Gordon v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE re 16 Report and Recommendations. The defendant's motion for summary judgment 11 is GRANTED and Gordons motion for summary judgment 9 is DENIED. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/29/2013. (copy to counsel of record via CM/ECF)(nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TRISHA GORDON, individually and
in her role as Administratrix of
the Estate of RODNEY LANE GORDON,
deceased,
Plaintiff,
v.

Civil Action No. 5:12CV132
(STAMP)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
In

April

2009,

Procedural History

Rodney

L.

Gordon

(“Gordon”)

filed

an

application for disability insurance benefits (“DIB”) under Title
II of the Social Security Act, claiming that he suffered from
disability beginning April 30, 2008.
a

result

of

osteoarthritis,

Gordon claimed disability as

hypertension,

abdominal wall hernia, and obesity.

diabetes

mellitus,

His application was denied

both initially and upon reconsideration.

Gordon then requested a

hearing on the matter and such hearing was held on March 9, 2011,
before Administrative Law Judge (“ALJ”) Richard E. Guida.

The ALJ

issued a partially favorable decision finding that Gordon was not
disabled prior to February 7, 2011 and, therefore, not disabled
through his date last insured of September 30, 2010 for purposes of
the DIB claim.

The ALJ did find, however, that beginning on

February 7, 2011, Gordon was disabled as that term is defined by
the Social Security Act.

Gordon then requested a review by the

Appeals Council but was denied.
Thereafter, Gordon filed this action against the Commissioner
of Social Security (“Commissioner”) seeking judicial review of the
ALJ’s decision. After filing his complaint with this Court, Gordon
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. Subsequent to Gordon’s counsel filing the motion
for summary judgment, he learned that Gordon had died.

Trisha

Gordon then moved to be substituted as a party on behalf of his
estate.

The magistrate judge granted the motion and substituted

Trisha Gordon as plaintiff.

United States Magistrate Judge James

E. Seibert reviewed Gordon’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 Gordon’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.

2

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
unless they are clearly erroneous.

Because the plaintiff filed

objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
made.

This Court will review the other findings of the magistrate

judge for clear error.
III.

Discussion

In the plaintiff’s motion for summary judgment, Gordon argues
that: (1) because the treating physician provided an opinion
explaining how Gordon “must constantly have the opportunity to lie
down to facilitate the avoidance of deadly hernias” and the ALJ
failed to provide contradictory evidence of this opinion, then this
Court should find that the defendant’s decision that Gordon could
perform sedentary work was not based on substantial evidence and
should be reversed; (2) the ALJ’s decision to find borderline
intellectual functioning (“BIF”) to be a non-severe impairment with
no functional limitation is not supported by substantial evidence
and, thus, his failure to account for limitations caused by BIF in
his hypothetical to the vocational expert, renders the ultimate

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opinion of Gordon’s ability to make vocational adjustment to
“other” work fatally flawed and not supported by substantial
evidence;

and

(3)

the

ALJ

arbitrarily

disregarded

medical-

vocational guideline 201.17 in an effort to deprive Gordon of his
right

to

entitled

disability

based

on

the

Social

Security

Administration’s own rules.
In the defendant’s motion for summary judgment, the defendant
asserts that: (1) substantial evidence supports the ALJ’s finding
that Gordon could perform sedentary work prior to February 7, 2011;
(2) the record provides substantial evidence for the ALJ’s finding
that

Gordon

is

capable

of

performing

sedentary

work;

(3)

substantial evidence supports the ALJ’s finding that Gordon’s
borderline intellectual functioning was not a severe impairment;
and (4) the ALJ did not arbitrarily disregard medical-vocational
guideline 201.17.
“Under the Social Security Act, [a reviewing court] must
uphold the factual findings of the Secretary if they are supported
by substantial evidence and were reached through application of the
correct legal standard.”
Cir. 1996).

Craig v. Chater, 76 F.3d 585, 589 (4th

“Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Id.

A

reviewing

court

“does

not

reweigh

evidence

or

make

credibility determinations in evaluating whether a decision is
supported by substantial evidence; ‘[w]here conflicting evidence

4

allows reasonable minds to differ,’ we defer to the Commissioner’s
decision.”

Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.

2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)).

