CRISS v. Commissioner of Social Security et al

Filing 20

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S 15 REPORT AND RECOMMENDATION, GRANTING DEFENDANT'S 12 MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S 10 MOTION FOR SUMMARY JUDGMENT AND OVERRULING PLAIN TIFF'S 16 OBJECTIONS. It is further ORDERED that this civil action be STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/26/17. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RAYMOND LEE CRISS,
Plaintiff,
v.

Civil Action No. 5:16CV86
(STAMP)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND OVERRULING PLAINTIFF’S OBJECTIONS
I.

Procedural History

The plaintiff, Raymond Lee Criss, filed an application for
supplemental security income (“SSI”) under Title XVI of the Social
Security Act. In the application, the plaintiff alleged disability
since September 18, 2012.

The plaintiff alleges that he is unable

to work due to the following ailments: (1) hypertension, (2) edema,
(3) dyspnea, (4) morbid obesity, (5) nicotine dependence, (6)
chronic obstructive pulmonary disease (“COPD”), and (7) lower back
pain.

The Social Security Administration (“SSA”) denied the

plaintiff’s application initially and on reconsideration.

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 an impartial vocational expert

and an impartial medical 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 denied
the plaintiff’s request for review.
The ALJ used a five step evaluation process pursuant to 20
C.F.R. §§ 404.1420 and 416.920.

Using that process, the ALJ made

the following findings: (1) the plaintiff had not engaged in
substantial gainful activity since September 18, 2012, the date of
his

application;

(2)

the

plaintiff

had

the

following

severe

impairments: chronic obstructive pulmonary disease, obstructive
sleep

apnea,

diabetes

mellitus,

hypertension,

hyperlipidemia,

hearing loss, report of peripheral neuropathy, and obesity; (3)
none of the plaintiff’s impairments met or medically equaled the
severity of any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1; (4) the plaintiff is unable to perform any
past relevant work; and (5) “[c]onsidering the claimant’s age,
education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy
that the claimant can perform.”

Therefore, the ALJ found that the

plaintiff did not have a disability as defined under the Social
Security Act.
The plaintiff then filed a request for judicial review of the
ALJ’s decision in this Court.

The case was referred to United

2

States Magistrate Judge Robert W. Trumble.
motions

for

summary

judgment.

After

Both parties filed

consideration

of

those

motions, the magistrate judge entered a report recommending that
the plaintiff’s motion for summary judgment be denied, that the
defendant’s motion for summary judgment be granted, and that the
case be dismissed with prejudice.

The plaintiff filed timely

objections to the report and recommendation.

The defendant then

filed a response to the plaintiff’s objections.
II.

Applicable Law

Because the plaintiff timely filed objections to the report
and recommendation, the magistrate judge’s recommendation will be
reviewed de novo as to those findings to which objections were
made.

28 U.S.C. § 636(b)(1)(C).

As to those findings to which

objections were not made, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.

Discussion

As the United States Court of Appeals for the Fourth Circuit
has held, “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.”

3

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
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)).

Further, as the Supreme Court of the United States stated

in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395.
The plaintiff argues in his motion for summary judgment that
the

defendant’s

decision

is

contrary

supported by substantial evidence.

to

the

law

and

is

not

Specifically, the plaintiff

contends that the ALJ: (1) failed to properly consider the medical
expert’s testimony related to the plaintiff’s two most disabling
impairments, and (2) failed to properly consider the vocational
expert’s testimony indicating no jobs existed for an individual
with the plaintiff’s limitations.
The defendant argues in his motion for summary judgment that
the decision is supported by substantial evidence and the ALJ
applied the law correctly.
that

the

ALJ:

(1)

Specifically, the defendant contends

properly

considered

4

the

medical

expert’s

testimony

regarding

the

general

treatment

of

edema

and

the

frequency of urination related thereto, and determined that, with
regard to the plaintiff, these limitations were not credible; and
(2) properly relied on the vocational expert’s testimony to the
extent

that

edema

and

frequent

urination

were

not

credible

limitations to the degree the plaintiff alleged based on the record
as

a

whole.

The

defendant

further

contends

that

both

the

credibility assessment and the RFC determination are supported by
substantial evidence.
A.

