Wray v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. 17 Report and Recommendation is AFFIRMED and ADOPTED; Plaintiff's 13 Motion for Summary Judgment is DENIED; Defendant's 15 Motion for Summary Judgment is GRANTED. This case is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 2/5/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
VIVIAN FAY WRAY,
Plaintiff,
v.

Civil Action No. 5:12CV16
(STAMP)

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

On March 6, 2007, the plaintiff in this civil action filed an
application for disability insurance benefits (“DIB”) under Title
II of the Social Security Act, claiming that she suffered from
disability

beginning

March

2,

2006.

The

plaintiff

claimed

disability as a result of back injury, bulging and compressed
discs, depression, and emotional issues.

Her application was

denied both initially and upon reconsideration.

On December 19,

2008, the plaintiff requested a hearing and such hearing was held
on May 11, 2010 before Administrative Law Judge (“ALJ”) George A.
Mills, III. The ALJ affirmed the denial of benefits on the grounds
that the plaintiff was not disabled as that term is defined by the
Social Security Act.

The plaintiff then requested a review by the

Appeals Council but was denied.

Thereafter,

the

plaintiff

filed

this

action

against

the

Commissioner of Social Security (“Commissioner”) seeking judicial
review of the adverse decision entered against her.

After filing

her complaint with this Court, the plaintiff filed a motion for
summary judgment.

The defendant did not respond to this motion,

but the defendant did file a separate motion for summary judgment.
United States Magistrate Judge James E. Seibert reviewed the
plaintiff’s

complaint,

the

motions

by

the

parties

and

the

administrative record, and issued a report and recommendation
recommending that the defendant’s motion for summary judgment be
granted, that the plaintiff’s motion for summary judgment be
denied, and that this matter be dismissed.

Upon submitting his

report, Magistrate Judge Seibert informed the parties that if they
objected to any portion of his proposed findings of fact and
recommendation for disposition, they must file written objections
within fourteen days after being served with a copy of the report.
The

plaintiff

thereafter

filed

timely

objections

to

all

the

magistrate judge’s finding.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

As to those

portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld

2

unless they are clearly erroneous.

Because the plaintiff filed

objections to the entirety of the magistrate judge’s report and
recommendation, this Court will undertake a de novo review of all
of the magistrate judge’s findings.
III.

Discussion

In plaintiff’s motion for summary judgment, the plaintiff
argues that: (1) the ALJ failed to follow the treating physician
rule, as he only afforded the treating physician’s medical opinion
little weight; (2) the ALJ failed to give adequate consideration to
the claimant’s knee impairment given her obesity and the cumulative
effect of the plaintiff’s impairments; and (3) the ALJ failed to
properly evaluate the plaintiff’s credibility, as his credibility
finding

did

not

§ 404.1529(c)(4).

comport

with

the

requirements

of

20

C.F.R.

The Commissioner’s motion for summary judgment,

however, asserts that substantial evidence supports the ALJ’s
evaluations.
Concerning the plaintiff’s first argument regarding the weight
given to the treating physician’s medical opinion, the magistrate
judge found the ALJ’s objective findings led the ALJ to discredit
opinion of the treating physician, Dr. Foy, and such decision was
supported by substantial evidence.

The magistrate judge indicated

that the Court’s review of the ALJ’s decision is limited to
determining whether the decision is supported by “substantial
evidence.” Further, he correctly noted that the medical opinion of

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the plaintiff’s treating physician is entitled to great weight and
may only be disregarded if there is persuasive contradictory
evidence.

Evans v. Heckler, 734 F.2d 1012, 1015 (4th Cir. 1984).

Such is the case because, as the magistrate judge indicates, a
treating physician has examined the applicant and has a treatment
relationship with him or her.
(4th Cir. 2001).
opinions

may

Mastro v. Apfel, 270 F.3d 171, 178

However, as the magistrate judge asserted, such

still

be

contradictory evidence.

disregarded

if

there

Evans, 734 F.2d at 1015.

is

persuasive

The magistrate

judge stated that regarding whether such opinions of a treating
physician should be given controlling weight, the opinion must be
well-supported by medically acceptable clinical and laboratory
diagnostic technics, and not inconsistent with other substantial
evidence in the case record.

20 C.F.R. § 416.927(d)(2); Craig v.

Chater, 76 F.3d 585, 590 (4th Cir. 2001).

