Wolfe v. Commissioner of Social Security et al
Filing
18
ORDER denying 12 Motion for Summary Judgment; granting 13 Motion for Summary Judgment; adopting 15 Report and Recommendations. DISMISSES the case WITH PREJUDICE and RETIRES it from the docket of this Court. Signed by District Judge Irene M. Keeley on 8/16/11. (jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATRICK SCOTT WOLFE,
Plaintiff,
v.
CIVIL ACTION NO. 1:10CV109
(Judge Keeley)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S
OPINION/REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. §636(b)(1)(B), Fed. R. Civ. P. 72(b),
and L.R. Civ. P. 4.01(d), on July 16, 2010, the Court referred this
Social Security action to United States Magistrate Judge David J.
Joel with directions to submit proposed findings of fact and a
recommendation for disposition.
On March 28, 2011, Magistrate Judge Joel filed his Report and
Recommendation (“R&R”) (dkt. no. 15). In accordance with 28 U.S.C.
§636(b)(1) and Fed. R. Civ. P. 6(e), he directed the parties to
file written objections to the R&R with the Clerk of Court within
fourteen (14) days after being served with a copy of the R&R. On
April 13, 2011, counsel for the plaintiff, Patrick Scott Wolfe
(“Wolfe”), filed objections to the R&R (dkt. no. 16), to which the
Commissioner responded on April 27, 2011 (dkt. no. 17).
I.
PROCEDURAL BACKGROUND
On July 8, 2008, Wolfe applied for supplemental security
income (“SSI”) and disability insurance benefits (“DIB”), alleging
a
disability
onset
of
January
1,
2005
(R.
107-120).
The
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Commissioner initially denied Wolfe’s claim on September 4, 2008,
and later on reconsideration on December 10, 2008 (R. 55-64, 6671). On August 10, 2009, an ALJ conducted a hearing at which Wolfe
and a vocational expert appeared and testified (R. 30-31, 45-53).
Following
that
hearing,
on
September
8,
2009,
the
ALJ
determined that Wolfe was not disabled within the meaning of the
Social Security Act (R. 12-22). Thereafter, on April 14, 2010, the
Appeals Council denied Wolfe’s request for review, thus making the
September 8, 2009 decision of the ALJ the final decision of the
Commissioner (R. 1-4). Finally, on July 16, 2010, Wolfe filed this
action seeking judicial review of that decision (dkt. no. 1).
II.
PLAINTIFF'S BACKGROUND
Wolfe was forty-four (44) years old when he initially applied
for benefits. Pursuant to 20 CFR §§ 401.1563 and 416.963, he is
considered a younger individual, age 18-49.
He is a high school
graduate and has a two year associate degree in machine and welding
(R. 30-31). While employed, Wolfe worked as a machinist (R. 32-33).
III.
Utilizing
established
in
the
the
ADMINISTRATIVE FINDINGS
five-step
sequential
Commissioner’s
evaluation
regulations
§§ 404.1520, the ALJ made the following findings:
2
at
20
process
C.F.R.
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1.
Wolfe met the nondisability requirements for a
period of disability and Disability Insurance
Benefits set forth in Section 216(I) of the Social
Security Act and was insured for benefits through
December 31, 2010 (R. 14);
2.
Wolfe has not engaged in substantial gainful
activity since January 1, 2005, the alleged onset
date (R. 14);
3.
Wolfe’s insulin diabetes mellitus is a severe
impairment that does not meet or medically equal
one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525,
404.1526,
416.920(d),
416.925
and
416.926) (R. 15, 17);
4.
Wolfe retains the residual functional capacity to
perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except that he should
never climb ladders, ropes or scaffolds, should
avoid exposure to hazards and excessive heat or
cold, can drive occasionally and does not require
more than a normal break and lunch schedule (R.
18);
5.
Wolfe is unable to perform any of his past relevant
work (20 CFR § 404.1565 and 416.965) (R. 20);
6.
Wolfe was 41 year old on the alleged onset date and
is considered a younger individual age 18-49 (20
CFR § 404.1563 and 416.964) (R. 20);
7.
Wolfe has a high school education and is able to
communicate in English (20 CFR § 404.1564 and
416.964) (R. 20);
8.
Wolfe has no transferable skills from any past
relevant work and transferability of skills is not
an issue in this case because the MedicalVocational Rules used as a framework support a
finding of not disabled (SSR 82041 and 20 CFR Part
404, Subpart P, Appendix 2) (R. 20);
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9.
