Coleman v. Astrue
Filing
13
MEMORANDUM OPINION The Court finds that the Commissioner's decision is supported by substantial evidence; the final decision of the Commissioner is affirmed and this matter is dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 9/7/2011. (cc: plaintiff; attys) (cbo)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
GENETTA V. COLEMAN,
Plaintiff,
v.
Case No.: 3:10-cv-1254
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
This action seeks a review of the decision of the Commissioner of the Social
Security Administration (hereinafter “Commissioner”) denying Claimant’s application
for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383f. This case is presently before the Court on the parties’ cross
motions for judgment on the pleadings as articulated in their briefs. (Docket Nos. 11
and 12). Both parties have consented in writing to a decision by the United States
Magistrate Judge. (Docket Nos. 5 and 6).
The Court has fully considered the evidence and the arguments of counsel. For
the reasons set forth below, the Court finds that the decision of the Commissioner is
supported by substantial evidence and should be affirmed.
I.
Procedural History
Plaintiff, Genetta Coleman (hereinafter “Claimant”), filed an application for SSI
on April 2, 2004, alleging a disability onset date of January 29, 2000 due to “back
1
problems, left knee deteriorated, anxiety, heart problems, [chronic obstructive
pulmonary disease] COPD, scoliosis.” (Tr. at 88–95, 98). The application was denied
by the Social Security Administration (hereinafter “SSA”) on June 16, 2004. (Tr. at 76–
80).1 Claimant requested reconsideration on April 2, 2005 (Tr. at 67), which was
denied on August 4, 2005. (Tr. at 68–70). Claimant then requested a hearing before an
administrative law judge (hereinafter “ALJ”). (Tr. at 66). A hearing was scheduled for
February 2, 2007 (Tr. at 45–48) but was subsequently dismissed by the ALJ due to the
Claimant’s failure to appear pursuant to 20 C.F.R. 416.1457(b). (Tr. at 16–18).
Claimant successfully appealed the dismissal of her case to the Appeals Council of the
SSA (hereinafter “Appeals Council”), which remanded her case to the ALJ on January
9, 2009. (Tr. at 13–15).
While Claimant’s 2004 application was pending with the Appeals Council,
Claimant filed another application for SSI on January 30, 2008 alleging a disability
onset date of January 9, 2008. (Tr. at 81–84). Claimant’s 2008 application was denied
on initial review and upon reconsideration. (Tr. at 58–65). Following this denial,
Claimant requested a hearing in front of an ALJ, which was conducted by the
Honorable Andrew J. Chwalibog, ALJ, on November 3, 2009. (Tr. at 36). Pursuant to
the Appeals Council’s remand of Claimant’s 2004 application, the ALJ consolidated
the 2004 application with Claimant’s 2008 application.2 (Tr. at 23). The ALJ denied
Claimant’s claims on January 26, 2010. (Tr. at 20–33). The ALJ’s decision became the
In addition to the present application, Claimant previously filed SSI applications on February 25, 2002,
October 23, 2002, and June 4, 2007. Each of these applications was denied at the initial level and not
appealed further. (Tr. at 23).
1
The 2004 and 2008 applications contained different onset dates. The ALJ used the onset date of
January 29, 2000 set forth in the 2004 application for the purposes of his opinion. (Tr. at 23).
2
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final decision of the Commissioner on August 26, 2010 when the Appeals Council
denied Claimant’s request for review. (Tr. at 9–12). Claimant timely filed the present
civil action seeking judicial review of the administrative decision pursuant to 42 U.S.C.
§405(g). (Docket No. 2). The Commissioner filed an Answer and a Transcript of the
Administrative Proceedings, and both parties filed their Briefs in Support of Judgment
on the Pleadings. (Docket Nos. 9–12). Consequently, the matter is ripe for resolution.
II.
Summary of 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 has lasted or 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. § 416.920. The first step in the sequence is determining whether a claimant is
currently engaged in substantial gainful employment. Id. at § 416.920(b). If the
claimant is not, then the second step requires a determination of whether the claimant
suffers from a severe impairment. Id. at § 416.920(c). If 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 (the
“Listing”). Id. at § 416.920(d). If the impairment does, then the claimant is found
disabled and awarded benefits.
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However, if the impairment does not meet or equal any of the impairments , 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. at § 416.920(e). After making this
determination, the next step is to ascertain whether the claimant’s impairments
prevent the performance of past relevant work. Id. at § 416.920(f). If the impairments
do prevent the performance of past relevant work, then the claimant has established a
prima facie case of disability, and the burden shifts to the Commissioner to produce
evidence, 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. 20 C.F.R. §
416.920(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).
When a claimant alleges a mental impairment, the SSA “must follow a special
technique at every level in the administrative review.” 20 C.F.R. § 416.920a. First, the
SSA evaluates the claimant’s pertinent signs, symptoms, and laboratory results to
determine whether the claimant has a medically determinable mental impairment. If
such impairment exists, the SSA documents its findings. Second, the SSA rates and
documents the degree of functional limitation resulting from the impairment
according to criteria specified in 20 C.F.R. § 416.920a(c). Third, after rating the degree
of functional limitation from the claimant’s impairment(s), the SSA determines the
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severity of the limitation. A rating of “none” or “mild” in the first three functional areas
(activities of daily living, social functioning, and concentration, persistence or pace)
and “none” in the fourth (episodes of decompensation) will result in a finding that the
impairment is not severe unless the evidence indicates that there is more than minimal
limitation in the claimant’s ability to do basic work activities. 20 C.F.R. §
416.920a(d)(1). Fourth, if the claimant’s impairment is deemed severe, the SSA
compares the medical findings about the severe impairment and the rating and degree
and functional limitation to the criteria of the appropriate listed mental disorder to
determine if the severe impairment meets or is equal to a listed mental disorder. 20
C.F.R. § 416.920a(d)(2). Finally, if the SSA finds that the claimant has a severe mental
impairment, which neither meets nor equals a listed mental disorder, the SSA assesses
the claimant’s residual function. 20 C.F.R. § 416.920a(d)(3). The Regulation further
specifies how the findings and conclusion reached in applying the technique must be
documented at the ALJ and Appeals Council levels as follows:
The decision must show the significant history, including examination
and laboratory findings, the functional limitations that were considered
in reaching a conclusion about the severity of the mental impairment(s).
The decision must include a specific finding as to the degree of limitation
in each functional areas described in paragraph (c) of this section.
20 C.F.R. § 416.920a(e)(2).
In the present case, at the first step of the sequential evaluation, the ALJ found
that Claimant had not engaged in substantial gainful activity since April 2, 2004, the
date of the first application for benefits. (Tr. at 25, Finding No. 1). The ALJ
acknowledged the Claimant had briefly worked after the alleged onset date, but
considered these efforts to be unsuccessful work attempts. (Id.) Turning to the second
step of the evaluation, the ALJ determined that Claimant had the following severe
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impairments: heart disease, lumbosacral degenerative disk disease, and left knee
pathology. (Tr. at 25, Finding No. 2). The ALJ further concluded that Claimant’s
dizziness, chronic obstructive pulmonary disease, major depression, and generalized
anxiety disorder were not severe. (Id.). Under the third inquiry, the ALJ determined
that Claimant did not have an impairment or combination of impairments that met or
medically equaled any of the impairments detailed in the Listing. (Tr. at 28, Finding
No. 3). Accordingly, the ALJ assessed Claimant’s RFC, finding:
[C]laimant has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except: may lift and/or carry 20 pounds
frequently and 50 pounds occasionally; may stand/walk about 4 hours in
an 8-hour work day, 1 hour without interruption; may sit about 4 hours
in an 8-hour work day, 2 hours without interruption; may occasionally
climb ramp/stairs, stoop, kneel, or crouch; never climb ladder/scaffold,
or crawl; and must avoid hazards (machinery or heights), and may have
only one occasional exposure to moving mechanical parts, humidity and
wetness, vibration, cold, dusts, odors, gases and pulmonary irritants.
