Mullenax v. Astrue

Filing 23

MEMORANDUM OPINION. Signed by Magistrate Judge Joel C. Hoppe on 6/9/15. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
DEBRA ANN MULLENAX,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration,
Defendant.

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Civil Action No. 5:14-cv-00027
MEMORANDUM OPINION
By:
Joel C. Hoppe
United States Magistrate Judge

Plaintiff Debra Ann Mullenax asks this Court to review the Commissioner of Social
Security’s (“Commissioner”) final decision denying her applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401–34, 1381–1383f. On appeal, Mullenax argues that the ALJ erred
in weighing her credibility and evaluating the opinions of her treating physicians. The case is
before me by the parties’ consent under 28 U.S.C. § 636(c)(1). ECF No. 17. Having considered
the administrative record, the parties’ briefs and oral arguments, and the applicable law, I find
that substantial evidence supports the Commissioner’s final decision, and it is therefore 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. See 42 U.S.C. § 405(g); 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, the Court
asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and

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whether substantial evidence supports the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700,
704 (4th Cir. 2011).
“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 Gordon v.
Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); Universal Camera Corp. v. NLRB, 340 U.S. 474,
487–89 (1951). 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,
589 (4th Cir. 1996) (internal quotation marks omitted)). 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” if he or she is unable 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); 20 C.F.R. §§ 404.1505(a),
416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is
disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe
impairment; (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 perform other work. See 20 C.F.R. §§

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404.1520(a)(4), 416.920(a)(4); Heckler v. Campbell, 461 U.S. 458, 460–62 (1983). The applicant
bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the
burden shifts to the agency to prove that the applicant is not disabled. See id.
II. Procedural History
Mullenax filed for DIB and SSI on March 9, 2011. See Administrative Record (“R.”) 10.
She was 50 years old, R. 333, and had worked as a restaurant server, R. 359. Mullenax alleged
disability because of a brain aneurysm, subarachnoid hemorrhage, high blood pressure, and
fibromyalgia. R. 187. A state agency twice denied her applications. R. 10. Mullenax appeared
with counsel before ALJ Brian Kilbane for an administrative hearing on December 6, 2012. R.
30–48. Mullenax testified about her medical conditions and the limitations those conditions
caused in her daily life activities. R. 33–39. A vocational expert (“VE”) also testified about
Mullenax’s work experience and her ability to return to her past work or to perform other work
in the national or local economies. R. 39–46.
The ALJ denied Mullenax’s application in a written decision dated January 18, 2013. R.
10–22. ALJ Kilbane first addressed Mullenax’s prior applications and the prior decisions against
her. R. 10. Mullenax previously filed claims for DIB and SSI on March 13, 2007, and April 30,
2009; these claims were rejected, respectively, by ALJ Charles Boyer on March 17, 2009, R.
117–27, and ALJ Mark O’Hara on January 28, 2011, R. 136–53. Both Mullenax’s current claims
and her prior claim filed in April 2009 alleged a disability onset date of February 19, 2007. R.
10. ALJ Kilbane found that ALJ O’Hara’s determination that Mullenax was not disabled as of
January 28, 2011, was determinative of the issue of her disability prior to that date, and he
addressed only the period afterwards for her current applications. Id.

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ALJ Kilbane found that Mullenax had severe impairments of a back disorder,
fibromyalgia, status post 2005 myocardial infarction, and status post 2007 brain aneurysm and
hemorrhage. R. 13–14. He determined that these impairments, alone or in combination, did not
meet or equal a listing. R. 14–15. The ALJ next determined that Mullenax had the residual
functional capacity (“RFC”) to perform “light work” except that she “can only occasionally
climb, balance, stoop, kneel, crouch, and crawl and he [sic] should avoid all exposure to hazards
such as moving machine parts and unprotected heights.” 1 R. 15. Relying on the VE’s testimony,
the ALJ concluded at step four that Mullenax could perform her past relevant work as a
restaurant server. R. 33. Again relying on the VE’s testimony, the ALJ alternatively found that
Mullenax could perform other jobs available in the economy, including housekeeper, cafeteria
attendant, and cashier. R. 20–21. He therefore determined that she was not disabled under the
Act. R. 21. The Appeals Council declined to review that decision, R. 1–3, and this appeal
followed.
III. Discussion
Mullenax raises two arguments on appeal. First, she contends that ALJ Kilbane failed to
provide specific reasons, supported by the record, for not fully crediting her statements
concerning the extent of her limitations. Pl. Br. 5–10, ECF No. 18. Second, she contends that he
incorrectly weighed opinions from two of her treating physicians by disregarding their entire

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“Light” work involves lifting no more than twenty pounds at a time, but frequently lifting
objects weighing ten pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). A person who can meet
these lifting requirements can perform light work only if she also can “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. 1999).

