Anderson v. Social Security Administration
Filing
21
MEMORANDUM OPINION. Signed by Magistrate Judge Joel C. Hoppe on 9/26/18. (hnw)
09/26/2018
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division
LEROY A.,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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Civil Action No. 3:17-cv-00030
MEMORANDUM OPINION
By:
Joel C. Hoppe
United States Magistrate Judge
Plaintiff Leroy A., appearing pro se, asks this Court to review the Acting Commissioner
of Social Security’s (“Commissioner”) final decision denying his application for a closed period
of disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42
U.S.C. §§ 401–434. The case is before me by the parties’ consent under 28 U.S.C. § 636(c). ECF
No. 12. Having considered the administrative record, the parties’ briefs and oral arguments, and
the applicable law, I find that the Commissioner’s final decision is supported by substantial
evidence and must be affirmed.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner’s final
decision that a person is not entitled to disability benefits. 42 U.S.C. § 405(g); see also Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not
“reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for
that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, a court
reviewing the merits of the Commissioner’s final decision asks only whether the Administrative
Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports
the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see Riley v. Apfel,
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88 F. Supp. 2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98–100
(1991)).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is
“more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount
of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes
into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 487–89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir.
1984). Ultimately, this Court must affirm the ALJ’s factual findings if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 594 (4th Cir.
1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987).
A person is “disabled” within the meaning of the Act if he or she is unable to engage in
“any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 20
C.F.R. § 404.1505(a). Social Security ALJs follow a five-step process to determine whether a
claimant is disabled. The ALJ asks, in sequence, whether the claimant (1) is working; (2) has a
severe impairment that satisfies the Act’s duration requirement; (3) has an impairment that meets
or equals an impairment listed in the Act’s regulations; (4) can return to his or her past relevant
work based on his or her residual functional capacity; and, if not (5) whether he or she can
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perform other work. See Heckler v. Campbell, 461 U.S. 458, 460–62 (1983); Lewis v. Berryhill,
858 F.3d 858, 861 (4th Cir. 2017); 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of
proof through step four. Lewis, 858 F.3d at 861. At step five, the burden shifts to the agency to
prove that the claimant is not disabled. See id.
II. Procedural History
Leroy A. filed this DIB application in August 2013, alleging disability from a stab
wound, subsequent shoulder surgery, and anxiety. Administrative Record (“R.”) 94–95, ECF No.
10-1. He ultimately sought disability benefits for a closed period from May 25, 2013, through
October 21, 2014, because he started working as a taxi driver on October 22, 2014. R. 46–48.
Disability Determination Services (“DDS”), the state agency, denied Leroy A.’s claim initially in
March 2014, R. 93, and on reconsideration in September of the same year, R. 109. On February
24, 2016, Leroy A. appeared with counsel and testified at an administrative hearing before ALJ
Theodore Annos. R. 44–62. A vocational expert (“VE”) also testified at this hearing. R. 63–68.
ALJ Annos issued an unfavorable decision on March 25, 2016. R. 18–36. He first found
that Leroy A. had not engaged in substantial gainful activity during the closed period, but that he
did work as a food delivery driver “for a couple of weeks in July 2014” before he had to quit
because of car problems. R. 20 (citing R. 53). At steps two and three, ALJ Annos found that
Leroy A.’s “bilateral shoulder disorders, hip degenerative joint disease (DJD), degenerative disc
disease (DDD) and DJD of the thoracolumbar spine, affective disorder, and anxiety disorder”
were severe medical impairments, but that they did not meet or medically equal any of the
Listings during the closed period. R. 21–23. Some of these impairments stemmed from injuries
Leroy A. sustained when his son, who was suffering an acute episode of borderline psychosis,
attacked and stabbed his father on March 20, 2013. See R. 24–25.
