Thompson v. Astrue

Filing 16

MEMORANDUM OPINION: The court OVERRULES Plaintiff's Objections to Magistrate Judge VanDervort's Proposed Findings and Recommendation; ADOPTS Magistrate Judge VanDervort's 14 Proposed Findings and Recommendation to the extent it is no t inconsistent with this Memorandum Opinion; DENIES Plaintiff's 10 Motion for Summary Judgment; GRANTS Defendant's 13 Motion for Judgment on the Pleadings; AFFIRMS the final decision of the Commissioner and DISMISSES this matter from the court's active docket. Signed by Senior Judge David A. Faber on 9/3/2013. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
RODNEY G. THOMPSON,
Plaintiff,
v.

Civil Action No: 1:12-01551

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

MEMORANDUM OPINION
This action is seeking review of the final decision of the
Commissioner of Social Security, who denied plaintiff’s
application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”).

By Standing Order, this

case was referred to United States Magistrate Judge R. Clarke
VanDervort to consider the pleadings and evidence, and to submit
proposed findings of fact and recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B).

On July 3, 2013,

Magistrate Judge VanDervort issued his Proposed Findings &
Recommendation (“PF&R”) in this matter.

Judge Vandervort

recommended that the court deny Plaintiff’s Motion for Summary
Judgment, grant Defendant’s Motion for Judgment on the
Pleadings, and affirm the final decision of the Commissioner.
(Doc. No. 14).

Under 28 U.S.C. § 636(b)(1)(B), the parties had

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fourteen days, plus three mailing days, from the date of the
filing of the PF&R to file objections.

On July 22, 2013,

plaintiff timely filed objections to the PF&R.
I.

(Doc. No. 16).

Background
The plaintiff, Rodney G. Thompson, filed applications for

DIB and SSI on February 15, 2008, under Titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f.
claim was denied initially and upon reconsideration.
61-64, 65-67, 76-78, 79-81).

This
(Tr. at

Plaintiff requested and received a

hearing before an Administrative Law Judge (ALJ) held on March
11, 2010.

(Tr. at 32-60).

The ALJ determined that plaintiff

was not entitled to disability benefits in a decision dated
April 26, 2010.

(Tr. at 16-31).

The Appeals Council

subsequently denied plaintiff’s request for review on March 19,
2012, thereby making the decision the final decision of the
Commissioner.

(Tr. at 1).

Plaintiff sought judicial review of

the administrative decision on May 17, 2012.
A detailed factual description of Plaintiff’s ailments and
alleged disability can be found in the PF&R (Doc. No. 14 at 614) and in the ALJ’s decision (Tr. at 18-26).

These

descriptions adequately and faithfully summarize the factual
information in the entire record making it unnecessary to detail
the medical evidence once more.

This opinion will only describe

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the facts as necessary to address plaintiff’s specific
objections.
II.

Standard of Review

The court’s review is limited to a determination as to
whether there is substantial evidence to support the
Commissioner’s conclusion that plaintiff failed to meet the
conditions for entitlement established by and pursuant to the
Social Security Act.

If such substantial evidence exists, the

final decision of the Commissioner must be affirmed.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

Hays v.

Stated briefly,

substantial evidence has been defined as such relevant evidence,
considering the record as a whole, as might be found adequate to
support a conclusion by a reasonable mind.

Richardson v.

Perales, 402 U.S. 389, 401 (1971). “If there is evidence to
justify a refusal to direct a verdict were the case before a
jury, then there is ‘substantial evidence.’”

Blalock v.

Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
III. Plaintiff’s Objections
Plaintiff generically objects to the Judge VanDervort’s
finding that the Commissioner’s decision was supported by
substantial evidence.

(Doc. No. 15 at 1).

In doing so,

plaintiff incorporates and rehashes the arguments made in

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Plaintiff’s Memorandum in Support of Motion for Summary Judgment
(Doc. No. 11).

Namely, plaintiff contends that the Appeals

Council failed to appropriately consider new evidence submitted
after the ALJ’s decision; that the ALJ failed to give
appropriate weight to the opinion of Dr. Carol Asbury, a
treating physician; and that the ALJ failed to consider the side
effects of medication taken by plaintiff.

