Propst v. Astrue
Filing
23
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 9/23/2013. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
ANGELA S. PROPST,
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Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Civil Action No.: 5:12cv089
By: Hon. Michael F. Urbanski
United States District Judge
Defendant.
MEMORANDUM OPINION
This social security disability appeal is before the court for review of the Report and
Recommendation issued in this case by the magistrate judge on May 10, 2013, in which it is
recommended that plaintiff Angela Propst’s (“Propst”) motion for summary judgment be granted
in part, that the Commissioner’s motion for summary judgment be denied, and that this matter be
remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration. The
magistrate judge agrees with the position taken by Propst on appeal that the Administrative Law
Judge (“ALJ”) erred in his determination at step two of the sequential analysis that Propst’s arm
and shoulder impairments are not severe. Moreover, the magistrate judge reasons that such error
is not harmless because the ALJ did not adequately consider the combined impact of Propst’s
impairments in determining her residual functional capacity later in the sequential analysis. The
Commissioner has filed an objection to the Report and Recommendation pursuant to Federal
Rule of Civil Procedure 72(b).
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
Federal Rule Civil Procedure 25(d), Carolyn W. Colvin should be substituted for Michael J. Astrue as the defendant.
1
The court has reviewed the magistrate judge’s report, the objections to the report, and the
pertinent portions of the administrative record and, in so doing, made a de novo determination of
those portions of the report to which the Commissioner objected. For the reasons set forth
below, the magistrate judge’s recommendation will be rejected in its entirety and the
Commissioner’s decision affirmed.
I.
The Commissioner denied Propst’s May 12, 2009 disability application initially on
October 5, 2009, and again on reconsideration. An administrative hearing was held on
November 3, 2010. In a decision issued February 15, 2011, the ALJ determined that Propst is
capable of performing jobs that exist in significant numbers in the national economy and is
therefore not disabled.
The Commissioner uses a five-step process to evaluate whether a claimant is disabled.
See 20 C.F.R. § 404.1520(a)(4). If a claimant is found not to be disabled at any step prior to the
final step, the evaluation is to stop. Id. At step one of the sequential evaluation, the ALJ
determines whether the claimant has engaged in “substantial gainful activity” since the alleged
disability onset date.2 Propst worked from 2004 to 2008, as well as during the first few months
of 2010, until her position was discontinued. Her income earned in 2008 from her employment
with H&R Block was $20,091.09, R. 22, well above the level of substantial gainful activity
(which in 2008 was $940 per month or more in gross earnings). See 20 C.F.R. § 404.1574(b)(2);
Substantial Gainful Activity, The Official Website of the U.S. Social Security Administration
2
“Substantial work activity” is “work activity that involves doing significant physical or mental activities,” and
“gainful work activity” is work that is usually done for pay or profit, whether or not such profit is realized. 20
C.F.R. § 404.1572(b). A presumption arises that a claimant is able to engage in substantial gainful activity where
her earnings exceed a specific level set out under 20 C.F.R. § 404.1574(b)(2). However, “[t]his presumption of
substantial gainful activity is not to be rigidly applied, and it may be rebutted.” Payne v. Sullivan, 946 F.2d 1081,
1083 (4th Cir. 1991).
2
(September 10, 2013, 2:55 PM), http://www.ssa.gov/OACT/cola/sga.html. The ALJ noted
Propst’s significant 2008 earnings, as well as the state agency’s recommendation that she amend
her onset date to June 2008 so that the work later in 2008 might constitute an unsuccessful work
attempt under 20 C.F.R. § 404.1574(c). R. 22. Nevertheless, the ALJ gave Propst “the
maximum benefit [of the doubt]” and determined she had not engaged in substantial gainful
activity since her alleged onset date in December of 2003. R. 22-23.
