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Rowland v. Colvin

United States District Court, W.D. Virginia, Danville Division

May 8, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JOEL C. HOPPE, Magistrate Judge.

Plaintiff William A. Rowland brought this action for review of the Commissioner of Social Security's (the "Commissioner") decision denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433. Both parties have moved for summary judgment and filed briefs in support. (ECF Nos. 12, 13, 16, 17). On appeal, Rowland argues that the Commissioner erred in rejecting the opinions of two treating physicians. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g), and this case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). After carefully reviewing the record, I find that the ALJ's decision was based on substantial evidence and respectfully recommend that the Commissioner's decision be affirmed.

I. Procedural History

Rowland was born in 1965 (Administrative Record, hereinafter "R." 46), and at the time of the ALJ's decision was considered a "younger individual" under the Act. 20 C.F.R. § 404.1563(b). He has a General Equivalency Diploma ("GED"), and he worked as a finishing operator in a textile manufacturing plant from 1988 until his alleged onset date. (R. 184.) He alleges that he has been disabled since July 2, 2010, due to inflammatory arthritis, fibromyalgia, ischemic heart disease, and obesity. (Pl. Br. 1; R. 21, 183.) After rejecting Rowland's application initially and upon reconsideration, (R. 19, 76, 88.), the Commissioner convened a hearing before an Administrative Law Judge ("ALJ") at Rowland's request on November 21, 2011. (R. 40-75.) Rowland was represented by counsel at the hearing, where he, his brother, and a vocational expert each testified. (R. 40-75.)

On December 15, 2011, the ALJ issued his decision finding Rowland not disabled and denying him benefits. (R. 19-34.) The ALJ found that Rowland had severe impairments of inflammatory arthritis, fibromyalgia, ischemic heart disease, hypothyroidism, tobacco abuse, and obesity, (R. 21-23.), but that none of these impairments met or medically equaled the severity of those listed in 20 C.F.R. part 404, Subpart P, Appendix 1. (R. 23-25.) The ALJ also found that Rowland retained the capacity to perform light work, except that he cannot climb ladders, ropes or scaffolds and can only occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. (R. 25.) In reaching his assessment of Rowland's residual functional capacity ("RFC"), the ALJ afforded "no weight" to the opinions of treating pain management specialist Dr. Lawrence Winikur and treating rheumatologist Dr. Sharukh Shroff. (R. 31.) Although Rowland's impairments prevented him from performing his past work as a finishing operator, the ALJ found, based on a vocational expert's testimony, that Rowland could perform jobs that exist in significant numbers in the national economy. (R. 33.) Thus, the ALJ found that Rowland was not disabled under the Act. (R. 34.)

Rowland timely requested review by the Appeals Council and submitted additional evidence, including a January 27, 2012, letter from Dr. Winikur stating that Rowland was disabled. (R. 15, 998-99.) The Appeals Council "considered" this evidence but found that it "d[id] not provide a basis for changing the Administrative Law Judge's decision, " and accordingly denied Rowland's request for review. (R. 1-7.) This appeal followed.

II. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final determination that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g) (2012); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not "reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment" for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether substantial evidence supports the ALJ's factual findings and whether the ALJ applied the correct legal standards. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" of evidence, " id., but not necessarily "a large or considerable amount of evidence, " Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951). Ultimately, this Court must affirm the ALJ's factual findings if "conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.'" Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

A person is "disabled" if he or she is unable engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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); 20 C.F.R. § 404.1505(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and if not (5) whether he or she can perform other work. See 20 C.F.R. § 404.1520(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

III. Discussion

A. Treating Physician Rule

Rowland argues on appeal that the ALJ erred in affording no weight to the opinions of Dr. Winikur and Dr. Shroff, in violation of the treating source rule, 20 C.F.R. § 404.1527(c)(2).

