Hucks v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Seibert's 15 Report and Recommendation is adopted; Plaintiff's 16 Objections are overruled; Plaintiff's 10 Motion for Summary Judgment is hereby denied; De fendant's 12 Motion for Summary Judgment is hereby granted. This Court denies and dismisses Plaintiff's 1 Complaint and orders this matter be stricken from the active docket. The Clerk is directed to enter a separate judgment in favor of the Defendant. Signed by Chief Judge John Preston Bailey on 4/29/13. (cnd) Modified relationship on 4/29/2013 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
JODI LYNN COONTZ HUCKS,
Plaintiff,
v.

Civil Action No. 2:12-CV-76
(BAILEY)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge James E. Seibert
[Doc. 15] and the plaintiff’s Objections thereto [Doc. 16].

Pursuant to 28 U.S.C.

§ 636(b)(1)(C), this Court is required to make a de novo review of those portions of the
magistrate judge’s findings to which objection is made. However, failure to file objections
permits the district court to review the R&R under the standards that the district court
believes are appropriate, and under these circumstances, the parties’ right to de novo
review is waived. See Webb v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Accordingly,
this Court will conduct a de novo review only as to those portions of the R&R to which the
plaintiff objected. The remaining portions of the R&R will be reviewed for clear error. As
a result, it is the opinion of this Court that the R&R should be ADOPTED.
I. Background
On December 14, 2009, the plaintiff filed a disability claim and her first supplemental
security income (“SSI”) [Doc. 1 at 2; R.8], alleging that she became disabled on or about
1

April 30, 2005 [R. 8]. This initial claim was denied on April 7, 2010, and again upon
reconsideration on May 18, 2010 [Id.]. On June 18, 2010, the plaintiff requested a hearing
[Id.]. A hearing was held on September 9, 2011, before Administrative Law Judge (“ALJ”)
Jeffrey P. La Vicka [R. 19; R. 21-41]. On October 3, 2011, ALJ La Vicka rendered an
unfavorable ruling [Doc. 1 at 2; R. 5-18]. The ALJ determined that the plaintiff had the
following severe combination of impairments: degenerative disc disease of the lumbar and
cervical spine, status post diskectomy and fusion of both the lumbar and cervical spine and
traumatic arthritis of the right knee [R. 10]. However, ALJ La Vicka found that these
impairments or combination of impairments do not “meet[ ] or medically equal[ ] one of the
listed impairments in 20 CFR Part 404, Subpart A, Appendix 1 . . .” [R. 10-11]. Although
he found that the plaintiff could no longer perform her past work, which was classified at
the “‘heavy’ exertional level” [R. 16], ALJ La Vicka determined that the plaintiff had the
residual functional capacity to perform a range of light work activity with certain limitations
[R. 11-16].1 Accordingly, the ALJ ruled that the plaintiff was not disabled [R. 17-18]. The
plaintiff filed a request for review of the ALJ’s decision with the Appeals Council on October
18, 2011 [R. 4]. The Appeals Council denied the request for review on September 20, 2012
[Doc. 1 at 2; R. 1-3].

1

In particular, the ALJ found that the plaintiff is able to “perform only a range of work
activity that: requires no more than a ‘light’ level of physical exertion as defined in 20 CFR
416.967(b); affords the claimant the ability to briefly, for 1 to 2 minutes, alternate sitting or
standing positions at thirty (30) minute intervals throughout the day; requires no foot control
bilaterally; requires no climbing of ladders, ropes, and/or scaffolds; requires no more than
occasional performance of other postural activities such as balancing, climbing ramps or
stairs, stooping, kneeling, crouching and/or crawling; entails no concentrated exposure to
extreme cold and heat; and avoids all exposure to workplace hazards such as machinery,
unprotected heights, and commercial driving” [R. 11].
2

On November 14, 2012, the plaintiff filed a complaint [Doc. 1] seeking judicial review
of the October 3, 2011, adverse decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to the Local Rules, this case was referred to Magistrate Judge Seibert for a
recommended disposition. On February 26, 2013, and March 14, 2013, the plaintiff and
the defendant filed their respective motions for summary judgment [Docs. 10 & 12]. In the
complaint and memorandum of law in support of her motion for summary judgment, the
plaintiff states that the ALJ’s decision should be reversed because it is “neither supported
by substantial evidence nor based upon a correct application of the law” [Doc. 1 at 2].
First, the plaintiff asserts that she did not receive a fair hearing because she was
unrepresented at the hearing and the ALJ did not fully develop the record [Doc. 11 at 1-5;
10-12]. Next, the plaintiff argues that the ALJ improperly discredited treating source
evidence [Id. at 5-9]. Finally, the plaintiff claims that the residual functional capacity
conclusion was inconsistent with the overall medical records [Id. at 12-15]. In the brief in
support of its motion for summary judgment, the defendant responds to each claim and
argues that the ALJ’s decision is supported by substantial evidence [Doc. 13].
On April 3, 2013, Magistrate Judge Seibert entered his R&R in which he concludes
that the ALJ fully developed the case and properly performed the heightened duty required
when the claimant is unrepresented [Doc. 15 at 18]. In addition, the magistrate judge
concludes that the ALJ’s decision denying the plaintiff’s application for disability and
supplemental security income is supported by substantial evidence [Id. at 18-19]. As such,
the magistrate judge recommends that the plaintiff’s motion for summary judgment be
denied and the defendant’s motion for summary judgment be granted [Id. at 19]. On April
12, 2013, the plaintiff filed timely objections [Doc. 16] to the conclusions in the magistrate
3

