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Crawford v. Colvin

United States District Court, Western District of Virginia, Harrisonburg Division

June 18, 2014

BARBARA J. CRAWFORD Plaintiff,
v.
CAROLYN COLVIN Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

James G. Welsh U.S. Magistrate Judge

The plaintiff, Barbara J. Crawford, brings this action pursuant to 42 U.S.C. § 405(g) challenging the final decision of the Commissioner of the Social Security Administration (“the agency”) denying her claim for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, as amended, 42 U.S.C. §§ 1381–1383f, and her claim for disability insurance benefits (“DIB”) under Title II, 42 U.S.C. §§ 461(i) and 423. This court has jurisdiction pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).

I. Administrative and Procedural History

Forty-seven years of age at the time of her alleged onset, the plaintiff filed for disability and supplemental social security income in April 2008 (R. 335-342). Therein, she claimed an onset date of April 20, 2009[1](R. 49). Her claims were initially denied (at two separate initial determinations) (R. 106-07, 155-71); they were denied again on reconsideration (R.108-121), and they were denied a third time by written decision of an administrative law judge (“ALJ”) dated May 27, 2010 (R. 141-149). The Appeals Council subsequently remanded the matter for further analysis of the treating source opinion of Dr. Michael Marsh and for further discussion of Ms. Crawford’s residual functional capacity with specific evidentiary references (R. 193-194).

Following this remand and a supplemental hearing, the ALJ again denied Ms. Crawford’s claims (R. 21-35). In her written decision the ALJ found the plaintiff met the Act’s insured status requirements through June 30, 2013 (R. 22) and had not engaged in substantial gainful activity[2] since her alleged onset date (R.23). She determined the plaintiff suffered from several severe impairments including: degenerative disc disease, obesity, fibromyalgia, [3] chronic fatigue syndrome, [4] rotator cuff tendonitis, [5] an anxiety disorder, and a depressive disorder (R. 24). These ailments were deemed severe because they “limit[ed] the [plaintiff’s] ability to perform heavy lifting, unlimited postural activities, unlimited reaching and complex/detailed tasks” (R. 24). Plaintiff’s claim of urinary incontinence was deemed by the ALJ to be non-severe, because it had been responsive to treatment and created no long-term exertional limitations (R. 24). Similarly, the ALJ noted that the plaintiff’s diabetes and restless leg syndrome[6] had both responded to basic treatment and medication and, therefore, were also non-severe (R. 24). Evaluating each impairment, as well as their combined effects, the ALJ next determined that none of plaintiff’s impairments met or equaled a listed impairment[7] (R.24). Continuing to follow the sequential analysis mandated by the Agency, [8] the ALJ next assessed the functional limitations caused by Ms. Crawford’s impairments. In doing so, he discussed the medical evidence, the plaintiff’s testimony, a third-party report from the plaintiff’s sister, the medical witness testimony, and the supplemental testimony of the vocational witness (R.26-33). In reaching the additional conclusion that the plaintiff had overstated her symptoms, he noted that both examination and diagnostic testing had produced only minimal findings; he noted that Ms. Crawford had been found neurologically intact, to possess full muscle strength, to have full range of motion (R. 32), and (despite reporting multiple “tender points”” he noted the fact that the plaintiff exhibited “no significant sensory deficits on examination” (R. 32) and had a normal gait without evidence of any neuropathy (R. 32).

He ascribed great weight to the testimony of the medical witness, Dr. Haddon C. Alexander, and assigned minimal weight to the opinion of Dr. Don Martin, noting that “[Dr. Martin’s] opinion appeared to be based on the [plaintiff’s] subjective complaints and was inconsistent with his findings on examination, including the findings in his own treatment notes” (R.33). The ALJ also accorded minimal weight to the opinions of Drs. Michael Marsh and Daniel Chehebar for similar reasons (R. 33-34), noting in addition that Dr. Marsh’s “opinions were inconsistent with his clinical findings and diagnostic test results and that Dr. Chehebar’s opinion was “conclusory” (R. 34).

Given these evidentiary findings, the ALJ then determined that Ms. Crawfordwas capable of “simple, unskilled, light work … except that she cannot crawl and climb ladders/ropes and scaffolds; be exposed to unprotected heights, heavy machinery and rapidly moving parts; perform reaching above shoulder level; and perform more than occasional reaching to shoulder level with a weight limit of ten pounds occasionally and five pounds frequently” (R. 26). This residual functional capacity, the ALJ found, included the plaintiff’s past relevant work as a cashier and as a fast-food worker (R. 34).

