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Thacker v. Berryhill

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

January 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Jacqueline S. Thacker (“Thacker”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) determining that she was not disabled and therefore not eligible for supplemental security income (“SSI”), and disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f. Specifically, Thacker alleges that the ALJ erred by failing to give the opinion of her treating physician proper weight, failing to properly evaluate her credibility, finding her depression and anxiety to be non-severe impairments, and failing to properly consider her obesity. I conclude that the ALJ's opinion is supported by substantial evidence. Accordingly, I RECOMMEND DENYING Thacker's Motion for Summary Judgment (Dkt. No. 14) and GRANTING the Commissioner's Motion for Summary Judgment (Dkt. No. 16).


         This court limits its review to a determination of whether substantial evidence supports the Commissioner's conclusion that Thacker failed to demonstrate that she was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).


         Thacker filed for SSI and DIB on August 29, 2012, claiming that her disability began on January 1, 2010. R. 47. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 151-52, 177-78. ALJ Ann V. Sprague held administrative hearings on February 4, 2015 and July 20, 2015, to consider Thacker's disability claim. R. 63-126. Thacker was represented by an attorney at the hearings, which included testimony from Thacker and vocational experts Mark Hileman and Asheley Wells. Id.

         On September 10, 2015, the ALJ entered her decision analyzing Thacker's claim under the familiar five-step process, [2] and denying Thacker's claim for disability. R. 47-57. The ALJ found that Thacker suffered from the severe impairments of fibromyalgia, diverticulitis, obesity and degenerative disc disease. R. 49. The ALJ determined that Thacker's severe impairments did not meet or medically equal a listed impairment, and that she retained the RFC to perform light work. R. 51-52. Specifically the ALJ found that Thacker could frequently lift and carry 10 pounds and occasionally lift and carry 20 pounds; sit for six hours in an eight hour period; stand and/or walk for six hours in an eight hour period; frequently stoop, crouch, crawl, push, pull, and overhead reach; and never climb ladders, ropes or scaffolds. R. 52. The ALJ determined that Thacker is capable of performing her past relevant work as a telephone representative, front desk receptionist and server, and thus is not disabled. R. 55. Thacker appealed the ALJ's decision and submitted additional records to the Appeals Council for review. R. 8-43. On June 16, 2016, the Appeals Council denied her request for review. R. 1-4. This appeal followed.


         Treating Physician Opinion

         Thacker asserts that the ALJ erred by according little weight to the opinion of her treating physician, Clifford Nottingham, M.D., that she is limited to a range of less than light work. I find that the ALJ properly explained the weight given to Dr. Nottingham's opinion, which allows for meaningful review by the court and is supported by substantial evidence.

         Thacker has a history of obesity, diverticulitis and complaints of back pain and joint pain. Thacker began treating with Dr. Nottingham in 2010, for complaints related to diverticulitis, muscle pain and depression and anxiety. R. 488, 496, 500, 514, 517. Dr. Nottingham generally recommended regular exercise, and prescribed Xanax “to use infrequently, ” and Cymbalta. R. 488, 504. Thacker underwent sigmoid colon resection surgery in July 2013, and recovered from the procedure. R. 883-86, 889-90.

         On May 21, 2013, state agency physician James Darden, M.D., reviewed Thacker's medical records and determined that Thacker could perform work at the medium exertion level. R. 134-35. State agency physician R.S. Kadian, M.D., reviewed Thacker's records upon reconsideration and concurred with Dr. Darden's conclusion that Thacker could perform medium work. R. 160-61.

         In October 2013, Thacker complained of neck and back pain, and underwent x-rays of her cervical spine which revealed mild to moderate cervical spondylosis[3] at ¶ 4-C7, and mild neuro foraminal stenosis[4] at ¶ 3-C6. R. 841.

         Thacker visited Dr. Nottingham on December 5, 2013, complaining of back pain, fibromyalgia and chronic pain in her neck. R. 740. Thacker told Dr. Nottingham that she was applying for disability and asked him to complete a form. Id. Dr. Nottingham noted that Thacker's primary issues “have to do with musculoskeletal complaints, particularly in the back, and associated with fibromyalgia.” Id. Thacker complained of pain in her neck and low back, and discomfort with “jolts” down her left leg, multiple areas of tenderness through the neck, back, and extremities “presumably due to fibromyalgia, ” history of diverticulosis with diverticulitis and chronic IBS, some chronic constipation, urinary incontinence “at times, ” cramping in hands and feet, and painful shoulders with grinding and popping sensation. Id. Thacker reported that she did not sleep well in spite of medication, must change position frequently when sitting or standing, and was trying to do some more regular walking. She has discomfort in both knees and cannot squat and feels that her memory is “not very good of late.” Id.

