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Lowery v. Colvin

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

December 1, 2014

DAVID W. LOWERY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant

For David Lowery, Plaintiff: Joel C. Cunningham, Jr., LEAD ATTORNEY, JOEL C. CUNNINGHAM, JR., PC, Halifax, VA, USA.

For Carolyn W. Colvin, Commissioner of Social Security, Defendant: James Austin McTigue, Office of the General Counsel, Philidelphia, PA, USA.

REPORT AND RECOMMENDATION

Joel C. Hoppe, United States Magistrate Judge.

Plaintiff David Lowery asks this Court to review the Commissioner of Social Security's (" Commissioner") final decision denying his application for supplemental security income (" SSI") under Title XVI of the Social Security Act, 42 U.S.C. § § 1381-1383f.[1] This Court has authority to decide Lowery'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). On appeal, Lowery argues that the Administrative Law Judge erred in weighing the medical opinions in his record and did not consider the combined effects of his impairments. Having considered the administrative record, the parties' briefs, and the applicable law, I find that substantial evidence supports the Commissioner's final decision that Lowery was not disabled.

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (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, 71 S.Ct. 456, 95 L.Ed. 456 (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. § 1382c(a) (3) (A); 20 C.F.R. § 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. § 416.920(a) (4); Heckler v. Campbell, 461 U.S. 458, 460-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (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

Lowery protectively filed this SSI application on July 29, 2011.[2] Administrative Record (" R.") 103. At the time, he was 50 years old and had worked most recently as a part-time library clerk. R. 103, 288. Lowery said that he stopped working in October 2002 because of hepatitis C virus, human immunodeficiency virus (" HIV"), chronic obstructive pulmonary disease (" COPD"), sleep apnea, depression, bi-polar disorder, hypertension, and peripheral artery disease. See R. 287. The state agency denied Lowery's application initially in September 2011, R. 102, and upon reconsideration in April 2012, R. 132.

Lowery appeared with counsel at a hearing before Administrative Law Judge Brian Kilbane (" the ALJ" or " ALJ Kilbane") on November 20, 2012. R. 36. He testified as to his alleged impairments, and to the limitations those impairments caused in his daily activities. See R. 40-48. A vocational expert (" VE") also testified as to Lowery's past work and ability to perform other work existing in the national and regional economies. See R. 49-56.

In a written decision dated December 21, 2012, ALJ Kilbane concluded that Lowery was not entitled to disability benefits. See R. 15-28. He found that Lowery suffered from severe HIV, hepatitis, coronary artery disease, chronic liver disease, arthritis, cervical spondylosis, and sleep apnea. R. 17. Lowery's COPD, angina, [3] hyperlipidemia, and skin cancer were all " non-severe" because, among other reasons, " they have been responsive to treatment and have not resulted in any continuous exertional or non-exertional functional limitations." Id. The ALJ also found that Lowery's " adjustment disorder with anxiety and depressed mood" was a non-severe impairment. R. 17-18. None of Lowery's severe impairments, alone or combined, met or medically equaled an impairment listed in the Act's regulations. See R. 18-20.

The ALJ next determined that Lowery had the residual functional capacity (" RFC")[4] to " perform a limited range of light work." [5] R. 20. He noted that this RFC ruled out Lowery's return to his past work as a computer lab manager, network administrator, and computer consultant because the VE testified that these were all " medium" exertion jobs. R. 26, 49-50.

Finally, relying on the VE's testimony, the ALJ concluded that Lowery was not disabled after July 29, 2011, because he still could perform specific occupations that existed in significant numbers nationally and in Virginia, such as record clerk, rental clerk, and hand packer. R. 27. In reaching this conclusion, the ALJ also found that Lowery was not limited to a " low stress" work environment and could maintain acceptable workplace attendance and performance. R. 25-27.

Lowery submitted additional medical records with his request for the Appeals Council to review the ALJ's decision. See R. 5-6, 8-9, 961. The Appeals Council considered this evidence, but concluded that the " information [did] not provide a basis for changing" the ALJ's decision.[6] R. 2. The Appeals Council declined to review the ALJ's decision, R. 1, and this appeal followed.

III. Discussion

Lowery objects to the ALJ's determination that he can perform light work and can maintain acceptable workplace attendance and performance despite his impairments. See generally Pl. Br. 17-19, 19-23. He argues that the ALJ should have " give[n] greater weight" to the opinions of Dr. Said Iskandar, M.D., his treating cardiologist, and Dr. E. Wayne Sloop, Ph.D., an examining psychologist. See id . at 17-19. Lowery also argues that the ALJ's RFC determination does not reflect the total limiting effects of his combined impairments, particularly the debilitating side effects caused by his medications. See id . at 20-22.

Lowery asks the Court to reverse the Commissioner's final decision and to award benefits because, according to Lowery, Drs. Iskandar and Sloop's opinions each " support a finding of disability." Id. at 19, 19 nn. 4-5. Alternatively, he asks the Court to remand his case for a rehearing so the VE can consider a hypothetical question that " properly" includes unidentified mental limitations. Id. at 19, 22.

A. Medical Opinions

ALJs must weigh each medical opinion in the applicant's record. 20 C.F.R. § 416.927(c). Medical opinions are statements from physicians that reflect judgments about the nature and severity of the applicant's impairment(s), including his symptoms, diagnosis and prognosis, what he can still do despite his impairment(s), and his physical or mental restrictions. 20 C.F.R. § 416.927(a) (2). The regulations classify medical opinions by their source: those from treating sources and those from non-treating sources, such as examining physicians and state-agency reviewers. See 20 C.F.R. § 416.927(c). A treating-source medical opinion is entitled to controlling weight if it is " well-supported by medically acceptable clinical and laboratory diagnostic techniques" and " not inconsistent with the other substantial evidence in the record." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); 20 C.F.R. § 416.927(c) (2).

" If not entitled to controlling weight, the value of the [treating-source] opinion must be weighed and the ALJ must consider" the factors listed in 20 C.F.R. § 416.927(c), such as the source's medical specialty, the source's familiarity with the applicant, the weight of the evidence supporting the opinion, and the opinion's consistency with other relevant evidence in the record. Burch v. Apfel, 9 F.App'x 255, 259 (4th Cir. 2001) (per curiam). These factors may " provide specific and legitimate grounds to reject a treating physician's opinion" if the record contains " persuasive contrary evidence." Mastro, 270 F.3d at 178. The ALJ must consider the same factors when weighing medical opinions from non-treating sources, although such opinions are not entitled to any particular weight. See 20 C.F.R. § § 416.927(c) (1)-(6), 416.927(e) (2).

The ALJ must explain the weight given to all medical opinions and must " give good reasons" for the weight assigned to any treating-source medical opinion. 20 C.F.R. § § 416.927(c) (2), 416.927(e) (2). Finally, if the ALJ's RFC assessment conflicts with a medical opinion, he must explain why that opinion was not adopted in full. Davis v. Colvin, No. 4:13cv35, *10 (W.D. Va. July 14, 2014) (Hoppe, M.J.), adopted by 2014 WL 3890495 (Aug. 7, 2014) (Kiser, J.). His decision must be sufficiently specific to make clear to subsequent reviewers the weight he gave to the opinion(s) and the reasons for that weight. Radford v. Colvin, 734 ...


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