Bowles v. Astrue
Filing
17
MEMORANDUM OPINION 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 9/7/2011. (cc: attys) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
DENNIS CRAIG BOWLES,
Plaintiff,
v.
CASE NO. 2:10-cv-00845
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 Claimant’s applications for
disability insurance benefits (“DIB”) and supplemental security
income (“SSI”), under Titles II and XVI of the Social Security Act,
42 U.S.C. §§ 401-433, 1381-1383f.
Both parties have consented in
writing to a decision by the United States Magistrate Judge.
Plaintiff, Dennis Craig Bowles (hereinafter referred to as
“Claimant”), filed applications for SSI and DIB on February 13,
2006, alleging disability as of November 15, 2003, due to heart
attack,
high
blood
pressure,
problems, and depression.
72,
173-77.)
The
reconsideration.
February
21,
cholesterol,
sleep
apnea,
sinus
(Tr. at 9, 101-06, 107-10, 118-27, 163-
claims
were
denied
initially
and
upon
(Tr. at 9, 58-62, 63-67, 77-79, 80-82.)
2007,
Claimant
requested
Administrative Law Judge (“ALJ”).
a
hearing
(Tr. at 84.)
before
On
an
The hearing was
held on April 25, 2008 before the Honorable James S. Quinlivan.
(Tr. at 20-53, 92.)
By decision dated June 10, 2008, the ALJ
determined that Claimant was not entitled to benefits.
19.)
The
ALJ’s
decision
became
the
final
(Tr. at 9-
decision
of
the
Commissioner on April 21, 2010, when the Appeals Council denied
Claimant’s request for review.
(Tr. at 1-5.)
On June 18, 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)
and
§
1382c(a)(3)(H)(i),
a
claimant for disability benefits 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
determinable
impairment
which
by
can
reason
be
of
expected
any
to
medically
last
continuous period of not less than 12 months . . . ."
for a
42 U.S.C. §
423(d)(1)(A).
The
Social
Security
Regulations
establish
a
evaluation" for the adjudication of disability claims.
§§ 404.1520, 416.920 (2002).
"sequential
20 C.F.R.
If an individual is found "not
disabled" at any step, further inquiry is unnecessary.
404.1520(a), 416.920(a).
Id. §§
The first inquiry under the sequence is
whether a claimant is currently engaged in substantial gainful
employment.
Id. §§ 404.1520(b), 416.920(b).
If the claimant is
not, the second inquiry is whether claimant suffers from a severe
2
impairment.
Id.
§§
404.1520(c),
416.920(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),
416.920(d).
If
it
disabled and awarded benefits.
inquiry
is
whether
the
does,
Id.
the
Id. §§
claimant
is found
If it does not, the fourth
claimant's
impairments
prevent
the
performance of past relevant work. Id. §§ 404.1520(e), 416.920(e).
By satisfying inquiry four, the claimant establishes a prima facie
case of disability.
1981).
Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
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
education and prior work experience.
and
claimant's
age,
20 C.F.R. §§ 404.1520(f),
416.920(f) (2002). The Commissioner must show two things: (1) that
the
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
satisfied
the
first
inquiry
because
3
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
obesity
with
shortness
of
breath/sleep apnea, degenerative pathology of the cervical and
lumbar
spine,
hypertensive
cardiovascular
disease,
bilateral
varicose veins, elevated cholesterol and chest pains (angina).
(Tr. at 11-13.)
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 13-14.)
The ALJ then found
that Claimant has a residual functional capacity for light work,
reduced by nonexertional limitations.
(Tr. at 14-16.)
result, Claimant cannot return to his past relevant work.
16.)
As a
(Tr. at
Nevertheless, the ALJ concluded that Claimant could perform
jobs such as light non-clerical office helper, light product
inspector, light package worker, sedentary surveillance monitor,
sedentary product inspector, and sedentary product inspector, which
exist in significant numbers in the national economy.
18.)
On this basis, benefits were denied.
(Tr. at 17-
(Tr. at 18-19.)
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
4
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.’”
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 43 years old at the time of the administrative
hearing on April 25, 2008.
(Tr. at 23-24.)
eight inches tall and weighed 265 pounds.
He was five feet,
(Tr. at 24.)
He is a
high school graduate with vocational training in automobile body
work, automobile mechanics and building construction.
Id.
In the
past, he worked as a tire changer and lube man at Wal-Mart, an
automobile mechanic and pump attendant at a gasoline station, a
discount store receiving worker, an automobile body repair worker,
and he briefly owned his own automobile body repair shop.
5
(Tr. at
45-47.)
When he last worked in 2003, he weighed 210.
(Tr. 25.)
The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record, and will summarize it below:
Records indicate Claimant was treated approximately 26 times
at Tristate Medical Center, West Hamlin Office, from January 5,
2003
to
March
6,
hypertension,
2008
for
cholesterol,
a
variety
of
ailments,
allergies/sinusitis,
including
sleep
apnea,
depression/anxiety, pain in chest/right upper quadrant, neck, back,
hip, leg, and hand.
(Tr. at 213-17, 453-577.)
Records show Claimant was treated at Tri State Otolaryngology,
Inc. on eleven occasions from January 23, 2004 to June 30, 2005 for
nasal obstruction and sleep apnea.
Sheridan,
M.D.
indicated
that
on
(Tr. at 240-47.) Mark F.
October
29,
2004,
Claimant
underwent recommended “sinus surgery, nasal surgery...[at] St.
Mary’s Hospital.”
Dr.
Sheridan
(Tr. at 242, 329-343.)
wrote:
“Patient
follows
up
On November 23, 2004,
on
sinus
and
nasal
surgery...He was encouraged to quit smoking and to follow up in a
month...I would recommend that he just continue evaluation for CPAP
[Continuous Positive Airway Pressure] therapy if they are worried
about sleep apnea, which, per the patient, they apparently are.”
(Tr. at 241.) On June 30, 2005, Dr. Sheridan wrote: “He is having
a little bit of trouble on the right side, but overall is generally
pleased.
He has gotten a CPAP machine and is sleeping better...My
6
opinion is chronic rhinitis, stable.”
(Tr. at 240.)
Records indicate Claimant was treated at Lincoln Primary Care
Center on eight occasions between August 12, 2004 and November 11,
2005 for high cholesterol, high blood pressure, and sleep apnea.
(Tr. at 218-28, 250-63.)
The final entry states “? Back pain
radiating through to chest. Recommended Ibuprofen.”
(Tr. at 221,
250.)
Largely illegible handwritten medical record from St. Mary’s
Medical Center are included in the record.
The records are dated
March 10, 2005, March 24, 2005, April 21, 2005, May 9, 2005, May
13, 2005, May 18, 2005, June 2, 2005, December 1, 2005, January
5,2006, and February 23, 2006.
(Tr. at 408-09, 418-38.)
The
legible words indicate Claimant sought treatment for chest pain and
heartburn.
(Tr. at 438.)
On March 9, 2005, Imran T. Khawaja, M.D. examined Claimant for
possible obstructive sleep apnea.
(Tr. at 397-98.)
Dr. Khawaja
stated: “Patient is being instructed not to drive since he will be
hazardous not only to himself but to the others on the road until
his sleep apnea is corrected.
weight.
Patient is being advised to lose
Patient is also being strong advised to stop smoking.”
(Tr. at 398.)
On March 12, 2005, Claimant had an overnight polysomnographic
study at Cabell Huntington Hospital. (Tr. at 231-36, 394-96.) Dr.
Khawaja diagnosed Claimant with “[v]ery severe obstructive sleep
7
apnea with successful CPAP titration at 12 cm [centimeter] of water
pressure...Weight loss close to ideal body weight is being strongly
recommended....The patient may be advised to refrain from smoking,
alcohol, sedatives...especially prior to going to bed time.”
(Tr.
at 232-33, 293-94, 395-96.)
On March 16, 2005, Claimant had a “Stress Test Cardio” at St.
Mary’s Medical Center.
(Tr. at 688-89.)
reviewed the testing and concluded: “1.
at 10 METS [metabolic equivalents].
Ellen Thompson, M.D.
Negative ECG stress test
2.
