Price v. Colvin
Filing
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MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 8/16/18. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
LEONA DIANNE PRICE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.
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AUG 16 2018
Case No. 4:16-cv-00062
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge
Before me is the Report and Recommendation (“R&R”) of the United States Magistrate
Judge recommending that I grant the Commissioner’s Motion for Summary Judgment [ECF No.
16]. The R&R was filed on February 14, 2018 [ECF No. 18], and Plaintiff Leona Dianne Price
filed objections on February 27 [ECF No. 19]. The Commissioner responded [ECF No. 20], and
the matter is now ripe for review.
See Fed. R. Civ. P. 72(b).
After careful review and
consideration, and for the reasons stated below, I will overrule Plaintiff’s objections and grant
the Commissioner’s Motion for Summary Judgment.
I.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On January 2, 2013, Plaintiff filed an application for a period of disability and disability
insurance benefits pursuant to Title II of the Social Security Act (“the Act”) and supplemental
security income pursuant to Title XVI of the Act. See 42 U.S.C. §§ 401–33; 1381–1383f (2016).
(R. 235–251.) In her application, Plaintiff alleged that she had been disabled since February 2,
2012, due to a combination of depression, diabetes, arthritis, nerve damage, neuropathy,
herniated disc in her neck, high blood pressure, and high cholesterol. (See, e.g., R. 127.)
The Commissioner denied Plaintiff’s claims initially on July 30, 2013, and again upon
reconsideration on January 8, 2014. (See R. 103–154.)
Plaintiff requested a hearing before an Administrative Law Judge and, on May 13, 2015,
Plaintiff appeared with her attorney before Administrative Law Judge Brian Kilbane (“the
ALJ”). (R. 43–79.) Both Plaintiff and a vocational expert, Gerald K. Wells, testified. (Id.) In a
written decision dated June 24, 2015, the ALJ determined that Plaintiff was not disabled within
the meaning of the Act. (See generally R. 36–50.) He found that Plaintiff suffered from spine
disorders and obesity, both of which qualified as serious impairments. (R. 15 (citing 20 C.F.R.
§§ 404.1520(c) & 416.920(c)).) The ALJ found that Plaintiff did not have an impairment or
combination or impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. 41 (citing 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 & 416.926).)
After consideration of the entire Record, the ALJ concluded that Plaintiff had the residual
functional capacity to perform the full range of medium work as defined in 20 C.F.R. §§
404.1567(c) & 416.967(c), without limitation. (See R. 41–48.) The ALJ also determined that
Plaintiff was capable of performing past relevant work as a gluer, fast food worker, and textile
worker/sewing machine operator, and that her past relevant work did not require the performance
of work-related activities that the ALJ determined were precluded by Plaintiff’s residual
functional capacity. (R. 48–49 (citing 20 C.F.R. §§ 404.1565 & 416.965.) Alternatively, the
ALJ determined that, even if Plaintiff could not perform her past relevant work, she would be
able to perform jobs that exist in the national economy, such as dietary aid, cleaner, and hand
packager. (R. 49.) Accordingly, the ALJ concluded that Plaintiff was not disabled within the
meaning of the Act. (R. 49.) The Appeals Council permitted Plaintiff to submit additional
medical records in support of her claim (see R. 8–24), but denied Plaintiff’s request for review
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(R. 1–4). The decision of the ALJ became the final decision of the Commissioner on October
20, 2016. (Id.)
On December 22, 2016, Plaintiff filed suit in this Court to challenge the final decision of
the Commissioner. (Compl. [ECF No. 2].) Pursuant to 28 U.S.C. § 636(b)(1)(B), I referred the
case to the United States Magistrate Judge for consideration. The Commissioner filed a Motion
for Summary Judgment on July 24, 2017. (See Mot. Summ. J., July 24, 2017 [ECF No. 16].) On
February 14, 2018, Judge Hoppe filed his Report and Recommendation (“R&R”), recommending
that I grant the Commissioner’s motion for summary judgment and affirm the decision of the
Commissioner. (R&R, Feb. 14, 2018 [ECF No. 18].) On February 27, Plaintiff filed her
objections to the R&R. (Pl.’s Obj., Feb. 27, 2018 [ECF No. 19].) The Commissioner responded
on February 28 [ECF No. 20], so the matter is now ripe for review.
II.
STANDARD OF REVIEW
Congress has limited the judicial review I may exercise over decisions of the Social
Security Commissioner. I am required to uphold the decision where: (1) the Commissioner’s
factual findings are supported by substantial evidence; and (2) the Commissioner applied the
proper legal standard. See 42 U.S.C. § 405(g) (2014); Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). The Fourth Circuit has long defined substantial evidence as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
other words, the substantial evidence standard is satisfied by producing more than a scintilla but
less than a preponderance of the evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966).
