Smith v. Berryhill

Filing 23

MEMORANDUM OPINION. Signed by Magistrate Judge Joel C. Hoppe on 09/30/19. (hnw) (Main Document 23 replaced on 9/30/2019) (hnw).

09/30/2019

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division
JEFFREY S.,1
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security
Defendant.2

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Civil Action No. 3:18-cv-00028
MEMORANDUM OPINION
By:

Joel C. Hoppe
United States Magistrate Judge

Plaintiff Jeffrey S. asks this Court to review the Commissioner of Social Security’s final
decision denying his applications for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”), 42
U.S.C. §§ 401–434, 1381–1383f. The case is before me by the parties’ consent under 28 U.S.C.
§ 636(c). ECF Nos. 9, 10. Having considered the administrative record, the parties’ briefs, and
the applicable law, I find that the Commissioner’s decision is supported by substantial evidence
and should 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), 1383(c)(3); see
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).

1

The Committee on Court Administration and Case Management of the Judicial Conference of the
United States has recommended that, due to significant privacy concerns in social security cases, federal
courts should refer to claimants only by their first names and last initials.
2

Andrew M. Saul became Commissioner of Social Security in June 2019. Commissioner Saul is hereby
substituted for the former Acting Commissioner, Nancy A. Berryhill, as the named defendant in this
action. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d).

1

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, 88 F. Supp. 2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v.
Sullivan, 501 U.S. 89 (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
considers 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). 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),
1382c(a)(3)(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

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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
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), 416.920(a)(4).3 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
In September 2014, Jeffrey filed for DIB and SSI alleging that he was disabled because
of anxiety disorder, stroke, Hepatitis C, nerve damage, and problems with his neck, back, hip,
and knee. See Administrative Record (“R.”) 24, 67–68, 79–80, 206–07, 208–22, ECF No. 13. He
was fifty years old, or a person “closely approaching advanced age” under the regulations, when
he allegedly became disabled in April 2014. R. 33, 67, 79; 20 C.F.R. §§ 404.1563(d),
416.963(d). Disability Determination Services (“DDS”), the state agency, denied his claims
initially in January 2015, R. 65–90, and upon reconsideration that August, R. 91–124. In
December 2016, Jeffrey appeared with counsel and testified at an administrative hearing before
ALJ Mary Peltzer. R. 45–59. A vocational expert (“VE”) also testified at this hearing. R. 60–63.
ALJ Peltzer issued an unfavorable decision on March 30, 2017. R. 24–34. She found that
Jeffrey had four “severe impairments: degenerative disc disease-lumbar spine, history of left
femur fracture, anxiety disorder, and major depressive disorder.” R. 24. All other medical
impairments referenced in the record, including noted “degenerative changes in his cervical
spine and a left rotator cuff tear,” were deemed non-severe. Id. Jeffrey’s severe physical

3

Unless otherwise noted, citations to the Code of Federal Regulations refer to the version in effect on the
date of the ALJ’s written decision.

3

impairments did not meet or equal the relevant musculoskeletal Listings primarily because he
could still “ambulate effectively.” R. 27 (citing 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 1.00, 1.02,
1.04, 1.06). His severe mental impairments did not meet or equal the relevant Listings because
they caused “no limitations” in his capacities for “adapting and managing” himself; overall “mild
limitations” in “understanding, remembering, or applying information” and “concentrating,
persisting, or maintaining pace”; and “no more than moderate limitations” in “interacting with
others.” R. 28 (citing 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04(B), 12.06(B) (2017)).
ALJ Peltzer then evaluated Jeffrey’s residual functional capacity (“RFC”) and found that
he could do “light work”4 with additional limitations:
[O]ccasional stairs and ramps; no ladders, ropes, and scaffolds; frequent stooping;
occasional kneeling, crouching, and crawling; occasional exposure [to] workplace
hazards such as dangerous moving machinery, but no exposure to unprotected
heights. He can perform unskilled work at an SVP 1 or 2 involving simple, routine
tasks with no contact with the general public and occasional contact with
supervisors and coworkers, with no tandem work assignments.
R. 29. The limitation to “unskilled” work ruled out Jeffrey’s return to his past relevant work. R.
32–33. Finally, based on this RFC finding and the VE’s testimony, ALJ Peltzer concluded at step
five that Jeffrey was not disabled because he still could perform certain light, unskilled
occupations (marker, inspector/grader) that offered a significant number of jobs in the national
economy. R. 34. The Appeals Council denied Jeffrey’s request for review, R. 1–3, and this
appeal followed.
III. Discussion

