United States District Court, W.D. Virginia, Danville Division
KENNETH J. COOKE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
JACKSON L. KISER, Senior District Judge.
Before me is the Report and Recommendation ("R & R") of the United States Magistrate Judge recommending that I grant the Commissioner's Motion for Summary Judgment, deny Plaintiff's Motion for Summary Judgment/Motion to Remand, and affirm the final decision of the Commissioner. The R & R was filed on August 5, 2014, and Plaintiff Kenneth J. Cooke ("Plaintiff") filed a timely Objection on August 19, 2014. The Commissioner failed to respond in any fashion, and the matter is now ripe for review. See Fed.R.Civ.P. 72(b)(2). After careful review and consideration, and for the reasons stated below, I will overrule Plaintiff's Objection, adopt the R & R of the Honorable Joel C. Hoppe, grant the Commissioner's Motion for Summary Judgment, deny Plaintiff's Motion for Summary Judgment/Motion to Remand, and affirm the final decision of the Commissioner.
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
On October 18, 2010, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act ("the Act"). (R. at 179-82); see 42 U.S.C. §§ 401-434 (2014). On November 2, 2010, he filed an application for supplemental security income under Title XVI of the Act. (R. at 183-92); see 42 U.S.C. §§ 1381-1383f (2014). In both applications, Plaintiff alleged that he had been disabled since September 1, 2009, due to a combination of bipolar disorder, depression, chronic pain, muscle spasms and stiffness, fatigue, shortness of breath, kidney problems, confusion and memory loss, heart problems, and high blood pressure. (R. at 179, 183, 216.) The state agency initially denied Plaintiff's applications on January 20, 2011, and again upon reconsideration on April 7, 2011. (R. at 69-70, 95-96.)
On January 3, 2012, Plaintiff appeared with counsel before Administrative Law Judge Brian B. Rippel ("the ALJ"). (R. at 17.) Vocational expert Ashley Wells ("the VE") also testified at the hearing. (R. at 17, 60-67.) In a written decision dated January 20, 2012, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. (R. at 17-30.) He found that Plaintiff had the following severe impairments: respiratory disorder, essential hypertension, vertebrogenic disorder, obesity, anxiety disorder, affective disorder, bipolar disorder, depressive disorder, and substance abuse disorder. (R. at 19-21 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).) Although Plaintiff alleged disability due to kidney problems, the ALJ noted that the record contains "no history of treatment or prescribed medications for a kidney disorder." (R. at 19.) He found that Plaintiff did not have an impairment or combination or impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 21-23 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).)
After consideration of the entire Record, the ALJ concluded that Plaintiff has the residual functional capacity ("RFC") to perform less than a full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), subject to the following limitations: (1) he can only occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl; (2) he can never climb ladders, ropes, or scaffolds; (3) he can no more than frequently balance; (4) he must avoid concentrated exposure to heat, wetness, humidity, vibrations, irritants, and workplace hazards; and (5) his work is limited to simple routine and repetitive tasks with only occasional interaction with supervisors. (R. at 23-27.) The ALJ determined that Plaintiff was capable of performing past relevant work as an assembler or, in the alternative, other jobs that exist in significant numbers in the national economy. (R. at 27-29.) Accordingly, he concluded that Plaintiff was not disabled within the meaning of the Act. (R. at 29.) The Appeals Council denied Plaintiff's request for review, and the decision of the ALJ became the final decision of the Commissioner on March 27, 2013. (R. at 1-4.)
On May 22, 2013, Plaintiff filed suit in this Court to challenge the final decision of the Commissioner. (Compl. [ECF No. 1].) Pursuant to 28 U.S.C. § 636(b)(1)(B), I referred the case to the United States Magistrate Judge for consideration. Plaintiff and the Commissioner filed cross-motions for summary judgment. (Pl.'s Mot. Summ. J., Oct. 23, 2013 [ECF No. 10]; Def.'s Mot. Summ. J., Jan. 7, 2014 [ECF No. 16].) On August 5, 2014, Judge Hoppe filed his Report and Recommendation, recommending that I affirm the final decision of the Commissioner. (R & R, Aug. 5, 2014 [ECF No. 19].) On August 19, 2014, Plaintiff filed a timely Objection to the R & R. (Pl.'s Obj., Aug. 19, 2014 [ECF No. 20].) The Commissioner did not respond, so the matter is now ripe for review.
II. STANDARD OF REVIEW
Congress has limited the judicial review I may exercise over decisions of the Social Security Commissioner. I am required to uphold the decision where: (1) the Commissioner's factual findings are supported by substantial evidence; and (2) the Commissioner applied the proper legal standard. See 42 U.S.C. § 405(g) (2014); Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996). The Fourth Circuit has long defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). In other words, the substantial evidence standard is satisfied by producing more than a scintilla but less than a preponderance of the evidence. Laws v. Celebrezze , 368 F.2d 640, 642 (4th Cir. 1966).
The Commissioner is charged with evaluating the medical evidence and assessing symptoms, signs, and findings to determine the functional capacity of the claimant. 20 C.F.R. §§ 404.1527-404.1545 (2014); see Shively v. Heckler , 739 F.2d 987, 990 (4th Cir. 1984) (noting that it is the role of the ALJ, not the vocational expert, to determine disability). The Regulations grant the Commissioner latitude in resolving factual inconsistencies that may arise during the evaluation of the evidence. 20 C.F.R. §§ 404.1527, 416.927 (2014). Unless the decision lacks substantial evidence to support it, the ultimate determination of whether a claimant is disabled is for the ALJ and the Commissioner. See id. §§ 404.1527(e), 416.927(e); Walker v. Bowen , 834 F.2d 635, 640 (7th Cir. 1987). If the ALJ's resolution of the conflicts in the evidence is supported by substantial evidence, then I must affirm the Commissioner's final decision. Laws , 368 F.2d at 642. In reviewing the evidence, I must not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [my] judgment for that of the Secretary." Mastro , 270 F.3d at 176 (quoting Craig , 76 F.3d at 589).
Plaintiff has filed a two-part Objection to Judge Hoppe's R & R arguing that Judge Hoppe erred by affirming the ALJ's decision not to afford the opinion of Dr. Trost, Plaintiff's treating physician, controlling weight. (See Pl.'s Obj. pg. 2-6; R & R pg. 13-19.) Plaintiff also objects to Judge Hoppe's conclusion that the ALJ used the proper legal standard when he concluded that Plaintiff was not entirely credible on the issue of his impairments. (See Pl.'s Obj. pg. 6-10; R & R pg. 19-22.) Both arguments are addressed in turn, and the Record on these issues is reviewed de novo.
A. The Opinion of Plaintiff's Treating Physician
Under the treating physician rule, "[c]ourts typically afford greater weight to the testimony of a treating physician because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant.'" Hines v. Barnhart , 453 F.3d 559, 563 (4th Cir. 2006) (quoting Johnson v. Barnhart , 434 F.3d 650, 654 (4th Cir. 2005)). This is so because treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (2014). But the treating physician rule "is not absolute." Hines , 453 F.3d at 563 n.2. An "ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence." Hunter v. Sullivan , 993 F.2d 31, 35 (4th Cir. ...