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statements because a part of each concerned an issue reserved to the commissioner. 2 Id. at 10–
12.
A.

Relevant Medical Evidence
On March 31, 2011, Mullenax saw Robert G. Kennedy, M.D., for a follow-up

appointment concerning her “continued facial numbness, fibromyalgia, hypertension, and
anxiety.” R. 1921. She had diminished sensation and mild facial weakness on the left side of her
face, but had increased movement of it. Id. Her back and shoulder displayed some tenderness,
and she had some triggering in two fingers. 3 Id. She complained of pain between her shoulder
blades, radiating into her neck, and pain in both hands, worse in the right hand. Id. She also
reported increased difficulty with her mood and anxiety and stated that she might be having
panic attacks. Id. Dr. Kennedy noted that she was in no real cardiopulmonary distress and found
her pleasant, talkative, cooperative, and interactive. Id. He assessed facial numbness,
fibromyalgia, hypertension, coronary artery disease status post myocardial infarction, and
“anxiety now with marked panic.” Id. He also opined that “[g]iven her difficulties with the

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Mullenax raises an additional argument concerning the VE’s testimony. See Pl. Br. 9–10. At
her administrative hearing, her counsel posed hypothetical questions asking the VE to determine
whether a person with all of Mullenax’s claimed symptoms would be able to work. Id.; R. 43–46.
The VE testified that such a person was unemployable. R. 46. Mullenax argues that ALJ Kilbane
erred by not considering this testimony in conjunction with her statements. Pl. Br. 10.

The ALJ’s failure to consider hypotheticals based upon statements he determined were
not credible cannot be error. Her counsel’s hypotheticals included all of Mullenax’s claimed
symptoms. R. 43–46. The VE’s evaluation of those hypotheticals is relevant only to the extent
that the ALJ credits Mullenax’s statements of her symptoms. Because he did not find Mullenax’s
statements fully creditable, he had no obligation to consider hypotheticals based upon all of her
alleged symptoms. Cf. Fisher v. Barnhart, 181 F. App’x 359, 365 (4th Cir. 2006) (“Because the
ALJ’s [RFC] determination is supported by substantial evidence and because the challenged
hypothetical question merely incorporated that determination, the ALJ committed no error.”).
3
“Trigger finger, also known as stenosing tenosynovitis, is a condition in which one of your
fingers gets stuck in a bent position.” Trigger Finger: Definition, Mayo Clinic (Aug. 27, 2014),
http://www.mayoclinic.org/diseases-conditions/trigger-finger/basics/definition/con-20043819.
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neurologic symptoms as well as the fibromyalgia . . . it is unlikely that she will be able to return
to work.” Id.
On June 14, 2011, Mullenax had a rheumatology follow-up appointment with Matthew S.
Hogenmiller, M.D. R. 2236. She reported tight, burning pain of 3 or 4 out of 5 in her shoulders
and back. R. 2238. She walked with a normal gait and no assistive devices. Id. Dr. Hogenmiller
recorded that she had severe fibromyalgia, cervical spondylosis, and recurrent tenosynovitis for
which he did not know the cause. R. 2236. Mullenax declined treatment with a steroid pack
because she did not like how they had made her feel, and Dr. Hogenmiller recommended Aleve.
Id.
Mullenax returned to Dr. Kennedy on August 8 for a follow-up and evaluation of new
chest pain. R. 2280. She reported constant left-side facial numbness; pain in her neck, upper
back, and right foot; and aching in her elbows, knees, and ankles. Id. She rated her pain as a 3.5
out of 5. Id. She had increased her oxycodone use to four or five times per day. Id. She reported
tightness in her chest and shortness of breath after walking half a block. Id. She also said that her
hands and feet go numb and her memory was getting worse. Id. On examination, she had no
cardiopulmonary distress, bilateral expiratory wheezes in her lungs, no tremor in her hands, some
tenderness across her right big toe, and no swelling or erythema. Id. Dr. Kennedy assessed
polyarthralgias, dyspnea related to smoking, and hypertension. Id.
On August 16, Mullenax had a follow-up appointment with Dr. Hogenmiller. R. 2235.
She had mild difficulty with her wrist on extension and less swelling from her tenosynovitis than
at her last visit. Id.
On August 24, Mullenax reported to cardiologist Masood Ahmed, M.D., per Dr.
Kennedy’s referral. R. 2269–71. She complained of worsening shortness of breath on exertion