“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), 416.967(b). A person who can meet these
relatively modest lifting requirements can perform “[t]he full range of light work” only if he or she can
also “stand or walk for up to six hours per workday or sit ‘most of the time with some pushing and pulling
of arm or leg controls.’” Neal v. Astrue, Civ. No. JKS-09-2316, 2010 WL 1759582, at *2 (D. Md. Apr.
29, 2010) (quoting 20 C.F.R. § 404.1567(b)); SSR 83-10, 1983 WL 31251, at *5–6 (Jan. 1, 1983).
4

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Jeffrey challenges ALJ Peltzer’s determination of his RFC, arguing the ALJ failed to
accord proper weight to the medical opinion of his treating physician, Zeljko Stjepanovic, M.D.,
regarding his physical limitations and instead gave greater weight to the DDS physicians who did
not examine him. See generally Pl.’s Br. 15–20. Jeffrey further challenges the weight ALJ
Peltzer gave to the opinion of his “treating” nurse practitioner Nancy Hussar, L-QMHP,
regarding his mental limitations because she gave greater weight to one of the DDS psychiatrists
who did not examine him. Id. at 20–25. His arguments are not persuasive.
*
A claimant’s RFC is his “maximum remaining ability to do sustained work activities in
an ordinary work setting” for eight hours a day, five days a week despite his medical
impairments and related symptoms.5 SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996)
(emphasis omitted). It is a factual finding “made by the [ALJ] based on all the relevant evidence
in the case record,” Felton-Miller v. Astrue, 459 F. App’x 226, 230–31 (4th Cir. 2011), and it
should reflect any credibly established “functional limitations or restrictions caused by medical
impairments and their related symptoms,” including pain, that affect the claimant’s “capacity to
do work-related physical and mental activities,” SSR 96-8p, 1996 WL 374184, at *1, *2. See

“Symptoms” are the claimant’s own description of his medical condition. 20 C.F.R. §§ 404.1528(a),
416.928(a). The regulations set out a two-step process for ALJs to evaluate symptoms as part of the RFC
assessment. See Lewis, 858 F.3d at 865–66. “First, the ALJ looks for objective medical evidence showing
a condition that could reasonably produce,” id. at 866, the actual pain or other symptoms “in the amount
and degree[] alleged by the claimant,” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). 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 [his] ability,” Lewis, 858
F.3d at 866, to work on a regular and continuing basis, Mascio v. Colvin, 780 F.3d 632, 637 (4th Cir.
2015). “The second determination requires the ALJ to assess the credibility of the claimant’s statements
about symptoms and their functional effects” after considering all the relevant evidence in the record.
Lewis, 858 F.3d at 866; see Mascio, 780 F.3d at 639; Hines, 453 F.3d at 565. The ALJ must give specific
reasons supported by “references to the evidence” for the weight assigned to those statements, Edwards v.
Colvin, No. 4:13cv1, 2013 WL 5720337, at *6 (W.D. Va. Oct. 21, 2013), and, when necessary, she
should “explain how [s]he decided which . . . statements to believe and which to discredit,” Mascio, 780
F.3d at 640.
5

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Mascio, 780 F.3d at 638–40; Reece v. Colvin, 7:14cv428, 2016 WL 658999, at *6–7 (W.D. Va.
Jan. 25, 2016), adopted by 2016 WL 649889 (W.D. Va. Feb. 17, 2016).
The ALJ has broad (but not unbounded) discretion to determine whether an alleged
symptom or functional limitation is supported by or consistent with other relevant evidence,
including objective evidence of the underlying medical impairment, in the claimant’s record. See
Hines, 453 F.3d at 564 n.3; Perry v. Colvin, No. 2:15cv1145, 2016 WL 1183155, at *5 (S.D. W.
Va. Mar. 28, 2016) (citing Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)). Generally, a
reviewing court will affirm the ALJ’s RFC findings when it is clear that she considered all the
relevant evidence under the correct legal standards, see Brown v. Comm’r of Soc. Sec. Admin.,
873 F.3d 251, 267–72 (4th Cir. 2017), and her written decision built an “accurate and logical
bridge from that evidence to [her] conclusion” that the claimant is not disabled, Woods v.
Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (quotation marks and other brackets omitted).
A.

Summary
1. Treatment Notes
In July 2010, Jeffrey was diagnosed with degenerative disc disease and an “[o]ld fracture

deformity” in his left femur. R. 406–07, 411–12. Jeffrey continued to work until April 2014, and
the record does not indicate that he received treatment for these conditions until the fall of 2014,
when he established care at Dr. Stjepanovic’s clinic, the Ailment Wellness Center. See R. 210,
402–03, 404–05. Dr. Stjepanovic saw Jeffrey about once a month through November 2016. See
R. 402–03, 404–05, 453–59, 589–98, 600–06, 665–68. Jeffrey consistently reported back pain or
tenderness and knee, leg, and hip pain. See, e.g., R. 402, 404–05, 455–59, 589–91, 603–06, 665–
68. Dr. Stjepanovic prescribed Methadone and Oxycodone for Jeffrey’s pain. See id. After April
2014, Jeffrey repeatedly stated that his pain was well controlled on medications. See, e.g., 415,