There are a significant number of jobs in the
national economy that Wolfe can perform even
considering his age, education, work experience and
residual functional capacity (20 CFR 404.1569, 404.
1569(a) and 416.969) (R. 20); and
10.
Wolfe has not been under a “disability,” as defined in
the Social Security Act, from January 1, 2005 through the
date of the ALJ’s decision (20 CFR 404.1520(g) and
416.920(g)) (R. 21).
IV.
PLAINTIFF'S OBJECTIONS
Wolfe objects to sub-sections D and E of the R&R. He contends
that the Magistrate Judge erred when he adopted the “flawed”
analysis of the ALJ. Those flaws include that the ALJ 1) failed to
apply the proper standards of review in his consideration of the
evidence provided by Drs. Mason and Wade,1 and 2) failed to make a
proper credibility determination regarding Wolfe’s testimony during
the hearing (Pla.’s Objs. dkt. no. 16).
The Commissioner contends that Wolfe’s objections are no
different from those he filed initially, that the record contains
substantial evidence to support the ALJ’s decision that Wolfe is
not disabled. (Def.’s Response dkt. no. 17).
V.
MEDICAL EVIDENCE
The medical evidence in the case includes the following:
1
The August 10, 2009 hearing transcript mistakenly refers to
Dr. Wade as “Dr. Lee”. See p. 35.
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1.
An April 19, 2004 emergency room treatment report from
Mark Perni, D.O., Reynolds Memorial Hospital, indicating that Wolfe
reported he had passed out in front of the television and a friend
had to call EMS. (R. 232). The report documents Wolfe’s blood sugar
level as 51 at home and 45 on arrival at the ER. (R. at 232). The
diagnosis was hypoglycemia (low blood sugar), a syncopal episode,
and hypokalemia (low potassium)(R. 232-233). Wolfe reported no
pain, nausea, vomiting, shortness of breath, dizziness, peripheral
paralysis or paresthesia and refused further studies, including a
urinalysis. He left the ER at 8:50 P.M. on April 19, 2004 against
medical advice (R. 231);
2.
A September 17, 2004, out-patient report from the Wetzel
County Hospital emergency room indicating Wolfe reported becoming
weak and disoriented at work.
The report documented that Wolfe’s
blood sugar reading at 8:35 A.M. was 63 and at 9:20 A.M. was 158.
The diagnosis was hypoglycemic reaction. (R. 220). When released
from the hospital, the doctor
instructed Wolfe to follow up with
his doctor as soon as possible (R. 220);
3.
A March 3, 2005 report from Joyce Knestrick, CFNP, Ph.D,
regarding Wolfe’s first appointment with Wheeling Health Right
(“WHR”).
Dr.
Knestrick’s
diagnosis
was
Type
I
Diabetes,
Hypertension, and Hyperlipidemia that seemed to be “under pretty
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good control.” (R. 288, 289).
Physical examination indicated a
weight increase to 252-1/2 pounds despite attempts to adhere to a
2000 calorie diet. Wolfe admitted that he was not following the
diet and was sleeping “too much since he’s been on strike” (R.
288);
4.
that
An August 31, 2006 report from Dr. Knestrick, indicting
Wolfe
had
requested
refills
of
his
medication,
had
no
complaints, was doing well and going to school. The physical
examination was normal, his weight was 244 pounds and there were no
open areas on his feet. Dr. Knestrick instructed Wolfe to continue
his current medications and to follow up in one month (R. 275);
5.
Another report from Dr. Knestrick,
dated
October 26,
2006 indicating Wolfe requested refills of his medication, had a
normal
physical
examination,
had
abnormal
lab
results
that
demonstrated an elevated white blood count, AIC 7 and good lipids,
weight of 248 pounds and no open areas on his feet. Dr. Knestrick
directed him to continue his current medications and return in
three (3) months (R. 273);
6.
A June 7, 2007 report from Dr. Knestrick,
indicating a
normal physical examination, weight of 254 pounds, and no open
areas on his feet. Dr. Knestrick noted that fifty percent of the
twenty minute session involved a discussion of the abnormal lab
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results, the need for Wolfe to take his medications as prescribed,
and the possible effects of failure to comply with his prescribed
medical regime (R. 270);
7.
