Opinion
Case No. 2:16-cv-3834-MGL-MGB
01-26-2018
Nichelle B. Aiken, Plaintiff, v. Commissioner, Social Security Admin., Defendant.
REPORT AND RECOMMENDATION
Plaintiff Nichelle B. Aiken, through counsel, seeks judicial review of an unfavorable final administrative decision denying benefits on her applications for a period of disability and disability benefits (DIB) and supplemental security income (SSI) pursuant to Titles II and XVI of the Social Security Act ("SSA"). This matter was referred to the assigned United States Magistrate Judge for review pursuant to Local Civil Rule 73.02(B)(2)(a) and 28 U.S.C. § 636(b)(1)(B). Having carefully considered the parties' briefs, administrative record, and applicable authority, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be affirmed , for the following reasons:
I. Standard of Review
The Court's review of the Commissioner's final decision is limited to: (1) whether substantial evidence supports such decision; and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971). "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Substantial evidence is defined as "more than a mere scintilla but less than a preponderance." Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996).
The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Id. If the decision is supported by substantial evidence, the reviewing court must affirm, even if it would have decided the case differently. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) ("Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].").
II. Relevant Statutory Law
The SSA provides that disability benefits are available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are disabled within the meaning of the statute. 42 U.S.C. § 423(a). The claimant must produce evidence and prove that he is disabled under the SSA, § 205(g), 42 U.S.C. § 405(g). See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981) (claimant "bears the burden of proving a disability"). Under the SSA, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Social Security regulations set forth a five-step sequential process that considers a plaintiff's age, education, and work experience in addition to the plaintiff's medical condition. 20 C.F.R. §§ 404.1520(a). To be entitled to benefits, Plaintiff "(1) must not be engaged in substantial gainful activity, i.e., currently working; and (2) must have a severe impairment that (3) meets or exceeds the listings of specified impairments, or is otherwise incapacitating to the extent that the plaintiff does not possess the residual functional capacity to (4) perform [the plaintiff's] past work or (5) any other work." Albright v. Comm'r, 174 F.3d 473, 475 n.2 (4th Cir. 1999); Lewis v. Comm'r, 858 F.3d 858, 860-61 (4th Cir. 2017). Plaintiff bears the burden of production and persuasion through the fourth step. If Plaintiff reaches step five, the burden shifts to the government to provide evidence that other work exists in significant numbers in the national economy that the plaintiff can do. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam).
III. Background
The facts have already been extensively set forth in the ALJ's decision (AR 10-18) and in the parties' briefs (DE# 13-15), and need only be summarized here. Plaintiff was born May 20, 1967 and was 44 years of age on her amended alleged disability onset date of October 1, 2011 (AR 186, 202, 223). See 20 C.F.R. § 404.1563 (defining "younger" as age 18-49). Plaintiff has a college bachelor's degree in business. (AR 15, 28). She is married, and has three children (two minor children live with her). (AR 34-35, 187). Plaintiff reports that she separated from her husband in May 2010. (AR 362). Plaintiff communicates in English, can read and write, has a driver's license, and can drive her car. (AR 226). Plaintiff has past relevant work experience (2000-2011) as a hotel reservation agent (SVP 5, classified as skilled, sedentary). (AR 29, 45, 209-221).
Between 2009 and 2011, Plaintiff became increasingly overwhelmed by the demands of finishing her college degree, working at her hotel job, dealing with her marital separation, and caring for her children (AR 356, noting "family stressors" in 2010; AR 362, same; AR 681-99, same). Plaintiff, who had no prior history of psychiatric problems, sought treatment for depression and was started on a low dose of Prozac, which admittedly helped. (AR 34). Plaintiff completed her business degree with a 3.2 GPA and returned to work after several weeks of family leave (AR 633, 668-70, 950). She testified that the medication helped stabilize her mood (AR 34). In late 2011, Plaintiff took two months of short-term disability from her employer for a skin rash and some joint soreness (AR 29, 629-30, 633, 644, 648-49). Although her symptoms had quickly improved with medication, Plaintiff resigned from her job on December 28, 2011 and filed for DIB benefits (AR 30, 51, 186, 224, 227). Her claim was denied in 2013, and Plaintiff did not appeal such decision. Plaintiff subsequently filed a second claim for both DIB and SSI in May 2014 (AR 186, 202).
