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Butler v. Berryhill

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

February 21, 2018

THOMAS BUTLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK UNITED SLATES MAGISTRATE JUDGE

         On December 10, 2012, Thomas Weston Butler ("Plaintiff') applied for Social Security Disability Benefits ("DIB") under the Social Security Act ("Act"), alleging disability from cervicalgia related to Plaintiffs two neck surgeries, anxiety and migraine headaches, with an alleged onset date of April 3, 2012. The Social Security Administration ("SSA") denied Plaintiffs claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claims in a written decision and the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner.

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in assigning little or limited weight to the opinions of Plaintiff s treating physicians; failing to consider Plaintiffs work history in the credibility determination; and, failing to account for all of Plaintiff s mental impairments in the residual functional capacity ("RFC"). (Mem. in Supp. of PL's Mot. for Summ. J. ("PL's Mem.") (ECF No. 12) at 2-3.) This matter now comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on the parties' cross-motions for summary judgment, rendering the matter ripe for review.[1] For the reasons that follow, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 11) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 13) be DENIED and that the final decision of the Commissioner be VACATED and REMANDED.

         I. PROCEDURAL HISTORY

         On December 10, 2012, Plaintiff protectively filed an application for DIB, with an alleged onset date of April 3, 2012. (R. at 88-89, 219-21.) The SSA denied these claims initially on February 26, 2013, and again upon reconsideration on January 22, 2014. (R. at 124, 136.) At Plaintiffs written request, the ALJ held a hearing on May 7, 2015. (R. at 38-87, 143.) On August 4, 2015, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because he could perform jobs existing in significant numbers in the national economy. (R. at 20-31.) On December 2, 2016, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner subject to review by this Court. (R. at 1-5.)

         II. STANDARD OF REVIEW

         In reviewing the Commissioner's decision to deny benefits, a court "will affirm the Social Security Administration's disability determination 'when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence."' Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm 'r o/Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of choice within which the decision makers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.'" Dunn v. Colvin, 607 F. App'x. 264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)). To determine whether substantial evidence exists, the court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). In considering the decision of the Commissioner based on the record as a whole, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Cqffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         The Social Security Administration regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 404.1520(a)(4); see Mascio, 780 F.3d at 634-35 (describing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. § 404.1520(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 404.1520(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's residual functional capacity ("RFC"), accounting for the most that the claimant can do despite his physical and mental limitations. § 404.1545(a). At step four, the ALJ assesses whether the claimant can perform his past work given her RFC. § 404.1520(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. §404.1520(a)(4)(v).

         III. THE ALJ'S DECISION

         On May 7, 2015, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 38-87.) On August 4, 2015, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 20-31.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 21-31.) At step one, the ALJ held that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of April 3, 2012. (R. at 22.) At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spine; neuropathy; headaches; anxiety; depression; and, opiate dependence. (R. at 22.) At step three, the ALJ held that 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. 404, Subpart P, Appendix 1 (§§ 404.1520(d), 404.1525 and 404.1526). (R. at 23.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform sedentary work with limitations. (R. at 24.) Plaintiff could never climb ropes, ladders or scaffolds. (R. at 24.) Plaintiff could occasionally climb ramps/stairs, balance, stoop, kneel, crouch and crawl, occasionally reach overhead and frequently finger and handle. (R. at 24.) The ALJ limited Plaintiff to simple, repetitive tasks and work environments with no more than moderate noise. (R. at 24.) At step four, the ALJ found that Plaintiff could not perform his past relevant work. (R. at 30.) At step five, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national economy. (R. at 30-31.) Therefore, Plaintiff did not qualify as disabled under the Act. (R. at 31.)

         IV. ANALYSIS

         Plaintiff, forty-six years old at the time of this Report and Recommendation, previously worked as a mechanic. (R. at 88, 237.) He applied for Social Security Benefits, alleging disability from cervicalgia related to Plaintiffs two neck surgeries, anxiety and migraine headaches with an alleged onset date of April 3, 2012. (R. at 88-89.) Plaintiffs appeal to this Court alleges that the ALJ erred in affording little or limited weight to the opinions of Plaintiff s treating physicians, failing to consider Plaintiffs work history in the credibility determination and failing to incorporate all of Plaintiff s mental impairments into the RFC. (PL's Mem. at 2-3.) For the reasons set forth below, the ALJ erred in her decision.

