Beland v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that the Court OVERRULES Plaintiff's Objections; Magistrate Trumble's 16 Report and Recommendation is ACCEPTED and ADOPTED; Plaintiff's 12 Motion for Judgment on the Pleadin gs is DENIED; Defendant's 14 Motion for Summary Judgment is GRANTED; this civil action is DISMISSED WITH PREJUDICE and STRICKEN from the active docket. The Clerk is directed to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 9/1/15. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL GARY BELAND,
Plaintiff,
v.

CIVIL ACTION NO. 1:14CV138
(Judge Keeley)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Pending for consideration is the Report and Recommendation
(“R&R”) of United States Magistrate Judge Robert W. Trumble (dkt.
no. 16). For the reasons that follow, the Court adopts Magistrate
Judge Trumble’s R&R, grants the Commissioner’s motion for summary
judgment, denies Michael Gary Beland’s summary judgment motion, and
dismisses this case with prejudice from the active docket of this
Court.
I.

PROCEDURAL BACKGROUND
Pursuant to Local Rule 4.01(d), the Court previously referred

this action to Magistrate Judge Trumble on August 18, 2014, for
submission of an R&R. On June 19, 2015, Magistrate Judge Trumble
filed his R&R, which recommended that the Court grant defendant’s
Motion for Summary Judgment (dkt. no. 14), deny plaintiff’s motion
for Summary Judgment (dkt. no. 12), and dismiss this case with
prejudice.

BELAND V. COMMISSIONER OF SOCIAL SECURITY

1:14CV138

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
On July 1, 2015, counsel for the plaintiff, Michael Gary
Beland (“Beland”), filed timely Objections to the R&R (dkt. no.
17), to which the Commissioner responded on July 7, 2015 (dkt. no.
18). The matter is ripe for review.
II.

CASE HISTORY
On September 10, 2010, Beland protectively filed his first

application under Title II of the Social Security Act for a period
of disability and disability insurance benefits (“DIB”), and under
Title XVI of the Social Security Act for Supplemental Security
Income (“SSI”), alleging disability beginning on November 23, 2009.
(R. 325-31, 332-35). The record reflects that Beland had sufficient
quarters of coverage to remain insured through September 30, 2014.
He therefore must establish disability on or before that date. (R.
163). The Commissioner denied Beland’s claims initially on November
8, 2010 (R. 210, 215), and on reconsideration on April 14, 2011 (R.
221, 225).
On May 9, 2011, Beland requested a hearing (R. 228) that later
occurred in Martinsburg, West Virginia, on February 28, 2013. A
United States Administrative Law Judge (“ALJ”) presided (R. 179203), and Beland, represented by counsel, appeared and testified in

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
person. (R. 183-200). An impartial vocational expert (“VE”) also
appeared and testified. (R. 200-02).
In a decision entered on March 8, 2013, the ALJ determined
that Beland was not disabled within the meaning of the Social
Security Act. (R. 160-78). On June 25, 2014, the Appeals Council
denied Beland’s request for review, thus making the ALJ’s decision
the final decision of the Commissioner. (R. 1-6). On August 19,
2014, Beland timely sought judicial review of that final decision.
(Dkt. No. 1).
In accordance with the five-step evaluation process described
in 20 C.F.R. § 404.1520, the ALJ made the following findings:
1.
The claimant meets the insured status requirements of the
Social Security Act through September 30, 2014;
2.
The claimant has not engaged in substantial gainful
activity since November 23, 2009, the alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.);
3.
The claimant has the following severe impairments:
degenerative disc disease of the lumbar spine s/p hemilaminectomy and discestomy in October of 2010 and residual
chronic bilateral lumbosacral radiculopathy and chronic
polyneuropathy, diabetes mellitus; gout, left frozen shoulder
syndrome as of October 14, 2012, gatro-paresis post drainage
in 2012, gastro-esophageal reflux disease (GERD), nephropathy,
a major depressive disorder with a global assessment of
functioning (GAF) at 55; an attention deficit hyperactivity
disorder (ADHD) by history only, and anxiety (20 CFR
404.1520(c) and 416.920(c));

