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Brooks v. Colvin

United States District Court, Fourth Circuit

September 19, 2013

RHONDA P. BROOKS, Plaintiff,
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant


James G. Welsh U.S. Magistrate Judge

Rhonda P. Brooks brings this civil action challenging a final decision of the Commissioner of the Social Security Administration (“the agency”) denying her application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, as amended (“the Act”), 42 U.S.C. §§ 401 et seq. Jurisdiction of the court is pursuant to 42 U.S.C. § 405(g).

On February 16, 2011 the plaintiff filed her claim for DIB alleging a period of disability starting on January 2, 2009. (R. 13, 47, 163, 165, 167, 177). It was denied initially (R. 88-97), then on reconsideration (R. 98-107), and again by written decision following an administrative hearing held on May 11, 2012 (R. 12-28, 32-87). With the Appeals Council denial of her subsequent review request (R. 1–5), the unfavorable written decision (R. 13-28) of the administrative law judge (“ALJ”) now stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981.

Along with her Answer (docket #6) to the plaintiff’s Complaint (docket #3), the Commissioner has filed a certified copy of the Administrative Record (“R.”) (docket #7) which includes the evidentiary basis for the findings and conclusions set forth in the Commissioner’s final decision. Each party has filed a motion for summary judgment and supporting memorandum (docket # 11, 19-20, 23); no request was made for oral argument, [2] and by standing order the certified administrative record and cross-motions for summary judgment are before the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. Standard of Review

The court's review in this case is limited to determining whether the factual findings of the Commissioner are supported by substantial evidence and whether they were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. “It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” of the evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642). The court is “not at liberty to re-weigh the evidence … or substitute [its] judgment for that of the [ALJ].” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal quotation marks omitted). The ALJ's conclusions of law are, however, not subject to the same deferential view and are to be reviewed de novo. Island Creek Coal Company v. Compton, 211 F.3d 203, 208 (4th Cir. 2000).

II. The ALJ’s Decision

In his written determination (R. 13-28) that the plaintiff was not entitled to disability benefits during the relevant period under consideration, the ALJ found she met the Act’s insured status requirements only through June 30, 2010, that the evidence did not show that she engaged in decisionally significant work activity during the period from her alleged onset date (January 2, 2009) until her date last insured (June 30, 2010). (R. 15-16).

During this decisionally relevant period, the ALJ next determined that the plaintiff’s severe [3] impairments included “at least in combination” obesity, diabetes mellitus with neuropathy, and “questionably” fibromyalgia. (R. 16). He then determined that these impairments did not meet or medically equal a listed[4] impairment, and he further found she neither had an impairment nor a combination of impairments that functionally equaled the listings pursuant to 20 C.F.R. §§ 404.1524(d) and 404.1520b. (R. 18-19).

Continuing to follow the agency’s sequential consideration[5] of her claim, the ALJ then assessed the functional extent of the plaintiff's medically-related impairments. Based on his review of the full record, the ALJ concluded that the plaintiff retained the residual functional capacity[6] to perform a limited range of light work activity that involved no more than four hours of standing or walking, occasional postural activities, and the avoidance of even moderate exposure to extreme temperatures, wetness and workplace hazards. (R. 19-25. see also R. 75, 79-82). With these functional limitations, the ALJ then further concluded that the plaintiff was neither precluded from performing her past relevant work as an Avon sales representative and clerical assistant nor from performing a number of light and sedentary jobs, including jobs such as cashier, ticket taker, telephone solicitor, and order clerk. (R. 25-27).

III. Summary and Recommendation

In the plaintiff’s brief supporting her motion for summary judgment, she attacks the ALJ’s decision on multiple grounds. She argues that the ALJ inappropriately relied on an internet definition of fibromyalgia as the basis for his second-step finding that this condition was only “questionably” severe[7] (R. 16) and also as a basis for his discount of her testimony concerning the nature and extent of this condition. (Docket #11, pp 2-7). She takes issue with the ALJ’s statement that she did not have a “clearly established work ethic” (R. 15) and argues that this was essentially an ad hominem argument made a gratuitous basis for the rejection of her testimony. (Docket #11, pp 8-10). As part of the ALJ’s assessment of her mental health condition, she takes issue with his conclusion that her daily activities were only “mild[ly limit[ed] during the decisionally relevant period.[8] (Docket #11, pp 10-12). Additionally, the plaintiff assigns error to the ALJ’s rejection of two treating physician opinions, to his attendant failure to included their opinions in relevant part in his hypothetical question to the vocational witness, and to his “trivialize[ation]” of this treating source evidence by “substituting his own opinion for theirs. (Docket #11 pp 12-13, 14-16, 16-17).

After reviewing all of the evidence of record, including both the medical evidence and testimony, and for the reasons discussed below in relation to these arguments, it is RECOMMENDED that the Commissioner's decision be AFFIRMED, the Commissioner’s motion for summary judgment be GRANTED, the plaintiff’s motion for summary judgment be DENIED, and this cause STRICKEN from the docket of the court.