         A. Substantial Evidence Supports the ALJ's Assignment of Weight.

         Plaintiff argues that the ALJ failed to provide "good/specific/supported reasons" for affording little or limited weight to the opinions of Plaintiff s treating physicians, Aaron M. Jones, M.D., Kimberly Walker, M.D., and Steven M. Fiore, M.D. (PL's Mem. At 7-14.) Defendant responds that substantial evidence supports the ALJ's decision. (Def.'s Mot. for Summ. J. and Mem. in Supp. ("Def.'s Mem.") (ECF No. 14) at 19-25.)

         During the sequential analysis, when the ALJ determines whether the claimant has a medically-determinable severe impairment, or combination of impairments, that would significantly limit the claimant's physical or mental ability to do basic work activities, the ALJ must analyze the claimant's medical records that are provided and any medical evidence resulting from consultative examinations or medical expert evaluations that have been ordered. 20 C.F.R. §§ 404.1512, 404.1527. When the record contains a number of different medical opinions, including those from Plaintiffs treating sources, consultative examiners or other sources that are consistent with each other, then the ALJ makes a determination based on that evidence. § 404.1527(c). If, however, the medical opinions are inconsistent internally with each other or other evidence, the ALJ must evaluate the opinions and assign them respective weight to properly analyze the evidence involved. §§ 404.1527(c)(2)-(6), (d).

         Under the applicable regulations and case law, a treating source's opinion must be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. § 404.1527(c)(2); Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017); Craig, 76 F.3d at 590; SSR 96-2p.[2] Further, the regulations do not require that the ALJ accept opinions from a treating source in every situation, e.g., when the source opines on the issue of whether the claimant is disabled for purposes of employment (an issue reserved for the Commissioner), or when the treating source's opinion is inconsistent with other evidence or when it is not otherwise well-supported. §§ 404.1527(c)(3)-(4), (d).

         Courts generally should not disturb an ALJ's decision as to the weight afforded a medical opinion absent some indication that the ALJ "dredged up 'specious inconsistences.'" Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). Indeed, an ALJ's decision regarding weight afforded a medical opinion should be left untouched unless the ALJ failed to give a sufficient reason for the weight afforded. Id.

         The ALJ must consider the following when evaluating a treating source's opinion: (1) the length of the treating source relationship and frequency of examination; (2) the nature and extent of the treatment relationship; (3) supportability based upon the medical record; (4) consistency between the opinion and the medical record; (5) any specialization on the part of the treating source; and, (6) any other relevant factors. § 404.1527(c). However, those same regulations specifically vest the ALJ - not the treating source - with the authority to determine whether a claimant is disabled as that term is defined under the Act. § 404.1527(d)(1). Although the regulations explicitly apply these enumerated factors only to treating sources, those same factors may be applied in evaluating opinion evidence from "other sources." SSR 06-03p.

         1. The Opinions of Drs. Jones, Walker and Fiore.

         i. Dr. Jones.

         Dr. Jones, physical medicine and rehabilitation physician, treated Plaintiff from 2014 through 2015. (R. at 987, 991-92, 999-1000, 1014-23, 1041-44, 1061-65, 1067.) He wrote three letters, opining that Plaintiffs condition prevented him from maintaining employment for the next twelve months and beyond; and, that even if an employer could accommodate Plaintiffs restrictions, Plaintiff would miss work because of the pain resulting from increased activity. (R. at 987, 999, 1067.)

         On February 20, 2015, Dr. Jones completed a physical capacities evaluation. (R. at 1014-1020.) Dr. Jones opined that Plaintiff could sit, stand and walk for one hour each during a workday. (R. at 1014.) According to Dr. Jones, Plaintiff could not use his hands for simple grasping, pushing, pulling or fine manipulation. (R. at 1014.) However, Plaintiff could operate foot controls. (R. at 1014.) Plaintiff could never lift or carry more than five pounds, occasionally lift or carry up to five pounds, and never squat, crawl, climb or reach overhead. (R. at 1015.) Plaintiff could never work around unprotected heights or moving machinery, nor could he drive automotive equipment. (R. at 1016.) Although Dr. Jones found evidence of spinal cord compression causing pain, motor loss and muscle atrophy, he noted no reflex loss, low back problems or difficulty walking. (R. at 1019-20.)