At step two, the ALJ determined that Propst’s degenerative disc disease and affective
disorder were severe impairments either singly or in combination.3 R. 23. Considering these
impairments, the ALJ found that Propst retained the residual functional capacity (RFC) to
perform less than a full range of light work, specifically finding that Propst is limited in her
ability to sustain attention and concentration or to work in coordination with others without being
distracted, and can never climb ladders, ropes, or scaffolds, or be exposed to hazards. From a
mental standpoint, the ALJ found that Propst can tolerate interaction with coworkers and
supervisors as needed for task completion, but can handle work involving only short and simple
instructions and minimal contact with the public. R. 32. Based on this RFC, the ALJ determined
at step four of the sequential evaluation process, see 20 C.F.R. § 404.1520(a)(4), that Propst
could not perform her previous work as a data control operator, office manager/secretary, or tax
preparer.4 Nonetheless, the ALJ determined at step five of the sequential evaluation process that
there are other jobs that exist in significant numbers in the national economy that Propst can
3
A severe impairment is any impairment or combination of impairments which significantly limits a claimant’s
physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1520(c). Disabling impairments must
either result in death or last or be expected to last for a continuous period of at least twelve months. See 20 C.F.R.
§ 404.1509; SSR 82-52.
4
Propst’s previous job as a data control operator is classified as skilled and light work as generally performed, but
sedentary as she performed it. Her job as an office manager/secretary is also generally classified as skilled and light
work, but heavy as she performed it. Her previous job as a tax preparer is classified as semi-skilled and sedentary
both generally and as she performed it. See R. 32.
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perform, such as appointment clerk, file clerk, and office helper, all of which are classified as
light work within the bounds of her determined limitations. Thus, the ALJ concluded that Propst
is not disabled under the Social Security Act. The Appeals Council denied Propst’s request for
review and this appeal followed.
II.
The Commissioner is charged with evaluating the medical evidence and assessing
symptoms, signs, and medical findings to determine the functional capacity of the claimant.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). It is not the province of a federal court to
make administrative disability decisions. The court’s job is to determine whether substantial
evidence supports the Commissioner’s disability decision. To that end, the court may neither
undertake a de novo review of the Commissioner’s decision nor re-weigh the evidence of record.
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). Judicial review of disability cases is limited
to determining whether substantial evidence supports the Commissioner’s conclusion that the
plaintiff failed to meet her burden of proving disability. See Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966). Evidence is substantial when, considering the record as a whole, it might be
deemed adequate to support a conclusion by a reasonable mind, Richardson v. Perales, 402 U.S.
389, 401 (1971), or when it would be sufficient to refuse a directed verdict in a jury trial. Smith
v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). Substantial evidence is not a “large or considerable
amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), but is more than
a mere scintilla and somewhat less than a preponderance. Perales, 402 U.S. at 401. If the
Commissioner’s decision is supported by substantial evidence, it must be affirmed. 42 U.S.C.
§ 405(g); Perales, 402 U.S. at 401.
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III.
Propst argues that the ALJ erred by: (1) not considering her arm injury a severe
impairment at step two; (2) giving insufficient weight to the opinions of her treating physicians;
and (3) finding that she was capable of performing light work. (Pl.’s Mem. in Supp. of Summ.
J., Dkt. # 15, at 11-19.) The court rejects each of these arguments, for the reasons set forth
below.
A.
In his Report and Recommendation, the magistrate judge agreed with Propst’s argument
that the ALJ erred by not considering her arm injury a severe impairment at step two. The
magistrate judge held:
[W]hile a part of plaintiff’s radiating pain in her shoulder and upper extremities is
likely a result of her degenerative disc disease, plaintiff also has independent arm
and shoulder impairments for which she has received surgery on several
occasions. From the time of her fall in December 2003 through 2005, a large
portion of plaintiff’s complaints concerned pain and limitations in her use of her
elbow and shoulder, requiring such surgery as an open reduction internal fixation
in December 2003 and right ulnar nerve anterior submuscular transposition in
July 2005. From 2006, there is imaging evidence of a tendon tear, tendinopathy,
and mild degenerative changes in her elbow with an olecranon and coronoid
osteophyte and a possible hairline radial head fracture, for which plaintiff’s
treatment providers performed right shoulder arthroscopy, subacromial
decompression, and distal clavicle excision sometime around September 2006 and
surgery on her elbow in September 2008. While plaintiff’s condition often
improved following therapy and surgery, the undersigned is hard pressed to
imagine that her impairments did not cause her more than minimal functional
limitations. 20 C.F.R. § 416.924; SSR 96-3p (July 2, 1996). Moreover, there is
good evidence that these fall related injuries and impairments lasted for a
continuous period of twelve months duration or greater. 20 C.F.R. § 404.1509. It
is the undersigned’s view that the [ALJ]’s severity determination at Step 2 of the
sequential analysis is not supported by substantial evidence.
