Thomas v. Astrue
Filing
14
MEMORANDUM OPINION denying the plaintiff's 11 Motion for Summary Judgment; affirming the final decision of the Commissioner; and dismissing this matter from the docket of this court. Signed by Magistrate Judge Mary E. Stanley on 7/6/2011. (cc: attys) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
GEORGE A. THOMAS,
Plaintiff,
v.
CASE NO. 2:10-cv-00766
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
M E M O R A N D U M
O P I N I O N
This is an action seeking review of the decision of the
Commissioner of Social Security denying Plaintiff's application for
disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. Both parties have consented in
writing to a decision by the United States Magistrate Judge.
Currently pending before the court is Plaintiff’s Motion for
Summary Judgment.1
Plaintiff, George Allen Thomas (hereinafter referred to as
“Claimant”), filed an application for DIB on December 4, 2008,
alleging
disability
as
of
November
13,
2008,
due
to
visual
impairments, arthritis, dizziness, numbness in the arms and legs
1
The court reminds Plaintiff that pursuant to Local Rule of Civil
Procedure 9.4(a), the parties need not file motions in support of judgment on
the pleadings or motions for summary judgment. Instead, Plaintiff should file
"a brief in support of the complaint," while Defendant files "a brief in
support of the defendant's decision." Local Rules of the United States
District Court for the Southern District of West Virginia, Local Rule of Civil
Procedure 9.4(a).
and a heart condition.
(Tr. at 95-98, 129, 207.)
The claim was
denied initially and upon reconsideration. (Tr. at 48-52, 55-57.)
On
April
2,
2009,
Claimant
requested
Administrative Law Judge (“ALJ”).
a
hearing
(Tr. at 58.)
before
The hearing was
held on July 14, 2009, before the Honorable Theodore Burock.
at
20-42.)
By
decision
dated
September
28,
2009,
determined that Claimant was not entitled to benefits.
19.)
The
ALJ’s
decision
became
the
final
an
the
(Tr.
ALJ
(Tr. at 9-
decision
of
the
Commissioner on April 27, 2010, when the Appeals Council denied
Claimant’s request for review.
(Tr. at 1-3.)
On May 24, 2010,
Claimant brought the present action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. § 405(g).
Under 42 U.S.C. § 423(d)(5), a claimant for disability has the
burden of proving a disability.
See Blalock v. Richardson, 483
F.2d 773, 774 (4th Cir. 1972).
A disability is defined as the
"inability to engage in any substantial gainful activity by reason
of any medically determinable impairment which can be expected to
last for a continuous period of not less than 12 months . . . ."
42 U.S.C. § 423(d)(1)(A).
The
Social
Security
Regulations
establish
a
evaluation" for the adjudication of disability claims.
"sequential
20 C.F.R.
§ 404.1520 (2009). If an individual is found "not disabled" at any
step, further inquiry is unnecessary.
Id. § 404.1520(a).
The
first inquiry under the sequence is whether a claimant is currently
2
engaged in substantial gainful employment.
Id. § 404.1520(b).
If
the claimant is not, the second inquiry is whether claimant suffers
from a severe impairment.
Id. § 404.1520(c).
If a severe
impairment is present, the third inquiry is whether such impairment
meets or equals any of the impairments listed in Appendix 1 to
Subpart P of the Administrative Regulations No. 4.
404.1520(d).
Id. §
If it does, the claimant is found disabled and
awarded benefits.
Id.
If it does not, the fourth inquiry is
whether the claimant's impairments prevent the performance of past
relevant work.
Id. §§ 404.1520(e).
By satisfying inquiry four,
the claimant establishes a prima facie case of disability. Hall v.
Harris, 658 F.2d 260, 264 (4th Cir. 1981).
The burden then shifts
to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th
Cir. 1983), and leads to the fifth and final inquiry: whether the
claimant is able to perform other forms of substantial gainful
activity, considering claimant's remaining physical and mental
capacities and claimant's age, education and prior work experience.
