Thomason v. Colvin

Filing 23

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on August 23, 2016. (sfc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

ANN JUANITA THOMASON.

CASE NO. 6:15-cv-00015

Plaintiff,

v.

MEMORANDUM OPINION

CAROLYN W. COLVIN, Acting Commissioner of
Social Security,
Defendant.

JUDGE NORMAN K. MOON

This matter is before the Court on the parties’ cross Motions for Summary Judgment
(dkts. 14 and 16), the Report & Recommendation of United States Magistrate Judge Robert S.
Ballou (dkt. 21, hereinafter “R&R”), and Plaintiff’s Objections to the R&R (dkt. 22, hereinafter
“Objections to R&R”). Pursuant to Standing Order 2011-17 and 28 U.S.C. § 636(b)(1)(B), the
Court referred this matter to U.S. Magistrate Judge Ballou for proposed findings of fact and a
recommended disposition. Judge Ballou filed his R&R, advising this Court to deny Plaintiff’s
Motion for Summary Judgment and grant the Commissioner’s Motion for Summary Judgment.
Plaintiff timely filed his Objections, obligating the Court to undertake a de novo review of those
portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1)(B); Farmer v.
McBride, 177 F. App’x 327, 330 (4th Cir. 2006). For the following reasons, I will overrule
Plaintiff’s Objections and adopt Judge Ballou’s R&R in full.
I. BACKGROUND
In October 2010, Thomason visited the Village Family Physicians complaining of
hypertension, headache, and depression. R. 217. At this appointment, Thomason indicated that
she had not had any medication for approximately four days and had been experiencing
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increased depression and crying. R. 217. To help with these problems, the doctor prescribed her
four different types of medication. R. 220.
In November and December 2011, Thomason returned to Village Family Physicians. R.
213. She continued to complain of hypertension, depression and headaches, along with new
complaints of back and joint pain. R. 213. This examination revealed that she had pain and
spasms in her lower back and swelling of her knee. R. 211.
In August 2012 and January 2013, Thomason once again returned to Village Family
Physicians for medication refills. R. 225, 254. At these appointments, she complained of
headaches, back and joint pain, and an inability to fall asleep. R. 225, 254. The examination
revealed that Thomason was obese, but had normal posture, muscle tone, and strength in her
arms and legs. R. 227. The mental status exam indicated that she had appropriate mood and
affect, normal judgment and insight, and could perform basic computations and apply abstract
reasoning. R. 227.
On May 23, 2012, Thomason protectively filed for SSI, claiming that her disability began
on that same day due to back problems, knee pain, high blood pressure, depression, and
migraines. R. 12, 161, 180. The state agency denied Thomason’s application at the initial and
reconsideration levels of review. R. 60–67, 69–79.
In September 2012, Richard J. Milan, Jr., Ph.D., state agency psychologist, indicated that
Thomason’s mental status examinations were within normal limits and her depression was
controlled with medication. R. 63. Dr. Milan determined that Thomason “retain[ed] the ability
to handle all levels of work tasks.” R. 63. Similarly, in June 2013, Hillery Lake, M.D., state
agency physician, determined that Thomason’s mental impairment was non-severe, noting that
Thomason’s mental status exams were normal and she attended regular education classes in

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school. R. 74. Two other state physicians, Dr. Michael Hartman and Dr. Robert McGuffin, also
reviewed the record. Dr. Hartman determined that Thomason had the ability to perform work at
the medium extertional level, while Dr. McGuffin found that Thomason could perform a limited
range of light work, with postural limitations due to her knee and back pain. R. 66, 76–77.
On June 15, 2013, Sung-Joon Cho, M.D., performed a medical consultative evaluation on
Thomason. R. 268–71. At this evaluation, Dr. Cho noted that Thomason had complained of
chronic knee and back pain for approximately ten years, due to a vehicle accident. Dr. Cho,
however, noted that Thomason walked with “otherwise unremarkable” gait and without
assistance. Dr. Cho also indicated that Thomason had “some problems with reading.” R. 269.
The physical exam revealed that Thomason was 5’3” tall and weighed 209 pounds. Dr.
Cho noted that Thomason was “limited by her obesity” making it difficult for her to walk on her
tip-toes and squat. R. 269–70. However, her motor function was a full five out of five in the
upper and lower extremities, with no joint effusion or significant crepitus in her knee, and no
evidence of major inflammation or instability, and her straight leg test was negative. R. 270. Dr.
Cho noted that Thomason had full range of motion except for lumbar flexion, lumbar extension,
and lateral flexion. R. 270.
Dr. Cho found that Thomason’s affect, thought content, and memory were adequate;
however, her general fund of information was limited and she had difficulty counting in intervals
of three. R. 270. This limitation was consistent with Thomason dropping out at school at age
fourteen due to pregnancy. R. 46, 270.
At the end of the examination, Dr. Cho diagnosed Thomason with obesity, chronic low
back pain, degenerative joint disease of the knee exacerbated by obesity, and illiteracy. R. 270.
Dr. Cho imposed the functional limitations of maximum standing and walking of two to four

