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Leonard v. Berryhill

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

January 3, 2019

APRIL LEONARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak United States Magistrate Judge.

         On January 25, 2015, April Leonard ("Plaintiff) applied for Social Security Disability Benefits ("DIB") under the Social Security Act ("Act"), alleging disability from severe osteoarthritis in her right knee with leg bows, severe osteoarthritis in her left knee, disc bulge and a herniated disc in her back, costochondritis (ribs), [1] uterine fibroids, carpel tunnel in both wrists, tennis elbow, sciatica nerve pain and fibromyalgia with forgetfulness and brain fog, with an alleged onset date of December 17, 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) assigning limited weight to lay witness testimony and (2) evaluating only objective medical evidence while ignoring Plaintiffs subjective complaints in reaching his decision. (Mem. in Support of PL's Mot. For Summ. J. ("PL's Mem.") (ECF No. 9) at 6-8.) 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.[2] For the reasons that follow, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 8) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 10) be GRANTED and that the final decision of the Commissioner be AFFIRMED.

         I. PROCEDURAL HISTORY

         On January 25, 2015, Plaintiff filed an application for DIB with an alleged onset date of December 17, 2012. (R. at 177-78.) The SSA denied these claims initially on April 24, 2015, and again upon reconsideration on June 12, 2015. (R. at 95-99, 103-09.) At Plaintiffs written request, the ALJ held a hearing on January 5, 2017. (R. at 32.) On March 8, 2017, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because Plaintiff had the residual functional capacity ("RFC") to perform sedentary work and could have performed her past relevant work as a mortgage clerk. (R. at 20, 25.) On September 8, 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.)

         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 V 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)®, 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)(H), 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 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 January 5, 2017, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 32.) On March 8, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 12.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 17-27.) At step one, the ALJ found that the claimant had not engaged in substantial gainful activity during the period from her alleged onset date of December 17, 2012, through her date last insured of December 31, 2014. (R. at 17.) At step two, the ALJ found that the claimant had the following severe impairments through the date last insured: bilateral knee osteoarthritis; epicondylitis;[3] degenerative disk disease of the lumbar spine; carpal tunnel syndrome; obesity; fibromyalgia; and rheumatoid arthritis. (R. at 17.) At step three, the ALJ determined that the claimant 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 and 404.1526). (R.at 18.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform sedentary work as defined in 20 CFR § 404.1567(a) with additional limitations. (R .at 20.) Specifically, the ALJ found that Plaintiff could frequently lift and carry less than ten pounds. (R. at 20.) Plaintiff could sit for a total of six hours and stand or walk for two hours in an eight-hour work day, requiring a cane or walker to ambulate. (R. at 20.) Plaintiff could also frequently finger with her right dominant hand and could constantly push or pull with both of her hands. (R. at 20.) Plaintiff could occasionally operate foot controls with both of her feet, climb stairs or ramps, and balance, stoop, kneel, crouch or crawl; however, Plaintiff could never climb ladders, ropes or scaffolds. (R. at 20.) Plaintiff could never tolerate exposure to unprotected heights and could occasionally handle exposure to extreme cold. (R. at 20.) Plaintiff further required a sit/stand option that would allow her to stand for two to three minutes each hour during the workday. (R. at 20.)

         At step four, the ALJ found that Plaintiff could perform past relevant work as a mortgage clerk. (R. at 25.) Although Plaintiff could perform past relevant work, the ALJ also determined that Plaintiff could perform other jobs existing in significant numbers in the national economy, including the jobs of data clerk, credit card clerk and card processing clerk. (R. at 25-26.) Accordingly, the ALJ found that Plaintiff did not qualify as disabled under the Act.

         IV. ANALYSIS

         Plaintiff, age forty-six at the time of this Report and Recommendation, previously worked as a mortgage clerk. (R. at 214.) She applied for DIB, alleging disability from severe osteoarthritis in her right knee with leg bows, severe osteoarthritis in her left knee, disc bulge in her back, herniated disc in her back, costochondritis (ribs), uterine fibroids, carpel tunnel in both wrists, tennis elbow, sciatica nerve pain and fibromyalgia resulting in forgetfulness and brain fog, with an alleged onset date of December 17, 2012. (R. at 191, 195.) Plaintiffs appeal to this Court alleges that the ALJ erred by (1) assigning limited weight to lay-witness testimony and (2) ignoring Plaintiffs subjective complaints in reaching his decision. (PL's Mem. at 6-9.) For the reasons set forth below, the ALJ did not err.