(Doc. No. 15 at 2).

Plaintiff does not refute the reasoning and analysis of
Judge VanDervort’s PF&R in any meaningful manner.

Rather,

plaintiff merely regurgitates the exact same issues raised in
his motion for summary judgment – undermining the purpose and
utility of the objection procedure.

Plaintiff appears to

request that this court re-weigh the evidence the ALJ relied
upon when determining that plaintiff is not under a disability
as defined by the Social Security Act.

Indeed, plaintiff does

not cite a single case in support of his objections.

It is

worth noting that this court need not conduct a de novo review
when a party “makes general and conclusory objections that do
not direct the court to a specific error in the magistrate’s
proposed findings and recommendations.”
F.2d 44, 47 (4th Cir. 1982).

Orpiano v. Johnson, 687

Giving plaintiff the benefit of

the doubt, the court has nonetheless performed a de novo review.
The court will address plaintiff’s arguments in turn.

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a. Evidence Submitted to the Appeals Council
Plaintiff first contends that the Appeals Council did not
adequately address additional evidence submitted after the ALJ’s
April 26, 2010 decision.

(Doc. No. 15 at 2).

Following the

ALJ’s unfavorable decision, plaintiff submitted a multitude of
medical records for the first time to the Appeals Council. These
records were from a number of physicians and medical
institutions and dated from December 2008 through April 2011.
(Tr. at 5, 636-44, 645-71, 772-76, 777-83, 784-99, 801-10, 81323).

Plaintiff places primary emphasis on the records of Dr.

Lenord Horwitz, consisting of a Medical Source Statement of
Ability to Do Work-Related Activities (Physical) from June 2,
2010 (Tr. at 647-52) and treatment notes dating from January 8,
2009 to June 3, 2010 (Tr. at 655-70).

(Doc. No. 11 at 6-7);

(Doc. No. 15 at 2-3).
The Appeals Council “must consider evidence submitted with
the request for review in deciding 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.’”

Wilkins v. Secretary, Dep’t of Health and Human

Servs., 953 F.2d 93, 95-96 (4th Cir. 1991)(en banc)(citations
omitted); see also 20 C.F.R. § 404.970(b).

Evidence is “new”

when it is not duplicative or cumulative.

Wilkins, 953 F.2d at

96.

Evidence is material when “there is a reasonable
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possibility that the new evidence would have changed the
outcome.”

Id.

In making its decision to deny plaintiff’s request for
review, the Appeals Council considered a portion of the
additional evidence provided by plaintiff.

(Tr. at 1-2, 5).

These records included the records of Dr. Horwitz dating from
January 2009 through 2010 that plaintiff relies on.

Id.

The

Appeals Council need not “give a detailed assessment of its
failure to grant review in the face of the new evidence.”
Ridings v. Apfel, 76 F. Supp. 2d 707, 709 (W.D. Va. 1999).1
Consequently, the Appeals Council’s plain statement expressing
that the additional evidence was considered is sufficient to
establish that the additional evidence was indeed considered.
Because the Appeals Council determined that the additional
records dating from June 2010 to April 2011 concerned a later
timeframe and therefore did not affect the April 26, 2010
decision, it did not consider this evidence in denying the
request for review.
contest this action.

(Tr. at 2).

Plaintiff does not appear to

Rather, plaintiff contests the Appeals

Council’s view that the additional evidence which was considered
did not provide a basis for changing the ALJ’s decision.

1

(Doc.

The court recognizes that courts in the Fourth Circuit addressing this issue
have split as to whether to require a statement of reasons from the Appeals
Council as to why new evidence does or does not affect the ALJ’s decision.
See Suber v. Comm’r of Soc. Sec. Admin., 640 F. Supp. 2d 684 (D.S.C. 2009)
(requiring the Appeals Council to provide an assessment of new evidence).

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No. 15 at 2-3).