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417, 453–54, 458, 589–90, 592–93, 595, 598–99, 601, 668. Jeffrey’s gait, station, and extremity
strength were generally normal on physical exams. See, e.g., R. 566, 573, 620. In August 2016,
Dr. Stjepanovic assessed Jeffrey with lumbar foraminal narrowing. R. 665–68.
Dr. Stjepanovic completed a Residual Functional Capacity Questionnaire for Jeffrey on
June 16, 2015. R. 466–68. Dr. Stjepanovic had treated Jeffrey since September 10, 2014. R. 468.
He diagnosed Jeffrey with osteoarthritis, degenerative disc disease, lumbago, and status-post left
femur reconstruction and stated that Jeffrey’s prognosis was “fair.” R. 466. Jeffrey’s symptoms
included lower back pain and “pain in [the] right arm,” which “often” would be “severe enough
to interfere with the attention and concentration required to perform simple work-related tasks.”
Id. As for his specific limitations, Dr. Stjepanovic opined that Jeffrey could walk five city blocks
“without rest or significant pain”; sit for forty-five minutes at one time, and for six hours total in
an eight-hour workday; “stand/walk” for thirty minutes at one time and for six hours total in an
eight-hour workday; and frequently lift ten pounds, occasionally lift twenty pounds, but never lift
fifty pounds. R. 466–67. Jeffrey was not “physically capable of working an 8 hour day, 5 days a
week . . . on a sustained basis,” R. 476, in part because he needed to take “2 or 3” unscheduled
thirty-minute breaks during a typical workday, R. 466. He would also miss work “three or four
times a month.” R. 467. Dr. Stjepanovic opined that Jeffrey’s limitations related back to 2010. R.
468.
In June 2015, Brian Krause, M.D., diagnosed Jeffrey with major depressive disorder
(recurrent, moderate), opioid abuse, and general anxiety disorder. R. 476. Prior to his diagnosis,
Jeffrey was treated with Xanax, prescribed by providers at the pain management clinic. R. 402–
05, 455–59. After he stopped working, Jeffrey reported depression, anxiety, and worry, R. 378–
79, 479, 536, 634, 639; trouble concentrating, R. 378; and difficulty sleeping or eating, R. 479,

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494. He also stated his “nerves are shot,” “he just can’t handle things anymore,” he had a “racing
mind,” and he does not like being around crowds of people, R. 494, 639.
In May 2015, Jeffrey reported to Rappahannock-Rapidan Community Services (“RRCS”)
for treatment of his mental health problems. See R. 488–99. Jeffrey’s initial assessment was
conducted by Guy Lushin, L.C.S.W., who noted that Jeffrey’s thought processes exhibited
perseveration and were “circumstantial and tangential.” R. 488 (spelling corrected). Jeffrey’s
appearance, behavior, and cognition were appropriate, he had normal speech, and his mood and
affect were “depressed, anxious.” Id. Mr. Lushin recommended individual or group therapy and
medication management. R. 493. Subsequently, Jeffrey saw Mary Fisher, C.N.S., and Nancy
Hussar, N.P., for his care at RRCS. Nurse Fisher observed that Jeffrey had a cooperative attitude,
“logical/organized” thought processes, a euthymic or anxious appearance, intact memory, good
or limited insight, and good or fair judgment and insight. R. 471, 483. Jeffrey saw NP Hussar six
times in ten months. R. 610, 617, 634, 639, 644, 653. She sometimes observed that Jeffrey’s
mood was anxious or depressed, R. 617, 644, 653, but she also regularly observed that Jeffrey’s
mood was euthymic, R. 610, 634, 639. Jeffrey’s thought processes were “logical/organized,” R.
610, 617, 634, 639, 644, 653, although he sometimes exhibited perseveration and circumstantial
or tangential thoughts, R. 617, 634, 639, 644, 653. He was always “cooperative” and had “intact”
memory in all spheres. R. 610, 617, 634, 639, 644, 653. NP Hussar observed that Jeffrey had
“fair” judgment and insight and “limited” insight. Id. Several other providers, including Dr.
Stjepanovic, also noted normal psychological examinations throughout the relevant period. See,
e.g., R. 378–80, ,430, 453–59, 558, 563, 566, 574, 586, 589–99, 601, 602–06, 665–68, 671.
On November 2, 2016, NP Hussar completed a Mental Capacity Assessment form giving
her opinions of Jeffrey’s limitations in understanding and memory, sustained concentration and

