United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
J. Novak, Judge
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.
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. 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.
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.)
STANDARD OF REVIEW
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).
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).
THE ALJ'S DECISION
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
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.)
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.)
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.
The ALJ Did Not Err in Formulating the RFC.
The ALJ appropriately weighed Dr. Clay's medical
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.)
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),
the regulations, only an "acceptable medical
source" may be considered a treating source that offers
an opinion entitled to controlling weight. SSR
06-03p. 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). 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),
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.
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).
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.)
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
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.)
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
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 ...