For her 2014 applications, Plaintiff submitted "Adult Function Reports." (AR 236-240, 302-06, 309-16). She reported that her daily activities include showering, getting her children ready for school, walking them ten minutes to the bus stop, attending school functions (such as PTA meetings), cooking three meals daily (for 30-60 minutes), walking 15 minutes for exercise, talking on the phone for up to an hour, using the internet, reading, watching television, doing household chores (including making beds, ironing, laundry, and washing dishes), attending church twice a week, taking a Bible study class, shopping, feeding the dog, helping her children with their homework, and getting them ready for bed (AR 35-36, 39, 91, 236-240, 302-06, 309-16). She indicates she is able to pay bills, count change, and use a checkbook. (AR 314). She is able to feed herself and take care of her own hygiene. (AR 91, 302). In January of 2015, Plaintiff and her two minor children moved in with her sister. (AR 43-44). She testified that her sister now takes care of most of the cleaning and cooking. (AR 34).
Plaintiff's 2014 applications for DIB and SSI benefits were denied initially and on reconsideration. (AR 1-3, 194, 227). Upon request, Administrative Law Judge Nicole S. Forbes- Schmitt ("ALJ") held a hearing on July 23, 2015, at which Plaintiff (represented by counsel), Plaintiff's sister, and vocational expert Tonetta Watson-Coleman ("VE") testified. (AR 24-49). In response to the hypothetical question posed by the ALJ, the VE testified that Plaintiff could perform her past work as a hotel reservation agent. (AR 45-46). On September 17, 2015, the ALJ issued a decision, finding that Plaintiff was not disabled from the alleged onset date through the date of decision. The Appeals Council denied Plaintiff's request for review. The ALJ's decision is the Commissioner's final decision.
IV. Summary of ALJ's Decision
The ALJ discussed the Plaintiff's medical treatment history (AR 14-17). The ALJ considered the medical records and/or opinions, of various medical providers and consulting examiners, including Dr. Calvin J. Bosman, M.D.; Dr. Clive Brock, M.D.; Dr. Richard Marchell, M.D.; Dr. Vanessa Diaz, M.D., Dr. Cashton Spivey Ph.D., and the state agency reviewers Dr. Lisa Clausen, PhD., Lee Coleman, PhD., and Dr. George Walker, M.D. (AR 22, listing Exs. HO1F through HO14F).
Although the record is voluminous (over 1,100 pages), many of these records pre-date the alleged disability onset date of October 1, 2011 by several years. Numerous other records, including records between the alleged onset date and the date of decision, concern transient matters or routine preventative exams, such as mammograms, flu shots and vaccinations, testing for sexually transmitted diseases, yeast infections, constipation, or other routine non-disabling complaints. (See, e.g., AR 324, 644- 707).
In September 2011, Plaintiff went to dermatologist Dr. Marchell regarding a scalp rash ("possible ringworm"). (AR 647). She denied any significant medical history at that time. (Id.). Dr. Marchell noted some "eczematous changes" but "no arthritis." He ordered a skin biopsy and referred her to MUSC. The ALJ observed that subsequent diagnostic testing, including x-rays, revealed no evidence of arthritis, but Plaintiff's ANA test was "highly positive." (AR 15, citing Ex. 3F; AR 529, 633, 635, 647-48, 875-76). Plaintiff's biopsy was reportedly consistent with lupus (AR 541, 630, 635, 648). Dr. Marchell started Plaintiff on a new medication, and after two weeks, she reported feeling "a lot better" (AR 644).