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persistence, social interaction, and adaptation. R. 660–62. Jeffrey had “extreme” limitations in
his ability to understand and remember detailed instructions, but only “moderate” limitations in
his ability to remember locations and work-like procedures. R. 660. Jeffrey had “moderate”
limitations in his ability to make simple work-related decisions; “marked” limitations in his
ability to carry out very short and simple instructions; and “extreme” limitations in his abilities to
carry out detailed instructions, maintain attention and concentration for extended periods,
maintain a regular schedule and routine, work with others without distraction, complete a normal
workday and workweek without interruptions from psychologically based symptoms, and
perform at a consistent pace with a standard number of breaks. R. 660–61. Asked to “[d]escribe
the medical/clinical findings that support[ed]” these limitations in concentration and persistence,
NP Hussar wrote that Jeffrey “require[d] breaks every 15 minutes [due to his] COPD.” R. 661.
Jeffrey also had “slight” limitations in his abilities to interact appropriately with the general
public; “moderate” limitations in his abilities to ask simple questions or request assistance and to
get along with coworkers without distracting them or exhibiting behavioral extremes; and
“extreme” limitations in his ability to accept instructions and criticism from supervisors. Id. NP
Hussar cited Jeffrey’s “[d]ifficulty sleeping [and] report[ed] ‘head spinning’” as the
“medical/clinical findings that support[ed]” her assessment of his social interaction ability. Id.
Finally, NP Hussar opined that Jeffrey had “marked” limitations in his ability to set realistic
goals or make plans independently and “extreme” limitations in his ability to respond
appropriately to workplace changes. R. 662.
2.

DDS Medical Opinions

Carolina Bacani-Longa, M.D., and Patricia Staehr, M.D., reviewed Jeffrey’s medical
records for DDS in December 2014 and August 2015, respectively. R. 73–76, 85–88, 102–04,

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118–20. Dr. Bacani-Longa opined that Jeffrey’s “degenerative changes of [the] lumbar spine and
history of [resolved] mononeuropathy in the right hand” warranted restricting him to “medium”
work with additional postural limitations. R. 74–77, 86–89. More specifically, Jeffrey could
occasionally lift/carry fifty pounds and frequently lift/carry twenty-five pounds; use his arms or
legs to push/pull without limitation up to the weights and frequencies for lift/carry; sit and stand
and/or walk for about six hours each during an eight-hour workday; occasionally climb ladders,
ropes, and scaffolds; and frequently climb ramps/stairs, stoop, kneel, crouch, and crawl. R. 74–
75, 86–87. He should “avoid concentrated exposure” to extreme cold. R. 75, 87. Dr. Staehr
affirmed Dr. Bacani-Longa’s assessment. R. 103–04, 119–20. Dr. Staehr attributed Jeffrey’s
exertional and postural limitations to “degenerative changes of [his] lumbar spine, chronic pain
well-controlled with current treatment, and history of radial mononeuropathy in the right hand
which resolved.” Id. Dr. Staehr also noted that although Jeffrey had a seizure since the last
assessment, it was due to “withdrawal [when he] abruptly stopped his Xanax [and] narcotic
med[ications]” and Jeffrey had “[n]o other seizure history.” R. 104, 120.
David Deaver, Ph.D., and Jo McClain, Psy.D., also reviewed Jeffrey’s medical records
for DDS in December 2014 and August 2015, respectively. R. 72–73, 84–85, 101, 104–06, 117,
120–22. Dr. Deaver found that Jeffrey’s affective disorder and substance addiction disorder were
“non-severe.” R. 72, 84. He opined that Jeffrey “would be capable of all levels of work” despite
his “diagnosis of anxiety” because his mental status exams and daily activities were “not
significantly limited.” R. 73, 85. Dr. McClain opined that Jeffrey’s “severe” anxiety and
depression caused “mild” restrictions in activities of daily living and “moderate” difficulties in
social functioning and maintaining concentration, persistence, or pace. R. 101, 117. More
specifically, Jeffrey had “moderate” limitations in his abilities to carry out detailed instructions,

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to maintain attention and concentration for extended periods, to “complete a normal workday and
workweek without interruptions from psychologically based symptoms, and to perform at a
consistent pace without an unreasonable number of breaks,” but he still could perform simple,
routine tasks. R. 105, 120–21; see R. 31, 61. Jeffrey had “moderate” limitations in his abilities to
interact appropriately with the general public, accept instructions and criticism from supervisors,
and get along with coworkers or peers without distracting them or exhibiting behavioral
extremes. R. 105, 121. Dr. McClain opined that Jeffrey’s “[a]nxiety and depression would limit
him to work with modest social demands.” Id.
3.