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
4.
The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
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);
5.
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in 20
CFR
404.1567(a)
and
416.967(a)
except
due
to
his
musculoskeletal problems, he is limited to occasional climbing
of ropes, ladders and scaffolds. He can occasionally stoop,
balance, kneel, crouch, and crawl. He cannot perform work
involving over-head reaching.
The claimant must avoid
concentrated exposure to extreme temperatures of heat, cold,
wetness, and humidity. He must also avoid concentrated
exposure to hazardous machinery and working at heights. Due
to psychologically based symptoms, he is able to understand
and carry out simple instructions and perform simple, routine
work;
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965);
7.
The claimant was born on April 17, 1971, and was 38 years
old, which is defined as a younger individual age 18-44, on
the alleged disability onset date (20 CFR 404.1563 and
416.963);
8.
The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564, 20 CFR 416.964);
9.
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has
transferable skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2);
10. Considering
the
claimant's
age,
education,
work
experience, and residual functional capacity, there are jobs
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

1:14CV138

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569 and 404.1569(a),
416.969, and 416.969(a)); and
11. The claimant has not been under a disability, as defined
in the Social Security Act, from November 23, 2009, through
the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
(R. 163-173).
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

judge’s

recommendation to which objection is timely made. As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.” See Webb v. Califano, 458 F.
Supp. 825 (E.D. Cal. 1979). Because Beland has filed objections,
this Court will undertake a de novo review as to those portions of
the R&R to which he has objected.
In reviewing an administrative finding of no disability, the
court’s scope of review is limited to determining whether "the
findings of the Secretary are supported by substantial evidence and
whether the correct law was applied." Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). Elaborating on this definition, the
Fourth Circuit has stated that substantial evidence "consists of

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
more than a mere scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to justify a refusal to
direct a jury verdict were the case before a jury, then there is
'substantial evidence.'" Shively v. Heckler, 739 F.2d 987, 989 (4th
Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1968)). However, "it is not within the province of a reviewing
court to determine the weight of the evidence, nor is it the
court's function to substitute its judgment . . . if the decision
is supported by substantial evidence." Hays, 907 F.2d at 1456
(citing Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518,
529 (4th Cir. 1962)).
In its review of the Commissioner's decision, the court must
also consider whether the ALJ applied the proper standards of law:
" A factual finding by the ALJ is not binding if it was reached by
means of an improper standard or misapplication of the law."
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Further, the
“possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from
being supported by substantial evidence.” Sec’y of Labor v. Mutual
Mining, Inc. 80 F.3d 110, 113, (4th Cir. 1996) (quoting Conolo .
Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION

IV.

DISCUSSION
Beland’s objections focus on the magistrate judge’s conclusion

that the ALJ’s failure to provide sufficient reasons for according
little weight to the opinion of Karoly Varga, M.D. (“Dr. Varga”),
his treating neurologist, was harmless error. (Dkt. No. 17). Beland
seeks to reverse the ALJ’s decision, or, alternatively, remand the
case to the Commissioner. (Dkt. No. 17).
The Commissioner contends that substantial evidence exists in
the record to support the ALJ’s decision. In his view, it should be
affirmed as a matter of law because the ALJ’s “residual functional
capacity (RFC) adequately accounted for the limitations included in
Dr. Varga’s opinion.” (Dkt. No. 18).
In the R&R, the magistrate judge first noted that the opinion
of a treating physician will be given controlling weight if it 1)
is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and 2) is not inconsistent with other
substantial

evidence

in

the

case

record.

20

C.F.R.

§§ 404.1527(d)(2), 416.927(d)(2); see also Hines v. Barnhart, 453
F.3d 559, 563 n.2 (4th Cir. 2006) (quoting Hunter v. Sullivan, 993
F.2d 31, 35 (4th Cir. 1992) (per curiam)) (“The treating physician
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

1:14CV138

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
rule is not absolute. An ‘ALJ may choose to give less weight to the
testimony of a treating physician if there is persuasive contrary
evidence.’”). However, “treating source opinions on issues that are
reserved to the Commissioner are never entitled to controlling
weight or special significance.” SSR 96-5p, 1996 WL 374183, at *2
(July 2, 1996). For example, the Commissioner is responsible for
determining whether a claimant is disabled or unable to work. 20
C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). A medical source that
offers an opinion on whether an individual is disabled or unable to
work therefore “can never be entitled to controlling weight or
given special significance.” SSR 96-5p, 1996 WL 374183, at *5.
Nevertheless, “a treating physician’s opinion is entitled to
great

weight

and

may

be

disregarded

only

if

persuasive

contradictory evidence exists to rebut it.” Craig v. Charter, 76 F.
3d 585, 589 (4th Cir. 1996). The treating physician’s opinion
should be accorded great weight because “it reflects an expert
judgment

based

on

a

continuing

observation

of

the

patient’s

condition over a prolonged period of time.” Mitchell v. Schweiker,
699 F.2d 185, 187 (4th Cir. 1983).
Whenever an ALJ does not give a treating source opinion
controlling weight and determines that a claimant is not disabled,
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
the notice of the determination or decision must contain
specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in
the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion
and the reasons for that weight. This explanation may be
brief.
SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996).
An ALJ determining the weight to be given to the opinion of a
treating physician must consider the following factors: 1) the
length of the treatment relationship and frequency of examination;
2) the nature and extent of the treatment relationship; 3) the
supportability of the opinion; 4) the consistency of the opinion
with the record; 5) the degree of specialization of the physician;
and