Plaintiff informed her doctor that she had had irritable bowel syndrome (IBS) for over 20 years. (AR 532). The record reflects that Plaintiff was able to work full-time during this time period. Diagnostic testing for complaints of IBS yielded no evidence of acute process (AR 800). Dr. Diaz noted in 2014 that Plaintiff had no gastrointestinal complaints (AR 535-36).
An ANA test detects antinuclear antibodies (ANA) in a blood sample. "The presence of antinuclear antibodies is a positive test result. But having a positive result doesn't mean you have a disease. Many people with no disease have positive ANA tests." See https://www mayoclinic.org/tests-procedures/ana-test/about. "For patients with a positive ANA, more tests are usually performed to check for other antibodies that can help confirm the diagnosis. This series of tests, commonly called an ANA panel, checks for the following antibodies: anti-double-stranded DNA, anti-Smith, anti-U1RNP, anti-Ro/SSA, and anti-La/SSB." See https://www.lupusresearch.org/understanding-lupus/diagnosis-and-treatment/ana-testing.
Systemic lupus erythematosus (the most common form of lupus) is an autoimmune disease that can be mild or severe. Symptoms may include butterfly rash across the face, photosensitivity, anemia, chest pain, swollen joints, hair loss, and fatigue. See https://medlineplus.gov/lupus. According to the American College of Rheumatology, "most people with lupus can live normal lives." See https://www.rheumatology.org.
The ALJ then considered the Plaintiff's limited medical history from 2012-2013. Plaintiff was treated for pleurisy in March 2012. (AR 15). She had no swollen or tender joints at that time. (Id.). Plaintiff was not seen again until one year later in March 2013, at which time she complained of problems, such as joint pain, blurry vision, and depression. (AR 16). Although she complained of rash, doctors noted her hair was growing back. In February 2014, Plaintiff reported that she was briefly hospitalized for treatment for an edematous ("swollen") left foot. (AR 16). Plaintiff also developed a "pseudo aneurysm" in her right arm, caused by an attempt "to start an IV in patient's right arm without success." (AR 553). This was surgically repaired on April 3, 2014. (AR 555). Plaintiff subsequently reported that her arm had improved significantly and that she was exercising it. (Id.). Medical notes from MUSC on May 7, 2014 indicate a "primary diagnosis" of Vitamin D deficiency and lupus. (AR 529-30). The medication "hydroxychloroquine" was prescribed. (Id., indicating that is "typically very well tolerated and serious side effects are rare"). In June of 2014, Plaintiff was evaluated for complaints about her left foot. (AR 16). Physical examination, including x-rays, revealed some diffuse swelling and "mild tenderness" of her left foot, but that she had "full active range of motion" and no evidence of any arthritis, fracture, dislocation, or other osseous abnormality. (Id.). "Pes planovalgus" (i.e. flat foot) was noted. Medical notes indicate that Plaintiff was taking no pain medication for her alleged foot pain. (AR 451, 567).
A temporary post-surgery recuperation period does not meet the "duration" requirement. See 42 U.S.C. § 423(d)(1)(A) ("disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months").
On 6/8/2015, Dr. Frost noted that Plaintiff had no side-effects from medication. (AR 1005).
"Pes planovalgus" is commonly referred to as "flat foot" (i.e. the sole of the foot comes into complete or near-complete contact with the ground). "Treatment in adults generally consists of wearing spacious, comfortable shoes with good arch support." See https://www.webmd.com/a-to-z-guides/tc/flatfoot-pes-planus-topic-overview. The Commissioner points out that "due to complaints of left foot pain, presumably from gout, Dr. Hatfield referred [Plaintiff] to an orthopedist." (DE# 14 at 8). Dr. Langdon A. Hartstock, M.D. examined Plaintiff, reviewed her x-rays, and informed her that her foot "needed nothing other than some of the counter orthotics" (Id., citing AR 533, 937).