No chest pain.
3.
Occasional PVCs [premature ventricular contractions] on stress. 4.
Borderline functional capacity...Normal stress cardiolite.”
Id.
On June 6, 2005, Shadi Badin, M.D. and Imran T. Khawaja, M.D.,
University Physicians Internal Medicine, reported:
The patient is a 40 year old white male who was seen in
our
clinic
for evaluation
of
excessive
daytime
sleepiness.
He had sleep study, which showed severe
sleep apnea with apnea-hypopnea index of 90/hour, and
this was found on the split-night sleep study that was
done for the patient.
He was then started on CPAP
titration, which was successful, and the patient was
started on CPAP. The patient is doing much better since
then. He says that he does not have the troubles with
the excessive daytime sleepiness or fatigue, and he feels
like a different person. He denies any problems with the
machine at this time. No complaints of his sinuses...We
will see him in six months from now. He was strongly
advised to lose weight.
(Tr. at 393.)
On February 1, 2006, Rodger Blake, M.D., St. Mary’s Medical
Center,
interpreted
an
complaints of chest pain.
x-ray
of
Claimant’s
(Tr. at 417, 682-86.)
8
chest
following
Dr. Blake stated:
“A portable examination of the chest shows the heart and lungs to
be within normal limits.
On
February
23,
Conclusion: Normal AP chest.”
2006,
March
16, 2006,
December 20, 2006, and February 21, 2007,
University
Cardiovascular
Services
August
Id.
23,
2006,
Claimant was treated at
following
a
left
heart
catheterization and stent placement on February 3, 2006 at St.
Mary’s Medical Center.
(Tr. at 280-92, 324-34, 391-92, 410-16,
539-41.) Following the surgery, Elie Gharib, M.D. wrote: “Coronary
artery
disease...with
vessels...Overall
LV
diffuse
[left
ectatic
ventricle]
changes
in
function
all
appears
of
to
his
be
preserved although this was a suboptimal angiogram...Successful
PTCA
[Percutaneous
Transluminal
stent...Recommendation:
modification.
Medical
Coronary
management
Angioplasty]
and
Plavix and Aspirin indefinitely.”
risk
and
factor
(Tr. at 291.)
On February 27, 2006, Paul D. Akers, M.D., St. Mary’s Medical
Center, interpreted an “Acute Abdomen Complete” of Claimant’s chest
area due to Claimant’s complaints of abdominal pain. (Tr. at 405.)
Dr. Akers concluded that it “shows the heart and lungs to be within
normal limits.
Flat and upright studies of the abdomen show no
evidence of free peritoneal air.
The abdominal gas pattern is
unremarkable. No opaque calculi or abnormal soft tissue masses are
present.
The bony structures appear normal.”
Id.
On February 27, 2006, Claimant was treated at St. Mary’s
Medical Center Emergency Department for a rash. (Tr. at 400-06.)
9
John Morgan, M.D. diagnosed Claimant with “1. Contact dermatitis.
2.
Constipation.
3.
Noncompliance with medications.”
(Tr. at
402, 404, 679.)
On March 16, 2006, Tina M. Sias, M.D. noted: “IMPRESSION: 1.
Unstable angina.
artery
disease.
lipoprotein]
of
2. Recent myocardial infarction, known coronary
3.
137...
Hyperlipidemia
4.
He
with
continues
[electrocardiogram] checked today was normal.”
LDL
to
[low
density
smoke...EKG
(Tr. at 282.)
On
August 23, 2006, Muhammad Taimoor Gill, M.D. noted that Claimant’s
hyperlipidemia was uncontrolled, that Lipitor would be tried, and
that Claimant was counseled regarding smoking cessation.
(Tr. at
280.)
On March 27, 2006, Roger C. Baisas, M.D. evaluated Claimant
and provided a Social Security Disability Evaluation Report.
at 304-11.)
Dr. Baisas noted that Claimant
admitted to smoking, “a pack a day”...
Our claimant on February 12, 2006, had an episode of
heart attack for which he subsequently underwent coronary
artery stent placement, “in two arteries.” He has had
some improvement from his chest pain, “but I still do
have some chest pain and I am also short of breath just
moving around, like walking, I also have my sleep apnea,
although I don’t sleep that much.”
Our Claimant’s daily living activities consist of, “I
stay at home most of the time, watch television, my wife
works and she cooks the meals and takes care of me, I
can’t even ride a lawnmower.” ...
He did not bring with him any diagnostic studies for
review.
10
(Tr.
(Tr. at 306, 309.)
On August 14, 2006, Claimant underwent ventilatory function
testing.
marks
(Tr. at 276-78.) Dr. Nutter (no first name available)
“no”
on
a
form
indicating
there
is
no
evidence
of
bronchospasm or acute respiratory illness and states “normal” in
the section labeled “Interpretation.”
(Tr. at 276.)
On August 24, 2006, a State agency medical source completed a
Physical Residual Functional Capacity Assessment and opined that
Claimant
could
perform
light
work
(exertional
limitations,
occasionally lift and/or carry 20 pounds; sit/walk/stand about 6
hours in an 8-hour workday, unlimited push and/or pull) with all
postural limitations marked as “occasionally” and no manipulative,
visual,
or
communicative
limitations.
(Tr.
at
296-300.)
Claimant’s environmental limitations were found to be unlimited
save
to
humidity,
avoid
concentrated
hazards,
ventilation, etc.
noted
Claimant’s
and
exposure
fumes,
(Tr. at 300.)
primary
to
extreme
odors,
dusts,
temperatures,
gases,
The evaluator, Earl Langley,
diagnosis
as
status
post
myocardial
infarction and the secondary diagnosis as sleep apnea.
296.)
poor
(Tr. at
He further noted that Claimant’s recent pulmonary function
study was normal.
(Tr. at 303.)
On August 30, 2006, an unsigned “Case Analysis” states: “On
the 4734 dated 8/24/06 the RFC [Residual Functional Capacity] on
page 2 A2 “10 pounds” should be checked. Regarding credibility the
11
claimant is considered not fully credible as her [sic] complaints
of fatigue and shortness of breath are not consistent with the
clinical findings.”
(Tr. at 312.)
On February 12, 2007, a State agency medical source completed
a Physical Residual Functional Capacity Assessment and opined that
Claimant
could
perform
light
work
(exertional
limitations,
occasionally lift and/or carry 20 pounds, frequently lift and/or
carry 10 pounds, sit/walk/stand about 6 hours in an 8-hour workday,
unlimited push and/or pull) with all postural limitations marked as
“occasionally”
limitations.
and
no
(Tr.
manipulative,
at
345-52.)
visual,
or
communicative
Claimant’s
environmental
limitations were found to be unlimited save to avoid concentrated
exposure to extreme temperatures, vibration, hazards, and fumes,
odors, dusts, gases, poor ventilation, etc.
(Tr. at 349.)
evaluator,
Claimant’s
A.
Rafael
Gomez,
M.D.
stated
The
primary
diagnosis as status post acute myocardial infarction and the
secondary diagnosis as sleep apnea.
(Tr. at 345.)
He noted:
“Patient was reviewed on 08/24/06 and reduced to light work.
New
medical evidence which is dated prior to the date of initial review
did not change RFC.”
(Tr. at 350.)
On February 14, 2007, a State agency medical source completed
a Psychiatric Review Technique form and opined that Claimant’s
impairment was not severe.
(Tr. at 354-67.)
The evaluator, John
Todd, Ph.D., licensed psychologist, found that Claimant’s affective
12
disorder,
depression,
caused
a
mild
degree
of
limitation
in
restriction of activities of daily living, no limitations regarding
social functioning, concentration, persistence or pace, and no
episodes of decompensation. (Tr. at 357, 364.)
He found the
evidence did not establish the presence of the “C” criteria.
at 365.)
(Tr.
Dr. Todd concluded:
CLMT [claimant] is mostly credible, he has no psych
[psychiatric]
HX
[history]
of
IP/OP
[inpatient/outpatient] TX [“treatment”] though RX’ed
[prescribed] antidepressant on 6/06, clmt alleges no
problems w/ [with] mental functioning, and TS [treating
source] notes no problems with MS [mental status]. He
performs personal care, walks for exercise, drives,
shops, manages finances, plays cards and states handling
stress well, though somewhat restricted by c/o physical.