20 C.F.R. § 404.1520(f) (2009).
things:
(1)
that
the
The Commissioner must show two
claimant,
considering
claimant’s
age,
education, work experience, skills and physical shortcomings, has
the capacity to perform an alternative job, and (2) that this
specific
job
exists
in
the
national
economy.
McLamore
v.
Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant
3
satisfied
the
first
inquiry
because
he
has
not
engaged
in
substantial gainful activity since the alleged onset date. (Tr. at
11.) Under the second inquiry, the ALJ found that Claimant suffers
from the severe impairments of visual impairment, hypertension,
neck impairment, knee impairment and headaches.
(Tr. at 11.)
At
the third inquiry, the ALJ concluded that Claimant’s impairments do
not meet or equal the level of severity of any listing in Appendix
1.
(Tr. at 14.)
The ALJ then found that Claimant has a residual
functional capacity for medium work, reduced by nonexertional
limitations.
(Tr. at 14.)
his past relevant work.
As a result, Claimant cannot return to
(Tr. at 17.)
Nevertheless, the ALJ
concluded that Claimant could perform jobs such as janitor, kitchen
helper, stock clerk, assembly worker, office helper and laundry
folder, which exist in significant numbers in the national economy.
(Tr. at 18.)
On this basis, benefits were denied.
(Tr. at 19.)
Scope of Review
The sole issue before this court is whether the final decision
of the Commissioner denying the claim is supported by substantial
evidence.
In Blalock v. Richardson, substantial evidence was
defined as
“evidence which a reasoning mind would accept
as
sufficient
to
support
a
particular
conclusion. It consists of more than a mere
scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the
case before a jury, then there is 'substantial
evidence.’”
4
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting
Laws
v.
Celebrezze,
368
F.2d
640,
642
(4th
Cir.
1966)).
Additionally, the Commissioner, not the court, is charged with
resolving conflicts in the evidence.
1453, 1456 (4th Cir. 1990).
Hays v. Sullivan, 907 F.2d
Nevertheless, the courts “must not
abdicate their traditional functions; they cannot escape their duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”
Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the
Commissioner is supported by substantial evidence.
Claimant’s Background
Claimant
was
fifty-two
years
old
at
the
time
of
the
administrative hearing. (Tr. at 24.) Claimant completed the ninth
grade.
(Tr. at 25.)
driver.
In the past, he worked as a dump truck
(Tr. at 34.)
The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record, and will summarize it briefly below.
A substantial amount of the evidence of record predates
Claimant’s alleged onset of disability on November 13, 2008, but
the court will summarize it for background purposes.
On February 19, 2007, Claimant failed a pre-employment stress
test and reported to the hospital with complaints of tightening in
5
his mid chest. Claimant was to undergo left heart catheterization.
(Tr. at 311-12.) The catheterization revealed significant 3 vessel
coronary artery disease, and Claimant underwent coronary artery
bypass grafting x6 on February 21, 2007.
26, 2007, Claimant was doing well.
(Tr. at 230.)
On March
(Tr. at 314.)
On February 19, 2007, Stafford G. Warren, M.D. noted that
Claimant questioned whether he might have significant left renal
artery stenosis or whether there was an overlying of overlapping of
vessels.
Dr.
Warren
planned
to
order
Claimant’s coronary bypass surgery.
a
renal
duplex
(Tr. at 324.)
ordered a scan and other tests on May 10, 2007.
after
Dr. Warren
(Tr. at 323.)
An exercise stress test on May 10, 2007, showed normal rest
and stress SPECT Sestamibi study and normal wall motion analysis
with ejection fraction of 58 percent.
artery
duplex
on
May
10,
2007,
showed
(Tr. at 327.)
less
than
60
A renal
percent
stenosis, mild to moderate stenosis of the right and left renal
arteries.
