Rothwell v. Colvin

Filing 23

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 05/27/2015. (bw)

CLERK'S OFFICE U.S. DIST. couRT
AT ROANOKE. VA
FILED

IN THE UNITED STATES DISTRICT COURT
MAY 2 7 2015
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
~~IA.C...Wet:E¥.-ell.E
JODY L. ROTHWELL,
Plaintiff,
V.

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

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Civil Action No. 7:14CV00497

MEMORANDUM OPINION

By:

Hon. Glen E. Comad
Chief United States District Judge

Plaintiff has filed this action challenging the final decision of the Commissioner of Social
Security denying plaintiffs claims for disability insurance benefits and supplemental security income
benefits under the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423, and 42 U.S.C. §
1381 et seg., respectively. Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g) and 42 U.S.C.

§ 1383(c)(3). This court's review is limited to a determination as to whether there is substantial
evidence to support the Commissioner's conclusion that plaintiff failed to establish entitlement to
benefits under the Act. If such substantial evidence exists, the final decision of the Commissioner
must be affirmed. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). Stated briefly, substantial
evidence has been defined as such relevant evidence, considering the record as a whole, as might be
found adequate to support a conclusion by a reasonable mind. Richardson v. Perales, 402 U.S. 389,
401 (1971).
The plaintiff, Jody L. Rothwell, was born on February 19, 1969, and eventually completed
the ninth grade in school. Mr. Rothwell has been employed as an ATM dispatcher and as a
production line worker in a furniture company. He last worked on a regular basis in 2012. In March
of 2012, plaintiff filed applications for disability insurance benefits and supplemental security

income benefits. Mr. Rothwell alleged that he became disabled for all forms of substantial gainful
employment on January 14, 2012, due to uncontrolled diabetes, arthritis in both feet, status post
surgery of right foot, bilateral foot pain, right elbow pain, gout, depression, symptoms of elevated
blood sugar, fatigue, and obesity. Plaintiff now maintains that he has remained disabled to the
present time. As to his application for disability insurance benefits, the record reveals that Mr.
Rothwell met the insured status requirements of the Act at all relevant times covered by the final
decision ofthe Commissioner. See generally, 42 U.S.C. §§ 416(i) and 423(a).
Mr. Rothwell's claims were denied upon initial consideration and reconsideration. He then
requested and received a de novo hearing and review before an Administrative Law Judge. In an
opinion dated February 19,2014, the Law Judge also determined that Mr. Rothwell is not disabled.
The Law Judge found that plaintiff suffers from severe impairments, including right elbow pain with
lateral epicondylitis diagnostic findings; arthralgias of the hips, knees, and feet; lumbar strain;
diabetes mellitus; morbid obesity; obstructive sleep apnea; and gout. (TR 20). Despite such
problems, the Law Judge determined that plaintiff retains sufficient functional capacity for a limited
range of sedentary work activity. The Law Judge assessed Mr. Rothwell's residual functional
capacity as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a range of sedentary work
as defined in 20 C.F.R. 404.1567(a) and 416.967(a). The claimant would retain the
ability to perform standing/walking for 2 hours in a normal 8 hour work day; sitting
for 6 hours in a normalS hour work day; lifting/carrying 10 pounds frequently and
20 pounds occasionally; occasionally pushing/pulling with the lower extremities and
the right upper extremity; and no more than frequent climbing of ramps and stairs,
balancing, kneeling, stooping, and crouching. The claimant would also be precluded
from climbing ladders, ropes, scaffolds, crawling, kneeling, and operation of foot
controls; however, he would be able to perform no more than frequent reaching
overhead with the right upper extremity. The claimant would also require work that
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allows him to avoid concentrated exposure to extreme temperature, excess humidity,
pollutants, and pulmonary irritants. The claimant would require work that does not
involve exposure to hazardous machinery, unprotected heights, or vibrating surfaces.
The claimant would also be precluded from work involving required driving.
(TR 23 ). Given such a residual functional capacity, and after considering plaintiffs age, education,
and prior work experience, as well as testimony from a vocational expert, the Law Judge found that
Mr. Rothwell retains sufficient capacity to return to his past relevant work as a dispatcher.
Accordingly, the Law Judge ultimately concluded that Mr. Rothwell is not disabled, and that he is
not entitled to benefits under either federal program. See generally, 20 C.P.R.§§ 404.1520(f) and
416. 920(f). The Law Judge's opinion was adopted as the final decision ofthe Commissioner by the
Social Security Administration's Appeals Council. Having exhausted all available administrative
remedies, Mr. Rothwell has now appealed to this court.
While plaintiff may be disabled for certain forms of employment, the crucial factual
determination is whether plaintiff is disabled for all forms of substantial gainful employment. See
42 U.S.C. §§ 423(d)(2) and 1382c(a). There are four elements of proof which must be considered
in making such an analysis. These elements are summarized as follows: (1) objective medical facts
and clinical findings; (2) the opinions and conclusions oftreating physicians; (3) subjective evidence
of physical manifestations of impairments, as described through a claimant's testimony; and (4) the
claimant's education, vocational history, residual skills, and age. Vitek v. Finch, 438 F.2d 1157,
1159-60 (4th Cir. 1971); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).
After a review of the record in this case, the court is constrained to conclude that the
Commissioner's final decision is supported by substantial evidence. Mr. Rothwell suffers from a
variety of physical problems, including arthritic complaints in multiple joints, obesity, intractable