Jeffrey’s Statements

Jeffrey alleged that he could not work after April 2, 2014, because of back, neck, hip, and
knee problems, anxiety, stroke, hepatitis C, and nerve damage. R. 210, 236–37. At the hearing
before ALJ Peltzer in December 2016, Jeffrey testified that he could not work because he “can’t
do anything anymore.” R. 50. Regarding his physical limitations, Jeffrey testified that his “back
is always hurting [him] lifting [a] heavy box” and that he could not “straighten up.” R. 52. He
could sit for “10, 15, [or] 20” minutes before he had to get up and walk around to relieve his
lower back pain. Id. He could walk “[p]robably a good two blocks” before needing to stop and
rest because of his COPD. He could lift “maybe 35 pounds at the most.” R. 53–54. Regarding his
mental limitations, Jeffrey testified that he was “tired all the time” and his “brain is constantly
just going.” R. 50, 57. He also testified that he gets “really bad . . . anxiety attacks” caused by
being “in places with a lot of people” and he could not “go into Walmart” because he “feel[s]
boxed in.” R. 51.
B.

The ALJ’s Decision

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ALJ Peltzer considered this evidence throughout her written decision. R. 24–34. She
found that Jeffrey’s lumbar degenerative disc disease, history of left femur fracture, anxiety
disorder, and major depressive disorder could reasonably be expected to cause his chronic pain
and mental health symptoms, but that Jeffrey’s statements concerning “the intensity, persistence,
and limiting effects” of those symptoms were “not entirely consistent” with the objective
medical evidence and other relevant evidence in his record. R. 29; see R. 30.
The ALJ rejected Jeffrey’s statements regarding the extreme severity of his chronic
physical pain because he was diagnosed with degenerative disc disease and broke his left femur
several years before his alleged onset date of disability and he was able to work with those
conditions, he had received minimal treatment, and his physical examinations were normal. R.
29–30 (citing R. 345, 573, 620). Additionally, she noted Jeffrey reported that medication and
moving around helped with his pain. R. 30 (citing R. 54, 597). ALJ Peltzer also rejected Jeffrey’s
testimony that his anxiety and major depressive disorder kept him from working because his
treatment notes revealed normal psychological examinations. Id. (citing R. 430, 459, 543, 607,
668).
The ALJ gave “partial” weight to the DDS physicians’ opinions that Jeffrey could
perform “medium” work because neither doctor examined Jeffrey and the record as a whole,
including Jeffrey’s testimony, showed that he was “more properly limited to a range of light
work.” R. 31 (citing R. 46–59, 345, 406–07, 472, 573, 597, 620, 680). She gave “limited” weight
to Dr. Stjepanovic’s June 2015 assessment because he stated that his “opinion extended back to
2010, even though he did not start treating [Jeffrey] until September 2014” and he “did not
explain why [Jeffrey] would be expected to miss 3–4 days of work per month.” See R. 31–32
(citing R. 466–68). She further found that “the severe limitations in standing and walking [were]

12

inconsistent with the medical evidence, which reveal[ed] normal physical examinations and that
[Jeffrey] walk[ed] with a normal gait.” R. 32 (citing R. 345, 573, 620).
The ALJ gave “great” weight to Dr. McClain’s opinion that Jeffrey could “perform
simple, routine tasks” because it was “consistent with the medical evidence of the record and the
normal mental examinations throughout the period at issue.” R. 31. (citing R. 379, 430, 459, 494,
543, 586, 607, 634, 668). The ALJ gave “partial” weight to the opinion of NP Hussar. R. 32. The
ALJ noted that NP Hussar was “not an acceptable medical source, but [she] considered her
opinions in evaluating the severity of [Jeffrey’s] symptoms.” Id. The ALJ stated that NP
Hussar’s opinion was “inconsistent with the medical evidence, which consistently report normal
mental examinations, and that [Jeffrey] has denied experiencing anxiety and depression on
multiple occasions throughout the period at issue.” Id. (citing R. 379, 430, 459, 494, 543, 586,
607, 634, 668). The ALJ also noted that NP Hussar “based her most extreme limitations on
[Jeffrey’s] COPD, explaining that [Jeffrey] could not maintain pace and persistence because he
required breaks every 15 minutes due to his COPD, which is entirely inconsistent with the
medical evidence.” Id. (citing 677).
C.