(Tr. at 28, Finding No. 4).
The ALJ then analyzed Claimant’s past work experience, age, and education in
combination with her RFC to determine her ability to engage in substantial gainful
activity. (Tr. at 32–33, Finding Nos. 5–9). The ALJ considered that (1) Claimant was
unable to perform any past relevant work; (2) she was born in 1963, and at age 40, was
defined as a younger individual age 18-49 on the date the application was filed (20
CFR 416.963); (3) she had a high school education and could communicate in English;
and (4) transferability of job skills was not material to the disability determination
because, under the Medical-Vocational Rules, the evidence supported a finding that
the claimant was “not disabled” regardless of whether she had transferable job skills.
(Transcript at 32, Finding Nos. 5–8). Based on the testimony of a vocational expert,
the ALJ found that Claimant could make a successful adjustment to employment
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positions that existed in significant numbers in the national economy, such as a light
night guard, light packer, machine tender and sedentary inspector. (Tr. at 32–33,
Finding No. 9). Therefore, the ALJ concluded that Claimant was not disabled and,
thus, was not entitled to benefits. (Tr. at 33, Finding No. 10).
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, the Fourth Circuit Court of Appeals defined
“substantial evidence” to be:
[E]vidence 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)). This Court is not charged with conducting a de
novo review of the evidence. Instead, the Court’s function is to scrutinize the totality of
the record and determine whether substantial evidence exists to support the
conclusion of the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). The decision for the Court to make is “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.3d 585, 589 (4th Cir. 2001)). If substantial evidence exists, then the Court must
affirm the decision of the Commissioner “even should the court disagree with such
decision.” Blalock, 483 F.2d at 775. A careful review of the record reveals that the
decision of the Commissioner is based upon an accurate application of the law and is
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supported by substantial evidence.
IV.
Claimant’s Background
Claimant was 40 years old at the time she filed her application for benefits and
45 years old at the time of her administrative hearing. (Tr. at 32). Claimant had
previous experience working as a stock person, cashier, receiving clerk, and delivery
worker. (Tr. at 32). Claimant had a high school education, attended three years of
college, (Tr. at 889) and was proficient in English. (Tr. at 32).
V.
Relevant Evidence
The Court has reviewed the Transcript of Proceedings in its entirety, including
the medical records in evidence, and summarizes below Claimant’s medical treatment
and evaluations to the extent that they are relevant to the issues in dispute.
A.
Treatment Records
Claimant first sought treatment for back pain in August 2000. On August 28,
2000, Claimant presented to Pleasant Valley Hospital (“PVH”) after injuring her back
at work as a stockperson. (Tr. at 442, 852). The x-ray taken of Claimant’s thoracic
spine showed minimal degenerative changes that were suggestive of “chronic
findings.” (Tr. at 442). No other changes or unusual findings were reported. (Id.).
Claimant returned to PVH several months later on November 16, 2000, again
complaining of backaches and problems with her spine. (Tr. at 441). A bone scan of
Claimant’s spine was “unremarkable” with no focal points of abnormal bone activity.
(Id.) Claimant returned to PVH on May 11, 2001, complaining of lower back pain. (Tr.
at 440). Accordingly, a MRI of Claimant’s lumbar spine was performed. (Id.). The MRI
revealed mild signal loss within the L5/S1 disc and the absence of disc herniation. (Id.).
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On January 24, 2002, Claimant presented to Taylor Chiropractic for back pain.
(Tr. at 337). In her new client intake form, Claimant noted that her main complaint
was pain in her upper and lower back, particularly in the shoulder blades and hips. (Tr.
at 338–39). X-rays were taken, which were negative for fractures, but showed mild
hyper lordosis3 of the lumbar spine with normal S1 joints. (Tr. at 337). In addition, the
film suggested that Claimant’s hips were moderately unleveled. (Id.)
A month later on February 27, 2002, Claimant began treatment with James
Wagner, DO, at Point Clinic. Dr. Wagner served as Claimant’s primary care physician
until July 2004. (Tr. at 230–69). Claimant’s complaints were consistent throughout
this time period; her main complaints were of back pain, knee pain, and anxiety. (Id.).
Claimant also complained of migraine headaches, asthma, and weight loss. (Id.). Dr.
Wagner diagnosed Claimant with chronic back pain, scoliosis, arthritis in her left knee,
fibromyalgia, anxiety, and depression. (Id.).
Over the course of Claimant’s treatment, Dr. Wagner ordered numerous x-rays
of Claimant’s chest, spinal area, and knees. (Tr. at 426–39). Each set of chest x-rays
was negative without pulmonary or cardiac abnormalities until November 19, 2003
when a chest x-ray suggested mild COPD. (Tr. at 427). A June 2004 x-ray confirmed
the finding of mild COPD. (Tr. at 424). Similarly, the x-rays of Claimant’s left knee and
left patella were without abnormalities. (Tr. at 437). Computed tomographies (CT) of
Claimant’s head were conducted in November 2003 and March 2004; both were
negative. (Tr. at 282, 428).
Hyper lordosis is defined as “exaggerated anterior concavity in the curvature of the lumbar and cervical
spine as viewed from the side.” Dorland's Medical Dictionary for Health Consumers, 2007.
3
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In January 2003, Claimant was referred by Dr. Wagner to Michael Englund,
DO, for complaints of chest pain of unknown etiology. (Tr. at 326–34). Dr. Englund
ordered an EKG, which showed normal sinus rhythm with non-specific STT wave
changes. An echocardiogram revealed leaky mitral and tricuspid values, but no severe
valvular disease. Dr. Englund recommended right and left heart catheterization and
selective angiography to investigate the source of Claimant’s pain. (Tr. at 326–27). On
February 25, 2003, these procedures were performed; the results were essentially
unremarkable with a normal ejection fraction and mild mitral valve regurgitation. (Tr.
at 323–325). Dr. Englund arranged a neurological consultation to rule out thoracic
outlet syndrome as the cause of Claimant’s chest pain. The consulting physician found
no evidence of thoracic outlet syndrome or focal neurological deficits and suggested
nerve conduction studies to rule out carpal tunnel syndrome. (Tr. at 316). In March
2003, after reviewing an EMG and an ultrasound of Claimant’s heart and upper
extremities, Dr. Englund noted that he cardiac workup was “somewhat negative” but
should be further examined for small vessel coronary disease. (Tr. at 312–13, 315).
Claimant continued to complain of chest pain to Dr. Wagner. (Tr. at 254). She
described the pain as sharp and reported that she also was having “a lot of stress.”
(Id.) In early December 2003, Claimant returned to Dr. Englund complaining that her
chest pain was progressing and she had become extremely fatigued. Dr. Englund
performed another cardiac catheterization and echocardiogram. After reviewing the
results, he diagnosed Claimant as suffering from angina pectoris with normal
ventricular function. (Tr. at 287–90). A follow-up CT scan of Claimant’s chest taken in
December 5, 2003 revealed signs of granulomatous disease. (Tr. at 286).
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Claimant next saw Dr. Englund on March 24, 2004. Claimant reported that she
continued to have chest pain and had actually “passed out.” (Tr. at 283–84). Dr.
Englund noted that Claimant’s prior cardiac work-up had been negative, but he was
concerned about her syncopal episodes. He recommended that she see a vascular
specialist to determine if her episodes were caused by a vascular type disorder. (Tr. at
284).