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ALJ Annos next evaluated Leroy A.’s residual functional capacity (“RFC”) based on all
of his medical impairments during the closed period. See R. 24–34. He found that Leroy A. could
have performed “light work” that involved occasionally reaching overhead and pushing/pulling
with either upper extremity, but frequently reaching in all other directions; occasionally climbing
ramps/stairs, balancing, stooping, kneeling, crouching, and working around common workplace
hazards; and never crawling or climbing ladders, ropes, or scaffolds. 1 R. 24. He was also limited
to “simple, routine, and repetitive tasks; simple work-related decisions; occasional interaction
with the public and coworkers; and work in an environment free of fast-paced production
requirements.” Id. (punctuation corrected). This RFC ruled out Leroy A.’s return to his past work
as an insurance agent and furniture delivery driver. R. 34. Finally, based on this RFC finding and
the VE’s testimony, ALJ Annos concluded that Leroy A. was not disabled between May 25,
2013, and October 21, 2014, because he still could have performed certain widely available
“light, unskilled” occupations, such as clerk, ticketer, or sorter. R. 35 (citing R. 65–66). The
Appeals Council denied Leroy A.’s request for review, R. 1–3, and this appeal followed.
Leroy A., now representing himself, filed a brief concisely explaining his position why
the Commissioner’s final decision is not supported by substantial evidence or why the decision
otherwise should be reversed or the case remanded. Pl.’s Br., ECF No. 15; see W.D. Va. Gen. R.
4(c). The brief reads in relevant part:
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). A person who can meet these modest lifting
requirements can perform light work only if he or she can also “do a good deal of walking or standing, or
do some pushing and pulling of arm or leg controls while sitting.” Hays v. Sullivan, 907 F.2d 1453, 1455
n.1 (4th Cir. 1990); see also 20 C.F.R. § 404.1567(b). “‘Frequent[ly]’ means occurring from one-third to
two-thirds of the time,” SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983), whereas “‘[o]ccassionally’
means occurring from very little up to one-third of the time,” SSR 96-9p, 1996 WL 374185, at *3 (July 2,
1996). Doing something on an “occasional” basis would typically total “no more than about 2 hours of an
8-hour workday.” SSR 96-9p, 1996 WL 374185, at *3.
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The incident occurred on March 20, 2013. The doctors stated my son experienced
a borderline acute psychosis, which led my son to attack me. I suffered a
collapsed lung from a stab wound and a completely torn rotator cuff. As a result,
I’ve had an unsuccessful rotator cuff surgery which gives me ongoing pain and
discomfort. As a result of the physical wounds I suffered on March 20, 2013, I
experience psychological, physical, and emotional trauma which requires ongoing
medical treatment. My medical treatment at that time led to my inability to seek
employment from March 20, 2013, to November 2014.
Pl.’s Br. 1 (punctuation corrected). 2 This position mirrors Leroy A.’s prior descriptions of his
allegedly disabling medical conditions during the relevant time. At the administrative hearing in
February 2016, for example, he testified that he could not work at all between May 25, 2013, and
October 21, 2014, because he was recovering from a failed rotator-cuff surgery on his left
shoulder, R. 57–59, and suffering from anxiety that frequently caused nightmares and episodes
where he would “just break down and cry,” R. 60–61. In October 2013, Leroy A. reported that
shoulder pain severely restricted his abilities to reach overhead, use his hands to grip or grasp
objects, and lift or carry more than about five pounds, and that he had trouble staying on task and
interacting with people. See R. 257–63.
Leroy A.’s position on appeal is reasonably construed as a challenge to ALJ Annos’s
RFC determination and in particular his finding that Leroy A.’s statements describing disabling
shoulder pain and anxiety were “not entirely credible.” R. 29–31; see Mascio v. Colvin, 780 F.3d
632, 638–40 (4th Cir. 2015) (explaining the role that a claimant’s subjective symptoms, such as
pain or fatigue, plays in a proper RFC determination).
III. Background
On March 21, 2013, Leroy A. went to the emergency department at the University of
Virginia suffering from a knife wound to the left chest and increased pain in the left shoulder.