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hours and maximum lifting of ten pounds frequently and twenty pounds occasionally. R. 270–
71. Dr. Cho also noted that Thomason should only occasionally balance, stop, kneel, crouch,
and crawl and should avoid climbing. R. 271.
A. The ALJ’s Decision
On January 22, 2014, Administrative Law Judge (“ALJ”) Ann V. Sprague held a hearing
to consider Thomason’s claims for SSI. R. 25–52. Counsel represented Thomason at the
hearing, which included testimony from vocational expert Robert Jackson. On April 8, 2014, the
ALJ entered her decision analyzing Thomason’s claim.
The ALJ analyzed Thomason’s claim under the required five-step inquiry. Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). In this process, the ALJ determines whether: (1)
the claimant is engaged in substantial gainful activity; (2) the claimant has a medical impairment
(or combination of impairments) that is severe; (3) the claimant’s medical impairment meets or
exceeds the severity of one of the impairments listed in Appendix I of 20 C.F.R. Part 404,
Subpart P, Appendix 1, and the impairment meets the duration requirement in 20 C.F.R. §§
404.1509 and 416.909; (4) the claimant is able to perform her past relevant work; and (5) the
claimant can perform other specific types of work. Johnson v. Barnhart, 434 F.3d 650, 653 n.1
(4th Cir. 2005) (citing 20 C.F.R. § 404.1520).
The claimant has the burden of production and proof in Steps 1–4. See Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). If the claimant meets that burden, at Step
5 the burden shifts to the Commissioner “to produce evidence that other jobs exist in the national
economy that the claimant can perform considering his age, education, and work experience.”
Id. If a determination of disability can be made at any step, the Commissioner need not analyze
subsequent steps. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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The ALJ found that Thomason suffered from the severe impairments of obesity with back
and neck pain, and depression. R. 14. The ALJ found that Thomason had the following
limitations in the broad areas of functioning: (1) mild restriction in activities of daily living, (2)
moderate difficulties in maintaining social functioning, (3) mild difficulties in maintaining
concentration, persistence, or pace. R. 15–16. However, the ALJ found that Thomason had no
episodes of decompensation of extended duration. R. 15–16; 20 C.F.R. § 416.920a(c).
From this finding, the ALJ determined that Thomason’s impairments did not meet or
medically equal a listed impairment, and specifically, Thomason’s depression did not meet
Listing 12.04. R. 15–16. From this determination, the ALJ concluded that Thomason retained
the residual functional capacity (“RFC”) to perform a limited range of light work. R. 17. In this
light work, the ALJ found that Thomason could only occasionally climb stairs and ramps,
balance, bend, stoop, kneel, crouch, and crawl, and could never climb ladders, ropes, and
scaffolds.

However, the ALJ determined that Thomason could perform jobs that exist in

significant numbers in the national economy, such as cleaner and packer. R. 20. Thus, the ALJ
concluded that Thomason was not disabled. R. 21.
C. Summary Judgment Motions and The Magistrate Judge’s Report and
Recommendation
After cross motions for summary judgment were filed, Magistrate Judge Robert S. Ballou
held a hearing, (Dkt. 19), and on July 29, 2016, entered a report and recommendation.
Judge Ballou recommends denying Plaintiff’s motion for summary judgment, and
granting the Commissioner’s motion.