1. Record Relevant to the Treating Physicians' Opinions

Rowland claims a disability onset date of July 2, 2010, which is also the date he stopped working. (R. 183-84.) On July 8, 2010, Rowland visited Dr. Troy Mohler at Staunton River Family Physicians "complaining of a two week history of progressing achiness, subjective fever, intermittent swelling, and significant fatigue." (R. 795-96.) Rowland had a cough with yellow sputum which had worsened over the past week. (R. 795.) On physical examination, Dr. Mohler reported that Rowland was a "[s]edated appearing gentleman" who was not in acute distress. (R. 795.) Dr. Mohler noted decreased breath sounds bilaterally, but no wheezes or rhonchi. (R. 795.) Chest x-rays demonstrated "some mild haziness in the left lower quadrant, but poor inspiration, " and Dr. Mohler was unsure whether "this represents an early pneumonia versus possible scar tissue atelectasis." (R. 795.) Dr. Mohler noted that Rowland's complaints of "significant fatigue... may be due to his rheumatoid arthritis versus fibromyalgia." (R. 796.) Dr. Mohler also noted again that Rowland appeared "somewhat sedate, " and wondered whether Rowland "is getting too much [Lortab] versus worsening rheumatoid arthritis." (R. 796.) Dr. Mohler instructed Rowland to return in 4-5 days for re-evaluation, and to follow up with Dr. Shroff as soon as possible. (R. 795-96.)

Dr. Mohler saw Rowland again on July 19 "for follow up of his diffuse myalgias and arthralgias." (R. 794.) Rowland reported that his coughing had improved, but complained of continued "diffuse body aches, muscle aches in his chest, back, legs, [and] extremities, [and] occasional swelling of his hands." (R. 794.) Dr. Mohler noted that Rowland was "somewhat fatigued and sleepy" and "sedate appearing." (R. 794.) Physical examination revealed clear lungs, and Dr. Mohler concluded that Rowland's chest wall pain was related to his myalgias. (R. 794.) Dr. Mohler noted that he was uncertain if Rowland's myalgias were "rheumatoid arthritis versus fibromyalgia versus something else." (R. 794.)

On July 21, 2010, Rowland visited his rheumatologist, Dr. Shroff. (R. 495-99.) Rowland stated that, since his last visit with Dr. Shroff, "he is feeling like he is having a flare up in his symptoms." (R. 495.) Upon physical exam, Dr. Shroff noted "right shoulder impingement with subacrominal bursitis, " "minimally positive bunnell's test in both hands, " "evidence of some early osteoarthritis changes... in his fingers with CMC joint squaring, " negative Tinel's and Phalen's tests, "multiple sore points all over his body, " and "positive impingement test in both shoulders." (R. 498.) In Rowland's legs, Dr. Shroff noted "evidence of crepitus in both knees, " full range of motion, positive mid-tarsal squeeze test, and minimal synovitis is his ankles. (R. 498.) Finally, Dr. Shroff noted "strongly positive multiple tender points all over his body." (R. 498.)

By this time, Rowland was already taking a number of drugs for rheumatoid arthritis and fibromyalgia, including prednisone (a corticosteroid), voltaren gel (a non-steroidal anti-inflammatory drug), Lyrica (an anticonvulsant used to treat neuropathic pain), and Methotrexate (an antifolate used to treat rheumatoid arthritis, among other conditions). (R. 497.) Rowland was also taking a compound opioid analgesic. Dr. Shroff's July 21 treatment notes indicate that Rowland was still on Percocet (oxycodone and acetaminophen), but Dr. Mohler indicated on July 5 that Rowland had switched to Lortab by this time. (R. 497, 796.) Rowland stated that Enbrel (etanercept, a biopharmaceutical used to treat rheumatoid arthritis and other autoimmune diseases), which Dr. Shroff prescribed at his last visit, had not yet been approved by his insurance company. (R. 495.) Dr. Shroff gave Rowland an injection of 160 mg Depo Medrol (methylprednisone acetate, a corticosteroid) in his right deltoid and referred him to Dr. Winikur for pain management. (R. 498.) He also held Rowland out of work for a month until Rowland's next visit. (R. 482, 498.)

On August 18, Rowland followed up with Dr. Shroff. (R. 483-87.) Rowland reported having a lot of pain symptoms since his last visit. (R. 483.) Findings on physical exam were unchanged since the last visit. (R. 486.) Dr. Shroff asked Rowland to follow up with pain management and held Rowland out of work until his next appointment in three months. (R. 486.)

Rowland visited Dr. Murray Joiner on September 9, 2010. (R. 462-66.) Dr. Joiner noted that Rowland was using a walker, but that Rowland admitted that this was one of the only times that he used it. (R. 462, 465.) Rowland complained of "constant, waxing and waning, diffuse myalgias and arthralgias, which he describe[d] as head to toe.'" (R. 462.) He told Dr. Joiner that it took him until 10:00 a.m. to get up in the morning, and that he does okay until 1:00 to 2:00 p.m., when the pain starts increasing. (R. 462.) Rowland described the pain as "aching and throbbing" and that it increased with cold weather and walking on concrete and decreased with Lortab taken three to four times per day. (R. 463.) Rowland also reported that, at the time, he was caring for his father who was suffering from prostate cancer. (R. 464.)

