Freeman v. Astrue

Filing 10

PROPOSED FINDINGS AND RECOMMENDATIONS the Magistrate Judge respectfully Proposes that the United States District Judge confirm and accept the findings herein and Recommends that the District Court Deny Plaintiff's Motion for Judgment on the Plea dings; Grant Defendant's Motion for Judgment on the Pleadings; Affirm the final decision of the Commissioner, and Dismisses this action from the docket of the Court; Parties shall have 14 days within which to file with the Clerk any written objections. Signed by Magistrate Judge Cheryl A. Eifert on 4/19/2011. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CONNIE FRANCES FREEMAN,
Plaintiff,
v.

CIVIL ACTION NO. 3:10-00357

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

PROPOSED FINDINGS AND RECOMMENDATIONS
This is an action seeking review of the decision of the Commissioner of the
Social Security Administration (hereinafter the “Commissioner”) denying Claimant’s
application for a period of disability and disability insurance benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. § 401-433. This case was referred to the
undersigned United States Magistrate Judge by standing order for submission of
proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). The case is presently pending before the Court on the parties’ crossmotions for judgment on the pleadings as articulated in their briefs. (Docket Nos. 7
and 8).
The undersigned United States Magistrate Judge has fully considered the
evidence and the arguments of counsel.

For the reasons set forth below, the

undersigned proposes and recommends that the United States District Judge find
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that the decision of the Commissioner is supported by substantial evidence and
should be affirmed.
I.

Procedural History
Plaintiff, Connie Frances Freeman (hereinafter “Claimant”), protectively filed a

DIB application on June 26, 2008,1 alleging disability beginning January 1, 2006 due
to “bad knees, high blood pressure & legs and osteoarthritis.” (Tr. at 130 and 135).
Her application was denied initially and upon reconsideration. (Tr. at 55-59 and 6163).
Claimant then filed a timely request for a hearing, which was held on
December 18, 2008 before the Honorable William R. Paxton, Administrative Law
Judge (hereinafter “ALJ”). (Tr. at 18-52). By decision dated June 22, 2009, the ALJ
determined that Claimant had not been under a disability as defined by the Social
Security Act. (Tr. at 9-17). The ALJ’s decision became the final decision of the
Commissioner on January 28, 2010 when the Appeals Council denied Claimant’s
request for review. (Tr. at 1-5). On March 18, 2010, Claimant brought the present civil
action seeking judicial review of the administrative decision pursuant to 42 U.S.C. §
405(g). (Docket No. 1). The Commissioner filed his Answer and a transcript of the
administrative proceedings on June 2, 2010. (Docket Nos. 5 and 6). The parties filed
their briefs in support of judgment on the pleadings on July 1, 2010 and July 21,
2010. (Docket Nos. 7 and 8). The matter is, therefore, ripe for resolution.

Claimant filed an application for Social Security Income (SSI) on the same date, but the application
was denied because her income exceeded the limits of Title XVI of the Social Security Act. Claimant
also previously filed DIB and SSI applications in 1993 which were denied at the initial level with no
further appeal. (See Tr. at 110).
1

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II.

Summary of the ALJ’s Decision
Under 42 U.S.C. § 423(d)(5), a claimant seeking 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 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 five step sequential evaluation
process for the adjudication of disability claims. If an individual is found “not
disabled” at any step of the process, further inquiry is unnecessary and benefits are
denied. 20 C.F.R. § 404.1520. The first step in the sequence is determining whether a
claimant is currently engaged in substantial gainful employment. Id. § 404.1520(b). If
the claimant is not, then the second step requires a determination of whether the
claimant suffers from a severe impairment. Id. § 404.1520(c).
If a severe impairment is present, the third inquiry is whether this 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 the impairment does, then the
claimant is found disabled and awarded benefits. However, if the impairment does
not, the adjudicator must determine the claimant’s residual functional capacity
(“RFC”), which is the measure of the claimant’s ability to engage in substantial
gainful activity despite the limitations of his or her impairments. Id. § 404.1520(e).
After making this determination, the next step is to ascertain whether the claimant’s
impairments prevent the performance of past relevant work. Id. § 404.1520(f). If the
impairments do prevent the performance of past relevant work, then the claimant has
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established a prima facie case of disability, and the burden shifts to the
Commissioner to prove, as the final step in the process, that the claimant is able to
perform other forms of substantial gainful activity, when considering the claimant’s
remaining physical and mental capacities, age, education, and prior work
experiences. Id. § 404.1520(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69
(4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant,
considering his or her age, education, skills, work experience, and physical
shortcomings has the capacity to perform an alternative job, and (2) that this specific
job exists in significant numbers in the national economy. McLamore v. Weinberger,
538 F.2d. 572, 574 (4th Cir. 1976).
In this case, the ALJ determined that Claimant met the insured status
requirements for DIB through June 30, 2007 and had not engaged in substantial
gainful activity since her alleged disability onset date of January 1, 2006, thereby
fulfilling the first step of the sequential evaluation. (Tr. at 11, Finding Nos. 1 and 2).
At the second step of the analysis, the ALJ concluded that Claimant had severe
impairments of degenerative arthritis in the knees and left ankle and obesity. (Tr. at
11, Finding No. 3). The ALJ also considered Claimant’s high blood pressure and found
it to be a non-severe impairment. (Id.) At the third step of the evaluation, the ALJ
concluded that Claimant did not have an impairment or combination of impairments
that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 12, Finding No. 4). The ALJ then found that Claimant had the
residual functional capacity (“RFC”) to do the following:
[L]ight work as defined in 20 C.F.R. 404.1567(b). The claimant could do
no climbing of ladders, ropes, or scaffolds. She could occasionally climb
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ramps and stairs. She could occasionally balance, kneel, and stoop. She
could do no crouching or crawling. She would have to avoid
concentrated exposure to hazards such as heights and machinery.
(Tr. at 12, Finding No. 5).
Considering the testimony of a vocational expert, the ALJ concluded that
Claimant was capable of performing her past relevant work as a grocery store cashier,
because it did not require work-related activities which were precluded by her RFC.
(Tr. at 16, Finding No. 6). The ALJ noted that Claimant’s work as a grocery store
cashier in 1998 lasted long enough for her to learn to perform the job and constituted
substantial gainful activity with the meaning of the Regulations. (Id.). In comparing
Claimant’s RFC with the physical and mental demands of this work, the ALJ found
that Claimant was capable of completing the duties of the job as they were generally
performed. (Id.). Accordingly, Claimant was not under a disability as defined by the
Social Security Act. (Tr. at 17, Finding No. 7).
III.

