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Ross v. Berryhill

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

January 3, 2019

YVONNETTE DENISE ROSS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK, UNITED STATES MAGISTRATE JUDGE

         On October 29, 2013, Yvonnette Denise Ross ("Plaintiff) protectively applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from diabetes, neuropathy, high blood pressure and high cholesterol, with an alleged onset date of March 31, 2013. 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 ("Defendant").

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred by: (1) incorrectly affording limited weight to the opinions of Plaintiffs treating physicians; and, (2) posing hypotheticals to the vocational expert ("VE") that did not properly embody Plaintiffs residual functional capacity ("RFC"). (Pl.'s Mem. Supp. Mot. Summ. J. & Mot. to Rem. ("Pl.'s Mem.") (ECF No. 15) at 8-13.) 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 October 29, 2013, Plaintiff filed applications for SSI and DIB, alleging disability from diabetes, neuropathy, high blood pressure and high cholesterol, with an alleged onset date of March 13, 2013. (R. at 17, 52-53, 170-72, 991-1000.) The SSA denied Plaintiffs application for SSI on November 15, 2013, because Plaintiff earned too much from unemployment benefits to be eligible. (R. at 73.) The SSA further denied Plaintiffs applications for both SSI and DIB on September 5, 2014, finding that Plaintiff did not qualify as disabled. (R. at 83-87, 102.) After Plaintiff requested reconsideration, the SSA again denied her application for DIB on May 19, 2015. (R. at 53-69, 96-98.) The SSA reconsidered and denied Plaintiffs application for SSI on October 6, 2015, after her income decreased. (R. at 93.) At Plaintiffs written request, the ALJ held a hearing on December 8, 2016. (R. at 103, 1010-51.) On March 21, 2017, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because she could perform jobs existing in significant numbers in the national economy. (R. at 17-29.) On December 4, 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 7-13.)

         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)(h). 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 December 8, 2016, the ALJ held a hearing during which Plaintiff (represented by counsel) and a VE testified. (R. at 1010-51.) On March 21, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 17-31.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 19-29.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 31, 2013, Plaintiffs alleged onset date. (R. at 19.) At step two, the ALJ determined that Plaintiff had the following severe impairments: essential hypertension, diabetes mellitus, peripheral neuropathy, [2] diabetic retinopathy, [3] keratoconus, [4] bilateral metatarsalgia, [5] bilateral plantar fasciitis[6] and bilateral heel spurs.[7] (R. at 19.) At step three, the ALJ concluded 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. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (R. at 21.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) with additional limitations. (R. at 22.) Plaintiff could occasionally balance, stoop, kneel, crouch or climb ramps or stairs, but could never crawl or climb ladders, ropes or scaffolds. (R. at 22.) The ALJ further found that Plaintiff had to avoid all exposure to hazards. (R. at 22.) Plaintiff could frequently handle and finger bilaterally and required a cane to ambulate as needed. (R. at 22.) Finally, the ALJ found that Plaintiff could lift and carry up to ten pounds and walk for two hours and sit for six hours in an eight-hour workday. (R. at 27.)

         At step four, the ALJ determined that Plaintiff could not perform any of her past relevant work. (R. at 27.) However, at step five, the ALJ found that Plaintiffs age, education, work experience and RFC allowed her to perform jobs existing in significant numbers in the national economy, including work as an addresser, nut sorter and cuff folder. (R. at 28.) Therefore, the ALJ concluded that Plaintiff did not qualify as disabled under the Act. (R. at 28-29.)

         IV. ANALYSIS

         Plaintiff, forty-six years old at the time of this Report and Recommendation, previously worked as a retail associate and supervisor. (R. at 197-99.) She applied for DIB and SSI, alleging disability from diabetes, neuropathy, high blood pressure and high cholesterol, with an alleged onset date of March 31, 2013. (R. at 54-55, 170-72, 991-1000.) Plaintiff appeals to this Court, contending that the ALJ erred by: (1) incorrectly affording limited weight to the opinions of Plaintiff s treating physicians; and, (2) posing hypotheticals to the VE that did not properly embody Plaintiffs RFC. (Pl.'s Mem. at 8-13.) For the reasons set forth below, the ALJ did not err in her decision.