Report & Recommendation, Dkt. # 20, at 12.
This conclusion by the magistrate judge disregards the appropriate standard of review in
social security cases and constitutes an impermissible reweighing of the substantive disability
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evidence. Viewed under the correct standard of review, the court is compelled to conclude that
substantial evidence supports the ALJ’s finding that Propst’s arm impairment was not severe, as
well as his consideration of her arm and shoulder pain as primarily symptomatic of her
degenerative disc disease.
The ALJ’s treatment of Propst’s arm pain as an aspect of her degenerative disc disease is
consistent with the way that all of her treating physicians approached her arm impairment. Dr.
Christopher John, her treating physician at Roanoke Orthopaedic Clinic, noted in January of
2006 that he thought her “elbow symptomatology ha[d] actually improved” and that “most of her
pain she is having is neurogenic-type pain.” R. 488. She underwent cervical spine surgery on
February 9, 2006. On March 20, 2006, Dr. John noted that, following her surgery, Propst’s
radiating pain from her shoulder into her fingers was gone, that she had “great motion” in her
right elbow despite subjective reports of pain. R. 483. Dr. John further noted that although there
was “[s]ome concern of a hairline fracture of the radial head[,] I never really saw any evidence of
this.” R. 483-84. On June 11, 2009, Dr. J. Michael Syptak diagnosed Propst with bipolar
disorder, neck pain, back pain, and arthritis. When describing Propst’s symptoms, he described
neck pain, back pain, migraine headaches, and fatigue. Dr. Syptak did not separate Propst’s arm
pain from her neck and back problems. R. 712. While he did find her “incapable of even low
stress jobs,” and suggested a lifting restriction of ten pounds or less, he attributed his finding of
disability and according limitations to the diagnoses and symptoms listed. R. 713-14.
There is also substantial evidence that, insofar as Propst’s arm and shoulder impairments
may have posed significant limitations on her physical ability to do basic work activities, such
limitations never persisted for twelve months. For instance, in May of 2005, two months after a
March 2005 MRI showed a possible rotator cuff tear in her right shoulder (noted by the
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magistrate judge), Dr. John nevertheless noted that Propst had “excellent rotator cuff strength”
and that her load and shift testing was normal. R. 496. Propst continued to have pain due to
ulnar nerve problems in her right arm, but these problems did not interfere with her strength,
range of motion, or ability to lift, and were alleviated by her July 2005 right ulnar nerve anterior
submuscular transposition surgery. Within six weeks of that surgery, all the numbness and
tingling she had previously experienced in her arm was completely gone and she had almost all
of her motion back. R. 491. Twelve weeks out of that surgery, while she did have continuing
complaints of pain in her right trapezial area, Dr. John noted that “I think a lot of the pain she has
in her neck and trapezial area could be referred from the C-spine,” R. 490, further supporting the
ALJ’s treatment of her shoulder pain as conjunctive with her degenerative disc disease. By July
of 2006, Propst had a full elbow range of motion, R. 546, and an EMG and nerve conduction
study performed on her right arm the next month was unremarkable. R. 545. The following
month, in September of 2006, she underwent a right shoulder arthroscopy. Three months later,
Dr. John noted that she essentially retained full range of motion of her right elbow. With regard
to Propst’s shoulder Dr. John remarked that he did “not feel she needs any more formal therapy
from a shoulder standpoint, and I question whether she is compliant with a home exercise
program anyway.” R. 482. In May of 2007, Propst reported that while lifting caused a bit of
added pain, the pain had been somewhat alleviated by her neck surgery. On exam, she continued
to have full extension of her right elbow. R. 481. In September of 2008, she continued to have
issues with right arm pain and Dr. John stated that “[a]t this point, I think that I have done all that
I can do” and recommended she rely on pain management for her symptoms. Notably, her pain
was diagnosed as right arm neuralgia related to her cervical spine problems. R. 471.