A July 7, 2007 report from Dr. Knestrick,
indicating
a
normal physical examination except for a small herniation of the
umbulicus, a discussion of lab results, weight of 252 pounds, and
counseling regarding diet and exercise (R. 267). Dr. Knestrick
instructed Wolfe to continue his current medications, go to the ER
if the hernia could not be pushed back in, keep up the good blood
sugar and blood pressure control, and return in six months (R.
268);
8.
A February 27, 2008 progress note from Nathan Kesner,
D.O., WHR, indicating that Wolfe
. . . states he is doing well, just fat. He
states he is taking medications for his blood
pressure, it runs normal.
He thinks if he
lost 50 lbs it would be a lot better.
He
states that his sugars are running 120-130,
and he keeps them there. He has been on
insulin since he was twelve. He is a type I
diabetic.
He is taking N/R.
He has been
taking 18 regular and 60 N about twelve hours
apart. He does have a bad tooth though. He
states he used to work at Ora Met. He just
finished his associate’s degree.
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(R. 264). Physical examination was normal except for cervical,
thoracic and thoracic joint pain and a weight increase to 262
pounds. (R. 265).
Dr. Kesner noted as his plan of treatment:
Continue the medications that he [Wolfe] is
already taking. He has been diabetic for a
long time. He admits that he thinks most of
his problem is because he has gained so much
weight. Before we make any medication changes
he does wish to try some therapeutic lifestyle
changes and drop about 25-50 pounds if
possible. I explained to him the benefits of
doing so.
He understands his insulin regimen well and he
has been following it closely. We will check
his HbA1c and see how he has been for the past
several months. But for now we will continue
the same meds.
(R. 265);
9.
A July 2, 2008 progress note from Dr. Kesner, indicating
that Wolfe
. . . states he has an appointment on 7/8 with
SSI Disability due to his inability to get
hired because of his diabetes. He states that
his sugars have been running quite controlled
lately. He states that he is trying to keep it
around 110-120... He notices that his blood
sugar drops with exercise so he takes more or
less depending on his level of activity.
(R. 253). Dr. Kesner instructed Wolfe to continue his current
medications, obtain labs as requested, and follow up as required.
Dr. Kesner also noted:
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He [Wolfe] is having some lows, which put him
at risk. However, having the tight control has
helped him tremendously as he currently has no
neuropathy. Will check the urine. He will need
to see Dr. Anwar for a vision test.
His bp is elevated today. Will need
increase his meds pending his blood work.
to
He would like to get on Social Security
disability,
but
his
main
problem
is
hypoglycemia. He controls his insulin very
tightly, but if we did not control it so
closely, it is unlikely that he would have the
lows which cause him trouble. I do not believe
he would be eligible for social security based
on this. If we adjust his insulin, we should
be able to find an acceptable level where he
isn’t having hypoglycemia.
Patient
verbalized
understanding of the
education and plan.
or
above
demonstrated
counseling or
Diabetic foot examination was normal with no neuropathy (R. 254);
10.
A
July
25,
2008
form
for
state
Medicaid
benefits
completed by Dr. Kesner, in connection with Wolfe’s disability
benefits application, indicating a diagnosis of Type I Diabetes
Mellitus and hypoglycemia. Dr. Kesner noted Wolfe’s condition was
under
“good
control”
with
no
neuropathy
or
retinopathy
and
identified his sole employment limitation as “occasional lows” (in
blood sugar) that result in an inability to handle large machinery
(R. 262-263);
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11.
An August 12, 2008 eye examination report from Joseph
Audia, O.D. indicating no visual complaints and a visual acuity at
20/20 in both eyes (R. 237). The diagnosis was diabetes without
retinal involvement, cataracts with no current visual impact,
myopia, astigmatism and presbyopia, requiring glasses (R. 237);
12.
An October 15, 2008 progress note from Dr. Kesner,
indicating:
He [Wolfe] states his blood sugars have been
running fairly good. He states he has been
depressed over the disability thing. He states
he has been doing what he can on the side. He
did lay tile this morning. He states he has
not had any low blood sugars since the last
time he has been here. He states it fluctuates
of course.
(R. 248).
Physical examination was normal with a weight of 259
pounds. Dr. Kesner stopped Wolfe’s Humulin R and N and started
Lantus 30 Unis qhs with Humalog, increased HCTZ to 25 mg, and
directed him to follow-up as scheduled.
Dr. Kesner noted that he
would discuss this plan with Joyce Zambito (R. 248, 249);
13.