The ALJ observed that in August 2014, Plaintiff went to a new primary care physician, Dr. Vanessa Diaz. Upon examination, Dr. Diaz observed that Plaintiff's lupus was "asymptomatic" with no concerns with adherence to medication and that Plaintiff's gout was controlled with medication. (AR 16). In September 2014, Dr. Diaz saw Plaintiff again and noted that Plaintiff's vertigo was improved, that her depression was stable with medication, and that Plaintiff appeared well and in no distress. (Id.). She indicated Plaintiff was oriented 3x, with intact recent and remote memory, judgment, and insight. (Id.).
After reviewing all the medical evidence, the ALJ determined that Plaintiff's "systemic lupus erythematosus, gout, and pseudo aneurysm of the right upper extremity" were severe impairments for purposes of the SSA. The ALJ found some other alleged impairments to be non-severe, including dermatitis, breast cyst, cervical dysplasia, vitamin D deficiency, alopecia, and vertigo. The ALJ explained that medical records showed these alleged impairments had been treated and resolved, or were effectively controlled with medication. (AR 12-13). The ALJ also found that Plaintiff did not have a severe mental impairment, specifically pointing out that Plaintiff herself had denied any functional limitation. (AR 13). The ALJ found that Plaintiff's impairments, either singly or in combination, were not of listing-level severity. (AR 12-14, Findings 3, 4). See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. §§ 404.1520(d), 1525, 1526.
The breast cyst was "simple" and benign. (AR 588). Plaintiff began taking vitamin supplements and trazodone for the Vitamin D deficiency. (AR 1113). She used lotion (eucerin) on her rash and alopecia (hair loss), which resolved, as doctors noted her hair was growing back.
The ALJ determined that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were "not entirely credible." (AR 16). The ALJ considered the record as a whole, including the medical evidence, opinion evidence regarding Plaintiff's functional abilities, and Plaintiff's reported ability to engage in a wide variety of activities of daily living. The ALJ determined that Plaintiff retained the RFC to perform:
sedentary work, except that she may only occasionally use the left leg for foot controls and frequently use her the right upper extremity for pushing and pulling. She must avoid concentrated exposure to temperature extremes, humidity, vibration, fumes, odors, dust, chemicals, poor ventilation, and hazards.(AR 14, Finding 5). After considering the record as a whole, the ALJ determined at Step 4 that Plaintiff was able to perform her past sedentary work as a hotel reservation agent (AR 17, Finding 6; AR 45-46). The ALJ issued a decision on September 17, 2015, concluding that Plaintiff was not disabled within the meaning of the SSA. (AR 17-18).
IV. Discussion
A. Whether the ALJ's RFC determination is supported by substantial evidence
Plaintiff generally asserts that "disability may arise from the combined impact of a number of impairments." (DE# 13 at 12, citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)). Plaintiff points out that "the ALJ must adequately explain ... her evaluation of the combined effects of the impairments" and make "particularized findings." (Id. at 12, citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)). Plaintiff acknowledges that the ALJ did, in fact, consider her "impairments in combination at step three of the sequential evaluation process, and found that they did not, together, rise to Listing level." (Id. at 12, citing TR 14). Plaintiff generally contends, however, that the ALJ did not "take the issue up again when considering [her] RFC." (Id.). Specifically, Plaintiff argues that the ALJ failed to address the question of any alleged "difficulties with concentration, persistence, and pace at steps four and five of the sequential process." (Id. at 13). Plaintiff suggests that such alleged "error may be harmless" in some circumstances. (Id. at 13).
The Commissioner asserts that Plaintiff's claim is conclusory, and that "without more specificity, is not a legitimate merits-based challenge and should be dismissed." (DE# 14 at 14, citing Erline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (holding that a "conclusory remark is insufficient to raise on appeal any merits-based challenge"). The Commissioner points out that the ALJ does not have to explicitly repeat the mental function categories in assessing the claimant's work-related abilities. (Id. at 16, n.7, citing Yoho v. Comm'r, 168 F.3d 484, 1998 WL 911719, *3 (4th Cir. 1998) (finding no obligation on the part of the ALJ to transfer the form findings verbatim to the hypothetical question)). The Commissioner also points out that Plaintiff does not assert that she actually meets any Listing.
