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Newman v. Colvin

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

October 31, 2014

WOODY JOHN NEWMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

Plaintiff Woody John Newman brought this action for review of the Commissioner of Social Security’s (the “Commissioner”) decision denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 401–433, 1381–1383f. Newman asserts that the Administrative Law Judge’s (“ALJ”) determination of his credibility is not supported by substantial evidence and that the ALJ failed to give enough weight to the opinions of his treating physicians. Additionally, Newman argues that the medical records he submitted to this Court entitle him to a remand for consideration of new evidence.

This Court has authority to decide Newman’s case under 42 U.S.C. §§ 405(g) and 1383(c)(3), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 14. After considering the administrative record, the parties’ briefs, oral argument, and the applicable law, I find that the ALJ’s decision is supported by substantial evidence and a remand to consider new evidence is unwarranted. I therefore recommend that the Commissioner’s decision be affirmed.

I. 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), 1383(c)(3); 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 the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ’s factual findings. 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); 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)). 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(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), 416.920(a)(4); Heckler v. Campbell, 461 U.S. 458, 460–62 (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.

II. Procedural History

Newman protectively filed for SSI and DIB on May 17, 2011. Administrative Record (“R.”) 19. At 36 years old, he qualified as a “younger person” under 20 C.F.R. §§ 404.1563(c) and 416.963(c). R. 179. Newman had worked as a machine operator, order filler, tree trimmer, and foreman for a tree trimming service. R. 62. He alleged disability beginning March 3, 2011, because of lower back pain, back surgery, migraines, depression, anxiety, and burning and tingling in his feet. Id. A state agency denied his applications initially and on reconsideration. R. 19.

Newman appeared with counsel at an administrative hearing on September 11, 2012. Id. He testified to his prior work history, alleged impairments, and limitations in daily activities. R. 40–47. A Vocational Expert (“VE”) testified to the types of jobs Newman might perform given his age, education, work history, and physical limitations. R. 51–54.

In a written decision dated November 5, 2012, the ALJ found that Newman was not disabled under the Act. R. 30. He determined that Newman had a severe impairment of status post surgical intervention degenerative disc disease that did not meet or equal a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 21–23. He found that Newman had the residual functional capacity (“RFC”)[1] to perform light work[2] with the following qualifications: his balance was not limited; he could only occasionally stoop, kneel, crouch, and climb ramps or stairs; he should avoid vibration or hazards; and he could not crawl or climb ladders, ropes, or scaffolds. R. 23–28. With this RFC, the ALJ found Newman able to perform his past work as an order filler as generally performed. R. 28. Alternatively, the ALJ found Newman capable of performing other jobs that existed in significant numbers in the national economy. R. 29. He therefore found that Newman was not disabled and denied his applications. R. 30. The Appeals Council declined to review the ALJ’s opinion, and this appeal followed. R. 1.

III. Discussion

Newman asserts that the ALJ’s determination of his credibility is not supported by substantial evidence and that the ALJ failed to give enough weight to the opinions of his treating physicians. Pl. Br. 21, 27, ECF No. 18. Additionally, Newman argues that the medial records he submitted to this Court entitle him to a remand for consideration of new evidence.[3] Id. at 28–30.

A. Relevant Facts

On March 10, 2011, Newman underwent surgery for L5-S1 disk herniation. R. 271. Dr. Sandar W. Leivy, M.D., performed a left L5-S1 laminotomy and diskectomy without complication. R. 271–72. Dr. Leivy discharged Newman the following day, noting that he ambulated and used the bathroom well and retained full lower extremity strength with improved sensation. R. 279.

On April 1, 2011, Newman had his first postoperative appointment with Dr. Leivy. R. 329. He reported feeling much better than he had before surgery. Id. He still had left hip crest discomfort, some intermittent posterior thigh soreness, and morning stiffness that abated with walking. Id. Dr. Leivy observed that Newman ambulated well with a slow but steady gate and had full strength and intact sensation. Id. There was no spinal or paraspinal tenderness or spasm. Id. Dr. Leivy found some tenderness in the left sciatic notch, but pressure did not cause radiating pain or paresthesia. Id. Dr. Leivy discussed back mechanics and home exercises Newman could perform in lieu of formal physical therapy. Id.

