Carter v. Berryhill
Filing
15
MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 12/14/2017. (ssm)
CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DEC 1'f 2017
,. JUL~~
BY:
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I.
TERRY GLENN CARTER,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of sbcial Security,
Defendant.
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Civil Action No. 7:17CV00172
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior 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
42 U.S.C. § 1381 et (seq., 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 decision.
Be.cause the
plaintiff has abandoned his claim for disability insurance benefits, the only issue presently before
the court is whether substantial evidence supports the Law Judge's conclusion that the plaintiff
failed to meet the requirements for entitlement to supplemental security income benefits. 1 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).
1
At the hearing on the Commissioner's motion for summary judgment, plaintiffs counsel represented to the court
that the plaintiff had amended the alleged onset date from August 1, 2009 to July 15, 2015 and could therefore not
satisfy the insured status requirements of the Act for disability insurance benefits.
The plaintiff, Terry Glenn Carter, was born on May 23, 1970, and eventually completed
his high school education. Mr. Carter has worked as a janitor and a fast food worker. He last
worked on a regular and sustained basis in 2009. On May 30, 2013, Mr. Carter filed applications
for disability insurance benefits and supplemental security income benefits. Mr. Carter alleged
disability based on lower back pain; injury to his hands, knees, and shoulders; diabetes;
headaches; a burning sensation in his right arm; and pain in his feet and ankles.
He now
maintains that he has remained disabled to the present time. Mr. Carter's applications were
denied upon initial consideration and reconsideration. Mr. Carter then requested and received a
de novo hearing and review before an Administrative Law Judge.
In an opinion dated February 11, 2016, the Law Judge applied the five-step sequential
process for evaluating disability claims? 20 C.F.R. §§ 404.1520 and 416.920. The Law Judge
found that Mr. Carter has not engaged in substantial gainful activity since August 1, 2009, and
that he suffers from severe impairments including degenerative disc disease, cervical
radiculopathy, carpal turuiel syndrome, and obesity. The Law Judge then assessed Mr. Carter's
residual functional capacity as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 C.F .R.
404.1567(b) and 416.967(b) except that the claimant can only occasionally
perform handling and fingering bilaterally.
(Tr. 40).
Given this residual functional capacity, and after considering Mr. Carter's age,
education, and prior work experience, as well as the testimony of a vocational expert, the Law
Judge determined that Mr. Carter could not perform any past relevant work, but retained
2
The process requires the Law Judge to consider, in sequence, whether a claimant: (1) is engaged in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of a listed
impairment; (4) can return to his past relevant work; and (5) if not, whether he can perform other work in the
national economy. 20 C.F.R. §§ 404.1520 and 416.920. If a decision can be reached at any step in the sequential
evaluation process, further evaluation is unnecessary. Id.
2
sufficient functional capacity to perform certain light work roles existing in significant number in
the national economy. (Tr. 44). Accordingly, the Law Judge concluded that Mr. Carter has not
been disabled since 2009, is not presently disabled, and is not entitled to either disability
insurance benefits or supplemental security income benefits. See 20 C.F.R. §§ 4040.1520(f) and
416.920(£). The Law Judge's opinion was adopted as the final decision of the Commissioner by
the Social Security Administration's Appeals Council.
Having exhausted all administrative
remedies, Mr. Carter has now appealed to this court.
While the plaintiff may be disabled for certain forms of employment, the crucial factual
determination is whether the 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 of treating
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. The Law Judge's opinion
reflects a thorough evaluation of Mr. Carter's medical records, the opinions of physicians who
examined Mr. Carter, Mr. Carter's testimony about impairments, and Mr. Carter's
characteristics.
The medical record reveals that Mr. Carter has received treatment from the Pulaski Free
Clinic since 2009. (Tr. 305). The Law Judge tracked Mr. Carter's care at the Free Clinic, noting
3
that Mr. Carter rarely sought care and, when he did, did not show any signs of significant
abnormalities. Mr. Carter first complained of hand and shoulder pain in December 2011, but the
medical records from that visit do not indicate any significant abnormalities. (Tr. 42, 304).
Indeed, at a July 2012 visit, Mr. Carter exhibited full muscle strength, intact cranial nerves, and
normal reflexes. (Tr. 42, 303). The Free Clinic first recorded objective evidence of an injury in
January 2014 when an X-ray showed mild diffuse degenerative arthritic changes in Mr. Carter's
back that supported a diagnosis of degenerative disc disease. (Tr. 42, 355). However, a physical
examination of Mr. Carter at that time revealed that the mild objective abnormality did not have
any significant effect on Mr. Carter's abilities. (Tr. 43-43, 332).
In denying Mr. Carter's claim, the Law Judge also relied on a consultative physical
evaluation performed by neurologist Dr. Rollin J. Hawley in October 2015. (Tr. 43, 356-57).