         A. The ALJ Properly Assigned Limited Weight to Drs. Awadh's and Cashdollar's Opinions.

         Plaintiff first argues that the ALJ erred in affording limited weight to the opinions of Plaintiffs treating physicians, Abla Awadh, M.D., and Michael Cashdollar, D.P.M. (Pl.'s Mem. at 8-11.) Specifically, Plaintiff contends that the ALJ failed to cite evidence from other treating providers that contradicted Drs. Awadh's and Cashdollar's opinions and that the evidence of record in fact supports the doctors' opinions. (Pl.'s Mem. at 8-11.) Ultimately, Plaintiff alleges that the ALJ "'inappropriately substituted a subjective decision for that of the overwhelming medical evidence."' (Pl.'s Mem. at 11 (quoting Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017).) Defendant responds that substantial evidence supports the ALJ's weighing of the opinion evidence, because Drs. Awadh's and Cashdollar's opinions proved inconsistent with Plaintiffs treatment record and reported daily activities. (Def.'s Mot. Summ. J. & Br. in Supp. Thereof ("Def.'s Mem.") (ECF No. 16) at 12-15.)

         During the sequential analysis, when the ALJ determines whether the claimant experiences 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 several medical opinions that are consistent with each other, the ALJ decides based on that evidence. §§ 404.1527(c), 416.927(c). If, however, the medical opinions are inconsistent with each other or with 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, an ALJ may consider only an "acceptable medical source" as a treating source that offers an opinion entitled to controlling weight. SSR 06-03p. Acceptable medical sources include licensed physicians, licensed or certified psychologists and certain other specialists, depending on the claimed disability. §§ 404.1513(a), 404.1527(a), 416.913(a), 416.927(a). A treating source's opinion must be given controlling weight if medically acceptable clinical and laboratory diagnostic techniques support it, and it comports with other substantial evidence in the record. §§ 404.1527(c)(2), 416.927(c)(2); Lewis v. Berryhill, 858 F.3d at 867; Craig, 76 F.3d at 590; SSR 96-2p.[8] Further, the regulations do not require that the ALJ accept opinions from a treating source in every situation, such as when the source opines on the issue of disability (an issue reserved for the Commissioner), or when the treating source's opinion proves inconsistent with other evidence or when other evidence in the record does not strongly support the opinion. §§ 404.1527(c)(3)-(4), (d), 416.927(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), 416.927(c). However, those same regulations specifically vest the ALJ - not the treating source - with the authority to determine whether a claimant qualifies as disabled as defined under the Act. §§ 404.1527(d)(1), 416.927(d)(1).

         Here, Plaintiff takes issue with the assignment of less than controlling weight to the opinions of two of her treating physicians, Drs. Awadh and Cashdollar. For the reasons set forth below, the ALJ did not err.

         Dr. Cashdollar completed a residual functional capacity questionnaire (the "Questionnaire") for Plaintiff on December 18, 2013. (R. at 270-72.) In the Questionnaire, Dr. Cashdollar noted pain, burning and numbness in Plaintiffs feet, which he believed often interfered with Plaintiffs ability to concentrate and to give attention to simple, work-related tasks. (R. at 270.) Dr. Cashdollar opined that Plaintiff could walk no more than one-and-a-half city blocks and could sit and stand no longer than ten to fifteen minutes at one time. (R. at 270.) Within an eight-hour workday, Dr. Cashdollar estimated that Plaintiff could sit for a total of three hours and stand or walk for a total of one hour. (R. at 270.) Dr. Cashdollar affirmed that Plaintiff would need unscheduled, fifteen-minute breaks approximately every one to two hours during a regular workday. (R. at 270.) Plaintiff could occasionally lift less than ten pounds, but never lift more. (R. at 271.) Dr. Cashdollar did not opine about Plaintiffs specific limitations in reaching, handling or fingering, as his specialty was in podiatry. (R. at 271.) In a given month, Dr. Cashdollar believed Plaintiff would miss three or four days of work as result of her impairments. (R. at 271.) Ultimately, Dr. Cashdollar concluded that Plaintiff could not work eight hours per day, five days per week on a sustained basis. (R. at 271.)