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The Commissioner is charged with evaluating the medical evidence and assessing
symptoms, signs, and findings to determine the functional capacity of the claimant. 20 C.F.R.
§§ 404.1527–404.1545 (2014); see Shively v. Heckler, 739 F.2d 987, 990 (4th Cir. 1984) (noting
that it is the role of the ALJ, not the vocational expert, to determine disability). The Regulations
grant the Commissioner latitude in resolving factual inconsistencies that may arise during the
evaluation of the evidence. 20 C.F.R. §§ 404.1527, 416.927 (2014). Unless the decision lacks
substantial evidence to support it, the ultimate determination of whether a claimant is disabled is
for the ALJ and the Commissioner. See id. §§ 404.1527(e), 416.927(e); Walker v. Bowen, 834
F.2d 635, 640 (7th Cir. 1987). If the ALJ’s resolution of the conflicts in the evidence is
supported by substantial evidence, then I must affirm the Commissioner’s final decision. Laws,
368 F.2d at 642. In reviewing the evidence, I must not “undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute [my] judgment for that of the Secretary,”
Mastro, 270 F.3d at 176 (quoting Craig, 76 F.3d at 589), or the secretary’s designate, the ALJ,
Craig, 76 F.3d at 589 (quoting Walker, 834 F.2d at 640).
III.
DISCUSSION
Plaintiff raises two objections to the R&R. First, she argues that the Magistrate Judge
erroneously concluded that the ALJ properly considered her upper extremity impairments.
Second, she contends that it was error for the Magistrate Judge to make an independent
evaluation of Dr. Owusu-Yaw’s records, and that those records lend support for previously
unidentified impairments and undermines the ALJ’s credibility determination. Her objections
will be addressed in turn.
Turning to Plaintiff’s upper extremity impairments, specifically carpal tunnel syndrome
(“CTS”), Plaintiff asserts that “[n]ot once is carpal tunnel syndrome mentioned in the ALJ’s
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decision, in the two opinions provided by state agency medical consultants, initially or on
reconsideration, or in the opinion provided by the consultative examiner.” (Pl.’s Obj. pg. 2 [ECF
No. 19].)
I must take issue with Plaintiff’s characterization of this objection.
The first
“diagnosis” cited by Plaintiff is not a diagnosis at all. Her treating physician, Dr. Herman,
remarked on March 22, 2011, that there was “possible” CTS in both hands. (R. 389.) After
testing, Dr. Lobar with Southside Neurology concluded:
There is no evidence for underlying peripheral neuropathy in the
upper extremities. Also despite clinically the patient having
evidence for recent left distal radial sensory neuropathy, this nerve
tests normally . . . .
(R. 383.) This test occurred prior to Plaintiff’s alleged disability onset date. (See R. 128
[alleging a disability onset date of February 2, 2012, nearly eleven months later).
The second diagnosis, from Dr. Owusu-Yaw, occurred after the ALJ issued his opinion.
(Compare R. 647 [Dr. Owusu-Yaw’s findings, dated August 20, 2015], with R. 50 [opinion of
the ALJ, dated June 24, 2015].) This medical evidence was not before the ALJ for consideration,
and discussion of Dr. Owusu-Yaw’s opinion is appropriately considered in Plaintiff’s second
objection.
But more fundamentally, to the point Plaintiff makes, Plaintiff overlooks the ALJ’s
consideration of the symptoms she attributes to CTS. For example, the consultative examiner,
Dr. Darko, noted that Plaintiff’s grip strength was 5/5 bilaterally, and that Plaintiff was “able to
touch thumb to all fingertips on both hands, make a fist, pick up coins from a flat surface, cap
and uncap a bottle.” (R. 478.) Dr. Darko further concluded Plaintiff had “[n]o limitations in
reaching, feeling, fingering or handling.” (R. 479.) The ALJ cited Dr. Darko’s opinion as
“balanced, thorough, and objective, and [as] consistent with the other objective findings in the
record.” (R. 47.)
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On review, I am tasked with determining whether there is substantial evidence to support
the ALJ’s decision. See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While it is true
that the ALJ never specifically mentioned Plaintiff’s presumed CTS, what is clear is that he
considered evidence that Plaintiff had no limitations in her hands; Dr. Darko concluded as much,
and his opinion was accepted by the ALJ. Although the term CTS was not used, there is
sufficient evidence to show that Plaintiff’s CTS, even if diagnosed and cited by the ALJ, was not
a limiting factor, and thus was properly excluded from her residual functional capacity (“RFC”)
by the ALJ.