With respect to RFC, the Commissioner asserts that "substantial evidence supports the ALJ's finding that [Plaintiff's] non-severe depression caused no work-related limitations." (DE#14 at 12). In other words, the ALJ found that Plaintiff did not have any significant difficulties with concentration, persistence, and pace, and therefore did not include such restrictions in the RFC and hypothetical question posed to the VE. The ALJ pointed out that Plaintiff herself had denied any such functional limitations. (AR 13). The Fourth Circuit Court of Appeals has held that if a limitation in concentration, persistence, or pace "does not affect [the] ability to work, ... it [is] appropriate to exclude it from the hypothetical tendered to the vocational expert." Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). The ALJ adequately explained this. The ALJ considered the functional limitations resulting from all of Plaintiff's impairments, including various non-severe impairments, and determined that Plaintiff retained the RFC to perform:
sedentary work, except that she may only occasionally use the left leg for foot controls and frequently use her the right upper extremity for pushing and pulling. She must avoid concentrated exposure to temperature extremes, humidity, vibration, fumes, odors, dust, chemicals, poor ventilation, and hazards.(AR 14, Finding 5).
Although Plaintiff suggests that the ALJ should have included mental restrictions in the RFC, the ALJ accurately pointed out that Plaintiff returned to work shortly after obtaining treatment (i.e. Prozac) for situational depression due to "family stressors" and that the medication admittedly helped significantly. (AR 13, citing Exs. 1F, 8F). As the ALJ noted, Plaintiff subsequently denied any limitations in concentration or attention. For example, in her "Function Report" completed in November 2014, Plaintiff indicates she has no limitation in concentration and that she can pay attention for "a couple of hours." (AR 316). The ALJ accurately pointed out that in the comprehensive evaluation by consulting examiner Dr. Cashton Spivey, Ph.D, Plaintiff denied having any problems with attention or concentration. (AR 13, citing Ex. 8F). As the ALJ observed, Dr. Spivey indicated that Plaintiff had scored 30 out of 30 on the Mini-Mental Status Examination. (Id.). Dr. Spivey opined that Plaintiff was capable of understanding simple and complex instructions, performing simple and complex tasks in the workplace, and that she would not have any problems with persistence. (Id.). Other medical records also indicated that Plaintiff had reported no problem "with concentration or energy" (AR 355, treating physician Dr. Bosman, notes on 11/22/2010). Treating notes in 2014 indicated "patient w/o depression ... No tender or swollen joints." (AR 532, 5/5/2014). Doctors also consistently observed that Plaintiff was "well appearing," alert, oriented 3x, with normal mood and affect. (AR 406, 429-31, 3/20/2014; 536, MUSC notes 4/28/2014; AR 543, 4/15/2014; 560-65; AR 683, "no history of psychiatric problems, oriented x3; intact recent and remote memory, judgment and insight; normal mood and affect)". The ALJ appropriately found that the Plaintiff did not have any functional limitations due to alleged mental impairment, and therefore the ALJ properly did not include any such restrictions in the RFC. See Mascio, 780 F.3d at 638.
The Commissioner asserts that Plaintiff has not "attempted to show how she met her burden of showing a combination of impairments, namely mental limitations, that could have reasonably rendered her under a disability." (DE#14 at 13, citing 20 C.F.R. §§ 404.1505(a), 416.905(a) (claimant bears the burden of medically proving and persuading, by a preponderance of the evidence, that she is disabled); Hunter, 993 F.2d at 35. The Commissioner further asserts that Plaintiff has not shown that the outcome of her case would have been different. (DE# 14 at 13-14, citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (even if an ALJ's decision contains a legal error, the plaintiff has the burden of proving that absent the alleged error, the outcome of the ALJ's decision would have changed)); and see, e.g., Cheney v. Colvin, No. 2:12-3366-TMC, 2014 WL 1268575, *6 (D.S.C. March 26, 2014) (observing that claimant did not suggest how the outcome could have been different, and thus, failed "to demonstrate anything more than the harmlessness of the error").
