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Cumings v. Colvin

United States District Court, E.D. Virginia, Alexandria Division

March 13, 2017

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.



         Pursuant to 42 U.S.C. § 405(g), Grace Berry Cumings ("plaintiff" or "claimant") seeks judicial review of the final decision of the Commissioner of Social Security ("defendant") denying plaintiff s claim for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-34. Both parties filed motions for summary judgment with briefs in support, which are now ripe for resolution. (Dkts. 15, 17.) On January 12, 2017, United States District Judge Anthony J. Trenga referred this matter, with the consent of both parties, to the undersigned United States Magistrate Judge. (Dkt. 23.) For the following reasons, Claimant's Motion for Summary Judgment (Dkt. 15) shall be DENIED and Defendant's Motion for Summary Judgment (Dkt. 17) shall be GRANTED.


         Plaintiff filed her application for disability insurance benefits on April 20, 2012, alleging disability as of June 1, 2007. (Administrative Record[1] ("R.") 97.) Plaintiff's claims were initially denied on August 8, 2012, and again upon reconsideration on February 4, 2013. (Id. at 116, 125.) On May 6, 2013, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 132.)

         ALJ Thomas M. Ray held a hearing on December 17, 2014, during which he received testimony from plaintiff, represented by counsel, and Diana C. Sims, an impartial vocational expert. (Id. at 34.) On February 9, 2015, the ALJ issued his decision, finding that plaintiff was not disabled under Sections 216(i) and 223(d) of the Social Security Act through December 31, 2010, the last date plaintiff was insured. (Id. at 17-33.) The Appeals Council for the Office of Disability Adjudication and Review ("Appeals Council") denied plaintiff's request for review of the ALJ's decision on June 29, 2016. (Id. at 1-6.) Having exhausted her administrative remedies, plaintiff filed a Complaint for judicial review on August 31, 2016. (Dkt. 1.) Defendant answered on November 7, 2016. (Dkt. 10.) The parties then filed cross-motions for summary judgment (Dkts. 15 and 17), and the matter is now ripe for adjudication.


         Under the Social Security Act, the Court's review of the Commissioner's final decision is limited to determining whether the Commissioner's decision was supported by substantial evidence in the record and whether the correct legal standard was applied. 42 U.S.C. § 405(g); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "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 scintilla but less than a preponderance. Hays, 907 F.2d at 1456. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record, or where the ALJ has made an error of law, the district court must reverse the decision. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987), superseded by statute on other grounds as stated in Stroup v. Apfel, No. 96-1722, 2000 U.S. App. LEXIS 2750, at *12-13 (4th Cir. Feb. 24, 2000).

         In reviewing for substantial evidence, the Court must examine the record as a whole, but it may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). The correct law to be applied includes the Act, its implementing regulations, and controlling case law. See Coffman, 829 F.2d at 517-18. With this standard in mind, the Court next evaluates the ALJ's findings and decision.


         The ALJ is required to employ a five-step sequential evaluation in every Social Security disability claim analysis to determine the claimant's eligibility. 20 C.F.R. §§ 404.1520, 416.920. As noted above, the Court examines this five-step process on appeal to determine whether the correct legal standards were applied, and whether the resulting decision of the Commissioner is supported by substantial evidence in the record. In accordance with the five-step sequential analysis, the ALJ in this case made the following findings of fact and conclusions of law.

         First, plaintiff did not engage in substantial gainful activity during the period from her alleged onset date of June 1, 2007, through her date last insured ("DLI") of December 31, 2010. (R. 22.) Second, through the DLI plaintiff had the following severe impairments: fibromyalgia, arthritis, and degenerative disc disease. (Id.) Third, plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, through her DLI. (Id. at 22-23.) Fourth, through her DLI plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b), including the ability to occasionally lift and lift or carry 20 pounds, frequently lift or carry 10 pounds, and within an 8-hour workday, stand or walk for 6 hours and sit for 6 hours, push or pull as much as she could lift or carry, including the use of hand or foot controls, frequently climb ramps or stairs, occasionally climb ladders, ropes, or scaffolds, frequently balance, stoop, kneel, crouch, and occasionally crawl. (Id. at 23.) The ALJ deferred findings about plaintiff's ability to perform work activities citing undeveloped information about self-employment activity. (Id. at 26.) Fifth, considering plaintiff's RFC, age, education, and work experience, there were jobs that existed in significant numbers on the national economy that plaintiff could have performed through the DLL (Id. at 27.) Therefore, the ALJ determined that plaintiff was not under a disability as defined in the Social Security Act, at any time from June 1, 2007, the alleged onset date, through December 31, 2010, the date plaintiff was last insured. (Id. at 28.)