In his R&R, Judge Ballou addressed Plaintiff’s

contentions that the ALJ erred by: (1) refusing to grant Thomason’s request for a psychological
consultative examination with intelligence evaluation; (2) failing to properly evaluate Dr. Cho’s

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opinions; (3) failing to properly evaluate the impact of Thomason’s obesity on her impairments;
and (4) improperly discounting Thomason’s credibility. After an extensive review of each
argument, Judge Ballou concluded that all of the ALJ’s determinations were supported by
substantial evidence. Dkt. 21.
II. STANDARD OF REVIEW
A reviewing court must uphold the factual findings of the ALJ if they are supported by
substantial evidence and were reached through application of the correct legal standard. See 42
U.S.C. §§ 405(g), 1383(c)(3); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). Substantial
evidence requires more than a mere scintilla, but less than a preponderance, of evidence. Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). A finding is supported by substantial evidence if it is
based on “relevant evidence [that] a reasonable mind might accept as adequate to support a
conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam). Where
“conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the
Court must defer to the Commissioner’s decision. Johnson, 434 F.3d at 653.
A reviewing court may not “re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment” for that of the ALJ. Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996) (citation omitted). “Where conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the
Secretary (or the Secretary’s designate, the ALJ).” Id. (quoting Walker v. Bowen, 834 F.2d 635,
640 (7th Cir. 1987)). “Ultimately, it is the duty of the [ALJ] reviewing a case, and not the
responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus, even if the court would have made

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contrary determinations of fact, it must nonetheless uphold the ALJ’s decision, so long as it is
supported by substantial evidence. See Whiten v. Finch, 437 F.2d 73, 74 (4th Cir. 1971).
III. DISCUSSION
In her objections to the R&R, Thomason argues that Judge Ballou’s R&R erroneously
found substantial evidence in support of the ALJ’s conclusion of the following: (1) refusing to
grant Thomason’s request for a psychological consultative examination with intelligence
evaluation; (2) failing to properly evaluate Dr. Cho’s opinions; (3) failing to properly evaluate
the impact of Thomason’s obesity on her impairments; and (4) improperly discounting
Thomason’s credibility. Dkt. 22. Therefore, I will discuss each objection separately.
A. ALJ’s Refusal to Grant a Psychological Consultative Evaluation
Thomason argues that the R&R erroneously concludes that substantial evidence supports
the ALJ’s decision not to order a consultative psychological evaluation. Dkt. 22 at 1.
Following the hearing before the ALJ, the ALJ reviewed Thomason’s school records and
denied Thomason’s request for this evaluation, stating that the “record is sufficient to support a
decision on this claim.” R. 12. Under the regulations, an ALJ has discretion in deciding whether
to order a consultative examination. Bishop v. Barnhart, 78 F. App’x 265, 268 (4th Cir. 2003).
A consultative exam is only needed when the evidentiary record before the ALJ is inadequate.
Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986).
Specifically, Thomason argues that the record before the ALJ only provided evidence for
physical impairments and depression, but no analysis was provided of Thomason’s IQ or
illiteracy.
This is incorrect. The record before the ALJ was adequate, as it provided significant
documentation to determine whether a consultative exam was necessary.

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For example,

Thomason indicated in her Disability Report that she never attended special education classes,
and her school records indicate that she never was required to repeat a grade or receive special
education.

R. 47, 181, 279–87.

From this report and school record, the ALJ found that

“[a]lthough the evidence reflects low test scores and grades, [Thomason’s] IQ in second grade
was 80 and she progressed through the grades without special education support.” R. 12.
To the extent that Dr. Cho’s evaluation suggests that Thomason was illiterate, the ALJ
considered this evaluation but found that “the diagnosis is not within [Dr. Cho’s] specialty.” R.
19; see also 20 C.F.R. 404.1527(c)(5). The ALJ also found that there “is no evidence of deficits
in adaptive functioning prior to age 22, as required to establish listing 12.05” and likewise “no
evidence of traumatic brain injury or organic injury to establish a finding under listing 12.02.”
R. 12.

