Murphy v. Commissioner Of Social Security Administration

Filing 17

MEMORANDUM OPINION AND ORDER DECLINING TO AFFIRM AND ADOPT 14 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE IN ITS ENTIRETY, GRANTING 11 THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND DENYING 9 THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. The Clerk is directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/13/2017. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHARLES MURPHY,
Plaintiff,
v.

Civil Action No. 5:16CV27
(STAMP)

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
DECLINING TO AFFIRM AND ADOPT REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE IN ITS ENTIRETY,
GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND DENYING THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I.

Background

The plaintiff, by counsel, filed an application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act and for Supplemental Security Income (“SSI”) under Title XVI of
the Social Security Act. In the application, the plaintiff alleges
disability since November 19, 2012 due to Stage 3 chronic renal
failure, post-traumatic stress disorder (“PTSD”), bulging discs in
his

back,

diabetes

fibromyalgia.

and

related

leg

pain,

arthritis,

and

The State of West Virginia Consolidated Public

Retirement Board (“Retirement Board”) had awarded the plaintiff
disability retirement on November 2, 2012.

The United States

Department of Veterans Affairs (“VA”) had granted the plaintiff
individual unemployability entitlement effective November 15, 2012,
“because [he] is unable to secure or follow a substantially gainful

occupation as a result and service connected disabilities.”

Tr.

1147.
The

Social

Security

Administration

(“SSA”)

denied

plaintiff’s application initially and on reconsideration.

the
The

plaintiff then appeared with counsel at a hearing before an
Administrative Law Judge (“ALJ”).

At the hearing, the plaintiff

testified on his own behalf, as did a vocational expert.

The ALJ

issued an unfavorable decision to the plaintiff, finding that he
was not disabled under the Social Security Act. The plaintiff then
timely filed an appeal of the decision to the Appeals Council. The
Appeals Council issued an order vacating the ALJ’s decision and
remanding the case for a second hearing to resolve the following
issues: (1) the record is unclear regarding the nature and severity
of the claimant’s fibromyalgia; (2) the hearing decision does not
consider the treating source opinion by Susan Given, PA-C; and (3)
the hearing decision cites case law from outside jurisdictions
including several cases from the United States Court of Appeals for
the

Ninth

Circuit.

At

the

second

hearing,

the

plaintiff,

represented by counsel, and the vocational expert testified again.
The ALJ from the second hearing also issued an unfavorable decision
to the plaintiff, finding that he was not disabled under the Social
Security Act.

On January 8, 2016, the Appeals Council denied the

plaintiff’s request for review.
On March 7, 2016, the plaintiff then filed a request for
judicial review of the ALJ’s decision in this Court.

2

The case was

referred

to

United

States

Magistrate

Michael

John

Aloi

for

submission of proposed findings of fact and recommendation for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

Both the

plaintiff and the defendant filed motions for summary judgment.
After consideration of those motions, the magistrate judge entered
a report recommending that the defendant’s motion for summary
judgment

be

denied,

that

the

judgment

be

granted,

and

plaintiff’s

that

the

calculation and award of benefits.

case

motion
be

for

remanded

summary
for

the

The magistrate judge stated

that remand for any other purpose would certainly constitute an
entirely unnecessary delay and serve no meaningful purpose.
defendant filed timely objections.

The

The plaintiff then filed a

response to the defendant’s objections.
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.”
Supp.

825

(E.D.

Cal.

1979).

See Webb v. Califano, 458 F.

Because

the

defendant

filed

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

3

III.

Discussion

In his motion for summary judgment, the plaintiff argues that
the defendant’s decision is not supported by substantial evidence.
Specifically, the plaintiff alleges that the ALJ erred by (1)
failing to afford the VA determination of disability substantial
weight without providing good reasons and clearly demonstrating
that such deviation is appropriate and (2) assigning reduced weight
to the opinions and assessments of treating physicians.
defendant

argues

in

her

motion

for

summary

judgment

The
that

substantial evidence supports the ALJ’s decision with respect to
the weight afforded to both the VA disability determination and
treating source medical opinions.
The magistrate judge issued a report and recommendation in
which he first found that the ALJ failed to afford appropriate
weight and consideration to the disability determinations of other
agencies.

Specifically, the magistrate judge determined that the

ALJ erred by failing to afford substantial weight to the VA
determination of 100% disability and by failing to consider the
disability determination by the Retirement Board.

Second, the

magistrate judge found that the ALJ failed to give appropriate
weight to medical opinions.