         Plaintiff was 48 years old on December 31, 2010, her DLL (R. 97.) Plaintiff has a 12th grade education and reported that she worked as a mortgage brokerage account executive, a realtor, and was self-employed including painting and decorating properties. (Id. at 202, 219-25.) Plaintiff alleged disability since June 1, 2007, due to rheumatoid arthritis, fibromyalgia, muscle spasms, reverse lordosis, chronic pain, and cervical myalgia. (Id. at 97.)

         A. Testimony at the Hearing before the ALJ

         At the hearing before the ALJ on December 17, 2014, plaintiff agreed that this is a chronic pain case. (R. at 58.) She compared her pain from 2010 to 2014, stating the pain was "not quite as bad as it is now." (Id. at 59.) Further, plaintiff stated she could move about more during that time, for example she could care for her dog and go out twice a week. (Id.) Plaintiff added that her doctors were aware of the fibromyalgia and rheumatoid but not yet aware of the issues with her neck and the degenerative disk disease. (Id. at 60.) Plaintiff testified after her mastectomies she could not use her arms because her muscles atrophied. (Id. at 61.) She was instructed to stay in bed during that time and did nothing for six months. (Id.) Plaintiff further stated that an abscess developed which aggravated her healing process and led to a debridement surgery which removed muscles from her right chest area. (Id. at 63.) Plaintiff stated the combined effect of her other health issues with the surgery caused her to take longer to recover from surgery. (Id. at 67.) Plaintiff takes muscle relaxers and pain medication that she said definitely help but have the side effects of fatigue, balance issues, and lack of focus or concentration. (Id. at 69-70.) When plaintiff's attorney examined plaintiff about the time period of June 2007 to the end of 2009, plaintiff testified that she did nothing and would remain at home. (Id. at 79-80.)

         At the administrative hearing, the vocational expert described plaintiff's past work as an account executive that presents as being light as plaintiff performed it, and a self-employed contactor, closely associated with interior decorating as light and skilled. (Id. at 85.) The ALJ asked the vocational expert hypotheticals and about unskilled occupations in the national economy. The vocational expert testified that an individual who could not perform the previous work of plaintiff could attain positions of an office helper, a non-postal mail clerk, or an information clerk. (Id. at 87-88.) Other sedentary positions such as a receptionist, document preparer, and telephone clerk were mentioned. (Id. at 89-90.) The vocational expert acknowledged that an individual with a similar RFC to plaintiff who needs a cane on a frequent basis in order to ambulate and balance, and who could only be productive for 80 percent of the time, would not find available work. (Id. at 91.)