IV. Evidence Summary

Age, Education & Vocational Profile

At the time she alleges her disability began (January 2, 2009), the plaintiff was forty years of age.[9] (R. 13, 163, 167, 205). She had a high school education[10] (R.178), and her work history shows that between January 1988 and January 2009 she worked as a self-employed Avon make-up sales representative and clerical assistant (R. 26, 45-47, 178, 234). As generally performed this work is classified as unskilled and exertionally light.[11] (R. 77). At the hearing, the plaintiff additionally identified volunteer work she had performed in the past as a “dorm mom” at a church-related summer youth camp. (R. 71-72, 78-79). The vocational witness described this work as skilled and exertionally anywhere between sedentary and light. (R. 77).


The plaintiff’s medical history shows that none of her diverse ongoing medical issues and concerns required any inpatient care more recently that March 2003. (R. 672, 674, 678). This history also shows that she was diagnosed with “lumbago” in 2004 and has been morbidly obese for many years. (R. 38, 236, 732-633, 635). Between August 2006 and the end of December 2008, these records show that she was seen on only eleven occasions by her primary care providers at Carillion Associated Physicians[12] (R. 236-278) and was treated conservatively for “a plethora” of mostly recurrent health-related issues. (R.271). The ailments she reported included abdominal pain, dark urine, tiredness, mood swings, lack of appetite, worries about her ovary and liver, “borderline” diabetes mellitus, pelvic and back pain, low back pain, hip pain, headaches, night sweats, chronic generalized fibromyalgia pain, abdomen and breast soreness, rapid heart rate, face and chest skin rash, bilateral foot pain and spasms, right lower quadrant pain, bilateral foot and leg pain and burning sensation, stomach sores, elevated blood pressure, abdomen and chest skin lesions, hair loss, back and breast rash, side pain, “shakes, ” pain in her private area, difficulty urinating, abdominal sores, and stress related to family issues. (R. 236-278).

As the Commissioner pointed-out in her brief, “[t]he evidence relevant to Plaintiff’s claim falls within the period of January 2, 2009 through June 30, 2010.” (Docket #20, p 3). During this decisionally relevant period, the plaintiff was seen by her primary care providers on nine occasions, principally for review of her chronic pain and peripheral neuropathic complaints, medication management or stress issues related primarily to the premature death of her husband in 2008. (R. 58, 280-321). As the ALJ’s decision points-out in significant detail, the treatment notes of her primary care providers consistently record the fact that the plaintiff was fully oriented, alert, and demonstrated an anxious affect with no sign of any cognitive or memory problem. (R. 16-17). Also during this relevant period, in April 2010 the plaintiff was seen by Michael Valente, D.O., at Shenandoah Valley Neurological Associates for a neurologic examination and assessment of her reported severe pain and paresthesia in her limbs. (R. 343).

Based on the plaintiff’s self-reported medical history (R. 343), the results of an EMG study (R. 350-351) and Dr. Valente’s clinical examination (R. 344), he concluded that the peripheral neuropathy was “likely due to diabetes, ” that the left hand paresthesia and EMG results were “suggestive” of moderate-degree carpal tunnel syndrome (“CTS”), and that her nocturnal foot restlessness was possibly restless legs syndrome and/or associated features of her peripheral neuropathy (R. 344-345. In addition to recommending a CTS splint for her left wrist, he suggested Lyrica for pharmacologic treatment of the plaintiff’s neuropathic and fibromyalgic pain. (R.345).

Nine days before expiration of her insured, the plaintiff was seen for a “routine follow-up” for her diabetes, high blood pressure, peripheral neuropathy, fibromyalgia, and a “recent[]” episode of hair loss; at that time she reported that Lyrica had “helped” and that she was “now able to get out of the house and do more.” (R.316). On examination, her vital signs were all “regular;” she was alert and talkative; she was in no apparent distress, and she exhibited no signs of any mood, thought or memory difficulty; however, she remained morbidly obese, and she continued to have a persistent plaque-like dermatitis lesion on the bottom of her left great toe, decreased sensation in both feet, a “slightly arthritic gait, ” a forearm rash, and diffuse muscle and joint pain. (R. 315-321).

More recent medical records, variously dated between July 19, 2010 and March 29, 2012, establish no decisionally relevant change in the plaintiff’s condition. She continued to see her primary care physicians and her neurologist regularly for “emotional support” (R. 340, 690) and for follow-up clinical management of her medications, diabetic-related lesion and neuropathy. (R. 322-343, 436-439, 443, 687-690, 694-698). Following an Apligraf treatment procedure to initiate a healing of the plaintiff’s diabetic ulcer on the plantar surface of her left foot, beginning in February 2011 she was seen regularlyat Augusta Health’s Wound Healing Clinic for follow-up treatment of this “small” superficial (“grade 1”) diabetic ulcer. (R. 451-581, 583, ...

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