Preponderance of evidence indicates that limitations due
to a mental D/O are considered NON-SEVERE.
(Tr. at 366.)
On March 27, 2007, Rob Crowder, Physical Therapist, wrote a
letter to Gazala Darvesh, M.D. stating that he had evaluated
Claimant upon his referral.
(Tr. at 441.)
Mr. Crowder stated:
“Assessment: Significant loss of functional ROM [range of motion]
in the cervical and lumbar spine.
flexibility
program.
tolerated.”
We will
Plan: We did begin with light
progress
with this
program
as
Id.
On May 3, 2007, Ijaz Ahmad, M.D., St. Mary’s Medical Center,
wrote
a
“Report
of
Electromyography”
stating
that
Claimant’s
testing showed
1.
Moderate prolongation of distal sensory and motor
latency of the left median nerve consistent with
13
2.
3.
carpal tunnel syndrome.
Mild chronic denervation in the left deltoid of
uncertain significance.
Normal conduction velocities and EMG examination of
the right upper and both lower extremities. There
was no definite evidence of radiculopathy.
(Tr. at 389.)
On May 8, 2007, David A. Denning, M.D. wrote to Dr. Darvesh
thanking him for referring Claimant to him for evaluation of his
varicose veins.
(Tr. at 442.)
Dr. Denning reported:
ASSESSMENT & PLAN: I obtained some arterial Doppler
studies from St. Mary’s Medical Center.
They had an
ankle/brachial index of greater than 1.0 bilaterally. I
told him I do not think surgery was indicated for this.
He may be a candidate for endovascular laser ablation
although he has not tried conservative treatment at all.
I wrote him a prescription for knee-high support
stockings, 30mm-40mmHg to get and use for at least six
months. If he has not gotten relief by then, he is to
contact me again.
(Tr. at 443.)
On May 23, 2007, Joseph Dransfeld, M.D., Tri-State MRI,
reported that Claimant had a MRI of the cervical spine without
contrast:
“Vertebral height, alignment and marrow signal is
normal. Cervical spinal cord is normal. Cerebellar tonsils are in
normal position. No cervical disc herniation. No neural foraminal
stenosis.
IMPRESSION:
Negative
[Herniated Nucleus Pulposus].”
exam.
Specifically
no
HNP
(Tr. at 450.)
On May 23, 2007, Dr. Dransfeld also reported that Claimant had
a MRI lumbar spine without contrast:
Vertebral height, alignment and marrow signal are normal.
There is desiccation at the L3-4 intervertebral disc with
14
bulge of the annulus. At L4-5, there is degenerative
bulging disc slightly asymmetric to the right. There is
no neural compression seen although there is narrowing of
the inferior right intervertebral foramen as a result.
No fracture or other finding.
IMPRESSION: L3-4 and L4-5 degenerative bulging discs.
(Tr. at 451.)
On June 5, 2007,
Imran T. Khawaja, M.D. reported that
Claimant underwent a BiPap Study at Cabell Huntington Hospital,
Sleep Disorders Center.
(Tr. at 444-45.)
Dr. Khawaja stated:
DIAGNOSIS:
Very severe sleep apnea/complex sleep apnea syndrome with
successful BiPap titration (780.53).
RECOMMENDATIONS:
1.
Based on the current study, the patient may be
switched from CPAP to BiPap using settings of iPAP
of 14 and an EPAP of 10 using a comfort gel nasal
mask.
2.
Weight loss close to ideal body weight is strongly
being recommended.
3.
The patient may be advised to refrain from smoking,
alcohol, sedatives or any other CNS suppressant
medications especially prior to going to bedtime.
(Tr. at 445.)
On August 30, 2007, Rida Mazagri, M.D. evaluated Claimant upon
referral by Dr. Darvesh.
“in mild distress.”
Dr. Mazagri described Claimant as being
(Tr. at 447.)
Dr. Mazagri stated:
Impression: This is a 42 year old gentleman with back
pain and right leg pain and numbness most probably
related to his degenerative disc disease at multiple
levels especially as seen on the MRI at L/3-4 and L/4-5.
Plan:
1.
I discussed with the patient the different etiology
of his symptomatology...
2.
The patient was started on a short course of
15
3.
4.
5.
steroid...
The patient was encouraged to have physiotherapy
treatment to further condition his abdominal and
back musculature and to be involved in a weight
reduction program where he needs to lose 40-50
pounds.
He was given a prescription of Lortab.
He will be reassessed in a few weeks for further
evaluation. If his symptomatology continues a pain
management clinic with possible nerve blocks may be
beneficial.
(Tr. at 448.)
On November 1, 2007, David L. Caraway, M.D., Ph.D., Center for
Pain Relief, St. Mary’s Medical Center, examined Claimant at the
request of Gregory D. Chaney, M.D.
(Tr. at 537-38.)
Dr. Caraway
stated:
As you know he is a 43-year-old Caucasian male whose MRI
shows L3-L4, L4-L5 degenerative bulging discs. He also
has narrowing of the inferior right intervertebral
foramen, which is consistent with his pain complaints.
He takes Lortab 7.5/500 mg one to two times a day as
needed. He is also on Plavix for a heart condition...
The cervical spine is normal, upper extremities range of
motion is full, grip strength is 5/5, there is no
scoliosis or kyphosis noted on inspection of the
thoracolumbar spine.
He has a positive straight leg
raise on the right at 90 degrees, negative on the left.
Range of motion of the lumbar spine revealed flexion 60,
extension 20, rotation 50 degrees bilaterally.
Neurological exam revealed DTRs [deep tendon reflexes] 2+
and equal bilaterally, no clonus or spasticity. Sensory
exam is intact. Heel to toe walk as well as gait are
normal, there is no edema, cyanosis, or clubbing of the
lower extremities.
This is a patient with degenerative disc disease with
right-sided radiculopathy that is consistent with his
MRI. We will go ahead and set this patient up for a
series of right-sided transforaminal lumbar epidural
steroid injections if the patient can come off his Plavix
for one week prior to each injection.
16
Id.
Records indicate Claimant had follow-up examinations with Dr.
Caraway on November 29, 2007, December 21, 2007, January 18, 2008,
and March 17, 2008 for transforaminal epidural steroid injections.
(Tr. at 582-21.)
On February 7, 2008, Dr. Chaney completed a form titled “West
Virginia Department of Health and Human Resources Medical Review
Team (MRT) General Physical (Adults).”
Chaney
opined
that
Claimant’s
(Tr. at 529-31.)
“severe
chronic
back,
Dr.
hip,
leg...hand...chest pain” caused him to be “unable to walk stand >
15, unable to sit > 30 minutes.”
(Tr. at 530.)
On February 28, 2008, Dr. Chaney, responded to a threequestion letter from Claimant’s representative.
(Tr. at 368-69.)
The handwritten response to the first question - “Do you feel that
Mr.
Bowles’
subjective
complaints
of
consistent with your objective findings?
pain
and
fatigue
are
If so, on what do you
base this opinion?” - states: “Yes. Pt [patient] show significant
tenderness of c-spine & l-spine.”
The handwritten response to the
second question - “Do you think that Mr. Bowles could engage in
employment (8 hours a day, 5 days a week) on a consistent basis?
If not, why?” - states: “No.
Pt has significant pain and can not
lift, stand, walk or sit consistently enough to be employed. Pt
also has significant Anx [anxiety]/Depression.” (Tr. at 368.) The
handwritten response to the third question - “Does Mr. Bowles have
17
other impairments which limit his ability to work? If so, what?” states: “Pt has Anxiety/Depression w/ [with] difficulty w/ work
stressors & staying on task.”
(Tr. at 369.)
On March 6, 2008, Dr. Chaney completed a form titled “Medical
Assessment of Ability to do Work-related Activities (Physical).”
(Tr. at 370-72.)
He stated that Claimant could lift/carry a
maximum of 10 pounds occasionally and five pounds frequently, could
stand/walk two hours in an 8-hour workday, and sit for four hours
in an 8-hour workday.