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and chest discomfort during anxiety attacks. R. 2269. She displayed no obvious orthopnea or
ankle swelling and denied any syncope, presyncope, loss of consciousness, significant
palpitation, or feelings of tachyarrhythmia or bradyarrhythmia. Id. On examination, Mullenax
had no sounds in her lungs; no focal motor or sensory deficits; and no edema or joint deformity,
swelling, or tenderness. R. 2270. An electrocardiogram (“ECG”) returned normal findings. R.
2271. Dr. Ahmed assessed dypsnea with exertion, no known coronary artery blockage,
hypertension dyslipidemia, a prior brain aneurysm, cervical joint degenerative disc disease, and
fibromyalgia. Id. He ordered an echocardiogram and stress test and prescribed additional
medication to address her blood pressure. Id.
On September 14, Mullenax returned to Dr. Ahmed. R. 2266–68. As part of the history of
her present illness, Dr. Ahmed recorded that Mullanex was able to perform her daily activities
without any limitation. R. 2266. On examination, there was no evidence of lower extremity
edema or any joint deformity or swelling. R. 2267. The echocardiogram was essentially normal,
showing no evidence of pulmonary hypertension, no valvular abnormality, and diastolic
parameters within the normal range. Id. The stress test was negative for ischemic ECG changes
and a myocardial perfusion imaging study showed no ischemia. Id. Dr. Ahmed concluded that
Mullenax’s chest discomfort was a symptom of her fibromyalgia and stressed that she needed to
have better control over her blood pressure. R. 2267–68.
On October 28, Mullenax saw Dr. Kennedy for a follow-up of her previous symptoms
and evaluation of abdominal pain. R. 2285. Mullenax reported nausea, trouble sleeping, and
some panic attacks. Id. She complained of back pain when bending over and left leg pain with
walking. Id. On examination, Dr. Kennedy found no issues with her lungs or heart, and he could
not identify the cause of her diffuse abdominal pain. Id.

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Mullenax visited the emergency department on December 1, 2011, after nearly falling
down a set of stairs. R. 2378–79. She reported having balance problems since her aneurysm
surgery in 2003 and complained of diffuse discomfort across her lumbar and upper thoracic
spine. R. 2378. She denied head trauma, headache, visual disturbances, nausea, vomiting, speech
disturbances, and upper or lower extremity weakness or paresthesias. Id. On physical
examination, Mullenax displayed bilateral tenderness in her thoracic and lumbar paraspinous
musculature, but had a negative straight leg raise test, no spasm, and full strength in her upper
and lower extremities. R. 2379. Her heart and lungs were normal. Id. The attending physician
prescribed Percocet and discharged her. Id.
On January 2, 2012, Mullenax had a follow-up appointment with Dr. Kennedy. R. 2380.
She reported dull pain at an 8 out of 10 all over her back and increased wheezing. Id. She was on
oxycodone, but had recently tested positive for THC on a drug test and entered a relapse
program. Id. She was tolerating her hypertension medication without dizziness, chest pains, or
palpitations. Id. On examination, she was in no cardiopulmonary distress, but her lungs had
scattered rattling, and her extremities showed trace edema. Id.
On January 16, Mullenax had an X-ray taken of her thoracic spine. R. 2449. It revealed
thoracic spondylosis and mild degenerative changes in the L5-S1 facet joints, but normal
alignment, no vertebral compression, and no acute fracture. Id. A cranial CT scan the same day
revealed bilateral encephalomalacia, 4 but no evidence of any acute intracranial abnormality. R.
2448.

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Encephalomalacia is “softening of the brain,” often from a temporary loss of circulation.
Dorland’s Illustrated Medical Dictionary 621 (31st ed. 2007).
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B.

Credibility
Mullenax argues that substantial evidence does not support the ALJ’s credibility