The ALJ's reasoning regarding all of Plaintiff's impairments (severe and non-severe) and any resulting functional abilities is apparent from the decision as a whole and is supported by substantial evidence. Remand is not warranted where, as here, the Commissioner's decision is detailed enough to allow for proper review and is supported by substantial evidence in the record. See Bishop v. Comm'r, 583 F. App'x 65, 67 (4th Cir. 2014); Gilbert v. Colvin, No. 2:14-981-MGL-MGB, 2015 WL 5009225, *6 (D.S.C. Aug. 19, 2015), Johnston v. Colvin, No. 9:13-2098-BHH, 2015 WL 893064, *3 (D.S.C. March 3, 2015).
B. Whether the ALJ's evaluation of subjective complaints is supported by substantial evidence
Next, Plaintiff complains that the ALJ found that her subjective complaints were "not fully credible." Plaintiff contends that the ALJ's evaluation is not based on substantial evidence.
SSR 16-3p superseded SSR 96-7p on March 16, 2016. See 2016 WL 1119029 (2016). SSR 16-3p eliminates use of the term "credibility" and clarifies that subjective symptom evaluation is not an examination of a claimant's character. The ALJ decided the present case on September 17, 2015, prior to the effective date of SSR 16-3p. Thus, SSR 96-7p still applies here. In any event, courts have noted that SSR 16-3p requires consideration of the same factors as SSR 96-7p. See e.g., Keefer v. Colvin, Case No. 1:15-4738-SVH, 2016 WL 5539516, *11 (D.S.C. Sept. 30, 2016); Savage v. Berryhill, Case No. 5:16-1138-KDW, 2017 WL 3124177, *10 n.2 (D.S.C. July 24, 2017). Plaintiff correctly notes this. (DE# 13 at 14).
In evaluating a claimant's subjective complaints, an ALJ follows a two-step process. Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). The ALJ first determines whether there is an underlying mental or physical impairment which could reasonably be expected to produce a claimant's pain or other symptoms, and if so, the ALJ then evaluates the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which those symptoms limit the claimant's ability to do basic work activities. Craig, 76 F.3d at 594-95; SSR 96-7p. Here, the ALJ expressly indicated she was following the required two-step analysis. (AR 18).
In following the two-step process, the ALJ considered relevant evidence, including the Plaintiff's activities of daily living, the location, duration, frequency and intensity of her alleged symptoms, and the medical treatment obtained, including any medications prescribed. (AR 14-17). See SSR 96-7p. The ALJ determined that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were "not entirely credible." (AR 15-16). The ALJ appropriately concluded the medical evidence did not support the severity of pain and other symptoms alleged by Plaintiff. See Hutchinson v. Astrue, 2012 WL 1267887, *8 (M.D.N.C.) ("the issue ... is not whether Plaintiff's pain exists; it undoubtedly does and the ALJ so acknowledged...[the issue is whether the ALJ considered the record as a whole and properly determined] that the extent and limiting effects of that pain were not as great as [she] claimed").
On January 20, 2015, Lee Coleman, Ph.D., a state agency psychological expert, reviewed Plaintiff's updated records and opined that Plaintiff's statements about the current intensity, persistence, and limiting effects of her mental symptoms were not fully supported by evidence in the file and were not wholly credible (AR81-93, 100-12). Another state agency psychological expert, Dr. Lisa Clausen, Ph.D, reviewed the record and reached the same conclusion (AR 50-57).
