United States District Court, W.D. Virginia, Harrisonburg Division
KATHLEEN V. JONES, Plaintiff,
CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
JAMES G. WELSH, Magistrate Judge.
The plaintiff, Kathleen V. Jones, 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 Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"), as amended, 42 U.S.C. §§ 423 and 416(i). This court has jurisdiction pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).
I. ADMINISTRATIVE AND PROCEDURAL HISTORY
The plaintiff filed for disability insurance benefits on December 3, 2007, alleging an onset date of July 20, 2006, at which time the plaintiff was forty-four years of age (R. 98). Her claim was denied initially on April 15, 2008 (R. 104-116) and on reconsideration on July 11, 2008 (R. 150-152). After filing a written request for a hearing on July 18, 2008 (R. 156-157), Ms. Jones appeared and testified before an administrative law judge ("ALJ") in Winchester. Virginia on January 6, 2010 (R. 121, 182-199). In a decision dated February 17, 2010, the ALJ found the plaintiff not disabled (R. 117-130). On April 29, 2011, however, the Appeals Council remanded the case to an ALJ for reconsideration, at least in part because the recording of the January 6, 2010 hearing was inaudible (R. 139-140).
Subsequently, Ms. Jones appeared in Charlottesville, Virginia to testify before an ALJ on February 28, 2012 (R. 12). The plaintiff was resented by counsel. Charles L. Cooke, M.D., an impartial medical witness, and Asheley Wells, a vocational witness, both testified ( Id. ). The ALJ determined that the plaintiff's degenerative disc disease and anxiety are both severe impairments within the meaning of the Act (R. 15-21). He determined that the plaintiff's degenerative disc disease was severe because it had the potential to limit her ability to lift or carry heavy objects and that her anxiety, "albeit mild, " was also severe within the definition of the Act (R. 20). The ALJ adopted Dr. Cooke's determination that the plaintiff's hand and wrist pain, hypertension, and groin pain were non-severe impairments (R. 20-21; cf. R. 65-67 (testimony of Dr. Cooke)).
The ALJ next found the plaintiff's impairments neither met nor medically equaled the severity of a listed impairment. In reaching these conclusions he specifically examined 20 CFR, Part 404, Subpart P, Appendix 1, §§ 1.00 (musculoskeletal disorders) and 12.00 (mental disorders) (R. 21). He determined Dr. Cooke's medical opinion concerning the plaintiff's spine pain to be "strongly supported" by the treatment record and to be "reasoned and persuasive" (R. 26). Thus, he gave it "substantial weight" ( Id. ). The ALJ also gave substantial weight to the opinion of Christopher Newell, M.D., who examined the plaintiff on July 8, 2008 upon request of the state agency (R. 26, 702-704). In making his credibility assessments, the ALJ also compared the opinions of these two physicians to the "the evidence from treating sources" (R. 26), including David Switzer, M.D., a general practitioner (R. 15, 18), Stephen Phillips, M.D., a specialist in occupational medicine (R. 15-16), Bart Balint, M.D., a specialist in pain management who employs Debra Welk, a nurse practitioner (N.P.) (R. 16-17), Lisa Rader, N.P., at Advanced Pain Relief Centers, Inc. (R. 18), John Zoller, III, M.D., an orthopedist ( Id. ), and Sheryl Johnson, M.D., of the Pain Clinic at the University of Virginia (R. 18, 19).
With regard to her alleged anxiety, the ALJ gave substantial weight to the opinion of Lora Baum, Ph.D., who had performed a consultive psychological evaluation of Ms. Jones on January 8, 2010 (R.25, 27). In doing so, he noted that Dr. Baum was the mental health specialist to have evaluated or treated Ms. Jones, and he specifically referenced the fact that the objective medical evidence supported her findings and diagnosis ( Id. ).