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Leroy A. also filed several additional medical records documenting treatment he received for knee pain
in 2017 and 2018. ECF No. 18. At oral argument, Leroy A. confirmed, and the Court agreed, that these
records are immaterial to the Commissioner’s final decision denying his DIB application for the closed
period between May 2013 and October 2014. See 42 U.S.C. § 405(g) (sentence six).
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See R. 302–07, 350. He explained that he had just been stabbed by his son, who had been acting
erratically and “not quite right” the night before. R. 307; see R. 313. Leroy A. was admitted to
the trauma unit following placement of a chest tube and discharged home on the morning of
March 23, 2013. R. 309–13. A physical examination showed a two-centimeter stab wound
around the sixth and seventh rib space without signs of infection, full strength in all four
extremities, and no joint pain with motion of the upper extremities, R. 308, but “limited” motion
in the left shoulder due to an underlying rotator cuff injury, R. 313. See R. 377–80, 392. X-rays
of his left shoulder showed “high riding shoulder . . . suggestive of progressive rotator cuff
injury.” R. 312. On mental status examination, Leroy A. was “dismayed about the issues with his
son and appear[ed] appropriately concerned about his son’s wellbeing.” R. 313 (punctuation
corrected).
Leroy A. continued to suffer pain and decreased motion in his left shoulder after the
March 20 incident, see, e.g., R. 57–59, 344, 350, 365, 375, 394, but did not seek any specialized
care until fairly late in the spring of 2013, see R. 344, 368, 372–73. An MRI taken on May 8
showed “near to full width tears of the supraspinatus and infraspinatus tendons with retraction to
the superior glenoid,” “[t]endinopathy and partial thickness tearing of the superior fibers of the
subscapularis tendon with medialization of the biceps tendon,” “[m]oderate AC joint
arthropathy,” and “[d]egenerative tearing of the superior labrum.” R. 367. Mark Miller, M.D.,
prescribed Percocet for pain, referred Leroy A. to physical therapy, and recommended left
shoulder arthroscopic rotator repair, biceps tendonesis, and subacrominal decompression. Id.
Leroy A. chose to have surgery, id., even though Dr. Miller cautioned that “repair may not be
possible” given the “chronicity of the injury and the significant retraction of the tendon,” R. 345.
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Dr. Miller attempted this outpatient procedure on June 24, 2013. R. 344–46. After
debriding the tendon for almost an hour, however, he “decided that a rotator cuff repair [was]
both inadvisable and impossible” given the “massive nature” of the tearing and minimal residual
tissue. R. 345. Leroy A. was discharged home with an arm sling and pain medication. R. 346–47.
On July 5, Dr. Miller removed Leroy A.’s sutures, addressed pain-control measures, prescribed
physical therapy, and reiterated instructions for wearing the sling. R. 343. He also referred Leroy
A. to Stephen Brockmeier, M.D., to inquire “about possible shoulder tendon transfer surgery,”
id., but Leroy A. reportedly “opted to hold off on that” recommendation, R. 339. On August 6,
2013, Dr. Miller cleared Leroy A. to stop wearing the sling and instructed him to follow up as
needed with Dr. Brockmeier. R. 339.
Leroy A. established care with Dr. Brockmeier three days later. R. 335–38 (Aug. 9,
2013). A physical examination of the left upper extremity showed decreased strength, positive
impingement, restricted external rotation, and “pseudoparalysis” on flexion and abduction. R.
