Bowles v. Berryhill

Filing 23

MEMORANDUM OPINION AND ORDER The court does not adopt the magistrate judge's 19 Proposed Findings and Recommendations; directing that 1) Claimant's 12 request for judgment on the pleadings is denied; 2) the Commissioner's 15 requ est for judgment on the pleadings is granted; 3) the Commissioner's decision is affirmed; and 4) Claimant's action is dismissed with prejudice and removed from the docket of the court.This case no longer referred to Magistrate Judge Omar J. Aboulhosn. Signed by Judge John T. Copenhaver, Jr. on 3/12/2018. (cc: counsel of record; any unrepresented parties; United States Magistrate Judge) (kp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CLAUDIA WINTER BOWLES,
Plaintiff,
v.

Civil Action No. 2:17-cv-01282

NANCY A. BERRYHILL, Acting
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the objections to the magistrate judge’s
Proposed Findings and Recommendation (“PF&R”), filed by Nancy A.
Berryhill (“the Commissioner”) on October 13, 2017.

I. Procedural History

The plaintiff, Claudia Winter Bowles (“Claimant”),
instituted this action on February 16, 2017, pursuant to 42
U.S.C. § 405(g) (2016).

Claimant seeks judicial review of the

Commissioner’s final decision denying her application for
disability insurance benefits.

She claims that hearing loss in

her left ear and mental impairments such as anxiety and insomnia
prevent her from working as a teacher.

(See Tr. 22, 25.)

Claimant’s hearing loss is at issue here.

Only

As the magistrate judge noted, Claimant was 61 years
old as of the amended alleged onset date, December 31, 2011, and
considered a person of advanced age or closely approaching
advanced age as of the date of the ALJ’s decision on October 27,
2015.

She last worked as a language arts teacher to sixth grade

students and last worked a full year in 2011.

She worked as a

substitute teacher briefly after her amended alleged onset date;
however, that did not rise to the level of substantial gainful
activity.

The ALJ determined that Claimant met the requirements

for insured worker status through June 30, 2016.
The ALJ found that Claimant had the residual
functional capacity (“RFC”) to perform light work with
relatively few limitations “except . . . she would be limited to
hearing from only one ear . . . and could have exposure to no
more than a moderate noise level.”

(Id. 24.)

The ALJ further

found Claimant was capable of performing her past relevant work
as a teacher and a preschool teacher where that did not involve
activities precluded by her RFC.

(Id. 27.)

Claimant first experienced hearing loss in her left
ear sometime in 2005.

(Id. 369.)

In 2006, Dr. Stephen J.

Wetmore, an otolaryngologist, with the aid of MRIs diagnosed
Claimant with an acoustic neuroma on her left side, which
resulted in a degree of hearing loss in her left ear.
2

(Id. 368-

70.)

Over the ensuing years, Claimant continued visiting Dr.

Wetmore once every two or three years for further evaluation.
(See id. 366-91, 413-40.)

On February 8, 2013, - Claimant’s

only visit after her onset date on December 31, 2011 and before
the ALJ’s decision on October 27, 2015 - Dr. Wetmore measured
Claimant’s acoustic neuroma “at 4x3 mm[,] . . . somewhat smaller
than the previous study” in 2010, and an audiogram showed that
Claimant had a “word recognition score” of 64% and that her
“pure tones” were at 250 Hz.

(Id. 432.)

Dr. Wetmore concluded

that these values “show[ed] very minimal [w]orsening of
[Claimant’s] hearing compared to . . . 2010” and assessed
Claimant as suffering from “[s]ensorineural hearing loss” in her
left ear.

(Id.)
After the ALJ’s decision on October 27, 2015, Claimant

had another appointment with Dr. Wetmore on February 11, 2016.
(Id. 438.)

At this appointment, an MRI revealed “a small region

of enhancement within the auditory canal on the left” when
compared to Claimant’s 2013 study.

(Id. 435.)

Claimant’s

audiogram showed that she had “only 20% word recognition,” and
Dr. Wetmore concluded that Claimant “had somewhat worse hearing
in the left ear with a moderate to profound sensorineural
hearing loss.”