judge’s report and recommendation. The defendant filed a response thereto on April 18,
2013 [Doc. 17].
II. Applicable Legal Standards
A. Judicial Review of an ALJ Decision
Judicial review of a final decision regarding disability benefits is limited to
determining whether the findings are supported by substantial evidence and whether the
correct law was applied. See 42 U.S.C. § 405(g). “The findings . . . as to any fact, if
supported by substantial evidence, shall be conclusive.” Richardson v. Perales, 402 U.S.
389, 390 (1971); and Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). The phrase
“‘supported by substantial evidence’” means “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” See Perales, 402 U.S. at 401 (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “consists
of more than a mere scintilla of evidence[,] but may be somewhat less than a
preponderance . . ..” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Thus, “[i]t
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.” Id. (citing Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962)).
Ultimately, it is the duty of the ALJ reviewing a case, and not the responsibility of the courts,
to make findings of fact and to resolve conflicts in the evidence. King v. Califano, 599
F.2d 597, 599 (4th Cir. 1979). “This Court does not find facts or try the case de novo when
reviewing disability determinations.” Id.; see also Seacrist v. Weinberger, 538 F.2d 1054,
1056-57 (4th Cir. 1976); and Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

4

B. Five-Step Evaluation Process
To determine whether a claimant is disabled, the ALJ considers the following fivestep evaluation process:
Step One:

Determine whether the claimant is engaging in substantial
gainful activity;

Step Two:

Determine whether the claimant has a severe impairment;

Step Three: Determine whether the claimant has a listed impairment (20
C.F.R. Part 404, Subpart P, Appendix 1) and conduct a
Residual Functional Capacity (“RFC”) assessment;
Step Four:

Consider the RFC assessment to determine whether the
claimant can perform past relevant work; and

Step Five:

Consider the RFC assessment, age, education, and work
experience to determine whether the claimant can perform any
other work.

See 20 C.F.R. § 404.1520(a)(4) (2011).
Once the claimant satisfies Steps One and Two, he/she will automatically be found
disabled if he/she suffers from a listed impairment and meets the duration requirement.
Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984); 20 C.F.R. § 404.1509. If the
claimant does not have listed impairments but cannot perform his/her past work, the burden
shifts to the Commissioner to show that the claimant can perform some other job.
Rhoderick, 737 F.2d at 715.
III. Discussion
At Step One, the ALJ determined that the plaintiff had not engaged in substantial
gainful activity since April 30, 2005 [R. 10]. At Step Two, the ALJ held that the plaintiff had
the following severe impairments: “degenerative disc disease of the lumbar and cervical

5

spine, status post diskectomy and fusion of both the lumbar and cervical spine and
traumatic arthritis of the right knee” [Id.]. At Step Three, the ALJ found that the plaintiff did
not meet a listing impairment [R. 10-11] and has the RFC to perform light work with certain
limitations [R. 11-16]. At Step Four, the ALJ determined that the plaintiff is unable to
perform past relevant work [R. 16]. At Step Five, the ALJ ruled that the “there are jobs that
exist in significant numbers in the national economy that the [plaintiff] can perform . . .” [R.
16-17].
In his R&R, the magistrate judge recommends that this Court affirm the ALJ’s
decision [Doc. 15]. On April 12, 2013, the plaintiff filed timely objections [Doc. 16], taking
issue with the conclusions of the magistrate judge; the defendant filed a response to the
plaintiff’s objections [Doc. 17] on April 18, 2013. This Court will address the objections as
they relate to each of the plaintiff’s claims of error discussed above. In so doing, the Court
will determine, de novo, whether any claim of error necessitates a finding that the ALJ’s
decision is not supported by substantial evidence.
A. Development of the Record
The plaintiff argues in her Motion for Summary Judgment that her hearing was
improperly adversarial in nature given the fact that she was unrepresented at the hearing
and the ALJ failed to fully develop the record [Doc. 11 at 1-2]. The plaintiff further contends
her due process rights were violated based upon this prejudicial hearing [Id. at 5]. The
plaintiff asserts that the ALJ failed to develop the record in a number of ways: (1) asking
leading questions and failing to elicit supporting testimony [Id.], (2) failing to develop
discrepancies in the medical evidence [Id. at 1, 2-4], (3) improperly examining the plaintiff’s
daily activities [Id. at 4-5], and (4) ignoring the development of mental health evidence [Id.
6