(Tr. at 370-71.)
could “never” do any postural activities.
He marked that Claimant
(Tr. at 371.) He marked
that the only physical functions not affected by the impairment
were
“hearing”
and
“speaking”
and
that
the
restriction Claimant did not have was “noise.”
only
environment
(Tr. at 372.)
On April 12, 2008, Paul W. Craig, II, M.D. examined Claimant
and reviewed his medical records at the request of Claimant’s
representative.
(Tr. at 694-97.)
Dr. Craig concluded:
After a complete review of the records presented, as well
as the completion of a physical evaluation, the
claimant’s limitations are delineated below and in the
attached form(s).
1.
2.
3.
4.
5.
6.
Significant coronary artery disease with evidence
of prior, mild heart attack as well as placement of
two cardiac stents.
Ongoing
angina
by
history
controlled with
medications.
Hypercholesterolemia controlled with medications.
Moderate to severe excess weight with secondary
sleep apnea treated with BI-PAP.
Hypertension controlled with medication.
Chronic LBP [low back pain] with right sided
sciatica due to underlying degenerative disease.
18
7.
8.
9.
10.
Moderate to severe venous stasis and varicose veins
noted on examination.
History related of depression and anxiety treated
with medication.
Mild COPD [chronic obstructive pulmonary disease].
Combined effect of multiple medical problems
requiring multiple medications for control with a
marked limitation of endurance and physical
capacity resulting in his being limited to
sedentary to very light physical capacity category.
Furthermore, it remains highly unlikely that he
would be able to reasonably work 8 hours a day 5
days per week.
(Tr. at 694.)
On April 12, 2008, Dr. Craig also completed a form titled
“Medical
Assessment
(Physical).”
(Tr.
of
Ability
at
to
695-97.)
do
He
Work-related
checked
“Yes”
Activities
indicating
Claimant’s lifting/carrying, standing/walking, and sitting were
affected by impairments.
(Tr. at 695-96.) He stated that Claimant
was limited to lifting/carrying 10-15 pounds, 10 or more maximum
occasionally, 6 pounds maximum frequently; could stand/walk for 2-4
hours in an 8-hour workday, without interruption for 1-2 hours; and
could sit 4-6 hours in an 8-hour workday, 2-4 hours without
interruption.
Id.
He opined that Claimant could never do the
postural activities, noting “rare” with “balance.”
(Tr. at 696.)
Regarding physical functions, he found Claimant was not limited in
reaching, seeing, hearing, or speaking but was limited in handling,
feeling, pushing/pulling.
(Tr. at 697.) He concluded Claimant
should have all the environmental restrictions, with the exception
of not having a noise restriction.
19
Id.
Medical Records Provided to the Appeals Counsel
On January 21, 2010, Claimant was hospitalized at St. Mary’s
Medical Center for chest pain and a history of unstable angina.
(Tr. at 699-709.) On that date, Rameez Sayyed, M.D. performed a
“[l]eft heart catheterization, selective coronary angiography, left
ventriculopgraphy,
femoral
angiography,
percutaneous
intervention to the left circumflex artery.”
coronary
(Tr. at 707.)
Sayyed concluded:
1.
2.
3.
4.
5.
6.
90% tubular lesion in the proximal to mid
circumflex artery.
Ectatic changes involving the proximal to mid
segment
of
the
LAD,
about
30%
luminal
irregularities.
Ectatic changes, about 30% luminal irregularities
in the RCA with 40% eccentric lesion in the distal
RCA
before
the
bifurcation
into
PDA
and
posterolateral branch.
Normal LV [left ventricular] functions.
Normal hemodynamics.
Successful percutaneous coronary intervention to
the culprit left circumflex artery which is a large
caliber vessel with direct stenting of a 20mm
lesion with a 4.5/24mm VeriFlex stent deployed at
16 atmospheres. However, slow flow was noted after
the deployment of the stent with no obvious clot,
dissection or perforation.
The slow flow was
treated with Adenosine, Nipride and Nitroglycerin.
Afterwards there was TIMI-III flow with no evidence
of
side
branch
occlusion,
perforation
or
dissection.
Recommendation:
1.
Integrilin drip for 12 hours with close monitoring
of the CBC in 4 hours and after the drip is
stopped.
2.
Aspirin for life and Plavix for at least one year.
3.
Medical management of coronary artery disease.
4.
FemoStop should be applied for 5-6 hours after the
sheath is removed.
20
Dr.
(Tr. at 708.)
New Physical Evidence provided with Claimant’s Brief
On January 25, 2010, a “Discharge Summary” from St. Mary’s
Medical Center indicates that Claimant “was discharged to home” and
“given special instructions to call Dr. Chaney’s office for a
followup appointment the next week...also instructed to followup
with Marshall University Cardiology in four to six weeks on March
16, 2010.”
(CM/ECF No. 13-2 at 1.)
Carol L. Patterson, M.D.
stated:
PROCEDURES
1.
2.
3.
4.
5.
6.
Left heart catheterization.
Computerized tomography of the abdomen revealing
negative findings.
Computerized tomography of the pelvis with negative
findings.
Two-dimensional echocardiography revealing mild
mitral regurgitation. Ejection fraction of 55% to
60%.
Ultrasound of the abdomen revealing no evidence of
cholelithiasis.
Percutaneous coronary intervention to the left
circumflex with stent placement.
DISCHARGE DIAGNOSES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Non-ST-elevation myocardial infarction.
Coronary artery disease.
Jaundice.
Abdominal pain.
Hypertension.
Hyperlipidemia.
Obstructive sleep apnea.
Gastroesophageal reflux disease.
Obesity.
Tobacco abuse.
21
BRIEF HOSPITALIZATION STAY AND SUMMARY
The patient is a 45-year-old male with a past medical
history of coronary artery disease and non-ST-elevation
myocardial infarction who presented to the emergency room
with retrosternal chest pain for the previous five days.
It was lasting for a couple of minutes as a time that had
started in his back and radiated to his chest and to his
left shoulder. There was no nausea or vomiting. He did
have dyspnea and dizziness but no diaphoresis. The pain
was not similar to the pain he had had previously when he
had a myocardial infarction.
He had been to the
emergency room once and refused admission. However after
the pain resumed, he came in for a complete work up and
definitive treatment. Marshall University cardiology saw
the patient. He went to the catheterization laboratory
and had a left heart catheterization with a stent placed
into his circumflex artery. The patient tolerated this
well. Appropriate arrangements for discharge followup
were made.
(CM/ECF No. 13-2 at 2-3.)
On
April
8,
2010,
Gregory
Chaney,
M.D.
completed
the
“Physician’s Certification” section of a form titled “West Virginia
Division
of
Motor
Impaired
Person.”
Vehicles
(CM/ECF
Parking
No.
Application
13-1.)
The
for
form
Mobility
is
marked
“Permanent - Valid 1-5 years” and “Are severely limited in their
ability to walk due to arthritic, neurological, or orthopedic
condition.”
Id.
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 did not
properly evaluate the medical evidence of record, give appropriate
weight to the opinions of the treating physicians, and dutifully
develop the record regarding Claimant’s mental impairment, (2) the
22
ALJ erred in finding not Claimant to be fully credibility, (3) new,
material, and additional evidence exists to justify reversal and/or
remand.
(Pl.'s Br. at 3-11.)
The Commissioner responds that substantial evidence supports
the Commissioner’s Final Decision that Claimant was not disabled on
or before June 10, 2008 (date of ALJ’s final decision) because (1)
the ALJ properly evaluated the medical evidence of record, (2)
Claimant’s allegations of disability are not fully credible, and
(3) Claimant’s additional evidence does not warrant remand.
(Def.’s Br. at 10-15.)
Medical Source Opinions and Duty to Develop Record
Claimant argues that the ALJ did not properly evaluate the
medical evidence of record (including Claimant’s mental health
status, wherein he allegedly failed in his duty to develop the
record) and give appropriate weight to the opinions of the treating
medical sources, Drs. Chaney and Craig. (Pl.'s Br. at 7-10.)