He also indicated that she needed to continue working on aggressive risk
modifications. (Id.).
Dr. Wagner also referred Claimant to Robert McCleary, DO, for evaluation of
her left knee pain. Dr. McCleary recommended a lateral release operation, which he
performed successfully with some relief of Claimant’s pain. (Tr. at 347–48). However,
several months after surgery, Claimant slipped and fell in her bathtub, hitting her knee
and causing anterior knee pain. On June 1, 2004, Dr. McCleary examined Claimant’s
knee and diagnosed patellar chondromalacia4 in Claimant’s left knee, which was later
confirmed by an arthroscopic examination. (Tr. at 347, 421). In July 2004, Dr.
McCleary prescribed physical therapy for Claimant’s knee. (Tr. at 346). Unfortunately
in August 2004, Claimant tripped and fell again, this time spraining her medial
collateral ligament (MCL). Dr. McCleary recommended continued physical therapy
and prescribed Lortab for pain. (Tr. at 345). Claimant reported her third fall in
November 2004, stating that she had tripped over a bench in her yard and landed on
her left knee, lower leg, and left ankle. Dr. McCleary noted moderate swelling of the
knee and abundant bruising over the distal aspect of the tibia and fibula. (Tr. at 344).
4 Patellar chondromalacia refers to the progressive erosion of the articular cartilage of the knee joint,
that is the cartilage underlying the kneecap that articulates with the knee joint. Mosby's Medical
Dictionary, 8th edition, 2009.
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X-rays were negative for fractures. Dr. McCleary prescribed physical therapy, Lortab,
and an ankle stabilizing brace. (Id.).
In October 2004, Claimant switched primary care physicians and began treating
with Brenton Morgan, MD. (Tr. at 447). At the initial visit, Claimant reported knee
pain and coronary artery disease with mitral valve regurgitation. (Id.). Dr. Morgan
performed an examination and ordered x-rays of Claimant’s left lower leg, left ankle,
left knee and chest. The skeletal x-ray findings were unremarkable, and Dr. Morgan
noted “minimal degenerative changes” in Claimant’s left knee. (Tr. at 403–04). The
chest x-ray showed air trapping suggestive of mild chronic obstructive pulmonary
disease (COPD). (Tr. at 408). Dr. Morgan diagnosed Claimant as suffering from COPD,
valvular heart disease, chronic back pain, and depression. (Tr. at 386–87, 445). He
ordered an exercise stress test (myocardial perfusion scan) in May 2005, which
revealed that Claimant’s heart rate when stressed and when resting was normal. (Tr at
380–82).
On February 19, 2006, Claimant was evaluated at PVH’s Emergency
Department for complaints of lower back pain that had worsened in the prior two days.
(Tr. at 691–93). The attending physician diagnosed Claimant as suffering from an
acute exacerbation of musculoskeletal pain in the lower back. She was given Flexeril
for the pain and told to apply heat.
Claimant subsequently was referred to Robert Lewis, MD, at Pleasant Valley
Hospital Neurophysiology Center for leg and hand tremors and restless leg syndrome.
(Tr. at 567–68). After completing his examination, Dr. Lewis diagnosed restless leg
syndrome by history; tremor with family history of tremor, but without evidence of
Parkinson’s Disease; and numbness in Claimant’s upper extremities that could signify
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carpal tunnel syndrome. Dr. Lewis scheduled nerve conductions studies to rule out
carpal tunnel syndrome. (Id.). The nerve conduction studies showed no evidence of
carpal tunnel syndrome or ulnar neuropathy. (Tr. at 551–53). X-rays of Claimant’s
lumbar spine and hips likewise were normal with no evidence of acute fracture or
disease. (Tr. at 554, 642).
In February 2007, Claimant again switched primary care physicians to Randall
Hawkins, MD. Claimant’s complaints were consistent with her past medical concerns:
pain in her lower back and hips; angina; depression; and anxiety. (Tr. at 636–37). Dr.
Hawkins ordered diagnostic studies including an echocardiogram, myocardial
perfusion spect scan, and a chest X-ray. (Tr. at 617–19, 635). These studies were
negative for abnormalities. (Id.). Around this time, Claimant returned to Dr. Lewis for
leg weakness, knee pain, and low back pain that, according to Claimant, moved down
her leg causing numbness in both feet. (Tr. at 551-553). Dr. Lewis performed nerve
conduction studies, which confirmed normal nerve patterns with no evidence of
generalized polyneuropathy, myopathy, or left lumbosacral radiculopathy. (Tr. at 551552).
On March 16, 2007, Dr. Hawkins examined Claimant in follow-up, documenting
no evidence of angina or hypertension. (Tr. at 632–34). Further, Dr. Hawkins found no
obvious neck or back pathology, depression, or psychosis. (Tr. at 682–84). In April
2007, he ordered a MRI of Claimant’s lumbar spine and hip, which revealed a disc
bulging at the L5-S1 level. The imaging showed no disc herniation and the remainder
of the findings were normal. (Tr. at 613–14). Dr. Hawkins ordered another CT scan of
Claimant’s head in July of 2007; the results were normal. (Tr. at 600). Dr. Hawkins
performed an EKG on Claimant and found a possible left atrial enlargement and a
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nonspecific T wave abnormality.5 (Tr. at 603–04). In August 2007, Claimant had
another X-ray of her left hip. The X-ray showed no fracture or abnormality with
Claimant’s hip. (Tr. at 598–99). Two days later, Claimant presented to the PVH
Emergency Department with complaints of severe lower back and hip pain. (Tr. at 675676). She was treated and released.
Following a car accident in October 2007, Claimant was taken to the Emergency
Department for complaints of pain in her chest, abdomen, and back. A CT scan of
Claimant’s abdomen and X-rays of her spine, pelvis, right shoulder, and chest were
completed. (Tr. at 656–58). The CT scan showed no gross abnormalities. (Tr. at 668).
The X-rays showed evidence of mild degenerative arthritic changes in Claimant’s lower
cervical spine but otherwise evidenced a normal spine, pelvis, right shoulder and chest.
(Tr. at 669–73). Claimant was discharged with instructions to consult with her primary
care physician and push fluids. (Tr. at 658). Six days later, Claimant returned to the
Emergency Department complaining of pain in her right shoulder, left rib, sternum,
and left flank, which she attributed to the automobile accident. The attending
physician ordered a chest CT scan to cover the shoulders, renal area, and sternum. (Tr.
at 651).
The scan showed no acute process, such as fractures, but did reveal a
granuloma in the right upper lung lobe and some calcifications in the right hilar nodes.
(Tr. at 652).
One week later, Claimant saw Dr. Hawkins in follow-up and complained of
“pain all over.” (Tr. at 593–94). Dr. Hawkins wrote a note stating that Claimant was
unable to work at present due to the motor vehicle accident. (Tr. at 592). In December
A T Wave represents repolarization or recovery of the ventricles. Dorland's Medical Dictionary for
Health Consumers, 2007.
5
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2007, Claimant had an MRI performed on her right shoulder for a possible rotator cuff
tear. (Tr. at 649). The MRI indicated minimal joint arthroplasty and mild
suacromial/subdeltoid bursitis; no other problems were observed. The rotator cuff
was intact. (Id.).
John Wade, MD, began treating Claimant in March 2008 for ear pain, tinnitus,
asthma and allergies. (Tr. at 804). At the request of Dr. Wade, an X-ray was taken of
Claimant’s chest, which showed healing fractures of the left 7th and 8th ribs. (Tr. at
798). Dr. Wade prescribed medications for Claimant to lessen her allergic reactions
and improve her breathing. (Tr. at 795). He also performed an audiological study on
Claimant, which confirmed that her hearing was within normal limits. (Tr. at 806).