Scope of Review
The issue before the Court is whether the final decision of the Commissioner is

based upon an appropriate application of the law and is supported by substantial
evidence. In Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972), the Fourth Circuit
Court of Appeals defined substantial evidence as the following:
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 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, supra at 776, quoting Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966).
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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). The
Court will not re-weigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Id. The Court’s responsibility is
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). The ultimate
question for the Court is whether the decision of the Commissioner is well-grounded,
bearing in mind that “[w]here conflicting evidence allows reasonable minds to differ
as to whether a claimant is disabled, the responsibility for that decision falls on the
[Commissioner].” Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). The Court
decides “not whether the claimant is disabled, but whether the ALJ’s finding of no
disability is supported by substantial evidence.” Johnson v. Barnhart, 434 F. 3d
650,653 (4th Cir. 2005), citing Craig v. Chater, 76 F.3d585, 589 (4th Cir. 2001).
IV.

Claimant’s Background
Claimant was 45 years old on the date of her administrative hearing. (Tr. at

22). She attended high school through most of the ninth grade. (Id.). She could speak
and understand English. (Tr. at 134). Her past relevant work included employment as
a dishwasher at a restaurant, a housekeeper, a deli worker, a cashier at a grocery
store, and a kitchen aide and housekeeper at a nursing home. (Tr. at 136).
V.

Challenges to the Commissioner’s Decision
Claimant contends that the decision of the Commissioner is not supported by

substantial evidence for three reasons: (1) the ALJ erred in assessing Claimant’s
credibility, (2) the ALJ improperly afforded the non-examining State agency
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consultant’s opinion significant weight, and (3) newly submitted medical evidence
required a remand pursuant to sentence six of 42 U.S.C. § 405(g). (Docket No. 7).
The Commissioner responds (1) that the ALJ properly evaluated Claimant’s
subjective complaints of pain and assessed her credibility under 20 C.F.R. § 404.1529
and Social Security Ruling 96-7p; (2) that the ALJ gave proper weight to the State
agency physician’s assessment; and (3) that the case should not be remanded on the
basis of newly submitted evidence because Claimant could have obtained the
evidence before the ALJ issued his decision and the evidence would not have been
material to the ALJ’s decision. (Docket No. 8).
VI.

Medical Records
The undersigned reviewed the medical evidence in its entirety and summarizes

below the relevant records. The majority of the medical evidence post-dates the
period during which Claimant was insured. However, inasmuch as Claimant must
prove that she was disabled on or before the final date on which she met the insured
requirements for entitlement to disability benefits, the undersigned has considered
this evidence to determine whether it elucidates Claimant’s condition during the
relevant time period. See Stahl v. Commissioner, 2008 WL 2565895, *4 (N.D.W.Va.),
citing Highland v. Apfel, 149 F. 3d 873 (8th Cir. 1998).
A.

Evidence Relating to the Relevant Time Period

The medical evidence created during the relevant time frame (January 1, 2006
through June 30, 2007) is essentially limited to three office visits with Enrique C. Sta.
Ana, Jr., M.D., at Emergi-Care, Inc. (Tr. at 208). On December 7, 2006, Claimant
made her initial visit to Dr. Sta. Ana, complaining that her blood pressure was
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“running high,” but reporting no other medical concerns. (Tr. at 208). On December
22, 2006, Claimant returned to Dr. Sta. Ana for “follow up with blood work and
EKG.” (Tr. at 209). Finally, on February 27, 2007, Claimant presented for a routine
check-up with Dr. Sta. Ana. At this visit, Claimant complained of pain in her right leg
radiating to her hip, indicating that the pain had been present for years, but was
getting worse. (Tr. at 210).2 With the exception of some routine laboratory reports
and a medication notation, the transcript of proceedings contains no other medical
record prepared between January 1, 2006, the alleged disability onset date, and June
30, 2007, the date on which Claimant was last insured.
B.