Finally, the ALJ noted that Thomason “drives, completed forms for the application of

benefits, and pays bills with checks.” R. 12.
Therefore, the ALJ’s analysis shows consideration of multiple sources—from the
Disability Report to school records—to determine whether the evaluation was necessary.
Accordingly, substantial evidence supports the ALJ’s decision to not request a physiological
evaluation.
B. ALJ’s Evaluation of Dr. Cho’s Opinion
In her second objection, Thomason argues that the R&R erroneously concluded that the
ALJ adequately explained her consideration of Dr. Cho’s consultative evaluation. Dkt. 22 at 3.
This objection fails.
The regulations require the ALJ to consider all medical opinions in the record. 20 C.F.R.
§§ 404.1527(b) and(c); Monroe v. Colvin, ___ F. 3d. ___, No. 15-1098, 2016 WL 3349355, at

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*11 (4th Cir. June 16, 2016). An ALJ must “build an accurate and logical bridge from the
evidence to his conclusion.” Id. at *10.
While Thomason argues that the R&R “attempts to build a logical bridge for the ALJ,”
this is incorrect. The ALJ’s decision flowed logically, as the ALJ adequately explained her
consideration of Dr. Cho’s consultative evaluation, thus enabling the court to conduct a
meaningful review. Id. While it is true that the ALJ gave substantial weight to the opinions of
Drs. McGuffin and Hartman, it cannot be said that no consideration was given to Dr. Cho.
The ALJ discussed the consultative exam performed by Dr. Cho. R. 18–19. The ALJ,
however, gave Dr. Cho’s opinion regarding Thomason’s functional limitation only partial
weight. R. 19. Specifically, the ALJ noted that Thomason moved with “a slow, but otherwise
unremarkable gait and no assistive device.” R. 18. The ALJ further discussed Dr. Cho’s
evaluation, stating that Thomason complained of pain from a prior vehicle accident, but Dr.
Cho’s reported of “no fracture, no surgeries, and no injections.” R. 19. Furthermore, Thomason
got on and off the examination table without difficulty, demonstrated five out of five strength in
all extremities, and displayed full range of motion except for some limitation in the lumbar spine.
R. 19.
The ALJ also considered Dr. Cho’s opinion when considering Thomason’s RFC.
Specifically, the ALJ limited Thomason to never climbing ladders, ropes, or scaffolds, and only
occasional balancing, bending, stooping, kneeling, crouching, and crawling. These were all
postural limitations imposed by Dr. Cho. While other limitations were more expansive than Dr.
Cho, these limitations were explained due to other medical evaluations.
Accordingly, the ALJ properly considered Dr. Cho’s evaluation and provided significant
explanation for her decision.

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C. ALJ’s Consideration of Plaintiff’s Obesity
In her third objection, Thomason argues that the R&R erroneously concluded that the
ALJ properly considered Thomason’s obesity under SSR 02-1p because she did not consider the
impact of Thomason’s obesity on her other impairments. Dkt. 22 at 5. This objection fails.
SSR 02-1p defines obesity as “a complex, chronic disease characterized by excessive
accumulation of body fat.” Titles II & Xvi: Evaluation of Obesity, SSE 02-1p, 2002 WL
34686281 at *2 (S.S.A. Sept. 12, 2002). When assessing a claimant’s RFC, the ALJ must
consider the “effect obesity has upon the [claimant’s] ability to perform routine movement and
necessary physical activity within the work environment” as the “combined effects of obesity
with other impairments may be greater than might be expected without obesity.” Id. However,
there is no requirement in the regulation that the ALJ include a lengthy or precise analysis in the
opinion. Richards v. Astrue, No 6:11cv00017, 2012 WL 5465499, at *6 (W.D. Va. July 5,
2012). The ALJ may rely upon medical records which adequately show a claimant’s obesity and
adopt the conclusions of doctors who are aware of the claimant’s obesity. Id.
In this case, the ALJ found at step two of the analysis that Thomason’s obesity was a
severe impairment. R. 15. The ALJ further stated that she considered the obesity at all steps in
the subsequent analysis. R. 15. In this analysis, the ALJ specifically cited SSR 02-1p and found
that her obesity “can reasonably be expected to cause back and neck pain.” R. 15.
In assessing Thomason’s RFC, the ALJ considered Dr. Cho’s opinion that diagnosed her
with “chronic low back pain secondary to obesity and degenerative joint disease of the knee
exacerbated by obesity.” R. 18. The ALJ also specifically stated that “the light extertional level
with occasional postural limitations and unskilled work activity with occasional interaction
considers the claimant’s limitations from obesity and depression.” R. 19.