determination and that he failed to provide specific reasons for his adverse credibility finding.
See Pl. Br. 5–7. The regulations set out a two-step process for evaluating a claimant’s allegation
that she is disabled by symptoms, such as pain, caused by a medically determinable impairment.
Fisher v. Barnhart, 181 F. App’x 359, 363 (4th Cir.2006) (citing 20 C.F.R. § 404.1529). The
ALJ must first determine whether objective medical evidence 5 shows that the claimant has a
medically determinable impairment that could reasonably be expected to cause the kind and
degree of pain alleged. 20 C.F.R. §§ 404.1529(a), 416.929(a); see also Craig, 76 F.3d at 594. If
the claimant clears this threshold, then the ALJ must evaluate the intensity and persistence of the
claimant’s pain to determine the extent to which it affects her physical or mental ability to work.
SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996); see also Craig, 76 F.3d at 595.
The latter analysis often requires the ALJ to determine “the degree to which the
[claimant’s] statements can be believed and accepted as true.” SSR 96–7p, at *2, *4. The ALJ
cannot reject the claimant’s subjective description of her pain “solely because the available
objective medical evidence does not substantiate” that description. 20 C.F.R. §§ 404.1529(c)(2),
416.929(c)(2). Rather, he must consider all the evidence in the record, including the claimant’s
other statements, her treatment history, any medical-source statements, and the objective medical
evidence. 20 C.F.R. §§ 404.1529(c), 416.929(c). The ALJ must give specific reasons, supported
by specific relevant evidence in the record, for the weight assigned to the claimant’s statements.
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Objective medical evidence is any “anatomical, physiological, or psychological abnormalities”
that can be observed and medically evaluated apart from the claimant’s statements and
“anatomical, physiological, or psychological phenomena [that] can be shown by the use of
medically acceptable diagnostic techniques.” 20 C.F.R. §§ 404.1528(b)–(c), 416.928(b)–(c).
“Symptoms” are the claimant’s description of his or her impairment. Id. §§ 404.1528(a),
416.928(a).
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Eggleston v. Colvin, No. 4:12cv43, 2013 WL 5348274, at *4 (W.D.Va. Sept. 23, 2013) (citing
SSR 96–7p, at *4).
A reviewing court will defer to the ALJ’s credibility finding except in those
“exceptional” cases where the determination is unclear, unreasonable, contradicts other findings
of fact, or is based on an inadequate reason or no reason at all. Bishop v. Comm’r of Soc. Sec.,
583 F. App’x 65, 68 (4th Cir. 2014) (citing Edelco, Inc. v. NLRB, 132 F.3d 1007, 1011 (4th Cir.
1997)); see also Mascio v. Colvin, 780 F.3d 632, 640 (4th Cir. 2015).
1.

Mullenax’s Statements

In the course of her applications, Mullenax twice completed forms describing how her
conditions affect her ability to complete daily activities. See R. 412–19 (December 8, 2011),
428–35 (May 31, 2012). In the report dated December 8, 2011, Mullenax wrote that she does
laundry and dusting around the house. R. 414. She prepares sandwiches, frozen dinners, and easy
meals. Id. She has no difficulty handling her personal care, though she needs reminders to take
her medications. R. 413–14. She does not do yard work because the equipment is too heavy and
noisy. R. 414. She can handle a checkbook, but does not pay bills. R. 415. Her hobbies include
reading, watching television, sewing, and card playing. She drives within her town, shops for
groceries with her husband, talks on the phone daily, and attends church weekly when she feels
well enough. R. 415–16. She can walk for “maybe 25 feet” before needing to rest for five
minutes. R. 417. She noted difficulty with all postural movements and with concentration and
comprehension skills. R. 417.
In the form dated May 31, 2012, Mullenax reported mildly decreased function compared
to the first report five months prior. Mullenax wrote that she dusts what she can reach without
bending. R. 430. She described her cooking as preparing simple meals, frozen dinners, soups,

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sandwiches, and eggs. Id. She can still handle her personal care, though fastening buttons with
her right hand and bending to tie her shoes is difficult. R. 429. She gets too confused to handle a
checkbook or deal with money at all. R. 431. Her hobbies include “church,” reading, watching
television, and watching her husband’s nephew’s baseball games. R. 432. She has coffee with
her sister-in-law two to three times a week, shops for groceries, and attends church and baseball
games. R. 431–32. She can walk for a quarter block before needing to rest for five minutes. R.
433. She noted difficulty with the same tasks as before, but added memory, hearing, and seeing
to the list. Id.
Mullenax also testified at the administrative hearing before ALJ Kilbane. R. 33–39. She
said she has pain from her neck through her left leg and diffuse pain throughout her body. R. 33.
The left side of her face feels numb and tingling cold. R. 34. Her right hand and arm get hot and
swollen, causing her to drop things and to be unable to lift heavy objects. R. 35. She has balance
issues and has fallen many times. Id. She has problems with comprehension and short term
memory, and her medications make her tired. R. 36. She drives in a three-mile radius around her
house and to the grocery store, but is uncomfortable on high-speed roads or longer drives. R. 37.
She has anxiety attacks and depression and was hospitalized in June 2012 for attempted suicide.
R. 38–39.
2.

The ALJ’s Findings

The ALJ determined that Mullenax had medically determinable impairments of
fibromyalgia, a back disorder, status post a 2005 myocardial infarction, and status post 2007
brain aneurysm and hemorrhage. R. 13. He found that these impairments could reasonably be
expected to cause some of Mullenax’s alleged symptoms, but that her statements concerning the
intensity, persistence, and limiting effects of her impairments were not entirely credible. R. 18.