Analysis
Jeffrey first argues that ALJ Peltzer’s RFC assessment is unsupported by substantial

evidence because she did not accord proper weight to Dr. Stjepanovic’s treating source medical
opinion. See Pl.’s Br. 16–19. Medical opinions are statements from “acceptable medical
sources,” such as physicians, that reflect the source’s judgments about the nature and severity of
the claimant’s impairment, including his symptoms, diagnosis and prognosis, functional
limitations, and remaining abilities. 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). The ALJ must
adequately explain the weight afforded to each medical opinion in the claimant’s record, taking

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into account relevant factors such as the nature and extent of the physician’s treatment
relationship with the claimant; how well the physician explained or supported the opinion; the
opinion’s consistency with the record as a whole; and whether the opinion pertains to the
physician’s area of specialty. Id. §§ 404.1527(c), 416.927(c).
Jeffrey argues that ALJ Peltzer misapplied the “treating physician rule,” see Pl.’s Br. 15–
19, which sets out a special standard for ALJs to evaluate medical opinions from physicians who
are “likely to be the medical professionals most able to provide a detailed, longitudinal picture”
of the claimant’s impairments, 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). A treating source’s
medical opinion is “entitled to controlling weight if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); see 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). If the ALJ does not give a treating source medical opinion
controlling weight, then she must consider the five regulatory factors “to determine what lesser
weight should instead be accorded the opinion.” Brown, 873 F.3d at 256; see 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). “The regulation promises that the ALJ ‘will always give good
reasons in [the] decision for the weight’” assigned to a “‘treating source’s medical opinion.’”
Brown, 873 F.3d at 256 (quoting 20 C.F.R. § 404.1527(c)(2)).
Jeffrey also objects that the ALJ gave greater weight to the DDS physicians’ opinions,
even though they did not examine him. An ALJ may rely on a non-examining source’s medical
opinion
[W]here that opinion has sufficient indicia of “supportability in the form of a highquality explanation for the opinion and a significant amount of substantiating
evidence, particularly medical signs and laboratory findings; consistency between
the opinion and the record as a whole; and specialization in the subject matter of
the opinion.”

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Woods, 888 F.3d at 695 (quoting Brown, 873 F.3d at 268); see 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3). A reviewing court “must defer to the ALJ’s assignment of weight” among
differing medical opinions unless her underlying findings or rationale “are not supported by
substantial evidence” in the record. Dunn v. Colvin, 607 F. App’x 264, 271 (4th Cir. 2015); see
also Sharp v. Colvin, 660 F. App’x 251, 257 (4th Cir. 2016).
ALJ Peltzer recognized the treating relationship between Jeffrey and Dr. Stjepanovic. R.
32. She did not summarily reject Dr. Stjepanovic’s opinion, but gave three reasons for assigning
his opinion “limited weight”: (1) “Dr. Stjepanovic did not explain why [Jeffrey] would be
expected to miss 3–4 days of work per month”; (2) “his opinion extended back to 2010, even
though he did not start treating [Jeffrey] until September 2014”; and (3) “the severe limitations in
standing and walking [were] inconsistent with the medical evidence, which reveal[ed] normal
physical examinations, and that [Jeffrey] walks with a normal gait.” R. 31–32 (citing R. 345,
573, 620). Jeffrey objects only to the third reason, asserting that ALJ Peltzer “mischaracterized
the quality and nature” of his “subjective complaints, the examination findings, and the available
imaging studies.” Pl.’s Br. 17.
Dr. Stjepanovic’s opinion that Jeffrey could sit and stand/walk for six hours each in an
eight-hour workday, frequently lift and carry ten pounds, and occasionally lift twenty pounds, R.
466–67, matched ALJ Peltzer’s RFC findings that Jeffrey was restricted to “light” work, R. 29,
31, 103. See SSR 83-10, 1983 WL 31251, at *5–6 (noting that light work typically requires a
total of six hours of standing and/or walking during a normal eight-hour workday). The only
portion of the assessment that was arguably inconsistent with “light work” was Dr. Stjepanovic’s
opinion that Jeffrey could stand/walk for thirty minutes at a time. R. 466. ALJ Peltzer rejected
this “severe limitation[]” because it was “inconsistent with the medical evidence, which