Plaintiff also objects to the fact that certain diagnostic testing indicative of CTS were
omitted from the ALJ’s discussion. As stated above, the only diagnostic test indicating “mild”
CTS occurred after the ALJ’s decision was entered.
To Plaintiff’s point, however, while it is not ideal from the standpoint of a reviewing
court to omit a full recitation of the evidence the ALJ considered, the ALJ did state that the entire
record was considered. (R. 38.) The Fourth Circuit has concluded that, absent evidence to the
contrary, an ALJ’s assertion that he considered all the evidence is sufficient to establish that
evidence was considered. See Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)
(citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)).
Therefore, the law
establishes that the ALJ considered all the medical evidence, and Plaintiff has not offered any
evidence to establish otherwise.
At its core, Plaintiff’s objection is nothing more than a disagreement as to the ALJ’s
conclusion of her RFC. It is not my job, on review, to reweigh the evidence. There is substantial
evidence in the record to exclude the effects of Plaintiff’s CTS—even if diagnosed—from her
RFC, as evidence supports the conclusion that she had no manipulative limitations in her hands.
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As a corollary, Plaintiff objects to the ALJ’s failure to include manipulative limitations in
her hands in the hypothetical RFC posed to the vocational expert. As discussed above, there is
substantial evidence in the Record to justify not including such limitations in the RFC.
Therefore, failing to include limitations not supported by the evidence was not error on the part
of the ALJ. Cf. Hines v. Barnhart, 453 F.3d 559, 566 n.5 (4th Cir. 2006) (“In order to formulate
an opinion, the vocational expert must assume as true the RFC determined by the ALJ.”
(emphasis added)).
Plaintiff’s second objection addresses a failing in her first; she contends the Magistrate
erred in independently evaluating Dr. Owusu-Yaw’s opinion (specifically, that Plaintiff suffered
from CTS bilaterally (R. 652)), and that Dr. Owusu-Yaw’s constitutes new evidence that requires
remand for the ALJ to consider.
A claimant may present “new and material evidence” to the Appeals Council for
consideration. “Evidence is new if it is not duplicative or cumulative; it is material if there is a
reasonable possibility that it would have changed the outcome of the Commissioner’s decision.”
Brown v. Comm’r of Soc. Sec., 969 F. Supp. 2d 433, 446 (W.D. Va. 2013) (citing Meyer v.
Astrue, 662 F.3d 700, 704–05 (4th Cir. 2011)). “New evidence . . . is only material if it creates a
reasonable possibility that, upon review of the evidence, the Commissioner would change the
outcome of his decision—that is, find the claimant disabled and award benefits. Remand is not
warranted simply because new evidence might change particular elements of the ALJ’s decision.
The critical inquiry is whether the conclusion itself could be changed.” Id. at 447. Here,
although Dr. Owusu-Yaw is the first physician to diagnose Plaintiff with CTS, albeit “mild”
CTS, nothing in his records indicate a greater limitation on Plaintiff than identified by the ALJ.
As Dr. Darko stated in his opinion, an opinion afforded “great weight” by the ALJ, Plaintiff did
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not suffer from any manipulative limitations. (R. 479.) Plaintiff does not point to anything in
Dr. Owusu-Yaw’s records that calls that determination into question. Rather, all Plaintiff can
point to is a diagnosis of “mild” CTS. At most, then, Plaintiff’s records indicate that she has
“mild” CTS that does not limit her. Without more, I cannot say that the ALJ’s conclusion would
be different had he considered that Dr. Owusu-Yaw diagnosed her with CTS. He may have
concluded that Plaintiff’s CTS is a non-severe impairment, but without a change to her
limitations as stated in the ALJ’s RFC, “there is not a reasonable possibility it would change the
outcome of the Commissioner’s decision.” Brown, 969 F. Supp. 2d at 446. Accordingly, the
Magistrate properly concluded that Dr. Owusu-Yaw’s opinion is not material and does not
warrant remand.
IV.
CONCLUSION
The Magistrate did not err in his determination that Plaintiff’s upper extremity limitations
were properly considered, and he did not err in determining that Dr. Owusu-Yaw’s diagnosis of
mild CTS did not warrant remand. Accordingly, Plaintiff’s objections will be overruled, the
R&R will be adopted in its entirety, and judgment will be entered for the Commissioner.
The Clerk is directed to send a copy of this Memorandum Opinion and the accompanying
Order to all counsel of record as well as to Magistrate Judge Hoppe.
ENTERED this 16th day of August, 2018.
s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE
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