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He supported his finding with two reasons. First, her treatment records reflected generally
unremarkable examination findings, conservative treatment, and no objective imagery or testing
that supported the extent or intensity of her expressions of pain. Id. Second, Mullenax described
activities of daily living “which are not limited to the extent one would expect, given the
complaints of disabling symptoms and limitations.” R. 19.
3.

Analysis

Mullenax makes multiple arguments against the clarity and sufficiency of the reasons
ALJ Kilbane gave for his credibility determination. See Pl. Br. 5–10. A number of these
arguments are facially meritless. Mullenax states that the ALJ’s opinion does not reference her
administrative hearing testimony at any point. Id. at 7. On the contrary, the ALJ explicitly
summarized her testimony, R. 15–16, and addressed its credibility, R. 18. Mullenax contends
that the opinion fails to indicate which parts of Mullenax’s statements the ALJ finds credible. Pl.
Br. 6. The ALJ’s RFC assessment, R. 15–20, implicitly demonstrates what functional limitations
described by Mullenax the ALJ credited. The ALJ’s partial crediting of Mullenax’s statements as
demonstrated by his RFC is adequate so long as his opinion demonstrates sufficient rationale for
his determination.
Mullenax contends that the ALJ impermissibly “rel[ied] on his own medical opinion as
to what could reasonably produce pain” when he stated that “‘none of the imagery or testing
evidence provides objective support for an impairment that could reasonably produce the extent
or intensity of the claimant’s expression of subjective pain.’” Pl. Br. 5 (quoting R. 18). Mullenax
correctly asserts that the ALJ is required to evaluate the objective medical evidence as one of
multiple factors when determining the degree to which a claimant’s statements can be believed
and accepted as true. SSR 96-7p, at *2. Had the ALJ considered nothing beyond the objective

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evidence, he would have failed his obligation at step two of the credibility analysis to assess
Mullenax’s statements in light of the entire record. See 20 C.F.R. §§ 404.1529(c), 416.929(c).
His review, however, was not confined to one factor. The ALJ correctly noted that the imaging
studies showed “mild” findings, and he reasonably concluded that other testing was
unremarkable. R. 18. On these grounds he questioned Mullenax’s complaints of pain. ALJ
Kilbane additionally considered Mullenax’s other statements, her reported activities of daily
living, the prior ALJ rulings, and medical-source opinions that interpreted the objective findings
of record. R. 18–20. The ALJ did not impermissibly rely on his own medical opinion; he
evaluated Mullenax’s credibility step-by-step as required by regulation.
Mullenax also contends that the ALJ failed to provide specific reasons for his credibility
determination. Pl. Br. 6. As noted above, the ALJ provided two specific reasons why he did not
fully credit her statements: her medical records contain generally unremarkable examination
findings, conservative treatment, and no objective imagery or testing that support the extent of
her claimed symptoms; and her activities of daily living were “not limited to the extent one
would expect, given the complaints of disabling symptoms and limitations.” R. 18–19.
The record shows that Mullenax had some dyspnea related to smoking in August 2011,
R. 2280, and some rattling in her lungs in January 2012, R. 2380. At other times, she had no
sounds in her lungs, R. 2270, no abnormal findings on examination of her heart and lungs, R.
2285, 2379, no cardiopulmonary distress, R. 1921, 2280, 2380, and normal findings from an
electrocardiogram, R. 2271, echocardiogram, R. 2267, and stress test, id. A comprehensive
examination by a cardiologist concluded that any chest discomfort Mullenax was experiencing
was caused by her fibromyalgia rather than any underlying cardiopulmonary issues. R. 2266–71.

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Concerning her musculoskeletal pain, Mullenax at times displayed trace edema in her
legs, R. 2380, tenderness in her back and neck, R. 1921, 2379, and finger triggering, R. 1921,
2236. More frequently, however, physical examinations of her back and extremities were
unremarkable. See R. 2267 (no edema, joint deformity, or swelling); R. 2379 (negative straight
leg raise test, no spasm, and full strength in upper and lower extremities); R. 2238 (walked with
normal gait and no assistive devices); R. 2378 (denied upper or lower extremity weakness or
paresthesias); R. 2280 (no swelling or erythma). An X-ray in January 2012 revealed only mild
degenerative disc disease in Mullenax’s thoracic and lumbar spine; she had no acute fracture, no
vertebral compression, and normal alignment throughout her spine. R. 2449.
Mullenax displayed mild left-side facial numbness and weakness in March 2011, but
reported increased movement of it at the same time. R. 1921. In later examinations, she
displayed no focal motor or sensory deficit and grossly intact cranial nerves. R. 2267, 2270,
2379. A cranial CT scan in January 2012 revealed bilateral encephalomalacia, but no evidence of
any acute intracranial abnormality. R. 2448. The ALJ reasonably found that this evidence did not
support Mullenax’s claims of disabling symptoms.
Another factor an ALJ must consider when evaluating a claimant’s credibility is her
course of treatment. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Throughout the relevant
period, doctors treated Mullenax’s conditions with only medication. They did not recommend
surgery for any of her conditions, and the record does not show that Mullenax sought more
aggressive treatments. While there is “no bright-line rule [for] what constitutes ‘conservative’
versus ‘radical’ treatment.” Gill v. Astrue, 3:11cv85, 2012 WL 3600308, at *6 (E.D. Va. Aug.
21, 2012), a record of treatment through only medication supports the ALJ’s label of Mullenax’s
treatment as conservative.