Specifically, Claimant asserts:
It is inescapable that the ALJ erred when he failed to
articulate in a meaningful manner why he disregarded the
opinion of Gregory Chaney, M.D., the Plaintiff’s treating
physician, that the Plaintiff cannot engage in employment
(8 hours a day, 5 days a week) on a consistent basis (Tr.
368-372). Obviously, the ALJ has refused to follow the
well-accepted “Attending Physician Rule” which was
adopted by the Fourth Circuit in Mitchell v. Schweiker,
699 F.2d 185 (4th Cir. 1983).
Likewise, the ALJ erred when he failed to articulate in
a meaningful manner why he disregarded the opinion of
Paul W. Craig II, M.D., a consultative examining
physician, who stated that it is highly unlikely that the
23
Plaintiff “...would be able to reasonably work 8 hours a
day 5 days a week” (Tr. 694-697). It is disingenuous for
the ALJ to ignore the opinion of a specialist in
occupational medicine, board certified by the American
Board of Preventative Medicine (Occupational), and a
Certified Independent Medical Examiner with nearly 4,000
IME’s performed (Tr. 207-209). Obviously, Dr. Craig’s
opinion should be afforded great weight and the ALJ
should not have been allowed to substitute his own
medical opinion.
Such action by the ALJ exceeds the
parameters of his authority and expertise.
It is
ludicrous for the ALJ to state that Dr. Craig’s
assessment is not supported by specific clinical signs or
findings (Tr. 16) when Dr. Craig reviewed the Plaintiff’s
records and personally examined the Plaintiff (Tr. 694).
In a similar vein, the ALJ erred when he stated that the
Plaintiff’s depression is not severe. For some reason,
the ALJ stated that Gregory Chaney, M.D., the Plaintiff’s
treating physician, relied on “...psychological factors
which are beyond his field of expertise” (Tr. 16). If
the ALJ questioned the validity of Dr. Chaney’s opinion
regarding the Plaintiff’s anxiety and depression, he
should have ordered additional development regarding the
Plaintiff’s anxiety and depression, then he should have
ordered additional development regarding the Plaintiff’s
mental impairments.
Unfortunately, the ALJ failed to
scrupulously and conscientiously probe into, inquire of,
and explore all relevant facts....It is obvious that the
ALJ neglected his duty to properly develop the record.
The ALJ has forgotten that SSA Regulations provide that
the SSA will “...always give good reasons in [its] notice
of determination or decision for the weight [it gives the
claimant’s] treating source’s opinion” and list factors
an ALJ must consider to assess the weight to be given to
the opinion of a treating physician when the ALJ
determines that it is not entitled to “controlling
weight.”...
In the case at hand, a review of the hearing decision
reflects a total lack of analysis of the opinions of
several treating sources by the ALJ. This failure to
evaluate these treating source opinions constitutes
grounds for reversal and/or remand.
(Pl.'s Br. at 7-10.)
24
The Commissioner responds that the ALJ properly evaluated the
medical evidence of record.
(Def.’s Br. at 11-12.)
Specifically,
the Commissioner asserts:
Plaintiff’s reliance on the conclusory disability
opinions of Drs. Chaney and Craig is faulty. First and
foremost, only the opinions of a treating physician is
entitled to controlling weight. The treating source’s
opinion must also be well-explained by the evidence of
record, and consistent with other evidence of record. 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Here none of
these factors are present. Although Dr. Chaney was a
treating source, his conclusions were not well-explained
by his treatment notes, and his opinions were
inconsistent with the opinions of neurosurgeons Drs.
Baisas and Mazagri. For example, Dr. Chaney in a medical
assessment form stated that Plaintiff had reduced range
of motion in both his lumbar and cervical spines (Tr.
370).
His examinations, however, do not specify any
degrees of reduction (Tr. 455, 463, 467, 469, 471, 473,
475). Instead, neurosurgeon Dr. Mazagri concluded that,
at most, Plaintiff had only a mild reduction in only the
lumbar extension and flexion (Tr. 448).
Plaintiff’s
cervical MRI was negative (Tr. 450, 502). His EMG was
negative for radiculopathy in any extremity, and he
showed only mild carpal tunnel (Tr. 389, 503, 666).
Similarly, Dr. Craig, who examined Plaintiff once, did
not offer any clinical examination findings to justify
his opinion of disability (Tr. 694-97).
As noted by the ALJ, there is no factual support in the
record
to
corroborate
a
significant
decline
in
Plaintiff’s physical or mental functioning identified by
Drs. Chaney and Craig (Tr. 16). The explanations of both
physicians lack specific clinical examinations findings,
(Tr. 455, 463, 467, 469, 471, 473, 475, 577, 694), and
are contradicted by the EMG and MRIs conclusions (Tr.
450-51, 503), as well as the clinical examinations and
conclusions of the examining specialists (Tr. 305-08,
448-51, 538). The ALJ reasonably gave these opinions
little weight as their conclusions are not consistent
with the record as a whole nor with their evaluations
(Tr. 16).
Also, at issue is Plaintiff’s contention that the ALJ
improperly evaluated his mental health status (Pl.'s Br.
25
at 8). To the contrary, the ALJ was not persuaded by
Plaintiff’s limited complaints of depression and anxiety,
and very limited treatment (Tr. 12-13).
John Todd,
Ph.D., the state agency psychological consultant, opined
that Plaintiff’s alleged mental impairment was nonsevere, and that Plaintiff had no psychological history
of inpatient or outpatient treatment (Tr. 366).
Plaintiff confirmed at his hearing that he has never been
treated for any nervous condition or undergone any
counseling for nerves (Tr. 26). Despite requesting a
prescription for a psychotropic medication, Plaintiff
alleged no problems with mental functioning and the
examining sources failed to note any problems with
Plaintiff’s mental status (Tr. 366, 448).
Although
Plaintiff alleged a worsening of his mental status at the
April 2008 hearing, (Tr. 43), the preponderance of the
evidence indicates that limitations due to a mental
disorder are considered to be non-severe (Tr. 366). The
ALJ provided a meaningful judicial basis for the denial
of Plaintiff’s mental health claim, and consequently, the
ALJ in this case has not committed an error that warrants
setting the Commissioner’s final decision aside.
Id.
Every medical opinion received by the ALJ must be considered
in
accordance
with
the
factors
set
404.1527(d) and 416.927(d) (2010).
forth
in
20
C.F.R.
§§
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) 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) and 416.927(d)(2).
Under §§ 404.1527(d)(1) and 416.927(d)(1), more weight is
given
to
an
examiner
than
to
26
a
non-examiner.
Sections
404.1527(d)(2) and 416.927(d)(2) provide that more weight will be
given to treating sources than to examining sources (and, of
course, than to non-examining sources). Sections 404.1527(d)(2)(i)
and 416.927(d)(2)(i) state 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)
and
416.927(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.
Sections
404.1527(d)(3), (4) and (5) and 416.927(d)(3), (4), and (5) add the
factors of 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
evaluating
the
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
provide “a detailed, longitudinal picture” of a claimant’s alleged
disability.
See 20 C.F.R. § 404.1527(d)(2) (2005).
Thus, 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
27
F.
Supp.
53,
55
(W.D.
Va.
1996);
see
also,
20
C.F.R.
§
404.1527(d)(2) (2005).
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.
(5)
adds
the
factors
of
Section 404.1527(d)(3), (4), and
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).
Under § 404.1527(d)(1), more weight generally is given to an
examiner than to a non-examiner.
that
more
weight
will
be
given
Section 404.1527(d)(2) provides
to
treating
sources
than
to
examining sources (and, of course, than to non-examining sources).
The Fourth Circuit Court of Appeals has held that "a non-examining
physician's opinion cannot by itself, serve as substantial evidence
supporting a denial of disability benefits when it is contradicted
by all of the other evidence in the record."
Martin v. Secretary
of Health, Education and Welfare, 492 F.2d 905, 908 (4th Cir.
1974); Hayes v. Gardener, 376 F.2d 517, 520-21 (4th Cir. 1967).
Thus, the opinion “of a non-examining physician can be relied upon
when it is consistent with the record."