6)

any

other

factors

that

may

be

relevant,

including

understanding of the disability programs and their evidentiary
requirements. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). An ALJ
not need specifically list and address each of these factors in his
decision, so long as he provides sufficient reasons for the weight
assigned to the treating source opinion. See Pinson v. McMahon, No.
3:07-1056, 2009 WL 763553, at *11 (D.S.C. Mar. 19, 2009) (holding
that the ALJ properly analyzed the treating source’s opinion even

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BELAND V. COMMISSIONER OF SOCIAL SECURITY

1:14CV138

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
though he did not list the five factors and specifically address
each one).
As the Fourth Circuit explained in Arnold v. Secretary, 567
F.2d 258, 259 (4th Cir. 1977):
[C]ourts . . . face a difficult task in applying the
substantial evidence test when the Secretary has not
considered all relevant evidence. Unless the Secretary
has analyzed all evidence and has sufficiently explained
the weight he has given to obviously probative exhibits,
to say that his decision is supported by substantial
evidence approaches an abdication of the court's ‘duty to
scrutinize the record as a whole to determine whether the
conclusions reached are rational.
Thus, in weighing opinion evidence, an ALJ must sufficiently
explain the weight, if any, given to the opinion, and the reasons
for that.
Here, the magistrate judge found that the ALJ failed to
adequately

“outline

any

specific

treatment

notes

that

were

inconsistent with Dr. Varga’s opinion, failed to discuss any of the
factors outlined in 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), and
failed to provide sufficient reasons for the weight assigned to Dr.
Varga’s opinion.” (R&R at 55). Further, he determined that the ALJ
failed to note that Dr. Varga’s October 21, 2012, report and her
treatment notes contained limitations, including “balance problems,
walking difficulties and limited exercise tolerance.” (R&R at 55).
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

1:14CV138

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
After thoroughly reviewing the record, however, the magistrate
judge determined that these omissions were harmless error because
the ALJ’s RFC included the limitations noted by Dr. Varga. Id.
Specifically, the ALJ found that
. . . the claimant has the residual functional capacity
to perform sedentary work as defined in 20 CFR
404.1567(a)
and
416.967(a)
except
due
to
his
musculoskeletal problems, he is limited to occasional
climbing of ropes, ladders and scaffolds. He can
occasionally stoop, balance, kneel, crouch, and crawl.
He cannot perform work involving over-head reaching
. . . .
(R. 169). “Sedentary work involves lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties.” 20
C.F.R. § 404.1567(a).
Dr. Varga’s October 21, 2012 treating source opinion, in the
form of a letter provided to Beland’s attorney (R. 946-47),
indicated that she had first seen Beland at City Hospital on
August 22, 2010. An appropriate workup confirmed LS radiculopathy
that ultimately required surgery. Following the surgery, Dr. Varga
continued to treat Beland on a regular basis, explaining that,

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
while the lower back surgery had successfully addressed his lower
back pain, Beland continued to experience severe feet and leg pain.
Dr.

Varga

also

noted

the

results

electrodiagnostic test performed by

from

a

January

6,

2011

WorkWell Systems, Inc. that

confirmed neuropathy resulting in severe chronic axonal sensorymotor peripheral polyneuropathy, complicated by chronic bilateral
multilevel LS radiculopathy. (Id.).
In Dr. Varga’s opinion, the etiology of Beland’s neuropathy
was

diabetes

mellitus

resulting

in

additional

diabetic

complications, including gastroparesis and nephropathy. She also
noted that Beland showed signs of depression, and concluded that
these conditions, together with severe pain, resulted in “balance
problem[s], walking difficulties, limited exercise tolerance,” and
were the cause of a severe fall that resulted in a broken ankle and
exacerbation of Beland’s lower back pain. (Id.). Dr. Varga further
noted that a January 6, 2011 “Functional Capacity Evaluation”
(“FCE”) noted that Beland had “impaired balance, struggles with
walking, squatting and lifting.” (Id.).
Following her last evaluation of Beland on September 27, 2012,
Dr. Varga opined that Beland suffered from severe limitations in
his physical abilities as a consequence of his chronic medical
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

1:14CV138

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
conditions (R. 947), LS radiculopathy, failed back syndrome, severe
peripheral

polyneuropathy

with

autonomic

complications,

and

clinical signs of depression. Regarding this opinion, the ALJ
merely stated:
The undersigned also considered the opinion of Dr. Varga,
a treating physician, at Exhibit 18 F, and gives it
little weight. It was a conclusory opinion stating the
claimant’s physical abilities were severely limited,
setting forth [sic] any specific limitations.
(R. 171).
Rejecting

Beland’s

reliance

on

Mathis

v.

