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Musser v. Berryhill

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

September 29, 2017

SONJA MARIE MUSSER, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION

          JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Sonja Marie Musser asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434. The case is before me by the parties' consent under 28 U.S.C. § 636(c)(1). Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that substantial evidence supports the Commissioner's decision.

         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 Administrative Law Judge (“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 Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). 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 to 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); 20 C.F.R. § 404.1505(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 Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); 20 C.F.R. § 404.1520(a)(4). 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

         Musser filed for DIB on May 31, 2012, alleging disability caused by anxiety, fibromyalgia, refractive trochanteric bursitis, ulnar neuropathy, and depression beginning on March 1, 2011, at which time she was forty-one years old. Administrative Record (“R.”) 77, ECF No. 9. Disability Determination Services (“DDS”), the state agency, denied her claim at the initial, R. 77-88, and reconsideration stages, R. 90-105. On September 11, 2014, Musser appeared with counsel at an administrative hearing before ALJ Marc Mates and testified about her impairments, past work, and daily activities. R. 35-76. A vocational expert (“VE”) also testified about Musser's past work and her ability to do other jobs in the national and local economies. R. 71-75.

         On November 10, 2014, ALJ Mates issued a written decision denying Musser's DIB application. R. 12-26. He determined that she had not engaged in substantial gainful activity since March 1, 2011. R. 14. He then found that Musser had severe impairments of fibromyalgia, trochanteric bursitis, and obesity. Id. All other conditions, including her dry eyes, bilateral ulnar neuropathies, mouth lesions, stage I endometriosis, and depression, were deemed non-severe. R. 14-17. None of these impairments, alone or in combination, met or medically equaled the severity of one of the listed impairments. R. 17. As to Musser's residual functional capacity (“RFC”), [1] ALJ Mates determined that she could perform a range of sedentary work[2] in that she could lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk for four hours and sit for six hours in an eight-hour workday; occasionally balance and stoop; never climb ladders, ropes, or scaffolds; and occasionally reach overhead and push and pull with the upper extremities bilaterally. Id. She also should avoid exposure to workplace hazards, such as unprotected heights and dangerous moving machinery. Id. Musser could not perform her past relevant work as a college professor. R. 24. She could, however, perform other jobs, including general office clerk, receptionist, inspector/grader, and assembler, that existed in significant numbers in the national and local economies. R. 24-25. Therefore, ALJ Mates concluded that Musser was not disabled. R. 26. The Appeals Council denied Musser's request for review, R. 1- 4, and this appeal followed.

         III. Discussion

         Musser frames the issues of her appeal as “[w]hether the ALJ committed error by failing to follow Social Security Ruling 12-2p and by misstating the medical evidence of record.” Pl.'s Br. 2, ECF No. 12. The crux of this challenge concerns ALJ Mates's RFC determination, particularly as to his assessment of Musser's fibromyalgia and evaluation of her subjective statements about her symptoms. Musser also disputes the weight the ALJ assigned to the opinion of her treating physician, contending that it should have been afforded controlling weight, id. at 4-5, and she asserts that ALJ Mates erred at step two by finding that she did not have a severe eye impairment, id. at 5-6. Musser's arguments are not persuasive.

         A. Severe Eye Impairment

         1.Relevant Facts and Testimony

         Musser did not allege disability because of an eye-related impairment in her initial DIB application. R. 77. She did, however, note some problems with her vision in her function reports submitted as part of her application for benefits, stating that her blurry vision made it difficult to read and that she regularly used prescription glasses. See R. 264, 266, 295, 301. She then testified at the administrative hearing that she experienced dry eyes as a side effect of some of her medications. R. 61. She stated that John Stathos, M.D., her ophthalmologist, put punctal plugs in her eyes, which “helped amazingly” at first. Id. The plugs eventually began to cause severe irritation by rubbing against her corneas, so Dr. Stathos removed them. R. 62. Musser noted that she began using Restasis eye drops, which also helped, although not as much as the plugs. Id.

         Musser visited Dr. Stathos annually for eye treatment from 2011 through 2013. On February 3, 2011, Musser complained of blurry vision, but her visual acuity with correction was 20/25 in the right eye and 20/20 in the left eye. R. 371. Dr. Stathos indicated that she had a congenital cataract in the right eye and instructed her to return in one year. R. 372. On February 9, 2012, Musser reported worsening vision, both up close and at a distance, in both eyes. R. 373. She also noted that she occasionally saw floaters and experienced a glare. Id. Her visual acuity with correction was 20/40 in the right eye and 20/25 in the left eye. Id. Dr. Stathos increased her prescription strength, ordered her prescription bifocals, and instructed her to return in a year. R. 373-74. During a visit in 2013, Musser explained that she had not been able to wear her contact lenses for a month and a half because of dryness. R. 734. She had trouble with reading- although Dr. Stathos noted she took her glasses off to read-and sometimes she could not see the closed captioning on the television. Id. Her visual acuity with correction was 20/30- on the right and 20/25 on the left. Id. Dr. Stathos again noted that Musser had a congenital cataract in the right eye and instructed her to follow up in one year. R. 735. Musser returned on December 19, requesting punctal plugs. R. 762. Her visual acuity with correction was 20/25 on the right and 20/20 on the left. Id. Dr. Stathos scheduled her to return in ten days to receive the plugs. R. 763. On March 7, 2014, Musser followed up with continued complaints of dryness. R. 758. She had been using Restasis, which helped, but she still had blurred vision daily and experienced floaters and an “awful glare.” Id. Her visual acuity with correction was 20/25 on the right and 20/20 on the left, and she had a moderately deep tear lake. Id. Dr. Stathos continued her on Restasis and advised her to keep her scheduled appointment. R. 759. Musser followed up with Dr. Stathos on July 8 and reported having pain after using Restasis drops. R. 792. She still experienced glare and dryness that prevented her from wearing contact lenses, but she had no new floaters. Id. Her visual acuity with correction was 20/20 in both eyes. Id. Dr. Stathos continued her on Restasis and instructed her to follow up in a year. R. 793.

         2. Analysis

         At step two, the ALJ determines whether a claimant has a “severe medically determinable physical or mental impairment . . . or combination of impairments.” 20 C.F.R. § 404.1520(a)(4)(ii).

[A]n impairment or combination of impairments is considered “severe” if it significantly limits an individual's physical or mental abilities to do basic work activities; an impairment(s) that is “not severe” must be a slight abnormality (or a combination of slight abnormalities) that ...

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