337. X-rays taken the same day showed “mild” degenerative changes in the acromioclavicular
joint, no evidence of acute fracture or dislocation, and a “high riding shoulder which [was]
grossly unchanged from prior [imaging] and could be due to chronic rotator cuff injury or
projection.” R. 392. Dr. Brockmeier noted that Leroy A. had “an inoperable rotator cuff tear and
[was] struggling with pain and function.” R. 337. They discussed at length the various treatment
options, specifically reverse total shoulder replacement (“reverse TSA”) versus latissiumus
treatment versus “conservative treatment.” Id. Dr. Brockmeier thought that Leroy A. was too
young for the reverse TSA, but that he was a “good candidate for the latissimus transfer” and
recommended moving forward with that surgery. Id. Leroy A. declined, choosing instead to “go
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to PT for 6 more weeks and hope for improvement.” 3 Id. Dr. Brockmeier instructed him to
follow up at that time. R. 338. Leroy A. moved from Virginia to South Carolina shortly after this
appointment and did not return to Dr. Brockmeier’s clinic during the closed period. See R. 442,
477–78.
Leroy A. established care with a new primary-care provider in South Carolina on
December 10, 2013. R. 477–79. He reported continued pain and decreased use of his left arm,
and a physical examination showed “very restricted” range of motion in that shoulder. R. 478–
79. Leroy A. was taking Tramadol for pain, but he was not taking oxycodone (Percocet) at that
time. R. 478. He reported exercising for forty-five minutes a day, seven days a week. R. 479. The
provider reluctantly renewed Leroy A.’s existing oxycodone prescription and noted that pain
management was an option if they could not adequately control his pain at the family medicine
clinic. Id. Leroy A.’s shoulder was “the same” at a routine follow-up visit in early January 2014.
R. 476.
On March 24, 2014, Tom Brown, M.D., reviewed all of these medical records as part of
an initial evaluation of Leroy A.’s DIB application. R. 94–103. Dr. Brown opined that he could
occasionally lift/carry twenty pounds and frequently lift/carry ten pounds; sit and stand and/or
walk for about six hours each during a normal eight-hour workday; occasionally use the left
upper extremity to push/pull or reach overhead; and frequently balance and climb ramps/stairs,
occasionally stoop, kneel, crouch, and crawl, but never climb ladders, ropes, or scaffolds. R.
101–02. Additionally, he should avoid concentrated exposure to unprotected heights; and he did
not have any manipulative limitations. R. 102–03.
Leroy A. also suffered from depression and anxiety after the March 20, 2013 incident.
See, e.g., R. 57–62, 359, 376, 519. On March 29, Brian Uthlaut, M.D., prescribed a “short
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The administrative record filed with this Court does not contain any physical therapy progress notes.
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course” of lorazepam (Ativan) for Leroy A. to take as needed for panic attacks. R. 376. Four
months later, Leroy A. presented to Katherine Jaffee, M.D., for an “acute visit with complaint[s]
of increased emotional stress.” R. 340. He never took the Ativan that Dr. Uthlaut had prescribed
because his medications were “taken away from him when he was incarcerated for slamming his
wife’s hand in a door, which he sa[id] was an accident.” Id. Leroy A. exhibited a depressed
mood, but he did not appear anxious and his speech was normal. R. 342. Dr. Jaffee diagnosed
depression and encouraged Leroy A. to seek care at a community mental-health clinic. Id. She
also recommended starting an antidepressant medication, but Leroy A. was “not interested in
pharmacological therapy.” Id. On January 9, 2014, Leroy A. told his primary-care provider that
he had “concerns with anxiety,” which “sometimes” impaired his sleep. R. 476. The provider
diagnosed an anxiety disorder and prescribed Lexapro to take once daily and Vistaril to take
three times daily as needed for anxiety. R. 476–77. Leroy A. did not report taking either
medication during a psychological consultative examination in March 2014, see R. 435, and he
did not initially mention anxiety or depression as a reason he applied for disability benefits, R.
434–36. See also R. 468 (“He states that he is currently waiting to hear from disability due to his
torn shoulder/rotator cuff.”). When prompted, however, Leroy A. explained that he broke down
and cried “3 or 4 times a day” and he had never liked being around large groups of people. R.
436; see also R. 468. On April 28, Leroy A.’s primary-care provider referred him to counseling
“for depression and anxiety due to a family event.” R. 458. He attended an initial session on July
22, R. 468–70, but did not present for scheduled follow-up in September 2014, R. 468.
