughout 2012 and
2013 Bishop routinely reported that he was searching for employment. (R. at 358,
361, 364, 372, 399, 420, 433, 435, 597.) The record shows that Dr. Van Zee
6

The work excuse is not contained in the record; however, it is referenced in Dr. Van
Zee’s treatment notes. (R. at 578.)
7

The reference letter is not contained in the record; however, it is referenced in Dr. Van
Zee’s treatment notes. (R. at 421.)
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continued to follow Bishop for opioid dependence through July 2013. (R. at 350425.) During his treatment, Bishop’s drug screens were negative, except for
tetrahydrocannabinol, (“THC”). (R. at 351, 354, 356, 360, 363, 371, 376, 379, 393,
398, 407, 410, 417, 422, 473, 564, 609, 642, 647, 650, 656, 659, 663, 667, 671,
675, 679.) Dr. Van Zee repeatedly advised Bishop that he needed to be completely
abstinent of THC if he was to remain in buprenorphine treatment. (R. at 638, 641,
646, 651, 655, 658, 662, 666.)
On July 1, 2014, Dr. Van Zee completed a mental assessment, 8 indicating
that Bishop had moderate9 difficulty in his ability to carry out very short and
simple instructions; to perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerances; to sustain an ordinary
routine without special supervision; to ask simple questions or request assistance;
to accept instructions and respond appropriately to criticism from supervisors; to
maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness; to respond appropriately to changes in the work setting; to be
aware of normal hazards and take appropriate precautions; to travel in unfamiliar
places or use public transportation; and to set realistic goals or make plans
independently of others. (R. at 623-25.) He opined that Bishop had marked10
limitations in his ability to remember locations and work-like procedures; to
understand and remember very short and simple instructions; to understand,
remember and carry out detailed instructions; to maintain attention and
concentration for extended periods; to work in coordination with or in proximity to
8

Dr. Van Zee stated that he had treated Bishop since 2008 and that Bishop has had the
limitations found in his mental assessment since 2000, but that Bishop’s symptoms had worsened
within the past two to three years. (R. at 629.)
9

623.)
623.)

Moderate is defined as having the ability to perform satisfactorily, but not always. (R. at

10

Marked is defined as a serious limitation resulting in unsatisfactory performance. (R. at
-8-