at 10-12]. In the R&R, the magistrate judge concludes that the ALJ conducted a full and
fair hearing and properly developed the record [Doc. 15]. As discussed in more detail
below, the plaintiff objects to the magistrate judge’s conclusion with respect to some of her
arguments as to how the ALJ allegedly failed to fully develop the record [Doc. 16].
An ALJ has a heightened duty to ensure that a pro se claimant receives a full and
fair hearing. Stahl v. Comm’r of Soc. Sec. Admin., 2008 WL 2565895, *5 (N.D.W.Va.
June 26, 2008) (citing Sims v. Harris, 631 F.2d 26, 27 (4th Cir. 1980)). The ALJ has the
duty to “explore all relevant facts and inquire into the issues necessary for adequate
development of the record.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)
(internal citations omitted). However, the ALJ is not obligated to act as substitute counsel
for the pro se claimant; the ALJ must merely “develop a reasonably complete record.”
Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994) (cited with approval by Rice v.
Charter, 1995 WL 253134, *2 (4th Cir. May 1, 1995) and Bell v. Charter, 1995 WL
347142, *4 (4th Cir. June 9, 1995)). The lack of representation is not enough to warrant
remand where the claimant knowingly waived the right to counsel;2 the claimant must
demonstrate that “the absence of counsel ‘created clear prejudice or unfairness to the
claimant’” Stahl, 2008 WL 2565895 at *5 (quoting Sims, 631 F.2d at 28). An unfavorable
ruling is not sufficient to establish prejudice to the claimant. See Evangelista v. Sec’y of

2

This Court notes that the plaintiff does not allege that she did not make a knowing
waiver of her right to counsel [See Docs. 11 and 16]. In fact, the transcript of the
September 9, 2011, hearing demonstrates that the ALJ discussed with the plaintiff her right
to counsel before proceeding with the hearing [R. 24-25]. As such, to the extent that the
plaintiff’s claim that she was prejudiced rests merely on the fact that she was not
represented by counsel, this Court finds the plaintiff’s argument without merit.
7

Health and Human Servs., 826 F.2d 136, *143 (1st Cir. 1987).
1. Seeking Surgical Medical Records
In her Motion for Summary Judgment, the plaintiff argues that the ALJ failed to
properly develop the record in part because he failed to seek medical records with respect
to a back surgery that she had in the early 1990s and a neck surgery that she had in 2005
[Doc. 11 at 3-4]. In his R&R, the magistrate judge noted that the plaintiff stated at the
hearing that some of those records were destroyed and could not be obtained [Doc. 15 at
13]. In addition, the magistrate judge concluded that there was no prejudice to the plaintiff
because the ALJ accepted the “reported history and the references to [the surgeries]
throughout the claimant’s medical records as true and accurate reflection of her alleged
conditions” and incorporated impairments associated with these surgeries into limitations
in the RFC [Id. at 13-14, quoting the ALJ’s written decision]. In her Objections, the plaintiff
makes no objection to the magistrate judge’s conclusion on this issue; as such, this portion
of the R&R is subject to review for clear error.
As noted by the magistrate judge, the ALJ’s written decision incorporated the
information relating to the plaintiff’s back and neck surgeries; as such, the lack of records
on these surgeries did not prejudice the plaintiff. See Smith v. Schweiker, 677 F.2d 826,
830 (11th Cir. 1982) (noting that a reviewing court must determine “whether the record
reveals evidentiary gaps which result in unfairness or ‘clear prejudice’” when evaluating
whether the ALJ properly developed the record); see also Bell, 1995 WL 347142 at *5
(“The ALJ had before him sufficient facts to determine the central issue of disability, and
[the claimant] failed to indicate how these unidentified reports would have impacted the

8

ALJ’s assessment. Therefore, any failure on the part of the ALJ to ferret out additional
information did not constitute reversible error.”). Accordingly, this Court agrees with the
magistrate judge’s conclusion that the plaintiff’s argument on this issue is without merit.
2. Eliciting Testimony at the Hearing
In her Motion for Summary Judgment, the plaintiff argues that the ALJ did not
properly develop the record in part because he asked leading questions to elicit
unfavorable testimony and failed to elicit favorable testimony [Doc. 11 at 4-5]. In particular,
the plaintiff argues that the ALJ should have inquired further into her daily activities
regarding the assistance the she provides to her mother, particularly with regard to the
physical and emotional demands that such assistance places on the plaintiff [Doc. 16 at 27].
This Court will first address the portion of the plaintiff’s argument that pertains to the
claim that the ALJ failed to elicit favorable testimony during his questioning of the plaintiff.
The transcript demonstrates that the ALJ inquired about the plaintiff’s educational
background, ability to read and write, personal life, ability to drive, daily activities, work
history, medical history, and the current use of any prescription medications [R. 26-36].
When the ALJ asked the plaintiff why she is unable to work, she replied that she is the
primary caretaker for her 79-year-old mother and she cannot have a job that requires
standing [R. 30]. Later in the plaintiff’s testimony, the ALJ asked the plaintiff about medical
conditions, physical or mental, that interfere with her ability to work [R. 33]. The plaintiff
provided a number of conditions that she believed interfere with her ability to work [R. 3334]. After the plaintiff noted each individual medical condition, the ALJ continued to ask her
if there was anything else [Id.] until she finally stated that she could not think of any other
9