As the magistrate judge

also indicates, however, opinions as to ultimate issues, like
residual functional capacity (“RFC”) and disability status under
the regulations, are reserved exclusively to the ALJ.
§§ 404.1527(e)(1)-(3), 416.927(e)(1).

20 C.F.R.

Here, the magistrate judge

found that the ALJ did not err by giving little weight to Dr. Foy’s
opinion on whether the plaintiff was disabled as that issue is
reserved for the Commissioner. Further, he found that based on the
other medical opinion testimony from other non-treating physicians,

4

there was substantial evidence to support the ALJ’s decision to
discredit Dr. Foy’s testimony.
The plaintiff objects to the magistrate judge’s finding that
the ALJ properly followed the treating physician rule.

The

plaintiff argues that instead of evaluating Dr. Foy’s opinion to
determine if it was consistent with the medical evidence, the ALJ
evaluated Dr. Foy’s assessment against his interpretation of the
medical records.

Specifically, the plaintiff takes issue with the

ALJ using the MRI findings, which found only “mild” impairments, to
discredit

Dr.

impairments.

Foy’s
Further,

testimony
the

regarding

plaintiff

argues

the
that

plaintiff’s
the

ALJ’s

evaluation of the medical evidence is deficient in that it failed
to actually state how much weight he gave to any of the other
physicians who provided evidence regarding the plaintiff’s claim.
An ALJ’s findings will be upheld if supported by substantial
evidence.

See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998). Substantial evidence is that which a “‘reasonable
mind might accept as adequate to support a conclusion.’”

Hays v.

Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).

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. Mut. Mining, Inc., 80

5

F.3d 110, 113 (4th Cir. 1996) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)).
This Court has reviewed the record, as well as the parties’
motions for summary judgment and, after a de novo review, concurs
with the magistrate judge that the ALJ’s finding concerning whether
the ALJ complied with the treating physician rule was supported by
substantial evidence.

As the magistrate judge indicated, the ALJ

went through the various medical evidence he used in making her
determination in detail.

See ECF No. 11 Ex. 2 *23.

Such evidence

included but was not limited to the ALJ noting that one doctor
found the plaintiff’s spine impairments to be “mild in nature,” as
well as another doctor stating that an MRI showed “only mild disc
degeneration and minimal bulging at L4-5.”

Id.

This Court finds

that such statements and other evidence that was in conflict with
the severity of the plaintiff’s impairments asserted by Dr. Foy
provided substantial evidence to allow the ALJ to discredit Dr.
Foy’s

testimony.

interpreting

the

There
medical

is

no

evidence

evidence
rather

that
than

the

ALJ

was

evaluating

it.

Further, this Court finds that the ALJ did not fail to explain how
much

weight

he

gave

to

the

other

physicians’

opinions.

Specifically, he stated, “State agency reviewing mental consultants
have opined that the claimant had no more than moderate limitations
in work-related mental activities.

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The undersigned finds these

opinions consistent with the medical evidence of record.”
11 Ex. 2 *26.

ECF No.

Moreover, the ALJ stated,

The opinions of the state agency reviewing consultants
that the claimant retained the residual functional
capacity for a range of light exertional work have been
considered. Although these findings are likely accurate,
the undersigned has given the claimant the benefit of all
doubt and considered her subjective complaints to reduce
her residual functional capacity to a range of sedentary
work.
ECF No. 11 Ex. 2 *25. Such statements indicate the weight provided
to the other physician’s opinions.
In regards to the plaintiff’s next argument in her summary
judgment motion, the magistrate judge first found that plaintiff’s
assertion

that

the

ALJ

provided

a

mere

plaintiff’s obesity was without merit.

cursory

review

of

The magistrate judge

indicated that the ALJ’s decision demonstrates that he evaluated
and

considered

the

plaintiff’s

obesity

in

determining

the

plaintiff’s RFC. The magistrate judge next found that the ALJ also
properly evaluated her combination of impairments, noting the
specific instances of such evaluation in the ALJ’s opinion.
The plaintiff objects to the magistrate judge’s findings
stating that the ALJ’s mere “lip-service” to the requirements of
SSR 02-1p was insufficient given her extreme obesity and left knee
impairment.

This Court has reviewed the record, as well as the

parties’ motions for summary judgment, and after a de novo review,
concurs with the magistrate judge, as the ALJ properly evaluated
the

combination

of

impairments
7

and

properly

considered

the

plaintiff’s obesity in determining the plaintiff’s RFC.

