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Arthur v. Berryhill

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

June 12, 2018

VIRGINIA WRIGHT ARTHUR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak United States Magistrate Judge

         On March 5, 2012, Virginia Arthur Wright ("Plaintiff) applied for Social Security Disability Benefits ("DIB") under the Social Security Act ("Act"), alleging disability from asthma, chronic obstructive pulmonary disorder ("COPD"), psoriasis of the hands, cardiac problems, high blood pressure, knee problems and depression, with an alleged onset date of May 18, 2011. The Social Security Administration ("SSA") denied Plaintiffs claim initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claim in a written decision. The Appeals Council remanded Plaintiffs claim to an ALJ for review. On rehearing, the ALJ again denied Plaintiffs claim in a written decision. The Appeals Council denied Plaintiffs subsequent 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 failing to accord proper weight to her treating physician's opinions, failing to properly consider her psoriatic arthritis and resulting limitations in handling objects, omitting reference to Plaintiffs fibromyalgia and finding that Plaintiff could perform her past relevant work. (Mem. in Supp. of Pl's Mot. For Summ. J. & Mot. To Remand ("Pl's Mem.") (ECF No. 15) at 3-21.) 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. 13) and Motion to Remand (ECF No. 14) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 16) be GRANTED and that the final decision of the Commissioner be AFFIRMED.

         I. PROCEDURAL HISTORY

         On March 5, 2012, Plaintiff filed an application for DIB with an alleged onset date of May 18, 2011. (R. at 118-19.) The SSA denied these claims initially on June 12, 2012, and again upon reconsideration on August 2, 2012. (R. at 118, 130.) At Plaintiffs written request, the ALJ held a hearing on September 5, 2013. (R. at 146.) On November 27, 2013, the ALJ issued a written opinion, denying Plaintiffs claim and concluding that Plaintiff did not qualify as disabled under the Act, because she could perform her past relevant work. (R. at 146-62.) On February 25, 2015, the Appeals Council remanded the case to the ALJ to reconsider the treating physician's opinion, reconsider Plaintiffs maximum residual functional capacity ("RFC") and, if warranted, obtain expert vocational evidence. (R. at 170-71.)

         On September 9, 2016, the ALJ issued a new written opinion, again denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because Plaintiff could perform her past relevant work. (R. at 7-30.) On February 27, 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 1-6.)

         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 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. Cojfman 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. § 404.152O(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 404.152O(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's RFC, accounting for the most that the claimant can do despite her physical and mental limitations. § 404.1545(a). At step four, the ALJ assesses whether the claimant can perform her 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 August 2, 2016, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 43-69.) On September 9, 2016, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 7-21.)

         The ALJ followed the five-step evaluation process established by the Act in analyzing Plaintiffs disability claim. (R. at 12-21.) At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity between her alleged onset date of May 18, 2011, and her date last insured of June 30, 2016. (R. at 12-13.) At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease; osteoarthritis; chronic pain syndrome; and, obesity. (R. at 13-14.) At step three, the ALJ determined that none of Plaintiff s impairments or combination of impairments met or medically equaled the impairments listed in the regulations. (R. at 14-16.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform light work, except that she used a cane to stand and ambulate. (R. at 16.) Plaintiff could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (R. at 16.) Plaintiff could frequently handle and finger, and have frequent exposure to respiratory irritants. (R. at 16.) She could have occasional exposure to workplace hazards, but Plaintiff could never climb ladders, ropes or scaffolds. (R. at 16.) At step four, the ALJ found that Plaintiff could perform her past relevant work as a medical social worker/assessor as generally performed. (R. at 20.) Therefore, Plaintiff did not qualify as disabled under the Act. (R. at 20-21.)

         IV. ANALYSIS

         Plaintiff, sixty-seven years old at the time of this Report and Recommendation, previously worked as a medical social service worker and hospice social worker. (R. at 351.) She applied for Social Security Benefits, alleging disability from asthma, COPD, psoriasis of the hands, cardiac problems, high blood pressure, knee problems and depression, with an alleged onset date of May 18, 2011. (R. at 119.) Plaintiffs appeal to this Court alleges that the ALJ erred in (1) failing to accord proper weight to her treating physician's opinions; (2) failing to properly consider her psoriatic failing and resulting limitations in handling objects; (3) omitting reference to Plaintiffs fibromyalgia; and, (4) finding that Plaintiff could perform her past relevant work as generally performed. (Pl's Mem. at 3-18.) For the reasons set forth below, the ALJ did not err in her decision.

         I.The ALJ Did Not Err in Evaluating the Opinions of Plaintiffs Treating Physician.

         Plaintiff argues that the ALJ erred in affording little weight to the opinions of Plaintiff s treating physician, Steven Spence, M.D. (Pl's Mem. at 4-18). Plaintiff further maintains that the ALJ failed to properly consider the regulatory factors set forth in 20 C.F.R. § 404.1527(c), which govern the evaluation of a treating source's opinion. (Pl's Mem. at 17-18.) Defendant responds that the ALJ properly considered Dr. Spence's opinions, and that substantial evidence supports the ALJ's decision. (Mem. in Supp. of Def.'s Mot. For Summ. J. ("Def.'s Mem.") (ECF No. 16) at 14-18.).)