Claimant returned to treatment with Dr. Wagner in April 2008, complaining of
tachycardia and chest pains. (Tr. at 735).
She stated that she “feels her heartbeat in
[her] throat” and was having increased “stress/anxiety at home.” (Id.). Dr. Wagner
recommended an EKG and thyroid panel. He diagnosed osteoporosis; tachycardia; and
chest pain. (Tr. at 734). In October 2008, Dr. Wagner completed a statement of
disability for West Virginia’s Medical Review Team. Dr. Wagner noted that Claimant
suffered from COPD, chest, lumbar spine pain, hip pain, anxiety, and depression. (Tr.
at 731–33). Dr. Wagner concluded that Claimant was not employable and would likely
remain permanently unable to work. (Id.).
On November 25, 2008, Dr. Lewis re-examined Claimant for low back and left
leg pain at the request of Dr. Wagner and Dr. Wade. (Tr. 749–51, 782–84). He
diagnosed Claimant with lumbar region disc disorder; lumbosacral radioculopathy; left
lower leg pain; and lumbago. (Id.). Dr. Lewis ordered an EMG, a MRI of the spine, and
hip and pelvis X-rays. The MRI of Claimant’s lumbar spine showed evidence of an old
15
fracture of the superior end plate of L2 and herniation of the left posterolateral disc at
L5/S1 causing compression or displacement of the left traversing nerve. (Tr. at 745).
The EMG and nerve conduction studies were within normal limits. (Tr. at 746-47). Dr.
Lewis recommended physical therapy. (Tr. at 780). Claimant began receiving therapy
and attended a total of six sessions before unilaterally deciding to stop treatment.
During the therapy course, Claimant cancelled four sessions and was a “no show” at six
additional sessions out of the twenty scheduled sessions. (Tr. at 752, 758).
In May 2009, Dr. Wagner was asked by Claimant’s attorney to provide answers
to certain questions related to her alleged disability. (Tr. at 769-70). Dr. Wagner
responded by stating that he did not believe Claimant could engage in full-time work
because of her severe pain and physical limitations, including depression and arthritis
of the knee. (Id.). Dr. Wagner noted that he had not been following her back pain.
(Id.). Dr. Wagner completed a Medical Assessment of Claimant’s Ability To Do WorkRelated Activities, opining that Claimant was unable to stand or walk more than 15
minutes uninterrupted, sit for more than 30 minutes at a time, lift or carry items
heavier than five pounds, and was subject to significant physical, postural, and
environmental limitations. (Tr. at 771–74).
B.
Agency Assessments
i.
Physical Health Assessments
On June 2, 2004, a state agency physician, completed a RFC assessment and
found that Claimant could perform heavy work that required no more than occasional
climbing or balancing; frequent stooping, kneeling, crouching, and crawling; and
allowed her to avoid concentrated exposure to heights. (Tr. 186–93). The reviewing
physician found that Claimant was partially credible and could occasionally lift 50
16
pounds; frequently lift 25 pounds; stand or walk six hours in a day; sit for six hours a
day; and was unlimited in her ability to push or pull. (Id.).
On February 24, 2005, Rogelio Lim, MD, completed a second RFC assessment
of Claimant at the request of the SSA. (Tr. at 358–68). Dr. Rogelio’s primary diagnosis
was non-cardiac chest pain and COPD with a secondary diagnosis of scoliosis and
problems with Claimant’s left knee. (Tr. at 358). Dr. Rogelio found that Claimant could
occasionally lift 20 pounds; frequently lift 10 pounds; stand or walk six hours in a day;
sit for six hours a day; and was unlimited in her ability to push or pull. (Tr. at 359). Dr.
Rogelio concluded that Claimant could perform at least light work that required no
more than occasional postural movements and allowed her to avoid concentrated
exposure to extreme cold, vibration, and environmental irritants. (Tr. at 360–65).
On August 2, 2005, Fulvio Franyutti, M.D., reviewed the medical evidence of
record and prepared a RFC assessment of Claimant. (Tr. at 462–71). Dr. Franyutti
found that Claimant could occasionally lift 20 pounds; frequently lift 10 pounds; stand
or walk six hours in a day; sit for six hours a day; and was unlimited in her ability to
push or pull. (Tr. at 463). Dr. Franyutti concluded Claimant was partially credible and
that Claimant could perform light work that required no more than occasional postural
movements and allowed her to avoid concentrated exposure to extreme cold, extreme
heat and hazards. (Tr. 462–71).
On September 11, 2007, Robert Holley, MD, performed a physical examination
of Claimant at the request of the SSA. (Tr. at 574–80). Based on his examination, Dr.
Holley diagnosed Claimant with COPD, depression and anxiety, hyperlipidemia,
internal derangement of the left knee, and osteoarthritis of the lumbar spine. (Tr. at
577–78). Dr. Holley also diagnosed Claimant with shoulder impingement syndrome
17
and osteoarthritis of her left sacroiliac joint by history.6
On April 9, 2008, Amy Wirts, M.D., a state agency physician, reviewed the
medical evidence of record and completed a RFC assessment of Claimant. (Tr. at 696–
703). Dr. Wirts found that Claimant could occasionally lift 20 pounds; frequently lift
10 pounds; stand or walk six hours in a day; sit for six hours a day; and was unlimited
in her ability to push or pull. (Tr. at 697). In conclusion, Dr. Wirts stated that Claimant
could perform light work that required no more than occasional postural movements
and allowed her to avoid concentrated exposure to extreme cold, extreme heat,
vibration, and hazards. (Tr. at 696–703).
On July 17, 2008, A. Rafael Gomez, MD, a state agency physician, reviewed the
medical evidence of record and completed an updated RFC assessment of Claimant.
(Tr. at 722–29). Dr. Gomez found that Claimant could occasionally lift 20 pounds;
frequently lift 10 pounds; stand or walk six hours in a day; sit for six hours a day; and
was unlimited in her ability to push or pull. (Tr. at 723). Dr. Gomez concluded that
Claimant could perform light work that required no more than occasional climbing
ramps and stairs, balancing, stooping, kneeling, or crouching; never required climbing
ladders, ropes, or scaffolds or crawling; and allowed her to avoid concentrated
exposure vibration, and hazards. (Tr. at 722–29).
On August 20, 2009, Dr. Beard performed a second physical examination of
Claimant at the request of the SSA. (Tr. at 807–13). Claimant’s complaints were
consistent with her medical records: trouble breathing; chest pain; knee, back, and
6 The sacroiliac joint is the joint formed by the sacrum and ilium where they meet on either side of the
lower back. The joint bears the leverage demands made by the trunk of the body as it turns, twists, pulls,
and pushes. When these motions place an excess of stress on the ligaments binding the joint and on the
connecting muscles strain may result. Mosby's Medical Dictionary, 8th edition, 2009.
18
neck pain; and a history of fibromyalgia. (Tr. at 807–812). After the examination, Dr.
Beard concluded that Claimant had left knee internal derangement status with possible
osteoarthritis; chronic lumbosacral strain and left radicular symptoms with MRI
evidence of L5-S1 disc herniations and possible left nerve root impingement;
noncritical coronary artery disease; chest pain, consistent with stable angina; and
asthma/COPD. (Tr. at 812).