The appeals council subsequently denied the plaintiff’s request for review, and the ALJ’s written decision now stands as the final opinion of the Commissioner (R. 1). The plaintiff, thereafter, timely filed her request for court review. Both parties have filed motions for summary judgment and supporting memoranda(docket ##13, 14, 18, 19). Oral argument on these motions occurred by telephone on February 27, 2014. Along with her Answer (docket #4) to the plaintiff’s Complaint (docket #1), the Commission filed a certified copy of the Administrative Record (“R.” docket #10), which includes the evidentiary basis for the Commissioner’s findings. By standing order this case is before the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

II. Issues Presented on Appeal

Two issues are presented on appeal. Ms. Crawford argues first that the ALJ’s findings are unsupported by substantial evidence as a matter of law and second that the ALJ erred by failing to accord adequate weight to the opinions of certain treating physicians.

III. Summary Recommendation

Based on a thorough review of the administrative record, and for the reasons herein set forth, it is RECOMMENDED that the plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s motion for summary judgment be GRANTED, that final judgment be entered AFFIRMING the Commissioner’s decision denying benefits, and that this matter be DISMISSED from the court’s active docket.

IV. Standard of Review

The court’s review in this case is limited to determining whether there is substantial evidence to support the Commissioner’s conclusion that the plaintiff failed to meet the statutory conditions for entitlement to DIB or SSI. “Under the … Act, [a reviewing court] must uphold the factual findings of the [Commissioner], if they are supported by substantial evidence and were reached through application of the correct legal standard.” Mastro v. Apfel, 270 F.3d171, 176 (4thCir. 2001) (quoting Craig v. Chater, 76 F.3d585, 589 (4thCir. 1996)). Substantial evidence “consists of more than a mere scintilla of evidence but may be somewhat less than preponderance.” Mastro, 270 F.3dat 176 (quoting Laws v. Celebrezze, 368 F.2d640, 642 (4thCir. 1966)). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. (quoting Craig v. Chater, 76 F.3dat 589). This standard of review is more deferential than de novo. The Commissioner’s conclusions of law are, however, not subject to the same deferential standard and are subject to plenary review. See Island Creek Coal Company v. Compton, 211 F.3d203, 208 (4thCir. 2000); 42 U.S.C. § 405(g).

V. Facts

A. Age, Educational, and Vocational Profile

Ms. Crawford first filed for disability on April 14, 2008 based on a number of medical problems, including: multiple sclerosis, depression, back pain, fatigue and numbness in legs (R. 335-341). She claimed an onset date of February 15, 2008 (R. 335), but noted that she had become unable to work due to her disability as of October 2, 2007 (R.339). At the time of her application she was working at Domino’s Pizza and collecting $600 monthly (R. 337). She possesses a high school education (R. 369) and completed some specialized computer training (R. 369).

B. Medical Record Overview

Ms. Crawford’s medical odyssey began in February 2008. Doctors, searching for an explanation for her described pain, fatigue, and weakness, began a battery of testing at the recommendation of Dr. Daniel Chehebar (R. 573, 577-758). When MRIs (R. 559-60), blood-work (R. 565-571) and specialist reviews (R. 561-562, 563-564, 639-643) revealed that neither Multiple-Sclerosis nor Lyme disease were plaguing Ms. Crawford, her doctors decided “the most encompassing possible diagnoses would be fibromyalgia [or] chronic fatigue syndrome with additional other diagnoses” (R. 643). Though this entry appears in a July 8, 2008 report, no trigger-pointtesting appears to have been done until August 26, 2009, more than one year later (R. 1021-1022), when Dr. Chehebar noted that the plaintiff’s ailment appeared “most likely [to be] fibromyalgia” (R. 998).

During the ensuing years, her doctors made multiple attempts to adjust Ms. Crawford’s medication regime (R. 1108, 1123, 1127, 1162), in an effort to alleviate her complaints of the pains, fatigue andmalaise (R. 1014, 1102, 1105, 1405, 1411, 1474). This lack of success prompted Dr. Dan Martin to suggest at one point that “[g]iven the absence of any significant benefit with 'centrally-acting' agents, [he] would focus on the core interventions of aerobic exercise and improving her sleep" (R. 1022).