conditions [R. 34]. At the conclusion of the plaintiff’s testimony, the ALJ informed her that
he was about to hear testimony from a vocational expert and gave her an opportunity to
provide any additional information that she thought he should know [R. 36].3 The plaintiff
stated that she could not think of anything to add to her testimony [Id.].
Based upon a review of the transcript of the plaintiff’s testimony and the ALJ’s
questions, this Court finds that the ALJ provided the plaintiff with a full and fair hearing and
developed a reasonably complete record. See Sims, 631 F.2d at 27; Clark, 28 F.3d at
830-31 (cited with approval by Rice, 1995 WL 253134 at *2 and Bell, 1995 WL 347142 at
*4). Furthermore, the ALJ is not required to act as substitute counsel for the claimant. See
id. Although the plaintiff argues that the ALJ should have followed up on the daily activities
issue by specifically asking what physical and emotional demands were included in being
the primary caregiver to her elderly mother, the plaintiff does not explain how asking these
questions would have led to a favorable ruling. Furthermore, the plaintiff was provided an
opportunity to provide any additional information that she felt was relevant at the end of her
testimony; however, she said that she could not think of anything else. In addition, the
plaintiff does not claim that the outcome would have been any different had she been
represented at the hearing. As such, even if the ALJ erred by not asking these questions,
the plaintiff has not demonstrated any prejudice.4

Accordingly, this Court hereby

3

The ALJ specifically said the following to the plaintiff: “Is there anything else you
want to tell me you think I should know? I mean I’m about to ask the vocational specialist
some questions about some jobs that might be available to you. Is there anything else you
think I should know before I proceed with that?” [R. 36].
4

See Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984) (stating that, in a failure
to develop the record claim, a claimant must establish that prejudice occurred by
demonstrating that the claimant “could and would have adduced evidence that might have
10

OVERRULES the plaintiff’s objection regarding the claim that the ALJ failed to elicit
favorable testimony from the plaintiff during her testimony at the September 9, 2011,
hearing.
Next, the plaintiff argues that the ALJ improperly elicited unfavorable testimony from
her and relied on the fact that she is the primary caregiver for her mother as the sole basis
for his credibility determination5 and disability decision. However, the ALJ’s decision
demonstrates that the ALJ considered a number of items on reaching each of those
determinations. In his decision, the ALJ noted the various physical ailments and pain to
which the plaintiff testified; however, the ALJ made a credibility decision that “the claimant’s
subjective statements concerning the intensity, persistence and limiting effects of those
symptoms are not credible to the extent that they are inconsistent with [the RFC]
assessment and the objective medical evidence” [R. 11-12; see also R. 15-16]. In reaching

altered the result”). The plaintiff has provided no explanation as to the emotional and
physical demands to which she would have testified that would have led to a favorable
ruling.
5

This Court notes that the plaintiff does not object to the magistrate judge’s
conclusion that the plaintiff’s argument regarding her subjective complaints have an
inherent trustworthiness pursuant to Rule 803 of the Federal Rules of Evidence is without
merit. As noted by the magistrate judge, the Federal Rules of Evidence do not apply to
administrative hearings and it is within the province of the ALJ to weigh the credibility of the
claimant. Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010); Hatcher v. Sec’y,
Dep’t of Health and Human Servs., 898 F.2d 21, 23 (4th Cir. 1989). Moreover, such
credibility determinations by the ALJ are given great weight by reviewing courts. Shively
v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984). As such, this Court finds no clear error
with the magistrate judge’s conclusion on this issue. Furthermore, this Court agrees with
the magistrate judge’s conclusion that there is no reason to disturb the credibility
determination made by the ALJ [Doc. 15 at 10]. See Cook v. Astrue, 2011 WL 719008,
*33 (N.D.W.Va. Jan. 28, 2011) (finding that the claimant did not meet his burden to show
that the ALJ’s credibility determination was “patently wrong” where the ALJ had stated
multiple explanations (including objective medical evidence, treatment history, and daily
activities) for his conclusion that the claimant was able to work).
11

this conclusion, the ALJ discussed the medical evidence in great detail and noted items that
undermine the plaintiff’s subjective complaint [R. 12-15]. In addition, the ALJ noted that the
plaintiff “has not described activities of daily living as limited as one would expect given her
complaints of physical impairments” [R. 15].6 Although the ALJ considered the fact that the
plaintiff referred to herself as the primary caregiver for her mother, this was not the sole
basis for the ALJ’s credibility determination or disability determination. As such, this Court
hereby OVERRULES the plaintiff’s Objections to the extent that she argues that the ALJ
improperly elicited unfavorable testimony and solely relied upon her role as a primary
caregiver to her elderly mother in reaching an unfavorable ruling. Accordingly, this Court
hereby OVERRULES the plaintiff’s Objections regarding the allegation that the ALJ failed
to properly develop the record based upon his questioning of the plaintiff at the hearing.
3. Seeking Additional Medical Evidence from
Belington Community Medical Services
In her Motion for Summary Judgment, the plaintiff argues that the ALJ did not
properly develop the record in part because he merely discounted the Belington Community
Medical Services records rather than develop the discrepancies in the medical evidence
[Doc. 11 at 5-8]. In his R&R, the magistrate judge treated this argument as two separate
arguments: (1) the claim that the ALJ failed to develop the record by not following up with
Belington Community Medical Services, and (2) the claim that the ALJ improperly
discredited a treating source [See Doc. 15 at 15-17]. With regard to the first portion of the
argument, the magistrate judge concluded that the ALJ was not required to re-contact this

