Richardson v. Colvin
Filing
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MEMORANDUM OPINION & ORDER adopting and incorporating the 16 Proposed Findings and Recommendations of the Magistrate Judge; affirming the Commissioner's final decision; granting judgment in favor of the Commissioner; and directing that this civil action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 8/12/2015. (cc: counsel of record; United States Magistrate Judge) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TONY KEITH RICHARDSON,
Plaintiff,
v.
Civil Action No: 2:14-13354
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
MEMORANDUM OPINION & ORDER
The plaintiff, Tony Keith Richardson, instituted this
action under 42 U.S.C. § 405(g) on March 27, 2014, seeking
judicial review of the Commissioner’s final decision denying his
application for disability insurance benefits.
Richardson and
the Commissioner have each moved for judgment on the pleadings.
By standing order this action was referred to the Honorable
Cheryl A. Eifert, United States Magistrate Judge, who filed her
Proposed Findings and Recommendation (“PF&R”) on May 18, 2015.
The PF&R recommends that the court deny Richardson’s motion,
grant the Commissioner’s motion, affirm the Commissioner’s
decision, and dismiss this case.
Richardson filed three
objections on June 1, 2015; the court will assess each under a
de novo standard.
28 U.S.C. § 636(b)(1)(C).
First, Richardson asserts that the administrative law
judge (“ALJ”) failed to properly observe the “treating physician
rule” when assessing the opinion of Dr. Matthew Ranson.
Under the treating physician rule, an ALJ must
generally give more weight to the medical opinions of a
claimant’s treating physician when determining whether a
claimant is disabled.
See 20 C.F.R. § 416.927(c); Russell v.
Comm'r of Soc. Sec., 440 F. App’x 163, 164 (4th Cir. 2011).
In
fact, opinions concerning the “nature and severity” of a
claimant’s impairments are to be given “controlling weight” if
they are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and [ ] not inconsistent with
the other substantial evidence in [the claimant's] case
record[.]”
20 C.F.R. § 416.927(c)(2).
Even if a treating physician’s opinion is ultimately
adjudged not to be entitled to controlling weight, our court of
appeals has explained, and the magistrate judge observed, that
“the value of the opinion must be weighed and the ALJ must
consider: (1) the physician's length of treatment of the
claimant, (2) the physician's frequency of examination, (3) the
nature and extent of the treatment relationship, (4) the support
of the physician's opinion afforded by the medical evidence of
record; (5) the consistency of the opinion with the record as a
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whole[,] and (6) the specialization of the treating physician.”
Burch v. Apfel, 9 F. App'x 255, 259–60 (4th Cir. 2001) (citing
20 C.F.R. § 404.1527).
In this case, Richardson’s treating physician, Dr.
Ranson, completed a Medical Source Statement of Ability to do
Work-Related Activities (the “Source Statement”).
The Source
Statement is essentially a fillable form that prompts the
physician to rate or characterize the extent to which the
claimant’s impairments manifest limitations in exertional and
postural abilities, plus tolerance to a variety of environmental
factors.
In it Dr. Ranson opined that Richardson was capable of
occasionally and frequently lifting and/or carrying 10 pounds,
and capable of standing and/or walking for at least 2 hours in
an 8-hour workday, provided that he periodically alternated
sitting and standing to relieve pain or discomfort.
Dr. Ranson
also checked a box on the Source Statement indicating that
Richardson had pushing and pulling limitations; but he did not
specify whether the limitations manifested in the upper or lower
extremities and he did not describe the extent of the
limitations, as directed by the form.
And when prompted by the
form to explain what medical/clinical findings supported those
exertional limitations, Dr. Ranson stated only “MRI findings &
physical [illegible].”
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As for Richardson’s postural limitations, Dr. Ranson
stated that he could occasionally climb ramps, stairs, ladders,
ropes, or scaffolds; occasionally balance, kneel, crouch, and
stoop; but never crawl.
Dr. Ranson also noted that Richardson’s
ability to reach in all directions was limited but that he could
do so occasionally.