         Dr. Cashdollar assessed Plaintiffs functional limitations a second time on June 25, 2015. (R. at 654-56.) In that assessment, Dr. Cashdollar again noted that Plaintiff could lift or carry no more than ten pounds. (R. at 654.) He further reaffirmed that Plaintiff could stand or walk for no more than one hour and sit for no more than three hours in an eight-hour workday. (R. at 655.) Dr. Cashdollar opined that Plaintiff could never climb and could occasionally balance, stoop, crouch, kneel and crawl. (R. at 655.) Although Dr. Cashdollar stated that he believed that Plaintiffs impairments limited her ability to handle, feel, push and pull, he did not explain how Plaintiffs impairments affected those functions. (R. at 656.) Dr. Cashdollar also failed to explain how, as he asserted, Plaintiffs impairments limited her ability to move machinery. (R. at 656.) In a medical source statement accompanying his medical assessment of Plaintiff, Dr. Cashdollar opined that Plaintiff could walk no more than one city block, a half-block less than his 2013 assessment. (R. at 270, 658.) Dr. Cashdollar further restricted Plaintiff to sitting no longer than thirty minutes and standing no longer than fifteen minutes at one time. (R. at 658.) Contrary to his opinion in Plaintiffs medical assessment that Plaintiff could sit up to three hours in an eight-hour workday, Dr. Cashdollar's medical source statement specified that Plaintiff could sit no longer than two hours. (R. at 658.) And, although affirming that Plaintiff needed a job that allowed her to walk around, Dr. Cashdollar did not specify how often she had to walk or for how long. (R. at 658.) Dr. Cashdollar stated that Plaintiff would need breaks of up to fifteen minutes every two to three hours and elevated legs while sitting. (R. at 658.) Contradicting his medical assessment, Dr. Cashdollar recorded that Plaintiff could only rarely, not occasionally, stoop and crouch. (R. at 659.) Plaintiff could also have no exposure to environmental hazards. (R. at 659.) Ultimately, Dr. Cashdollar's concluded that Plaintiff would be off task twenty percent of the time in a typical workday and was capable of only low stress work. (R. at 660.)

         Dr. Awadh completed a medical assessment of Plaintiff s ability to do work-related activities and a medical source statement on June 23, 2015. (R. at 607-14.) During Plaintiffs assessment, Dr. Awadh opined that Plaintiff could frequently carry only ten pounds or less. (R. at 607.) Dr. Awadh also limited Plaintiff to standing or walking for only one hour and to sitting for only three hours in an eight-hour workday, citing Plaintiffs back pain and neuropathy as the causes of this limitation. (R. at 608.) If required to walk, Dr. Awadh believed that Plaintiff could walk no more than one city block. (R. at 612.) And Plaintiff could sit for no more than thirty minutes and stand for no more than fifteen minutes at one time. (R. at 612.) In her medical source statement, Dr. Awadh limited Plaintiff to both sitting and standing for less than two hours in an eight-hour workday, contradicting her medical assessment opinion that Plaintiff could sit for up to three hours. (R. at 608, 612.) Dr. Awadh also believed that Plaintiff would require at least fifteen-minute breaks every two to three hours, a cane to ambulate and elevation of her legs while sitting. (R. at 612-13.) By Dr. Awadh's estimation, Plaintiff could never climb and could only occasionally balance, stoop, crouch, kneel and crawl. (R. at 608.) However, Dr. Awadh later contradicted these limitations in her medical source statement, opining that Plaintiff could only rarely stoop and crouch. (R. at 613.) Dr. Awadh further opined that Plaintiffs impairments limited her capacity to handle, feel and push and pull, though Dr. Awadh did not explain how Plaintiffs impairments impacted those physical functions. (R. at 609.) Dr. Awadh remarked that Plaintiffs impairments limited her ability to move machinery and to handle exposure to environmental hazards, but again did not explain how Plaintiffs impairments caused those restrictions. (R. at 609, 613.) Ultimately, Dr. Awadh concluded that Plaintiff would be off task an average of twenty percent of the time during a workday and would be absent from work more than four days per month. (R. at 614.)

         The ALJ assigned Drs. Awadh and Cashdollar's opinions limited weight, finding them inconsistent with Plaintiffs "grossly conservative and outpatient treatment history, the documented clinical and examination findings of no acute musculoskeletal or neurologic complications to warrant such severe restrictions, and Ms. Ross'[s] testified ongoing daily capabilities." (R. at 27.) The ALJ did not err in assigning limited weight.

         1. The ALJ Satisfied the Legal Requirement to Explain Her Reasoning.

         Although Plaintiff alleges that the ALJ failed to cite any evidence from treating providers that contradicted Drs. Awadh's and Cashdollar's limitations, the undersigned finds that the ALJ properly explained her decision in accordance with the law. Specifically, the law requires that the ALJ's assignment of weight be sufficiently specific "to make clear to any subsequent reviewers the weight the adjudicator gave to the .. . source's medical opinion and the reasons for that weight." SSR 96-2p (discussing affording weight to treating physician); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (citing Myers v. Califano,611 F.2d 980, ...


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