others without being distracted by them; to make simple work-related decisions; to
complete a normal workday without interruptions from psychologically based
symptoms; to complete a normal workweek without interruptions from
psychologically based symptoms; to perform at a consistent pace with a standard
number and length of rest periods; to interact appropriately with the general public;
and to get along with co-workers or peers without distracting them or exhibiting
behavioral extremes. (R. at 623-24.) He found that Bishop would be absent from
work more than four days a month. (R. at 624.) Dr. Van Zee based these
limitations on his finding that Bishop had a “very significant chronic anxiety
disorder,” which substantially impaired his ability to work around individuals and
co-workers. (R. at 625.)
That same day, Dr. Van Zee completed a medical assessment, indicating that
Bishop’s most limiting symptoms were a result of anxiety and “almost
agoraphobia.” (R. at 632-33.) He opined that these symptoms were severe enough
to frequently interfere with the attention and concentration required to perform
simple work-related tasks. (R. at 632.) Dr. Van Zee found that Bishop could walk a
“few blocks” without interruption; sit and stand a total of four hours in an eighthour workday and that he could do so for up to 30 minutes without interruption;
that he would require an unscheduled break “every few hours” for up to 15 minutes
per break; frequently lift and carry items weighing up to 10 pounds; occasionally
lift and carry items weighing up to 50 pounds; and that he would be absent from
work more than four days per month. (R. at 632-33.) He opined that Bishop was
not physically capable of working an eight-hour workday five days a week on a
sustained basis. (R. at 633.)
In August 2014, Dr. Van Zee saw Bishop for complaints of pressure in the
back of his head (R. at 677.) Bishop stated that his mother was ill and that he was
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more depressed. (R. at 677.) He reported that he was taking Paxil and Buspar. (R.
at 677.) Dr. Van Zee noted that Bishop was scheduled to undergo psychological
testing in two weeks. (R. at 677.) A drug screen was positive for THC. (R. at 679.)
In September 2014, Dr. Van Zee noted that Bishop had postponed his
psychological testing. (R. at 673.) Dr. Van Zee continued to see Bishop through
July 2015. (R. at 637-72.) During this time, Dr. Van Zee did not prescribe antianxiety medication. (R. at 638-39, 641, 643, 645, 647, 650, 652, 654, 656, 658-59,
662, 664, 666-68, 670, 672.)
On November 18, 2014, Bishop reported that he was helping his father work
on remodeling a house that he planned to move into. (R. at 665.) He again reported
on January 27, 2015, that he and his father were still working on remodeling a
house and that he was trying to get things moved into it. (R. at 657.) In May 2015,
Bishop reported that he was working on a house and making plans to move. (R. at
644.) He had not followed through with psychological testing. (R. at 644.) Dr. Van
Zee diagnosed nondependent tobacco use disorder; other mixed and unspecified
drug abuse; opioid type dependence, unspecified; cirrhosis of the liver without
mention of alcohol; and chronic hepatitis C. (R. at 646.) On December 31, 2015,
Dr. Van Zee reported that Bishop was unable to work “at this time,” but that
Bishop’s condition could improve within six months; therefore, he would reevaluate Bishop in six months. (R. at 626.) He based this finding on Bishop’s
diagnoses of chronic hepatitis C; chronic liver disease; and dermatitis
herpetiformis, a major chronic skin condition with generalized rash and severe
itching. (R. at 626.)
The record shows that Bishop treated with Dr. Russell D. Mader, M.D., from
March 2012 through October 2012 for dermatitis herpetiformis. (R. at 337-38, 61120.) On March 19, 2012, Dr. Mader saw Bishop for complaints of widespread itchy
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rash that had been present for two years. (R. at 338.) On July 11, 2012, Dr. Mader
reported that Bishop appeared to be healthy, cooperative and alert. (R. at 617.) He
showed signs consistent with dermatitis herpetiformis on the posterior calves,
anterior shins, elbows, mid buttocks, gluteal crease and forehead. (R. at 617.) A
skin biopsy was taken from Bishop’s left elbow, which showed that Bishop
suffered from dermatitis herpetiformis. (R. at 611, 617.) Bishop was prescribed
medication and advised to follow a gluten-free diet. (R. at 617.) On October 2,
2012, Bishop reported that he was doing well and was having no major problems.
(R. at 614.) He reported that the medication cleared the rash, but that he still had
itching in his scalp. (R. at 615.) Dr. Mader recommended that Bishop continue to
take Dapsone, and follow up with him in three months. (R. at 405.) Bishop failed
to keep appointments with Dr. Mader in January 2013, February 2013, November
2013 and December 2013. (R. at 612-13.) As noted above, in April 2013, Bishop
told Dr. Van Zee that his rash was “okay.” ( R. at 372.)
On May 19, 2013, Dr. Kevin Blackwell, D.O., examined Bishop at the
request of Disability Determination Services. (R. at 345-49.) Dr. Blackwell
reported that Bishop was alert, cooperative and oriented with good mental status.
(R. at 347.) Bishop’s affect, thought content and general fund of knowledge
appeared to be intact. (R. at 347.) A musculoskeletal examination revealed that
Bishop’s gait was symmetrical and balanced. (R. at 348.) There were no effusions
or obvious deformities of the upper or lower joints. (R. at 348.) The upper and
lower extremities were normal for size, shape, symmetry and strength. (R. at 348.)
Grip strength was good at 5/5 and equal bilaterally, reflexes in the upper and lower
extremities were good and equal bilaterally, a Romberg test was negative, and
proprioception was intact. (R. at 348.) Dr. Blackwell diagnosed chronic low back
pain; right sciatica; hypertension by history; and hepatitis by history. (R. at 348.)
Dr. Blackwell opined that Bishop could occasionally lift items weighing up to 40
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pounds and frequently lift items weighing up to 25 pounds. (R. at 348.) He opined
that Bishop should be able to sit for eight hours in an eight-hour workday and stand
for two hours in an eight-hour workday, assuming normal positional changes. (R.
at 348.) Dr. Blackwell further opined that Bishop could not squat, crouch, crawl,
work at unprotected heights or perform repetitive and continuous stair climbing.
(R. at 348.) Dr. Blackwell opined that Bishop could perform above-head reaching
activities one-third of the day with either arm, perform foot pedal operating onethird of the day with either foot and perform kneeling activities one-third of the
day. (R. at 348.) He placed no limitations on hand usage, including fine motor
movements and skill activities of the hands, and he imposed no vision,
communication, hearing or environmental limitations. (R. at 348.)
On May 22, 2013, Dr. Carolina Bacani-Longa, M.D., a state agency
physician, found that Bishop had the residual functional capacity to perform
medium work. (R. at 84-85.) No postural, manipulative, visual or communicative
limitations were noted. (R. at 84-85.) Dr. Bacani-Longa noted that there was
insufficient evidence to show a disabling condition prior to Bishop’s date last
insured of September 30, 2012. (R. at 76.) Dr. Bacani-Longa noted that, although
Bishop reported difficulties due to anxiety, panic and PTSD prior to his date last
insured, the record did not show that Bishop had severe difficulties requiring
emergency treatment. (R. at 78.) She also noted that, although Bishop reported
difficulties due to hepatitis C and the sciatic nerve in his right leg, his records did
not contain information as to whether these conditions limited his ability to
participate in normal daily activities. (R. at 78.) Accordingly, Dr. Bacani-Longa
found that Bishop’s condition was not disabling on any date through September 30,
2012, when his insured status expired for the purposes of DIB. (R. at 78.)