(Id. 439.)

This evidence was submitted to the

Appeals Council before whom Claimant sought review of the ALJ’s

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decision which became the final decision of the Commissioner
when the Appeals Council denied Claimant’s request for review on
December 23, 2016.
Claimant began visiting Dr. Fatima Aziz, a primary
care physician, around September 15, 2010.

(Tr. 336.)

On

October 13, 2010, Claimant had a follow-up appointment with Dr.
Aziz, during which Claimant stated that she was currently
experiencing “[h]earing [l]oss” and Dr. Aziz noted that her
“neuroma is unchanged.”

(Id. 334-35.)

On January 11, 2011,

Claimant had another follow-up with Dr. Aziz.

(See id. 331-33.)

On February 2, 2011, Claimant visited Dr. Aziz for an illness,
experiencing “[s]ore throats, [h]earing loss, and [c]ough.”
(See id. 327-30.)

On April 7, 2011, Claimant visited Dr. Aziz

again for an illness.

(See id. 325-26.)

On July 18, 2011,

Claimant had a follow-up appointment with Dr. Aziz.
321.)

(See id.

On January 18, 2012, Claimant had a follow-up appointment

with Dr. Aziz where she again reported that she was doing well,
but she also noted that her “[h]earing is getting worse in left
ear.”

(Id. 318.)

On July 18, 2012; August 21, 2012; January

22, 2013; and July 18, 2013, Claimant returned to Dr. Aziz for
follow-up appointments.

(See id. 303-25.)

In January 2014, Claimant began visiting Dr. Iva E.
Moore for primary care.

(Id. 351.)
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Claimant had a total of

five appointments with Dr. Moore through April 2015.
351, 355, 358, 362, 405.)

(See id.

At these five appointments, Dr. Moore

noted that Claimant’s hearing was “intact to conversation”
during all but one (Dr. Moore made no remarks concerning
Claimant’s hearing during that one), and Claimant complained of
vertigo only once and never of hearing loss.
356-57, 359-60, 363-64, 406-07.)

(See id. 352-53,

At a December 2014

appointment, Dr. Moore noted, however, that “[Claimant] has
debilitating vertigo and hearing loss,” a statement made without
articulating any basis for it or the degree of debilitation.
(Id. 362.)
Two state agency medical consultants reviewed
Claimant’s medical records.

First, Dr. Fulvio Franyutti opined

that, based on the evidence, Claimant should avoid concentrated
exposure to noise, among others.

(See id. 83-85.)

Nevertheless, Dr. Franyutti concluded that Claimant was not
disabled and could perform work as a teacher as it is generally
performed in the national economy despite her limitations.
85-86.)

(Id.

The second medical consultant, Dr. Subhash

Gajendragadkar, concurred with Dr. Franyutti.

(See id. 96-99.)

At Claimant’s hearing before the ALJ, Patricia McFann, a
vocational expert, affirmed that a person under the limitations
opined by the medical consultants could perform work as a

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teacher as it is generally performed in the national economy.
(Id. 61-64.)

However, on February 20, 2014, in response to a

request for information “to help address [Claimant’s]
psychological allegations” in connection with Claimant’s request
for social security benefits, Dr. Aziz stated that “[Claimant]
is deaf in left ear from acoustic neuroma this might interfere
with teaching (2011 diagnosed).”

(Id. 344.)

Ultimately, on

October 27, 2015, the ALJ denied Claimant’s request for
benefits, (id. 27), and, as noted, the appeals council denied
review of the ALJ’s decision, (id. 1).
Claimant initiated this action in this court on
February 16, 2017.

According to 28 U.S.C. § 613(b)(1)(B) and

the standing order in this district, the action was referred to
United States Magistrate Judge Omar J. Aboulhosn for
consideration.

Claimant moved for judgment on the pleadings on

June 26, 2017.

On September 29, 2017, the magistrate judge

filed his PF&R.

