Gibson v. Berryhill
Filing
14
MEMORANDUM OPINION denying Plaintiff's #12 Brief In Support of Judgment on the Pleadings; granting defendant's #13 Brief In Support of Judgment on the Pleadings; the final decision of the Commissioner is affirmed and this matter is dismissed from the docket of this Court. Signed by Magistrate Judge Dwane L. Tinsley on 3/31/2017. (cc: attys) (tmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOURTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
REGINA GAIL GIBSON,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-cv-12154
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the final decision of the Commissioner of Social
Security denying the Plaintiff=s applications for disability insurance benefits (DIB) and
supplemental security income (SSI) under the Social Security Act. The parties consented to the
undersigned United States Magistrate Judge ordering the entry of final judgement. Presently
pending before this Court are Plaintiff’s Brief in Support of Judgment on the Pleadings (ECF No.
12) and Defendant’s Brief in Support of Defendant’s Decision (ECF No. 13).
On November 18, 2011, Regina Gail Gibson (Claimant) filed an application for DIB and
SSI alleging disability as of January 27, 2012.1 The Commissioner of Social Security (Defendant)
denied Claimant’s applications initially on February 17, 2012 and on reconsideration June 11,
2012. Claimant requested a hearing before an Administrative Law Judge (ALJ) on July 10, 2012.
On December 10, 2013, an ALJ presided over the hearing in Charleston, West Virginia. On March
7, 2014, the ALJ issued a decision finding Claimant not disabled under the Act. On March 26,
In Claimant’s applications for DIB and SSI, she asserted an alleged disability onset date of August 1, 2011. By letter
dated March 27, 2013, Claimant amended her alleged onset date to January 27, 2012.
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2014, Plaintiff timely filed a request for review by the Appeals Council. On June 16, 2015, the
Appeals Council issued a final decision denying Plaintiff’s request for review. Thereafter,
Claimant filed the instant civil action.
Claimant’s Background
Claimant was born on March 3, 1963. On the date of the hearing she was 50 years old. She
received her GED and has a “two-year equivalent, an associate’s degree, in data processing with
emphasis on accounting” (Tr. at 62). Claimant’s 21 year old son with alleged intellectual
impairment lives with Claimant (Tr. at 78-79). She has a daughter that lives in Florida (Tr. at
81). Claimant has a driver’s license (Tr. at 80).
Standard of Review
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 "sequential evaluation" for the adjudication of
disability claims. 20 C.F.R. ' 404.1520 (2015). 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 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.
Id. ' 404.1520(d). If it does, the claimant is found disabled and awarded
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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) (2015). 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 case, the ALJ determined that Claimant has not engaged in substantial gainful
activity since January 27, 2012, the amended alleged onset date (Tr. at 24). The ALJ found that
Claimant has the severe impairments of osteoarthritis, status post reconstructive surgery left ankle,
tenosynovitis, plantar fasciitis, heel spur syndrome with bursitis and gastrocnemius equinus
contracture, status-post right foot lipoma, degenerative disc disease, lumbargo, fibromyalgia,
carpal tunnel syndrome and impingement syndrome right shoulder (Tr. at 24-25). Under the
second step, the ALJ found that Claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments (Tr. at
28). The ALJ found that Claimant has the residual functional capacity to perform light work except
she can perform occasional balancing, stooping, kneeling, crouching, climbing ramp and stair,
ladders, ropes and scaffolding. She would be limited to frequent handling, fingering, feeling with
the bilateral upper extremities and frequent overhead reaching with the right upper extremity,
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dominant side. (Id.) The ALJ held that Claimant is capable of performing past relevant work as
a daycare center worker, cashier/concession stand and as a children’s attendant (Tr. at 36). The
ALJ held that “there are jobs that exist in significant numbers in the national economy that the
claimant can also perform” (Tr. at 37). Upon this basis, the ALJ denied Claimant’s applications
for DIB and SSI.
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.=
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. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless,
the courts Amust 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.
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The Medical Record
The Court has reviewed all evidence of record, including the medical evidence of record,
and will discuss it further below as it relates to Claimant’s arguments.