F.2d 343, 346 (4th Cir. 1986).
28
Smith v. Schweiker, 795
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) and 416.927(d)(2)(2006).
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
Commissioner’s conclusions are rational.
determine
whether
the
Oppenheim v. Finch, 495
F.2d 396, 397 (4th Cir. 1994).
In Cook v. Heckler, the Fourth Circuit noted that an ALJ has
a "responsibility to help develop the evidence."
783 F.2d 1168, 1173 (4th Cir. 1986).
Cook v. Heckler,
The court stated that “[t]his
circuit has held that the ALJ has a duty to explore all relevant
facts
and
inquire
into
the
issues
necessary
for
adequate
development of the record, and cannot rely on evidence submitted by
the claimant when that evidence is inadequate.”
Id.
The court
explained that the ALJ's failure to ask further questions and to
demand the production of further evidence about the claimant's
arthritis claim, in order to determine if it met the requirements
in the listings of impairments, amounted to a neglect of his duty
to develop the evidence.
Id.
Nevertheless, it is Claimant’s responsibility to prove to the
Commissioner that he or she is disabled.
29
20 C.F.R. §§ 404.1512(a)
and 416.912(a) (2010). Thus, Claimant is responsible for providing
medical evidence to the Commissioner showing that he or she has an
impairment.
Id. §§ 404.1512(c) and 416.912(c).
In Bowen v.
Yuckert, the Supreme Court noted:
The severity regulation does not change the
settled allocation of burdens of proof in
disability proceedings. It is true . . . that
the Secretary bears the burden of proof at
step five . . . [b]ut the Secretary is
required to bear this burden only if the
sequential evaluation process proceeds to the
fifth step. The claimant first must bear the
burden . . . of showing that . . . he has a
medically severe impairment or combination of
impairments . . . . If the process ends at
step two, the burden of proof never shifts to
the Secretary. . . . It is not unreasonable
to require the claimant, who is in a better
position to provide information about his own
medical condition, to do so.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
In an extensive eleven-page decision, the ALJ considered the
entire
record
and
made
these
findings
regarding
Claimant’s
impairments, including Claimant’s mental health status:
The claimant has the following severe impairments: obese
with shortness of breath/sleep apnea, degenerative
pathology of the cervical and lumbar spine, hypertensive
cardiovascular
disease, bilateral
varicose
veins,
elevated cholesterol and chest pain (angina).
The
claimant has not severe: depression and vision loss (new
prescription for glasses)(20 CFR 404.1520(c) and
416.920(c)).
The medical evidence indicates an April 2007 x-ray noted
cervical degenerative changes and a January 2007
pulmonary function study showing minimal obstruction
(Exhibit
33F).
Records
from
the
University
Cardiovascular Associates from August 2006 indicate that
the claimant used a CPAP successfully for severe sleep
30
apnea, the claimant had a successful stent emplacement
but did have unstable angina which was later controlled.
The claimant did have uncontrolled hyperlipidemia
(Exhibit 9F). The undersigned finds that the evidence
shows the claimant has impairments which are severe and
resolves this step in the claimant’s favor.
The claimant’s medically determinable mental impairments
of depression, considered singly and in combination, do
not cause more than minimal limitation in the claimant’s
ability to perform basic mental work activities and are
therefore non-severe.
In making this finding, the
undersigned considered the four broad functional areas
set out in the disability regulations for evaluating
mental disorders and in section 12.00C of the Listing of
Impairments (20CFR, Part 404, Subpart P, Appendix 1).
These four broad functional areas are known as the
“paragraph B” criteria.
The undersigned finds that the claimant’s symptoms, as
shown by the evidence of record, would meet the “A”
criteria of section 12. 04.
The claimant’s mental
conditions would not meet any of the listed impairment at
12.00 as shown by the following review of the “B”
criteria.
The first area of the “B” criteria, “activities of daily
living”...The claimant has not reported any restrictions
in using the accout[re]ments of daily living such as
telephones or directories.
The claimant watches
television, can take care of his personal needs, his wife
does the cooking and housecleaning, he does no yard work,
he drives, shops occasionally, visits with friends and
plays cards. The undersigned finds that the claimant has
no evidence of limitation in this area.
The
second
area
of
the
“B”
criteria,
“social
functioning”...The claimant reports he visits with
friends and plays cards. The state agency interviewer
did not note any problems upon interviewing the claimant.
The undersigned finds that the claimant has no evidence
of limitation in this area.
The third “B” criteria, “concentration, persistence and
pace”...The claimant does retain sufficient concentration
for driving, playing cards and shopping. The claimant
has not reported a specific problem in this area. The
undersigned finds that the claimant has no evidence of
31
limitation in this area.
The last area of function evaluated in the “B” criteria
is “deterioration and decompensation in work and worklike settings”...There is no evidence of record that the
claimant
has
ever
experienced
such
episodes.
Accordingly, the degree of limitation in this area is
never...
Because the claimant’s medically determinable mental
impairments cause no more than “mild” limitation in any
of the first three functional areas and “no” limitation
in the fourth area, they are non-severe (20 CFR
404.1520a(d)(1) and 416.920a(d)(1)).
(Tr. at 11-13.)
Regarding the opinions of the treating medical sources, Drs.
Chaney and Craig, the ALJ made these findings:
As for the opinion evidence, the state agency consultants
found that the claimant would be restricted to the light
exertional range (Exhibits 10F and 5F). Gregory Chaney,
MD found that the claimant was restricted to sedentary
exertion (Exhibit 19F).
However, Dr. Chaney’s notes
indicate that he relied partly on psychological factors
which are beyond his field of expertise. Also Dr. Chaney
emphasizes the claimant’s back complaints but the
claimant has shown no signs of neurologic deficits. The
medical evidence is consistent with complaints which have
required conservative treatment only. The undersigned
does not find that these restrictions are not persuasive
(20 CRF 404.1527 and 416.927). Dr. Craig noted that the
claimant could lift 10-15 pounds which is more than
sedentary and less than light (Exhibit 35F). However,
Dr. Craig’s assessment is not supported by specific
clinical signs or findings. The evidence overall shows
only
conservative
treatment
for
musculoskeletal
complaints, the claimant’s heart condition has not shown
further symptoms and the claimant is not noted to have
any further unstable conditions. The undersigned does
not find that this assessment is persuasive (20 CRF
404.1527 and 416.927). The undersigned finds that the
claimant’s back condition and carpal tunnel syndrome have
shown only limited signs and findings in the evidence and
the claimant’s other complaints have been noted to be
stable under effective treatment. The undersigned finds
32
in favor of the state agency assessment to light exertion
but will assign additional restrictions for the
claimant’s specific complaints.
(Tr. at 16.)
With
respect
to
Claimant’s
argument
that
the
ALJ
gave
insufficient weight to Drs. Chaney and Craig’s opinions and “failed
to articulate in a meaningful manner why he disregarded their
opinion” and “substituted his own medical opinion,” the court finds
that the ALJ properly considered the treating and consulting
physicians’ opinions in keeping with the applicable regulations,
case law, and social security ruling (“SSR”) and that his findings
are supported by substantial evidence.
In order for a treating
physician’s opinion to be given controlling weight it must be
supported by clinical and laboratory diagnostic techniques and not
be inconsistent with other substantial evidence.
In the subject
claim, Drs. Chaney and Craig failed to provide factual support and
specific clinical examination findings to support their reported
decline in Claimant’s physical functioning.
The ALJ reasonably
gave these opinions little weight as their conclusions are not
consistent with the record as a whole nor with their evaluations
(Tr. 16).
With respect to Claimant’s argument that the ALJ failed in his
duty to develop the record regarding Claimant’s mental status and
inappropriately found that Dr. Chaney’s diagnosis of anxiety/
depression to be beyond his field of expertise, which required the
33
ALJ to order additional development regarding the Plaintiff’s
mental impairments, the court finds ALJ properly considered the
medical evidence of record, including the opinions of Dr. Chaney,
in keeping with the applicable regulations, case law, and social
security ruling (“SSR”) and that his findings are supported by
substantial evidence.