15

reveal[ed] normal physical examinations, and that [Jeffrey] walks with a normal gait.” R. 32
(citing R. 345, 573, 620). In December 2013, Jeffrey’s gait was “normal.” R. 345. In 2016,
Jeffrey’s physical exams showed normal strength, no issue with straight leg raising, and a normal
gait. See R. 566, 573, 620.6 The weight ALJ Peltzer assigned Dr. Stjepanovic’s treating source
medical opinion and the portion of his assessment that she rejected are supported by substantial
evidence in the record and survive the “deferential standard of review.” Dunn, 607 F. App’x at
271. See, e.g., R. 27 (Jeffrey “is able to ambulate effectively”), R. 566, 573, 620.
Jeffrey also argues that ALJ Peltzer gave the DDS reviewers opinions’ more weight than
Dr. Stjepanovic’s treating source medical opinion. Pl.’s Br. 19. Contrary to Jeffrey’s suggestion,
ALJ Peltzer afforded the DDS reviewers’ opinions only “partial weight,” and does not appear to
have given the DDS reviewers’ opinions’ more weight than Dr. Stjepanovic’s opinion. In fact,
ALJ Peltzer discounted large portions of the DDS reviewers’ opinions, further limiting Jeffrey
from medium to light work, “occasional stairs and ramps, [and] kneeling, crouching, and
crawling,” and “no ladders, ropes, and scaffolds.” R. 29, 31.
In his brief, Jeffrey cites numerous examples of when he reported back, knee, and hip
pain and tenderness to his doctors, which he believes contradicts the ALJ’s characterization of
these “normal” physical examinations. See Pl.’s Br. 17–18 (citing R. 379, 402–05, 414–15, 417,
453–59, 483, 565, 572–73, 589–601, 603–07, 665–68, 670). A doctor’s documentation of a
patient’s subjective complaints in the treatment notes, however, “does not transform those
complaints into clinical evidence.” Riegel v. Colvin, No. 7:12cv526, 2014 WL 462525, at *6
(W.D. Va. Feb. 5, 2014); Webb v. Astrue, 2:11cv103, 2012 WL 3061565, at *17 (N.D. W. Va.
June 21, 2012) (citing Craig, 76 F.3d at 590 n.2). “[G]iven the specific and legitimate reasons

6

The treatment notes contain few objective observations and signs, but those that were noted are largely
normal.

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provided, the ALJ was permitted to reject,” Bishop v. Comm’r of Soc. Sec., 583 F. App’x 65, 67
(4th Cir. 2014), the portion of Dr. Stjepanovic’s opinion that Jeffrey had “severe limitations” in
standing and walking at one time, R. 32.
Jeffrey also argues that ALJ Peltzer’s mental RFC determination is unsupported by
substantial evidence because she “failed to afford appropriate weight to the licensed nurse
practitioner, Nancy Hussar, the only treating opinion in the record addressing [Jeffrey’s] mental
impairments.” Pl.’s Br. 20–21, 23–24. ALJ Peltzer gave NP Hussar’s opinion “partial” weight
because she was “not an acceptable medical source,” the record consistently showed normal
mental examinations, and her most extreme limitations were based on Jeffrey’s COPD, which
was inconsistent with the medical evidence. R. 32 (citing R. 379, 430, 459, 494, 543, 586, 607,
634, 668, 677). “Only ‘acceptable medical sources’ can be considered treating sources” whose
opinions may be entitled to controlling weight. SSR 06-3p, 2006 WL 2329939, at *2 (Aug. 9,
2006). Nurse practitioners are not “acceptable medical source[s],” but their opinions “are
important and should be evaluated on key issues such as impairment severity and functional
affects, along with other evidence in the file.” Id. at *2–3; see also 20 C.F.R. §§ 404.1513(d),
416.913(d).
ALJ Peltzer acted within her discretion to determine that portions of NP Hussar’s opinion
were inconsistent with the medical evidence and therefore her opinion should be afforded only
“partial” weight. She did credit portions of NP Hussar’s opinion. She limited Jeffrey to
“unskilled work at an SVP 1 or 2 involving simple, routine tasks,”7 R. 29, which reasonably
accommodated Jeffrey’s limitations in understanding, remembering, and carrying out detailed

“Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the
job in a short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a). “Unskilled occupations are the least
complex types of work. Jobs are unskilled when persons can usually learn to do them in 30 days or less.”
SSR 82-41, 1982 WL 31389, at *2 (Jan. 1, 1982).
7

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instructions and his ability to remember work-like procedures, R. 660. She also limited Jeffrey to
“no contact with the general public and occasional contact with supervisors and coworkers with
no tandem work assignments,” R. 29, which reasonably accommodated Jeffrey’s limitation in his
ability to work with others without distractions, R. 105, 121, 661.
ALJ Peltzer rejected the “extreme” limitation in Jeffrey’s ability to accept instructions
and criticism from supervisors because it was “inconsistent with the [objective] medical
evidence,” which revealed “normal mental examinations.” R. 32 (citing R. 379, 430, 459, 494,
543, 586, 607, 634, 668); see R. 661. The ALJ’s decision is reasonable because the records show
that Jeffrey was “pleasant” and always “cooperative” at his mental examinations and did not
report having serious difficulty with supervisors and authority figures. See R. 434, 444, 471, 483,
610, 617, 634, 639, 644, 653. ALJ Peltzer also rejected the “extreme” limitations in Jeffrey’s
sustained concentration and persistence because they were “entirely inconsistent with the
medical evidence.” R. 32 (citing R. 677); see R. 660–61. The ALJ’s decision is reasonable
because the records show that although Jeffrey exhibited perseveration and tangential thoughts at
times, R. 498, 610, 639, his thought processes were always “logical/organized,” he had “intact”
memory in all spheres, and “appropriate” cognition. See R. 380 427, 471, 479, 483, 488, 586,
610, 617, 634, 639, 644, 653, 671. Moreover, NP Hussar based these limitations on Jeffrey’s
COPD, but offered no psychologically based medical or clinical evidence to support her opinion.
R. 661. It is entirely reasonable for the ALJ to reject NP Hussar’s extreme mental limitations
because she supported her opinion with evidence of a physical condition. Cf. Tyrpak v. Astrue,
858 F. Supp. 2d 872, 885 (N.D. Ohio 2012) (upholding the ALJ’s decision to discount a treating
psychiatrist’s opinion “because it stemmed largely from Plaintiff’s physical condition rather than
from psychiatric/psychological conditions, which was Dr. Ranjan’s area of expertise.”). Having