Claimant=s Challenges to the Commissioner=s Decision
Claimant asserts that the ALJ did not adequately address and analyze the combined effect
of Claimant’s impairments and failed to consider all of Claimant’s limitations in the RFC (ECF
No. 12). Claimant argues that the ALJ did not adequately address Claimant’s obesity and diabetes
mellitus. Claimant avers that the ALJ failed to properly assess Claimant’s credibility and to
reference or discuss the opinion of Dr. Lana Hofeldt. (Id.) In response, Defendant asserts that the
ALJ properly considered the combined effects of Claimant’s impairments (ECF No. 13).
Defendant avers that the ALJ properly assessed Claimant’s credibility and correctly addressed the
emergency room record for Claimant’s temporary exacerbation of back pain.
RFC
After step three of the ALJ's sequential analysis, but before deciding whether a claimant
can perform past relevant work at step four, the ALJ must determine the claimant's RFC. An
individual's RFC is the capacity an individual possesses despite the limitations caused by physical
or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p. The RFC is based on
all relevant medical and other evidence in the record and may include a claimant's own description
of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p.
"[T]he residual functional capacity 'assessment must first identify the individual's functional
limitations or restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d at 636 (quoting
S.S.R. 96-8p). Where a claimant has numerous impairments, including non-severe impairments,
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the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. §
423(d)(2)(B); see Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an
individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ
must consider the combined effect of a claimant's impairments.") (citations omitted).
The claimant's RFC must incorporate impairments supported by the objective medical
evidence in the record, as well as those impairments based on the claimant's credible complaints.
Carter v. Astrue, 2011 WL 2688975, at *3 (E.D.Va. June 23, 2011); accord 20 C.F.R. §
416.945(e). The ALJ's RFC "assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations)." Id. (citing SSR 96-8p).
The Court will uphold the ALJ's RFC findings if substantial evidence in the record supports
the findings and the ALJ has applied the correct legal standards in reaching them. Hancock v.
Astrue, 667 F.3d 470, at 472 (4th Cir. 2012). "A necessary predicate to engaging in substantial
evidence review is a record of the basis for the ALJ's ruling. The record should include a discussion
of which evidence the ALJ found credible and why, and specific application of the pertinent legal
requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir.2013). The
Court will "remand to the agency for additional investigation or explanation when we cannot
evaluate the record of the basis that underlies the ALJ's ruling." Fox v. Colvin, 632 Fed.Appx. 750,
754 (4th Cir.2015) (quoting Radford, 734 F.3d at 295).
The responsibility for determining a claimant’s residual functional capacity rests with the
ALJ. 20 C.F.R. § 404.1546(c). “[T]he adjudicator’s assessment of an individual’s RFC may be
the most critical finding contributing to the final determination or decision about disability.” SSR
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No. 96-5p. An RFC assessment is “based on consideration of all relevant evidence in the case
record.”
The Fourth Circuit has held “Although we could guess what these occupations require in
reality, it is the purview of the ALJ to elicit an explanation from the expert …” Pearson v. Colvin,
810 F.3d 204, 211 (4th Cir. 2015). The duty rests with the ALJ, not a reviewing court, to find facts
and resolve conflicts. Radford, 734 F.3d at 296; see also Brown v. Colvin, 639 Fed.Appx. 921,
923, 2016 WL 50298, at *2 (4th Cir. Feb. 9, 2016) ("We remand to avoid engaging in fact-finding
`in the first instance' and to allow the ALJ to further develop the record so that we can conduct a
meaningful judicial review"). And, as the Fourth Circuit has repeatedly made clear, the ALJ must
provide a sufficient explanation of his findings to allow for meaningful appellate review. See
Mascio, 780 F.3d at 637 ("Because we are left to guess about how the ALJ arrived at his conclusion
on [Plaintiff's] ability to perform relevant functions and indeed, remain uncertain as to what the
ALJ intended, remand is necessary."); Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir.1986)
(holding that without an adequate explanation, "it is simply impossible to tell whether there was
substantial evidence to support the determination").
Discussion
The Commissioner must consider the combined effect of all a claimant’s impairments.