(Tr. at 332.)
On May 25, 2007, Dr. Warren released Claimant to return to
work without restrictions effective immediately.
(Tr. at 328.)
On May 31, 2007, a State agency medical source completed a
Physical Residual Functional Capacity Assessment and opined that
Claimant could perform heavy work with an ability to stand and/or
walk six hours in an eight-hour workday and sit about six hours in
an eight-hour workday and a need to avoid concentrated exposure to
6
extreme cold.
(Tr. at 342-49.)
The record includes treatment notes and other evidence from J.
Stephen Shank, M.D. dated February 27, 2006, through September 17,
2008.
(Tr. at 352-402.)
An MRI of the cervical spine on February
27, 2006, showed cervical spondylosis with posterior osteophytes
causing effacement of the thecal sac at C3-4, C5-6 and C6-7, no
focal disc herniation and no exit foramina stenosis. (Tr. at 401.)
Also, Claimant was treated for hypertension, hyperlipidemia,
osteoarthritis, obesity and coronary artery disease, among others.
On September 26, 2007, Robert F. Dundervill, III, M.D.,
F.A.C.S. examined Claimant.
His impression was central retinal
vein occlusion with neovascularization of the iris-right eye.
He
indicated that Claimant was at a substantial risk for developing
neovascular
glaucoma
and
injections.
(Tr. at 410.)
blindness.
He
recommended
Avastin
On October 24, 2007, Claimant reported
some improvement following an Avastin injection.
(Tr. at 414.)
The record includes additional treatment notes from Dr. Dundervill.
(Tr. at 412-34.)
On July 2, 2008, Dr. Dundervill wrote that Claimant has a
history of central retinal vein occlusion in the right eye, which
has limited the vision in that eye to counting fingers at 1 foot.
Claimant’s vision continued “to be good at 20/20 in the left eye,
and with the 20/20 vision in the left eye he should be able to
operate a motor vehicle for private use without restriction.” (Tr.
7
at 430.)
On February 9, 2009, Miraflor G. Khorshad, M.D. examined
Claimant at the request of the State disability determination
service.
Dr. Khorshad diagnosed essential hypertension, poorly
controlled and clinical history of dizzy spells secondary to
essential hypertension.
(Tr. at 405.)
On February 16, 2009, a State agency medical source completed
a Physical Residual Functional Capacity Assessment and limited
Claimant to medium work, with an occasional ability to climb
ladders, ropes and scaffolds.
(Tr. at 435-42.)
This opinion was
affirmed by a second State agency medical source on March 21, 2009.
(Tr. at 444.)
On February 18, 2009, Dr. Dundervill wrote that Claimant is
“legally blind in the right eye because of a central retinal vein
occlusion and will remain that way without hopes of improvement in
the future.”
(Tr. at 485.)
On June 12, 2009, Claimant underwent a stress test, which was
“essentially unremarkable.”
(Tr. at 446.)
The record includes additional treatment notes from Dr. Shank
dated July 9, 2007, November 12, 2007, January 21, 2008, March 17,
2008, June 17, 2008, September 17, 2008, May 7, 2009, June 8, 2009,
and June 30, 2009.
diagnosed
essential
artery disease.
(Tr. at 457-84.)
hypertension,
On May 7, 2009, Dr. Shank
hyperlipidemia
and
coronary
Dr. Shank noted that Claimant was told to apply
8
for disability because he would never drive again.
68.)
(Tr. at 467-
On June 8, 2009, Dr. Shank’s assessment was essential
hypertension, hyperlipidemia, obesity and coronary artery disease.
He noted that Claimant’s blood pressure was fairly well controlled
on his current medication and that Claimant’s mixed lipid levels
and had been fairly well controlled on medication as well.
Claimant also had a history of stable three vessel disease.
at 465-66.)
pain.
(Tr.
On June 30, 2009, Claimant complained of abdominal
He was diagnosed with abdominal pain and cholelithiasis.