Dr. Beard also completed a “Medical Source Statement of Ability to Do WorkRelated Activities (Physical)” in which he opined that Claimant could lift and/or carry
20 pounds frequently and 50 pounds occasionally; stand and/or walk about 4 hours
total in an 8 hour day, 1 hour without interruption; sit about 4 hours total in an 8 hour
day, 2 hours without interruption; frequently reach; frequently push/pull bilaterally
with the upper extremities; and occasionally operate foot controls with the left lower
extremity. (Tr. at 814–19). Dr. Beard noted certain postural and environmental
limitations, including: occasionally climbing ramps/stairs, stooping, kneeling, or
crouching; never climbing ladders or scaffolds or crawl. (Id.). Further, Dr. Beard found
that Claimant must avoid hazards such as machinery or heights, and may have only
occasional exposure to moving mechanical parts, humidity and wetness, vibration,
cold, dusts, odors, gases, and pulmonary irritants (Id.).
ii.
Mental Health Assessments
On July 13, 2003, Joseph Kuzniar, Ed.D, completed a Psychiatric Review
Technique (PRT) of Claimant. (Tr. at 448–61). Mr. Kuzniar found that Claimant’s
impairments were not severe, noting that Claimant suffered from depression that did
not satisfy the diagnostic criteria for an affective disorder. (Tr. at 451). Mr. Kuzniar
opined that Claimant’s limitations with respect to social functioning, daily living,
19
concentration, pace, and persistence were all mild. (Tr. at 458).
On June 12, 2004, Holly Hoback Clark, MD, completed a second PRT
assessment. (Tr. at 194–207). Dr. Clark found that Claimant suffered from depression
and anxiety, but these impairments were not severe. (Tr. at 194). Dr. Clark noted that
Claimant’s limitations with respect to social functioning, daily living, concentration,
pace, and persistence were all mild. (Tr. at 204).
On January 25, 2005, Catherine Van Verth Sayre, M.D. at Prestera Center for
Mental Health Services, conducted a mental status examination for disability
purposes. (Tr. at 354–57). Claimant reported that she had applied for disability due to
“bad nerves and depression” and also described a variety of health problems including
scoliosis, a chipped disc, torn ligaments in her back, arthritis in her hips, COPD, heart
problems, knee problems requiring surgery. (Tr. at 354). On examination, Claimant
displayed a depressed mood and a broad affect (Tr. at 356). She displayed a normal
immediate memory, a moderately impaired recent memory, and a mildly impaired
remote memory but had normal concentration, task persistence, pace and social
functioning (Tr. at 356).
Ms. Sayre diagnosed Claimant with Major Depressive
Disorder, recurrent, moderate. She opined that Claimant’s prognosis was fair. (Id.).
On March 4, 2005, Rosemary L. Smith, Psy.D., completed an updated PRT
assessment of Claimant. (Tr. at 366–79). Ms. Smith found that Claimant’s
psychological impairments were not severe, noting that Claimant suffered from
depression that did not satisfy the diagnostic criteria for an affective disorder. (Tr. at
369). Ms. Smith concluded that Claimant was not entirely credible and noted that
Claimant’s limitations with respect to social functioning, daily living, concentration,
pace, and persistence were all mild. (Tr. at 375–39).
20
On August 30, 2007, Janice Hunter, M.A., Ed.S., performed a consultative
evaluation of Claimant at the request of the SSA. (Tr. at 569–573). Claimant reported
no current mental health treatment, stating that she last received care at Prestera
Center for Mental Health Services in 2005. (Tr. at 570). Regarding daily activities,
Claimant stated that she took care of her personal hygiene; managed her household
finances; drove to the store; prepared meals; read, watched television; used the
internet; and went to the library. (Tr. at 571). Ms. Hunter diagnosed dysthmic
disorder,7 generalized anxiety disorder, and adjustment disorder with mixed anxiety
and depressed mood. (Tr. at 573). Ms. Hunter found Claimant’s social functioning,
insight, judgment, memory, concentration, persistence, and pace to be within normal
limits and placed no functional restrictions on Claimant’s ability to work. (Tr. at 572–
73).
On April 10, 2008, Timothy Saar, Ph.D., a state agency psychologist, reviewed
the medical evidence of record and completed a PRT assessment of Claimant. (Tr. at
705–18). Dr. Saar found that Plaintiff’s impairments were not severe, noting that
Claimant suffered from depression that did not satisfy the diagnostic criteria for an
affective disorder. (Tr. at 708). Dr. Saar concluded that Claimant was credible but
noted that Claimant had no limitations with respect to social functioning and daily
living, and that her limitations regarding concentration, pace, and persistence were all
mild. (Tr. at 715). On July 12, 2008, Jeff Harlow, Ph.D., a state agency psychologist,
affirmed Dr. Saar’s opinion based on a review and analysis of the evidence in
Claimant’s case file. (Tr. at 720).
7 Dysthymic disorder is a chronically depressed mood that occurs for most of the day more days than not
for a least two years. Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 4th edition,
1994.
21
VI.
Claimant’s Challenges to the Commissioner’s Decision
Claimant contends that the Commissioner’s decision is not supported by
substantial evidence because: (1) Claimant’s physical and mental impairments in
combination are equal to Listed Impairment 1.04; (2) Claimant’s subjective complaints
of pain are entitled to full credibility and establish her disability; (3) the ALJ failed to
properly consider the opinion of Claimant’s treating physicians; and (4) the ALJ
incorrectly determined several of Claimant’s alleged impairments to be not severe.
(Pl.’s Br. at 5–9). In response, the Commissioner argues that substantial evidence
supports the ALJ’s decision that Claimant is not disabled because: (1) Claimant’s
impairments do not equal Listed Impairment 1.04; (2) the ALJ reasonably determined
Claimant’s credibility to be “fair”; (3) the ALJ reasonably weighed the opinion evidence
of record; and (4) the ALJ correctly found several of Claimant’s alleged impairments
not severe. (Def.’s Br. at 12–16).
VII.
Analysis
Having thoroughly considered the evidence and the arguments of counsel, the
Court rejects Claimant’s contentions as lacking merit. Additionally, the Court finds
that the decision of the Commissioner is supported by substantial evidence and should
be affirmed.
A.
Impairments in Combination
Claimant first argues that her impairments when considered in combination
“obviously” equal a listed impairment. Specifically, Claimant contends that her “back
disorder closely approaches Listing 1.04 (Disorders of the spine) and is disabling when
considered in conjunction with her other health problems.” (Pl.’s Br. at 6). The Court
finds this argument unpersuasive.
22
A determination of disability may be made at step three of the sequential
evaluation when a claimant’s impairments meet or medically equal an impairment
included in the Listing. The purpose of the Listing is to describe “for each of the major
body systems, impairments which are considered severe enough to prevent a person
from doing any gainful activity.” See 20 C.F.R. § 404.1525. Because the Listing is
designed to identify those individuals whose medical impairments are so severe that
they would likely be found disabled regardless of their vocational background, the SSA
has intentionally set the medical criteria defining the listed impairments at a higher
level of severity than that required to meet the statutory standard of disability. Sullivan
v. Zebley, 493 U.S. 521, 532 (1990). Inasmuch as the Listing bestows an irrefutable
presumption of disability, “[f]or a claimant to show that his impairment matches a
[listed impairment], it must meet all of the specified medical criteria.” Sullivan v.
Zebley, supra at 530 (1990). Similarly, “[f]or a claimant to qualify for benefits by
showing that his unlisted impairment, or combination of impairments is ‘equivalent’ to
a listed impairment, he must present medical findings equal in severity to all the
criteria for the one most similar listed impairment . . . A claimant cannot qualify for
benefits under the ‘equivalency’ step by showing that the overall functional impact of
his unlisted impairment or combination of impairments is as severe as that of a listed
impairment.” Id. at 531.8 Accordingly, to determine whether a combination of
impairments equals the severity criteria of a listed impairment, the signs, symptoms,
The Supreme Court explained the equivalency concept by using Down’s syndrome as an example.