The magistrate judge addressed Gordon’s assignments of

error in turn and found that substantial evidence existed to
support the ALJ’s findings.
A.

Treating physician’s opinions
As indicated above, Gordon first argues that the ALJ should

have accepted a medical opinion that he must lie down during the
day to avoid aggravating and further injuring his hernias because
no contradictory evidence was provided by the defendant.

As the

magistrate judge noted, the opinion that Gordon needed to lie down
during the day appears twice in the record, once by Mr. Josh Baker,
a physician assistant who provided primary care to Gordon, and once
in a letter by Mr. Baker that was co-authored by Dr. Aimee
Whitehair, Gordon’s treating physician. The co-authored letter was
only submitted to the Appeals Council after the ALJ’s decision.
The magistrate judge found that substantial evidence supported
the ALJ’s decision to give little weight to the medical opinion of
Mr. Baker.

In so finding, the magistrate judge stated that it is

the duty of the ALJ, and not this Court, to weigh conflicting
evidence. See Hay v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)
(stating that “it is not within the province of a reviewing court
to determine the weight of the evidence, nor is it the court’s

5

function to substitute its judgment for that of the Secretary if
his

decision

is

supported

by

substantial

evidence”).

The

magistrate judge noted contradictory evidence provided by other
evaluating

physicians,

including

a

Dr.

Atiya

contradictory statements made by Gordon himself.

Lateef,

and

Further, the

magistrate judge found that while the letter co-authored by Dr.
Whitehair was not considered by the ALJ, the injection of the
letter into the record does not necessitate remand, as the ALJ’s
decision is still based upon substantial evidence because the new
letter

was

still

controverted

by

other

evidence,

which

was

available to the ALJ.
The plaintiff objects to the magistrate judge’s findings.
First, the plaintiff argues that the letter submitted to the
Appeals Council after the ALJ issued his opinion warrants remanding
this case for further fact finding.

The Appeals Council, however,

must only consider additional evidence provided to them when
determining whether to grant review if the additional evidence is
“(a) new, (b) material, and (c) relates to the period on or before
the date of the ALJ’s decision.”

Williams v. Sullivan, 905 F.2d

214, 216 (8th Cir. 1990); Wilkins v. Secretary, Dept. of Health and
Human Services, 953 F.2d 93, 96 (4th Cir. 1991).

Evidence is new

if it is not duplicative or cumulative and it is material if “there
is a reasonable possibility that the new evidence would have
changed the outcome.”

Wilkins, 953 F.2d at 96.

6

The letter co-authored by Mr. Baker and Dr. Whitehair is not
new nor is it material.

The letter explains Gordon’s obesity, the

severity of his hernias, his apparent limitations in his ability to
participate in daily activities, and his need to lie down to help
with his hernias.
the

ALJ

in

his

All of these various factors were discussed by
opinion

and

the

letter

is

therefore,

merely

cumulative evidence of what was previously contained in the record.
Based on the record, the ALJ specifically rejected the idea that
Gordon would have to lie down during the day (ECF No. 7 Ex. 2 *24),
he addressed Gordon’s limitations in conjunction with his obesity
and his hernias (ECF No. 7 Ex. 2 *21-2), and made assessments based
on the record of their severity (ECF No. 7 Ex. 2 *21-2).

Further,

in the plaintiff’s objections to the magistrate judge’s findings,
the

plaintiff

even

states

that

“Dr.

Whitehair’s

opinion

was

consistent with the substantial medical evidence in the record.”
ECF No. 17 *4.

This is not in conformity with his contention that

the evidence is new.
As to materiality, the plaintiff argues that because the
letter is now co-authored by Gordon’s treating physician, it would
have changed the outcome because the ALJ would have had to give it
greater weight.

The ALJ, however, did not disregard Mr. Baker’s

original opinion merely because he was not a physician, but also
because he found it inconsistent with the record as a whole.

When

a “physician’s opinion is not supported by clinical evidence or if

7

it is inconsistent with other substantial evidence, it should be
accorded significantly less weight.” Craig v. Chater, 76 F.3d 585,
590 (4th Cir. 1996). Thus, due to the inconsistencies found by the
ALJ, there is nothing to suggest that Dr. Whitehair’s opinion would
have been given any more weight, and as such no evidence that the
outcome would have been different.
The plaintiff next objects to the magistrate judge’s findings
concerning whether substantial evidence existed for the ALJ to find
that Gordon could perform sedentary work by arguing that Dr.
Lateef’s opinion did not constitute substantial evidence because
Dr. Lateef did not have all of the evidence before him and was
only a reviewing physician.
be without merit.