(Tr. at 458.)
On June 30, 2009, Dr. Shank completed a “Physical (Adult)” on
which he opined that Claimant was blind in the right eye, had
coronary artery disease, increased lipids, retinal hemorrhage,
hypertension and an inguinal hernia, among other things, and that
he was unable to work.
(Tr. at 461-62.)
An ultrasound of Claimant’s gallbladder on July 10, 2009, was
normal.
(Tr. at 486.)
Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts that the Commissioner’s decision is not
supported by substantial evidence because (1) the ALJ erred in
finding Claimant capable of medium level work because he failed to
properly
evaluate
the
combined
effect
of
all
of
Claimant’s
impairments, including obesity; (2) the ALJ erred in assessing
Claimant’s subjective complaints of pain; and (3) the ALJ erred in
9
failing to afford sufficient weight to the opinion of Claimant’s
treating physician.
(Pl.'s Br. at 5-9.)
The Commissioner argues that (1) the ALJ properly considered
the combined effect of Claimant’s impairments, including obesity;
(2) the ALJ properly gave little weight to the opinion of Dr.
Shank, Claimant’s treating physician; and (3) the ALJ properly
evaluated the credibility of Claimant’s subjective complaints.
(Def.'s Br. at 8-18.)
The court finds that the ALJ properly considered Claimant’s
impairments alone and in combination in keeping with the applicable
regulation and Social Security Ruling (“SSR”) 02-01p related to
obesity.
See 20 C.F.R. § 404.1523 (2009) and SSR 02-01p, 2000 WL
628049, at *1 (September 12, 2002).
The social security regulations provide,
In determining whether your physical or mental
impairment or impairments are of a sufficient
medical severity that such impairment or
impairments could be the basis of eligibility
under the law, we will consider the combined
effect of all of your impairments without
regard to whether any such impairment, if
considered separately, would be of sufficient
severity.
20 C.F.R. § 404.1523 (2009).
Where there is a combination of
impairments, the issue “is not only the existence of the problems,
but also the degree of their severity, and whether, together, they
impaired the claimant’s ability to engage in substantial gainful
activity.” Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974).
10
The
ailments
should
not
be
fractionalized
and
considered
in
isolation, but considered in combination to determine the impact on
the ability of the claimant to engage in substantial gainful
activity.
Id.
The cumulative or synergistic effect that the
various impairments have on claimant’s ability to work must be
analyzed. DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
SSR 02-01p explains that certain provisions of the listings
instruct ALJs to “consider the effects of obesity not only under
the listings but also when assessing a claim at other steps of the
sequential
evaluation
process,
including
when
assessing
an
individual’s residual functional capacity.” SSR 02-01p, 2000 WL
628049, at *1 (September 12, 2002).
At the outset, Claimant mischaracterizes testimony at the
administrative hearing from the vocational expert. Claimant states
that
[w]hen asked at hearing if there were jobs a person could
perform at medium non-exertional level with these
limitations [medium work but limited to routine,
repetitive tasks involving no climbing ladders, ropes or
scaffolds and avoiding exposure to all hazards and no
jobs requiring binocular vision], the Vocational Expert
stated “Yes sir, from a technical standpoint, yes you
can, even though it’s not vocationally recommended
because of the vision. It’s not classified as hazardous
equipment, but there are hazards involved, yeah. They’re
right, it’s problematic.
You know, like I said
technically it doesn’t preclude it, however, from [a]
vocational standpoint it’s, it’s not anything that I
would recommend because the danger involved in completing
the task.”
(Pl.'s Br. at 6-7.)
11
In fact, the ALJ asked the vocational expert if, with the
limitations of medium work and the nonexertional limitations cited
above, Claimant could return to his past relevant work.
response,
the
vocational
expert
responded
“yes
sir,
from
In
a
technical standpoint, yes you can [return to past relevant work],
even though it’s not vocationally recommended because of the
vision.”