The state agency psychological consultant
opined that Claimant’s alleged mental impairment was non-severe,
and that Claimant had no psychological history of inpatient or
outpatient treatment. (Tr. at 366.)
Claimant confirmed at the
April 25, 2008 hearing that he has never been treated for or
received counseling for anxiety or depression. (Tr. at 26).
Although the ALJ has a duty to fully and fairly develop the record,
he is not required to act as plaintiff’s counsel.
Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994).
Clark v.
Claimant bears the
burden of establishing a prima facie entitlement to benefits.
See
Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); 42 U.S.C.A.
§ 423(d)(5)(A)(“An individual shall not be considered to be under
a disability unless he furnishes such medical and other evidence of
the existence thereof as the Commissioner of Social Security may
require.”)
Similarly,
he
or
she
“bears
the
risk
of
non-
persuasion.” Seacrist v. Weinberger, 538 F.2d 1054, 1056 (4th Cir.
1976).
Credibility
Claimant next argues that the ALJ erred when he failed to
34
properly consider Claimant’s credibility.
(Pl.'s Br. at 5-7.)
Specifically, Claimant asserts:
[i]t is the Plaintiff’s assertion that his testimony is
entitled to full credibility because his exertional and
non-exertional impairments are disabling in nature.
Obviously, the ALJ erred when he found the Plaintiff’s
credibility “...to be only fair” (Tr. 15). It is the
Plaintiff’s position that because his allegations and the
medical evidence of record are mutually supportive then
the exacting requirements of the Social Security
Disability Reform Act of 1984 are met. This “mutually
supportive test” was recognized in Coffman v. Bowen, 829
F.2d 514 (4th Cir. 1987), and should be applied in the
instant case to allow the Plaintiff the ability to
satisfy the rigors of 42 U.S.C. §423(d)(5)(A)...
In the case at hand, the assessment of the Plaintiff’s
credibility is of utmost importance in as much as the
Vocational Expert testified that the Plaintiff cannot
engage in substantial gainful activity if his testimony
is given full credibility (Tr. 51)...
Going further, the Plaintiff specifically relies on the
decision of Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989),
which holds that while there must be some condition that
can reasonably be expected to produce pain, there need
not be objective evidence of the pain itself or its
intensity. In fact, the holding of Hines v. Barnhart,
453 F.3d 559 (4th Cir. 2006), would allow the Plaintiff
to rely exclusively on subjective complaints of pain.
Such is not the case in this matter in as much as
substantial objective evidence of disabling pain exists
to support the Plaintiff’s allegations. Unquestionably,
the evidence exceeds the requirements of Walker and Hines
and dictates a favorable finding for the Plaintiff.
Id.
The Commissioner responds that the ALJ properly evaluated
Claimant’s credibility and subjective complaints.
12-14.)
(Def.’s Br. at
Specifically, the Commissioner asserts:
Plaintiff’s claim for disability is flawed because
Plaintiff’s credibility is “fair” (Tr. 15). An example
35
of Plaintiff’s lack of credibility is illustrated by the
circumstances of his work stoppage, which are unclear and
inconsistent (Tr. 15). Another example of Plaintiff’s
diminished credibility is exposed by the successful
treatment he experienced that restored his health and
ability to work. Plaintiff claimed that he was disabled
due to shortness of breath and sleep apnea, but his
breathing was much improved with sinus surgery; apnea was
controlled with a CPAP or BiPAP machine; and his
pulmonary function tests were repeatedly normal (Tr. 232,
240, 276-78, 339-43, 428, 445, 507-08).
Plaintiff’s
subjective complaints were not corroborated by the
objective medical evidence of record.
Credibility is very important in disability cases due to
the secondary motive of gaining benefits.
An ALJ is
required to evaluate a claimant’s credibility, and the
ALJ’s evaluation is entitled to great weight...
Considering the many inconsistencies pointed out in the
body of this brief and those in the ALJ’s decision, the
ALJ reasonably concluded that Plaintiff was not fully
credible, as the objective medical evidence does not
support Plaintiff’s allegations (Tr. 15)...
It is undisputed that Plaintiff voluntarily stopped
working unrelated to a physical or mental impairment, but
rather because he moved to a different state (Tr. 29).
Moreover, his allegations of disabling impairments are
not fully credible or supported by the evidence of
record. Plaintiff’s allegations of disability simply do
not correspond with his treatment record. The evidence
reveals that Plaintiff’s impairments did not preclude him
from performing all work, rather Plaintiff could perform
a range of light and sedentary work.
Therefore,
substantial evidence supports the ALJ’s finding that
Plaintiff could perform work that exists in significant
numbers in the national economy and is not disabled.
Id.
Social Security Ruling 96-7p clarifies when the evaluation of
symptoms, including pain, under 20 C.F.R. §§ 404.1529 and 416.929
requires
a
finding
about
the
credibility
of
an
individual's
statements about pain or other symptom(s) and its functional
36
effects; explains the factors to be considered in assessing the
credibility of the individual's statements about symptoms; and
states the importance of explaining the reasons for the finding
about the credibility of the individual's statements.
The Ruling
further directs that factors in evaluating the credibility of an
individual's statements about pain or other symptoms and about the
effect the symptoms have on his or her ability to function must be
based on a consideration of all of the evidence in the case record.
This includes, but is not limited to:
-
The medical signs and laboratory findings;
-
Diagnosis,
prognosis,
and
other medical
opinions provided by treating or examining
physicians or psychologists and other medical
sources; and
-
Statements and reports from the individual and
from
treating
psychologists
or
and
examining
other
physicians or
persons
about
the
individual's medical history, treatment and
response, prior work record and efforts to
work, daily activities, and other information
concerning the individual's symptoms and how
the symptoms affect the individual's ability
to work.
The
ALJ
wrote
a
very
thorough
37
evaluation
of
Claimant’s
impairments
and
the
medical
Claimant’s daily activities.
evidence
of
(Tr. at 18-30.)
record,
including
The ALJ made these
specific findings regarding Claimant’s credibility:
The Claimant reports that he has varicose veins, feels
out of breath, his muscles and joints ache and he has
sleep apnea.
He states he has aching pain, it is
continuous, radiates to the hip, has headaches, arm and
hand pain and numbness and has had a “heart attack.” He
indicates he has high cholesterol, high blood pressure,
sinus problem and states he is tired all the time. He
notes that eating, walking and exercise worsens his pain.
He uses a CPAP device for apnea. The claimant indicates
that he is taking Metoprolol, Lodrane, Acevacid,
Lisinopril, Plavis, Bayer, Colace, Lolestipal, Lortab,
Nitroglycerin, Fish Oil, Flaxseed Oil, Paxil, Nasonex,
Colestid, Flonase, Advair, Zoloft, Toprol, Laocal,
Rhinocort, Prinivil and Aspirin.
The claimant has indicated that he can lift 5 pounds,
walk 100 feet or 2 blocks, stand 30 minutes, sit 30-45
minutes and has difficulty reaching, squatting and
sitting. He states that he watches television, can take
care of his personal needs, his wife does the cooking and
housecleaning, he does no yard work, he drives, shops
occasionally, visits with friends and plays cards.
I find the claimant’s credibility to be only fair. The
medical evidence indicates the claimant has complained of
back pain but has no record of related hospital care
other than MRI testings. He has had only conservative
treatment for his back complaints without surgery. The
claimant has not yet had surgery for his varicose veins.
Likewise the claimant has not been noted to have
undergone any surgery for his complaints of carpal tunnel
syndrome, it is a recent complaint and lacks any clinical
signs.
Though the claimant had sought treatment for
apnea near his onset date in recent years he has not.
Since the claimant’s sinus nasal septum surgery the
claimant has not shown significant cardiac complications
forever. The claimant did smoke 2 packs of cigarettes a
day until December 2006, well after his onset date and
pulmonary function studies have been normal.