The ALJ’s Assessment of the Plaintiff’s Credibility Regarding
Edema and Frequent Urination Due to his Diuretic Medication
In his report and recommendations, the magistrate judge first

found that the ALJ properly assessed the plaintiff’s credibility
regarding

edema

medication.

and

frequent

urination

due

to

his

diuretic

The magistrate judge found that the ALJ properly

considered the seven factors set forth in Social Security Ruling
96-7p in arriving at his determination that the plaintiff was not
entirely credible.

Further, the magistrate judge concluded that

the ALJ’s credibility determination was sufficiently specific to
make clear his reasoning in finding the plaintiff to be not
entirely credible.

The magistrate judge found that the plaintiff

failed to meet his burden of showing that the ALJ’s credibility
determination was patently wrong and, thus, accorded the ALJ’s
credibility determination the great weight to which it is entitled.

5

In his objections, the plaintiff argues that it was error for
the

magistrate

judge

to

analyze

the

case

in

terms

of

the

plaintiff’s credibility because the plaintiff’s argument in his
motion for summary judgment is based on “medical fact.”

Thus, the

plaintiff contends that the record shows that the ALJ’s decision
should be overturned without ever getting to the issue of the
plaintiff’s

credibility.

The

plaintiff

argues

that

it

is

indisputable that the ALJ entirely dismissed the evidence on the
record of increased urination and leg elevation in making the
decision. In response to the objections, the defendant argues that
the plaintiff’s own subjective assertions regarding his functional
limitations are not medical facts, and, thus, the magistrate judge
appropriately framed the underlying issue as one of credibility.
On de novo review, this Court finds that it was not error for
the

magistrate

judge

to

analyze

the

case

in

terms

of

the

plaintiff’s credibility, and that the ALJ properly assessed the
plaintiff’s credibility regarding edema and frequent urination due
to his diuretic medication.

There is a two-step process for

determining whether a claimant is disabled by pain or other
symptoms.

See Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996).

First, the ALJ must expressly consider whether the claimant has
demonstrated, through objective medical evidence, that a medical
impairment exists that is capable of causing the degree and type of
pain alleged.

Id.

Second, the ALJ must consider the credibility

6

of the claimant’s subjective allegations of pain in light of the
entire record.

Id.

Social Security Ruling 96-7p sets out several

factors, in addition to objective medical evidence, for an ALJ to
consider when assessing the credibility of a claimant’s subjective
symptoms and limitations.

If the ALJ meets his or her basic duty

of explanation, then “an ALJ’s credibility determination [will be
reversed] only if the claimant can show [that] it was ‘patently
wrong.’”

Sencindiver v. Astrue, No. 3:08CV178, 2010 WL 446174, at

*33 (N.D. W. Va. Feb. 3, 2010) (quoting Powers v. Apfel, 207 F.3d
431, 435 (7th Cir. 2000)).
The magistrate judge is correct that the ALJ was sufficiently
specific in his analysis of the factors set forth in Social
Security Ruling 96-7p to make clear his reasoning in finding the
plaintiff not entirely credible.

ECF No. 7-2 at 22-26.

Further,

the magistrate judge is correct that the plaintiff failed to meet
his burden of showing that the ALJ’s credibility determination is
patently wrong. The plaintiff did not cite to any evidence that he
must use the restroom frequently due to the use of diuretic
medication and, further, the plaintiff did not allege this as a
limitation in either of his Adult Function Reports. ECF No. 7-6 at
23-30; 44-51.

Additionally, the plaintiff cites to only a few

places in the record where elevation of feet was recommended.
No. 7-12 at 33 and 40.

ECF

Accordingly, this Court accords the ALJ’s

credibility determination the great weight to which it is entitled.

7

B.

The ALJ’s Assessment of the Testimonies of the Medical Expert
and the Vocational Expert
Next,

assessed

the

the

magistrate
testimony

judge

of

found

both

the

that

the

medical

ALJ

expert

vocational expert that testified at the hearing.

properly
and

the

The magistrate

judge also found that the ALJ properly explained the weight given
to his opinion and that substantial evidence supports the ALJ’s
assessment.

In his objections, the plaintiff argues that the ALJ

failed to address the portions of the experts’ testimony that were
consistent with the plaintiff’s position and inconsistent with the
ALJ’s conclusion, including the portions regarding leg swelling,
diuretic

medications,

and

leg

elevation.