He recommends that the court

grant [Claimant’s] request for judgment on the
pleadings to the extent that she asks for remand for
further administrative proceedings in order to correct
the errors below, deny [the Commissioner’s] request to
affirm the decision of the Commissioner[,] reverse the
final decision of the Commissioner[,] and remand this
matter back to the Commissioner pursuant to the fourth
sentence of 42 U.S.C. § 405(g).

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(PF&R 1-2 (emphases and citations omitted).)

On October 13,

2017, the Commissioner filed objections to the PF&R, to which
Claimant responded on November 2, 2017.
The Commissioner lodges four objections to the
magistrate judge’s PF&R.

First, she claims that the magistrate

judge erred when he found that the administrative law judge
(“ALJ”) failed to provide “good reasons” for rejecting the
opinion of Claimant’s treating physician.
Objections to PF&R (“Obj.”) 2-3.)

(See Defendant’s

Second, she contends that the

magistrate judge was wrong to suggest that the ALJ should have
recontacted the treating physician for clarification of the
physician’s opinion.

(Id.)

Third, she argues that, contrary to

the magistrate judge’s view, the Social Security Act’s
implementing regulations do not require the presentation of
“persuasive contrary evidence” to diminish a treating
physician’s opinion.

(Id. 7.)

Fourth, she alleges that the

magistrate judge impermissibly reweighed the evidence and
assessed credibility.

(Id. 8-9.)

II. Standard of Review

The court reviews de novo those portions of the
magistrate judge's PF&R to which objections are timely filed.
28 U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson, 687 F.2d 44,
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47 (4th Cir. 1982); see also 20 C.F.R. § 416.927(e)(1) (ultimate
decision regarding disability determinations rests with the
Commissioner).

On the other hand, the standard for review of

the Commissioner's decision is rather deferential to the
Commissioner, for “a reviewing court must ‘uphold the
determination when an ALJ has applied correct legal standards
and the ALJ's factual findings are supported by substantial
evidence.’”

Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 267

(4th Cir. 2017) (quoting Preston v. Heckler, 769 F.2d 988, 990
(4th Cir. 1985)); Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Cir. 1974) (court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence); see also 42 U.S.C. § 405(g).

Substantial

evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.”

Richardson v. Perales, 402

U.S. 389, 401 (1971) (internal citations omitted); accord Brown,
873 F.3d at 267.
“In reviewing for substantial evidence, [a district
court does] not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.”

Johnson v. Barnhart, 434 F.3d 650, 653 (4th

Cir. 2005) (per curiam).

Substantial evidence is by definition

more than “a mere scintilla,” Smith v. Chater, 99 F.3d 635, 638

8

(4th Cir. 1996), but “may be somewhat less than a
preponderance,” Blalock v. Richardson, 483 F.2d 773, 776 (4th
Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1996)).

III. Discussion

The Commissioner first argues that the magistrate
judge erred in finding that the ALJ did not provide “good
reasons” for rejecting the opinion of Claimant’s treating
physician, Dr. Aziz, 1 as required by 20 C.F.R. § 404.1527(c)(2).
(See Obj. 2-3.)
In general, an ALJ must give more weight to the
medical opinion of a claimant’s “treating sources,” such as a

1

The ALJ’s decision does not explicitly state whether Dr. Aziz
(or any other physician) is, in fact, a treating physician. The
Social Security regulations define a “treating source” – i.e., a
treating physician – as one who has treated a claimant on an
“ongoing” basis, considering factors such as the frequency of
visits, the type of treatment, and the nature of the claimant’s
condition. See 20 C.F.R. § 404.1527(a)(2). Similar to the ALJ,
neither the magistrate judge, Claimant, nor the Commissioner
expressed concerns on this issue. For purposes of this
decision, then, the court treats Dr. Aziz as a treating
physician in accordance with how the parties evidently
interpreted the ALJ’s decision. See SEC v. Chenery Corp., 332
U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a
determination or judgment which an administrative agency alone
is authorized to make, must judge the propriety of such action
solely by the grounds invoked by the agency.”).
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treating physician.

20 C.F.R § 404.1527(c)(2) (2017).

In fact,

a treating physician’s opinion on “the nature and severity” of a
claimant’s impairments must be given “controlling weight” when
such an opinion “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the
claimant’s] case record.”