         A. The ALJ Did Not Err in Assigning Limited Weight to Lay-Witness Testimony.

         Plaintiff argues that the ALJ erred in assigning limited weight to the written testimony of Plaintiffs friend, Ms. Adele LaNew. (PL's Mem. at 8-9.) Defendant responds that the ALJ appropriately evaluated Ms. LaNew's testimony in accordance with 20 C.F.R. § 404.1513, which permits the ALJ to use evidence from non-medical sources at his discretion. (Def.'s Mot. Summ. J. & Br. in Supp. Thereof ("Def.'s Mem.") (ECF No. 10.) at 15-18.) Defendant further asserts that substantial evidence supports the ALJ's decision, because Ms. LaNew's testimony lacked consistency with the record evidence. (Def.'s Mem. at 16.)

         This Court must give great deference to the ALJ's credibility determinations. Eldeco, Inc. v. N.L.R.B., 132 F.3d 1007, 1011 (4th Cir. 1997). The Fourth Circuit has determined that "[w]hen factual findings rest upon credibility determinations, they should be accepted by the reviewing court absent 'exceptional circumstances.'" Id. (quoting N.L.R.B. v. Air Prods. & Chems., Inc., Ill. F.2d 141, 145 (4th Cir. 1983)). Therefore, this Court must accept the ALJ's factual findings and credibility determinations unless '"a credibility determination is unreasonable, contradicts other findings of fact, or is based on an inadequate reason or no reason at all.'" Eldeco, Inc., 132 F.3d at 1011 (quoting N.L.R.B. v. McCullough Envtl. Servs., Inc., 5 F.3d 923, 928 (5th Cir. 1993)).

         The ALJ "may receive evidence from nonmedical sources." 20 C.F.R. § 404.1513. Other nonmedical sources, such as a claimant's family members or friends, "may provide information from which inferences and conclusions may be drawn about the credibility of the individual's statements." SSR 96-7p.[4] In evaluating this type of evidence, the ALJ should consider factors such as "the nature and extent of the relationship between the source and the individual," as well as "whether the opinion is consistent with other evidence, and any other factors that tend to support or refute the opinion." SSR 06-03p.[5]

         Additionally, the ALJ may consider the time frame of the evidence. The relevant time period spans from the alleged onset - December 17, 2012 - through the date last insured - December 31, 2014. Plaintiff must prove her disability within that time frame. 20 C.F.R. §§ 404.101(a), 404.130; Johnson, 434 F.3d at 655-56. While the ALJ may consider evidence created after the date last insured, the evidence must provide a link to Plaintiffs condition before the date last insured. Bird, 699 F.3d at 340-41. Evidence "not linked in any manner to the claimant's condition before her [date last insured]" has no relevance to the ALJ's determination, and the ALJ does not need to retroactively consider it. Johnson, 434 F.3d at 655-56.

         In her December 9, 2016 letter, Ms. LaNew stated that Plaintiff had difficulty "doing everyday tasks." (R. at 260.) According to Ms. LaNew, Plaintiff struggled with getting out of bed in the morning, getting dressed, combing her hair and putting on makeup. (R. at 260.) Ms. LaNew also stated that Plaintiff had difficulty "bending or lifting weight" and often needed assistance from family members to reach or lift heavy items while grocery shopping. (R. at 260.) Ms. LaNew noted that Plaintiff had difficulty walking and that Plaintiff "walk[ed] with a limp favoring the hips and knees that are swollen and painful." (R. at 260.) Ms. LaNew described Plaintiffs hands as swollen and aching, and she reported that Plaintiff had difficulty using her hands to write and eat. (R. at 260.) Ms. LaNew wrote that "[e]ven with pain medication, [Plaintiffs] activities [had] become increasingly limited over the time [that Ms. LaNew had] known her." (R. at 261.) Ms. LaNew also reported that Plaintiff "[took] advantage of things to help her manage [her limitations]." (R. at 261.) For example, Plaintiff leaned on a cart while shopping in the store and used a grab-it device to reach things. (R. at 261.)