Specifically, the magistrate judge

found that, having reviewed the record and determined that the
objective medical evidence is largely consistent with the VA and
Retirement Board decisions, there are no good reasons for failing
to afford substantial weight to the VA decision.

4

Third, the

magistrate judge found that the ALJ’s reasons for finding the
plaintiff’s

subjective

complaints

not

entirely

credible

are

unsupported by substantial evidence. Accordingly, based upon these
findings, the magistrate judge held that the civil action should be
remanded to the Commissioner for the calculation and award of
benefits.
The defendant thereafter filed objections to the magistrate
judge’s report and recommendation, and the plaintiff filed a
response to the defendant’s objections.
objection

is

that

the

magistrate

judge

The defendant’s first
improperly

reweighed

evidence on review and improperly reversed for payment of benefits
instead of remanding for the ALJ to make findings of fact and
resolve conflicts in evidence. The defendant’s second objection is
that the ALJ adequately explained her analysis of the 100% VA
disability rating, and that the ALJ’s rationale is supported by
substantial evidence. The defendant further argues that the ALJ is
not bound by VA disability ratings because other governmental
agency decisions are not based on Social Security law.

In the

plaintiff’s response to the defendant’s objections, the plaintiff
argues that there was no clear reason for the ALJ to deviate from
the VA rating and that the only non-VA based evidence is from SSApaid doctors who examined the plaintiff either only once or not at
all.
The defendant’s third objection is that substantial evidence
supports the ALJ’s assessment of the medical opinions.

5

The

defendant argues that an ALJ can consider the extent to which a
medical opinion relies on subjective complaints, as Dr. Bennet
Orvik did.

The defendant also argues that it was not error for the

ALJ to assign less weight to Dr. James A. Arnett’s medical opinion
because Dr. Arnett was not actively involved in the plaintiff’s
treatment and never personally examined the plaintiff.

As to the

medical opinions of Dr. Saima Noon and Dr. Fulvio Franyutti, the
defendant argues that the magistrate judge improperly reweighed the
ALJ’s determination to afford significant weight to the opinions of
these two state agency physicians. The plaintiff’s response argues
that the ALJ is not permitted to substitute her lay medical opinion
for the opinions of medical experts.
The defendant’s fourth objection is that the ALJ’s credibility
determination is supported by substantial evidence.

The defendant

argues that the magistrate judge improperly reweighed the criteria
and

evidence

regarding

the

credibility

of

the

plaintiff’s

subjective complaints. Specifically, the defendant argues that the
ALJ

properly

questioned

the

fibromyalgia

diagnosis,

properly

considered the fact that the plaintiff received only conservative
treatment

for

his

fibromyalgia

diagnosis

and

maintained

full

strength, and properly analyzed the plaintiff’s daily activities
and lack of compliance with treatment.

The plaintiff’s response

argues that the ALJ did not adequately evaluate the plaintiff’s
fibromyalgia, particularly because the defendant relies on medical
sources who did not examine the plaintiff or test the plaintiff for

6

fibromyalgia.

The plaintiff also argues that the defendant does

not provide any “logical bridge” as to why conservative treatment
is a reason to disbelieve the plaintiff and that the ALJ may not
substitute her interpretations of daily living activities for those
of the medical experts.

Additionally, the plaintiff argues that

the defendant failed to cite any particular non-compliance issues
related to fibromyalgia.
As the defendant objects to the entirety of the magistrate
judge’s report and recommendation, this Court conducted a de novo
review of the entire report and recommendation.

First, as to the

ALJ’s deviation from the VA finding of 100% disability, the Court
finds that the ALJ does have enough clear reasons to survive this
Court’s review. The ALJ goes into sufficient detail to explain his
reasoning and his deviation from the VA determination is proper
under Bird v. Commissioner of Social Security Administration, 699
F.3d 337 (4th Cir. 2012).

Pursuant to Bird, an ALJ may give “less

weight to a VA disability rating when the record before the ALJ
clearly demonstrates that such a deviation is appropriate.”

Bird,

699 F.3d at 343.
Unlike

in

Bird

where

the

ALJ

did

not

demonstrate

that

deviation was appropriate, the ALJ in the present case clearly
demonstrated that her deviation from the VA disability rating was
properly based in medical evidence from the relevant period.

See

Hutton v. Colvin, No. 2:14CV63, 2015 WL 3757204, at *28-30 (N.D. W.
Va. June 6, 2015) (finding that, pursuant to Bird, “the ALJ’s

7

determination to accord the VA disability rating little weight was
supported by substantial evidence”). The ALJ demonstrated that her
deviation from the VA rating was a result of her finding that the
VA decision was out of proportion with the objective findings in
the medical records.