The ALJ did not consider the opinion of Dr. Switzer, as expressed in a letter dated August 1, 2011 (R. 829), to be of any probative value since it was inconsistent with his prior examinations, provided no supporting medical evidence in itself (R. 26), and invaded the pertinent reserved rights of the Commissioner pursuant to SSR 96-5p. In addition, the ALJ discounted the opinion of the state agency that Ms. Jones was capable of only sedentary work (R. 108-111) on the ground that that opinion is not supported by the relevant medical evidence (R. 26).
In determining the credibility of the plaintiff herself, pursuant to 20 CFR § 404.1529(a-c) the ALJ considered, first, the medical evidence supporting the alleged impairments and symptoms and, second, the plaintiff's own description of her daily activities (R. 24-25). He then concluded that while Ms. Jones did allege impairments that are medically determinable and would likely result in the alleged symptoms (R. 25); however, her allegations regarding the intensity, persistence, and limiting effects were not credible given the description of her daily activities and the minimal objective and clinical findings (R. 25-26).
After further concluding the plaintiff was no longer functionally able to perform her past relevant work, and based on the vocational witness' responses to hypothetical questions posed by the ALJ and the plaintiff's attorney, the ALJ determined that Ms. Jones was "not disabled" and capable of "at least" unskilled light work (R. 26).
On May 7, 2012, Ms. Jones submitted a request for review of the ALJ's decision to the Appeals Council (R. 7), and on April 26, 2013, the Appeals Council denied the plaintiff's request, affirmed the ALJ's decision, and adopted the ALJ's opinion as the final decision of the agency and its Commissioner (R. 1-6). Subsequently, the plaintiff timely filed a request for court review and submitted a complaint on June 21, 2013 (docket #1). The defendant filed an Answer (docket #4) and the Administrative Record (docket #5) on October 28, 2013. The plaintiff filed her motion for summary judgment and two-page supporting memorandum on November 25, 2013 (docket ##9-10); the defendant's motion and memorandum were filed on December 30, 2013 (docket ##11-12). Oral argument on the competing motions for summary judgment was held telephonically on April 24, 2014. 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
The plaintiff presented four issues to the court during oral argument, contending that (1) the record does not support the finding that Ms. Jones does not have an impairment meeting listing 1.04; (2) the ALJ improperly discounted or failed to consider Nurse Welk's treatment; (3) the ALJ failed to discuss the plaintiff's anxiety or consider the cumulative effects of her impairments; and (4) the ALJ posed inaccurate hypothetical questions to the vocational expert that did not reflect the plaintiff's actual condition.
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
When reviewing the Commissioner's final decision, a federal court is limited to determining whether the "factual findings of the [Commissioner]... are supported by substantial evidence and were reached through application of the correct legal standard." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If the factual findings are determined to have the proper support and result from the application of the proper standard, the court must uphold the decision. Id. Substantial evidence "consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig, 76 F.3d at 589). Furthermore, "[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]." Id. (internal quotation marks omitted). The court will now address the question of "whether the ALJ's finding of no disability is supported by substantial evidence." Id. (citing Craig, 76 F.3d at 589).
V. THE ADMINISTRATIVE RECORD
Age, Education and Vocational Experience
At the time of her alleged disability onset date in July 2006, Ms. Jones was forty-four years of age, and she turned fifty years of age shortly after her insured-status expired on December 31, 2011 (R. 41, 62, 63). She has a high school equivalent education (R. 42). She last worked as a line packer at Family Dollar, a job classified by the vocational witness as unskilled and medium in exertional level (R. 91).
Her past relevant employment also included work as a forklift operator for two different manufacturing companies and a job tending a compression-molding machine for a car door manufacturer (R. 91). As generally performed, operating a forklift is semi-skilled and exertionally medium; according to the plaintiff's work record, however, she performed this work at a light exertional level at times and at other times at a heavy exertional level (R. 45-46). Work as a molding machine tender is listed as unskilled and exertionally light; however, according to the plaintiff's work history, she performed this work at a medium exertional level (R. 44-45, 91-92).