This Court finds such an argument to

The ALJ is entitled to rely on a reviewing state

agency physician when it is consistent with other evidence of
record. Johnson v. Barnhart, 434 F.3d 605, 656-57 (4th Cir. 2005).
The ALJ stated specifically that he was relying on Dr. Lateef’s
opinion because it was consistent with the “evidence as a whole[.]”
ECF No. 7 Ex. 2 *24.

The plaintiff argues that Dr. Lateef did not

have all the evidence before him because he was not presented with
Dr.

Whitehair’s

letter

before

making

his

evaluation.

This,

however, is not a valid argument as the fact that an opinion came
later than the state agency opinion does not mean it should be
accorded greater weight.

Geiger v. Astrue, No. 2:11CV00055, 2013

WL 317564 at *6 (W.D. Va. Jan. 27, 2013).

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Further, as previously

stated above, the information contained in the letter is not new,
as it is merely cumulative or duplicative of the information found
other places in the record.

Therefore, it was proper for the ALJ

to use Dr. Lateef’s opinion as evidence for his findings, and
therefore,

substantial

evidence

existed

to

support

the

ALJ’s

findings.
The plaintiff next objects arguing that Dr. Lateef’s opinion
did not constitute substantial evidence because the ALJ should have
accorded great weight to the treating physician opinion of Dr.
Whitehair.

“Although

the

treating

physician

rule

generally

requires a court to accord greater weight to the testimony of a
treating physician, the rule does not require that the testimony be
given controlling weight.”
(4th Cir. 1992).
opinion

is

not

Hunter v. Sullivan, 993 F.2d 31, 35

Further, as stated above when a “physician’s
supported

by

clinical

evidence

or

if

it

is

inconsistent with other substantial evidence, it should be accorded
significantly less weight.”

Craig, 76 F.3d at 590.

As outlined

above, the opinion of Dr. Whitehair was duplicative of Mr. Baker’s
opinion, which the ALJ found was inconsistent with the record.
Therefore, the ALJ would have likely found that Dr. Whitehair’s
opinion was inconsistent with the record, and also accorded it
little weight, which is proper based on precedent in the United
States Court of Appeals for the Fourth Circuit.

9

The plaintiff’s final objection to the magistrate judge’s
findings concerning whether substantial evidence existed for the
ALJ to find that Gordon could perform sedentary work is that the
ALJ and the magistrate judge’s findings arbitrarily ignore Mr.
Baker’s opinion.

The plaintiff is correct in noting that “an ALJ

may not completely disregard a physician assistant’s opinion on how
a claimant’s impairment, including any accompanying pain, affects
the claimant’s ability to work . . . .

Rather, the ALJ must, at a

minimum, consider the evidence and the extent to which it is
consistent with the record as a whole.”

Davis v. Astrue, No.

2:07CV53, 2008 WL 2566199 at *21 (N.D. W. Va. June 26, 2008)
(citing 20 C.F.R. §§ 1513(d), 1529(a)).

However, there is no

evidence that the ALJ arbitrarily ignored Mr. Baker’s opinion.
Instead, the ALJ stated that “as a nonacceptable medical source,
Mr. Baker’s opinion is not necessarily devoid of probative value.”
ECF No. 7 Ex. 2 *24.

The ALJ thereafter explained why even given

this finding, he was not giving Mr. Baker’s opinion much weight.
See id.

Thus, the ALJ recognized that there was value in Mr.

Baker’s opinion but due to its inconsistencies with the record as
a whole, he did not feel it should be given much weight.

This is

not evidence that the ALJ arbitrarily ignored Mr. Baker’s opinion;
instead, it is evidence of the exact opposite, as it shows that he
did evaluate and compare Mr. Baker’s opinion to the other available
evidence.

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B.

Borderline intellectual functioning limitation
In his motion for summary judgment, Gordon’s next contention

is that the ALJ’s decision to find his BIF to be a non-severe
impairment was not based on substantial evidence.