Under 20 CFR §§ 404.1523, 416.923, if a claimant suffers from multiple impairments, the
Commissioner must “…consider the combined effect of all…impairments without regard to
whether any such impairment, if considered separately, would be of sufficient severity.”
Further, combination must be evaluated throughout the sequential evaluation process. In
pertinent part, 20 CFR § 404.1523 provides:
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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. If we do find a medically
severe combination of impairments, the combined impact of the
impairments will be considered throughout the disability
determination process.
The ALJ carefully s t a t e d that in assessing C l a i m a n t ’s residual functional
capacity, he “considered the functional limitations resulting from all of the claimant’s medically
determinable impairments, including those that are nonsevere” (Tr. at 27). The ALJ’s
assessment of Claimant’s residual functional capacity assessment (RFC) did not fail to consider
the combined effect of all of Claimant’s impairments. The ALJ considered opinions from State
agency reviewing consultative physicians Uma Reddy, M.D. and Nisha Singh, M.D. and gave
them both substantial weight (Tr. at 35).
After discussing and weighing the opinion of Dr.
Reddy, the ALJ then stated that “subsequent evidence received since this examiner’s
review establishes greater limitations. As such, the residual functional capacity is
reduced.”
The ALJ provided a thorough analysis of the evidence in the record. The ALJ discussed
imaging evidence, physician treatment notes, emergency room records and physical therapy
notes. The ALJ then discussed whether there were side-effects from medications and the
effectiveness of treatments, as follows:
As to side effects of medication, the claimant noted on a function
reported [sic] form that Tylenol and Ibuprofen were slowly
damaging her liver (Exhibit 11F, 8). However, she denied any side
effects at the hearing, and the medical records, such as office
treatment notes, do not corroborate those allegations. In addition,
the medical records reveal that the medications have been relatively
effective in controlling the claimant’s symptoms. In particular, she
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had injections in the right shoulder with significant relief (Exhibit
14F, 7 and 14).
In terms of other treatment, the claimant has been prescribed and
followed appropriate treatment for the alleged impairments,
including conservative and surgical measures, which weighs in the
claimant’s favor, but the medical records reveal that the treatment
has been relatively effective in controlling the claimant’s symptoms.
For example, she had left ankle surgery, with noted improvement
(Exhibit 10F, 99). She received orthotic inserts (Exhibit 11F, 17),
power step orthotics, which were comfortable (Exhibit 17F, 3), and
orthotic shoes and inserts, which she reported as comfortable
(Exhibit 21F, 2). She was complaint [sic] with physical therapy and
noted improvement and reports she was able to perform all activities
of daily living (Exhibits 27F, 14 and 28F, 1).
Given the claimant’s allegations of totally disabling symptoms, one
might expect to see some indication in the treatment records of
restrictions placed on the claimant by the treating doctor. Yet a
review of the record in this case reveals no restrictions
recommended by the treating doctor. Indeed the doctor ordered the
claimant to walk more (Exhibit 10F, 99) and to perform exercise 30
minutes five times a week (Exhibit 16F, 12) (Tr. at 33-34).
T he ALJ considered the extent to which Claimant’s treatment had been effective in
controlling her symptoms, denoting overwhelming evidence showing significant benefits from
treatment (Tr. at 33-34). The ALJ also considered the lack of restrictions placed upon Plaintiff
by treating sources and, on the contrary, orders from physicians that Plaintiff walk more and
exercise regularly (Tr. a t 34).
The ALJ discussed numerous inconsistent statements that appeared in the record, regarding
Claimant’s allegations to the Commissioner as opposed to her statements to physicians (Tr. at
34). The ALJ then discussed Claimant’s acknowledged daily activities, which were also in
contrast with Claimant’s allegations of debilitating effects from her impairments (Tr. at 34-35).
