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Carpenter v. Berryhill

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

May 31, 2018

REBECCA SUE CARPENTER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak, Judge

         On April 30, 2013, Rebecca Sue Carpenter ("Plaintiff) applied for Social Security Disability Benefits ("DIB") and for Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from Crohn's disease, nerve damage and migraines, with an alleged onset date of November 30, 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: (1) failing to give appropriate weight to the opinion of her treating physician; (2) failing to account for Plaintiffs moderate limitations in concentration, persistence or pace; (3) failing to fully develop the administrative record; and, (4) improperly discounting Plaintiffs credibility. (Mem. in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Mem.") (ECF No. 11) at 16-30.) 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. 10) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 12) be GRANTED and that the final decision of the Commissioner be AFFIRMED.

         I. PROCEDURAL HISTORY

         On April 30, 2013, Plaintiff filed applications for DIB and SSI with an alleged onset date of November 30, 2012. (R. at 114-15, 218-23.) The SSA denied these claims initially on October 23, 2013, and again upon reconsideration on March 26, 2014. (R. at 18, 118-20, 133-35.) At Plaintiffs written request, the ALJ held a hearing on November 20, 2015. (R. at 18, 34, 171.) On December 21, 2015, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because Plaintiff could adjust to other work existing in significant numbers in the national economy. (R. at 18-28.) On January 23, 2017, 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 1-4.)

         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 of 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 Fed.Appx. 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. Coffman 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), 416.920(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), 416.920(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), 416.920(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), 416.920(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 her physical and mental limitations. §§ 404.1545(a), 416.945(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. §§ 404.1520(a)(4)(iv), 416.920(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), 416.920(a)(4)(v).

         III. THE ALJ'S DECISION

         On November 20, 2015, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 34-73.) On December 21, 2015, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 18-28.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 19-28.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 30, 2012. (R. at 20.) At step two, the ALJ found that Plaintiff had the following medically determinable severe impairments: Crohn's disease; irritable bowel syndrome ("IBS"); migraines; chronic pain syndrome; cervical radiculopathy; depression; and, anxiety. (R. at 20.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 21-22.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform light work with the following exertional limitations: Plaintiff could lift, carry, push and pull twenty pounds occasionally and ten pounds frequently, stand/walk for six hours in an eight-hour workday, sit for six hours or more, and frequently climb ramps, stairs, ladders, ropes and scaffolds. (R. at 22.) The ALJ precluded Plaintiff from workplace hazards such as unprotected heights or moving machinery, but Plaintiff could tolerate moderate noise and occasionally work with the public, coworkers and supervisors. (R. at 22.) Plaintiff could perform jobs that she could safely discontinue on an emergent basis to use a restroom. (R. at 22.) Finally, the ALJ limited Plaintiff to simple, routine work-related instructions and the ability to concentrate for two hours before requiring a break. (R. at 22.) At step four, the ALJ found that Plaintiff could not perform any previous relevant work. (R. at 26.) At step five, the ALJ determined that Plaintiff could perform other jobs existing in significant numbers in the national economy. (R. at 27-28.) Therefore, Plaintiff did not qualify as disabled under the Act. (R. at 28.)

         IV. ANALYSIS

         Plaintiff, forty years old at the time of this Report and Recommendation, previously worked as a bus driver and cashier. (R. at 26, 44, 57, 238.) She applied for Social Security Benefits, alleging disability from inflammatory bowel disease, Crohn's disease, and migraines, with an alleged onset date of November 30, 2012. (R. at 74, 114.) First, Plaintiffs appeal to this Court argues that the ALJ erred by discounting the opinion of Plaintiff s treating physician, John Clay, M.D., without adequate reason. (Pl.'s Mem. at 19-24.) Second, Plaintiff alleges that the ALJ erred by failing to adequately incorporate her moderate limitations in concentration, persistence, and pace into the RFC. (Pl.'s Mem. at 19-21.) Third, Plaintiff alleges that the ALJ failed to fairly develop the administrative record. (Pl.'s Mem. at 25-27.) Finally, Plaintiff alleges that the ALJ erred in assessing her credibility. (Pl.'s Mem. at 27-30.) For the reasons set forth below, the ALJ did not err in his decision.

         A. The ALJ Did Not Err in Formulating the RFC.

         1. The ALJ appropriately weighed Dr. Clay's medical opinion.

         Plaintiff argues that the ALJ erred in discounting the medical opinion of her treating physician, Dr. Clay. Plaintiff argues that the ALJ failed to adequately explain why he discounted Dr. Clay's opinion and did not credit Dr. Clay's role as Plaintiffs primary care physician. (Pl.'s Mem. at 21-24.) Defendant counters that the ALJ properly weighed Dr. Clay's opinion, because it contained little narrative explanation, and because the record does not support Plaintiffs claim that Dr. Clay acted as the nexus of her treatment. (Def.'s Mot. for Summ. J. and Br. in Supp. Thereof ("Def.'s Mem.") (ECF No. 12) at 23-24.) Further, Defendant argues that the ALJ sufficiently explained the weight that he gave to Dr. Clay's opinion. (Def.'s Mem. at 25-26.)

         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, 416.912, 416.927. 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), 416.927(c). If, however, the medical opinions prove inconsistent 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), 416.927(c)(2)-(6), (d).