Post-Insured Evidence

On August 21, 2007, Claimant had a check-up appointment with Dr. Sta. Ana
during which she complained that her right leg pain continued to increase and her leg
was swelling. (Tr. at 211). Dr. Sta. Ana scheduled Claimant to undergo venous and
arterial doppler studies.

A bilateral venous duplex study was completed on

September 17, 2007. The indication for the study was noted to be varicose veins, and
the findings included evidence of a Baker’s cyst, but no evidence of deep reflux. (Tr.
at 221-223).
On March 20, 2008, Claimant’s left knee reportedly “went out,” causing her to
fall and hurt her left foot. (See Tr. at 216). Three views were taken of her left ankle at
CAMC Teays Valley Hospital. (Tr. at 225). John E. Reifsteck, M.D. noted possible soft
tissue injury to the lateral aspect of the left ankle, as well as some degenerative
2 By way of background, Claimant reports having two open surgeries on her right knee and one knee
arthroscopy in 1986 and 1987, prior to her alleged onset of disability. (See Tr. at 234 and 30). She
states that she had knee pain since around the sixth grade. (Id.).

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changes, but no gross signs of acute fracture or dislocation. (Tr. at 225).
Five days later, on March 25, 2008, Claimant presented for a follow-up
appointment with Dr. Sta. Ana, reporting her fall and visit to the emergency room.
(Tr. at 216). She acknowledged that x-rays of her foot showed no fracture or break,
but stated that she was told that her “ligaments were messed up” and that they placed
her foot in a brace. (Id.). On the same date, four views were taken of Claimant’s right
knee at CAMC Teays Valley Hospital and were compared to prior studies taken in
August 2007. (Tr. at 226). Christopher A. Schlarb, M.D. noted severe degenerative
changes in Claimant’s right knee, particularly within the medial joint compartment;
that a “loose body” was possibly present in her knee, which was also shown in her
prior studies; and that no acute fractures or dislocations were identified. (Id.). Dr.
Schlarb’s impression was severe degenerative disease involving the knees. (Id.).
On April 4, 2008, an MRI was taken of Claimant’s right knee at CAMC Teays
Valley Hospital, indicating marked degeneration with advanced tricompartmental
degenerative joint disease most pronounced at the medial location. (Tr. at 228).
Jeffrey C. Dameron, M.D., noted that he could not identify the posterior horn of the
medial meniscus and that the posterior horn of the lateral meniscus appeared
complex and probably torn and combined with degenerative intrasubstance
degeneration; that he suspected intrarticular loose body that migrated posterior to
the medial head of the gastrocnemius muscle insertion site; that she had small to
moderate knee joint effusion; that she had what was most compatible with bone
bruising and/or chronic hyperemia from near bone-on-bone appearance of the
medial knee joint compartment; and that he could not visualize the anterior cruciate
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ligament which concerned him for it being chronically torn and/or degenerated; and
that her PLC and collateral ligaments remained intact. (Id.).
On May 7, 2008, Claimant was evaluated by Christopher M. Santangelo, PA-C
(Physician Assistant-Certified) at Teays Valley Orthopedics to assess her right knee
pain. (Tr. at 235). Mr. Santangelo’s impression was that Claimant suffered from
severe osteoarthritis in her right knee with a chronic ACL tear. (Id.). Mr. Santangelo
did not comment on the status of Claimant’s left knee in the medical history or
physical examination notes from this visit. (Id.).
On June 9, 2008, Claimant was given an ultrasonogram of the deep veins of
her left lower extremity. (Tr. at 229). Dr. Dameron noted that there was no
sonographic evidence of deep venous thrombosis, but Claimant did have a rather
large popliteal cyst (“Baker’s cyst”). (Id.). On the same date, four x-ray views were
taken of her left knee, indicating a cystic bone lesion greater than 3 centimeters with
what could be internal septations and compartments, which would be most
compatible with an aneurismal bone cyst. (Tr. at 230).
On June 14, 2008, an MRI was taken of Claimant’s left knee without contrast.
(Tr. at 231-232). Frank A. Muto, M.D., noted moderate three compartment
degenerative changes of the left knee, degenerative cartilidge thinning in the medial
and lateral femoral condyles and lateral facet of the patella, a large Baker’s cyst,
subcutaneous edema, and a questionable mild strain of the medial collateral
ligamentous complex. (Tr. at 232).
On June 23, 2008, Claimant returned to Teays Valley Orthopedics
complaining of left knee pain that she had for “a long time.” (Tr. at 236). Mr.
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Santangelo’s impression was that she had osteoarthritis with a medial meniscus tear
and popliteal cyst in her left knee. (Id.). He discussed the options with her and she
stated that she wished to proceed with a diagnostic and surgical arthroscopy of her
left knee with an open excision of the popliteal cyst. (Id.).
On July 11, 18, and 25 of 2008, Claimant was given Synvisc injections in her
right knee at Teays Valley Orthopedics. (Tr. at 241-243). She returned on August 25,
2008 and was seen by James B. Cox, M.D., reporting that her knee was a “little bit
better” and that she could go back and forth to the store, but “that [was] about it as
far as strenuous activities.” (Tr. at 284). Dr. Cox reviewed her x-rays and stated that
she had advanced degenerative changes to both knees and that he did not think that
further anthrsocopy would help. (Id.).