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The ALJ considered, in detail, the opinion evidence in the record (Tr. 35-36), before
concluding that Plaintiff’s claims of extreme limitations ultimately did not enjoy support from
the objective evidence in the record (Tr. 36). Obesity can exacerbate the effects of a claimant’s
impairments, as explained in Social Security Ruling (SSR) 02-1p, 2002 WL 34686281. The
SSR therefore directs ALJs to explain how they reach their conclusions concerning the impact
of a claimant’s obesity on the claimant’s limitations. In the present matter, the ALJ provided that
Claimant was five foot tall and weighed 169 pounds which calculates to a body mass index (BMI)
of 33.0 (Tr. at 27). The ALJ confirmed that he “considered the potential impact of obesity in
causing or contributing to co-existing impairments” as directed by SSR 02-1p. (Id.) He then
articulated that the record provided “no evidence of any specific or quantifiable impact on
pulmonary, musculoskeletal, endocrine, or cardiac functioning,” and therefore concluded, that
her obesity was not a severe impairment at step two of the sequential evaluation process. (Id.)
The ALJ went on to acknowledge his further obligation to consider both severe and non-severe
impairments in assessing Claimant’s residual functional capacity. See 20 C.F.R. §§ 404.1545(e),
415.945(e)). The ALJ found that the evidence before him did “not support a finding of any
additional functional limitations other than those included in Finding 5 [the residual functional
capacity finding]” for a reduced range of light work.
Obesity and Diabetes Mellitus
SSR 02-1p delineates that some effects of obesity may not be obvious and that,
for example, it may cause sleep apnea and a resultant lack of clarity during the day. Id., 2002
WL 3468828, at *6. The ALJ carefully addressed Claimant’s allegation of sleep apnea,
explaining that Claimant underwent a sleep study for suspected sleep apnea, which was normal
(Tr. at 27, 697). However, Claimant contradicted her own allegation by stating she was
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“playing games on her phone at night” (Tr. at 34, 707) and doing so until midnight or even
later before getting up at 6 am (Tr. at 707). The sleep specialist opined the Claimant should
stop such distracting bedtime activities and that there was “no
physiological reason” for
Claimant not to sleep well. (Id.)
Obesity may also enhance pain and limitations associated with arthritis, according to
SSR 02-1p. Id. 2002 WL 3468828, at *6. However, the ALJ found that the medical evidence
showed that in this case, physical therapy was effective for Claimant’s back and hip pain (Tr. at
33). Claimant appeared at physical therapy on October 5, 2012 reporting “no pain” and had
already walked two miles before her appointment that day (Tr. a t 941). At her follow-up
session, C l a i m a n t ’ s pain level continued as “0” out of 10 with 10 being the most severe.
Records show that after physical therapy for shoulder impingement, Claimant experienced
a significant diminution in pain (Tr. at 935-936). As the ALJ explained, Dr. Sale found that
Claimant had improved (Tr. a t 32, 946).
The ALJ acknowledged that Claimant’s body mass index established obesity; found
the obesity not to be severe; and then considered whether Claimant’s obesity presented
additional
functional limitations, appropriately concluding in light of the record that the
residual functional capacity for only a reduced range of light work was not further
diminished by Claimant’s obesity (Tr. at 27). Likewise, t he ALJ considered the effects of
Claimant’s diabetes, correctly explaining that it was being medically managed (Tr. at 2627). Claimant testified at the hearing that she only needed insulin for a short time, and that
she had been so successful with diet and weight loss that she was even able to cut another
medication in half (Tr. at 30, 76).
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Credibility
The Fourth Circuit has held that an ALJ’s credibility findings are “virtually unreviewable
by this court on appeal.” Darvishian v. Green, 404 F. App’x 822, 831 (4th Cir. 2010)(citing
Bieber v. Dept. of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002)); Salyers v. Chater, No. 962030, 1997 WL 71704, at *1 (4th Cir. Feb. 20, 1997) (unpublished) (an “ALJ’s credibility
findings… are entitled to substantial deference”). When evaluating a claimant’s testimony, the
ALJ first considers whether the claimant has one or more medically determinable impairments
that could reasonably be expected to produce the symptoms alleged.
See 20 C.F.R. §§
404.1529(b) and 416.929. If such an impairment(s) exists, the ALJ then evaluates the intensity,
persistence and limiting effects of the alleged symptoms arising from these impairments to
determine the extent to which the alleged symptoms limit the claimant’s ability to work. See 20
C.F.R. §§ 404.1529(c) and 416.929.