The ALJ explained that the medical evidence

from the relevant period demonstrated that the plaintiff showed
only mild findings of the lumbar spine, a stable kidney condition,
conservative mental health treatment, and non-compliance with
diabetes and sleep apnea treatment.

Tr. 35.

The ALJ also

discussed the plaintiff’s lack of neuropathy, mild degenerative
changes in his back, treatment with a TENS unit, general lack of
compliance with treatment, and normal muscle strength.

Tr. 29-32.

Second, the Court finds that the substantial evidence supports
the ALJ’s assessment of the medical opinions of Dr. Orvik, Dr.
Arnett, Dr. Noon, and Dr. Franyutti.

As to the opinion of Dr.

Orvik, a consulting medical physician, an ALJ may consider the
extent to which a medical opinion relies on subjective complaints.
See Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (“[I]f a
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.”); Hines v. Barnhart, 453 F.3d
559, 565 n.3 (4th Cir. 2006) (noting that a claimant’s subjective
complaints

“need

not

be

accepted

to

the

extent

they

are

inconsistent with the available evidence” (quoting Craig, 76 F.3d
at 595)).

It is appropriate for an ALJ to reject “a conclusory

8

[medical] opinion based [only] upon [the claimant’s] subjective
reports of pain.”

Craig, 76 F.3d at 590.

Here, Dr. Orvik stated

his reliance on the plaintiff’s own subjective explanation of his
limitations, and the ALJ properly noted this fact when according
less weight to Dr. Orvik’s medical opinion.

Tr. 719.

Dr. Anrett is the physician who signed off on the Residual
Functional Capacity Assessment (“RFCA”) form completed by Mr.
Jeffrey Riggs, a physician’s assistant.

The ALJ made a reasonable

inference, based on the evidence in the record, that Dr. Arnett was
not actively involved in the plaintiff’s treatment.

Rather, the

record suggests that Dr. Arnett merely signed off on the RFCA form
completed by Mr. Riggs, and the ALJ cited facts supporting this
inference.

Tr. 34.

Thus, the ALJ also properly and clearly

demonstrated why she afforded less weight to the medical opinion of
Dr. Arnett.
Dr. Noon and Dr. Franyutti are two state agency physicians to
whose opinions the ALJ afforded significant weight.

State agency

physicians are considered experts in the Social Security disability
analysis.

20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i).

The

ALJ clearly demonstrated that she afforded greater weight to these
two medical opinions because their opinions are supported by
substantial evidence in the record.

The record supports the two

state agency physicians’ conclusion that the plaintiff retained
some ability to work.

For example, the ALJ pointed to evidence in

the record of the plaintiff’s conservative treatment, full muscle

9

strength, lack of muscle atrophy, and imaging showing only mild
lumbar degenerative changes.

Tr. 29-33.

Third, the Court finds that the plaintiff waived his argument
that the ALJ erred by failing to discuss the Retirement Board
decision. The plaintiff did not raise this argument in the initial
hearings and the record does not even include the Retirement
Board’s opinion. All the record includes is the Retirement Board’s
decision, and all the report and recommendation cites to, is a very
brief letter that is not enough for the Court to consider.

Tr.

1148; see also Arthur v. Astrue, No. 6:11-2185, 2012 WL 4890374, at
*4, n.2 (D.S.C. Sept. 13, 2012) (finding that, after an ALJ’s
unfavorable decision as to the plaintiff, it was improper for the
court

to

discuss

evidence

not

raised

before

the

unfavorable

decision) (citing Moseley v. Branker, 550 F.3d 312, 325 n.7 (4th
Cir. 2008)).

Thus, the ALJ did not err in declining to address the

decision from the Retirement Board because that decision was not
before her.
Fourth,

this

Court

finds

that

the

ALJ’s

determination is supported by substantial evidence.

credibility
An ALJ’s

credibility determinations are “virtually unreviewable” by this
Court.

Darvishian v. Geren, No. 08-1672, 2010 WL 5129870, *9 (4th

Cir. Dec. 14, 2010) (citing Bieber v. Dept. of the Army, 287 F.3d
1358, 1364 (Fed. Cir. 2002)).

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).

10

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. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996)
(quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).
The ALJ’s explanation of her conclusions on the plaintiff’s
fibromyalgia is adequate.

An ALJ is required to conduct her own

analysis of a fibromyalgia diagnosis.

See SSR 12-2p, 2012 WL

3104869, at *2 (explaining that, in fibromyalgia cases, an ALJ
“cannot rely upon the physician’s diagnosis alone”).