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Accordingly, the ALJ properly considered Thomason’s obesity as required by SSR 021p. Richards, 2012 WL 5465499, at *6.
D. ALJ’s Credibility Determination of the Plaintiff
Thomason’s fourth objection argues that the ALJ’s determination that Thomason was
only partially credible was supported by substantial evidence. Dkt. 22 at 6.
It is not the role of this Court to determine whether Plaintiff’s testimony was fully
credible. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Rather, the question for the Court is
whether the ALJ applied the proper legal standard in assessing Plaintiff’s credibility, and
whether the ALJ’s decision is supported by substantial evidence. Id.; see also Shifflet v. Colvin,
No. 13-112, 2015 WL 1893438, at *9 (W.D. Va. Apr. 27, 2015) (credibility determinations
should be disturbed only if “exceptional circumstances” exist).
The ALJ determines through a two-step process whether a claimant is disabled. Id. at
594; see SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996). First, the ALJ must find “objective
medical evidence showing the existence of a medical impairment(s) which results from
anatomical, physiological, or psychological abnormalities, and which could reasonably be
expected to produce the pain or other symptoms alleged.” Craig, 76 F.3d at 594 (quotations and
emphasis omitted). If such evidence is found, the ALJ must then evaluate “the intensity and
persistence of the claimant’s [symptoms], and the extent to which [they] affect[ ] her ability to
work.” Id. at 595. Among other factors, when evaluating the claimant’s credibility the ALJ
should consider all evidence in the record, including “[d]iagnosis, prognosis, and other medical
opinions provided by treating or examining physicians or psychologists.” SSR96–7p, 1996 WL
374186, at *5. The ALJ’s determination “must contain specific reasons” that “make clear to the

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individual and to any subsequent reviewers the weight the [ALJ] gave to the individual's
statements and the reasons for that weight.” Id. at *4.
Here, the ALJ found that Thomason’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, [Thomason’s] statements
concerning the intensity, persistence, and limited effects of these symptoms are not entirely
credible.” R. 18. To support this conclusion, the ALJ noted that the allegations concerning the
severity of her limitations were not corroborated by objective clinical findings, such as
musculoskeletal and mental status exam. R. 18. Furthermore, the ALJ found that the medication
prescribed for these impairments “have been relatively effective in controlling the [Thomason’s]
symptoms.” R. 18–19. Finally, the ALJ stated that Thomason “described varied activities of
daily living that were not limited to the extent one would expect, given the complaints of
disabling symptoms and limitations” and referenced Thomason’s acknowledgment that she
“performed personal care, prepared simple meals, cared for a pet, paid bills, drove, shopped,
socialized, played bowling games on PlayStation, and babysat her grandchildren, with all the
physical and emotional endurance children care requires.” R. 19, 185–90; see also Dolfax v.
Astrue, 7:09-cv-67, 2010 WL 1488116, at *11 (E.D.N.C. Mar. 18, 2010) (finding that activities
of daily living are a highly probative factor in determining the credibility of a claimant’s
allegations).
Accordingly, the ALJ provided specific reasons that “make[s] clear to the individual and
to any subsequent reviewers the weight the [ALJ] gave to the individual’s statements and the
reasons for that weight.” SSR96–7p, 1996 WL 374186, *4.

IV. CONCLUSION

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After undertaking a de novo review of those portions of the R&R to which Plaintiff
objected, I find that substantial evidence supports the ALJ’s conclusions. Accordingly, I will
enter an order overruling Plaintiff’s Objections (dkt. 22), adopting the Magistrate Judge’s R&R
in full (dkt. 21), granting the Commissioner’s Motion for Summary Judgment (dkt. 16), denying
Plaintiff’s Motion for Summary Judgment (dkt. 14), and dismissing and striking this action from
the active docket of the Court.
The Clerk of the Court is hereby directed to send a certified copy of this Memorandum
Opinion and the accompanying Order to all counsel of record, and to United States Magistrate
Judge Robert S. Ballou.
23rd
Entered this _____ day of August, 2016.

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