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Concerning her reported daily activities, Mullenax told her doctor that she could perform
them without limitation in September 2011. R. 2266. Although this treatment note lacked
additional details, the daily activities Mullenax reported to the state agency, while not extensive,
support the ALJ’s finding that her symptoms are not as severe as she claimed. Mullenax reported
dusting, reading, watching television, visiting with friends, attending baseball games, cooking
simple meals, driving short distances, and grocery shopping with her husband. R. 414–16, 430–
32. She can handle her personal care although she has some difficulty fastening buttons and tying
her shoes. R. 413, 429. The ALJ reasonably determined that activities such as these undermined
Mullenax’s statements of complete disability. See, e.g., Gross v. Heckler, 785 F.2d 1163, 1166
(4th Cir.1986) (finding that daily activities including washing dishes, grocery shopping, and
taking care of personal needs supported the ALJ’s adverse credibility determination); HiltonWilliams v. Barnhart, No. 7:05cv674, 2006 WL 3099648, at *4 (W.D. Va. Oct. 24, 2006) (noting
daily activities of cooking, cleaning, driving, grocery shopping, and watching television
supported the ALJ’s adverse credibility determination).
The ALJ’s credibility determination is entitled to deference from this Court. See Bishop,
583 F. App’x at 68. The ALJ provided specific reasons why he did not fully credit Mullenax’s
statements on the severity of her symptoms, and substantial evidence supports his reasoning.
This record does not present an “exceptional” case where the ALJ’s credibility determination
should be disturbed. Id.
C.

Medical Opinions
Mullenax next argues that the ALJ improperly rejected the opinions of two of her treating

physicians. Pl. Br. 10–12. “Medical opinions” are statements from “acceptable medical sources,”
such as physicians, that reflect judgments about the nature and severity of the claimant’s

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impairment, including her symptoms, diagnosis and prognosis, functional limitations, and
remaining abilities. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). They are distinct from medicalsource opinions on issues reserved to the Commissioner, such as whether the claimant is
disabled. 20 C.F.R. §§ 404.1527(d)(1), 404.1545(a), 416.927(d)(1), 416.945(a). The ALJ must
consider these opinions as he would any relevant evidence, but he need not accord “any special
significance” to the source’s medical qualifications. Id. §§ 404.1527(d)(3), 416.927(d)(3); see
also Morgan v. Barnhart, 142 F. App’x 716, 722 (4th Cir.2005) (“The ALJ is not free . . . simply
to ignore a treating physician’s legal conclusions, but must instead ‘evaluate all the evidence in
the case record to determine the extent to which [the conclusions are] supported by the record.’”
(quoting SSR 96–5p, at *3)).
The regulations classify medical opinions by their source: those from treating sources and
those from non-treating sources, such as examining physicians and state-agency medical
consultants. See 20 C.F.R. §§ 404.1527(c), 416.927(c). A treating-source medical opinion is
entitled to controlling weight if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence in the
record.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.2001); 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). If the ALJ finds that a treating-source medical opinion is not entitled to
controlling weight, then he must weigh the opinion in light of certain factors including the
source’s medical specialty and familiarity with the claimant, the weight of the evidence
supporting the opinion, and the opinion’s consistency with other relevant evidence in the record.
Burch v. Apfel, 9 F. App’x 255, 259 (4th Cir.2001) (per curiam); 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). The ALJ must consider the same factors when weighing medical opinions from
non-treating sources. 20 C.F.R. §§ 404.1527(c), 404.1527(e)(2), 416.927(c), 416.927(e)(2).

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The ALJ must explain the weight given to all medical opinions, Radford v. Colvin, 734
F.3d 288, 295–96 (4th Cir.2013), and he must give “good reasons” for the weight assigned to any
treating-source medical opinion, 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Mastro, 270 F.3d
at 178 (the ALJ may reject a treating-source medical opinion “in the face of persuasive contrary
evidence” only if he gives “specific and legitimate reasons” for doing so). His “decision ‘must be
sufficiently specific to make clear to any subsequent reviewers the weight [he] gave’ to the
opinion and ‘the reasons for that weight.’” Harder v. Comm’r of Soc. Sec., No. 6:12cv69, 2014
WL 534020, at *4 (W.D. Va. Feb. 10, 2014) (citing SSR 96–8p, at *5).
1.

