United States District Court, W.D. Virginia, Roanoke Division
JACQUELINE S. THACKER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
S. BALLOU, UNITED STATES MAGISTRATE JUDGE
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.
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. 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).
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.
September 10, 2015, the ALJ entered her decision analyzing
Thacker's claim under the familiar five-step process,
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.
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.
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.
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.
October 2013, Thacker complained of neck and back pain, and
underwent x-rays of her cervical spine which revealed mild to
moderate cervical spondylosis at ¶ 4-C7, and mild neuro
foraminal stenosis at ¶ 3-C6. R. 841.
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.
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
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.
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.
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.
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.
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.
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.
sought treatment from Dr. Nottingham again in May and June
2015, with complaints of depression, anxiety and pain. R.
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 ...