         Upon physical examination, Thacker was alert, in no distress, able to sit and carry on a conversation. R. 740. She had multiple areas of soft tissue tenderness in her neck, and tenderness adjacent to the spine in her cervical and lumbar regions. R. 741. Thacker had discomfort when Dr. Nottingham palpated and moved her shoulders, but her strength was normal. She had limited range of motion of the low back due to discomfort, but normal straight-leg raises and normal strength in her lower extremities. Id. Thacker had mild discomfort to movement of the knees. Her thought, judgment and reasoning ability was appropriate. Id. Dr. Nottingham recommended that Thacker increase the fiber in her diet, continue walking on a regular basis, and reduce her dose of Xanax. Id.

         On February 4, 2014, Thacker had an MRI of her spine which revealed mild central spinal canal stenosis and a small central disc protrusion at ¶ 7-T1. R. 843. X-rays of Thacker's lumbar spine taken on April 15, 2014, document findings “suggestive of minimal instability” of L4 and L5, and no gross evidence of degenerative disc disease. R. 1147-48.

         Thacker visited Dr. Nottingham on July 18, 2014, “for an examination for updating her status of a disability application for her attorney.” R. 1153. She complained of a myriad of problems, including blisters on her arm and leg, chronic nasal congestion, a cyst on her right wrist, anxiety, and fibromyalgia. Id. Thacker complained of pain up and down her spine, in her neck, both shoulders, both knees, both hips, and low back. She complained of episodic weakness of her lower extremities and decreased sensation in her fingers. She reported that she cannot remain in any one position very long, and is restless when she tries to sleep. Id. Dr. Nottingham noted that Thacker underwent epidural steroid injections but did not receive much benefit. Id.

         Upon examination, Thacker was alert, in no distress, had a supple neck, and multiple areas of point tenderness in the soft tissue of her paraspinous areas, both hips and her left knee. Her calves were non-tender, and grip was appropriate bilaterally. She appeared anxious and depressed but was oriented. Dr. Nottingham stated, “we had an extremely lengthy visit addressing the many, many issues noted above.” He recommended exercise as tolerated and encouraged healthy nutrition. Id.

         That same day, Dr. Nottingham completed a Medical Source Statement, and concluded that Thacker could frequently and occasionally lift 10 pounds; stand and/or walk for two hours in an eight hour workday; sit for four hours in an eight hour workday; and must periodically alternate between sitting and standing. R. 1132-33. Dr. Nottingham found that Thacker has limited ability to push and pull with her upper and lower extremities, and can occasionally balance and stoop, but never climb, kneel, crouch and crawl. R. 1133. Dr. Nottingham determined that Thacker is limited in reaching in all directions, handling, fingering and feeling, and would be absent from work more than three times a month due to her impairments or treatment. R. 1134.

         Thacker returned to Dr. Nottingham on October 12, 2014, complaining of abdominal pain, back pain and nausea. R. 1166. Dr. Nottingham noted that Thacker appeared well; she had no joint enlargement, no extremity weakness, and moderate back tenderness. R. 1169. Thacker's mood had hysteriod features with exaggerated responses to questions. R. 1170.

         On March 27, 2015, consultative physician Edwin Cruz, M.D., reviewed Thacker's records at the request of the ALJ and provided his opinion that Thacker can frequently lift and carry 20 pounds and occasionally lift and carry 50 pounds; sit, stand or walk for eight hours in an eight hour day, with a break to sit after four hours, stand after two hours, and walk after one hour. R. 1257-58. Dr. Cruz found that Thacker could continuously balance, kneel, and climb; frequently stoop, crouch, crawl, and climb ramps and stairs; frequently push, pull, and reach overhead; continuously handle, finger feel and reach; and never climb ladders or scaffolds. R. 1260. Dr. Cruz noted Thacker's history of back pain and disc bulge at ¶ 4-5. R. 1252. He noted that Thacker's x-rays and MRI reveal cervical neuro-foraminal stenosis, with no nerve impingement. Id. Dr. Cruz found no evidence in Thacker's records of muscle atrophy or weakness, peripheral neuropathy or other nervous system dysfunction, collagen vascular disease, significant joint erosion, nerve root compression that would limit Thacker's use of her upper or lower extremities, gastrointestinal bleeding, dumping syndrome, persistent diarrhea, malnutrition, or malabsorption. Id. Dr. Cruz noted that Thacker is obese and a smoker and he recommended quitting smoking and losing weight. Overall, Dr. Cruz determined that Thacker could “engage in gainful employment that requires mild to moderate exertion, ” and perform “clerical type of work.” R. 1253.

         Thacker sought treatment from Dr. Nottingham again in May and June 2015, with complaints of depression, anxiety and pain. R. 1284, 1300.

         Thacker also sought treatment from Wadid Zaky, M.D., and others at Carilion Pain Management from September 2014 through May 2015. R. 1232-51, 1263-77. Thacker complained of joint pain, fatigue, numbness and insomnia. R. 1238. Upon examination, Thacker was alert and oriented, in no apparent distress with a stable gait, no swelling in her extremities, and normal muscle tone. R. 1239, 1245, 1266, 1274. She had multiple tender points above and below her waist. R. 1239. Dr. Zaky assessed Thacker with degenerative disc ...

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