Based on his review of Mr. Carter's medical history, as well as his own clinical findings from
nerve conduction studies and an electromyography ("EMG") of Mr. Carter's upper extremities,
Dr. Hawley diagnosed Mr. Carter with carpal tunnel syndrome, chronic cervical radiculopathy
that resulted in numbness to Mr. Carter's left middle through little
(Tr. 357). After
obse~ing
finger~,
and diabetes mellitus.
that Mr. Carter was morbidly obese, Dr. Hawley advised Mr. Carter
to lose weight and maintain control of his diabetes. (Tr. 356-57). Dr. Hawley recommended that
Mr. Carter wear wrist splints at night or when tempted to flex his wrists, and noted that surgery
was a possible treatment if less invasive treatments failed to relieve the pain. (Tr. 357). Finally,
Dr. Hawley recommended conservative care of Mr. Carter's cervical spine. (Tr. 357).
The Law Judge also gave great weight to the opinion of Mr. Carter's treating physician,
Dr. Carl E. Hanks, that Mr. Carter could only occasionally lift 20 pounds, handle, or finger. (Tr.
43). On the other hand, the Law Judge gave less weight to other findings included on a physical
4
assessment form completed by Dr. Hanks, based on the determination that the evaluation of
plaintiffs stamina and capacity for sitting and standing were more subjective, and not fully
supported by clinical assessments. (Tr. 43).
The Law Judge similarly gave limited weight to the opinion of a state agency medical
consultant that Mr. Carter had no severe impairments and the opinion of another state agency
medical consultant that Mr. Carter could perform medium work. (Tr. 43-44). The Law Judge
explained that giving limited weight to those opinions favored Mr. Carter.
However, the Law Judge also did not fully credit the subjective complaints of Mr. Carter.
Although Mr. Carter testified that he experienced pain in his. hands, neck, back, and feet, the
record does not contain any objective evidence of injury to Mr. Carter's lower extremities. Mr.
Carter also testified that he stopped working in 2009 because a supervisor fired him following a
disagreement, that he, would have continued to work had he not been fired, and that he searched
for jobs until he filed for disability benefits. (Tr. 66-67). The Law Judge viewed Mr. Carter's
credibility as limited because Mr. Carter initially sought disability benefits as of the date that he
stopped working despite testifying that he stopped working because he was fired.
Finally, the Law Judge considered Mr. Carter's characteristics and the opinion of the
vocational expert. The Law Judge asked the vocational expert about the availability of jobs for a
hypothetical individual of Mr. Carter's age and experience who could lift and carry no more than
20 pounds occasionally and 10 pounds frequently and only occasionally handle and finger. (Tr.
57). The vocational expert testified that such an individual could not perform Mr. Carter's past
work, but could perform jobs that exist at the light exertionallevel such as usher, furniture rental
clerk, and gate guard. (Tr. 57-58).
5
On appeal to this court, Mr. Carter, through counsel, makes three arguments in support of
his claim for supplemental security income benefits. First, Mr. Carter argues that the Law Judge
failed to give controlling weight to the entire opinion of his treating physician, Dr. Hanks.
3
The
administrative regulations accord controlling weight to opinions from a treating medical source
as long as the source's opinion '"is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record."' Brown v. Comm'r of Soc. Sec. Admin., 873 F.3d 251, 256 (4th Cir. 2017)
(quoting 20 C.F.R. § 404.1527(c)(2)). When a Law Judge declines to give controlling weight to
a treating physician's opinion, the Law Judge must consider a nonexclusive list of factors to
determine the weight to accord the treating source's opinion. See 20 C.F.R. § 494.1527(c)(2)(c)(6) (listing the factors to be considered).
In this case, the court believes that the Law Judge properly awarded partial weight to Dr.
Hanks~
opinion. The Law Judge recognized Dr. Hanks as a treating physician and credited his
opinion that Mr. Carter could lift up to 20 pounds occasionally and could only engage in
occasional handling and fingering, but gave limited weight to the remainder of Dr. Hanks'
opinion, which included that Mr. Carter: (1) could stand and walk on a sustained basis for about
four hours, but not at least six hours, and could sit for about two hours; (2) would "experience
3
At the hearing before this court, Mr. Carter, through his attorney, suggested that the Law Judge erred in
considering August 1, 2009 as the onset date. According to Mr. Carter, during the administrative hearing, he
amended the onset date to July 15, 2015. Even assuming the Law Judge erred in relying on the earlier onset date,
the court believes that such an error would be harmless because the Law Judge specifically considered the evidence
from 2015 to conclude that Mr. Carter could not establish entitlement to benefits. Because the Law Judge clearly
considered the narrower period after the alleged amended onset date, the Law Judge did not err in reviewing the
earlier period. See McGougan v. Comm'r, Soc. Sec., Civil Case No. JK.B-13-52, 2014 WL 266807, at *1 n.1 (D.