Treating-Source Opinions

Mullenax kept a daily record of her symptoms for two months in October and November
of 2011. See R. 2458–63. Her counsel supplied this record to Dr. Greene and Dr. Kennedy and
asked each doctor to opine “as to whether or not her described symptoms are consistent with
your clinical observations.” R. 2458, 2472.
Dr. Greene listed eleven dates when he saw Mullenax in 2012 and stated that Mullenax
had chronic back pain and intermittent upper-extremity numbness. R. 2459. He concluded that
Mullenax’s anxiety and chronic pain and weakness preclude her from working, and he “highly”
recommended permanent disability. Id.
Dr. Kennedy wrote that he last saw Mullenax on January 2, 2012. R. 2473. He stated that
her daily record of symptoms was “consistent with what [she] has been dealing with for over
four years,” including facial numbness and pain from fibromyalgia and cervical disc disease. Id.
He stated that she had a panic disorder that impaired her stress tolerance. Id. Dr. Kennedy
concluded that she had been unable to work for the past four years and that he supported her
disability claim. Id. In a treatment note from March 2011, Dr. Kennedy also opined that “[g]iven

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her difficulties with the neurologic symptoms as well as the fibromyalgia . . . it is unlikely that
she will be able to return to work.” R. 1921.
2.

The ALJ’s Findings

The ALJ rejected Dr. Kennedy’s opinion that Mullenax is unable to work because it was
conclusory and concerned an issue reserved to the Commissioner. R. 19. He further found that
Dr. Kennedy’s opinion was “not supported by the longitudinal record with its relatively
unremarkable physical findings and generally routine and conservative treatment, including his
own treatment notes.” Id. The ALJ commented that Dr. Kennedy’s opinion appeared “to be
based on the claimant’s reported symptoms and limitations, rather than on objective findings and
diagnostic test results.” Id. The ALJ also rejected Dr. Greene’s opinion, stating that it was
conclusory and not accompanied by contemporaneous treatment notes with supporting objective
findings. Id.
3.

Analysis

Mullanex concedes that both doctors’ opinions contained statements on issues reserved to
the Commissioner. See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3). She argues, however, that
the ALJ threw the baby out with the bathwater and failed to consider the parts of each opinion
not addressing issues reserved to the Commissioner or to provide good reasons for rejecting
these parts. Pl. Br. 10–12.
Dr. Kennedy’s March 2011 opinion that “it is unlikely that [Mullenax] will be able to
return to work,” R. 1921, is an opinion of disability which is reserved to the Commissioner and
not entitled to any special weight. 20 C.F.R. §§ 404.1527(d), 416.927(d). The same is true for the
part of his November 2012 opinion where he stated Mullenax is unable to work and he supports
her disability claim. R. 2473. The ALJ was only obligated to “‘evaluate all the evidence in the

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case record to determine the extent to which [these conclusions are] supported by the record.’”
Morgan, 142 F. App’x at722 (quoting SSR 96–5p, at *3). Without this statement, Dr. Kennedy’s
November 2012 opinion still provides that the daily record of symptoms Mullenax kept was
“consistent with what [she] has been dealing with for over four years,” including facial
numbness and pain from fibromyalgia and cervical disc disease and a panic disorder that
impaired her stress tolerance. R. 2473. As an opinion from a treating-source physician, the ALJ
can only reject it “in the face of persuasive contrary evidence,” with “specific and legitimate
reasons” for doing so. Mastro, 270 F.3d at 178.
The ALJ gave reasons for rejecting Dr. Kennedy’s opinion besides the fact that it
addressed reserved issues. He found that it was not supported by the generally unremarkable
findings and conservative treatment in the record, including Dr. Kennedy’s own treatment notes.
R. 19. The ALJ previously described the relevant medical evidence, R. 15–18, and provided an
analysis concluding that the longitudinal record was generally unremarkable, R. 18. Though the
ALJ’s statement was terse, it referenced previously provided facts and analysis that supplied
persuasive contrary evidence to Dr. Kennedy’s opinion. Additionally, the ALJ noted that Dr.
Kennedy’s opinion, written in response to a calendar of Mullenax’s self-reported symptoms,
“appears to be more based on the claimant’s reported symptoms and limitations, rather than on
objective findings and diagnostic test results.” R. 19.
Pain is a subjective symptom, and Mullenax’s subjective report of numbness is not
confirmed by testing in the record; though Mullenax displayed mild left-side facial numbness
and weakness in March 2011, she reported increased movement of it at the same time, R. 1921,
and later examinations found no focal motor or sensory deficit and grossly intact cranial nerves,
R. 2267, 2270, 2379. Furthermore, the ALJ found that Mullenax’s anxiety was not severe and