6

The claimant’s daily activities are among the various factors that an ALJ will
consider as relevant to the claimant’s symptoms. See 20 C.F.R. § 404.1529(c)(3).
12

medical source because the medical evidence from Belington Community Medical Services
was not inadequate; it clearly showed that individuals from this medical source concluded
on two occasions that the plaintiff could not work for one year [Doc. 15 at 15 (citing
Farnsworth v. Astrue, 604 F.Supp.2d 828, 834 (N.D.W.Va. 2009) (“An ALJ is required to
re-contact medical sources only when the record before the ALJ provides inadequate
evidence to determine whether the claimant is disabled.”))]. As such, the magistrate judge
concluded that the ALJ did not err by failing to obtain additional medical evidence from
Belington Community Medical Services and, accordingly, that substantial evidence
supported the ALJ’s decision [Id.]. In her Objections, the plaintiff does not object to the
magistrate judge’s conclusion on this issue to the extent that it pertains to the claim that the
ALJ should have followed up with Belington Community Medical Services [See Doc. 16].
Instead, the plaintiff objects to the magistrate judge’s conclusion regarding the second
portion of her argument, which is addressed in Section III.B. of this Order [Id. at 10-13].
Because the plaintiff did not object to the magistrate judge’s conclusion regarding
the ALJ’s failure to obtain additional medical evidence from Belington Community Medical
Services, this Court will review this portion of the R&R for clear error. As noted by the
magistrate judge, the medical evidence from Belington Community Medical Services notes
a conclusion that the plaintiff would not be able to work for one year on two different
occasions [R. 155; R. 194]. As such, the medical evidence from Belington Community
Medical Services was not inadequate to determine what its physicians concluded regarding
the plaintiff’s ability to work; therefore, the ALJ was not required to follow up with Belington
Community Medical Services. Accordingly, this Court agrees with the magistrate judge’s
conclusion that the ALJ did not err when he did not re-contact Belington Community
13

Medical Services.
4. Developing Mental Health Evidence
In her Motion for Summary Judgment, the plaintiff argues that the ALJ did not
properly develop the record in part because he did nothing to develop her mental health
evidence [Doc. 11 at 10-12]. In his R&R, the magistrate judge concluded that the record
contains sufficient evidence for the ALJ to make the decision not to order a consultative
examination [Doc. 15 at 14]. In reaching this conclusion, the magistrate judge noted that
the plaintiff made no claim of any mental health problem on her application and that a
Psychiatric Review Technique completed by G. David Allen, Ph.D., found no medically
determinable mental impairments [Id. at 14-15; see also R. 177]. The plaintiff objects to
the magistrate judge’s conclusion on this issue, stating that “she received no mental health
assessment from a trained psychologist or psychiatrist” [Doc. 16 at 8]. The plaintiff argues
that she instead received a “Report of Contact” that was later reviewed by Dr. Allen, which
she claims cannot constitute substantial evidence in support of the ALJ’s decision to not
order a consultative examination [Id. at 8-9].
The ALJ has the discretion to order a consultative examination with a mental health
expert. See 20 C.F.R. § 404.1519a. “Before purchasing a consultative examination, [the
ALJ] will consider not only existing medical reports, but also the disability interview form
containing [the claimant’s] allegations as well as other pertinent evidence in [the claimant’s]
file.” 20 C.F.R. § 404.1519a(a); 20 C.F.R. § 416.919a(a). So long as the decision to not
order a consultative examination is supported by substantial evidence, a reviewing court
should defer to the ALJ’s discretion. Keplinger v. Astrue, 2008 WL 4790663, *5 (W.D.Va.

14

Nov. 3, 2008) (citing Wren v. Sullivan, 925 F.2d 123 (5th Cir. 1991)).
The plaintiff concedes that she did not allege any mental impairments in her
application or have a history of mental health problems [Doc. 16 at 9]. See 20 C.F.R.
§ 404.1512(a); 20 C.F.R. § 416.912(a) (“We will consider only impairment(s) you say you
have or about which we receive evidence.”). However, the plaintiff argues that there is
evidence in the record that demonstrates that she might have a mental impairment [Id.]. In
particular, the plaintiff cites to the following statements in the Adult Function Report, which
she claims demonstrate that she might have a possible mental impairment: (1) she feels
like everyone is laughing at her because of her surgical scar [R. 119]; (2) she does not like
to be around people because she feels like everyone is “out to stick it to [her]” [Id.]; (3) she
does not handle stress well and gets upset easily [R. 120]; (4) she gets nervous with
changes in routine [Id.]; and (5) she vomits when she is nervous [Id.].
As previously noted in Section III.A.2. of this Order, the ALJ determined that the
plaintiff’s subjective complaints were not credible to the extent that they were not supported
by the objective medical evidence. The evidence regarding the plaintiff’s mental health
includes the following: (1) a notation by G. David Allen, Ph.D., that the plaintiff makes no
claim of mental impairment [R. 189]; (2) a conclusion by G. David Allen, Ph.D., that the
plaintiff has no medically determinable impairment based upon a review of the evidence
[R. 177], including a Report of Contact completed by Sheila Heston, which notes some of
the plaintiff’s problems in getting along with other people [R. 142]. As such, substantial
evidence7 supports the ALJ’s conclusion to not order a consultative examination.
7

