United States District Court, W.D. Virginia, Roanoke Division
SHEREE D. WIMMER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Glen E. Conrad Chief United States District Judge.
has filed this action challenging the final decision of the
Commissioner of Social Security denying plaintiffs claim for
a period of disability and disability insurance benefits
under the Social Security Act, as amended, 42 U.S.C.
§§ 416(i) and 423. Jurisdiction of this court is
pursuant to § 205(g) of the Act, 42 U.S.C. §
405(g). This court's review is limited to a determination
as to whether there is substantial evidence to support the
Commissioner's conclusion that plaintiff failed to meet
the requirements for entitlement to benefits under the Act.
If such substantial evidence exists, the final decision of
the Commissioner must be affirmed. Laws v.
Celebrezze, 368 F.2d 640 (4th Cir. 1966). Stated
briefly, substantial evidence has been defined as such
relevant evidence, considering the record as a whole, as
might be found adequate to support a conclusion by a
reasonable mind. Richardson v. Perales. 402 U.S.
389, 401 (1971).
plaintiff, Sheree D. Wimmer, was born on December 18, 1957.
While Mrs. Wimmer did not complete her high school education,
she later earned a GED. Plaintiff has worked as a pharmacy
technician, realtor, and truck driver. She last worked on a
regular basis on September 10, 2010. On February 1, 2012,
Mrs. Wimmer filed an application for a period of disability
and disability insurance benefits. Plaintiff alleged that she
became disabled for all forms of substantial gainful
employment on September 10, 2010, due to fibromyalgia,
chronic fatigue syndrome, sleep apnea, degenerative disc
disease, and restless leg syndrome. Mrs. Wimmer now maintains
that she has remained disabled to the present time. The
record reveals that plaintiff met the insured status
requirements of the Act through the fourth quarter of 2010,
but not thereafter. See generally, 42 U.S.C.
§§ 416(i) and 423(a). Consequently, Mrs. Wimmer is
entitled to a period of disability and disability insurance
benefits only if she has established that she became disabled
for all forms of substantial gainful employment on or before
December 31, 2010. See generally, 42 U.S.C. §
claim for disability insurance benefits was denied upon
initial consideration and reconsideration. She then requested
and received a de novo hearing and review before an
Administrative Law Judge. In an opinion dated March 14, 2014,
the Law Judge also determined that Mrs. Wimmer is not
disabled. The Law Judge found that plaintiff suffers from
several severe impairments, including fibromyalgia, obesity,
fatigue, sleep apnea, and restless leg syndrome. (TR 20).
However, the Law Judge ruled that plaintiff retains
sufficient functional capacity to perform light work
activity. The Law Judge assessed Mrs. Wimmer's residual
functional capacity as follows:
After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except the
claimant could have no more than occasional exposure to
temperature extremes and no exposure to hazards.
(TR 22). Given such a residual functional capacity, and after
considering Mrs. Wimmer's age, education, and prior work
experience, as well as testimony from a vocational expert,
the Law Judge found that, at all relevant times prior to the
termination of her insured status, Mrs. Wimmer retained
sufficient capacity to return to her past relevant work as a
pharmacy technician. The Law Judge also held that, at all
relevant times on and before December 31, 2010, plaintiff
retained sufficient functional capacity to perform other
light work roles existing in significant number in the
national economy. Accordingly, the Law Judge ultimately
concluded that Mrs. Wirnmer was not disabled at any time
prior to the termination of her insured status, and that she
is not entitled to a period of disability or disability
insurance benefits. See 20 C.F.R. § 404.1520(f) and (g).
The Law Judge's opinion was adopted as the final decision
of the Commissioner by the Social Security
Administration's Appeals Council. Having exhausted all
available administrative remedies, Mrs. Wimmer has now
appealed to this court.
plaintiff may be disabled for certain forms of employment,
the crucial factual determination is whether plaintiff was
disabled for all forms of substantial gainful employment. See
42 U.S.C. § 423(d)(2). There are four elements of proof
which must be considered in making such an analysis. These
elements are summarized as follows: (1) objective medical
facts and clinical findings; (2) the opinions and conclusions
of treating physicians; (3) subjective evidence of physical
manifestations of impairments, as described through a
claimant's testimony; and (4) the claimant's
education, vocational history, residual skills, and age.
Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir.
1971); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th
review of the record in this case, the court is constrained
to conclude that the Commissioner's final decisionis
supported by substantial evidence. Mrs. Wimmer carries
diagnoses of sleep apnea, chronic fatigue, and fibromyalgia.