Ms. Crawford, however, failed to take advantage of the benefits of exercise, even though her doctors continued to discuss “the benefit of re-starting an aerobic exercise regime” (R. 1474, see also R. 1019). Despite the advice and assistance of her doctors, in August 2009 Ms. Crawford continued to report pain. Her tender points at the time were “pan-positive, with the exception of her anterior neck and lateral elbow epicondyles" (R. 1021-22). In January 2010 she was “tender to the touch on her shoulder, arms, knees and thighs” (R. 1033). One year later she reported 18 of 18 tender points (R. 1264). In April she reported 13 of 18 (R. 1256), and on August 2011 she reported only 6 of 18 tender points (R. 1467-69). Despite the absence of any later tender point assessment, in February 2012 Dr. Chehebar nevertheless reported that Ms. Crawford was “[s]till with continued pain, require[ing] large doses of narcotic pain medicine” (R. 1474).

Ms. Crawford also complained of persistent pain in her shoulders—the right stemming from injury and the left which “began insidiously, [in] Feb 2011” (R. 1175). Medication and rehabilitative physical therapy were both suggested for these presumably rotator cuff issues (See e.g. R. 1184). The treatment record, however, charts a course of “inconsistent attendance” (R. 1071) at these appointments, and she was discharged by RMH Rehab Services in March 2011 “due to greater than thirty days since last attended appointment” (R. 1204). Her physical therapy for this period also document the plaintiff’s attendance at only twenty-two therapy sessions (R. 1200-01, 1175, 1173, 1178, 1582, 1581, 1579, 1578, 1577, 1571, 1570, 1569, 1568, 1567, 1563, 1562, 1561, 1553, 1554, 1550, 1549, 1543), with multiple cancellations mostly in early 2012(R. 1580, 1566, 1565, 1564 1560, 1550). Though Ms. Crawford complained that this “physical therapy made her too tired” (R. 1512), one therapist noted, "[t]he client tolerated today's treatment/therapeutic activity without complaints of pain or difficulty." (R. 1182), and another noted "patient reported 10/10 pain level upon arrival, but participated in her program without difficulty [and … smiled at times during her session" (R. 1179-1180).

In addition to treatment for the usual transient medical issues, including coughs and colds (see, e.g., R. 1528-1531, 1131-1134, 1135-1140), Ms. Crawford was also seen at various times for her diabetic condition. Though her sugars were occasionally higher, once when she was ill with an ear-ache (R. 1148) and twice when she complained of severe stress (R. 1158, 1193), her diabetes was generally well-controlled. Blood tests throughout the relevant period show good glucose levels. For example, in March of 2011 Dr. Marsh wrote “glucose is under great control!!!” (R. 1367), and in November 2011 he wrote "your sugars are in good control, [and] [y]our lab is generally very good” (R. 1405).

Ms. Crawford complaint of stress-based incontinence was resolved with surgery (R. 1231-42). Her complaints of recurring depression and anxiety since her early teens (R.749-751, 830, 827. 823, 822, 818, 819) carried a diagnosis of Major Depressive Disorder, recurrent, Alcohol Dependence, rule-out Panic Disorder, Somatoform Disorder, PTSD and Bipolar Disorder. When she was seen at the Rockingham Community Services Board on October 15, 2008, shortly after her alleged onset date (R. 669), her medication regime at that time included an anti-depressant (Lexapro), a neuropathic pain reliever (Neurontin) and Trazodone for treatment of anxiety and insomnia (Id.). A mental health examination in November 2008 added type two bipolar disorder to the plaintiff’s diagnosis; she was advised to continue counseling, and it was suggested that Tegertol be added to her medication regime for treatment of her nerve pain and bipolar condition (R. 667-668).

Two and one-half years later, in April 2011 Ms. Crawford once again sought treatment for a potential mental-health issue. On this occasion she presenting at the emergency room following a fainting episode, and doctors ordered a mental-health screening to rule-out a suicide attempt(R. 1061-65). The finding on this issue was negative; however, she was deemed to be anxious, depressed and to have had "suicidal thoughts but no plan of action” (R. 1158, 1061-1065).

1. Dr. Martin

Dr. Martin, a rheumatologist at Rockingham Memorial Hospital treated the plaintiff for the first time during the summer 2009. At the time he noted that the plaintiff’s “[t]ender points remain pan-positive, with the exception of her anterior neck and lateral elbow epicondyles (R. 1021-1022, 1075).

When the plaintiff next saw Dr. Martin in November, he noted that she had begun a therapeutic trial of a different medication regime, that her trigger points remained “pan positive, ” that she had failed to initiate any regular aerobic exercise program, and that there was “no support in the ...


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