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From April 2008 to May 2009, Propst received trigger point injections at Blue Ridge Pain
Centers from Dr. John Sherry for severe chronic headache, neck, and bilateral shoulder pain.
These injections almost always provided at least 70% relief for at least three days, R. 705, 701,
693-4, 692, 687, 683, 679, and often gave her 80-90% relief. R. 675, 692, 709. As of May 2009,
when Propst received her last trigger point injection and filed for disability, Dr. Sherry noted that
her chronic pain symptoms were acceptably managed and her functionality was maintained.
R. 675.
Propst also received Botox injections from Dr. Glenn Deputy for “unremitting bilateral
shoulder pain and cervical dystonia with intractable neck pain as well as intractable headache”
from January 2006 until July 2010. These injections also brought significant relief of her neck
and shoulder pain. In September 2008, Propst reported that “at times she obtains nearly 100%
relief after the injections.” R. 567. In September 2009, she reported obtaining 95% relief.
R. 1088. In May 2006, Dr. Deputy filled out a neurological evaluation for her first application
for disability benefits, in which he found that her strength in the upper extremities was 5/5 with
the exception of 4+/5 weakness in the right biceps. R. 660. Three months later, in August 2006,
he noted that the results of her upper extremity electrical testing were unremarkable in regards to
her right upper extremity. R. 659.
Considering the entirety of the record under the appropriate standard of review, it is plain
that there is substantial evidence to support the ALJ’s finding that Propst’s right arm and
shoulder impairments were not severe, as well as the finding that any limitations these
impairments posed did not last for twelve months or longer.
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B.
Propst next takes issue with the ALJ’s consideration of disability assessments submitted
by her two primary treating physicians, Drs. John Sherry and Michael Syptak. However, the
ALJ directly addressed the supporting medical evidence of her treating physicians and gave
reasons why he decided not to accord that evidence the same weight as other medical evidence.
Generally, a treating physician’s opinion is to be given controlling weight by the ALJ if it is
supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record. Mastro v. Apfel, 270 F.3d 171, 178
(4th Cir. 2001) (“[A] treating physician’s opinion on the nature and severity of the claimed
impairment 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.”). However, “[t]he treating physician rule is not
absolute. An ‘ALJ may choose to give less weight to the testimony of a treating physician if
there is persuasive contrary evidence.’” Hines v. Barnhart, 453 F.3d 559, 563 n.2 (4th Cir. 2006)
(quoting Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992) (per curiam)). In determining the
weight to give to a medical source’s opinion, the ALJ must consider a number of factors,
including whether the physician has examined the applicant, the existence of an ongoing
physician-patient relationship, the diagnostic and clinical support for the opinion, the opinion’s
consistency with the record, and whether the physician is a specialist. 20 C.F.R.
§§ 404.1527(d), 416.927(d).
The ALJ did not ignore Dr. Sherry or Dr. Syptak’s supporting medical documentation, as
Propst contends. Rather, he addressed their opinions as follows:
As for the opinion evidence, the undersigned notes that Michael Syptak, M.D., in
June 2009, and John Sherry, M.D., undated, submitted assessments endorsing that
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the claimant could sit no more than 2 hours total; stand/walk no more than 2 hours
total; and lift no more than 10 pounds. The undersigned cannot discern the basis
for such extreme limitations in the evidence of record. Post-hearing, the
claimant’s representative submitted a report from Barry Hensley, Ed.D., dated
November 16, 2010, which states that the claimant is not a viable candidate for
employment currently. First, Dr. Hensley appears to rely on the claimant’s
recitation of her complaints as the basis for his opinion. Second, even observing
that this opinion does not support the claimant’s allegation of total debility since
December 2003, it addresses employability, an issue reserved to the
Commissioner. The undersigned notes that the psychologist also references only
partial use of the right arm, which does not appear to be corroborated elsewhere
of record. The claimant testified that she had some right arm weakness, but could
write for one-half hour at a time. Interestingly, Dr. Syptak, in June 2009,
endorsed significant limitations with reaching, handling, or fingering, among his
other limitations. However, he apparently endorsed such limitations for both
hands, as he drew no distinction between the left and right hand. Further, neither
he nor Dr. Sherry suggested any diagnosis relevant to the right arm in particular.