The magistrate

judge, however, found that substantial evidence did support the
ALJ’s finding that the impairment was non-severe. As stated by the
magistrate judge, when an ALJ finds an impairment, he or she must
specify the findings that show an existence of impairment, and then
rate

the

degree

impairment.

20

416.920a(b)(1).
measure

of

functional

C.F.R.

§§

limitation

resulting

404.1520a(b)(1),

et

from
seq.

the
and

To rate the functional limitation, you must

activities

of

daily

living,

social

functioning,

concentration, persistence or pace, and episodes of decompensation.
20 C.F.R. §§ 404.1520a(c)(3) and 416.920a(c)(3).

As explained by

the magistrate judge, a rating of “none” or “mild” in the first
three areas, and a rating of “none” in the fourth area will
generally lead to finding that the impairment is not “severe”
“unless the evidence otherwise indicates that there is more than a
minimal limitation in ability to do basic work activities.”

20

C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1).
The magistrate judge found that the ALJ followed this process
by adopting the opinion of Dr. Roman.

Dr. Roman found only mild

limitations

living,

in

activities

of

daily

difficulties

in

maintaining social functioning, and difficulties in maintaining

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concentration, persistence, or pace.

ECF No. 16 *14.

also found no episodes of decompensation.

Id.

Dr. Roman

The magistrate

judge stated that as to the Gordon’s ability to do basic work, the
evidence shows he had been employable for decades doing mostly
semi-skilled jobs.

The plaintiff did not file objections to this

portion of the magistrate judge’s report and recommendation.

This

Court agrees with the magistrate judge and finds no clear error in
his assessment.
C.

Medical-Vocational Guideline 201.17
Gordon next claims in his motion for summary judgment that the

medical-vocational guideline 201.17 should have directed the ALJ to
find that he was disabled. The ALJ instead used medical-vocational
guidelines 201.19 to find that Gordon was not disabled.

The

magistrate judge found that the ALJ’s finding was supported by
substantial evidence.

As stated by the magistrate judge, under

medical-vocational guideline 201.17, if a person is between the
ages of 45-49, illiterate or unable to communicate in English, and
has no past work history, or a history of only unskilled work, then
that person is considered disabled.
201.17.

20 C.F.R. § 404, app. 2, Rule

Under medical-vocational guideline 201.19, however, if a

person is between the ages of 45-49, has limited or less education,
and has no transferable skills from prior skilled or semi-skilled
work, the guideline directs a finding that the person is not
disabled.

20 C.F.R. § 404, app. 2, Rule 201.19.

12

The magistrate found that the ALJ’s decision to apply 201.19
was based on substantial evidence. While one opinion on the record
stated that Gordon was functionally illiterate, the magistrate
judge found that substantial evidence on the record existed to find
that he instead had a limited education.

The magistrate judge

stated that illiteracy is defined as the “inability to read or
write” under 20 C.F.R. § 404(1564(b)(1), whereas under 20 C.F.R.
§ 404.1564(b)(3) someone with a limited education has “ability in
reasoning, arithmetic, and language skill, but not enough to allow
a person with these educational qualifications to do most of the
more complex job duties needed in semi-skilled or skilled jobs.”
Further, the magistrate judge indicated that under 20 C.F.R.
§ 404.1564(b)(3), a limited education is generally attained by
reaching seventh through eleventh grade.

The magistrate judge

stated that taking these definitions into account, Gordon reached
the eighth grade.

Additionally, his own account of his abilities,

which included driving, grocery shopping, paying bills, counting
change, handling a savings account, and using a checkbook, is
consistent with the ALJ’s determination that Gordon had a limited
education rather than being illiterate.

In fact, Gordon also

testified that he could speak, read, and understand the English
language. The plaintiff did not file objections to this portion of
the magistrate judge’s report and recommendation.

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Based on the

above facts, this Court agrees with the magistrate judge and finds
no clear error in his assessment.
IV.

Conclusion

Based upon the above findings, the magistrate judge’s report
and recommendation is hereby AFFIRMED and ADOPTED in its entirety.
Thus, the defendant’s motion for summary judgment (ECF No. 11) is
GRANTED and Gordon’s motion for summary judgment (ECF No. 9) 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:

July 29, 2013

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

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