In

response,

the

defendant contends that the magistrate judge fully considered the
relevant medical evidence relating to the plaintiff’s allegations
of

frequent

evaluating

urination
the

and

medical

the

need

to

expert

and

the

elevate

his

vocational

legs

in

expert’s

testimonies, and, ultimately, the plaintiff’s RFC assessment.
An ALJ must “weigh and evaluate every medical opinion in the
record.”

Monroe v. Comm’r of Soc. Sec., No. 1:14CV48, 2015 WL

4477712, at *7 (N.D. W. Va. July 22, 2015).

While the testimony of

a

greater

treating

physician

is

often

accorded

weight,

this

“treating physician rule . . . does not require that the [treating
physician’s] testimony be given controlling weight.”

Anderson v.

Comm’r of Soc. Sec., 127 F. App’x 96, 97 (4th Cir. 2005).

8

“[I]f a

physician’s opinion is not supported by clinical evidence or if it
is inconsistent with other substantial evidence, [then] it should
be accorded significantly less weight.”

Id.

When evaluating medical opinions that are not entitled to
controlling weight, the ALJ must consider the following nonexclusive

list:

(1)

whether

the

physician

has

examined

the

claimant; (2) the treatment relationship between the physician and
the claimant; (3) the supportability of the physician’s opinion;
(4) the consistency of the opinion with the record; (5) whether the
physician is a specialist; and (6) any other factor that tends to
support or contradict the opinion.

20 C.F.R. § 404.1527.

The ALJ

need only “give ‘good reasons’ in the decision for the weight
ultimately allocated to medical source opinions.”

Fluharty v.

Colvin, No. CV 2:14-25655, 2015 WL 5476145, at *12, n.6 (S.D. W.
Va. Sept. 17, 2015).

Under Social Security Ruling 96-2p, the

decision “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.”
The ALJ wrote the following about Dr. Holan’s testimony in his
decision:
The undersigned considered impartial medical expert Dr.
Holan’s testimony describing the claimant’s impairments
and providing an opinion on the impact of impairment on
the claimant’s functional abilities. Dr. Holan averred
than the claimant was capable of a range of light
exertional work, such as lifting/carrying 20 pounds
occasionally and 10 pounds frequently, standing/walking
six hours in a workday and sitting six hours in a
9

workday, having no push/pull limitations.
Posturals
could be performed occasionally, except no climbing of
ladders, ropes or scaffolds. No manipulative, visual, or
communicated limitations were required.
Concentrated
exposure, for example, to temperature extremes, extremely
loud noise, and respiratory irritants was suggested. The
claimant was capable of work in a normal office
environment and there was no medical necessity for use of
an assistive device for ambulation objectively evidenced.
The undersigned accorded this opinion some, but not
controlling weight. Although a non-examining and nontreating source, the opinion was consistent with and
supported by the objective record, and further bolstered
by the opinions of State agency medical consultant
experts.
ECF No. 7-2 at 26.
On de novo review of the ALJ’s decision, this Court agrees
with the magistrate judge’s finding that the ALJ properly assessed
the testimony of medical expert Keith R. Holan, M.D. (“Dr. Holan”).
Further, the Court agrees with the magistrate judge that the ALJ
sufficiently explained the weight given to his opinion.
then

used

Dr.

Holan’s

opinion

as

his

hypothetical

The ALJ
for

the

vocational expert.
“While questions posed to the vocational expert must fairly
set out all of the claimant’s impairments, the question[s] need
only reflect those impairments supported by the record.”
v. Barnhart, 58 F. App’x 25, 30 (4th Cir. 2003).

Russell

The Commissioner

may not rely upon the answer to a hypothetical question if the
question fails to fit the facts on record.
599 F.2d 1309, 1312 (4th Cir. 1979).
finding

of

fact

by

presenting

10

a

See Swaim v. Califano,

An ALJ does not make a

hypothetical

question

to

a

vocational

expert

and

may

properly

alternative hypothetical questions.

ask

a

vocational

expert

See Davis v. Apfel, 162 F.3d

1154 (4th Cir. 1998).
The plaintiff asserts that the Larry Ostrowski, Ph.D. (“Dr.
Ostrowski”),

the

vocational

expert,

testified

that,

if

the

plaintiff had to take restroom breaks every fifteen minutes and had
to elevate his feet above his heart during the work day, then there
would be no jobs available.