         Under the regulations, only an "acceptable medical source" may be considered a treating source that offers an opinion entitled to controlling weight. SSR 06-03p.[2] Licensed physicians and licensed or certified psychologists constitute acceptable medical sources. §§ 404.1513(a), 404.1527(a), 416.913(a), 416.927(a). The ALJ may also consider evidence from "other sources" - including nurse-practitioners, therapists and social workers - as evidence of the severity of impairment or for the effect that the impairments have on the claimant's ability to work. §§ 404.1513(d), 416.913(d).[3] 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), 416.927(c)(2); Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017); Craig, 76 F.3d at 590; SSR 96-2p. Notably, the ALJ does not have to accept an opinion from a treating source that opines on the claimant's ultimate disability for employment purposes, or when the treating source's opinion is inconsistent with other evidence or is not well-supported. §§ 404.l527(c)(3)-(4), (d), 416.927(c)(3)-(4), (d).

         Unless the ALJ "dredged up 'specious inconsistencies, '" courts generally do not interfere with the ALJ's decision. Dunn, 607 Fed.Appx. at 267 (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1999)). In other words, the ALJ's assignments of weight stand unless the ALJ failed to offer a sufficient reason for his decision. 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), 416.927(c). However, the regulations specifically vest the ALJ with the authority to determine whether a claimant is disabled as defined under the Act. §§ 404.1527(d)(1), 416.927(d)(1).

         Here, the ALJ dedicated two pages of his decision to summarizing Dr. Clay's treatment history and opinion and those from Plaintiffs other treating providers. (R. at 23-25.) Following his analysis of the record, the ALJ afforded Dr. Clay's opinion "partial weight." (R. at 25.) The ALJ noted that Dr. Clay - as Plaintiffs primary care physician - treated Plaintiff four times in 2013 and 2014. (R. at 24-25.) The ALJ explained that he awarded only partial weight, because discrepancies existed between Dr. Clay's opinion and "the clinical findings and opinions" of two of Plaintiff s other treating providers, Elizabeth Bowers, FNP-BC, and Stephen Clement, M.D. (R. at 25.)

         In his opinion dated June 17, 2013, Dr. Clay diagnosed Plaintiff with Crohn's disease and migraines. (R. at 450-51.) Dr. Clay deemed Plaintiffs prognosis "fair," and listed her symptoms as "daily headaches, periodic abdominal pain, [and] frequent loose stools." (R. at 450.) He opined that her symptoms would interfere often with the attention and concentration required to perform simple work-related tasks. (R. at 450.) Dr. Clay did not believe that Plaintiff would need to recline or lie down during an eight-hour workday beyond typical lunch and work breaks. (R. at 450.) He opined that Plaintiff would need to take three to four unscheduled breaks per week, with each break lasting thirty to sixty minutes or potentially requiring her to leave work for the day. (R. at 450.) Dr. Clay assessed that Plaintiffs symptoms would likely cause her to miss work more than four times per month. (R. at 451.) Dr. Clay concluded that Plaintiff remained physically capable of working eight-hour days, five days a week on a sustained basis, but "with accomodations [sic] for breaks" and "intermittent leave of abscences [sic]." (R. at 451.)

         Dr. Clay's opinion conflicts with his own treatment records. Dr. Clay treated Plaintiff eight times from 2012 through 2014. (R. at 314-15, 317-18, 321-22, 423-25, 429-30, 450-51, 496-503.) On April 1, 2012, Plaintiff presented to Dr. Clay with "headaches and crohns [sic] disease." (R. at 321.) Plaintiff reported "essentially daily" abdominal cramping that she said felt different from her Crohn's pain. (R. at 321.) Plaintiff told Dr. Clay that her obstetrician-gynecologist felt "that [her] headaches and abdominal cramping are related." (R. at 321.) Dr. Clay assessed Plaintiffs headaches as either a "side effect from Humira" or "rebound headaches from medication overuse." (R. at 322.) Dr. Clay noted Plaintiffs upcoming appointment with her gastroenterologist - Dr. Clement - and a "mild worsening" of her Crohn's symptoms. (R. at 321-22.) Although he noted Plaintiffs history of depression, during this visit Dr. Clay assessed Plaintiff as "[n]egative" for depression. (R. at 321.)

         On May 10, 2012, Plaintiff returned to Dr. Clay, complaining that her headaches and lower abdominal cramping persisted. (R. at 317-18.) Dr. Clay noted that Plaintiff appeared "sleepy" and "somewhat sedated" but with appropriate mood and affect. (R. at 317-18.) Dr. Clay again determined that either Humira or medication overuse caused Plaintiffs headaches. (R. at 318.) Dr. Clay recommended that Plaintiff "see [a] headache specialist." (R. at 318.)

         Dr. Clay examined Plaintiff again on January 16, 2013, after Plaintiff "awoke on the floor" during colonoscopy preparations. (R. at 314.) Plaintiff reported recurring depression, chronic headaches and "abdominal pain chronically with waxing/waning." (R. at 314.) Dr. Clay suspected that Plaintiff had suffered a "vasovagal episode perhaps due to dehydration" or possible abuse. (R. at 314-15.) Plaintiff had taken Celexa for her depression, but stopped taking it "in the past few months." (R. at 314.) Dr. Clay noted that Plaintiff had "significant stress in her home life[, ]" and that her depression had returned. (R. at 314.) Dr. Clay recommended that Plaintiff adequately hydrate, and he prescribed Celexa ...


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