(Tr. at 35.)
The ALJ did not find that Claimant could
return to his past relevant work.
capable
of
other
work.
Instead, he found Claimant
Specifically,
the
vocational
expert
identified a significant number of medium and light jobs that
Claimant could perform given these limitations, including those
related to his vision.
(Tr. at 36.)
Turning to Claimant’s substantive arguments, Claimant first
argues that the ALJ erred in finding he could perform medium and
light jobs and that instead, when his impairments are considered in
combination, substantial evidence supports a finding that he can
perform only sedentary work.
If Claimant is found capable of only
sedentary work, the vocational expert could identify no jobs. (Tr.
at 37.)
In particular, Claimant argues that the ALJ failed to
consider Claimant’s obesity. (Pl.'s Br. at 7.)
The court finds that the ALJ’s decision reflects a careful
consideration
combination.
of
Claimant’s
impairments,
both
alone
and
in
The ALJ considered the combined effect of Claimant’s
impairments in determining their severity and in arriving at a
12
residual
functional
capacity
finding.
Regarding
Claimant’s
obesity, the ALJ declined to find this impairment severe (Tr. at
13), but he provided sufficient explanation for doing so. Claimant
was
5’9’’
and
weighed
between
214
and
233
pounds.
Despite
Claimant’s obesity, the ALJ observed that he was able to sit, squat
and walk on his heels, and toes.
(Tr. at 404.)
Although the ALJ
did not find Claimant’s obesity to be severe, he considered it in
assessing Claimant’s subjective complaints of pain.
(Tr. at 15.)
The ALJ’s decision reflects a careful consideration of Claimant’s
impairments alone and in combination, and he properly considered
Claimant’s obesity and made findings in that regard that are
supported by substantial evidence.
Next, Claimant argues that the ALJ failed to make proper
findings about Claimant’s pain, including a finding about whether
there was an objective basis for Claimant’s pain.
Claimant also
argues that the ALJ failed to consider the intensity and severity
of Claimant’s pain.
(Pl.'s Br. at 7-9.)
The ALJ’s pain and credibility findings are consistent with
the applicable regulation, case law and SSR and are supported by
substantial evidence.
20 C.F.R. § 404.1529(b) (2009); SSR 96-7p,
1996 WL 374186 (July 2, 1996); Craig v. Chater, 76 F.3d 585, 594
(4th Cir. 1996).
Contrary to Claimant’s assertion, the ALJ found
that Claimant had “medically determinable impairments [that] could
reasonably be expected to cause the alleged symptoms ....” (Tr. at
13
15.)
The ALJ proceeded to the second step in the pain analysis and
his decision contains a thorough consideration of Claimant’s daily
activities, the location, duration, frequency, and intensity of
Claimant’s
pain,
precipitating
Claimant’s medication.
and
aggravating
(Tr. at 15-16.)
factors
and
The ALJ considered the
intensity and severity of Claimant’s pain.
He noted that Claimant
had dull chest pain at times and tightness in his chest, that
Claimant’s neck hurts all the time, that his right knee “comes and
goes” when he walks and that he has headaches “about all of the
time and are off and on at times.”
(Tr. at 15.)
The ALJ ultimately concluded that Claimant was not credible
based on the medical evidence of record, the fact that Claimant’s
conditions are well controlled with medication, that Claimant has
no
side
effects
from
medication
and
that
inconsistent statements about his education.
ALJ’s
findings
in
this
regard
are
Claimant
has
(Tr. at 16-17.)
supported
by
made
The
substantial
evidence.
Finally, Claimant argues that the ALJ erred in failing to
afford controlling weight to the opinion of Dr. Shank, who opined
that Claimant was disabled.
In
evaluating
the
(Pl.'s Br. at 9.)
opinions
of
treating
sources,
the
Commissioner generally must give more weight to the opinion of a
treating physician because the physician is often most able to
14
provide “a detailed, longitudinal picture” of a claimant’s alleged
disability.