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On February 20, 2014, Dr. Jack Hutcheson, M.D., a state agency physician,
found that Bishop had the residual functional capacity to perform medium work.
(R. at 97-98.) No postural, manipulative, visual or communicative limitations were
noted. (R. at 98.) Dr. Hutcheson also noted that there was insufficient evidence to
evaluate the claim prior to Bishop’s date last insured of September 30, 2012. (R. at
97.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2017). 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, 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) (2017).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his 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.
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1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.
1980).
Bishop argues that the ALJ erred by improperly determining his residual
functional capacity. (Memorandum In Support Of Plaintiff’s Claim For Social
Security, (“Plaintiff’s Brief”), at 6-9.) In particular, Bishop argues that the ALJ
erred by failing to give controlling weight to his treating physician, Dr. Van Zee.
(Plaintiff’s Brief at 7-10.) Bishop also argues that the ALJ failed to give
appropriate credence to his allegations concerning his symptoms. (Plaintiff’s Brief
at 10-13.)
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
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. §§
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404.1527(c), 416.927(c), if he sufficiently explains his rationale and if the record
supports his findings.
Bishop argues that the ALJ erred by failing to give controlling weight to his
treating physician, Dr. Van Zee, in determining his residual functional capacity.
(Plaintiff’s Brief at 6-10.) After a review of the evidence of record, I find Bishop’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 at 869. 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 alleged disability. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2) (2017). 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 not give controlling weight to the opinions of Dr.
Van Zee. The ALJ stated that he was giving Dr. Van Zee’s opinions little weight
because his mild findings upon examination and limited prescribed medications, as
well as the mild or normal diagnostic findings in the record, and the lack of
specialized mental health treatment were inconsistent with the severity of
limitations Dr. Van Zee opined. (R. at 32-33.) On July 24, 2011, x-rays of Bishop’s
cervical spine showed mild spondylosis, and an x-ray of Bishop’s thoracic spine
showed nominal scoliosis and spondylosis. (R. at 443, 445.)
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On May 22, 2012, Bishop reported that he had stopped working due to
increased depression and leg pain, but stated that the main reason he stopped
working was because of right leg pain. (R. at 428.) X-rays of Bishops right knee
and lumbosacral spine were normal. (R. at 442.) On September 11, 2012, Dr. Van
Zee noted that Bishop’s depression had improved with medication. (R. at 435.)
Bishop reported that he had not been able to find work. (R. at 435.) On November
20, 2012, Dr. Van Zee wrote a reference letter for Bishop for employment
purposes. (R. at 421.) The record shows that throughout 2012 and 2013 Bishop
routinely reported that he was searching for employment, while at the same time
alleging that he was disabled. (R. at 358, 361, 364, 372, 399, 420, 433, 435, 597.)
In addition, the record shows that throughout 2012 and 2013 Bishop reported that
he was doing well and that his symptoms of anxiety and dermatitis herpetiformis
had improved with medication. (R. at 358, 361, 420, 433, 435, 579, 587, 601, 604,
614-15.) “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). On
December 31, 2015, Dr. Van Zee reported that Bishop was unable to work “at this
time,” but that Bishop’s condition could improve within six months; therefore, he
would re-evaluate Bishop in six months. (R. at 626.) He based this finding on
Bishop’s diagnoses of chronic hepatitis C; chronic liver disease; and dermatitis
herpetiformis. (R. at 626.) During this time, Dr. Van Zee did not prescribe antianxiety medication. (R. at 638-39, 641, 643, 645, 647, 650, 652, 654, 656, 658-59,
662, 664, 666-68, 670, 672.) The ALJ noted that the record reveals minimal mental
health treatment, other than prescribed medications for opiate dependence. (R. at
28.) The ALJ also noted that the record did not indicate any significant back or
lower extremity problems. (R. at 28.) The ALJ further considered Bishop’s
diagnosis of dermatitis herpetiformis, noting that this condition caused significant
irritation for a while in 2012, but that it had been largely controlled since October
2012. (R. at 31, 405, 614.) See Gross, 785 F.2d at 1166.
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The ALJ also considered the opinions of the state agency physicians who
reviewed the record and found that Bishop was capable of performing the
exertional demands of medium work. (R. at 31-32, 84-85, 97-98.) The ALJ also
found, based on the evidence as a whole, that the record supported additional
environmental limitations and a limitation regarding food preparation due to
Bishop’s diagnosis of hepatitis C. (R. at 32.) In addition, the ALJ considered the
opinion of Dr. Blackwell and gave it little weight because it was inconsistent with
his on examination report and the medical evidence of record. (R. at 32.) Dr.
Blackwell noted that Bishop had normal range of motion of all joints, exhibited
symmetrical and balanced gait, had full grip strength bilaterally and had normal
size, shape, symmetry and strength of the bilateral upper and lower extremities. (R.
at 32, 348.) Thus, Dr. Blackwell’s relatively benign physical examination findings
do not support the restrictive limitations he imposed on Bishop.
Bishop also argues that the ALJ failed to give appropriate credence to his
allegations. (Plaintiff’s Brief at 10-13.) Based on my review of the record, I find
that the ALJ considered Bishop’s allegations in accordance with the regulations.
The Fourth Circuit has adopted a two-step process for determining whether a
claimant is disabled by pain. First, there must be objective medical evidence of the
existence of a medical impairment which could reasonably be expected to produce
the actual amount and degree of pain alleged by the claimant. See Craig, 76 F.3d at
594. Second, the intensity and persistence of the claimant’s pain must be evaluated,
as well as the extent to which the pain affects the claimant’s ability to work. See
Craig, 76 F.3d at 595. Once the first step is met, the ALJ cannot dismiss the
claimant’s subjective complaints simply because objective evidence of the pain
itself is lacking. See Craig, 76 F.3d at 595. This does not mean, however, that the