Although Plaintiff argues that the ALJ "rejected" her complaints of fatigue and pain (DE# 13 at 13-17), review of the ALJ's decision reflects that the ALJ appropriately reduced the Plaintiff's physical exertional level to the lowest level -- "sedentary" -- in order to account for her subjective complaints. The ALJ also included specific restrictions to accommodate the Plaintiff's alleged pain in her right arm and left foot (AR 14, Finding 5). In other words, contrary to Plaintiff's argument, the ALJ did not "reject" Plaintiff's subjective complaints, but rather, accommodated them appropriately in the RFC. See Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986) (holding that an ALJ's reduction in the claimant's exertional level constitutes an implicit acceptance of the claimant's credible complaints). Plaintiff is merely complaining that the ALJ did not find her subjective complaints to be totally "disabling."
The ALJ adequately discussed the physical examination findings in the record, including her treating physician's finding that her lupus was "stable/asymptomatic." (AR 16). Dermatologist, Dr. Marchell and Plaintiff's new primary care physician Dr. Vanessa A. Diaz, M.D., noted that compliance with medications helped "tremendously." (AR 583, 585, 595). Dr. Diaz consistently noted that Plaintiff was "feeling well," and Dr. Diaz encouraged Plaintiff to exercise more. (AR 574, 585, 596). Notes indicate Plaintiff took no pain medication for her alleged foot pain. (AR 451, 567). The ALJ also discussed the Plaintiff's ability to engage in various daily activities. (AR 16). In sum, the evidence supports the ALJ's finding that Plaintiff was at least capable of performing sedentary work within her restrictions (AR 14-17). The ALJ accounted for all of Plaintiff's functional limitations that were credibly established in the record when assessing her RFC.
The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Hays, 907 F.2d at 1456. It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Id. Here, the ALJ's determination is adequately supported by substantial evidence.
C. Whether the ALJ's weighing of Dr. Diaz' opinion was supported by substantial evidence
Finally, Plaintiff takes issue with the ALJ's evaluation of the form opinions prepared by Plaintiff's primary care physician, Dr. Vanessa Diaz. (DE# 13 at 17). Plaintiff relies largely on several check-box forms completed by Dr. Diaz in 2015 opining that Plaintiff was not capable of performing even sedentary work.
When evaluating medical opinions, an ALJ considers: "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Dunn v. Colvin, 2015 WL 3451568, *3 (4th Cir. 2015) (citing Johnson, 434 F.3d at 654); 20 C.F.R. §§ 404.1527, 416.927; SSR 96-2p. An ALJ need not always give a treating opinion controlling weight. Hunter, 993 F.2d at 35. "If a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Boyd v. Colvin, Case No. 0:13-cv-638-TLW-PJG, 2014 WL 4097924, *5 (D.S.C. Aug. 18, 2014). The more consistent the opinion is with the record as a whole, the more weight the ALJ will give to it. 20 C.F.R. § 404.1527(d)(4); 20 C.F.R. § 404.1527(c)(3) (providing for greater weight where a medical opinion is supported by relevant evidence, particularly medical signs and laboratory findings).
The ALJ assigned "little weight" to the form opinions of Dr. Diaz, who was a primary care doctor (not a specialist). The ALJ noted that Dr. Diaz had first examined Plaintiff in August 2014 (i.e. the treatment relationship had begun relatively recently). (AR 16). The ALJ explained that "these opinions are inconsistent with the doctor's treatment notes indicating that [Plaintiff's] condition was asymptomatic and/or stable, and that her recent and remote memory was intact." (AR 16-17, citing 4F, 7F, 9F, 14F). As the ALJ noted, Dr. Diaz also indicated that Plaintiff was able to perform activities as long as she was not having a "flare," which is inconsistent with her own highly restrictive assessment. (AR 17). The ALJ pointed out that the medical evidence of record (2009-2015) did not reflect a record of any significant flares. (AR 17). The ALJ indicated that Dr. Diaz' opinion regarding any alleged mental limitations was "inconsistent with the findings of the consultive psychologist, Dr. Spivey, and is not supported by the treatment notes." (AR 17). Although Plaintiff contends that "unexplained and rote observations that a treating physician's opinion is simply inconsistent with treatment notes is not a sufficient basis to reduce the opinion's weight" (DE#13 at 19), the ALJ's decision cannot fairly be characterized this way. The ALJ's decision included specific examples showing that the physician's opinion was not supported by the clinical evidence and/or was inconsistent with other substantial evidence of record.