Dr. Cox believed that they exhausted all

conservative treatment options, as she was taking Lodine, receiving intermittent
cortisone and Synvisc injections, wearing a brace, doing home exercises. (Id.).
Therefore, given the fact that she was “very young,” Dr. Cox thought the next step
would be total replacement anthroplasty on both knees. (Id.).
C.

RFC Opinions

On August 2, 2008, agency single decision maker Kay Means was asked to
complete a physical assessment evaluating Claimant’s RFC through her last insured
date. (Tr. at 155). Ms. Means found that there was insufficient evidence prior to
Claimant’s last insured date upon which to assess Claimant’s RFC. (Tr. at 162).
On September 10, 2008, agency consultant Rabah Boukhemis, M.D. was also
asked to complete an assessment of Claimant’s physical RFC during the relevant time
period. (Tr. at 251). Dr. Boukhemis likewise determined that there was insufficient
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medical evidence from Claimant’s alleged onset date through her last insured date
upon which to make a reasoned assessment. (Id.).
On August 13, 2009, Dr. Sta. Ana wrote a letter, which was submitted to the
Appeals Council in the course of its consideration of Claimant’s request for a review
of the ALJ’s unfavorable decision. (Tr. at 103). Dr. Sta. Ana stated only the following:
Claimant “has history of osteoarthritis for years and was getting worse on February
27, 2007. She was unable to perform full time work prior to June 30, 2007.” (Id.).
The Appeals Council made this letter a part of the record. (Tr. at 5).
VII.

Analysis
A.

Credibility

Claimant first argues that the ALJ erred in finding that Claimant was not fully
credible when describing the intensity, persistence and limiting effects of her pain
and other symptoms. According to Claimant, her testimony was not inconsistent
with any material fact or the evidence of record. She contends that the ALJ had a
“predetermined” conclusion regarding her RFC and then rejected her statements
about pain and other symptoms, because they were in conflict with that premature
conclusion. (Docket No. 7). Having considered all of the evidence, the undersigned
finds this argument to be entirely without merit.
Social Security Ruling 96-7p clarifies the two-step process by which the ALJ
must evaluate symptoms, including pain, pursuant to 20 C.F.R. §§ 404.1529 and
416.929, in order to determine their limiting effects on a claimant. First, the ALJ
must establish whether the claimant’s medically determinable medical and
psychological conditions could reasonably be expected to produce the claimant’s
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symptoms, including pain. SSR 96-7P. Once the ALJ finds that the conditions could
be expected to produce the alleged symptoms, the ALJ must evaluate the intensity,
persistence, and severity of the symptoms to determine the extent to which they
prevent the claimant from performing basic work activities. Id. Whenever the
intensity, persistence or severity of the symptoms cannot be established by objective
medical evidence, the ALJ must assess the credibility of any statements made by a
claimant to support the alleged disabling effects. The Ruling sets forth the factors that
the ALJ must consider in assessing the claimant’s credibility, emphasizing the
importance of explaining the reasons supporting the credibility determination. The
Ruling further directs that the credibility determination must be based on a
consideration of all of the evidence in the case record. Id.
When evaluating whether an ALJ’s credibility determinations are supported by
substantial evidence, the Court is not charged with simply replacing its own
credibility assessments for those of the ALJ; rather, the Court must review the
evidence to determine if it is sufficient to support the ALJ’s conclusions. “In
reviewing the record for substantial evidence, the Court does not re-weigh conflicting
evidence . . . or substitute its own judgment for that of the Commissioner.” See Hays
v. Sullivan, 907 F.2d. 1453, 1456 (4th Cir. 1990).

Because the ALJ 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.” Shively v. Heckler, 739 F.2d 987, 989-990 (4th Cir. 1984), citing Tyler v.
Weinberger, 409 F. Supp. 776 (E.D.Va. 1976).