As the fact-finder, the ALJ has the exclusive responsibility for making credibility
determinations. See, Shively v. Heckler, 739 F.2d 987, 989-990 (4th Cir. 1984) (stating that
“[b]ecause he had the opportunity to observe the demeanor and to determine the credibility of the
claimant, the ALJ’s observations concerning these questions are to be given great weight”). The
Social Security Administration recently issued Social Security Ruling 16-3p, 2016 WL 1119029
(March 16, 2016) ("SSR 16-3p"), which provides new guidance for ALJs to follow when
evaluating a disability claimant's statements regarding the intensity, persistence, and limiting
effects of symptoms. SSR 16-3p replaces Social Security Ruling 96-7p, 1996 WL 374186 (July 2,
1996) ("SSR 96-7p"). SSR 16-3p eliminates the term "credibility" used in SSR 96-7p and clarifies
“adjudicators will not assess an individual’s overall character or truthfulness.” SSR 16-3p, 2016
WL 1119029, at *1, 10. That is, "[t]he change in wording is meant to clarify that administrative
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law judges aren't in the business of impeaching claimants' character," but "obviously
administrative law judges will continue to assess the credibility of pain assertions by applicants,
especially as such assertions often cannot be either credited or rejected on the basis of medical
evidence." Cole v. Colvin, 2016 WL 3997246, at *1 (7th Cir. July 26, 2016).
Defendant assets that “the record was littered with inconsistencies between Plaintiff’s
contentions and her own reported progress in medical records. Defendant provided the following
examples:
●
Plaintiff appeared at her hearing, dramatically moving about the room,
requesting a break to take pain medication, and describing purported pain in her
right shoulder so excruciating that it felt like a “vise on it and someone is
twisting a knife in the middle of it at the moment I’m speaking” (Tr. 68).
Raising her arm, she claimed, was “almost like the plague” (Tr. 72). Yet she
had just completed a course of physical therapy for that shoulder, maintained
that no further sessions were necessary, and reported unequivocally to her
supervising physician, “I am better” (Tr. 946). She was “not having any pain
in her shoulder” (Tr. 934).
●
Plaintiff further claimed at her hearing that she could not stand for more than
10 or 15 minutes before needing to sit or elevate her leg, and made the
remarkable claim that she spent between 22 and 23 hours a day with her leg
elevated (Tr. 65- 66, 70-71). Yet she had just completed a course of physical
therapy sessions that lasted 30 minutes each with no indication of a need to sit
and elevate the leg, nor, for that matter, any indication of any extreme limitations
whatsoever (Tr. 932-35).
●
In her sworn testimony, Plaintiff insisted that she could not use her arm for more
than about five minutes (Tr. 69), but treatment records documented that she
had recently cooked for four hours to save food from a broken freezer, served
as a banner waver at church, and washed and waxed a car (Tr. 932).
●
Plaintiff testified that there was almost “not a part of [her] body” that did not hurt,
that her neck felt like “somebody has wrung it out like a dishrag,” and that
she was never free from pain (Tr. 70-72), yet she recently reported just that
– an absence of pain, and only minimal pain – to her physical therapist (Tr. 934,
936).
●
Plaintiff testified that she was trying to ameliorate her shoulder symptoms with
exercises, but “it’s not helping” (Tr. 68). That statement was flatly contradicted
by her own statements to the physical therapist that she “definitely feels she
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has made progress with the shoulder,” that the “goals of therapy [were]
confirmed as being met,” and that, as she professed to Dr. Sale, “I am better”
(Tr. 946).
●
Plaintiff reported in her disability forms that she experienced pain in “every
joint from head to toes,” that she had pain “all day every day,” that she
experienced pain “everywhere,” and that if she could “scream all day long at
[the] top of [her] lungs [it] wouldn’t help it” (Tr. 370, 395). Yet five days after
her comment about screaming at the top of her lungs, Plaintiff appeared at her
podiatrist’s office for an eight-week postoperative visit and “denied significant
problems,” with only some “mild discomfort” at the top of the foot (Tr.
820). Treatment records throughout her period of purported disability routinely
denote Plaintiff as in no acute distress (NAD) (Tr. 658, 672, 710, 828, 882, 897,
900, 951, 953) (ECF No. 13).