Id.

As a corollary, the United States Court of Appeals for
the Fourth Circuit holds that, “[b]y negative implication, if a
physician's opinion is not supported by clinical evidence or if
it is inconsistent with other substantial evidence, it should be
accorded significantly less weight.”
585, 590 (4th Cir. 1996).

Craig v. Chater, 76 F.3d

In doing so, the ALJ must apply the

following six factors: “(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 whole; and (6) the specialization of the treating
physician.”

Burch v. Apfel, 9 F. App’x 255, 259 (4th Cir. 2001)

(citation omitted); accord 20 C.F.R. §§ 404.1527(c)(2)(i)(c)(6).

A mechanical recitation of the six factors is not

necessary; rather, “[t]he ultimate test is . . . whether it is

10

clear from the [ALJ’s] decision that all of the pertinent
factors were considered.”

Chaney v. Berryhill, No. 2:15-cv-

12556, 2017 WL 1197829, at *7 (S.D. W. Va. Mar. 31, 2017)
(Copenhaver, Jr., J.) (citing, inter alia, Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007), and Halloran v. Barnhart, 362
F.3d 28, 32 (2d Cir. 2004)).
At any rate, an ALJ must always provide “good reasons”
for the weight assigned a treating source.
404.1527(c)(2).

Id. §

In particular, when an ALJ denies a claimant’s

application,
the notice of the determination or decision must
contain specific reasons for the weight given to the
treating source's medical opinion, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's
medical opinion and the reasons for that weight.
Fox v. Colvin, 632 F. App’x 750, 756 (4th Cir. 2015) (quoting
SSR 96-2p, 61 Fed. Reg. 34490-01, 34492 (July 2, 1996)); accord
Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017); Newbold
v. Colvin, 718 F.3d 1257, 1265-66 (10th Cir. 2013); see also
Russel v. Comm’r of Soc. Sec., 440 F. App’x 163, 164 (4th Cir.
2011).
In response on February 20, 2014, to a request for
information “to help address [Claimant’s] psychological
allegations,” Dr. Aziz, one of Claimant’s treating physicians,
11

went beyond the request and stated that “[Claimant] is deaf in
left ear from acoustic neuroma this might interfere with
teaching (2011 diagnosed).”

(Tr. 344.)

The ALJ discarded this

opinion, stating as follows:
On February 20, 2014, Fatima Aziz, M.D., reported
treating [Claimant] for insomnia, anxiety, and
depression. Dr. Aziz reported [Claimant’s] anxiety
was due to acoustic neuroma and was somewhat
situation[al] based on activity. Dr. Aziz opined
[Claimant’s] mental condition did not pose any
functional limitations. Dr. Aziz also opined
[Claimant’s] deafness in her left ear from acoustic
neuroma might interfere with teaching. I give great
weight to his opinion regarding [Claimant’s] mental
condition not posing any functional limitation because
it is consistent with the normal mental status
findings. However, his opinion that [Claimant’s]
hearing loss “might” interfere with her teaching is
speculative and is not supported by any explanation.
Therefore, I have given it little to no weight.
(Id. 26.)
To begin, Dr. Aziz’s opinion that Claimant has
sustained hearing loss finds support in the clinical evidence
inasmuch as Claimant’s hearing loss is well-established.

But

because Dr. Aziz’s opinion that it “might interfere with [her]
teaching” is “inconsistent with other substantial evidence,”
Craig, 76 F.3d at 590, it is not entitled to controlling weight.
In particular, Drs. Franyutti and Gajendragadkar each concluded
that Claimant’s hearing loss does not interfere with teaching as
it is generally performed in the national economy with
limitations, such as avoiding concentrated exposure to noise.
12

(Tr. 83-86, 96-99.)

Moreover, Dr. Aziz’s own records fail to

assess Claimant’s hearing loss other than noting the complaints
from Claimant herself.

(See id. 318; 334-35.)

The issue then becomes whether it is clear from the
ALJ’s decision that he considered each of the six relevant
factors in affording Dr. Aziz’s opinion less than controlling
weight.