Leroy A. went to a consultative psychological examination on March 13, 2014. R. 434–
36. Gene Sausser, Ph.D., observed that Leroy A. seemed “primarily anxious” and “mildly
distant” throughout the interview, but noted that he “was cooperative when answering questions”
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and “did appear to talk fairly openly.” R. 435. Leroy A. did not have any trouble with attention
and concentration, but demonstrated “minor memory difficulty, particularly in short-term
memory.” R. 435–36. His “thought processing was somewhat rambling . . . with loose
associations present on several occasions.” R. 436. Dr. Sausser opined that Leroy A.’s ability to
sustain concentration, persistence, and pace in an ordinary workplace would be “mildly
impaired” because of “issues related to anxiety, depression, and sleep” deprivation and that he
“could do simple repetitive tasks for short periods of time.” Id. On September 16, 2014, Timothy
Laskis, Ph.D., reviewed all of these medical records as part of a reconsideration-level evaluation
of Leroy A.’s DIB application. See R. 110–22. Dr. Laskis opined that, although Leroy A.’s
diagnosed affective and anxiety disorders caused some “moderate” limitations in his overall
mental capacities to perform certain work-related functions, see R. 115, 120–22, he nonetheless
could “maintain attention and concentration for at least two hour blocks of time throughout a
regular work day,” “tolerate and work cooperatively with coworkers,” consistently perform
“simple or routine” tasks, and “attend work regularly.” R. 121–22.
IV. Discussion
Leroy A. challenges ALJ Annos’s RFC determination, and in particular his finding that
Leroy A.’s statements describing disabling left shoulder pain and anxiety were “not entirely
credible” when compared to other relevant evidence in the record. R. 29–31; see Pl.’s Br. 1. A
claimant’s RFC represents his “maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis” despite his medical impairments. SSR
96-8p, 1996 WL 374184, at *2 (emphasis omitted); see 20 C.F.R. § 404.1545. It is a factual
finding “made by the Commissioner based on all the relevant evidence in the [claimant’s]
record,” Felton-Miller v. Astrue, 459 F. App’x 226, 230–31 (4th Cir. 2011) (per curiam), and it
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must reflect the combined functionally limiting effects of impairments that are supported by the
medical evidence or the claimant’s credible reports of pain or other symptoms, see Mascio, 780
F.3d at 638–40.
The regulations set out a two-step process for ALJs to evaluate a claimant’s symptoms.
Lewis, 858 F.3d at 865–66; 20 C.F.R. § 404.1529; see also SSR 96-7p, 1996 WL 374186, at *1
(July 2, 1996). “First, the ALJ looks for objective medical evidence showing a condition that
could reasonably produce the alleged symptoms.” Lewis, 858 F.3d at 866. Second, assuming the
claimant clears the first step, “the ALJ must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they limit the claimant’s
ability,” id., to work on a regular and continuing basis, see Mascio, 780 F.3d at 639. “The second
determination requires the ALJ to assess the credibility of the claimant’s statements about
symptoms and their functional effects.” Lewis, 858 F.3d at 866. When conducting this inquiry,
the ALJ must consider all the evidence in the record bearing on the claimant’s allegations that he
is disabled by pain or other symptoms caused by a medical impairment or related treatment. 20
C.F.R. § 404.1529(c). The ALJ also must give specific reasons, supported by “references to the
evidence,” for the weight assigned to the claimant’s statements. Edwards v. Colvin, No. 4:13cv1,
2013 WL 5720337, at *6 (W.D. Va. Oct. 21, 2013) (citing SSR 96-7p, 1996 WL 374186, at *2,
*4–5). The ALJ’s reasons for discounting a claimant’s complaints need only be legally adequate
and supported by substantial evidence in the record. See Mascio, 780 F.3d at 639; Bishop v.