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ALJ may not use objective medical evidence in evaluating the intensity and
persistence of pain. In Craig, the court stated:
Although a claimant’s allegations about [his] pain may not be
discredited solely because they are not substantiated by objective
evidence of the pain itself or its severity, they need not be accepted to
the extent they are inconsistent with the available evidence, including
objective evidence of the underlying impairment, and the extent to
which that impairment can reasonably be expected to cause the pain
the claimant alleges [he] suffers....
76 F.3d at 595.
I find that the ALJ reasonably found that Bishop’s subjective complaints of
disabling functional limitations were not entirely credible. (R. at 31.) The ALJ
found that Bishop’s allegations of significant sciatica in the right leg were
inconsistent with the objective diagnostic evidence or ongoing treatment for back
and leg pain. (R. at 31.) On July 24, 2011, x-rays of Bishop’s cervical spine
showed mild spondylosis, and an x-ray of Bishop’s thoracic spine showed
nominal scoliosis and spondylosis. (R. at 443, 445.) In May 2012, x-rays of
Bishops right knee and lumbosacral spine were normal. (R. at 442.) Bishop
alleged that his rash caused him to itch, bleed and scratch himself; however
treatment notes indicate that, while dermatitis herpetiformis caused significant
irritation for a while in 2012, his rash had been largely controlled since October
2012. (R. at 31, 405, 614.) Bishop alleged that he could not work around other
people due to anxiety, but the record fails to show that he received any significant
treatment for an anxiety disorder. (R. at 31.) The ALJ noted that Bishop’s poor
work history and ongoing marijuana use, despite the recommendation of Dr. Van
Zee to cease use, do not augment his credibility. (R. at 31.) Furthermore, Bishop
reported looking for work throughout 2012 and 2013 and reported doing home
repairs with his father in 2014 and 2015. (R. at 31, 644, 657, 665.) Based on this, I
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find that the ALJ reasonably found that Bishop’s subjective complaints of
disabling functional limitations were not credible.
Based on the above-stated reasons, I find that the substantial evidence
supports the Commissioner’s decision that Bishop was not disabled. An
appropriate Order and Judgment will be entered.
DATED:

December 14, 2017.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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