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In this case, the ALJ found that Claimant had medically determinable
impairments that could cause her alleged symptoms. As such, the ALJ considered
Claimant’s statements about the intensity, persistence and limiting effects of her
symptoms, comparing and contrasting them to (1) Claimant’s daily activities, such as
performing housework and driving to the post office, the store, and the doctor’s
office; (2) the location, duration, frequency, and intensity of her pain and other
symptoms, such as pain and numbness in her legs and occasional pain in her hips,
feet, and ankles; (3) precipitating and aggravating factors, such as extended periods
of standing, walking, or sitting; (4) her medication and side effects, as well as other
forms of relief and treatment, such as walking on a treadmill and taking pain
medication; and (5) other factors concerning functional limitations related to pain or
other symptoms. (Tr. at 13-16); 20 C.F.R. 20 C.F.R. § 404.1529(c)(3). Pointing to
inconsistencies between Claimant’s statements and the other evidence of record, the
ALJ ultimately concluded that Claimant’s statements concerning the intensity,
persistence and limiting effects of her symptoms were not credible to the extent that
they were inconsistent with her ability to engage in light exertional level work
activities as outlined in his RFC finding. (Tr. at 14). After reviewing the ALJ’s
explanation for his determination and scrutinizing the evidence of record, the
undersigned finds that the ALJ's credibility assessment of Claimant is consistent with
the applicable regulation, case law, and Social Security Rulings and is supported by
substantial evidence. 20 C.F.R. §§ 404.1529; SSR 96-7p, 1996 WL 374186 (July 2,
1996); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

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Claimant testified that she was not able to work because her right leg
“buckles,” swells, and hurts “all the time” and that she cannot squat or bend it. (Tr. at
25). She also stated that she could not “stay on her [left leg] very long or walk”
without it “tighten[ing] up the back” and that she can hardly bend it. (Id.). She
claimed that she could not put pressure on her legs, such as by lifting things, and that
she could not “do steps.” (Tr. at 26). She indicated that she could only stand for thirty
minutes and that it took her a while to “get moving” after sitting because her legs
were so stiff. (Tr. at 27). She testified that she had been falling “for years” because her
legs would buckle beneath her. (Tr. at 28). She stated that all of these symptoms were
the same before her date last insured, except that her pain was “probably worse” at
the time of her hearing, but “not a lot [worse].” (Tr. at 26-28). Claimant also noted
high blood pressure on her application for disability benefits; however, she did not
describe how it limited her ability to work and only briefly referenced high blood
pressure during the administrative hearing. (Tr. at 105 and 34).
The record fails to corroborate Claimant’s allegations that she experienced this
extreme level of intensity and persistence of symptoms during the period of her
alleged disability onset date through her last insured date. As aptly noted by the ALJ,
the vast majority of Claimant’s medical treatment occurred after June 30, 2007. In
fact, the file contains only three progress notes and one letter, written retrospectively,
which pertain to the time frame at issue. (Tr. at 208-210 and 103). None of the
contemporaneous notes paints a picture of debilitation as conclusive and severe as
that described by Claimant at the administrative hearing. Although Dr. Sta. Ana’s
notes are somewhat illegible, they clearly document that Claimant’s only concern at
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her initial visit on December 7, 2006 was high blood pressure, (Tr. at 208), which
thereafter was treated and controlled. (Tr. at 259). Claimant ostensibly made no
mention of concerns related to her knees, legs or ankles during her two documented
visits with Dr. Sta. Ana in 2006. (Tr. at 209). Claimant did complain during a routine
“check-up” with Dr. Sta. Ana on February 27, 2007 that she had pain in her right leg
radiating to her hip, which had been present for years and was worsening. However,
the record of this visit does not suggest that Dr. Sta. Ana was overly concerned by this
complaint. (Tr. at 210). He did not undertake a diagnostic work-up at that time; on
the contrary, he did not order any diagnostic studies of Claimant’s extremities until
late August 2007, after Claimant complained of increased pain and swelling in her
right leg. (Tr. at 211-212).
Admittedly, after Claimant fell in March 2008, her musculoskeletal symptoms
became more predominant and widespread and were diagnosed to be degenerative.
Still, the record does not substantiate disabling symptoms or a high level of concern,
either by Claimant or her physician, over the condition of Claimant’s legs and knees
on or before June 30, 2007. Of the treatment records prepared by Dr. Sta. Ana
during the relevant time frame, one solitary progress note documents that Claimant
reported pain in her leg, and that note mentioned only a longstanding pain in the
right leg that radiated to her hip. Otherwise, the relevant records are devoid of
notations regarding the condition of Claimant’s legs and never mention her left leg
and her knees, which later become primary locations of pain. (Tr. at 210 and 216). It
is implausible that Claimant would have failed to report her symptoms to Dr. Sta. Ana
if Claimant was truly experiencing the degree of pain and the extent of functional
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limitation that she described to the ALJ at the hearing. Furthermore, considering
Claimant’s willingness to receive medical care, it is probable that she would have
sought more aggressive treatment to relieve her debilitating symptoms if they had
existed before June 30, 2007. In fact, when her symptoms became intolerable in
Summer 2008, Claimant underwent serial injections in her knees, wore a knee brace,
and pursued surgical correction. In contrast, she took none of these steps during her
insured period. The medical records document only a few seemingly routine checkups during that time frame.
When making a credibility assessment of a claimant’s allegations of pain, the
ALJ must examine “the entire case record, including the objective medical evidence,
the individual’s own statements about symptoms, statements and other information
provided by treating or examining physicians or psychologists and other persons
about the symptoms and how they affect the individual.” SSR 96-7p. The ALJ is
prohibited from rejecting a claimant’s allegations of pain solely on the basis that the
pain is not substantiated by objective medical evidence, but may consider the lack of
objective evidence or other corroborating evidence as factors in his decision. Craig v.
Chater, 76 F.3d. 585 (4th Cir. 1996).
Here, the ALJ determined that Claimant suffered “from some limitation on her
ability to perform work but not to the degree alleged.” (Tr. at 16). He questioned her
credibility of her statements to the extent that they were inconsistent with his RFC
assessment, because the descriptions of her daily activities, the absence of diagnostic
records, and the lack of medical intervention prior to June 30, 2007 cast into doubt
the accuracy of her testimony. (Tr. at 14 and 12). This conclusion is plainly supported
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by substantial evidence for the reasons cited above. The record simply does not
establish more severe restrictions than those noted in the ALJ’s RFC finding and as
such, any of Claimant’s statements indicating otherwise were properly assessed as not
fully credible.
Thus, the undersigned respectfully PROPOSES that the United States
District Judge FIND that the ALJ’s credibility determination was supported by
substantial evidence.
B.

