Sparks v. Commissioner of Social Security

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Kaull's 19 Report and Recommendation is adopted; Plaintiff's 20 Objections are overruled; Defendant's 17 Motion for Summary Judgment is granted; and Plainti ff's 13 Motion for Summary Judgment is denied. This Court hereby 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 10/6/14. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
LISA LYNN SPARKS,
Plaintiff,
v.

Civil Action No. 2:14-CV-00016
The Honorable John Preston Bailey

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

ORDER ADOPTING REPORT AND RECOMMENDATIONS
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge John S. Kaull [Doc. 19].
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Kaull for
submission of a proposed report and a recommendation (“R & R”). Magistrate Judge Kaull
filed his R&R on August 14, 2014, wherein he recommends that the Defendant’s Motion
for Summary Judgment be granted, and Plaintiff’s Motion for Summary Judgment be
denied. The plaintiff timely filed Objections to the R & R [Doc. 20]. For the reasons set forth
below, this Court adopts Magistrate Judge Kaull’s R&R.
I. BACKGROUND
Plaintiff, Lisa Lynn Sparks, filed an application for Title II Disability Insurance
Benefits on November 12, 2010. [Doc. 9-2 at 12]. Her claim was first denied on April 13,
2011 and again upon reconsideration on August 2, 2011. Id. Plaintiff then requested and
received a hearing before United States Administrative Law Judge Jeffrey P. LaVicka
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[hereinafter “ALJ”]. Id. At this hearing, the ALJ found that the plaintiff was not disabled.
Further, he made the following determination of the plaintiff’s residual functional capacity
the claimant has the residual functional capacity to perform sedentary work
as defined in 20 C.F.R. 404.1567(a) except the work must: entail no climbing
of ladders, ropes and scaffolds and only occasional claiming [sic] of ramps
or stairs, balancing, stooping, kneeling, crouching and crawling; entail only
occasional overhead reaching with the right arm; and avoid concentrated
exposure to extreme cold and heat and all exposure to unprotected heights,
hazards machinery and commercial driving.
Id.at 17. Thereafter, the Appeals Council reviewed and subsequently upheld the ALJ’s
decision. [Doc. 9-2 at 2]. As such, the plaintiff has exhausted her administrative remedies.
The plaintiff then sought review in this Court. [Doc. 1 at 2]. The United States
Magistrate Judge John S. Kaull submitted his R & R [Doc. 19]. The R & R provides a
detailed discussion regarding the plaintiff’s medical history. Therefore, the undersigned will
dispense with the same. Rather, the undersigned will reference the pertinent records when
applicable.
II. STANDARD OF REVIEW
When reviewing a Magistrate Judge’s proposed findings of fact and
recommendations, this Court must make a “de novo determination of those portions of the
report . . . to which objection is made. A judge of the court may accept, reject or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1) (West 2014).
Although this Court will review the Magistrate Judge’s R & R under a de novo
standard of review, this Court’s review of the underlying ALJ’s decision is limited. See
Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Pursuant to 42 U.S.C. § 405(g)
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(West 2014), “[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.” The standard for the substantial
evidence is “‘more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (citation omitted). When analyzing whether the ALJ’s decision was
supported by substantial evidence, this Court must determine whether the ALJ
“consider[ed] all relevant evidence.” Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
339 (4th Cir. 1997). With these standards in mind, this Court will turn to the objections
raised by the plaintiff.
III. DISCUSSION
The plaintiff asserts two objections to the Magistrate Judge’s Report. First, the
plaintiff asserts that the Magistrate Judge erred by finding that the ALJ’s decision was
supported by substantial evidence. The plaintiff argues that the ALJ did not properly
evaluate and weigh medical opinion evidence included in the record, thus, the ALJ’s
residual functional capacity (“RFC”) assessment lacked evidentiary support. [Doc. 20 at 2].
Second, plaintiff argues that the Magistrate Judge erred when finding that the ALJ’s failure
to consider the Vocational Expert’s (“VE”) testimony was harmless error. Id. at 5.
A.

The ALJ’s residual functional capacity assessment of plaintiff was
supported by substantial evidence.
When determining whether an individual is disabled, the ALJ is directed to use the