Md. Jan. 23, 2014); see also Bourret v. Colvin, No. 2:13-CV-00334-JAW, 2014 WL 5454537, at *3 (D. Me. Oct. 27,
2014) (collecting cases rejecting argument that ignoring amended onset date entitles plaintiff to remand).
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pain or other symptoms severe enough to interfere with attention and concentration," and (3)
would likely be absent from work more than four times a month. (Tr. 361-62).
The Law Judge
obs~rved
that while Dr. Hanks' opinion regarding Mr. Carter's upper
extremities was supported by clinical "findings and the objective testing," there was a "dearth of
medical evidence" as to the remainder of his opinion. (Tr. 43). Indeed, the Law Judge noted that
the limited medical evidence in this record does not establish any more than "mild objective
abnormalities" with "normal clinical findings." (Tr. 43). Based on those findings, the court
believes that the Law Judge was not required to give controlling weight to the entirety of Dr.
Hanks' opinion. See 20 C.F.R. § 404.1527(c)(2). Indeed, the court believes that substantial
evidence supports the Law Judge's decision to accord little weight to ·portions of Dr. Hanks'
opinion. That evidence includes Dr: Hanks' infrequent examinations of Mr. Carter, the lack of
significant laboratory findings or other support for the less credited portions of Dr. Hanks'
opinion, and the inconsistency between those portions of Dr. Hanks' opinion and the record as a
whole. See 20 C.F.R. § 404.1527(c). In particular, the court notes that Dr. Hanks' assessment of
plaintiffs residual functional capacity appears to be inconsistent with the opinions of Dr.
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Hawley, which were substantially based on objective neurological studies. The Law Judge
therefore gave greater weight to the opinions of Dr. Hawley. The court believes that the Law
Judge's treatment of these issues was reasonable, in light of the medical evidence in Mr. Carter's
Second, Mr. Carter maintains that the Law Judge did not perform a functional analysis of
his capacity for attention and concentration. While it is true that Dr. Hanks indicated Mr. Carter
4
The court believes that the Law Judge's treatment of this case can be distinguished from the recent Fourth Circuit
decision in Bog1ey v. Berryhill, No. 16-2381 (4th Cir. Dec. 13, 2017). Contrary to the Law Judge in that case, in the
instant case, the Law Judge discussed the weight to be given to all of the opinions of Mr. Carter's treating physician.
7
would frequently expenence pam or other symptoms severe enough to interfere with his
attention and concentration, the court must again note that such an opinion is simply not
substantiated by objective medical findings. The court has found substantial evidence to support
the Law Judge's decision to give little weight to Dr. Hanks' opinion regarding Mr. Carter's
ability to concentrate.
Aside from Mr. Carter's subjective claims of pain, the Law Judge
recognized that nothing else in the record supports a finding that Mr. Carter experiences any
significant difficulty with attention or concentration. The Law Judge also noted that Mr. Carter
"reported that he can pay attention for 'as long as needed,' and denied any problems with
finishing what he starts." (Tr. 39, 252). The court therefore believes that the Law Judge's
treatment of attention and concentration, as well as her evaluation of Mr. Carter's residual
functional capacity, is consistent with the protocol established in Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015).
Third, Jvl_r. Carter argues that the Law Judge did not adequately
explai~
whether Mr.
Carter's obesity caused any functional limitations in his ability to work or could support Dr.
.
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Hanks''findings. However, the court observes that the Law Judge did consider Mr. Carter's
obesity in determining Mr. Carter's residual functional capacity, but noted that the medical
record did not contain any significant clinical findings relating to Mr. Carter's obesity to support
more substantial functional limitations. Dr. Hanks also did not provide the Law Judge with any
indication that the conclusory findings in the December 2015 physical assessment relied on Mr.
Carter's obesity. In any event, the record shows that Mr. Carter worked for a substantial period
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oftime, despite suffering from significant obesity as well as diabetes.
In affirming the Commissioner's final decision, the court does not suggest that Mr. Carter
is totally free of pain and discomfort. However, the court recognizes that the inability to work
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without any subjective complaints does not of itself render a claimant totally disabled. Craig v.
Chater, 76 F.3d 585, 592 (4th CiL 1996). It appears to the court that the Law Judge considered
all of the medical evidence, as well as all of the subjective factors reasonably supported by the
record, in adjudicating Mr. Carter's claim for benefits. Specifically, the Administrative Law
Judge considered Dr. Hanks' opinion, ML Carter's claimed difficulties with attention and
concentration, and ML Carter's obesity.
Thus, the court concludes that all facets of the
Commissioner's final decision are supported by substantial evidence.
As a general rule, the resolution of conflicts in the evidence is a matter within the
province of the Commissioner, even if the 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 must be affirmed.
Laws v.
Celebrezze, supra.
The Clerk is directed to send certified copies of this opinion to all counsel of record.
ENTER:
This/'1-7:4 day of December, 2017.
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