Plaintiff argues that given Dr. Horwitz’s

treatment notes and medical opinion, the ALJ’s decision should
be reversed or the case should be remanded to the ALJ.
Defendant responds, and the magistrate judge agreed, that this
evidence provided no basis for reversing ALJ’s decision.

(Doc.

No. 13 at 12-14); (Doc. No. 14 at 15-18).
As a preliminary matter, defendant asserts that the
additional medical records from December 2008 through April 26,
2010 that were provided to the Appeals Council are not “new”
because they were in existence prior to the issuance of the
ALJ’s decision.

(Doc. No. 13 at 13).

The magistrate judge

agreed with this argument and stated that plaintiff “failed to
demonstrate why he was unable to produce the records prior to
the ALJ’s decision.”

(Doc. No. 14 at 17).

However, there is no

“good cause” requirement when seeking to present new evidence to
the Appeals Council.

Plaintiff is only required to show “good

cause” for the failure to present the evidence to the ALJ if
plaintiff is seeking a remand. Wilkins, 953 F.2d at 96 n. 3;
Ridings v. Apfel, 76 F. Supp. 2d. 707, 709 (W.D. Va. 1999).
Indeed, plaintiff is seeking, at least in the alternative, a
remand to the ALJ.

(Doc. No. 11 at 10).

Plaintiff also stated

that “it was incumbent upon the Appeals Council to remand Mr.
Thompson’s case to the Administrative Law Judge for
consideration of this additional evidence.”
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(Doc. No. 11 at 7).

To the extent that plaintiff is seeking a remand to the ALJ for
the consideration of additional evidence from Dr. Horwitz dating
from 2009 to April 2010, plaintiff was required to show “good
cause” as to why the evidence was not presented to the ALJ in
the first instance.

Having shown no such “good cause,”

plaintiff is not entitled to a remand on the basis of this
additional evidence.

The question remains, however, whether the

Appeals Council appropriately determined that this evidence
would not likely change the ALJ’s outcome.
In the Fourth Circuit, a reviewing district court is
required to review the whole record to determine if the ALJ’s
decision is supported by substantial evidence, including any
additional evidence considered by the Appeals Council that was
not before the ALJ.2

Wilkins, 953 F.2d at 96.

Having performed

this duty, the court concurs with the magistrate judge that the
new evidence presented by plaintiff does not provide a basis for
changing the ALJ’s decision.
First, the Appeals Council likely had no duty to consider
Dr. Horwitz’s treatment notes and medical opinion dated after
This creates the somewhat odd posture of reviewing an ALJ’s
decision for substantial evidence on the basis of evidence that
(at least partly) was not in front of the ALJ. As Judge Posner
of the Seventh Circuit has pointed out, this is contrary to
traditional principles of appellate review. Eads v. Sec’y of
Dep’t of Health & Human Serv., 983 F.2d 815, 817 (7th Cir.
1993). As such, the Seventh Circuit and other Courts of Appeal
have adopted the opposite view and only look to the evidence as
it was before the ALJ. Id.
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the ALJ’s decision.

It is not until May 19, 2010 that Dr.

Horwitz notes a “worsening of the symptoms and findings as
compared to the previous OV” – a statement repeated on the May
25, 2010 treatment note.

(Tr. at 755-57, 761).

This “worsening

of the symptoms” occurs after the ALJ’s April 26, 2010 decision.
As such, they do not “relate to the period on or before the date
of the ALJ’s decision.”

Wilkins, 953 F.2d at 96.

As the

Appeals Council stated about the evidence that it did not
consider, “[t]his new information is about a later time.
Therefore, it does not affect the decision about whether
[plaintiff was] disabled beginning on or before April 26, 2010.”
(Tr. at 2).

The same could be said for Dr. Horwitz’s treatment

notes and medical opinion dated after the ALJ’s decision.
Secondly, Dr. Horwitz’s treatment records are unremarkable,
repetitive, and add very little to the record.

Indeed, Dr.

Horwitz stated on at least three occasions that plaintiff
“continues to have the same physical findings and symptomatology
as in previous visits.”

(Tr. at 740, 748, 768).