Ultimately, the ALJ held the following:
The credibility of the claimant’s allegations of disabling symptoms
and limitations is diminished because those allegations are greater
than expected in light of the objective clinical evidence and
treatment notes. Specifically, the objective medical evidence
indicates in January 2011, an x-ray of the claimant’s chest evidenced
degenerative osseous changes. In April 2011, electrodiagnostic
testing revealed bilateral CTS, severe on the right, moderate on the
left. An ulnar entrapment neuropathy was not demonstrated
(Exhibit 4F, 1-2). On July 2011, an MRI of the left ankle revealed
joint effusion, mild posterior tibial tenosynovitis, and bone
contusion with bone marrow edema (Exhibit 11F, 4). On July 19,
2011, and [sic] MRI evidenced degenerative changes at the
tarsometatarsal junction and first metatarsophalangeal joint (Exhibit
11F, 6). In November 2011, x-rays of the right hip showed right
sacroiliac and mild right hip degenerative joint disease Pelvic
phleboliths (Exhibit 10F, 79). In December 2010, an MRI of the
lumbar spine revealed mild spondylosis at L3-S 1 with possible
“very minimal” impingement or abutment of the left L3 nerve root
at the L3-4 neural foramen (Exhibit 10F, 80). In January 2012, an
x-ray of the right shoulder was normal (Exhibit 14F, 7). In
November 2012, an x-ray of the left ankle revealed intraoperative
images with plate-and-screw fixation of calcaneal fracture. The
alignment appeared anatomic. In June 2012, an x-ray of the left hip
evidenced no acute findings (Exhibit 13F, 87). The medical
examiner reviewed these films as negative (Exhibit 13F, 84). In June
2012, an x-ray of the lumbar spine had minimal findings (Exhibits
13F, 86). Again, the medical examiner reviewed these films as
negative (Exhibit 13F, 84). In March 2013, an x-ray of the thoracic
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spine evidenced no acute findings but did note degenerative disc
disease (Exhibit 20F). In April 2013, an x-ray of the right foot was
normal with only slight findings (Exhibit 21F, 3). In July 2013, an
MRI of the right foot showed a right foot mass (Exhibit 22F, 3). In
February 2013, a stress test was negative (Exhibit 16F, 12).
A review of treatment notes also do not corroborate the claimant’s
allegations of disability to the extent asserted. In this regard, on
November 28, 2012, the claimant had arthroplastic repair of left
ankle (Exhibits 8F and 15F). On November 28, 2012, a podiatric
consultation evidenced complaints of pain and numbness; however
within two days of the surgery, the claimant denied any significant
problems. The examiner assessed that she was making good
progress. In April 2012, she followed up with her surgeon with
records indicating her foot position was normal. She had mild
edema but good motion of ankle joint subtaler joint and midtarsal
joint. There was some tenderness laterally, but no tenderness with
palpation. The foot and ankle films revealed no change in hardware.
The examiner assessed that she had made good progress and advised
to move from wearing the boot to a tennis shoe (Exhibits 8F and
15F) (Tr. at 34).
The undersigned finds that the ALJ correctly found that Claimant’s statements about the
intensity, persistence and limiting effects of her symptoms were not entirely credible. See SSR
96-7p, 1996 WL 374186, at *5 (“One strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other information in the case record”).
“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [ALJ].” Craig, (76 F.3d at 589). In the
present matter, the ALJ’s credibility determination is supported by substantial evidence.
Weight of Medical Opinions
Under 20 CFR 416.927(d)(1), more weight generally is given to an examiner than to a nonexaminer. Section 416.927(d)(2) provides that more weight will be given 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
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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." Smith v.
Schweiker, 795 F.2d 343, 346 (4th Cir. 1986).
As explained by SSR 96-6p, the regulations provide “progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the individual become
weaker.” For example, SSR 96-6p states that opinions of physicians or psychologists who do not
have a treatment relationship with the individual are weighed by stricter standards, based to a
greater degree on medical evidence, qualifications, and explanations for the opinions, than are
required of treating sources.