An October 15, 2008 report from WHR indicting that Wolfe
had met with Joyce Zambito to discuss his diabetes management
treatment plan.
obesity.
the
The assessment indicated Diabetes Type I and
Joyce Zambito, RN, MS, CDE, noted that fifty percent of
one-hour
examination
had
been
10
devoted
to
counseling
and
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coordinating care. Wolfe was directed to bring a completed blood
sugar log book to his next appointment, to continue his medications
as prescribed, to call if problems occurred and to follow-up with
Dr. Kesner as scheduled. (R. 247);
14.
A June 4, 2009 letter from Trent G. Mason, M.D. to
Wolfe’s attorney indicating:
I do believe in my medical opinion that he
[Wolfe] is medically disabled. I don’t believe
that he can keep and sustain any gainful
meaningful employment and work forty hours a
week. Unfortunately, since the age 12 he is
an insulin dependent diabetic. This has also
led to other medial problems such as high
blood pressure and hyperlipidemia.
He is
currently trying to control his diabetes with
Lantus and Humalog which are two different
types of insulin. Unfortunately, he has
unstable, brittle, labile Type I Diabetes,
that gives him unpredicted blood sugars and
has left him numerous times with syncopal
episodes and low blood sugar attacks and many
trips to the ER in an ambulance because of
this. Mr. Wolfe tries his best every day to
keep his blood sugar under control. Along with
his insulin his other medications include
1.
2.
3.
4.
HCTZ
ACCUPRII
TRICOR
NORVASC
There are many types of jobs that he may
qualify for as far as his actual skills go but
unfortunately because he needs to test his
sugar often he is not a candidate for these
jobs because he has to have access to his
blood sugar kit. I don’t believe that he can
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sustain any type of employment because of
this. I am writing this letter because I felt
that Mr. Wolfe is disabled and I will offer my
medical support for this condition.
(R. 308); and
15.
A July 28, 2009 letter from Robert B. Wade, M.D. to
Wolfe’s attorney indicating
that he had known Wolfe for several
years and was well aware that Wolfe’s long-standing Type I Diabetes
caused frequent hyperglycemic [sic] episodes to occur with no
warning despite frequent monitoring(R. 309). Dr. Wade noted:
Obviously having unannounced hyperglycemic
[sic] episodes make it difficult to be
employed. Mr. Wolfe is trained as a machinist.
A hypoglycemic episode in a machine shop could
be detrimental to Mr. Wolfe as well as others
working in the shop.
Mr. Wolfe also has difficulty working shift
work. He takes multiple medications to control
his blood sugar, cholesterol and blood
pressure. Variations in his daily routine make
blood sugar control more difficult.
I would consider Mr. Wolfe unemployable and
disabled secondary to his labile blood sugar.
The fact that he has no forewarning of an
impending hypoglycemic episode makes it very
difficult for him to find and sustain
employment.
(R. 309).
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VI.
DISCUSSION
Wolfe objects to sub-sections D (“The ALJ Properly Evaluated
the Medical Source Opinions of Dr. Mason and Dr. Wade as Required
by
the
Regulations
and
Gave
Proper
Weight
to
Dr.
Kesner’s
Opinions”) and E (“The ALJ Weighed All the Relevant, Probative and
Available Evidence in Arriving at His Decision”) of the R&R.
Specifically, he contends that the ALJ failed to follow the
criteria established in 20 C.F.R. 416.927(d). The Court will
address each of these objections in turn.
A.
The ALJ’S Evaluation of the Opinions of Drs. Mason, Wade2 and
Kesner
Wolfe contends the Magistrate Judge erroneously adopted the
assignment of weight attributed by the ALJ to the opinions of Drs.
Mason
and
Wade,
and
also
erred
when
he
adopted
the
ALJ’s
designation of Dr. Kesner as a treating physician whose opinion was
entitled to greater weight. (Pla.’s objs)
20 C.F.R. § 416.927(d) establishes the procedure an ALJ must
follow when weighing any medical opinion. It provides that an ALJ
must evaluate every medical opinion received regardless of its
source. Subsections (1) and (2) of that regulation, however, direct
that an ALJ will generally assign greater weight to opinions from:
2
Referenced in the record as Dr. Lee.
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1) a source who has examined a claimant rather than a nonexamining source; and
2) a treating source who provides a detailed, longitudinal
record
of
treatment
for
the
medical
impairment.
20
C.F.R.