On April 25, 2011, Dr. Leivy completed a Family and Medical Leave Act (“FMLA”) Healthcare Provider Certification Form for Newman. R. 330–31. He opined that Newman would be unable to perform his job functions for two weeks, through approximately May 9, 2011. R. 330. Specifically, Dr. Leivy determined that Newman could lift no more than 20 pounds and could engage in minimal bending, twisting, climbing, and extended driving or riding in vehicles. Id.

On May 4, 2011, Newman returned to Dr. Leivy. R. 323. He reported that his buttock and leg pain had abated, but he continued to have low back pain. Id. Dr. Leivy observed that he ambulated well with a slow and steady gait. Id. Examination revealed minimal tenderness but no pain, full lower extremity strength, normal sensation except for a mild decrease along the medial shins bilaterally, and full range of motion with some lumbosacral discomfort. Id. Newman said he was performing the home therapy exercises and walking two to three miles a day, but was worried about being able to wear his equipment belt at work and climb trees. Id. Dr. Lievy wrote that Newman “has healed well from surgery and no longer has a radicular intractable pain and needs no further followup here.” Id. Dr. Lievy released Newman from his care and directed that he remain off work until seen by his primary care physician, “who will dictate further disability.” R. 337.

Also on May 4, 2011, Newman visited his primary care physician, Dr. AyoKunle Fatade, D.O.. R. 317. Dr. Fatade found moderate to severe pain on palpation of Newman’s lumbar spine, but recorded normal findings from examination of Newman’s range of motion, stability, muscle strength, muscle tone, thoracolumbar spine, and extremities. Id. He opined that Newman had the “ability to undergo exercise testing and/or participate in exercise programs.” Id. Dr. Fatade referred Newman to physical therapy. R. 339.

On May 26, 2011, Dr. Fatade completed a disability evaluation for Newman based on the May 4, 2011 appointment. R. 332–33. He opined that Newman was unable to participate in employment and training activities in any capacity for the next twelve months due to back pain status post surgery. Id.

On June 6, 2011, Newman told Dr. Fatade that he suffered from pain estimated at level ten out of ten, with associated swelling, tenderness, and muscle cramps. R. 318. He reported that bending and lifting made the pain worse, but walking and his medications made it better. Id. Dr. Fatade diagnosed Newman with chronic postoperative pain and wrote him a note on a prescription form stating, “I feel that patient is unable to perform his regular work duties anymore.” R. 338. In his progress note, Dr. Fatade recorded, “excuse given from regular type of work, may seek different type of work.” R. 318.

On August 8, 2011, Newman went to the Emergency Department at the Carilion Clinic. R. 290. He reported sharp and burning back pain since stepping in a two-foot hole two days before. Id. Physical examination revealed decreased range of motion, tenderness, pain, and spasm in his lower back. R. 291. Newman exhibited no swelling, edema, deformity, or laceration and had normal gait and coordination. Id. A magnetic resonance imaging scan (“MRI”) showed “severe degenerative narrowing of the L5-S1 disk space, ” but normal spacing for other lumbar discs. R. 295. The MRI did not reveal any “fracture, loss of vertebral height, or paraspinal soft tissue swelling.” Id. Attending physician assistant Jared S. Campbell noted that Newman’s condition was stable and wrote: “Pt is in room laughing and having a good time, then Pt comes to nurse [to] say that the pain shots aren’t working.” R. 292. P.A. Campbell prescribed Flexeril and Medrol dose pack, instructed Newman to continue taking Percocet as prescribed, advised him to schedule an appointment with his family doctor or surgeon, and discharged him, again noting that Newman had a steady gait. R. 292–93. Attending physician Dr. Erin H. Dove, M.D., reviewed and approved of Newman’s treatment. R. 290.

On October 13, 2011, Newman returned to Dr. Fatade. R. 319. He reported pain at ten out of ten, with worsening symptoms and associated aching, stiffness, soreness, tenderness, weakness, and decreased range of motion. Id. Dr. Fatade diagnosed him with chronic postoperative pain, scar conditions and fibrosis of skin, and chronic back pain. Id.

Newman saw Dr. Fatade again on December 12, 2011, December 19, 2011, and January 2, 2012. R. 454, 456, 458. Each time he reported pain of nine or ten out of ten with associated soreness, stiffness, swelling, tenderness, or numbness, and that his pain medications were not helping. Id. Physical examination found pain to palpation in the lumbar spine and reduced range of motion with ...


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