In the ALJ’s

independent analysis of the plaintiff’s fibromyalgia, the ALJ
nonetheless found the plaintiff’s fibromyalgia to be a severe
medically determinable impairment. Tr. 32. Thus, it was not error
for the ALJ to question the physician’s fibromyalgia diagnosis.
In weighing the credibility of the plaintiff’s subjective
limitations from fibromyalgia, the ALJ properly discusses the
plaintiff’s conservative treatment and daily living activities. An
initial fibromyalgia diagnosis does not prevent the ALJ from
assessing credibility factors to determine the extent of any
functional limitations.

See Gross v. Heckler, 785 F.2d 1163, 1166

(4th Cir. 1986) (noting that, in the case of a fibromyalgia
diagnosis, “[t]here must [also] be a showing of related functional

11

loss”); SSR 12-2p, 2012 WL 3104869 (providing that the two-step
credibility analysis and related factors set forth in SSR 96-7p
also apply in fibromyalgia cases).
Conservative treatment is an appropriate credibility factor to
consider in fibromyalgia cases. See SSR 12-2p, 2012 WL 3104869, at
*5 (noting that an ALJ should evaluate “the nature and frequency of
the person’s attempts to obtain medical treatment for symptoms”);
Cheney v. Colvin, No. CIV.A. 2:12-3366-TMC, 2014 WL 1268575, at *5
(D.S.C. Mar. 26, 2014) (“While fibromyalgia is a condition which
eludes objective measurement and is difficult to assess and treat,
the ALJ did not err in noting that [the claimant’s] fibromyalgia
was treated in a routine and conservative manner.”). Here, the ALJ
discusses evidence in the record demonstrating that the plaintiff’s
symptoms were responsive to therapy and that he has no limitation
in mobility.

Tr. 41, 546, 1549, and 1557.

The ALJ’s opinion is

also supported by evidence that the plaintiff retained normal
strength, no atrophy, no sensory loss, and full motor functioning.
Tr. 718, 720, 1285-87, 1549, and 1557.

Thus, the ALJ properly

supported her opinion with the plaintiff’s conservative treatment
and other medical evidence from the record.
The ALJ also properly supported her consideration of the
plaintiff’s daily activities with

substantial evidence.

The ALJ

reasonably concludes that the plaintiff’s daily activities indicate
that the plaintiff is capable of performing the range of work
identified in the plaintiff’s RFC.

12

The plaintiff’s RFC indicates

that he can perform sedentary work accommodating the need for a
cane.

Tr. 27.

The plaintiff’s daily activities include helping

with cooking, using a computer, gardening, caring for a dog,
driving, shopping, attending basketball games, eating out, and
using

a

riding

mower.

acknowledged

that

participating

in

the
few

Tr.

414,

plaintiff
of

these

497,

most

daily

and

1266.

recently

The

testified

activities,

but

ALJ
to

medical

evidence supported the ALJ’s finding that there had not been enough
deterioration in the plaintiff’s condition to warrant his alleged
reduction in daily activities.

Tr. 29.

Thus, sufficient evidence

supported the ALJ’s conclusion that the plaintiff could manage a
limited range of sedentary work accommodating the need for a cane.
Lastly, the ALJ also supported her consideration of the
plaintiff’s
evidence.

non-compliance

with

treatment

with

substantial

Specifically, the ALJ noted evidence in the record

indicating that the plaintiff did not comply with his insulin
treatment and did not consistently pursue psychological treatment.
Tr. 30, 35.

Thus, there was also substantial evidence of the

plaintiff’s non-compliance with treatment with which to support the
ALJ’s findings in her credibility analysis.
Shalala,

29

F.3d

918,

930

(4th

Cir.

1994)

See

Mickles v.

(finding

that

an

inconsistency between subjective complaints about a condition and
“the treatment [the claimant] sought to alleviate that condition is
highly probative of the claimant’s credibility”).

13

This Court has reviewed the record, as well as the parties’
motions for summary judgment, and, after a de novo review, this
Court finds that substantial evidence supports the ALJ’s findings.
Accordingly, this Court declines to adopt and affirm the magistrate
judge’s report and recommendation in its entirety.
IV.

Conclusion

Based upon a de novo review, this Court declines to affirm and
adopt the magistrate judge’s report and recommendation in its
entirety.

Thus, for the reasons stated above, the defendant’s

motion for summary judgment is GRANTED and the plaintiff’s motion
for summary judgment 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 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:

March 13, 2017

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

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