Lastly, the undersigned notes that the Virginia Department of Rehabilitation gave
the claimant a “most significantly disabled” rating. The undersigned does not
find such rating to be persuasive as it relates to the claimant’s residual functional
capacity for purposes of the Social Security disability program. The undersigned
finds that the evidence of record as a whole, including the findings and
observations of treating sources, debates these summary conclusions.
R. 31 (citations omitted).
Plainly, the ALJ gave extensive reasons for why he chose not to accord controlling
weight to the disability assessment forms filled out by Drs. Sherry and Syptak, which contained
no more than “summary conclusions.” Notably, while both Drs. Sherry and Syptak asserted that
Propst had significant limitations with reaching, handling, and fingering, neither one elaborated
on what those limitations were in the space provided for them to do so. R. 715, 721. The ALJ
further found that Dr. Hensley’s opinion was founded on Propst’s subjective complaints, and that
“careful consideration of the evidence” led him to the conclusion that “the claimant’s subjective
allegations . . . concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent that they are inconsistent with the above residual functional capacity
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assessment.” R. 30. As such, the ALJ’s decision in this regard is supported by substantial
evidence.
C.
Finally, substantial evidence supports the ALJ’s RFC determination. The record reflects
that the ALJ had a sound basis to question plaintiff’s credibility and thus to have reservations
concerning any medical opinions informed primarily by her subjective complaints. Propst
applied for and received unemployment benefits in the third and fourth quarters of 2009 and in
the first quarter of 2010, despite having applied for SSI and DIB in May of 2009. R. 20. It is
true, as the ALJ noted, that receipt of unemployment benefits is not dispositive as to the question
of whether a claimant is disabled. R. 30; see also Lackey v. Celebrezze, 349 F.2d 76, 79 (4th
Cir. 1965) (“[R]eceipt of unemployment compensation does not in itself prove ability to work”).
Nevertheless, there is an inherent inconsistency between receiving unemployment and applying
for disability benefits; this inconsistency is sufficient to support a finding that a claimant is not
fully credible. Shrewsbury v. Astrue, 7:11cv229, 2012 WL 2789719 at *3 (W.D. Va. July 9,
2012) (“[A]t the very time [the claimant] asserted that she could not work because of her claimed
physical and mental impairments, she declared that she was ‘ready, willing and able’ to work just
so she could receive unemployment benefits. These irreconcilable claims, standing alone,
provide substantial evidence to support the ALJ’s finding that [the claimant] was only partially
credible.”). Here, the ALJ expressly found that Propst’s receipt of unemployment benefits
(along with her work activity discussed above) “pose some inconsistency with her contentions of
more limited activities, as well as her broader contention of total disability since December
2003.” R. 30. Furthermore, the ALJ found that the evidence that Propst could prepare her own
meals, do light housework and laundry, and go grocery shopping, coupled with her own
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statement that she “waited on her boyfriend ‘hand and foot,’” when taken together, “fails to
substantiate that her limitations are of the degree and intensity alleged; or that they are of a
nature to preclude her from performing work activities at the modified light exertional level.” R.
31.
The ALJ took into account the limitations on Propst’s ability to work that are documented
in and supported by the record and resolved the contradictions therein in a reasonable manner.
He carefully evaluated the record in according weight to the many varying medical opinions as
well as Propst’s subjective allegations with which he was presented, and he gave fair
consideration to each of those differing accounts and evaluations by posing four different
representative hypotheticals to the vocational expert at the administrative hearing in determining
Propst’s residual functional capacity at step four. R. 51-53. Substantial evidence supports his
conclusions regarding which of Propst’s alleged limitations were credibly supported by the
record, and those conclusions formed the basis of his determination that Propst could perform
work that existed in significant numbers in the national economy and is therefore not disabled.
IV.
In sum, the court cannot agree with the magistrate judge’s finding that the ALJ’s step 2
analysis and RFC determination are not supported by substantial evidence. To that end, an Order
will be entered rejecting the Report and Recommendation of the magistrate judge in its entirety,
and affirming the Commissioner’s decision.
Entered: September 23, 2013
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
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