Physical examination revealed bony hypertrophy of the tibial tuberosity in Rowland's right knee, but no tenderness, erythema, edema, or increased temperature. (R. 465.) Dr. Joiner noted no signs of erythema, edema, increased temperature, or tenderness in any other joints. (R. 465.) Spinal exam was normal, except for "inconsistent discomfort on palpitation of bilateral [sacroiliac] joints." (R. 465.) Under "Impression, " Dr. Joiner indicated "diffuse arthralgias secondary to rheumatoid arthritis by history, " "history of fibromyalgia, " and "multiple medical problems complicating course." (R. 466.) Dr. Joiner recommended that Rowland obtain a functional capacity evaluation and referred him to physical therapist Timothy Smith. (R. 466-68.)

Rowland saw Timothy Smith for a functional capacity evaluation on October 5, 2010. (R. 467-75.) Rowland reported that he experienced pain throughout his body, which worsened with physical activity and was eased by medication. (R. 470.) Rowland indicated that on a scale of 1 to 10 his pain varied from 7 to 10 over the past 30 days and was a 9 before the evaluation. (R. 474.) Rowland scored high on 12 out of 13 pain questionnaires, which Smith suggested "represent[s] a trend toward pain and disability which are out of proportion to the impairment." (R. 467, 474.) Smith also conducted grip strength, static, and dynamic testing. (R. 471-72.) Based on these tests, he concluded that Rowland was capable of medium work. (R. 468.) Smith also noted that Rowland scored unequivocal or high on only 1 out of 9 tests for validity, indicating that Rowland gave maximal effort during the tests. (R. 467.)

Rowland first visited Dr. Winikur at Piedmont Pain Clinic on October 12, 2010. (R. 889-92.) Rowland complained of widespread joint and body pain, which he described as "sharp, dull, aching, burning, throbbing, and cramping, with tingling, numbing and weakness." (R. 889.) Rowland said that medication made his pain "tolerable, " but doing "anything" made it worse. (R. 889.) On examination, Dr. Winikur noted abnormal flexion and abnormal and painful extension of the back and bilateral shoulder and knee tenderness. (R. 892.) Dr. Winikur diagnosed rheumatoid arthritis, fibromyalgia syndrome, and chronic pain syndrome. (R. 892.) He had Rowland initiate a trial of 50 microgram Duragesic (fentanyl) patches every 72 hours, but otherwise maintained Rowland's existing medications. (R. 892.)

Rowland returned to Dr. Shroff on October 19, 2010. (R. 678-82.) Rowland indicated that he was dealing with a lot of stress because of his father's recent death and told Dr. Shroff that he felt like he needed to go back on diazepam "for his nerves." (R. 678.) Findings on physical examination were substantially unchanged from Rowland's last visit with Dr. Shroff. (R. 681.) Dr. Shroff gave Rowland some diazepam tablets and held him out of work for another two months until his next visit. (R. 481, 682.) He noted that he wanted Rowland to continue on Enbrel for three to six months "before we decide that it is not working." (R. 682.)

Rowland saw Dr. Robert Elliott at Staunton River on December 1, 2010. Dr. Elliott indicated that he "had seen Rowland down at the BGF Clinic and had given him a few Lortab until... he could get back to see Dr. [Shroff] apparently down in Danville. Apparently his dad died and he got messed up" (R. 793.) Dr. Elliot noted complaints of joint aches and pain. (R. 793.) Rowland asked Dr. Elliott to refill his Lortab, but Dr. Elliott refused. (R. 793.) Physical examination was normal except for multiple positive trigger points. (R. 793.) Dr. Elliott gave Rowland a shot of Depo Medrol and stated that "[w]e are going to start him on some Doxepin 25 mg for chronic pain and get a note off to Dr. [Shroff] and Dr. [Winikur] for his management." (R. 793.)

At Rowland's December 20 follow-up visit with Dr. Shroff, he again complained of pain all over his body. (R. 873.) On physical examination, Rowland demonstrated strongly positive Bunnel's test, negative Tinel's and Phalen's tests, crepitus in his knees, swelling in his knees and ankles, and strongly positive ...

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