§ 416.927(d)(1) and (2).
Subsections (2)(i) and (ii), (3) and (4) of § 416.927(d),
moreover, provide that, when an ALJ does not assign controlling
weight to a treating source’s medical opinion, he must consider all
of the following factors in deciding what weight to assign that
opinion:
(2) (i) Length of the treatment relationship
and the frequency of examination: Generally,
the longer a treating source has treated you
and the more times you have been seen by a
treating source, the more weight we will give
to the source’s medical opinion. When the
treating source has seen you a number of times
and
long
enough
to
have
obtained
a
longitudinal picture of your impairment, we
will give the source’s opinion more weight
than we would give it if it were from a
nontreating source;
2(ii) Nature and extent of the treatment
relationship. Generally, the more knowledge a
treating source has about your impairment(s)
the more weight we will give to the source’s
medical opinion. We will look at the treatment
the source has provided and at the kinds and
extent of examinations and testing the source
has performed or ordered from specialists and
independent laboratories. . . When the
treating source has reasonable knowledge of
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your impairment(s), we will give the source’s
opinion more weight than we would give it if
were from a nontreating source;
(3) Supportability. The more a medical source
presents relevant evidence to support an
opinion
particularly
medical
signs
and
laboratory findings, the more weight we will
give that opinion. Furthermore, because
nonexamining sources have no examining or
treating relationship with you, the weight we
will give their opinions will depend on the
degree to which they provide supporting
explanations for their opinions. We will
evaluate the degree to which these opinions
consider all of the pertinent evidence in your
claim, including opinions of treating and
other examining sources; and
(4)
Consistency.
Generally,
the
more
consistent an opinion is with the record as a
whole, the more weight we will give to that
opinion.
20 C.F.R. § 416.927(d)(2)(i) and (ii), (3) and (4).
1.
Trent G. Mason, M.D.
The ALJ
determined that the record failed to substantiate
that a treating doctor-patient relationship existed between Dr.
Mason and Wolfe, and also failed to substantiate Dr. Mason’s
opinion that Wolfe had “brittle, labile diabetes that resulted in
numerous
syncopal
episodes
and
low
blood
sugar
attacks.”
Furthermore, the ALJ noted that Dr. Mason’s opinion not only was
inconsistent with the objective medical evidence of record, but
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also that Dr. Mason had attempted to opine on an issue reserved
exclusively to the Commissioner. (R. at 17)
Significantly, Wolfe’s own testimony at the hearing supported
the ALJ’s conclusion that Dr. Mason cannot be considered a treating
physician:
Q
And this [Dr. Mason] is the doctor that you see
regularly? How long have you been seeing him?
A
Yes Sir, I’ve been a good while and he helps take
care of me when I need, if I
needed something
being uninsured.
Q
Okay.
A
Yes, sir, yes sir
Q
How long have you seen him in the last couple of
years?
A
Nothing on record. You know, he lives out in the
hill from me a couple of miles.
Is he a family practitioner?
(R. 34).
Regarding Dr. Mason’s opinion letter, the ALJ explained why he
did not give significant weight to that letter as follows:
. . . First, Dr. Mason does not have a
treating relationship with the claimant. The
claimant testified at the hearing that he was
an acquaintance of his, the claimant had never
been to his office and that he had treated him
‘outside’ of his office. There is nothing in
the record from this doctor. Second, the
undersigned noted that Dr. Mason’s statement
that the claimant has brittle, labile diabetes
is not supported by the records of the
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claimant’s treating doctors, which indicate
that his diabetes has been consistently wellcontrolled. His statement that the claimant
has made numerous emergency room visits is
also not supported by the medical evidence.
The undersigned notes that Dr. Mason’s opinion
that the claimant is disabled is an opinion on
an issue reserved to the Commissioner (20 CFR
404.1527(e0910 and 416.927(e)(1). Further, his
opinion that the claimant would be unable to
work due to the need to check his blood sugar
is an opinion that should be addressed by a
vocational expert. Therefore, the undersigned
has given little weight to this opinion.
(R. 17)
2.
Robert B. Wade, M.D.