The plaintiff cites to a United States Court of Appeals for the Fourth Circuit (“Fourth
Circuit”) decision and a United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”)
15

Furthermore, to the extent that the plaintiff appears to argue that a person-to-person
meeting with a trained psychologist or psychiatrist is required before an ALJ can decide that
it is not necessary to order a mental health consultative examination, this Court notes that
such an argument fails in the face of 20 C.F.R. § 404.1519a, which provides the ALJ with
the discretion to determine whether a consultative examination is indeed necessary.
Accordingly, this Court hereby OVERRULES the plaintiff’s Objections on this issue. For
these reasons and those more fully stated in the magistrate judge’s R&R, this Court finds
that ALJ did not commit a reversible error when he did not order a mental health
consultative examination of the plaintiff.
As previously noted, this Court finds the following: (1) it was not reversible error for
the ALJ to fail to obtain records regarding the plaintiff’s back surgery in the 1990s and neck
surgery from 2005; (2) the ALJ did not improperly question the plaintiff during her
September 9, 2011, hearing or solely rely upon her role as a primary caregiver to her
elderly mother in reaching an unfavorable ruling; (3) the ALJ was not required to follow up
with Belington Community Medical Services for additional information; and (4) the ALJ did
not commit a reversible error when he did not order a mental health consultative
decision for the proposition that a “[n]on-examining doctor’s opinion ‘with nothing more’
does not constitute substantial evidence.” [Doc. 16 at 9, citing Smith v. Schweiker, 795
F.2d 343 (4th Cir. 1986) and Lester v. Chater, 81 F.3d 821, 831 (9th Cir.
1995)]. However, in Smith, the Fourth Circuit merely stated that “a non-examining
physician’s opinion cannot, by itself, serve as substantial evidence supporting a denial of
disability benefits when it is contradicted by all other evidence in the record.” 795 F.2d at
345 (emphasis added). In addition, in Lester, the Ninth Circuit merely stated that “[t]he
opinion of a nonexamining physician cannot by itself constitute substantial evidence that
justifies the rejection of the opinion of either an examining physician or a treating
physician.” 81 F.3d at 831 (emphasis in original). This Court notes that, in this case, there
is no competing evidence regarding the plaintiff’s mental health between treating or
examining physicians and non-treating or non-examining physicians.
16

examination of the plaintiff. Accordingly, this Court hereby OVERRULES the plaintiff’s
Objections regarding the claim that the ALJ failed to fully develop the record. For these
reasons and those more fully stated in the magistrate judge’s R&R, this Court finds that
ALJ developed a reasonably complete record” and that the plaintiff received a full and fair
hearing. See Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994) (cited with approval
by Rice v. Charter, 1995 WL 253134, *2 (4th Cir. May 1, 1995) and Bell v. Charter, 1995
WL 347142, *4 (4th Cir. June 9, 1995)); see also Stahl v. Comm’r of Soc. Sec. Admin.,
2008 WL 2565895, *5 (N.D.W.Va. June 26, 2008) (citing Sims v. Harris, 631 F.2d 26, 27
(4th Cir. 1980)).
B. Treating Source Evidence
The plaintiff argues in her Motion for Summary Judgment that the ALJ improperly
discredited treating source evidence from Belington Community Medical Services [Doc. 11
at 8-9]. The magistrate judge concludes in his R&R that “there is substantial evidence to
support the ALJ’s conclusion to not afford the treating source evidence and opinion
controlling weight” [Doc. 15 at 17]. In her Objections, the plaintiff argues that some of the
records discounted by the ALJ were actually filled out by the West Virginia Department of
Health and Human Resources (“DHHR”), not Belington Community Medical Services [Doc.
16 at 10-11]. The plaintiff further argues that, even if the records were prepared by
Belington Community Medical Services, the ALJ still improperly discounted a treating
source [Id. at 12-13].
In evaluating the opinions of treating sources, an ALJ must generally give more
weight to the opinion of a treating physician because the physician is most able to provide

17

“a detailed, longitudinal picture” of a claimant’s alleged disability.

See 20 C.F.R.