         B. Medical Treatment Records through DLI [2]

         The medical records show that plaintiff was evaluated by Daniele Nunez, M.D. on November 2, 2007. (R. at 537.) Plaintiff described pain in her lower back which radiated from there to her right buttock. (Id.) Dr. Nunez reported the event that precipitated the pain was plaintiff pushing a heavy object. (Id.) Dr. Nunez described the pain as "chronic, but intermittent problem with an acute exacerbation" that caused decreased range of motion in her back. (Id.) Plaintiff was prescribed Percocet, Flexeril, and Naproxen. (Id.) Plaintiff returned to Dr. Nunez seven months later with the same constant back pain but it was no longer radiating. (Id. at 535.) Dr. Nunez noted a decreased range of motion in plaintiff's neck and back and prescribed Percocet and Flexeril again. (Id.) At that time, Dr. Nunez noted plaintiff's medical history for rheumatoid arthritis was significant. (Id.) On April 3, 2009, Dr. David Leonard, M.D., plaintiff's treating physician, examined plaintiff in connection with her fibromyalgia, which had been diagnosed since 2004. (Id. at 533.) Plaintiff's fibromyalgia pain was present in all four body quadrants. (Id.) On May 6, 2009, Dr. Leonard examined plaintiff and reported back pain and her symptoms for fibromyalgia and rheumatoid arthritis were progressive and worsening. (Id. at 533.) In June 2009, Dr. John J. Moynihan, M.D., examined plaintiff after an abnormal left breast imagining report upon referral. (Id. at 541, 684-85.) A biopsy revealed an atypical ductal hyperplasia. (Id. at 548.) Dr. Moynihan discussed treatment options with plaintiff including chemoprevention and prophylactic mastectomy. (Id. at 685.) He noted the prophylactic mastectomy was not the standard approach for hyperplasia. (Id.) Plaintiff expressed interest in a prophylactic mastectomy at that time. (Id.) In September 2009# plaintiff presented with a breast lesion, chronic insomnia, lower back pain, and rheumatoid arthritis. (Id. at 526.) Plaintiff described the pain of the fibromyalgia as severe in intensity and causing a lack of sleep. (Id. at 525.) Dr. Leonard prescribed the same medications, plus an injection, and initiation of an exercise program was recommended. (Id. at 527.) In December 2009, plaintiff complained of lower back pain, neck pain, and wrist pain from a left wrist ganglion. (Id. at 521.) Dr. Leonard noted worsening symptoms of rheumatoid arthritis, refilled plaintiff's medications, and ordered x-rays of plaintiff. (Id. at 521-23.) In January 2010, Dr. Moynihan performed a bilateral total mastectomy on plaintiff. (Id. at 548.) On January 5, 2010, plaintiff's cervical spine x-ray revealed moderate disc narrowing and plaintiff's hip/pelvis x-rays were normal. (Id. at 546.) On January 13, 2010, Dr. Leonard referred plaintiff to Dr. Stephen W. Pournaras, M.D., of Fair Oaks Orthopaedic Associates, Inc. to assess "problems with her left arm." (Id. at 702.) Dr. Pournaras found a small cyst but was not inclined to excise it without a further work up. (Id.) He referred plaintiff to another doctor for neurologic consultation. (Id.) The next month, Dr. Pournaras recommended plaintiff not do anything with the wrist cyst. (Id. at 703.) Plaintiff had a right breast infection in May 2010, related to a reconstructive implant, which required emergency surgery of debridement of her right breast, tissue, and muscles. (Id. at 467.)

         C. Medical Opinions by Treating Physicians after DLI

         On January 20, 2011, plaintiff was examined by Dr. Leonard. (Id. at 512.) Plaintiff reported continued back pain and was prescribed refills of Naproxen, Percocet, Soma, and Savella. (Id. at 514.) In October 2011, Dr. Leonard noted that patient has been without any improvement of her pain. (Id. at 497.) A decreased range of motion and pain with motion was recorded in plaintiff's shoulders, back, and hips. (Id. at 499.) On May 14, 2012, Dr. Leonard evaluated plaintiff. She remained on a number of medications and records continued to show insomnia, chronic pain, and fatigue. (Id. at 477.)

         In September 2012, Dr. Leonard wrote a statement detailing his long term treatment of plaintiff and his opinion that "plaintiff is disabled from working in a meaningful capacity due to her multiple medical problems." (Id. at 711.) He stated plaintiff is not able to sit or stand for prolonged periods of time, cannot lift more than 15 pounds, and cannot do repetitive bending or stooping. (Id.) He also stated that she tires easily from her pain medications. (Id.)

         On May 23, 2013, Dr. Alex Croog, M.D., of Commonwealth Orthopaedics and Rehabilitation P.C., examined plaintiff after plaintiff reported a previous doctor told her to "go away." (Id. at 673.) Dr. Croog noted her medical history and reported on her chief complaint which was "acute on chronic left wrist pain." (Id.) After his assessment, the treatment plan was for plaintiff to wear a thumb brace for 3 weeks, continue taking Naprosyn, and return in a month. (Id.) Other treatments such as a cortisone injection and "as a last resort" surgery were discussed. (Id.) In June 2013, Dr. Leonard reported plaintiff's severe fatigue, inability to maintain sleep, and depression. (Id. at 692.)

         In sum, plaintiff's records show persistent problems with pain, fibromyalgia, rheumatoid arthritis, breast lesion, chronic insomnia, and fatigue. Dr. Leonard repeatedly stated that ...

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