Non-Examining State Physician

Claimant next argues that the ALJ improperly afforded significant weight to
the 2008 opinion of the State agency physician, Dr. Boukhemis, despite the fact that
Dr. Boukhemis did not examine Claimant or make any finding as to her RFC.
Claimant also contends that the ALJ erred in not setting forth his analysis of the
factors listed in 20 C.F.R. § 404.1527(d) when he chose to give the greatest weight to
Dr. Boukhemis’ opinion. (Pl.'s Br. at 7-8).
The undersigned finds Claimant’s arguments unpersuasive and further finds
no error in the ALJ’s treatment of Dr. Boukhemis’ opinion. In determining an
individual’s RFC, an ALJ must consider and evaluate “all of the relevant evidence in
the case record,” SSR 96-8p, including “any assessment of the individual's RFC by a
State agency medical or psychological consultant and by other program physicians or
psychologists.” SSR 96-6p. Title 20 C.F.R. § 404.1527 outlines how medical opinions
will be weighed in determining whether a claimant qualifies for DIB benefits. In
general, the SSA will give more weight to the opinion of an examining medical source
than to the opinion of a non-examining source. See 20 C.F.R. '404.1527. Even
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greater weight will be allocated to the opinion of a treating physician, because that
physician is usually most able to provide Aa detailed, longitudinal picture@ of a
claimant=s alleged disability. Id. Indeed, a treating physician’s opinion will be
afforded controlling weight if two conditions are met: (1) the opinion is wellsupported by clinical and laboratory diagnostic techniques and (2) it is not
inconsistent with other substantial evidence.@ Ward v. Chater, 924 F. Supp. 53, 55
(W.D. Va. 1996); see also, 20 C.F.R. ' 404.1527.
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. If the ALJ
determines that a treating physician=s opinion should not be afforded controlling
weight, the ALJ must then analyze and weigh all the evidence of record, taking into
account the factors listed in 20 C.F.R. ' 404.1527(d). 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. “A finding that a treating source’s medical opinion is not
entitled to controlling weight does not mean that the opinion is rejected. It may still
be entitled to deference and be adopted by the adjudicator.” SSR 96-2p. When a
treating source’s opinion is not given controlling weight, and the opinions of agency
experts are considered, the ALJ “must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant or other program
physician or psychologist as the [ALJ] must do for any opinions from treating
sources, nontreating sources, and other nonexamining sources. . .” 20 C.F.R. §
404.1527.
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The opinions of non-examining sources are subject to a more rigorous review
than those of treating sources. “For this reason, 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 the supportability of the opinion in the evidence including
any evidence received at the administrative law judge and Appeals Council levels that
was not before the State agency, the consistency of the opinion with the record as a
whole, including other medical opinions, and any explanation for the opinion
provided by the State agency medical or psychological consultant or other program
physician or psychologist” and “all other factors that could have a bearing on the
weight to which an opinion is entitled.” Id. However, “[i]n appropriate circumstances
opinions from State agency medical and psychological consultants and other program
physicians and psychologists may be entitled to greater weight than the opinions of
treating or examining sources.” Id.
As discussed, the lack of medical evidence is a distinguishing factor of
Claimant’s case. Claimant takes issue with the ALJ’s treatment of Dr. Boukhemis’
opinion; however, his opinion was the only acceptable medical source opinion on the
subject of Claimant’s RFC available to the ALJ at the time of his decision. In August
2008, single decision maker Kay Means opined that there was insufficient medical
evidence prior to Claimant’s last insured date to make a RFC finding. (Tr. at 155). The
ALJ appropriately afforded little weight to Ms. Means’ opinion because she was not
an acceptable medical source. (Tr. at 16); see SSR 06-03p. Then, in September 2008,
Dr. Rabah Boukhemis also found that there was insufficient evidence from the
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relevant time period to make a RFC assessment. (Tr. at 251). The ALJ gave Dr.
Boukhemis’ opinion significant weight as it was “consistent with the medical evidence
of record,” created during the relevant time frame, which, indisputably, is sparse. (Tr.
at 16). No medical source opinion as to Claimant’s RFC from any treating or
examining physician existed in the record at the time; consequently, no medical
source opinion conflicted with or weighed against the validity of Dr. Boukhemis’
conclusion. The progress notes from Claimant’s treating physician merely recorded
Claimant’s complaints, vital signs, diagnoses, and medications. They contained no
opinion as to what Claimant was functionally capable of doing despite her limitations.
(Tr. at 208-210).
Moreover, Claimant’s criticism that Dr. Boukhemis neither examined nor
treated her is unjustified. The lack of an examination by Dr. Boukhemis is irrelevant
in light of the fact that Claimant was no longer insured by the time Dr. Boukhemis’
was retained to complete an RFC assessment. Undoubtedly, a physical examination
of Claimant performed by Dr. Boukhemis in September 2008, after Claimant had
seemingly experienced a material change in her condition, would not have yielded
reliable information as to Claimant’s functional abilities over one year earlier.
Likewise, it was unnecessary for the ALJ to provide a more extensive
discussion of his evaluation of the factors listed in 20 C.F.R. § 404.1527(d), because
there were no competing medical source opinions. If treating or examining source
opinions on the issue of Claimant’s RFC had been available at the time of the
administrative hearing and were contradictory to Dr. Boukhemis’ opinion, the ALJ
certainly would have been required to assess and explain the weight given to each
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opinion using the factors set forth in 20 C.F.R. § 404.1527(d). The circumstances of
the case, however, rendered any such discussion superfluous.
As indicated supra, Dr. Sta. Ana did submit a letter over two years after
expiration of Claimant’s insured status, opining that Claimant had “a history of
osteoarthritis for years and was getting worse on February 27, 2007. She was unable
to perform full time work prior to June 30, 2007.” (Tr. at 103). The Appeals Council
considered this opinion and understandably rejected it. Dr. Sta. Ana’s letter failed to
elucidate the basis for his opinion; failed to outline on a function by function basis
what Claimant was physically capable of doing during the relevant time period; and
failed to submit objective medical evidence in support of his opinion. Moreover, the
opinion was neither consistent with nor bolstered by Dr. Sta. Ana’s own office
records.
In addition, Dr. Sta. Ana’s statement that Claimant was unable to work during
the relevant time period was not a medical opinion, but was a legal conclusion on an
issue reserved to the Commissioner. See 20 C.F.R. § 404.1527(e)(3). Medical source
opinions on issues reserved to the Commissioner are treated differently than other
medical source opinions. 20 C.F.R. 404.1527(e). In both the aforestated regulation
and Social Security Ruling 96-5p, the SSA addresses how medical source opinions are
considered when they encroach upon these “reserved” issues; for example, opinions
on “whether an individual’s impairment(s) meets or is equivalent in severity to the
requirements of any impairment(s) in the Listing of Impairments in appendix 1,
subpart P of 20 CFR part 404 (the listings); what an individual’s residual functional
capacity (RFC) is;. . . . and whether an individual is ‘disabled’ under the Social
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Security Act. . .” Opinions concerning issues reserved for the Commissioner are never
entitled to controlling weight or special significance, because “giving controlling
weight to such opinions would, in effect, confer upon the treating source the authority
to make the determination or decision about whether an individual is under a
disability, and thus would be an abdication of the Commissioner’s statutory
responsibility to determine when an individual is disabled.”