following five step process:
i) At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled. (See
paragraph (b) of this section.)
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(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable physical
or mental impairment that meets the duration requirement in § 404.1509, or
a combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled. (See paragraph (c) of this
section.)
(iii) At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of our
listings in appendix 1 of this subpart and meets the duration requirement, we
will find that you are disabled. (See paragraph (d) of this section.)
(iv) At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant
work, we will find that you are not disabled. See paragraphs (f) and (h) of this
section and § 404.1560(b).
(v) At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see if
you can make an adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled. See paragraphs
(g) and (h) of this section and § 404.1560(c).
See 20 C.F.R. § 404.1520 (West 2014). In his opinion, the ALJ found that plaintiff suffers
from two severe impairments, including right ulnar neuropathy, and right shoulder adhesive
capsulitis/chronic neck sprain. [Doc. 9-2 at 14]. After finding that the plaintiff had two
severe impairments, the ALJ found that these severe impairments did not render the
plaintiff disabled at step three. Id. at 16. Next, the plaintiff’s RFC was determined. The
ALJ found that:
the claimant has the residual functional capacity to perform sedentary work
as defined in 20 C.F.R. 404.1567(a) except the work must: entail no climbing
of ladders, ripes and scaffolds and only occasional claiming [sic] of ramps or
stairs, balancing, stooping, kneeling, crouching and crawling; entail only
occasional overhead reaching with the right arm; and avoid concentrated
exposure to extreme cold and heat and all exposure to unprotected heights,
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hazards machinery and commercial driving.
Id. at 17. This is the step to which plaintiff objects. The plaintiff argues that the ALJ’s
“failure to give full weight to any of the medical opinions created a vacuum of medical
opinion and he impermissibly substituted his own lay opinion regarding the work-related
limitations that were justified by the medical evidence to formulate his RFC.” [Doc. 20 at 4].
The ALJ is directed to use all relevant medical and other evidence when assessing
an individual’s RFC. See 20 C.F.R. § 404.1545. This includes evidence from medical
examinations, opinions from medical sources, and descriptions and statements from the
applicant regarding the applicant’s abilities. See id. The Social Security Administration
directs the ALJ to consider all medical opinions in its RFC determination. See id. Pursuant
to 20 C.F.R. § 404.1527, the ALJ is directed to assess opinions as follows:
How we consider medical opinions. In determining whether you are disabled,
we will always consider the medical opinions in your case record together
with the rest of the relevant evidence we receive.
How we weigh medical opinions. Regardless of its source, we will evaluate
every medical opinion we receive. Unless we give a treating source's opinion
controlling weight under paragraph (c)(2) of this section, we consider all of
the following factors in deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a
source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
opinions from your treating sources, since these sources are likely
to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's opinion on the
issue(s) of the nature and severity of your impairment(s) is well5

supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight. When
we do not give the treating source's opinion controlling weight, we
apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this
section, as well as the factors in paragraphs (c)(3) through (c)(6) of
this section in determining the weight to give the opinion. We will
always give good reasons in our notice of determination or decision
for the weight we give your treating source's opinion.
(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.
(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 your impairment(s), we
will give the source's opinion more weight than we would give it if it
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. The
better an explanation a source provides for an opinion, 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.
(4) Consistency. Generally, the more consistent an opinion is with
the record as a whole, the more weight we will give to that opinion.
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(5) Specialization. We generally give more weight to the opinion of
a specialist about medical issues related to his or her area of
specialty than to the opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring
to our attention, or of which we are aware, which tend to support or
contradict the opinion. . . .
The ALJ must provide reasoning for the weight he assigned to “all relevant
evidence.” See Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (holding that a
court “cannot determine if findings are supported by substantial evidence unless the
Secretary explicitly indicates the weight given to all the relevant evidence.”); see also 20
C.F.R. § 404.1520. However, contrary to plaintiff’s argument, this does not require that the
ALJ give “full weight” to any of the medical opinions.
Further, a treating physician’s opinion does not demand controlling weight if it is
inconsistent with substantial evidence in the record. See 20 C.F.R. § 404.1527 (c)(2); see
also Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (holding “a treating physician’s
opinion is entitled to great weight and may be disregarded only if persuasive contradictory
evidence exists to rebut it.”).
In her argument, plaintiff specifically points to the portion of the ALJ’s opinion that
discredited part of Physical Therapist John DiBacco’s opinion. Like the Magistrate Judge’s
R & R, this Court finds that ALJ’s decision to place “little weight” on PT DiBacco’s opinion
that plaintiff could neither crawl, nor operate controls with her right upper extremity and that
plaintiff was limited in overhead reaching was supported by substantial evidence. [Doc. 9-2
at 21].

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First, the ALJ’s opinion that plaintiff could occasionally crawl is supported by both
Dr. Fulvio Franyutti and Kay Means’s Physical Residual Functional Capacity Assessments
of plaintiff. Kay Means found that plaintiff could frequently climb, stoop, kneel, crouch, and
crawl. [Doc. 9-3 at 8]. In Dr. Franyutti’s assessment on April 28, 2009, he found that the
plaintiff could occasionally crawl. [Doc. 9-7 at 60].
Further, PT DiBacco’s opinion that plaintiff is not capable of operating controls with
her right upper extremity was contradicted by other evidence in the record. Neither Kay
Means nor Dr. Franyutti’s assessments indicated that the plaintiff was limited in operating
controls with her right upper extremity. [Doc. 9-3 at 7, Doc. 9-7 at 59]. Moreover, plaintiff’s
treating physician, Dr. Topping, never indicated that plaintiff was unable to operate controls
with her right upper extremity.
Plaintiff also objects to the portion of the ALJ’s opinion that gave little weight to PT
DiBacco’s finding that plaintiff was “limited to only frequent forward reaching.” [Doc. 9-2 at
21]. In his report, Dr. Franyutti indicated that plaintiff was limited in reaching and lifting with
her right upper extremity, but could do those activities occasionally. [Doc. 9-7 at 58-65].
Dr. Franyutti’s assessment is consistent with the ALJ’s finding in his RFC that plaintiff’s
work could only entail “occasional overhead reaching with the right arm.” In making this
determination, the ALJ considered objective evidence from the plaintiff’s residual capacity
assessments: both Dr. Franyutti and Kay Means indicated that the plaintiff could frequently
lift or carry ten pounds. [Doc. 9-7 at 59, Doc. 9-3 at 7].
As discussed above, when formulating a claimant’s RFC, the ALJ, in addition to
medical evidence, is directed to consider descriptions and statements from the applicant
regarding the applicant’s abilities. Here, the ALJ discussed the plaintiff’s lack of seeking
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medical treatment and her activities of daily living, which include, but are not limited to,
personal hygiene, and household chores, such as cleaning, laundry, and cooking. [Doc. 9-2
at 46-47]. The plaintiff’s extensive daily activities together with the contradictory medical
evidence provided substantial evidence to support the ALJ’s finding that plaintiff has the
residual functional capacity to perform sedentary work with the limitations that plaintiff only
occasionally engage in overhead reaching with the right arm.
B.