Comm’r of Soc. Sec., 583 F. App’x 65, 68 (4th Cir. 2014) (per curiam) (citing Eldeco, Inc. v.
NLRB, 132 F.3d 1007, 1011 (4th Cir. 1997)).
More generally, the ALJ’s RFC assessment must “include a narrative discussion
describing” how medical facts and nonmedical evidence “support[] each conclusion,” Mascio,
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780 F.3d at 636, and explaining why he discounted any “obviously probative” evidence, Arnold
v. Sec’y of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977), that supported the
individual’s claim for disability benefits, Ezzell v. Berryhill, 688 F. App’x 199, 200 (4th Cir.
2017). This discussion should “build an accurate and logical bridge from the evidence to [the
ALJ’s] conclusion,” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000)), that the claimant retains a certain ability to sustain
work-related activities, Mascio, 780 F.3d at 636–37. “In other words, the ALJ must both identify
evidence that supports his conclusion and build an accurate and logical bridge from that evidence
to his conclusion” that the claimant is not disabled. Woods v. Berryhill, 888 F.3d 686, 694 (4th
Cir. 2018) (internal quotation marks and brackets omitted).
Leroy A. contends that his shoulder pain and anxiety were so continuous and/or severe
that he could not work at all during the closed period and that the ALJ should have found him
disabled. See Pl.’s Br. 1; R. 57–61, 257–63. Neither argument permits reversal or remand under
“th[e] deferential review” that I must conduct in this case. Jarvis v. Berryhill, 697 F. App’x 251,
252 (4th Cir. 2017) (per curiam); see also Johnson, 434 F.3d at 653. The fundamental question
before the Court right now is not whether Leroy A. was disabled during the closed period, but
whether the ALJ’s conclusion that he was “not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.” Craig, 76 F.3d at 589. ALJ
Annos’s conclusion satisfies this standard.
***
ALJ Annos considered Leroy A.’s medical impairments and related functional limitations
throughout his written decision. R. 21–34. At step two, he found that Leroy A.’s shoulder
disorders and affective/anxiety disorder were “severe” medical impairments during the closed
period because they “more than minimally affected [his] ability to carry out basic[] work-related
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activities,” R. 21, which, according to the regulations, include physical functions like
lifting/carrying, reaching, and pushing/pulling, and mental functions like responding
appropriately to other people and dealing with changes in a routine work setting. 20 C.F.R. §
404.1521(b)(1) (2015). At step three, ALJ Annos acknowledged that Leroy A.’s anxiety and
resulting symptoms (crying spells, nightmares) caused “moderate difficulties,” R. 22, 23, in his
overall abilities “to interact independently, appropriately, effectively, and on a sustained basis
with other individuals” and “to sustain focused attention and concentration” long enough “to
permit the timely and appropriate completion of tasks commonly found in work settings,” 20
C.F.R. pt. 404, subpt. P, app. 1 § 12.00(C)(2)–(3) (2015). See R. 22–23, 30–31 (citing R. 99,
103–05, 116, 121–22, 257–63, 435–36). ALJ Annos then set out a reasonably complete and
accurate summary of all the record evidence related to Leroy A.’s allegedly disabling medical
conditions, including medical progress notes, treatment recommendations, findings on
examinations and diagnostic images, medical opinions, and Leroy A.’s statements both to his
healthcare providers and at the administrative hearing. See R. 21–34.