Thus, SSR 96-6p concludes that the opinions of State agency medical and psychological
consultants and other program physicians and psychologists can be given weight only insofar as
they are supported by evidence in the case record, considering such factors as (1) the supportability
of the opinion in light of the evidence in the record; (2) consistency with the record, including
other medical opinions; (3) and any explanation for the opinion. Id.
Social Security Ruling 96-7p confirms that ALJs and the Appeals Council are required to
consider findings of fact by state agency medical and psychological consultants and other program
physicians and psychologists about the existence and severity of an individual’s impairment(s),
including the existence and severity of any symptoms. See 65 Fed. Reg. 11,866 (Mar. 7, 2000).
While ALJs and the Appeals Council are not bound by any state agency findings, they may not
ignore these opinions and must explain the weight they give to the opinions in their decisions. Id
Claimant asserts that the ALJ failed to reference or discuss the opinion of Dr. Lana Hofeldt
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(ECF No. 12). On June 26, 2012, Claimant presented to Thomas Memorial Hospital’s emergency
room complaining of back pain radiating into the left hip, thigh and knee (Tr. at 795). Claimant
was treated by Dr. Lana Hofeldt, who noted on exam that Claimant had lower lumbar spine, soft
tissue tenderness in the left lower lumbar area, limited range of motion, and positive straight leg
raise on the left at 45 degrees. Dr. Hofeldt instructed Claimant to avoid strenuous activity, to
avoid lifting anything greater than 5 pounds, bending, and stooping (Tr. at 796).
The ALJ did address the Thomas Memorial Hospital emergency room visits, including
the visit on June 26, 2012. The ALJ held:
Hospital records indicate she was seen in the emergency room in
June 2012 and evaluated for an onset of acute back pain, though her
physical exam was normal and she was discharged as stable (Exhibit
13F, 83). In February 2013, she returned reporting chest pain, but a
myocardial infarction was ruled out (Exhibit 16F, 12) (Tr. at 33).
Claimant avers that Dr. Hofeldt’s instructions from the June 26, 2012, emergency room
visit direct Claimant to avoid strenuous activity, to avoid lifting anything greater than 5 pounds,
bending and stooping. In response, Defendant asserts that the ALJ is not required recite verbatim
a physician’s assistant recommendations on what and how much to lift, bend or stoop. The ALJ
did not overlook Claimant’s emergency room visit. The ALJ pointed out that Claimant’s followup visit with her personal physician a few weeks after reporting to the emergency room that
Claimant’s acute lumbar strain had “improved.” (Tr. at 31-33, 819). Defendant avers that due to
the follow up visit and instruction to apply ice and heat intermittently four to six times daily,
common sense dictates that the advice rendered at the emergency room on June 26, 2012, was an
“obvious piece of temporary advice” (Tr. at 796). Furthermore, Claimant’s follow-up visits a few
weeks later reflect that Claimant had “improved” and also improved with follow-up physical
therapy. Claimant reported to her physical therapist that she is doing the very things at issue
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without incident or pain (Tr. at 942). Even if the ALJ committed error by not assigning weight to
Dr. Hofeldt’s opinion regarding Claimant’s emergency room visit, the Fourth Circuit has held that
“reversing the ALJ’s decision solely because he failed to assign weight to Dr. [Thir’s] opinion
would be pointless. . . . [I]t is highly unlikely, given the medical evidence of record, that a remand
to the agency would change the Commissioner’s finding of non-disability.” Tanner v. Comm’r of
Soc. Sec., 602 F. App’x 95, 101 (4th Cir. 2015)(per curiam).
Conclusion
According to the discussion above, the undersigned finds that the ALJ appropriately
considered the combined effects of Claimant’s impairments, adequately addressed Claimant’s
obesity and diabetes, appropriately assessed Claimant’s credibility and correctly addressed
Claimant’s emergency room visit that occurred on June 26, 2012. Claimant has failed to
demonstrate that the Commissioner’s decision is not supported by substantial evidence.
By Judgment Order entered this day, Plaintiff’s Brief in Support of Judgment on the
Pleadings (ECF No. 12) is DENIED, Defendant’s Brief in Support of Defendant’s Decision (ECF
No. 13) is GRANTED, 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 provide copies of this Order to all counsel of record.
Date: March 31, 2017.
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