The ALJ’s decision to not include a limitation for handling, fingering, and
feeling was supported by substantial evidence.
Plaintiff’s next objection is regarding the VE’s testimony at the ALJ hearing. At the

hearing, the ALJ asked the VE the following:
[a]ssume a hypothetical individual the same age, education, and work
experience as the claimant who retains the capacity to perform sedentary
work with occasional postural except no climbing of ladders, ropes or
scaffolds, who’s limited to occasional overhead reaching with the right arm,
who must avoid concentrated exposure to cold and heat, and who must avoid
all exposure to unprotected heights, hazardous machinery, and commercial
driving. Would such an individual be capable of performing the claimant’s
past work?
[Doc. 9-2 at 54-59]. The VE responded that the individual would not be able to perform the
claimant’s past work, but would be able to perform the jobs of table worker, quotation clerk,
and order clerk. Id. The VE also testified that 490 total jobs in these classifications exist
in the regional economy. Upon cross-examination, the plaintiff’s counsel posed the same
hypothetical to the VE, but added the additional restriction of “only occasional handling,
fingering, and feeling, as seen in [exhibits] 6F, 14F, and 19F . . . With just the right arm,
would that change your answers for the sedentary jobs available?” With the additional
restriction on the right arm, the VE eliminated the quotation clerk from the available jobs.
Id. at 57.
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Here, plaintiff objects that the ALJ failed to consider this testimony because it
“rais[es] the issue of whether there would be a significant number of jobs available if that
job were not performable.” [Doc. 20 at 6].

The Magistrate Judge found the ALJ’s

determination that plaintiff was not limited in handling, fingering, and feeling was supported
by substantial evidence. The Magistrate Judge also found that even if the ALJ erred in his
assignment of weight to these opinions, this would only amount to harmless error. [Doc. 19
at 31]. Because this Court finds that the ALJ’s decision in this regard was supported by
substantial evidence, it will dispense with the harmless error analysis.
The ALJ explained his reasoning for finding that the plaintiff did not have a limitation
in handling, fingering, and feeling. [Doc. 9-2 at 21]. The ALJ discussed plaintiff’s right ulnar
neuropathy and surgery in May 2008. Although Dr. Franyutti opined that the plaintiff had
limitation with handling, fingering, and feeling, the ALJ placed little weight on this medical
opinion because of other evidence in the record. [Doc. 9-2 at 21]. Instead, he considered
the plaintiff’s lack of treatment and her extensive activities of daily living, including her
testimony that she pushes her five-month old son in a stroller two to three times a week.
[Doc. 9-2 at 38-39]. Moreover, the ALJ also afforded PT DiBacco’s report significant
weight in this regard. At the examination with PT DiBacco, the plaintiff’s “manual muscle
testing showed 5/5 strength through the right wrist” and she “demonstrated fair fine motor
skills when working with objects several mm in size.” [Doc. 9-2 at 21].
Based on the foregoing, this Court finds that ALJ’s determination of the plaintiff’s
RFC was supported by substantial evidence. Indeed, the only mention of the job “quotation
clerk” being eliminated was when plaintiff’s own counsel raised it in his hypothetical to the
VE. The ALJ certainly never agreed that the position should be eliminated in determining
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the number of jobs available. Therefore, the plaintiff’s assertion that it “[r]aises the issue
of whether there would be a significant number of jobs available if that job were not
performable” is misplaced.
IV.CONCLUSION
For the foregoing reasons, this Court is of the opinion that Magistrate Judge Kaull’s
Report and Recommendations [Doc. 19] should be and is ADOPTED. Further, the
Plaintiff’s Objections [Doc. 20] are OVERRULED. Therefore, the Defendant’s Motion for
Summary Judgment [Doc. 17] is GRANTED and the Plaintiff’s Motion for Summary
Judgment [Doc. 13] is DENIED.
Accordingly, this Court hereby DENIES and DISMISSES the plaintiff’s Complaint
[Doc. 1] and ORDERS the 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: October 6, 2014.

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