After considering all of this evidence, ALJ Annos found that Leroy A.’s medical
conditions during the closed period did not prevent him from doing “light” work that (among
other things) had no “fast-paced production requirements”; involved only “simple, routine, and
repetitive tasks” and “simple work-related decisions”; and required at most occasional
interaction with the public and coworkers; occasional pushing/pulling and reaching overhead
with either arm; and frequent reaching in other directions. R. 24 (punctuation corrected). These
functional limitations follow logically from Dr. Brown’s and Dr. Laskis’s medical opinions of
Leroy A.’s physical and mental capacities. R. 101–03, 120–22. ALJ Annos gave their opinions
“great weight” because he found that the expert consultants “had an opportunity to objectively
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review” Leroy A.’s medical records, which related to their respective specialties, and their
opinions were “consistent with” the record as a whole, R. 31–32. See R. 29–32 (explaining that,
overall, the record showed Leroy A. had “significant gaps [in] and limited treatment” for his
physical impairments after his June 2013 shoulder surgery, “typically had normal mental signs
on exam, his [psychiatric] treatment was largely limited to medications as prescribed by his
primary care providers, he did not regularly see mental health specialists, and he was not always
compliant in taking his medications”). ALJ Annos also explained that he gave “little weight” to
Dr. Sausser’s slightly more restrictive opinion of Leroy A.’s mental capacities because he found
that the opinion was “not consentient with” Leroy A.’s “typically normal mental signs on exam
[and] limited and conservative treatment throughout the closed period.” R. 32. Dr. Sausser’s
opinion that Leroy A. “could only do simple, repetitive tasks for short periods” also seemed at
odds with the examining psychologist’s own conclusion that Leroy A. “had only mild limitations
in maintaining concentration, persistence, and pace,” id. See 20 C.F.R. § 404.1527(c)(3)–(4).
Under this Court’s “deferential standard of review, there is enough evidence in the record to
support the ALJ’s decision to accord” these particular weights to the various medical opinions.
Dunn v. Colvin, 607 F. App’x 264, 271 (4th Cir. 2015) (“We must defer to the ALJ’s
assignments of weight unless they are not supported by substantial evidence.”).
Finally, ALJ Annos adequately explained why Leroy A.’s allegations that he suffered
disabling shoulder pain and anxiety during the closed period, R. 24–25, were “not entirely
credible” when compared to other relevant evidence in the record, R. 29–30. See Bishop, 583 F.
App’x at 68 (affirming ALJ’s adverse credibility determination where “the ALJ cited specific
contradictory testimony and evidence in analyzing Bishop’s credibility and averred that the
entire record had been reviewed”). As for his physical pain, ALJ Annos explained that Leroy
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A.’s allegations were inconsistent with evidence that he had “significant gaps [in] and limited
treatment” for his musculoskeletal impairments for most of the closed period; declined Dr.
Brockmeier’s recommendation that he have tendon transfer surgery to repair his left shoulder,
and instead chose to continue in physical therapy; made inconsistent statements about his
physical activities; and worked as a food delivery driver for a few weeks near the end of the
closed period before his car gave out on him. R. 29–31. As for Leroy A.’s psychological
symptoms, ALJ Annos explained that his allegations were inconsistent with the limited and mild
findings on mental status examinations, “his limited and conservative treatment for depression
and anxiety that was mainly limited to prescriptions from primary care providers and one
counseling visit” during the closed period, his “positive response” to common psychotropic
medications, and his admission that he did not take some of these medications every day as
prescribed, but rather took them only “‘as needed’ during the closed period, which he described
as about twice weekly.” R. 30. These were legitimate reasons for ALJ Annos to question whether
Leroy A.’s symptoms really were as severe and functionally limiting as he alleged, see 20 C.F.R.
