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Lew M. v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

August 13, 2018

LEW M., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          ROBERT S. BALLOU UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Lew M. (“Lew”) 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 disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433. Specifically, Lew alleges that the ALJ: (1) failed to give controlling weight to the opinion of Lew's treating physician; and (2) improperly discounted Lew's credibility. Further, Lew submitted additional evidence to the Appeals Council that she argues justifies remand. I conclude that substantial evidence supports the Commissioner's decision on all grounds. Accordingly, I RECOMMEND DENYING Lew's Motion for Summary Judgment (Dkt. 15), and GRANTING the Commissioner's Motion for Summary Judgment (Dkt. 19).

         STANDARD OF REVIEW

         This Court limits its review to a determination of whether substantial evidence supports the Commissioner's conclusion that Lew failed to demonstrate that she was disabled under the Act.[2] 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).

         CLAIM HISTORY

         Lew filed for DIB on July 19, 2013, claiming that her disability began on January 15, 2012. R. 215-17. The Commissioner denied Lew's application at the initial and reconsideration levels of administrative review. R. 138, 149. On November 17, 2015, ALJ R. Neely Owen held a hearing to consider Lew's disability claim. R. 101-31. Lew was represented by an attorney at the hearing, which included testimony from Lew and vocational expert Andrew Beale. Id.

         On January 21, 2016, the ALJ entered his decision analyzing Lew's claim under the familiar five-step process, [3] and denied Lew's claim for benefits. R. 65-77. The ALJ found that Lew suffered from the severe impairments of degenerative disc disease and radiculopathy. R. 67. The ALJ found that Lew retained the residual functional capacity (“RFC”) to perform light work, except that she can: (1) frequently climb ramps and stairs; and (2) occasionally stoop, kneel, crawl, and climb ladders, ropes, and scaffolds. R. 69. The ALJ determined that Lew could return to her past relevant work as a bench assembler. R. 75. Nevertheless, the ALJ concluded that Lew could work at other jobs that exist in significant numbers in the national economy such as ticketer, cleaner, and clerical worker. R. 76. Thus, the ALJ found Lew not disabled. R. 77.

         Lew appealed the ALJ's decision to the Appeals Council and submitted additional evidence. R. 10-25, 29-59, 85-100, 214. On July 25, 2016, the Appeals Council denied Lew's request for review. R. 1-6. This appeal followed.

         ANALYSIS

         Lew challenges the ALJ's decision on two grounds, claiming that the ALJ: (1) failed to give controlling weight to the opinion of her treating physician; and (2) improperly discounted her credibility. Lew also alleges that the Appeals Council's decision declining to consider additional evidence warrants remand.

         Treating Physician

         Lew claims that the ALJ erred when he accorded less weight to her treating physician, Dr. Todd Delhi. The ALJ explained that the opinion of Lew's treating physician “is not supported by the longitudinal record with its limited physical findings and generally routine and conservative treatment, including his own treatment notes.” R. 75.

         On October 27, 2014, Dr. Dehli provided the opinion that Lew can lift and carry five pounds, stand and walk for less than two hours in an eight-hour workday, and sit for two hours in an eight-hour workday. R. 376-77. Dr. Dehli stated that Lew can never climb, balance, kneel, crouch, crawl, or stoop. R. 377. Dr. Dehli explained that Lew is limited in pushing and pulling with the upper extremities, and experiences numbness, pain, and weakness in the right upper and lower extremities. Id. Dr. Dehli stated that Lew is limited with reaching and feeling on the right, can only handle things occasionally, and is limited with hazards. R. 378-79. Dr. Dehli explained that Lew would be absent from work more than three times a month. R. 379. The ALJ gave little weight to Dr. Delhi's opinion. R. 75.

         The first documented report of lower back pain in the record occurred on May 9, 2012, when Lew saw Todd Dehli, M.D. R. 331. Lew explained that her lower back pain is exacerbated by prolonged sitting and standing. Id. Dr. Dehli prescribed pain medication. R. 332.

         On October 1, 2012, Lew complained of pain in her lower back and right lower extremities to Jocelyn Idema, D.O. R. 323. Dr. Idema recommended an epidural steroid injection at ...


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