See 20 C.F.R. § 404.1527(d)(2) (2009).
Nevertheless,
a treating physician’s opinion is afforded “controlling weight only
if two conditions are met: (1) that it is supported by clinical and
laboratory
diagnostic
techniques
and
(2)
that
it
is
not
inconsistent with other substantial evidence.” Ward v. Chater, 924
F.
Supp.
53,
55
(W.D.
Va.
1996);
see
also,
20
C.F.R.
§
404.1527(d)(2) (2009). The opinion of a treating physician must be
weighed against the record as a whole when determining eligibility
for benefits.
20 C.F.R. §§ 404.1527(d)(2) (2009).
Ultimately, it
is the responsibility of the Commissioner, not the court to review
the case, make findings of fact, and resolve conflicts of evidence.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
As noted
above, however, the court must not abdicate its duty to scrutinize
the record as a whole to determine whether the Commissioner’s
conclusions are rational.
Oppenheim v. Finch, 495 F.2d 396, 397
(4th Cir. 1994).
If the ALJ determines that a treating physician’s opinion
should not be afforded controlling weight, the ALJ must then
analyze and weigh all the evidence of record, taking into account
the factors listed in 20 C.F.R. § 404.1527. These factors include:
(1)
Length
of
the
treatment
relationship
and
frequency
of
evaluation, (2) Nature and extent of the treatment relationship,
(3) Supportability, (4) Consistency, (5) Specialization, and (6)
15
various other factors.
Additionally, the regulations state that
the Commissioner “will always give good reasons in our notice of
determination or decision for the weight we give your treating
source’s opinion.”
Id. § 404.1527(d)(2).
Under § 404.1527(d)(1), more weight is given to an examiner
than to a non-examiner.
Section 404.1527(d)(2) provides that more
weight will be given to treating sources than to examining sources
(and,
of
course,
than
to
non-examining
sources).
Section
404.1527(d)(2)(i) states that the longer a treating source treats
a claimant, the more weight the source’s opinion will be given.
Under § 404.1527(d)(2)(ii), the more knowledge a treating source
has about a claimant’s impairment, the more weight will be given to
the source’s opinion.
the
factors
of
Section 404.1527(d)(3), (4), and (5) adds
supportability
(the
more
evidence,
especially
medical signs and laboratory findings, in support of an opinion,
the more weight will be given), consistency (the more consistent an
opinion is with the evidence as a whole, the more weight will be
given), and specialization (more weight given to an opinion by a
specialist about issues in his/her area of specialty).
In his decision, the ALJ acknowledged Dr. Shank’s June 30,
2009, opinion, but found that it was “without substantial support
from the other evidence of record, which obviously renders it less
persuasive.
Therefore, the undersigned gives little weight to Dr.
Shank’s opinion.”
(Tr. at 17.)
16
The court finds that the ALJ properly weighed the evidence of
record from Dr. Shank.
Dr. Shank’s assessment on which he opined
that Claimant was disabled is conclusory and not supported by
objective medical evidence within the assessment itself or Dr.
Shank’s treatment notes.
In fact, Dr. Shank’s treatment notes
indicate that Claimant’s conditions were managed with medication.
Furthermore, the remaining medical evidence of record from the
State agency medical sources, Dr. Warren (who released Claimant to
work) and Dr. Khorshad do not support a finding of disability.
After a careful consideration of the evidence of record, the
court finds that the Commissioner’s decision is supported by
substantial evidence.
Accordingly, by Judgment Order entered this
day, the Plaintiff’s Motion for Summary Judgment is DENIED, the
final decision of the Commissioner is AFFIRMED and this matter is
DISMISSED from the docket of this court.
The Clerk of this court is directed to transmit copies of this
Order to all counsel of record.
ENTER: July 6, 2011
17
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