The ALJ

must consider the impact of a claimant’s obesity on his RFC.

Hess

v. Astrue, 2:09-cv-124, 2010 U.S. Dist. LEXIS 29986, *5-6 (S.D.
Ohio Mar. 29, 2010).

The ALJ specifically states that in making

his finding he “considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.”
*22.

ECF No. 11 Ex. 2

He then goes on to discuss the medical evidence concerning

the plaintiff’s obesity and knee injury.

See ECF No. 11 Ex. 2 *24.

Moreover, initially the ALJ discussed the plaintiff’s obesity in
detail and determined that the plaintiff “failed to establish that
the effects of her obesity result in a combination of impairments
that satisfy the requirements of any of the impairments detailed in
Appendix 1.”

Id. at *20.

The ALJ stated that he had “considered

the effects of claimant’s obesity” at every step in the evaluation
process as required by SSR 2-01p.

Id.

This Court finds that this

detailed discussion of the plaintiff’s obesity and its effects does
not

amount

to

mere

“lip-service”

and

satisfies

the

ALJ’s

responsibilities under the regulations.
As to the plaintiff’s third argument in her summary judgment
motion, the magistrate judge found that the ALJ’s decision not to
fully credit the plaintiff’s statements about her symptoms was
consistent with the objective medical record.

As the magistrate

judge pointed out, while the ALJ must consider the plaintiff’s

8

statements,

he

need

not

credit

them

to

the

extent

they

are

inconsistent with the objective medical evidence or to the extent
the underlying objective medical impairment could not reasonably be
expected to cause the symptoms alleged.

Craig, 76 F.3d at 595.

The magistrate judge further noted that “[b]ecause [the ALJ has]
the opportunity to observe the demeanor and to determine the
credibility of the claimant, the ALJ’s observations concerning
these questions are to be given great weight.” Shively v. Heckler,
739

F.2d

987,

989

(7th

Cir.

1984)

(citation

omitted).

The

magistrate judge found that the ALJ met the test in Craig for
discrediting the plaintiff’s statements, as they were inconsistent
with the objective medical record.
The plaintiff objects to the magistrate judge’s findings,
stating that the magistrate judge’s credibility review was flawed.
The plaintiff first asserts that the MRIs were not inconsistent
with the plaintiff’s symptoms.

Second, she states that the claim

by Dr. Douglas concerning the plaintiff being a poor candidate for
surgery does not impeach the plaintiff’s credibility.

Lastly, the

plaintiff claims that the fact that she receives pain medications
from

her

primary

care

physician

and

not

a

pain

management

specialist is not relevant to evaluating the credibility of her
pain claims.

She states that the pain medications prescribed are

not less effective because they come from a different doctor and

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further, she states that there are other reasons that she may not
see a specialist, such as financial issues.
This Court has reviewed the record, as well as the parties’
motions for summary judgment and, after a de novo review, concurs
with the magistrate judge’s finding that the ALJ’s decision to not
fully credit the plaintiff’s statements was consistent with the
objective medical record.

As noted above, the “‘possibility of

drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by
substantial evidence.’” Mut. Mining, Inc., 80 F.3d at 113 (quoting
Consolo, 383 U.S. at 620 (1966)).

The ALJ listed out his reasons

for why he believed the plaintiff’s statement were inconsistent
with objective medical evidence.

See ECF No. 11 Ex 2 * 22.

He

specifically stated that the medical evidence did not reveal any
“really severe condition.”

He then listed such reasons for his

statement, including there being “no disc herniations, nerve root
impingement

or

other

evidence

of

a

disabling

condition” among other reasons for his finding.

lumbar

Id.

spine

This Court

believes that based on the objective medical evidence listed and
explained

by

the

ALJ,

his

decision

to

not

fully

credit

the

plaintiff’s statements was supported by substantial evidence.
IV.

Conclusion

After a de novo review, this Court AFFIRMS and ADOPTS the
magistrate judge’s report and recommendation that the defendant’s

10

motion for summary judgment be GRANTED and the plaintiff’s motion
for summary judgment be DENIED as to the plaintiff’s second
assignment of error.

Thus, for the reasons stated above, the

defendant’s motion for summary judgment (ECF No. 15) is GRANTED and
the plaintiff’s motion for summary judgment (ECF No. 13) is DENIED.
It is further ORDERED that this case be DISMISSED and STRICKEN from
the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

February 5, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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