Burch, 9 F. App’x at 259.

After consideration of the

record and the ALJ’s decision, the court finds that the ALJ
fulfilled his obligation.
The ALJ noted that Dr. Aziz treated Claimant for
“insomnia, anxiety, and depression,” and that Dr. Aziz is “a
primary care physician.”

(Tr. 22.)

These show that the ALJ

considered the nature and extent of Claimant’s treatment
relationship with Dr. Aziz, along with Dr. Aziz’s practice in
primary care.

Additionally, the ALJ observed that Dr. Aziz’s

opinion lacked “support[] by any explanation,” (id. 26),
evincing the ALJ’s consideration of the fourth factor, see 20
C.F.R. § 404.1527(c)(3) (“The more a medical source presents
relevant evidence to support a medical opinion, . . . the more
weight we will give that medical opinion.

The better an

explanation a source provides for a medical opinion, the more
weight we will give that medical opinion.”).

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The body of the ALJ’s decision indicates that he
considered the consistency of Dr. Aziz’s opinion as well as that
of Dr. Moore with the record as a whole.

The ALJ began by

summarizing Claimant’s testimony at the hearing.

(Tr. 25.)

However, the ALJ concluded that “[C]laimant’s statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not entirely credible for the reasons
explained in this decision.”

(Id.)

The ALJ then recounted

Claimant’s treatment records from Drs. Wetmore and Moore,
Claimant’s apparent lack of severe symptoms at the hearing,
Claimant’s testimony that her symptoms “have very little effect
on her activities of daily living other than” climbing stairs,
and the opinions of Drs. Franyutti and Gajendragadkar.
25-26.)

(See id.

It is against this backdrop – the record as a whole -

that the ALJ’s measurement of Dr. Aziz’s opinion is properly
read.
It is also clear that the ALJ considered the remaining
two factors, length of treatment and frequency of examination,
albeit not as plainly as the above four.

The ALJ stated that

“[r]ecords from Fatima Aziz, M.D., a primary care physician,
revealed treatment for insomnia, anxiety, and depression
(Exhibit 3F [Dr. Aziz’s treatment records]).”

(Id. 22.)

Thus,

it is clear that the ALJ reviewed Dr. Aziz’s treatment records,

14

from which the length of treatment and frequency of examination
are readily gleaned.
The court notes that Dr. Aziz evidently did not
regularly, if ever, treat Claimant for her hearing loss, (see
id. 303-35), and the ALJ’s discussion of Dr. Aziz’s records
suggests that he similarly interpreted the treatment records.
For that reason, the ALJ justifiably did not detail the length
and frequency of Claimant’s treatment with Dr. Aziz.

The court

is satisfied that the ALJ considered each of the six factors
listed in Burch in discounting Dr. Aziz’s opinion on Claimant’s
hearing loss.
Moreover, the insufficiency of the speculative opinion
of Dr. Aziz, rendered without any explanation, was such that
recontacting him for further comment was unwarranted.
Accordingly, the court finds that the decision by the
Commissioner is supported by substantial evidence and the court
does not adopt the magistrate judge’s recommendations.

IV. Conclusion

For the foregoing reasons, the court ORDERS that

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ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
1. Claimant’s request for judgment on the pleadings be, and
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
hereby is, denied;
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
2. The Commissioner’s request for judgment on the pleadings be,
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
and hereby is, granted; Rule 26(f) meeting.
02/08/2016
Last day for
02/15/2016
Last day to file Report of Parties= Planning
3. The Commissioner’s See L.R. Civ. and 16.1.
decision be, P. hereby is, affirmed; and
Meeting.
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
4. Claimant’s action be, and hereby is, dismissed, with before
Byrd United States Courthouse in Charleston,
the undersigned, unless canceled. Lead counsel
prejudice and removed from the docket of the court.
directed to appear.
02/29/2016

Entry of scheduling order.
The Clerk is directed to forward copies of this
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
memorandum opinion and order to all counsel of record, any
The Clerk is requested to transmit this Order and
unrepresented parties, and the United States Magistrate Judge.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: March 12, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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