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provided logical reasons, ALJ Peltzer’s rejection of these extreme limitations is supported by
substantial evidence in the record and survives the “deferential standard of review.” El v. Colvin,
No. 3:12cv637, 2013 WL 3446654, at *5–6 (W.D.N.C. July 9, 2013). The ALJ “met [her]
burden of explanation by clearly stating that [she] gave” partial weight to NP Hussar’s opinion
because it was not consistent with the medical record. “Accordingly, the Court finds that the ALJ
properly considered [NP Hussar’s] opinions and provided appropriate explanation regarding why
[she] accorded her opinion[]” partial weight. El, 2013 WL 3446654, at *5.
Jeffrey further argues that ALJ Peltzer erred in affording Dr. McClain’s opinion more
weight than that of NP Hussar’s. Dr. McClain opined that Jeffrey had “moderate” limitations in
his ability to sustain concentration and pace because of his “anxiety and depression,” but that he
would be able to perform simple routine tasks. R. 105, 121. She also opined that Jeffrey had
“moderate” limitations in social interaction abilities because his “anxiety and depression would
limit him to work with modest social demands.” R. 105, 121. ALJ Peltzer gave Dr. McClain’s
opinion “great weight” because she “is familiar with the Social Security program and [her]
opinion is consistent with the medical evidence of the record and the normal mental
examinations throughout the period at issue.” R. 31 (citing 379, 430, 459, 494, 543, 586, 607,
634, 668). She limited Jeffrey to “unskilled work at an SVP 1 or 2 involving simple, routine
tasks with no contact with the general public and occasional contact with supervisors and
coworkers, with no tandem work assignments,” which is consistent with Dr. McClain’s
assessment of Jeffrey’s limitations. R. 29. ALJ Peltzer acted within her discretion to give “great
weight” to Dr. McClain’s opinion because she “provide[d] supporting explanations” for her
opinion and her opinion was consistent “with the record as a whole.” 20 C.F.R. §§
404.1527(c)(3)–(4), 416.927(c)(3)–(4). As discussed above, the ALJ reasonably determined that

19

exam findings were mostly normal, and where signs of moderate limitations were noted, such as
in interacting with others, the ALJ reasonably accommodated those limitations. Thus, the ALJ’s
reliance on Dr. McClain’s opinion is supported by substantial evidence.
ALJ Peltzer stated that she considered the entire record when she determined that Jeffrey
was capable of light, unskilled work with some additional limitations. R. 29. “[A]bsent evidence
to the contrary, [I] take her at her word.” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th
Cir. 2014). Jeffrey does not identify any reversible error in ALJ Peltzer’s RFC analysis or “point
to any specific piece of evidence not considered by the [ALJ] that might have changed the
outcome of [his] disability claim.” Id. (emphasis omitted). Instead, he urges the Court to reweigh
the same medical exhibits that ALJ Peltzer considered, R. 27–30, and to conclude that the ALJ
should have found him disabled by back pain and anxiety and depression. See generally Pl.’s Br.
17–18, 22–23 (citing R. 403–05, 415, 453–59, 483, 488–99, 565, 572–74, 586, 589–601, 603–
06, 610, 617, 634, 639, 653 665–668, 670). The Court’s role here is “to determine whether the
ALJ’s decision is supported as a matter of fact and law.” Keene v. Berryhill, 732 F. App’x 174,
177 (4th Cir. 2018). It “cannot simply look at the same evidence and reverse the ALJ on the basis
that it could have reached a different result.” Carr v. Berryhill, No. 6:16cv10, 2017 WL
4127662, at *5 (W.D. Va. Sept. 18, 2017). ALJ Peltzer’s decision and rationale are supported by
substantial evidence and therefore the decision should be affirmed.
IV. Conclusion
For the foregoing reasons, the Court will GRANT the Commissioner’s Motion for
Summary Judgment, ECF No. 21, 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 copies of this Memorandum Opinion to the parties.

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ENTER: September 30, 2019

Joel C. Hoppe
United States Magistrate Judge

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