SSR 96-5p at 2.

However, these opinions must always be carefully considered and “must never be
ignored.” Id. Although Dr. Sta. Ana’s opinion that Claimant was unable to work
could not be overlooked, it was not entitled to controlling evidentiary value and was
appropriately considered as any other piece of evidence. Because Dr. Sta. Ana did not
offer any objective medical evidence to support his conclusions, such as clinical
findings or test results, and because his statements were inconsistent with the
evidence of record, including his own progress notes from the relevant time period,
the letter did not adequately rebut the ALJ’s sound decision to afford significant
weight to Dr. Boukhemis’ opinion.
Thus, the undersigned respectfully PROPOSES that the United States
District Judge FIND that the ALJ’s decision to give significant weight to the opinion
of agency physician Dr. Boukhemis was supported by substantial evidence.
C.

New and Material Evidence

Claimant’s final argument is that Dr. Sta. Ana’s 2009 letter constitutes new
and material evidence warranting remand pursuant to sentence six of 42 U.S.C. §
405(g). (Pl.'s Br. at 6-7). (Tr. at 103). Claimant suggests that the letter should be
allocated controlling weight, “because it is consistent with substantial evidence and is
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supported by clinical and laboratory diagnostic techniques including MRI’s which
confirmed severe degenerative problems with Claimant’s knees.”

(Pl. Br. at 7).