After reviewing Robert B. Wade, M.D.’s (“Dr. Wade”) July 28,
2009
letter,
the
ALJ
determined
that
he
was
not
a
treating
physician and did not assign significant weight to Dr. Wade’s
opinion. He explained his decision as follows:
. . . He [Dr. Wade] indicated that he had
known the claimant for several years, and was
aware that he had longstanding type I
diabetes. He stated that the claimant suffered
from frequent hyperglycemic [sic] episodes of
which he had no forewarning, and that, despite
frequent blood sugar monitoring, the claimant
continued to have difficulty with labile blood
sugars. Dr. Wade stated, ‘A hypoglycemic
episode in a machine shop could be detrimental
to Mr. Wolfe as well as others working in the
shop.’ He indicated that the claimant also had
difficulty doing shift work, as variations in
his daily routine made blood sugar control
more difficult. Dr. Wade opined, ‘I would
consider Mr. Wolfe unemployable and disabled
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secondary to his labile blood sugar. The fact
that he has no forewarning of an impending
hypoglycemic episode makes it very difficult
for him to find and sustain employment.’ The
undersigned has given little weight to Dr.
Wade’s opinion. The claimant testified at the
hearing that he was not a patient of Dr. Wade,
and had never seen him at his office. . . .
The claimant does not have a treating
relationship with Dr. Wade either. Further,
Dr. Wade’s statement that the claimant’s blood
sugar was labile is not supported by the
records of the claimant’s treating physicians.
As noted previously, these records indicate
that the claimant has good blood sugar control
especially when compliant with treatment. The
record does not indicate that the claimant has
experienced
frequent
hyperglycemic
or
hypoglycemic episodes. Dr. Wade’s opinion that
the claimant was unable to work as a machinist
or in any other job is an opinion on an issue
reserved
to
the
Commissioner
(20
CFR
404.1527(e)(1) and 416.927(e)(1).
(R. 17)
Wolfe provided the only other reference of record regarding
Dr. Wade during his testimony, when he stated that he had never
seen the fellow [Dr. Wade] you know to go into
his office but he’s in practice with Dr. Mason
and he knows what I go through and being
without insurance you know, if I needed
something or a prescription or something he
would help me out.
(R. 309).
The ALJ determined that the evidence of record did not support
Dr. Wade’s claim that, despite frequent monitoring, Wolfe had
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frequent hyperglycemic or hypoglycemic episodes. In fact, the ALJ
noted that the record established that when Wolfe adhered to his
prescribed medical regime his blood sugar generally appeared to be
under control. Specifically, the ALJ referenced:
1) the April 19, 2004 emergency room note documenting a
hypoglycemia, syncopal episode;
2) the September 17, 2004 emergency room note documenting a
hypoglycemic reaction;
3) the treatment notes from Wheeling Health Right from 2005
through October 2008 that consistently indicated Wolfe’s diabetes
was
generally
well
controlled
and
his
biggest
problem
was
controlling his weight;
4) the July 2, 2008 report from Nathaniel Kesner, M.D. noting
a normal general examination with no evidence of neuropathy;
5) the July 25, 2008 physician’s summary from Dr. Kesner
indicating
a
diagnosis
of
type
I
diabetes
mellitus
and
hyypoglycemia with no neuropathy or retinopathy and occasional
blood sugar lows that would limit Wolfe’s ability to handle large
machinery; and
6) the October 15, 2008 report indicating that Wolfe continued
to use alcohol and tobacco, that his weight continued to be 259
pounds, that he had not experienced any hypoglecemic episodes since
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his last appointment, and that (contrary to Wolfe’s testimony that
he had not performed any work, even on the side) he reported laying
tile.
3.
Nathaniel Kesner, M.D.
The ALJ noted that, for the period from 2005 through October
2008, the records from WHR consistently documented that, as long as
Wolfe complied with his medical regime, his diabetes was under good
control and he had no neuropathy or visual impairments. The ALJ
specifically noted the July 2, 2008 report from Dr. Kesner, one of
Wolfe’s treating physicians at WHR, which documented a normal
physical examination with no evidence of neuropathy, as well as
Wolfe’s statement that he was trying to obtain Social Security
disability based on his inability to get hired because of his
diabetes (R. 16).
The ALJ also noted a July 25, 2008 physician’s summary
completed by Dr. Kesner indicating that when he last examined Wolfe
on June 30, 2008 his diagnosis was type I diabetes mellitus and
hypoglycemia, and that he did not “believe he [Wolfe] would be
eligible for social security based on this” (R. at 16).