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that she had no limitations in social functioning or activities of daily living attributable to a
mental impairment. These findings, which Mullenax has not contested, belie Dr. Kennedy’s
contention that a panic disorder “severely limits her stress tolerance.” R. 2473.
An ALJ may give “significantly less weight” to a treating physician’s “conclusory
opinion based on the applicant’s subjective reports.” Craig, 76 F.3d at 590; see 20 C.F.R. §§
404.1527(c)(3)–(4); 416.927(c)(3)–(4). I thus find no error in the ALJ’s analysis of Dr.
Kennedy’s opinions. See, e.g., Bishop, 583 F. App’x at 67 (substantial evidence supported ALJ’s
decision to reject treating physician’s opinion “in its entirety” where the opinion mirrored
Bishop’s subjective complaints and was “inconsistent with the mild to moderate diagnostic
findings, the conservative nature of Bishop’s treatment, and the generally normal findings during
physical examinations”).
The ALJ provided less support for his rejection of Dr. Greene’s opinion. Dr. Greene’s
statement that he highly recommends permanent disability, R. 2459, is an opinion on an issue
reserved to the Commissioner and is thus not entitled to any special weight. Without this
comment, Dr. Greene still opined that Mullenax is “unable to work without chronic pain or
weakness” and that she has chronic back pain, intermittent numbness in her upper extremities,
significant medical history and symptoms, and generalized anxiety that interferes with work. Id.
The only reason the ALJ provides for rejecting this opinion is that “it is not accompanied by
contemporaneous treatment notes with supporting objective findings on examination.” R. 19.
Though Dr. Greene listed eleven dates when he saw Mullenax in 2012, there are no treatment
notes from these visits in the record. R. 2459. Nevertheless, after seeing Mullenax regularly for a
year, Dr. Greene opined on Mullenax’s condition as described above.

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Without the treatment notes from these visits, it cannot be said that Dr. Greene’s opinions
are “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and
thus entitled to controlling weight. Mastro, 270 F.3d at 178. Mullenax’s journal of symptoms
was a creative effort by her counsel, but it is not a substitute for a physician’s treatment notes,
which may contain not just a record of symptoms, but also the physician’s impression of medical
signs and a record of examinations, diagnoses, and treatment plans. I cannot fault the ALJ for
questioning the opinion of a physician when the record contains no notes of his treatment. Even
so, the ALJ failed to discuss the opinion’s consistency with the record or provide specific reasons
for dismissing the substance of this treating physician’s opinion. Presuming this omission was
error, it was nonetheless harmless.
Accepting everything that Dr. Greene wrote as true, he opined that Mullenax has pain,
weakness, intermittent numbness, and anxiety that interfere with her ability to work. He did not
opine on the extent of interference or the specific functional limitations caused by these
symptoms, except to recommend that she receive disability. Dr. Greene’s disability
recommendation is entitled to no “special significance,” 20 C.F.R. §§ 404.1527(d)(3),
416.927(d)(3), and must be evaluated in light of all the evidence in the case record, Morgan, 142
F. App’x at 722. The ALJ’s limited RFC determination of light work with additional postural
limitations already acknowledges the intrusion of pain, weakness, and other issues upon
Mullenax’s ability to work, and it accounts for the other evidence of record indicating that she is
less than completely disabled. Dr. Greene’s non-specific limitations do not actually undermine
the ALJ’s RFC assessment. Cf. Mascio, 780 F.3d at 637 (holding that ALJ must explain
conflicting assessments of specific functions). Furthermore, as demonstrated above, the other
credible evidence does not support Dr. Greene’s opinion that Mullenax is completely disabled.

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Therefore, the ALJ’s rejection of Dr. Greene’s opinion, if error, was harmless. Kersey v. Astrue,
614 F. Supp. 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.”).
IV. Conclusion
This Court must affirm the Commissioner’s final decision that Mullenax is not disabled if
that decision is consistent with the law and supported by substantial evidence in the record. The
Commissioner has met both requirements. Accordingly, the Court will DENY Mullenax’s
motion for summary judgment, ECF No. 18, and GRANT the Commissioner’s motion for
summary judgment, ECF No. 19. A separate Order will enter.
The Clerk shall send certified copies of this Memorandum Opinion to the parties.

ENTER: June 9, 2015

Joel C. Hoppe
United States Magistrate Judge

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