         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 analyze properly the evidence involved. §§ 4O4.l527(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. §§ 4O4.l527(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 the Act defines that term. § 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.

         Dr. Spence treated Plaintiff on multiple occasions between 2010 and 2015 at the Blackstone Family Practice Center. (R. at 556, 567-68, 584, 601, 612, 622, 635, 651, 669, 676, 792, 932, 956, 970, 992, 1070, 1279.) Dr. Spence issued three statements regarding Plaintiffs ability to work. (R. at 558, 1280, 1657-60.) First, on March 15, 2012, Dr. Spence opined that Plaintiff "is clearly disabled at this point from multiple medical issues." (R. at 558.) Second, on December 18, 2015, Dr. Spence drafted a letter, stating that Plaintiff "suffer[ed] from a severe complex combination of medical problems and is totally disabled in my opinion." (R. at 1280.) Dr. Spence then listed Plaintiffs active problems, which included, inter alia, depressive disorder, asthma, psoriasis, spinal stenosis of the lumbar region and fibromyalgia. (R. at 1280.) Dr. Spence's letter did not further provide any explanation as to why those impairments rendered Plaintiff disabled or the effects that those impairments had on Plaintiffs ability to work. (R. at 1280.) The ALJ described these two opinions as "conclusory and lack[ing] balance and support by evidence of record." (R. at 19.) Additionally, the ALJ found Dr. Spence's March 2012 and December 2015 opinions internally inconsistent with his own treatment notes from 2012 and 2014. (R. a 19.) Finally, the ALJ noted that the ultimate determination of disability under the Act, "is an issue reserved to the Commissioner." (R. at 19 (citing 20 C.F.R. § 404.1527(e).) Thus, the ALJ afforded these opinions little weight. (R. at 19.)

         Finally, the ALJ considered Dr. Spence's Residual Function Capacity Medical Source Statement, dated January 26, 2016. (R. at 19, 1657-60.) In that assessment, Dr. Spence opined that Plaintiff could not work, because she suffered from hand deformities, psoriatic arthritis, osteoarthritis, depression and chronic pain syndrome. (R. at 1657.) Dr. Spence opined that Plaintiff could occasionally lift less than five pounds, rarely lift five pounds and never lift more than five pounds. (R. at 1657.) Because Plaintiff used a cane, Dr. Spence also indicated that she could rarely carry less than five pounds and never carry more than five pounds. (R. at 1658.) According to Dr. Spence, Plaintiff could not walk without rest or severe pain, or climb steps without use of a handrail at a reasonable pace. (R. at 1658.) Dr. Spence opined that Plaintiff needed to elevate her legs for four hours during an eight-hour workday, that she required unscheduled breaks and would be off-task 8% of the time. (R. at 1658-59.) Finally, Dr. Spencer assessed that Plaintiff could use her fingers 90% of the time for fine manipulation, but that she could never use her hands for overhead reaching, grasping, turning or twisting objects. (R. at 1659.) The ALJ also afforded this opinion little weight, because "it lack[ed] balance and consistence with evidence of record as a whole[.]" (R. at 19 (citing, inter alia, Plaintiffs normal findings on mental status examinations, positive response to conservative treatment and reported daily activities).)

         The ALJ properly considered the factors set forth in § 404.1527(c). Plaintiff argues that ALJ failed to credit Dr. Spence for the duration and frequency of his treatment of Plaintiff, but the ALJ discussed Dr. Spence's treatment records from 2012 and 2014. (R. at 19; Pl's Mem. at 17.) Lastly, Plaintiff argues that the ALJ did not adequately consider Dr. Spence's specialization or the consistency between Dr. Spence's opinions and the medical record, because the ALJ did not address "many of the facts" listed in Plaintiffs medical history. (Pl's Mem. at 17-18.)

         Here, Plaintiff does not identify - nor does the record reflect - any specialization of Dr. Spence's that the ALJ should have considered. Further, the ALJ specifically discredited Dr. Spence's opinions, because they lacked balance and consistency with Dr. Spence's own treatment notes from 2012 and with the evidence of record as a whole. (R. at 19.) Accordingly the ALJ appropriately considered the regulatory factors. Substantial evidence supports the ALJ's decision to afford little weight to Dr. Spence's opinions.

         a. Dr. Spence's opinions conflict with his own treatment notes.

         As the ALJ noted, Dr. Spence's opinions lack internal consistency with his treatment notes. (R. at 19.) Dr. Spence listed depressive order or depression as one of the impairments rendering Plaintiff disabled in both his December 2015 letter and January 2016 medical source statement. (R. at 1280, 1657.) Yet, Dr. Spence's mental status examinations of Plaintiff routinely revealed normal results. Plaintiff appeared oriented and in no distress, and she displayed a normal mood and affect, normal behavior, normal judgment and thought content during her appointments with Dr. Spence from 2010-2014. (R. at 561, 572-73, 589, 616, 627, 638-39, 654, 671, 677-78, 793, 797, 916, 938-39, 961-62, 975-76, 997, 1009, 1074-75, 1544.) Even during appointments where Plaintiff reported symptoms of depression, nervousness or anxiety, Dr. ...


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