§ 404.1527(c)(2). Nevertheless, a treating physician’s opinion is afforded “controlling
weight only if two conditions are met: (1) [the opinion] is supported by clinical and
laboratory diagnostic techniques and (2) [the opinion] is not inconsistent with other
substantial evidence.” Ward v. Chater, 924 F.Supp. 53, 55 (W.D. Va. 1996); see also 20
C.F.R. § 404.1527(c)(2) and 20 C.F.R. § 416.927(c)(2). As such, the ALJ is not required
to give controlling weight to a treating source where the ALJ finds that the physician’s
opinion is inconsistent with other substantial evidence. See Ward, 924 F.Supp. at 55; 20
C.F.R. § 404.1527(c)(2); and 20 C.F.R. § 416.927(c)(2); see also Johnson v. Barnhart,
434 F.3d 650, 654 at n.5 (4th Cir. 2005) (“[T]he ALJ holds [the] discretion to give less
weight to the testimony of a treating physician in the face of persuasive contrary evidence.”)
(internal citations omitted); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (If
a treating physician’s opinion “is not supported by clinical evidence or if it is inconsistent
with other substantial evidence, it should be accorded significantly less weight.”).
If the ALJ determines that a treating physician’s opinion should not be accorded
controlling weight, the ALJ must then analyze and weigh all the evidence of record, taking
into account the factors listed in 20 C.F.R. § 404.1527(c)(1)-(6). These factors include:
(a) examining relationship, (b) treatment relationship, (c) length of the treatment
relationship and frequency of examination, (d) nature and extent of the treatment
relationship, (e) supportability of the opinion, (f) consistency between the opinion and the
record as a whole, (g) whether the treatment source is opining within his or her
specialization, and (h) any other factors that tend to support or contradict the opinion. 20

18

C.F.R. § 404.1527(c)(1)-(6). In addition, the regulations state that the Commissioner “will
always give good reasons in [the] notice of determination or decision for the weight [given
to the] treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2). In this regard, Social
Security Ruling 96-2p provides that such decisions “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.” Social Security Ruling 96-2p, 1996 WL
374188, *5 (July 2, 1996).
ALJ La Vicka noted that he was not affording much weight to the records from
Belington Community Medical Services8 because the “records are fraught with highly
questionable conclusions based primarily on the claimant’s subjective complaints and no
medically objective standards” [R. 14]. ALJ La Vicka further stated the following:
The records of Belington Medical Clinic, as a whole, are inconsistent
with the credible medical evidence established in this matter. There is no
evidence that the claimant was experiencing the degree of symptoms,
particularly given the findings from the claimant’s [physical] consultative
examination on March 24, 2010, and certainly no basis in fact or in any
clinical/laboratory finding to justify the conclusion of Dr. Jeffrey Harris or
Karen Spotle, PAC, that the claimant is simply unable to work. This
unsubstantiated conclusion is particularly concerning based on the fact that
the practitioners at Belington seemed to find otherwise in completing
paperwork for the claimant to renew her commercial driver’s license (CDL)
in January 2009. Specifically, the credibility of the practitioners and the
claimant are called into serious doubt in what has been marked as Exhibit 2F
8

This Court notes the plaintiff argument that some of the records discounted by the
ALJ were actually filled out by the DHHR, not Belington Community Medical Services. As
noted by the magistrate judge in his R&R, the forms appear to be standard referral sheets
to be filled out by a treating physician and returned to the DHHR [Doc. 15 at 15 n.1].
However, regardless of who prepared the forms, the ALJ determined that the conclusions
reached in the forms would not be afforded controlling weight because those conclusions
were not supported by clinical and laboratory diagnostic techniques and were inconsistent
with other substantial evidence. As such, because the ALJ’s determination was based
upon the conclusions reached in the form, it does not matter who authored these forms.
19

which contains a “West Virginia Department of Health and Human Resources
Medical Review Team: General Physical (Adults)” form completed by
Belington, progress notes from a few office visits and a “Medical Examination
Report for Commercial Driver Fitness Determination.”
Exhibit 2F (pages 5-8), contains the “Medical Examination Report for
Commercial Driver Fitness Determination” filled out in part by the claimant
herself and in part by Karen Spotle, PAC, of Belington, on January 13, 2009.
In the “Health History” section that was completed by the claimant and which
the Federal Motor Carrier Safety Administration encourages discussion
between the claimant and the medical practitioner, the claimant reports no
spinal injury or disease and no chronic law back pain. Both of these
statements stand in stark contrast to the claimant’s complaints made
elsewhere throughout the record, including statements she made to
Belington medical practitioners at other times who apparently voiced no
reservations or objections to completing and signing off on the forms despite
their knowledge that statements made by the claimant were arguably false.
In furtherance of obtaining the claimant a renewal of her CDL, Karen Spotle,
PAC, also failed to acknowledge the claimant’s long-standing history of
degenerative disc disease including cervical and lumbar surgery in the form
of diskectomies with fusion. When asked on the form if the claimant had any
“[p]revious surgery, deformity, limitation of motion, tenderness” of the “Spine,
other musculoskeletal” body system, Ms. Spotle answered “NO” thereby
certifying that the claimant had no such conditions and was otherwise healthy
enough to operate a commercial motor vehicle. For all of the aforementioned
reasons, little weight is afforded to the medical diagnoses, findings and/or
opinions of Belington Community Medical Services (Belington). In further
support of this finding, State agency consultant Dr. Fulvio Franyutti, M.D.,
reviewed all of the medical evidence in this matter including the records of
Belington. In his expert opinion, based on his education, training and
experience along with a thorough review of the record, Dr. Franyutti found
the statement by Belington that the claimant is “unable to work for a year”
unsupported by the objective medical evidence. (Exhibit 7F).
[R.14].
ALJ La Vicka then proceeded to review the other evidence in the record [R. 15-16].
As noted by ALJ La Vicka, he found that medical evidence from Belington Community
Medical Services (1) was not supported by clinical and laboratory diagnostic techniques
and (2) was inconsistent with other substantial evidence. As such, the ALJ properly used
his discretion to give less than controlling weight to this evidence in light of persuasive
20