These

treatment notes are essentially the same as Dr. Horwitz’s
November 12, 2008 treatment note that was before the ALJ.
Additionally, the substance of the treatment notes provides
information that was available to the ALJ through other sources
of record evidence.

The same subjective complaints present

throughout the new evidence were present throughout the record
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as it was before the ALJ.

Nothing in the records suggests that

the ALJ would change his decision if given the chance.
Consequently, the Appeals Council did not err in its treatment
of the additional evidence.
b. Weight Afforded to Medical Opinion of Dr. Asbury
Next, plaintiff asserts that the ALJ improperly discounted
the opinion of a treating physician, Dr. Asbury.
at 7-9).

(Doc. No. 11

Defendant responds that the decision to afford Dr.

Asbury only “moderate weight” was well within the discretion of
the ALJ.

(Doc. No. 13 at 14-17).

The magistrate judge

determined that the ALJ’s assessment of Dr. Asbury’s opinion was
supported by substantial evidence.

(Doc. No. 14 at 20).

After

a de novo review, the court agrees with the magistrate judge and
adopts his analysis on this issue.
An ALJ is obligated to evaluate and weigh medical opinions
“pursuant to the following non-exclusive list: (1) whether the
physician has examined the applicant, (2) the treatment
relationship between the physician and the applicant, (3) the
supportability of the physician's opinion, (4) the consistency
of the opinion with the record, and (5) whether the physician is
a specialist.”

Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir.

2006) (citing Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir.
2005)); see also 20 C.F.R. § 404.1527.

Courts typically “accord

‘greater weight to the testimony of a treating physician’
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because the treating physician has necessarily examined the
applicant and has a treatment relationship with the applicant.”
Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171,
178 (4th Cir. 2001).
The treating physician rule, however, is not absolute, and
may be disregarded if persuasive contradictory evidence exists
to rebut it.

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996);

Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per
curiam). Although the Commissioner is authorized to give
controlling weight to the treating source's opinion if it is not
inconsistent with substantial evidence in the case record and it
is well supported by clinical and laboratory diagnostic
techniques, 20 C.F.R. § 404.1527(d)(2), “[b]y negative
implication, if 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.”

Craig, 76 F.3d at 590 (quoting 20 C.F.R. §§

404.1527(d)(2), 416.927(d)(2)).

Accordingly, “the ALJ holds the

discretion to give less weight to the testimony of a treating
physician in the face of persuasive contrary evidence.”

Hunter,

993 F.2d at 35.
Dr. Asbury completed a Medical Source Statement of Ability
to Do Work-Related Activities (Physical) and a Clinical
Assessment of Pain on October 2, 2008.
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(Tr. at 542-46).

Dr.

Asbury opined that plaintiff was capable of lifting or carrying
ten pounds occasionally and less than ten pounds frequently
because of limited grip strength in his left hand.
542).

(Tr. at

She determined that plaintiff could stand or walk less

than two hours in an eight-hour workday, sit about six hours in
an eight-hour workday, and had limited pushing and pulling
ability in his lower extremities.

(Tr. at 542-43).

Dr. Asbury

further assessed that plaintiff could occasionally kneel, crawl,
and stoop; but could never climb, balance, or crouch.
543).

(Tr. at

She opined that plaintiff could handle, finger, and feel

normally with his right hand, but that his ability to perform
these tasks with his left hand was limited because of weakness
resulting from a snake bite.

(Tr. at 544).

Finally, Dr. Asbury

found plaintiff’s pain to be incapacitating and greatly
increased by physical activity.

(Tr. at 546).

The ALJ gave three reasons why it only afforded only
“moderate weight” to the opinion of Dr. Asbury: (1) she is a
family practitioner rather than a specialist; (2) the medical
records did not document any ongoing treatment given to
plaintiff’s left hand for the residual effects from a snake bite
along with Dr. Greenberg’s conclusion that plaintiff only had
inconsistent give-way of the interosseous muscles of the hands;
and (3) the sedentary residual functional capacity accommodated
the well-documented residual effects from plaintiff’s right foot
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and ankle fractures and left thigh laceration. (Tr. at 29).