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diabetes, obstructive sleep apnea, and hypertension. He has also been treated for depression and
anxiety, which his doctors associate with his obstructive sleep apnea, as well as situational stressors.
It seems that Mr. Rothwell suffered from many of the same symptoms during the period in which

he was productively employed. Other than for occasional symptoms of fatigue and light-headedness,
the medical record suggests that plaintiffs diabetes and hypertension do not affect his capacity for
substantial gainful activity. On the other hand, Mr. Rothwell's musculoskeletal problems are severe.
He suffers from pain in multiple joints, and he has undergone surgery for arthritis in his right foot.
Because of these musculoskeletal problems, the Law Judge determined that plaintiff is disabled for
anything more than sedentary levels of exertion, with certain other restrictions as outlined above.
However, the court believes that the Administrative Law Judge reasonably relied on a consultative
evaluation by Dr. William Humphries in determining that Mr. Rothwell retains the capacity to
perform certain sedentary work roles on a regular basis. After a clinical examination and review of
plaintiffs medical history, Dr. Humphries produced physical findings and diagnoses which were
adopted by the Law Judge, and which clearly support a finding of residual functional capacity for
sedentary work activity. (TR 370-73). The court believes that the Law Judge also reasonably relied
on testimony from a vocational expert, who was asked to consider the limitations identified by Dr.
Humphries and who testified to the effect that plaintiff could still be expected to perform past
relevant work as a dispatcher. (TR 58). Given Dr. Humphries' report, as well as the testimony from
the vocational expert, the court believes that there is substantial evidence to support the Law Judge's
assessment of Mr. Rothwell's case. It follows that the Commissioner's final decision must be
affirmed.