         The ALJ afforded Dr. Jones' opinion little weight, because the opinion conflicted with three aspects of the record - (i) the objective findings on Plaintiffs diagnostic tests and examinations; (ii) Plaintiffs response to treatment; and, (iii) Plaintiffs daily activities, including "his ability to take care of his own personal needs, ... drive, shop, run errands, lift a gallon of milk, lift his 18-pound nephew while standing, read, watch television and follow instructions[.]" (R. at 28.)

         ii. Dr. Walker

         Dr. Walker treated Plaintiff from 2011 through 2015. (R. at 607, 616, 620, 625, 629, 631, 633, 637, 642, 650, 653, 657, 1033-38.) On February 3, 2015, Dr. Walker completed a physical capacities evaluation and opined that Plaintiff could sit, stand or walk for less than one hour in an eight-hour workday. (R. at 1034.) Plaintiff could never lift or carry items of any weight, bend, squat, crawl, or reach above shoulder level, because of constant pain and numbness in his arms. (R. at 1035.) Dr. Walker precluded Plaintiff from exposure to unprotected heights and moving machinery, as well as driving. (R. at 1036.)

         The ALJ afforded Dr. Walker's opinion little weight, because the opinion conflicted with (i) generally normal to mild findings on diagnostic tests and examinations, (ii) Plaintiffs response to treatment, (iii) Plaintiffs admissions that medication relieved his pain and (iv) Plaintiffs reported daily activities, including his ability to drive, shop, run errands, open jars, make sandwiches, hold a writing utensil and use buttons and zippers. (R. at 28.)

         iii. Dr. Fiore

         Dr. Fiore treated Plaintiff from 2011 through 2013, and performed Plaintiffs second neck surgery in 2012. (R. at 323, 474, 503, 514, 894, 899.) On November 11, 2013, Dr. Fiore completed an abilities form, opining that Plaintiff could never climb, kneel or reach above the shoulder and occasionally sit, stand or walk. (R. at 912.) Plaintiff could occasionally carry up to ten pounds. (R. at 912.) On September 12, 2014, Dr. Fiore wrote a letter, explaining that he labeled Plaintiff disabled because of the severity of Plaintiff s symptoms, including spasms and cervical pain down his left arm. (R. at 998.) Dr. Fiore opined that Plaintiff could not sit, stand or walk intermittently; therefore, he could not return to work. (R. at 998.)

         The ALJ afforded Dr. Fiore's opinion limited weight, because his opinion (i) conflicted with generally mild findings on diagnostic tests and generally normal findings on physical exams, including normal range of motion, sensation, coordination, strength and gait; (ii) Plaintiffs admissions that medication improved his pain; and, (iii) Plaintiffs reported activities including driving, shopping, running errands, hanging out with friends and taking care of personal needs. (R. at 28.)

         2. Plaintiffs Medical Records Support the ALJ's Decision.

         The ALJ gave specific reasons for the weight that she assigned the opinions of Drs. Jones, Walker and Fiore. Substantial evidence supports the ALJ's assignment of weight. Each doctor opined that Plaintiff had limited ability to sit, stand or walk during a workday, which conflicted with Plaintiffs routinely normal or mild results on physical exams, including Plaintiffs normal gait, muscle strength and tone. Each doctor also commented that Plaintiffs constant pain further caused him extreme functional limitations, but Plaintiff had positive responses to treatment and medication, as documented throughout voluminous medical records from 2011 through 2014. Further, these three opinions do not comport with the unremarkable findings revealed on Plaintiffs MRIs, X-rays and CT scans. For the reasons discussed below, Plaintiffs medical records support the ALJ's assignment of weight to these three opinions.

         Plaintiffs neck problems began when he ruptured a disc playing Softball. (R. at 730, 788.) On April 4, 2011, Plaintiff presented to Stephen E. Thurston, M.D., complaining of neck pain, numbness in his left upper extremity and dizziness. (R. at 310.) After reviewing an MRI of Plaintiff s cervical spine, Dr. Thurston diagnosed Plaintiff with degenerative disc disease at ¶ 5-6 with posterior disc extrusion narrowing the spinal canal, without cord compromise, and moderate bilateral neural foraminal narrowing. (R. at 310.)