evidence contrary to the treating physician’s foundation for his conclusion. See Johnson
v. Barnhart, 434 F.3d 650, 654 at n.5 (4th Cir. 2005); see also Ward v. Chater, 924
F.Supp. 53, 55 (W.D. Va. 1996); see also 20 C.F.R. § 404.1527(c)(2) and 20 C.F.R.
§ 416.927(c)(2).

Furthermore, the ALJ considered the factors in 20 C.F.R.

§ 404.1527(c)(1)-(6) and provided reasons for weight given to the opinions contained in the
records from Belington Medical Community Services pursuant to Social Security Ruling 962p [R. 11-16]. Accordingly, this Court hereby OVERRULES the plaintiff’s Objections on this
issue. For these reasons and those more fully stated in the magistrate judge’s R&R, this
Court finds that the ALJ’s decision to give less than controlling weight to the records from
Belington Community Medical Services was not a reversible error and was supported by
substantial evidence.
C. RFC
The plaintiff argues in her Motion for Summary Judgment that the RFC was
inconsistent with the overall medical records [Doc. 11 at 12-15]. The magistrate judge
concludes in his R&R that the ALJ “reviewed the entire record, both medical and nonmedical evidence, as he is required to do” in reaching the RFC conclusion [Doc. 15 at 18].9
In her Objections, the plaintiff argues that “the ALJ’s RFC was based on a hodgepodge of

9

In addition, the magistrate judge notes that the plaintiff argues in a footnote in her
Motion for Summary Judgment that the hypothetical provided to the vocational expert was
flawed because it was based upon an RFC that is not supported by substantial evidence
[Doc. 15 at 18]. The magistrate judge finds this argument without merit because he
concludes that the RFC is indeed supported by substantial evidence [Id.]. The plaintiff
made no objection to the magistrate judge’s conclusion regarding the hypothetical posed
to the vocational expert [See Doc. 16]. Upon a review of the R&R and a finding that RFC
is supported by substantial evidence, this Court finds no clear error with the magistrate
judge’s conclusion on this issue.
21

evidence that the ALJ arbitrarily disregarded, arbitrarily ignored, and arbitrarily credited”
[Doc. 16 at 13].
A claimant’s RFC “is the most [the claimant] can do despite [his or her] limitations.”
20 C.F.R. § 404.1545 (a)(1). The ALJ is responsible for assessing the claimant’s RFC. 20
C.F.R. § 404.1546(a). The ALJ is “not required to obtain an expert medical opinion” in
assessing a claimant’s RFC. Felton-Miller v. Astrue, 459 Fed.Appx. 226, 231 (4th Cir.
2011). The ALJ bases the RFC assessment on all relevant medical and other evidence in
the record, including the “[claimant’s] subjective complaints, the objective medical evidence,
and the opinions of treating, examining, and non-examining physicians.” Id.; see also 20
C.F.R. § 404.1520(e).
In her Objections, the plaintiff argues that the ALJ did not properly consider the
claimant’s subjective complaints, the objective medical evidence, or various medical
sources in reaching the RFC conclusion [Doc. 16 at 13-14]; the plaintiff also claims that the
ALJ improperly formed the RFC based on his own beliefs regarding what the plaintiff can
do [Id. at 14-15]. This Court first notes that the ALJ’s discussion of the evidence that he
considered in reaching his RFC conclusion exceeds five pages of the ALJ’s eleven-page
written decision [R. 11-16]. In this discussion, the ALJ reviews in detail all the evidence that
he considered, including the plaintiff’s subjective complaints and the objective medical
evidence, in great detail [Id.]. Although the plaintiff disagrees with the weight assigned to
certain evidence [Doc. 16 at 13-14], this does not mean that the ALJ failed to consider
evidence that it assigned less weight. Accordingly, this Court hereby OVERRULES the
plaintiff’s Objections on this issue. For these reasons and those more fully stated in the

22

magistrate judge’s R&R, this Court finds that the ALJ’s RFC is supported by substantial
evidence.
IV. Conclusion
Upon careful consideration, it is the opinion of this Court that the magistrate judge’s
Report and Recommendation [Doc. 15] should be, and hereby is, ADOPTED. Further, the
plaintiff’s Objections [Doc. 16] are OVERRULED. Therefore, this Court ORDERS that the
defendant’s Motion for Summary Judgment [Doc. 12] is hereby GRANTED and the
plaintiff’s Motion for Summary Judgment [Doc. 10] is hereby DENIED. Accordingly, this
Court hereby DENIES and DISMISSES the plaintiff’s Complaint [Doc. 1] and ORDERS that
this matter be STRICKEN from the active docket of this Court. The Clerk is directed to
enter a separate judgment in favor of the defendant.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: April 29, 2013.

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