Down’s syndrome is “a congenital disorder usually manifested by mental retardation, skeletal deformity,
and cardiovascular and digestive problems.” Id. At the time of the Sullivan decision, Down’s syndrome
was not an impairment included in the Listing. Accordingly, in order to prove medical equivalency to a
listed impairment, a claimant with Down’s syndrome had to select the single listing that most resembled
his condition and demonstrate fulfillment of the criteria associated with that listing.
8
23
and laboratory data of the combined impairments must be compared to the severity
criteria of the Listing. “The functional consequences of the impairments . . .
irrespective of their nature or extent, cannot justify a determination of equivalence.
Id. at 532, citing SSR 83-19.9
In this case, to medically equal Listing 1.04, Claimant must demonstrate a
disorder of the spine, which results in compromise of a nerve root and shows evidence
of nerve root compression, spinal arachnoiditits, or lumbar spinal stenosis. The ALJ
explicitly compared Claimant’s clinical findings to Listing 1.04 and concluded that her
medical findings, signs, and laboratory data did not meet the severity criteria of the
listing specifically because there was no evidence of the requisite motion, motor, or
sensory loss. (Tr. at 28). The ALJ went further and compared Claimant’s medical
findings to the listing for reconstructive surgery of a major weight-bearing joint
(Listing 1.03) and ischemic heart disease (Listing 4.04). For these listed impairments,
the ALJ examined the delineated criteria and explained his reasons for concluding that
Claimant failed to meet or equal the severity level required by the listed impairment.
The Court finds the ALJ’s determinations were supported by substantial evidence.
If Claimant’s argument is not that her impairments are medically equivalent to
a listed impairment, but that the overall functional consequence of her combined
impairments meets the statutory definition of disability, the analysis shifts from the
Listing to the ALJ’s RFC findings and the remaining steps of the sequential evaluation.
As the Fourth Circuit Court of Appeals stated in Walker v. Bowen, “[i]t is axiomatic
that disability may result from a number of impairments which, taken separately,
SSR 83-19 has been rescinded and replaced with SSR 91-7c, which addresses medical equivalence in
the context of SSI benefits for children. However, the explanation of medical equivalency contained in
Sullivan v. Zembly, supra remains relevant to this case.
9
24
might not be disabling, but whose total effect, taken together, is to render claimant
unable to engage in substantial gainful activity.” 889 F.2d 47, 50 (4th Cir. 1989). The
social security regulations provide:
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.
20 C.F.R. § 404.1523. Where there is a combination of impairments, the issue “is not
only the existence of the problems, but also the degree of their severity, and whether,
together, they impaired the claimant’s ability to engage in substantial gainful activity.”
Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974). The ailments should not be
fractionalized and considered in isolation, but considered in combination to determine
the impact on the ability of the claimant to engage in substantial gainful activity.
Reichenbach v. Heckler, 808 F.2d 309 (4th Cir. 1985). The cumulative or synergistic
effect that the various impairments have on claimant’s ability to work must be
analyzed. DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
An examination of the ALJ’s RFC assessment confirms that he took into account
the exertional and non-exertional limitations that resulted from Claimant’s medically
determinable impairments. He restricted Claimant to light exertional work based upon
her musculoskeletal conditions and limited her exposure to pulmonary irritants in
light of her COPD. (Tr. at 29-32). The ALJ provided a thorough review of the objective
medical evidence, the subjective statements of Claimant, and the opinion evidence. To
the extent that the ALJ disregarded the impact of some non-severe impairments, such
as Claimant’s depression and anxiety, he explained his reasons for doing so. (Id.).
25
Moreover, at the administrative hearing, the ALJ presented the vocational expert with
a hypothetical question that required the expert to taken into account Claimant’s
impairments in combination. He asked the expert to assume that Claimant had the
exertional limitations identified in her RFC assessments, as well as additional postural
and environmental limitations. Despite being asked to assume all of these restrictions,
the vocational expert opined that Claimant could perform certain jobs that existed in
significant numbers in the economy. (Id.). Therefore, the Court is satisfied that the
ALJ adequately considered and accounted for the overall functional impact of
Claimant’s combined impairments.
B.
Challenges to Credibility
Claimant contends that her subjective complaints of pain are sufficient to
establish that she is disabled “in as much as her underlying impairments are capable of
producing the degree of pain she alleges” and that she is “entitled to full credibility
because her exertional and non-exertional impairments are disabling in nature.” (Pl.’s
Br. at 6). In support of these contentions, Claimant asserts that her testimony and the
medical records are “mutually supportive” and therefore satisfy the requirements of 42
U.S.C. § 423(d)(5)(A). (Id.). Relying upon the Fourth Circuit Court of Appeals’ opinion
in Hines v. Barnhart, 453 F.3d 559 (4th Cir. 2006), Claimant emphasizes that “a
finding of disability can be based exclusively on subjective evidence of pain if a
claimant’s impairments can reasonably be expect to produce same.” (Pl. Br. at 6). She
argues further that the ALJ erroneously failed to explain why he disregarded
Claimant’s subjective complaints of claim. (Id.).
While Claimant correctly cites the case law, her challenge fails for two reasons.
First, the ALJ properly employed the two-step process set forth in SSR 96-7p to
26
determine the severity of the subjective symptoms alleged by Claimant. Second, the
ALJ explained at length why he did not assign full credibility to Claimant’s statements
regarding the intensity, persistence, and severity of her symptoms. (Tr. at 29–31).
In Hines v. Barnhart, supra, the Fourth Circuit reiterated its long-held
standard governing the role of subjective evidence in proving the intensity, persistence,
and disabling effects of pain, stating “[b]ecause pain is not readily susceptible of
objective proof, however, the absence of objective medical evidence of the intensity,
degree or functional effect of pain is not determinative.” Id. at 564-565 (emphasis in
original). Hence, once an underlying medical condition capable of eliciting pain is
established by objective medical evidence, disabling pain can be proven by subjective
evidence alone. However, this standard does not require the ALJ to ignore objective
evidence that implies the intensity or degree of pain. To the contrary; to the extent that
objective evidence exists, the ALJ should consider it. Moreover, in determining the
weight to give to subjective descriptions of pain, the ALJ must consider the credibility
of the claimant.
Social Security Ruling 96-7p was promulgated to further elucidate the process
by which an ALJ must evaluate symptoms, including pain, pursuant to 20 C.F.R. §
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 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
27
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 should consider in
assessing the claimant’s credibility, emphasizing the importance of explaining the
reasons supporting the credibility determination. In performing this evaluation, the
ALJ must take into consideration “all the available evidence,” including: the claimant’s
subjective complaints; claimant's medical history, medical signs, and laboratory
findings;10 any objective medical evidence of pain (such as evidence of reduced joint
motion, muscle spasms, deteriorating tissues, redness, etc.);11 and any other evidence
relevant to the severity of the impairment, such as evidence of the claimant's daily
activities, specific descriptions of the pain, the location, duration, frequency and
intensity of symptoms; precipitating and aggravating factors; any medical treatment
taken to alleviate it; and other factors relating to functional limitations and
restrictions.12 Craig v. Cather, 76 F.3d 585, 595 (4th Cir. 1996). In Hines, the Fourth
Circuit Court of Appeals stated,
[a]lthough a claimant’s allegations about her pain may not be discredited
solely because they are not substantiated by objective evidence of the
pain itself or its severity, they need not be accepted to the extent they are
inconsistent with the available evidence, including objective evidence of
the underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges she suffers.
453 F.3d at 565 n.3 (citing Craig, 76 F.3d at 595). The ALJ may not reject a claimant’s
allegations of intensity and persistence solely because the available objective medical
10
See 20 C.F.R. §§ 416.929(c)(1) & 404.1529(c)(1).