A

review of the entire record reveals that these rationales for
affording Dr. Asbury only “moderate weight” are supported by
substantial evidence.

The ALJ properly exercised his discretion

to afford less weight to a treating physician because of
persuasive contrary evidence in the record.

As the magistrate

judge pointed out, “[t]he record was void of stringent
limitations within the medical records.”

(Doc. No. 14 at 20).

Plaintiff complains that “the ALJ has clearly done little
more than substitute his opinions for those of Dr. Asbury”
thereby improperly substituting his opinion for that of a
“medical doctor and treating source.”

(Doc. No. 11 at 9).

On

the contrary, the ALJ has properly performed his duty of
weighing the evidence.

See 20 C.F.R. § 404.1527(e) (“Opinions

on some issues . . . are not medical opinions . . . but are,
instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a
case.”).

There is substantial evidence in the record to justify

affording Dr. Asbury’s opinion only “moderate weight.”
c. Side Effects
Finally, plaintiff complains that the ALJ and subsequently
the magistrate judge failed to appropriately consider the side
effects of plaintiff’s medications.
(Doc. No. 15 at 3).

(Doc. No. 11 at 9-10);

The magistrate judge discussed why the
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ALJ’s analysis of plaintiff’s side effects is supported by
substantial evidence.

(Doc. No. 14 at 21-22).

A de novo review

of the record reveals a lack of medical evidence to support
plaintiff’s testimony that he experienced sleepiness and
drowsiness from his medications.

Even if this evidence could be

found in the record, it likely would not provide a basis for a
disability.

As the Third Circuit has stated, “[d]rowsiness

often accompanies the taking of medication, and it should not be
viewed as disabling unless the record references serious
functional limitations.”

Burns v. Barnhart, 312 F.3d 113, 131

(3d Cir. 2002); see also Johnson v. Barnhart, 434 F.3d 650, 658
(4th Cir. 2005) (citing Burns with approval).

Here, the record

does not reference serious functional limitations resulting from
plaintiff’s medications.
Plaintiff recognizes the lack of medical evidence in the
record to support his claim that his side effects are disabling.
plaintiff attempts to brush aside this key fact by stating that
“to the extent that side effects are a known and accepted byproduct or consequence of utilizing the medication, there would
not be expected to be particular reference to their occurrence
in medical records.”
defies logic.

(Doc. No. 15 at 3).

This statement simply

If this court is to believe that side effects of

medication rise to the level of a disability under the Social
Security Act, surely these extreme side effects would show up in
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the medical records. Instead, the record is silent.

As such,

the ALJ’s analysis of the side effects is supported by
substantial evidence.
IV.

Conclusion

Plaintiff, in objecting to the PF&R, continues to point out
conflicts in the evidence.

However, “the duty to resolve

conflicts in the evidence rests with the ALJ, not with a
reviewing court.”
1996).

Smith v. Chater, 99 F.3d 635, 638 (4th Cir.

The ALJ resolved the conflicts in a manner unfavorable

to plaintiff.

Furthermore, the new evidence provides no basis

for overturning the ALJ’s decision.

On this record, even with

the additional evidence, a court would not direct a verdict in
favor of plaintiff.
(4th Cir. 1972).

Blalock v. Richardson, 483 F.2d 773, 776

Consequently, the ALJ’s decision is supported

by substantial evidence.
Accordingly, for the reasons set forth above, the court
OVERRULES the Plaintiff’s objections to Magistrate Judge
VanDervort’s PF&R.

The court adopts the factual and legal

analysis contained within the PF&R to the extent that it is not
inconsistent with this Memorandum Opinion, DENIES Plaintiff’s
Motion for Summary Judgment (Doc. No. 10), GRANTS Defendant’s
Motion for Judgment on the Pleadings (Doc. No. 13), AFFIRMS the
final decision of the Commissioner, and DISMISSES this matter
from the court’s active docket.
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The Clerk is directed to forward a copy of this
Memorandum Opinion to counsel of record.
IT IS SO ORDERED on this 3rd day of September, 2013.
ENTER:
David A. Faber
Senior United States District Judge

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