The
claimant has not shown further problems after heart
surgery and though he was noted to have angina although
this problem was not noted to have recurred in later
38
notes. The claimant has not complained of side effects
from his medication or that they are ineffective. The
claimant has reported using a CPAP, which is effective,
in treating his apnea but has not reported using any
other aides such as a brace or cane. The claimant did
engage in medium-to-heavy exertion up to his onset date
and it is not clear what prevented the claimant from work
at this point. The claimant notes heart complaints but
these were not considered a problem until later and the
claimant likewise did not have serious back problems at
this point. The claimant reported being sleepy all the
time but he did not indicate that this restricted his
driving or caused him difficulty. The claimant reported
in his testimony that he could lift anything though he
reported in the evidence that he could lift 5 pounds
(Exhibit 7E). The undersigned finds that the claimant is
able to perform an adequate range of daily activities.
Given all of the above, the undersigned finds that the
allegations of disabling pain are deemed excessive, not
fully credible, and are treated accordingly.
(Tr. at 14-15.)
In
his
decision,
the
ALJ
determined
that
Claimant
had
medically determinable impairments that could cause his alleged
symptoms.
(Tr. at 15.)
consideration
of
The ALJ’s decision contains a thorough
Claimant’s
daily
activities,
the
location,
duration, frequency, and intensity of Claimant’s pain and other
symptoms,
precipitating
and
aggravating
factors,
Claimant’s
medications, and treatment other than medication. (Tr. at 14-16.)
The ALJ explained his reasons for finding Claimant not entirely
credible, including objective findings, Claimant’s treatment, the
lack of evidence of side effects which would impact Claimant’s
ability to perform work at sedentary exertional levels, limited by
an inability to perform more than simple, easy-to-learn unskilled
work, and her abundant self-reported daily activities. Id.
39
With respect to Claimant’s argument that the ALJ wrongfully
discredited Claimant’s credibility, the court finds that the ALJ
properly weighed Claimant’s subjective complaints of pain and his
credibility in keeping with applicable regulations, case law, and
Social Security Ruling (“SSR”) and that his findings are supported
by substantial evidence.
20 C.F.R. §404.1529(b)(2006; SSR 96-7p,
1996 WL 374186 (July 2, 1996); Craig v. Chater, 76 F.3d 585, 594
(4th
Cir.
1996).
The
ALJ
found
that
Claimant’s
subjective
complaints simply were not corroborated by the objective medical
evidence of record.
The ALJ is required to evaluate a claimant’s
credibility, and the ALJ’s evaluation is entitled to great weight.
Social Security Ruling 95-5p.
Additional Evidence
Claimant next argues that “[n]ew, material, and additional
evidence exists to justify reversal and/or remand in this case.”
(Pl.'s Br.
at
10.)
Specifically,
Claimant states
that
evidence is:
1.
Parking Application for Mobility Impaired Person,
dated 4-8-10, completed by the Plaintiff’s treating
physician, Gregory Chaney, M.D., which reflects
that the Plaintiff is severely limited in his
ability to walk (Attached hereto as “Exhibit A”).
2.
Discharge Summary, dated 01/25/2010, from St.
Mary’s
Medical
Center
which
reflects
the
Plaintiff’s recent left heart catheterization with
stent
placement
into
his
circumflex
artery
(Attached hereto as “Exhibit B”).
(Pl.'s Br. at 10.)
40
this
The Commissioner responds that the additional evidence does
not warrant remand.
Specifically, the Commissioner states:
Plaintiff attached a disabled parking application dated
and signed by Dr. Chaney on April 8, 2010, stating that
Plaintiff was severely limited in his ability to walk,
and a January 25, 2010, discharge summary reflecting a
cardiac procedure to his brief.
These additional
documents do not prove that the ALJ’s June 10, 2008,
decision was not supported by substantial evidence, and
do not merit remand. In order to obtain a new evidence
remand, the evidence submitted must be new and material
and there must be good cause for the claimant’s failure
to submit the evidence during the administrative
proceedings. 42 U.S.C. §405(g). * * *
In addition, the additional documents are not material
because they do not relate to the relevant time period
and would not reasonably changed the ALJ’s decision. See
Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985).
The question before a reviewing court is not whether an
alternative decision could have been supported, but
whether the final agency decision was supported by
substantial evidence. In other words, the issue is “not
whether [the claimant] is disabled, but whether the ALJ’s
finding that he is not disabled is supported by
substantial evidence and was reached based upon a correct
application of the relevant law.” Craig, 76 F.3d at 589.
If the final agency decision is supported by substantial
evidence, the reviewing court must affirm even if it
would have decided the case differently. Richardson, 402
U.S. at 401; Blalock, 483 F.2d at 775. According, the
additional evidence is not material and cannot be the
basis of a remand. See 20 C.F.R. §404.620(a)(2)
(2007)(providing that the remedy for a claimant who
thinks he meets the requirements for disability only
after the period in which his application was in effect,
i.e., after the ALJ’s decision, is to file a new
application).
(Def.’s Br. at 14-15.)
Claimant has moved this court, pursuant to the sixth sentence
of 42 U.S.C. § 405(g), to remand his claim to the administrative
level for consideration of new evidence.
41
In considering Claimant's motion to remand, the court notes
initially that the social security regulations allow two types of
remand. Under the fourth sentence of 42 U.S.C. § 405(g), the court
has the general power to affirm, modify or reverse the decision of
the Commissioner, with or without remanding the cause for rehearing
for further development of the evidence.
42 U.S.C. § 405(g);
Melkonyan v. Sullivan, 501 U.S. 89, 97 (1991).
Where there is new
medical evidence, the court may remand under the sixth sentence of
42 U.S.C. § 405(g) based upon a finding that the new evidence is
material and that good cause exists for the failure to previously
offer the evidence. 42 U.S.C. § 405(g); Melkonyan, 501 U.S. at 97.
The Supreme Court has explicitly stated that these are the only
kinds of remand permitted under the statute.
Melkonyan, 501 U.S.
at 98.
In order to justify a remand to consider newly submitted
medical evidence, the evidence must meet the requirements of 42
U.S.C. § 405(g) and Borders v. Heckler, 777 F.2d 954, 955 (4th Cir.
1985).1
In Borders, the Fourth Circuit held that newly discovered
1
Within relevant case law, there is some disagreement as to whether 42
U.S.C. § 405(g) or the opinion in Borders provides the proper test in this
circuit for remand of cases involving new evidence. This court will apply the
standard set forth in Borders in accordance with the reasoning previously
expressed in this district:
The court in Wilkins v. Secretary of Dep't of Health &
Human Servs., 925 F.2d 769 (4th Cir. 1991), suggested
that the more stringent Borders four-part inquiry is
superseded by the standard in 42 U.S.C. 405(g). The
standard in § 405(g) allows for remand where "there is
new evidence which is material and . . . there is good
cause for the failure to incorporate such evidence
42
evidence
may
warrant
prerequisites are met:
a
remand
to
the
Commissioner
if
four
(1) the evidence is relevant to the
determination of disability at the time the application was first
filed and not simply cumulative; (2) the evidence is material to
the extent that the Commissioner's decision “might reasonably have
been different” had the new evidence been before him; (3) there is
good cause for the claimant's failure to submit the evidence when
the claim was before the Commissioner; and (4) the claimant has
presented to the remanding court “at least a general showing of the
nature” of the newly discovered evidence.
Id.
After a review of the “new evidence” provided by Claimant, the
court finds that these two additional documents are not material
because they do not relate to the relevant time period and would
not reasonably have changed the ALJ’s decision per the requirements
of Borders.
It is noted that the evidence marked “Exhibit B” is
essentially the same information provided to the Appeals Council on
February 9, 2010. (Tr. at 698-710.)
It is further noted that per
20 C.F.R. §404.620(a)(2) (2010), the remedy for a claimant who
thinks he or she meets the requirements for disability only after
into the record in a prior proceeding." However,
Borders has not been expressly overruled. Further,
the Supreme Court of the United States has not
suggested that Borders' construction of § 405(g) is
incorrect. Given the uncertainty as to the contours
of the applicable test, the Court will apply the more
stringent Borders inquiry.
Brock v. Secretary, Health and Human Servs., 807 F. Supp. 1248, 1250 n.3
(S.D.W. Va. 1992) (citations omitted).
43
the period in which his application was in effect, i.e., after the
ALJ’s decision, is to file a new application.
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 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: September 7, 2011
44
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