ECF No. 7-2 at 74.

However, as noted

by the magistrate judge, the ALJ found that the plaintiff’s
allegations as to the amount of feet elevation and the frequency of
urination were not credible.

Thus, the ALJ did not include those

limitations in his RFC that was presented to the vocational expert.
On de novo review, this Court finds that the ALJ properly assessed
the

testimony

of

the

vocational

expert

evidence supports the ALJ’s assessment.

and

that

substantial

Thus, this Court upholds

the magistrate’s findings as to the ALJ’s assessment of both Dr.
Holan and Dr. Ostrowski’s testimonies.
C.

The

ALJ’s

Frequent

Determination

Urination

that

Were

Not

the

Plaintiff’s

Limitations

that

Edema
Should

and
be

Considered in the RFC
Lastly, the magistrate judge found that the ALJ determined
that the alleged severity of the plaintiff’s edema and frequent
urination were not credible and therefore were not limitations that
should be considered in the RFC.

In his objections, the plaintiff

11

reasserts his argument that it was error for the magistrate judge
to analyze the case in terms of the plaintiff’s credibility because
the plaintiff’s argument in his motion for summary judgment is
based on “medical fact.”

In response, the defendant contends that

the magistrate judge fully considered the relevant medical evidence
relating to the plaintiff’s allegations of frequent urination and
the need to elevate his legs in the RFC assessment.
On de novo review, this Court finds that the ALJ sufficiently
discussed his RFC determination.
still

do

despite

[his

or

The RFC is what a claimant “can

her]

limitations.”

20

C.F.R.

§ 404.1545(a)(1). Specifically, the RFC is “[a] medical assessment
of what an individual can do in a work setting in spite of the
functional limitations and environmental restrictions imposed by
all of his or her medically determinable impairment(s).”

Dunn v.

Colvin, 607 F. App’x 264, 272 (4th Cir. 2015) (quoting Social
Security

Ruling

83-10).

The

ultimate

responsibility

for

determining a plaintiff’s RFC is reserved for the ALJ, as the factfinder.

Farnsworth v. Astrue, 604 F. Supp. 2d 828, 835 (N.D. W.

Va. 2009).
This Court agrees with the magistrate judge that the ALJ
properly identified the plaintiff’s symptoms and limitations before
analyzing the plaintiff’s work-related abilities on a function-byfunction basis.

The ALJ first determined that “symptoms, such as

edema, low back pain, and dyspnea, are not medically determinable

12

impairments.

Impairment must result from anatomical physiological

abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques.”

ECF No. 7-2 at 21.

Next,

the ALJ specifically found that “[a] contention of urination every
15 minutes was wholly inconsistent with and unsupported by the
objective evidence of record, as well as unsupported by the
claimant’s reports to treating and examining sources during the
period at issue.”

ECF No. 7-2 at 22.

the

edema

plaintiff’s

was,

in

The ALJ also determined that

terms

of

clinical

findings,

“episodic,” “improve[d] over time,” and was “never more than mild
to moderate in nature”.

ECF No. 7-2 at 23.

Upon review of the record, this Court finds that the ALJ’s
credibility determination as to the plaintiff’s edema and frequent
urination is supported by substantial evidence and that the ALJ
applied the proper legal standard in making the determination.
Thus,

the

ALJ

properly

excluded

the

alleged

limitations

of

elevating the feet above the heart four hours per day and urination
every fifteen minutes from the plaintiff’s RFC.

The allegations

were not supported by the record and were not credible limitations.
Thus, the ALJ’s determination should be upheld, as recommended by
the magistrate judge.
IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and

recommendation

(ECF

No.

15)

13

is

AFFIRMED

and

ADOPTED.

Accordingly, the defendant’s motion for summary judgment (ECF No.
12) is GRANTED, the plaintiff’s motion for summary judgment (ECF
No. 10) is DENIED, and the plaintiff’s objections to the report and
recommendation (ECF No. 16) are OVERRULED.

It is further ORDERED

that this civil action be 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:

June 26, 2017

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

14