         On April 5, 2011, Plaintiffs physical therapist, Laura K. Neely, D.P.T., wrote a letter regarding Plaintiffs progress with physical therapy. (R. at 544.) Dr. Neely noted that she and Plaintiff had worked to restore his cervical motion. (R. at 544.) Although Dr. Neely found nerve tension in Plaintiffs brachial plexus, she noted that Plaintiff had reported decreased pain and improved his motion and tolerance to nerve testing. (R. at 544.) The next day, Plaintiff presented to Steven Reece, M.D. (R. at 540.) Plaintiff had jerked his right arm abruptly at work, and he complained of pain, numbness and tingling in his left arm. (R. at 540.) Dr. Reece's cervical spine exam revealed no tenderness or junction pain. (R. at 541.) Plaintiff displayed full strength and full range of motion in flexion, extension and rotation. (R. at 541.) The Spurling test[3] yielded negative results on the right cervical spine, but positive on the left. (R. at 541.) Dr. Reece's lumbar spine exam revealed no tenderness, full range of motion and full muscle strength. (R. at 541.) Plaintiff had no difficulty walking, and straight leg raise tests returned negative results. (R. at 541.)

         On April 12, 2011, Plaintiff presented to Mark G. Petrizzi, M.D., with mild neck pain. (R. at 680.) Plaintiff displayed neck stiffness and myalgia. (R. at 680.) However, Dr. Petrizzi noted no decreased range of motion, joint pain, joint stiffness, joint swelling, muscle atrophy or muscle weakness. (R. at 680.) Plaintiff had normal posture and cervical spine movements. (R. at 680-81.) Examination of the cervical spine revealed no tenderness to palpation, pain, swelling or edema. (R. at 681.) Plaintiff displayed normal muscle strength and reflexes in his upper extremities. (R. at 681.)

         On April 13, 2011, Plaintiff returned to Dr. Neely, who reviewed Plaintiffs care plan. (R. at 536.) Dr. Neely set goals for Plaintiff to improve his function, strength and range of motion. (R. at 536-39.) In addition to home exercise, Dr. Neely recommended rehabilitative therapy twice per week for four weeks. (R. at 539.)

         On May 6, 2011, Plaintiff saw Lee Blackburn, M.D., at Hanover Family Physicians for a preoperative evaluation. (R. at 677.) Plaintiff felt well with minor complaints and a good energy level. (R. at 677.) Plaintiff displayed a decreased range of motion, joint pain and stiffness, but no muscle weakness. (R. at 677-78.)

         On May 18, 2011, Plaintiff underwent neck surgery at St. Mary's Hospital. (R. at 418-21.) Jed S. Vanichkachorn, M.D., performed an anterior cervical discectomy and fusion at ¶ 5-6, and reported no complications. (R. at 419-20.) Eleven days later, Plaintiff visited Dr. Blackburn for follow-up on his cholesterol. (R. at 674.) Plaintiff felt well and had no complaints. (R. at 674.) Dr. Blackburn noted Plaintiffs normal posture and gait during this and his next examination of Plaintiff on August 31, 2011. (R. at 665, 674.)

         On June 18, 2011, Plaintiff presented to Brent A. Logie, M.D., reporting difficulty sleeping and anxiety. (R. at 672.) Plaintiff experienced neck stiffness and wore a collar, but he had no neck pain or myalgia. (R. at 672.) Noting that Plaintiff remained "pain free," and concerned about the addictiveness of pain medication, Dr. Logie prescribed a sleeping agent for Plaintiff. (R. at 673.) Dr. Logie's examination of Plaintiff yielded unremarkable results. The next day, Plaintiff went to the emergency room at Memorial Regional Medical Center ("Memorial Regional"). (R. at 359.) Plaintiff complained that his pain medication made him feel jittery and affected his sleep. (R. at 367.) Jonas P. Karlsson, M.D., described Plaintiff as well-developed, nourished and in no distress, with normal range of motion, ...


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