§§ 404.1529(c), 404.1571, and all but one were adequately supported by the record. 4
4
ALJ Annos’s factual finding that Leroy A. failed to follow Dr. Brockmeier’s surgical recommendation
required more explanation before it could provide a legitimate basis to question the intensity, persistence,
and functionally limiting effects of Leroy’s shoulder pain. See Nunley v. Barnhart, 296 F. Supp. 2d 702,
704–05 (W.D. Va. 2003). A claimant who, “without a good reason,” fails to “follow treatment prescribed
by [a] physician” that could “restore” the claimant’s ability to work is legally ineligible for disability
benefits. Dunn, 607 F. App’x at 275 (quoting 20 C.F.R. § 404.1530); see Hays, 907 F.2d at 1457–58
(applying the same principle to “recommended” treatment, including corrective surgery). This so-called
“good cause” standard means that an ALJ must both give the claimant an opportunity to explain his or her
reasons for not submitting to such treatment, Nunley, 296 F. Supp. 2d at 704–05, and properly consider
the claimant’s explanation when evaluating his or her statements about symptoms and functional
limitations, Dunn, 607 F. App’x at 275–76. ALJ Annos did not give Leroy A. an opportunity to explain
why he chose to continue physical therapy rather than submit to a second, even more invasive shoulder
surgery so soon after the first shoulder surgery had failed. See generally R. 46–68. And, unlike with
Leroy A.’s explanation that he did not “need” to take his antidepressant medication every day as
prescribed, see R. 58–59, 435, 475–76, nothing in the record compels the conclusion that Leroy A. did not
have a good reason for declining the second shoulder surgery. Cf. 20 C.F.R. § 404.1530(c)(3) (explaining
that the fact “[s]urgery was previously performed with unsuccessful results and the same surgery is again
15
At bottom, the ALJ acknowledged that Leroy A.’s complaints of shoulder pain and
anxiety appeared throughout the record, and, in his RFC assessment, he accounted for them to a
reasonable degree by restricting Leroy A.’s mental and physical work-related activities. This
RFC is supported by the opinions of the state agency medical consultants, who had the
opportunity to review all of the medical evidence as well as Leroy A.’s statements about his
limitations during the relevant closed period. Their medical opinions relate to their areas of
specialty, provide reasonable explanations for their conclusions, and are consistent with the
record, as ALJ Annos specifically explained. See Woods, 888 F.3d at 695 (explaining that the
ALJ may credit a non-examining source’s medical opinion “where that opinion has sufficient
indicia of supportability in the form of a high-quality explanation for the opinion and a
significant amount of substantiating evidence . . . ; consistency between the opinion and the
record as a whole; and specialization in the subject matter of the opinion”); Gordon, 725 F.2d at
235 (noting that the ALJ may rely on a non-examining source’s medical opinion “when it is
consistent with the record”). Leroy A. understandably disagrees with the Commissioner’s
decision that his medical conditions were not disabling during the closed period, but he does not
identify any specific error in the RFC assessment or point to any piece of evidence not
considered by the ALJ that might have changed the outcome of his claim. Pl.’s Br. 1. Having
reviewed the record, I am compelled to conclude that the Commissioner’s decision is supported
by substantial evidence. Accordingly, I must affirm the Commissioner’s final decision. Reid v.
Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (finding no reversible error where the
recommended for the same impairment” is itself a “good reason” for the claimant not to undergo the
second surgery). Thus, ALJ Annos could not rely on this reason to discount Leroy A.’s complaints of
debilitating shoulder pain. The error was harmless, however, because the ALJ’s other reasons for finding
Leroy A.’s complaints not fully credible were legally adequate and supported by substantial evidence in
the record. See Kersey v. Astrue, 614 F. Supp. 2d 679, 696 (W.D. Va. 2009) (“Errors are harmless in
social security cases when it is inconceivable that a different administrative conclusion would have been
reached absent the error.”).
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ALJ’s factual findings related to the relevant time were “amply supported by the record” and the
claimant “failed to point to any specific piece of evidence not considered by the Commissioner
that might have changed the outcome of his disability claim”).
V. Conclusion
For the foregoing reasons, I find that substantial evidence in the record supports the
Commissioner’s final decision that Leroy A. was not disabled before March 31, 2014.
Accordingly, the Court will GRANT the Commissioner’s motion for summary judgment, ECF
No.16, AFFIRM the Commissioner’s final decision, and DISMISS this case from the Court’s
active docket. A separate order will enter.
The Clerk shall send certified copies of this Memorandum Opinion to the parties.
ENTER: September 26, 2018
Joel C. Hoppe
United States Magistrate Judge
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