Astrue,

No.

2:09CV034, 2011 WL 3515467, at *6 (W.D.N.C. Aug. 11, 2011), and
Adkins v. Colvin, No. 4:13-CV-00024, 2014 WL 3734331, at *3 (W.D.
Va. July 28, 2014) (an ALJ may reject a treating source opinion as
conclusory when it fails to set forth specific limitations), the
magistrate judge noted that Dr. Varga’s October 21, 2012, opinion
and her treatment notes contained specific limitations, including
balance

problems,

tolerance.

walking

difficulties,

and

limited

exercise

(R&R at 53).

According to Dr. Varga’s treatment notes, Beland has decreased
dorsi- and planter flexion, decreased sensation on both feet,
antalgic gait with left sided limp, negative tandem walk, positive
straight leg raise test on both sides, spastic and painful LS
13

BELAND V. COMMISSIONER OF SOCIAL SECURITY

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
paraspinal muscles and painful and/or swollen feet. These physical
findings

supported

her

opinion

that

Beland

was

limited

in

balancing, walking and exercising. (R&R at 55).
According to the magistrate judge, by limiting Beland to
sedentary work with postural limitations, the ALJ’s RFC adequately
incorporated the limitations contained in Dr. Varga’s opinion and
treatment notes. Moreover, the magistrate judge noted that Dr.
Varga’s report did not include any greater limitations on Beland’s
ability to walk or balance than the limitations included by the ALJ
in the RFC.
Because Dr. Varga’s opinion as to Beland’s limitations is
consistent with the ALJ’s RFC, the magistrate judge found that the
ALJ’s failure to give sufficient reasons for assigning less weight
to Dr. Varga’s opinion was harmless error. See Morgan v. Barnhart,
142 F. App’x 716, 722-23 (4th Cir. 2005) (“Any error the ALJ may
have

made

in

rejecting

Dr.

Holford’s

medical

opinion,

which

provided essentially the same time restriction on sitting and
standing as the FCE, was therefore harmless.”)
Courts will not reverse an ALJ’s decision for harmless error
when the record clearly establishes that the ALJ’s error was not of
consequence to the disability determination. Tommasetti v. Astrue,
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BELAND V. COMMISSIONER OF SOCIAL SECURITY

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
533 F.3d 1035, 1038 (9th Cir. 2008). See also Hurtado v. Astrue,
C/A No. 1:09-1073-MBS-SVH, 2010 WL 3258272, at *11 (D.S.C. July 26,
2010) (“[T]he court acknowledges there may be situations in which
an error in an opinion is harmless because it would not change the
outcome of the ALJ’s decision.”
Here, the magistrate judge correctly concluded that the ALJ’s
failure to provide sufficient reasons for finding that Dr. Varga’s
opinion was entitled to little weight was harmless error because,
in his RFC, the ALJ included all of the limitations contained in
Dr. Varga’s report and treatment notes. Finding that the magistrate
judge’s determination that the record provides substantial evidence
to support the ALJ’s conclusion that Beland retains the ability to
perform work at a “sedentary” level of exertion is not erroneous,
the Court OVERRULES Beland’s objection to the R&R.
V. CONCLUSION
After careful review, the Court concludes that the R&R should
be, and is, hereby ADOPTED for the reasons discussed and more fully
stated in the magistrate judge’s report. Therefore, the Court
OVERRULES Beland’s objections, ACCEPTS Magistrate Judge Trumble's
R&R in whole, and DISPOSES if this civil action in accordance with

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
the recommendation of the Magistrate Judge. Accordingly, the Court

1.

GRANTS

the

defendant's

(Docket No.
2.

plaintiff's

for

Summary

motion

for

Judgment

Judgment

14);

DENIES

motion

the

on

the

Pleadings (Docket No. 12); and
3.

DISMISSES this civil action WITH PREJUDICE and DIRECTS
that it be STRICKEN from the active docket of this Court.

Pursuant to Fed.R.Civ.P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Order to counsel of record.
It is so ORDERED.
DATED: September 1, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

16