The ALJ reviewed the WHR records for the time period extending
from October, 2006 through February, 2008, and determined that the
recorded blood pressures and blood sugars were generally normal
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despite significant gaps in treatment (R. at 15). He specifically
noted:
1)
the March 3, 2005 note from Wolfe’s first consultation at
WHR which diagnosed him with type I diabetes, hypertension and
hyperlipidemia, all of which were noted to be under “pretty good
control” (R. at 15);
2)
the August 31, 2006 note indicating Wolfe was doing well
and going to school (R. at 15);
3)
the
notes
from
October
2006,
June
and
July
2007
reflecting that Wolfe reported doing well; and
4)
the February 27, 2008 note reporting his blood sugars
were staying between 120 and 130, his blood pressure was normal and
that his main problem was his weight.
The ALJ determined that Wolfe’s treatment at WHR, including
treatment by Dr. Kesner, was well-documented and supported by the
weight of the evidence. Having concluded that Dr. Kesner met the
criteria to be considered a treating physician, he then reasonably
assigned greater weight to Dr. Kesner’s opinion. (R. 16)
The Magistrate Judge concluded that the ALJ had considered all
of the factors required by 20 CFR § 416.927(d), and had correctly
determined that neither Dr. Wade nor Dr. Mason was a treating
physician. He also determined that there was substantial evidence
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in the record to support the ALJ’s decision assigning greater
weight to Dr. Kesner’s opinion. (R&R 23).
B.
The ALJ’s Weighing of the Relevant, Probative and Available
Evidence in Arriving at His Decision
Wolfe next argues that the ALJ failed to weigh and consider
all of the relevant, probative and available evidence prior to
determining Wolfe’s credibility. (Pla’s Objs dkt. no. 16)).
Specifically, Wolfe contends that the ALJ failed to properly
consider
his
testimony
regarding
the
number
of
hypoglycemic
episodes he experienced in a year. (R&R 25).
SSR 96-7p establishes the factors an ALJ must consider when
assessing the credibility of an individual's statements regarding
symptoms and their limiting effects, and directs the ALJ to explain
the reasons for his credibility determination in his decision. SSR
96-7p(1), (2) and (4) particularly emphasize that:
1. No symptom or combination of symptoms
can be the basis for a finding of
disability, no matter how genuine the
individual's complaints may appear to be,
unless there are medical signs and
laboratory findings demonstrating the
existence of a medically determinable
physical or mental impairment(s) that
could reasonably be expected to produce
the symptoms.
2. When the existence of a medically
determinable
physical
or
mental
impairment(s) that could reasonably be
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expected to produce the symptoms has been
established, the intensity, persistence,
and functionally limiting effects of the
symptoms must be evaluated to determine
the extent to which the symptoms affect
the individual's ability to do basic work
activities. This requires the adjudicator
to make a finding about the credibility
of the individual's statements about the
symptom(s) and its functional effects.
. . .
4. In determining the credibility of the
individual's statements, the adjudicator
must consider the entire case record,
including the objective medical evidence,
the individual's own statements about
symptoms,
statements
and
other
information provided by treating or
examining physicians or psychologists and
other persons about the symptoms and how
they affect the individual, and any other
relevant evidence in the case records. An
individual's
statements
about
the
intensity and persistence of pain or
other symptoms or about the effect the
symptoms have on his or her ability to
work may not be disregarded solely
because they are not substantiated by
objective medical evidence.
SSR 96-7p(1), (2) and (4).
In Craig v. Chater, 76 F.3d 585 (4th Cir. 1996), the Fourth
Circuit established a two-prong analysis for ALJs to follow when
assessing credibility.
First, an ALJ must establish the existence
of a medical impairment that could reasonably be expected to
produce “not just pain, or some pain, or pain of some kind or
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severity, but the pain the claimant alleges she suffers.” Id. at
593. Once the threshold determination of an existing medical
impairment is met, the ALJ must next consider the credibility of a
claimant’s allegations of pain in light of the entire record.
See
id. at 595. Social Security Ruling 96-7p provides that an ALJ must
consider
the
following
factors
in
making
a
credibility
determination:
1.
The individual’s daily activities;
2.
The location, duration, frequency, and intensity of
the individual’s pain or other symptoms;
3.
Factors
that
symptoms;
4.
The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken
to alleviate pain or other symptoms;
5.
Treatment, other than medication, the individual
receives or has received for relief of pain or
other symptoms;
6.
Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a
board); and
7.
Any other factors concerning the individual’s
functional limitations and restrictions due to pain
or other symptoms.
precipitate
and
aggravate
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).