11
See 20 C.F.R. §§ 416.929(c)(2) & 404.1529(c)(2).
12
See 20 C.F.R. §§ 416.929(c)(3) & 404.1529(c)(3).
28
evidence does not substantiate the allegations; however, the lack of objective medical
evidence may be one factor considered by the ALJ.
When considering 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.” 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).
Here, the Court finds that the ALJ's credibility assessment of Claimant was
consistent with the applicable regulations, case law, and Social Security Rulings. 20
C.F.R. §§ 404.1529 and 416.929; SSR 96-7p; Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). The ALJ carefully considered Claimant’s subjective complaints of pain and
the objective medical record in reaching a conclusion regarding Claimant’s credibility.
Significant evidence existed in the record that Claimant’s complaints of disabling pain
and other symptoms did not correlate with the objective medical evidence or with her
own description of her daily activities.
At the outset of the two-step process, the ALJ accepted that Claimant’s
medically determinable impairments could reasonably be expected to produce the pain
and symptoms described by her. (Tr. at 30). However, the ALJ deemed Claimant’s
29
credibility to be only “fair,” finding allegations of disabling symptoms to be “excessive,
[and] not fully credible” in light of the objective medical record. (Tr. at 29–30). The
ALJ noted that Claimant complained of “lower back and hip pain, aching, burning,
stabbing and throbbing pain;” could not sit for long without hurting her knee; had
shortness of breath that increased in severity with stress and exertion; angina;
depression, panic attacks, trouble concentrating, anxiety; and left hip deterioration.
(Tr. at 29). At the same time, Claimant admitted that she did housework and laundry,
cooked, ran errands, quilted, paid bills, watched television, and read on a regular basis.
(Id.). With regard to Plaintiff’s knee impairment, the ALJ noted that Plaintiff last had
surgery in 2004 and required no significant treatment since that time, displaying
nothing more than a mild limp and crepitus. (Tr. at 29–30). Although Plaintiff used a
cane, it had not been prescribed by a physician. (Tr. 30). Similarly, despite Plaintiff’s
allegations of disabling back pain, her only treatment had been medication and
physical therapy; no surgical intervention had ever been recommended. (Tr. 29).
Objective testing showed minimal degenerative changes and no radiculopathy.
Physical examinations and nerve conduction studies failed to uncover any neurological
disorders or deficits. (Tr. at 29–30). Claimant’s cardiac and pulmonary testing also
reflected absent, or at most, mild findings. Her stress tests were normal; her primary
complaint was intermittent angina. Claimant continued to complain of significant
breathing difficulties, yet her pulmonary function studies showed merely a mild
obstruction.
Moreover, Claimant continued to smoke.
Contrary to Claimant’s
allegations of severe psychiatric distress, her mental status examinations verified only
a mildly anxious mood and some depression; Claimant was noted to be well-oriented
with organized thought processes. She had normal persistence, pace, concentration
30
and maintained average social functioning. Finally, the ALJ noted that in contrast to
Plaintiff’s testimony, she was able to adequately perform a range of daily activities. (Tr.
at 30). Over the course of five years, numerous mental and physical examinations of
Claimant were conducted, including: five RFCs (Tr. at 186–93, 358–68, 462–71, 696–
703, 722–29), two physical examinations (Tr. at 574–80, 731–33), five PRTs (Tr. at
194–207, 366–79, 448–61, 705–18, 719–22), and two mental status examinations (Tr.
at 354–57, 569–73). In all five RFC assessments, the reviewing physicians found that
Claimant could engage in at least light work. (Tr. at 186–93, 358–68, 462–71, 696–
703, 722–29). None of the PRT’s found severe psychiatric issues, and the findings on
physical and psychological examination were consistent with the PRT and RFC
assessments. Accordingly, the Court finds that the ALJ’s discussion of Claimant’s
subjective complaints of pain was sufficient and his conclusions were supported by
substantial evidence.
C.
ALJ’s Consideration of the Opinion of Treating Sources
Claimant argues that the ALJ “failed to explain in any meaningful manner why
he disregarded the opinions of the Plaintiff’s long-time treating physicians.” (Pl.'s Br.
at 9). Specifically, Claimant contends that the ALJ summarily dismissed Dr. Wagner’s
opinion and failed to properly address the opinions of Dr. Lewis, Dr. Wade, and Dr.
Hawkins. The Court finds this argument unpersuasive.
20 C.F.R. § 416.927(d) outlines how the opinions of accepted medical sources
will be weighed in determining whether a claimant qualifies for disability benefits. An
“accepted medical source” is a licensed physician; licensed or certified psychologist;
licensed optometrist for eye disorders; licensed podiatrist for foot disorders; and
qualified speech pathologists for speech disorders. 20 C.F.R. 416.913(a). In general,
31
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. ' 416.927(d)(1). Even 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. See 20 C.F.R. ' 416.927(d)(2). Nevertheless, a treating physician’s opinion
is afforded “controlling weight only if two conditions are met: (1) that it is supported by
clinical and laboratory diagnostic techniques and (2) that it is not inconsistent with
other substantial evidence.” Ward v. Chater, 924 F. Supp. 53, 55 (W.D. Va. 1996); see
also, 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2) (2008).
The opinion of a treating physician must be weighed against the record as a
whole when determining eligibility for benefits. 20 C.F.R. ' 416.927(d)(2). 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 medical opinions of record, taking
into account the factors listed in 20 C.F.R. ' 416.927(d)(2)-(6). 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.
Ultimately, it is the responsibility of the Commissioner, not the court, to evaluate the
case, make findings of fact, and resolve conflicts of evidence. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990).
The Fourth Circuit’s ruling in Mastro v. Apfel provides the framework for
determining the evidentiary weight to be accorded to a treating physician’s opinion:
32
“Although the treating physician rule generally requires a court to accord
greater weight to the testimony of a treating physician, the rule does not
require that the testimony be given controlling weight.” Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Rather, according
to the regulations promulgated by the Commissioner, a treating
physician's opinion on the nature and severity of the claimed impairment
is entitled to controlling weight if 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 § 416.927. Thus, “[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.”
Craig, 76 F.3d at 590. Under such circumstances, the ALJ holds the
discretion to give less weight to the testimony of a treating physician in
the face of persuasive contrary evidence.
270 F.3d 171, 178 (4th Cir. 2001) (emphasis added). 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. ' 404.927. The regulations state that the Commissioner “will
always give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.
Id. § 416.927(d)(2).
Medical source opinions on issues reserved to the Commissioner are treated
differently than other medical source opinions. 20 C.F.R. § 416.927(e). In both the
aforestated regulations 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
33
‘disabled’ under the Social 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.
With this framework in mind, the Court scrutinized the ALJ’s assessment of the
treating source opinions. First, Claimant asserts that the ALJ improperly dismissed Dr.
Wagner’s opinion that Claimant was unable to work. In May 2009, Dr. Wagner opined
that Claimant could not engage in full-time work because of her severe pain and
physical limitations, including depression and arthritis of the knee. (Tr. at 769–70).
Dr. Wagner completed a Medical Assessment of Claimant’s ability to do work, which
indicated that Claimant was unable to stand or walk more than 15 minutes
uninterrupted, sit for more than 30 minutes at a time, lift carry items heavier than five
pounds, and was subject to significant physical, postural, and environmental
limitations. (Tr. at 771–74). The ALJ discounted these opinions, finding that they were
inconsistent with the degree of restriction recommended in all five RFC evaluations,
the opinions of Dr. Beard, the consultative examiner, and most importantly, Dr.