         In his opinion, the ALJ noted that Ms. LaNew "witnessed firsthand the claimant's difficulties with prolonged sitting, standing, walking and manipulation secondary to chronic pain." (R. at 24.) The ALJ also noted that, in Ms. LaNew's opinion, Plaintiffs impairments "significantly impacted her ability to maintain basic activities of daily living resulting in frustration and rendering her disabled." (R. at 24.) However, after considering the various factors listed in SSR 06-03p, the ALJ concluded that Ms. LaNew's testimony deserved only limited weight for two reasons. (R. at 24.) First, unlike "medical opinions that are rendered by a medical source," the ALJ explained that Ms. Lanew's lay testimony lacked "exacting observations as to dates, frequencies, types, and degrees of medical signs and symptoms, or of the frequency or intensity of unusual moods or mannerisms." (R. at 24.) Indeed, Ms. LaNew reported that she watched Plaintiffs pain "worsen over four years" and that she had could recognize Plaintiffs pain based on her facial expressions and use of curse words, but Ms. LaNew did not provide any detailed medical analysis. (R. at 260-62.) Second, the ALJ discounted Plaintiffs opinion, because Ms. LaNew's close relationship with Plaintiff detracted from her objectivity. (R. at 24.) In her letter, Ms. LaNew described Plaintiff as a friend of five years with a "remarkable" spirit. (R. at 260-61.) Plaintiff and Ms. LaNew attended the same church and took a three-month class together. (R. at 260.) The ALJ explained that opinions from third parties with "a close personal relationship with the claimant cannot be considered the observations of a disinterested third party whose opinion would not tend to be colored by affection for the claimant and a natural tendency to agree with the symptoms and limitations the claimant alleges by virtue of their relationship." (R. at 24.) Accordingly, the ALJ only credited Ms. LaNew's testimony to the extent that it comported with the objective medical evidence. (R. at 24.)

         Ultimately, the ALJ adequately considered the various relevant factors listed in SSR 06-03p and explained his reasoning for assigning limited weight to Ms. LaNew's testimony. Thus, Plaintiffs argument that the ALJ assigned "no real weight... to anything other than objective medical findings" lacks merit. (PL's Br. at 9.) Moreover, substantial evidence, including objective medical evidence, Plaintiffs own testimony and the opinions of the state agency physicians, support the ALJ's decision.

         1. Ms. LaNew's Testimony Lacks Consistency with the Objective Medical Evidence in the Record.

         In December 2011, Plaintiff presented to Eric Krushinski, M.D., at Orthopedic Specialty Clinic, in Fredericksburg, Virginia, complaining of right knee pain. (R. at 285.) Plaintiff told Dr. Krushinski that her knee pain returned following an Orthovisc injection. (R. at 285.) Although Plaintiff walked with a slight antalgic gait during the appointment, she denied pain in her hip, and Dr. Krushinski opined that Plaintiffs "symptoms [appeared] intermittent and aggravating but not disabling at this point." (R. at 285.) On January 27, 2012, Plaintiff returned and complained of left knee pain, but Dr. Krushinski noted that Plaintiff had normal alignment, as well as normal strength and sensation. (R. at 286.) Ultimately, Dr. Krushinski elected to inject Plaintiffs knee with cortisone. (R. at 286.)

         On May 10, 2012, Plaintiff returned to Orthopedic Specialty Clinic, stating that she experienced back pain after her daughter struck her on the back with a shovel while doing yard work. (R. at 288.) After receiving medication for the pain, Plaintiff returned to Orthopedic Specialty Clinic on June 19, 2012, and Joseph Gowaty, a physician's assistant, stated that Plaintiffs neck and lower back exams appeared normal. (R. at 289.)

         On August 7, 2012, Dr. Krushinski again examined Plaintiff. (R. at 290.) During that appointment, Plaintiff stated that her knees generally felt better and that "[s]he felt significant improvement since being prescribed Flexeril for her thoracic back." (R. at 290.) Plaintiff also walked with a normal gait and illustrated normal strength and sensation "throughout the lower extremity." (R. at 290.) On October 22, 2012, during an appointment with Urology Associates of Fredericksburg, Plaintiff again demonstrated normal gait and station, as well as normal inspection of digits and nails, normal stability, muscle strength and tone, and full range of motion in her head, neck, spine, ribs, pelvis and extremities. (R. at 279.)

         Mr. Gowaty re-examined Plaintiff at Orthopedic Specialty Clinic on November 1, 2012, and noted that a computed tomography ("CT") scan of Plaintiff s lumbar spine revealed "only mild degenerative changes." (R. at 291.) Plaintiff demonstrated normal gait, balance and coordination, and also chose to "hold off on treatment options such as therapy and injections. (R. at 291.) Plaintiff revisited Ms. Gowaty on November 29, 2012, and again exhibited normal gait, balance and coordination, remarking that Flexeril helped her ...


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