24
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In Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984),
the Fourth Circuit held that, because an ALJ has the opportunity to
observe the demeanor of the claimant, his conclusions concerning
the claimant’s credibility are given great weight. Nevertheless, as
noted
previously,
SSR
96-7p
(2)
requires
that
an
ALJ’s
determination or decision “must contain specific reasons for the
finding on credibility, supported by the evidence in the case
record.”
Here, it is undisputed that Wolfe has a medically determinable
impairment that could reasonably be expected to cause some of the
symptoms he alleged. (R. at 19). The record also establishes that
the ALJ considered and addressed all seven factors listed in SSR
96-7p in his decision. Specifically, the ALJ noted that:
1)
Wolfe’s alleged disability onset date was related to the
closing of the business by the employer following a strike;
2)
Wolfe attended school full time during 2006 to 2007 and
obtained an AA degree; and
3)
Wolfe admitted in October 2008 that he had been laying
tile and doing other work “on the side”. (R. at 19)
Next,
the
ALJ
reviewed
Wolfe’s
testimony
regarding
the
location, duration, frequency, and intensity of his symptoms. Wolfe
testified
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1)
that he had hypoglycemic episodes once every seven to
eight days that come on without warning and caused disorientation;
2)
that his last visit to the emergency room occurred about
one year ago;
3)
that, due to unexpected hypoglycemic episodes, he does
not drive a lot;
4)
that he checks his blood sugar every two hours when he is
awake, and that it takes him ten minutes to check it and take his
shot;
5)
that he needs a private, sanitary area to do this;
6)
that unpredictability and resulting disorientation caused
by these episodes is his big problem now;
7)
that Wolfe’s treating physicians at WHR scheduled his
appointments at six month intervals; and
8)
that Wolfe admitted that he had attempted but failed to
comply with his prescribed diabetic diet.
(R. 18-19)
The ALJ also reviewed and considered all of the medical
opinion evidence in the record, and noted that:
1)
even though Dr. Kesner’s opinion regarding the claimant’s
eligibility for disability (Exhibit 5F) is an opinion on an issue
reserved to the Commissioner (20 CFR 404.1527 (e)(1) and 416.927
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(e)(1)), Dr. Kesner refused to opine that Wolfe was unable to work
and his opinion was supported by the evidence; and
2)
the opinions offered by Dr. Wade and Dr. Mason (Exhibits
8F and 9F) could not be considered as statements from treating or
examining physicians, were not supported by the evidence in the
record,
and
attempt
to
opine
on
an
issue
reserved
to
the
Commissioner.
(R. 20).
When he determined that the evidence failed to support Wolfe’s
statements regarding the effects of his symptoms on his ability to
work, the ALJ considered and evaluated all the evidence in light of
the seven factors listed in SSR 96-7p. Thus, he clearly satisfied
the second prong of Craig, as well as the analysis required under
SSR 96-7p.
The ALJ’s conclusion that Wolfe’s statements concerning the
“intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above
residual functional capacity assessment” (R. 19) is based on a
reasonable evaluation of the evidence of record. He determined that
such evidence did not support Wolfe’s allegation that he has 40-50
hypoglycemic episodes per year (Pl.’s Br 7). In fact, the ALJ noted
that
Wolfe had visited an emergency room only two times in 2004,
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both of which occurred before the alleged onset date of his
disability. (Exhibits 1F and 2F) (R. 19).
VII. CONCLUSION
The Court concludes that Wolfe has not raised any issues that
were not thoroughly considered in the R&R of Magistrate Judge David
J. Joel. Moreover, following an independent de novo consideration
of all matters now before it, the Court is of the opinion that the
R&R accurately reflects the law applicable to the facts and
circumstances before it in this action.
It therefore ACCEPTS
Magistrate Judge Joel's R&R in whole and ORDERS that this civil
action be disposed of in accordance with the recommendation of the
Magistrate Judge. Accordingly, the court
1.
DENIES the plaintiff's motion for Summary Judgment (dkt.
no. 12);
2.
GRANTS defendant's motion for Summary Judgment (Docket
No. 13); and
3.
DISMISSES the case WITH PREJUDICE and RETIRES it from the
docket of this Court.
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The Clerk of Court is directed to enter a separate judgment
order. Fed.R.Civ.P. 58. The Court directs the Clerk of Court to
transmit copies of this Order to counsel of record.
DATED: August 16, 2011
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
29
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