Finally, Dr. Ranson also opined that
Richardson should limit his exposure to humidity/wetness,
hazards, and vibrations, but provided no explanation of the
medical or clinical findings that supported that recommendation.
The ALJ recounted the contents of Dr. Ranson’s Source
Statement, but gave it “little weight,” finding it simply
“inconsistent with other evidence of record.”
As the magistrate
judge rightly observed in her PF&R, such blithe consideration of
a treating physician’s opinion is woefully inadequate and
plainly inconsistent with the treating physician rule.
Yet
while the ALJ failed to properly weigh Dr. Ranson’s opinion, its
potential impact was fully explored and accounted for during
questioning with the vocational expert.
During Richardson’s
hearing, the ALJ questioned the vocational expert as follows:
Q: “What I’d like you to do now, Mr. Tanzey, is to assume
an individual the claimant’s age, education, and work
history, who can perform work at the sedentary level who
can stand and walk for two hours and sit for six hours
in an eight-hour workday; who requires the option to
alternate sitting and standing at will; who can
occasionally climb ramps and stairs, but never ladders,
ropes or scaffolds; who can occasionally balance, stoop,
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kneel, and crouch, but never crawl; and who must avoid
concentrated -- who can occasionally -- also can
occasionally reach; and who must avoid concentrated
exposure to vibration, humidity, wetness and hazards
such as moving machinery and unprotected heights. Would
there be jobs that an individual with these limitations
could perform?
A: Yes, sir. Your Honor, before I give those positions
-- [. . .] the Dictionary of Occupational Titles does
not factor in a sit-stand option, and my testimony will
be based upon my personal job analysis as well as
reviewing and studying publications by other vocational
experts. Your honor, with your hypothetical number two,
all three positions that I mentioned [those being,
stationary guard, information clerk, and shipping and
receiving router] in the sedentary classification would
remain with hypothetical number two.”
Q: If I added to that, that it also would be a job that
would accommodate the use of a handheld assistive
device, namely, a cane, what would your answer be to
that?
A: Your honor, all three of those positions would still
remain.
Richardson’s attorney thereafter followed up with his own
questions, producing this colloquy:
Q: Let’s take it back to the first hypothetical, and
then we’ll interpose on top of the hypothetical that the
individual could only occasionally lift up to 10 pounds.
. . . The individual’s ability to push, pull in all
extremities is affected, but the individual could not
reach in all directions similar to the PRFCA by Dr.
Ranson. What would that do, if anything, to the jobs
you listed in number one?
A. All three of the positions in the light [exertion
category] would be eliminated; however, all three of the
positions in the sedentary would remain.
In other words, even when the vocational expert was asked to
assume the truth of every limitation Dr. Ranson identified, he
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was still able to conclude that Richardson was capable of
working.
The ALJ noted this in his decision, observing that
“the attorney and I each gave [the vocational expert]
hypothetical questions with the residual functional capacity
based on [Dr. Ranson’s Source Statement]; the vocational expert
was still able to identify jobs such an individual could
perform.”
In sum, assuming Dr. Ranson’s opinion had been given
controlling weight -- as it implicitly was during the
hypothetical colloquies -- the vocational expert would
nevertheless have concluded that Richardson retained the ability
to work and that he was therefore not disabled.
Accordingly,
any failure by the ALJ to properly weigh Dr. Ranson’s opinion
was harmless, as the magistrate judge properly concluded.
*
The plaintiff’s second objection must be rejected for
the same reason.
Richardson complains that the limitations
identified by Dr. Ranson, combined with the fact that he was
nearly fifty years old at the time of the ALJ’s decision,
necessarily dictated a finding that he was disabled.
For one
thing, Richardson didn’t make that argument to the magistrate
judge.
But even if he had, the vocational expert testified that
there were still jobs available for a hypothetical individual of
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“the claimant’s age” with each of the limitations identified in
Dr. Ranson’s Source Statement.
As a result, Richardson’s second
objection lacks merit.
*
Finally, Richardson objects to the ALJ’s conclusion
that his severe chronic back pain did not meet or exceed the
criteria listed in 20 C.F.R. Part 404, Subpart P, App. 1, §
1.04A (otherwise known as “Listing 1.04”).