She also suffers from obesity and restless leg syndrome. In
November of 2012, almost two years after the termination of
plaintiff s insured status, Carolyn Walker, a nurse
practitioner, opined that Mrs. Wimmer's fibromyalgia has
reached a disabling level of severity. Mrs. Wimmer testified
at the administrative hearing that, in addition to her pain,
she quit working because of the chronic fatigue associated
with her sleep apnea. However, the court believes that in
concluding that plaintiff was not disabled prior to the
termination of insured status, the Administrative Law Judge
reasonably relied on reports completed in the months prior to
and shortly after December 31, 2010. Dr. Donald M. Zedalis
has treated plaintiffs sleep disorder over a period of
several years. On March 16, 2011, Dr. Zedalis reported that
Mrs. Wimmer has suffered from severe obstructive sleep apnea
since March of 1998, and that her sleep apnea is reasonably
controlled through use of a CPAP apparatus. (TR244-45). On
July 29, 2010, Dr. Zedalis noted that plaintiff is
"doing relatively well in regards to her insomnia."
(TR 450). While Dr. Zedalis reported that Mrs. Wimmer
continued to experience some difficulty staying awake, he
considered her sleep apnea to be relatively well-controlled
with her treatment regimen. Mrs. Wimmer first received
rheumatological treatment for her fibromyalgia on April 19,
2011. On that occasion, Dr. Catherine Daniel considered
plaintiffs sleep apnea to be "stable." (TR 265). On
June 21, 2011, Dr. Daniel noted that Mrs. Wimmer was
receiving some help for her fibromyalgia symptoms with
Neurontin. (TR 261). Dr. Daniel reported that she would see
Mrs. Wimmer on an as-needed basis. (TR 262).
opinion, the Administrative Law Judge offered the following
assessment of the relatively limited body of medical evidence
completed during the period before and shortly after
termination of insured status:
In this case, the claimant has not consistently complained of
and sought treatment for symptoms related to her sleep apnea,
fibromyalgia, and fatigue. The claimant sought significant
treatment from March to September 2010. However, after
September 2010, the alleged onset date, she returned to Dr.
Zedalis and reported that she was doing better. She saw a
rheumatologist twice in 2011, but she reported that her
Neurontin helped her fibromyalgia. She rarely sought
treatment for her allegedly disabling impairments after that.
Though not dispositive of the case, such failure is a factor
in analyzing the credibility of claimant's allegations.
(TR 24). Considering the reports of Dr. Zedalis and Dr.
Daniel, the court must conclude that the Law Judge's
findings are supported by the reports and clinical findings
of plaintiff s treating physicians. Having found substantial
evidence to support the Law Judge's disposition, it
follows that the Commissioner's final decision must be
appeal to this court, plaintiff has offered several arguments
in support of her assertion that the Commissioner's final
decision is not supported by substantial evidence. Mrs.
Wimmer maintains that the Law Judge erred in giving little
weight to the report of the nurse practitioner, Carolyn
Walker. While it is true that Ms. Walker's physical
findings suggest that plaintiffs fibromyalgia has now reached
a disabling level of severity, the court again notes that the
nurse practitioner did not offer her findings and opinions
until almost two years after the termination of plaintiffs
insured status. Indeed, Mrs. Wimmer did not seek treatment
from a rheumatologist until after her insured status had
expired. Moreover, the administrative regulations provide
that greater weight should normally be given to the findings
and opinions of treating physicians such as Dr. Zedalis and
Dr. Daniel. See 20 C.F.R. § 404.1527(b)(2). To the
extent that the nurse practitioner's assessment conflicts
with the clinical findings of the medical doctors, the court
agrees that the Law Judge reasonably afforded greater weight
to the findings of the physicians.
appeal, Mrs. Wimmer also argues that the Law Judge failed to
consider her obesity, which the Law Judge held to be a severe
impairment. However, the court notes that none of the doctors
who saw plaintiff considered her obesity to be a significant
medical concern, much less one which would interfere with her
capacity to perform work. Moreover, in Mrs. Wimmer's
case, the court believes that her weight problems have proven
susceptible to reasonable medical control. For example, at
the time of the administrative hearing on January 29, 2014,
plaintiff testified that she had lost 42 pounds and
weighed-about 205. (TR 43). The court finds no basis on which
to conclude that the Law Judge's opinion is deficient in
terms of his consideration of plaintiffs severe obesity.
Mrs. Wimmer asserts that the Law Judge failed to properly
consider her testimony, and credit her physical symptoms of
fatigue, pain, drowsiness, and lack of stamina in finding
that plaintiff remained capable of performing light work
activity at all relevant times prior to the termination of
her insured status. It is true that plaintiffs physical
symptoms, at least as described at the administrative hearing
on January 29, 2014, strongly suggest that she is no longer
able to perform any reasonable work activity. However, the
court agrees that plaintiffs testimony is somewhat
inconsistent with the complaints presented to her physicians,
and the clinical findings of her physicians during the
critical period prior to December 31, 2000 and in the months
thereafter. Thus, the court believes that there is
substantial evidence to support the Law Judge's decision
not to fully credit Mrs. Wimmer's testimony. More to the
point, the Administrative Law Judge specifically found that
Mrs. Wimmer's severe medical impairments could be
expected to cause many work-related symptoms. (TR 24). It
appears to the court that, as mandated by the United States