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On appeal to this court, Mr. Rothwell maintains that the Administrative Law Judge erred in
assessing credibility issues, and that the Law Judge failed to account for the subjective
manifestations of plaintiffs multiple impairments. However, the court can discern no real errors in
the Law Judge's evaluation of the subjective factors.
At the administrative hearing, Mr. Rothwell testified that he experiences severe and
debilitating pain in his feet and knees. (TR 44). He uses a cane to assist in ambulation. (TR 44).
Mr. Rothwell related that he takes medication to help with his pain. (TR 45). He also described pain
in his hips and back, though no one was treating him for these difficulties at the time of the hearing.
(TR 46). Mr. Rothwell testified that he is unable to sit for more than about 15 or 20 minutes at a
time. (TR 48). He performs a variety of household chores, though his pain and fatigue prevent
sustained activity. (TR 50). Plaintiff observed that he has difficulty concentrating and sleeping. (TR
53). Mr. Rothwell noted that he has pain in his right elbow, and that he has difficulty reaching and
picking things up with his right upper extremity. (TR 54-55).
While the Law Judge found that plaintiffs physical problems are such as to produce some
symptoms, the Law Judge essentially determined that the physical manifestations described by Mr.
Rothwell in his testimony were out of proportion to the medical evidence. Given the medical record
in this case, the court believes that the Law Judge's assessment was not unreasonable. After his
physical examination, Dr. Humphries opined that plaintiffs arthritic symptoms are mild in most
joints, though moderate in the feet. (TR 372). With the exception of the right foot, Dr. Humphries
noted no joint tenderness or deformity. (TR 371). Furthermore, the court believes that Dr.
Humphries' musculoskeletal findings are consistent with those made during a period of emergency
hospitalization for epigastric problems in late 2012, as well as findings documented during several
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office visits in 2013. Simply stated, in the court's view, the objective medical evidence in this case
is not consistent with plaintiff's testimony as to disabling musculoskeletal discomfort. It is well
settled that, in order for pain to be disabling, there must be objective medical findings establishing
some condition that could reasonably be expected to produce the pain alleged. Craig v. Chater, 76
F.3d 585, 592-93 (4th Cir. 1996); Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986). Indeed,
the court believes that the medical reports compiled in this case in the months prior to the
Administrative Law Judge's decision simply do not reflect objective findings or subjective
complaints consistent with plaintiff's allegations of total disability.
Mr. Rothwell also asserts that the Administrative Law Judge erred in determining his residual
functional capacity prior to assessing the credibility of his testimony. See Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015). However, the court finds that the Law Judge's opinion in the instant case
does not employ the same approach or boilerplate language scored by the Fourth Circuit in Mascio.
Indeed, the court notes that in Mr. Rothwell's case, the Law Judge evaluated the issue of credibility
before assessing the reports from Dr. Humphries and the other examining physicians in an effort to
determine plaintiff's residual functional capacity. (TR 26-29). While the Law Judge may not have
explicitly compared the objective medical findings to plaintiff's testimony regarding his
musculoskeletal discomfort, the court does not find any indication that the Law Judge established
plaintiff's residual functional capacity before considering testimony given at the hearing. Once
again, in the final analysis, it appears to the court that the Law Judge resolved the credibility issues
based on the scarce medical findings, as well as certain inconsistencies in plaintiff's testimony at the
hearing. The court finds the Law Judge's disposition of these issues to be supported by substantial
evidence.
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There is one additional circumstance in Mr. Rothwell's case which deserves some mention.
Some time after the Administrative Law Judge rendered her decision, Mr. Rothwell, through
counsel, submitted new medical evidence. The new medical evidence, consisting of a report from
Dr. Elvis Pagan, suggests that Mr. Rothwell now experiences disabling, severe depression. While
it is clear that the Social Security Administration's Appeals Council received the new medical report
prior to adopting the Law Judge's opinion as the final decision of the Commissioner, the Appeals
Council did not give explicit consideration to Dr. Pagan's assessment as to the severity of plaintiffs
depression. In such circumstances, it is sometimes necessary to remand cases to the Commissioner
for further development and consideration. See Meyer v. Colvin, 662 F .3d 700, 707 (4th Cir. 2011 ).
However, the court does not believe that there is "good cause" for remand of Mr. Rothwell's case
at this time. The medical reports which were received and considered by the Administrative Law
Judge simply fail to document any significant psychiatric or psychological dysfunction. See, ~'
TR. 371, 403, 454, 468, and 473. Thus, there is no reason to believe that the Commissioner's
decision as to plaintiffs disability prior to the date of the Administrative Law Judge's decision
would be different, even upon consideration of the new medical report first submitted to the Appeals
Council. Compare Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985). In such circumstances,
the appropriate course for Mr. Rothwell is to file a new application for benefits, alleging disability
onset at some point in time after the date of the Administrative Law Judge's decision in the instant
case.
In summary, the court has found substantial evidence in support of the Law Judge's decision
denying plaintiff's entitlement to benefits. Accordingly, the Law Judge's final decision must be
affirmed. Laws v. Celebrezze, supra. In affirming the final decision of the Commissioner, the court
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does not suggest that Mr. Rothwell is free of all pain, fatigue, weakness and discomfort. Indeed, the
medical record confirms that plaintiff suffers from definite musculoskeletal problems, and that his
arthritic complaints render him disabled for anything more than sedentary levels of work. Mr.
Rothwell's diabetes is also worrisome and troublesome. However, the medical reports from doctors
who have examined Mr. Rothwell do not document the existence of any mechanical problems or
sensory deficits which could be expected to produce totally disabling pain and discomfort. It is well
settled that the inability to do work without any discomfort, does not of itself render a claimant
totally disabled. Craig v. Chater, 76 F.3d at 594-95. As reflected above, it appears to the court that
the Administrative Law Judge considered all of the subjective factors reasonably supported by the
record in adjudicating plaintiffs claims for benefits. It follows that all facets of the Commissioner's
final decision are supported by substantial evidence.
As a general rule, resolution of conflicts in the evidence is a matter within the province of
the Commissioner, even ifthe court might resolve the conflicts differently. Richardson v. Perales,
supra; Oppenheim v. Finch, 495 F.2d 396 (4th Cir. 1974). For the reasons stated, the court finds the
Commissioner's resolution of the pertinent conflicts in the record in this case to be supported by
substantial evidence. Accordingly, the final decision of the Commissioner will be affirmed, with an
appropriate judgment and order entered this day. As noted above, Mr. Rothwell may wish to
consider filing new applications for benefits if he believes he now suffers from nonexertional
impairments which contribute to an overall disability.
The Clerk is directed to send certified copies of this opinion to all counsel of record.
DATED: This

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day of May, 2015.

Chief United States District Judge
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