According to the plaintiff, she has been experiencing disabling daily low back pain since July 20, 2004. She describes this pain as radiating into both lower extremities down to her toes. She rates her pain level at eight (on a zero to ten scale), and this has required her use of prescription pain relievers "every day" since July 2006 (R. 46-47).
Relevant Medical Evidence
Without any previous history of back pain (R. 781-785, 798, 800, 802-804, 834-835, 935-943, 947-951), on September 2, 2004, Ms. Jones "pulled her low back" in a work-related incident (R. 429, 441). She experienced a "pop in her lower back" and felt intermittent pain radiating into her left leg (R. 441). After using aspirin at home without improvement, on September 13, 2004 she sought treatment through Rockingham Memorial Hospital ("RMH") Center for Corporate Health ( Id. ). A nonsteroidal anti-inflammatory and physical therapy were prescribed, and she was placed on short-term disability (R. 432-434, 437). A lumbar MRI on October 29, 2004 demonstrated a small disc bulge at L5/S1 without any anatomic alignment abnormality (R. 444-446). On December 14 she was released "with no further treatment needed" and permitted to return to work without restrictions (R. 431).
Ms. Jones next sought medical treatment eighteen months later, when she was seen at Page Memorial Hospital's emergency room on July 6, 2006 for treatment of multiple leg lacerations and abrasions incurred when she fell through a glass door during an argument with her boyfriend (R. 418-419, 895, 898-899). She was fully ambulatory, able to weight-bear, and reported no neck, back, or chest pain (R.898). The various lacerations were closed as appropriate by the use of stitches or Derma-bond; a foreign body was removed from the right knee; she was given a prophylactic tetanus booster shot and antibiotics; and she was released to return to work without restrictions on July 7, 2006 (R. 900-901, 913). On July 14, as a "walk-in patient" she saw David Switzer, M.D., her primary care provider, principally for follow-up treatment of her hypertension and associated InnoPran and hydrochlorothiazide refills (R. 418-419, 659-660). On examination, Dr. Switzer found a "trace" amount of ankle swelling due to fluid retention with no calf tenderness, no sign of any deep vein thrombosis and no other medically significant lower extremity abnormality ( Id. ).
The record contains no suggestion that Ms. Jones sought medical treatment between 2004 and the summer of 2006 for any residual medical problem related to her work-related back injury (R. 781-785); only an RMH treatment note dated September 11, 2007 records her report of a "flare up" in June 2006 (R. 457). Apparently, in response to this "flare up, " the workers compensation carrier had her seen by Stephen Phillips, M.D., on July 20, 2006 for an occupational assessment ( See R. 422-426). In his responses to a form questionnaire, Dr. Phillips opined that the residuals of her back injury were such that she was no longer able to work in her current position as a forklift operator due to chronic back pain. She did, however, remain functionally able to lift and carry 50 pounds occasionally, to lift and carry 10 pounds regularly, to stand and walk at least 2 hours during a normal workday, to sit for 6 hours during a normal workday, to use her hands for repetitive gross and fine manipulation, to use both lower extremities for the operation of foot controls and to perform postural activities occasionally (R. 420-421).
When Ms. Jones was seen by her primary care provider on September 1, she reported continuing low back pain. On examination, however, Dr. Switzer found no tenderness or muscle spasm and no loss of lower extremity motor strength, and he referred her for a pain management consultation (R. 658). The following month she was seen for the first time by Bart Balint, M.D., of Balint Pain Management Clinic. At that time the plaintiff was using only an over-the-counter pain reliever (R. 590). On examination, Dr. Balint (including by extension his employee, Debra Welk, N.P.) found the plaintiff to have some spinal range-of-motion restriction and some tenderness; however, she exhibited full range of motion in all extremities, a normal gait, normal balance, normal sensory reflexes, and no atrophy, ...