Claimant asserts that even if the letter is not given controlling weight, it represents a
new and material opinion that may have resulted in the ALJ reaching a different
decision. (Id.).
Title 42 U.S.C. § 405(g) provides that the Court “may at any time order
additional evidence to be taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a prior
proceeding. . .” Remand to the Commissioner on the basis of newly discovered
evidence is appropriate if: (1) the evidence is relevant and not cumulative; (2) the
Commissioner's decision “might reasonably have been different” had that evidence
been presented; (3) good cause for failure to submit the evidence before the
Commissioner is established; and (4) Claimant offers “at least a general showing of
the nature” of the newly discovered evidence. 42 U.S.C. 405(g); Borders v. Heckler,
777 F.2d 954, 955 (4th Cir. 1985). Evidence is new if it is “neither duplicative nor
cumulative,” Bradley v. Barnhart, 463 F.Supp.2d 577, 581 (S.D.W.V. 2006), and is
material if it “bear[s] directly and substantially on the matter in dispute,” and
generates a “reasonable possibility that the new evidence would have changed the
outcome of the determination.” Bradley v. Barnhart, supra at 579, citing Bruton v.
Massanari, 268 F3d. 824 (9th Cir. 2001). Accordingly, Claimant must demonstrate
that Dr. Sta. Ana’s letter constitutes new evidence that is material to the question of
whether Claimant was disabled at the time of her hearing before the ALJ. If so, then
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Claimant must also provide good cause for not having produced this evidence to the
Commissioner during the pendency of her disability application.
Technically, Dr. Sta. Ana’s letter is not “new” evidence, because it was
submitted during the pendency of the application, was made part of the record, and
was considered by the Appeals Council before it refused to review the decision of the
ALJ. In any event, having examined Dr. Sta. Ana’s letter, the undersigned is hardpressed to conclude that there is a reasonable probability that this letter would have
changed the outcome of the ALJ’s determination.
As noted, the regulations provide that a treating physician's opinion is entitled
to controlling weight only where it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); see also Craig v.
Chater, 76 F.3d 585, 590 (4th Cir.1996) (“[I]f 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”). The opinions expressed in Dr. Sta. Ana’s letter
are entirely unsupported by explanation, discussion, or data. Dr. Sta. Ana does not,
for example, explain how he determined that Claimant had osteoarthritis for years;
whether his diagnosis was based on clinical observation, radiographic studies, past
medical records or simply on Claimant’s subjective reports. Similarly, Dr. Sta. Ana’s
letter does not indicate the extent of Claimant’s osteoarthritis; how it might have
limited her range of motion or restricted her ability to perform basic work activities;
and how he discerned her level of functioning. He makes no effort to justify his
conclusions or document his knowledge and expertise on the subject matter of the
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letter.

Claimant contends that the opinion is supported by objective medical

evidence, but the evidence referenced by Claimant post-dated Claimant’s insured
status. Contrary to Claimant’s statements, Dr. Sta. Ana had no contemporaneous
clinical or laboratory data upon which to support his conclusion.
Moreover, Dr. Sta Ana’s opinion that Claimant was unable to work during the
relevant time period likewise is a bald legal conclusion without identifiable findings
or objective evidence. The ALJ is not required to accept the opinion of a treating
source when that opinion is given on an issue reserved to the Commissioner. See 20
C.F.R. §§ 404.1527(e). A bare-bones opinion, written two years late and
retrospectively, without any objective supporting medical evidence, is unlikely to
have changed the outcome of the ALJ’s decision.
Accordingly, the undersigned respectfully PROPOSES that the United States
District Judge FIND that Dr. Sta. Ana’s letter, which Claimant submitted as new
evidence to the Appeals Council, does not constitute new or material evidence under
the applicable case law and, therefore, does not warrant a remand under sentence six
of 42 U.S.C. § 405(g).
VIII. Recommendations for Disposition
Based on the foregoing, the undersigned Magistrate Judge respectfully
PROPOSES that the United States District Judge confirm and accept the findings
herein and RECOMMENDS that the District Court DENY plaintiff’s Motion for
Judgment on the Pleadings (Docket No. 7); GRANT defendant’s Motion for
Judgment on the Pleadings (Docket No. 8), AFFIRM the final decision of the
Commissioner, and DISMISS this action from the docket of the Court.
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The parties are notified that this “Proposed Findings and Recommendations”
is hereby FILED, and a copy will be submitted to the Honorable Robert C.
Chambers, United States District Judge. Pursuant to the provisions of Title 28,
United States Code, Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of
Civil Procedure, Plaintiff shall have fourteen days (filing of objections) and three days
(mailing) from the date of filing this “Proposed Findings and Recommendations”
within which to file with the Clerk of this Court, specific written objections,
identifying the portions of the “Proposed Findings and Recommendations” to which
objection is made, and the basis of such objection. Extension of this time period may
be granted by the presiding District Judge for good cause shown.
Failure to file written objections as set forth above shall constitute a waiver of
de novo review by the District Court and a waiver of appellate review by the Circuit
Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn,
474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to
the opposing parties, Judge Chambers and Magistrate Judge Eifert.
The Clerk is directed to file this “Proposed Findings and Recommendations”
and to provide a copy of the same to counsel of record.
FILED: April 19, 2011.

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