“The Social Security Administration has promulgated
regulations containing listings of physical and mental
impairments which, if met, are conclusive on the issue of
disability.
A claimant is entitled to a conclusive presumption
that he is impaired if he can show that his condition ‘meets or
equals the listed impairments.’”
Radford v. Colvin, 734 F.3d
288, 291 (4th Cir. 2013) (internal quotation marks and citation
omitted).
As relevant here, a “claimant is entitled to a
conclusive presumption that he is disabled if he can show that
his disorder results in compromise of a nerve root or the spinal
cord.”
Id. (citing Listing 1.04).
he meets the criteria of § 1.04A.
The claimant contends that
The § 1.04A “criteria a
claimant must meet or equal to merit a conclusive presumption of
disability arising out of compromise of a nerve root or the
spinal cord” are:
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[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of
the lower back, positive straight-leg raising test
(sitting and supine)[.]
Id. (quoting 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A
(some internal alterations omitted)).
The ALJ observed that Richardson was suffering from
lower back pain potentially brought on by degenerative disc
disease, protruding or herniated discs, and stenosis.
He also
noted that Richardson had a positive straight-leg raising test.
But the ALJ also pointed out that two nerve conduction studies
of Richardson’s lower extremities came back normal or “within
normal limits,” that multiple doctors over time observed
Richardson’s extremities were strong and without atrophy, and
that straight-leg raising tests administered to Richardson on
other occasions had been negative.
While the claimant need not
have had all of the § 1.04A characteristics simultaneously, he
is not shown to have had at least reflex loss at any time.1
Indeed, as the magistrate judge noted, even Dr.
Werthammer, the neurosurgeon who diagnosed Richardson with
1
In particular, the court notes the claimant’s visit to the
Boone County Emergency Department on April 16, 2012. The record
indicates his reflexes were within normal limits on that date.
(See Admin. Rec. at 1098).
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diminished sensation and slightly decreased strength in the
right leg, described his “muscle bulk and tone” as normal and
did not identify any reflex loss.
Consequently, the magistrate
judge’s recommendation to affirm the ALJ’s finding that
Richardson’s condition did not meet or exceed the criteria in
Listing 1.04A is well taken.
In fact, it’s not even clear that Richardson objects
to the magistrate judge’s recommendation so much as the manner
in which she reached it.
He “objects to Magistrate Eifert’s
analysis of the alleged effects of a Herniated Disc found on
page 43 of the [PF&R],” and in particular the source cited in
footnote 2, complaining that the magistrate improperly relied on
materials outside the record.
See Pl.’s Objections at 3.
In
that footnote, the magistrate judge cited to information
contained in the National Institute of Health’s National Library
of Medicine for the proposition that herniated discs and spinal
stenosis do not necessarily produce accompanying symptoms.
at 43 n.2.
PF&R
The magistrate judge did not rely on the cited
material to conclude that those conditions can never meet or
exceed the criteria in Listing 1.04A, but rather to demonstrate
that the presence of those diagnoses alone is not sufficient to
demonstrate nerve root compression.
See PF&R at 43-44
(“Claimant’s MRI findings, alone, do not establish nerve root
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compression of sufficient severity to meet Listing 1.04A.”).
Ultimately, however, the magistrate judge concluded that the
ALJ’s decision with respect to Listing 1.04A was justified
because Richardson did not establish all four of the symptoms of
nerve compression required by that Listing.
See PF&R at 45.
Accordingly, the plaintiff’s third objection is overruled.
*
For the foregoing reasons, and having reviewed de novo
those portions of the record to which objection is made, the
court ORDERS:
1.
That the PF&R be, and hereby is, adopted and
incorporated herein;
2.
That the Commissioner’s final decision be, and hereby
is, affirmed;
3.
That judgment be, and hereby is, granted in favor of
the Commissioner; and
4.
That this civil action be, and hereby is, dismissed
and stricken from the docket.
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The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and the
United States Magistrate Judge.
DATED: August 12, 2015
John T. Copenhaver, Jr.
United States District Judge
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