Wagner’s own treatment notes and medical documentation.13 (Tr. at 31). In view of the
opposing evidence, the ALJ found that Dr. Wagner’s recommended restrictions were
13 All five RFCs and Dr. Beard found Claimant to be capable of light work. (Tr. at 186–93, 358–68, 462–
71, 696–703, 722–29, 814–19).
34
“extreme.” The ALJ pointed out that Claimant had not had back surgery; had only
limited and conservative treatment for her symptoms; and had no persistent
complaints about her knee. (Id.). Furthermore, Dr. Wagner’s opinion that Claimant
was “unable to work” was not entitled to controlling weight, or even special
significance, because it addressed an issue reserved to the Commissioner.
Second, Claimant alleges that the ALJ failed to consider the opinion of Dr.
Hawkins. Contrary to Claimant’s contention, the ALJ expressly considered Dr.
Hawkins’ opinion and found that it was limited in scope and, therefore, was not
controlling.14 (Tr. at 31).
Following Claimant’s involvement in a motor vehicle
accident, Dr. Hawkins wrote a note indicating that Claimant was “unable to work” due
to the accident. (Tr. at 592–594). The ALJ concluded that this opinion was entirely
related to the acute after effects of the accident and was likely “short-term” in nature;
particularly, in light of the documented improvement in Claimant’s condition after Dr.
Hawkins wrote the note. The ALJ explained “testing after the claimant’s motor vehicle
accident was largely negative with the only long-term injury being noted as a shoulder
injury.” (Tr. at 31). Therefore, Dr. Hawkins opinion reflected simply a “short-term
preclusion from work rather than long-term disability.” (Id.).
Third, Claimant argues that the ALJ failed to consider the opinions of Dr. Lewis
and Dr. Wade. The ALJ’s decision reflects his meticulous review of the medical records
in evidence. Although the ALJ does not always specify the health care provider who
supplied the diagnosis and treatment, his decision thoroughly covers Claimant’s
medical care.
14
Moreover, neither Dr. Wade nor Dr. Lewis provided any explicit
The ALJ inadvertently attributes this opinion to “Dr. Walker.” (Tr. 31).
35
opinions on Claimant’s functional limitations or ability to engage in basic work
activities. Dr. Wade primarily treated Claimant’s asthma and allergies, which he
controlled with various medications. During Claimant’s course of treatment with Dr.
Wade, he did not place any physical restrictions on Claimant. (Tr. 776, 781, 792–93,
795–97, 802, 804).15 Likewise, Dr. Lewis treated Claimant’s complaints of tremors
and back pain; however, he did not restrict Plaintiff’s daily activities or limit her ability
to work. (Tr. 567–68, 749–51, 782–83). In short, while Dr. Wade and Dr. Lewis
diagnosed and treated Claimant’s symptoms, neither offered any medical opinion as to
Claimant’s functional capabilities or limitations. In contrast, the ALJ had multiple
physical examinations and opinions by agency experts who provided targeted
assessments of Claimant’s exertional and nonexertional limitations. In light of the
extensive medical records available to the ALJ, the conflicting treatment notes of Dr.
Wagner, and the detailed discussion of the care and treatment provided to Claimant’s
by her many physicians, including Dr. Wade and Dr. Lewis, the Court finds the ALJ’s
consideration of the treating physicians’ opinions was complete and consistent with
the applicable regulations.
D.
Mental Impairments as Non-Severe
Claimant’s final challenge concerns the ALJ’s finding that Claimant’s “dizziness,
chronic obstructive pulmonary disease, depression and anxiety disorder are nonsevere even though the record is replete with evidence otherwise.” (Pl.’s Br. at 11).16
The ALJ did, in fact, discuss Dr. Wade’s treatment notes despite Claimant’s assertion to the contrary.
(Tr. at 31).
15
For the purposes of this challenge, the Court will specifically address only the finding pertaining to
Claimant’s mental impairments, as those impairments required a slightly different method of
assessment than the alleged physical impairments.
16
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The Court finds this conclusory argument by Claimant to be without merit because it is
contrary to the objective medical evidence and to the express written decision of the
ALJ. The ALJ provided a sufficient explanation for his conclusions that Claimant’s
dizziness and COPD were not severe; he was not required to belabor the absence of
objective medical findings, which established more than mild limitations secondary to
these medical conditions. (Tr. at 25-27, 30-31). In addition, the Court finds, as
follows, that the ALJ correctly evaluated and rated the severity of Claimant’s mental
impairments.
When evaluating the severity of a mental impairment, the ALJ must apply the
special technique set forth in 20 C.F.R. § 416.920a. After confirming the existence of a
medically determinable mental impairment, the ALJ evaluates its severity by rating the
degree that the impairment interferes with the claimant’s “ability to function
independently, appropriately, effectively, and on a sustained basis” in four broad areas:
activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation. 20 C.F.R. § 416.920a(c). To perform this rating, the ALJ
considers all relevant and available medical information, as well as statements of the
claimant and others regarding the effects of the impairment; the impact of treatment
on the claimant’s symptoms; descriptions of daily activity; and any other information
available in the record that assists in providing a “longitudinal picture of [the
claimant’s] overall degree of functional limitation.” Id. The ALJ uses a five point scale
to describe the extent of limitation in the first three functional areas: none, mild,
moderate, marked, and extreme. He or she then counts the number of episodes of
decompensation on a scale from one to four or more. Id.
In the instant case, the ALJ fully reviewed and evaluated Claimant’s mental
37
health impairments, using the special technique, and concluded that Claimant’s mental
impairments did not cause “more than a minimal limitation in the claimant’s ability to
perform basic mental work activities.” (Tr. at 26). At step two of the sequential
evaluation, the ALJ confirmed that Claimant’s symptoms met the descriptive criteria
(“A” criteria) of an affective disorder (12.04) and an anxiety-related disorder (12.06).
Accordingly, the ALJ rated the severity of Claimant’s restrictions in each of the four
broad functional categories, known as “B” criteria, observing that Claimant was mildly
restricted in activities of daily living, social functioning; and concentration, persistence
and pace. (Tr. at 25–27). Claimant had no episodes of decompensation. (Id.). The ALJ
then reviewed the “C” criteria and found that Claimant’s impairment did not meet or
equal the level of severity set forth in those criteria. (Id.).
The ALJ’s findings regarding the severity of Claimant’s mental impairments are
supported by substantial evidence. The medical record contains five PRTs (Tr. at 194–
207, 366–79, 448–61, 705–18, 719–22) and two mental status examinations. (Tr. at
354–57, 569–73). Each of these evaluations conclude that Claimant’s depression and
anxiety are not severe and produce only mild restrictions, at most, on Claimant’s daily
functioning. Some of the reviewers opined that Claimant’s symptoms did not satisfy
even the descriptive “A” criteria of depression and anxiety. Claimant did not actively
seek crisis intervention or counseling, and none of her treating physicians
recommended care more individualized or intensive than standard psychotropic
medication. The ALJ noted that Claimant cooked, cleaned, used public transportation,
paid the bills, did the laundry, cared for her children, shopped, quilted, and cared for
her personal grooming and needs independently.
(Tr. at 26).
She related no
significant difficulties with adapting to the tools of daily life, completing projects, or
38
maintaining normal social relationships. Id. Accordingly, the evidence substantially
supports the ALJ’s finding that Claimant’s mental impairments were not severe.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision IS supported by substantial evidence. Therefore, by
Judgment Order entered this day, the final decision of the Commissioner is
AFFIRMED and this matter is DISMISSED from the docket of this Court.
The Clerk of this Court is directed to transmit copies of this Order to the Plain
tiff and counsel of record.
ENTERED: September 7, 2011.
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