Courts have recognized the "limited probative value" of such check-the-box forms, especially when they lack well-supported explanatory notes. See, e.g., McGlothlen v. Astrue, 2012 WL 3647411, *6 (E.D.N.C.); Shelton v. Colvin, 2015 WL 1276903, *13 fn.6 (W.D.Va.); Leonard v. Astrue, 2012 WL 4404508, *4 (W.D.Va.); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) ("check-the-box assessments without explanatory comments are not entitled to great weight"); Foushee v. Colvin, 2014 WL 6831766, *3 (M.D.N.C.) (describing a check-the-box form as "weak evidence').
The Commissioner points out that after filing her current applications for disability in May 2014, Plaintiff asked Dr. Diaz to complete a medical source statement (AR 925-30). Dr. Diaz completed a check-the-box form, opining that Plaintiff could not work a full day because she would need to lie down (AR 925-30). However, Dr. Diaz' treatment notes on that date (and on subsequent dates in follow-up visits) reflect that Plaintiff was "well appearing," had normal physical and psychological functioning, and was stable on medications for lupus, hypertension, and gout (AR 938, 958-60, 966). Plaintiff argues that in her June 2014 statement, Dr. Diaz linked Plaintiff's limitations to residual pain from recent arm surgery and lupus (DE# 13 at 18, citing AR 926). As the ALJ discussed, Plaintiff reported that her arm had improved significantly after the surgery and that she was exercising it. (AR 16, 555). Moreover, the ALJ imposed restrictions to accommodate any residual arm pain, although the treatment notes indicate that Plaintiff had recuperated well from the surgery. In any event, the standard for disability under the SSA does not require that an individual be totally pain free. Hays, 907 F.2d at 1458.
The Commissioner points out that:
Three months later, Dr. Diaz completed another medical source statement adding and opining - for the first time - that [Plaintiff] had impaired memory due to lupus and depression (Tr. 945). [Plaintiff] requested Dr. Diaz to issue that additional statement less than a week after the state agency requested that she undergo a psychological consultative examination with Cashton B. Spivey, Ph.D. (Tr. 950). At that consultation, Dr. Spivey noted that [Plaintiff] complained of headaches and mild short-term memory loss from lupus but specifically denied attention and concentration problems (Tr. 950-51). [Plaintiff] also reported that she recently completed her business degree with a 3.2 GPA (Tr. 950). On testing, Dr. Spivey found [Plaintiff]'s functioning within normal limits ...(DE# 14 at 8). ). One day before the administrative hearing in July 2015, Plaintiff asked Dr. Diaz to complete another check-box physical functional assessment (AR 1121). Dr. Diaz submitted no recent treatment notes to support such assessment, but opined that Plaintiff could lift and carry up to 10 pounds and sit up to only four hours, after which she needed to lie down (AR 1121).
The ALJ stated specific legitimate reasons for giving Dr. Diaz' opinions "little weight," including the lack of support in the medical evidence and their inconsistency with other evidence of record. The check-the-box opinions of Dr. Diaz are conclusory and not well-supported by the physician's own records. The ALJ, as well as the reviewing state agency experts and consulting examiner, all observed that Plaintiff was able to engage in a variety of activities of daily living (AR 16, 50-133). The Commissioner points out that "Dr. Walker, the reviewing medical expert, opined that the totality of the evidence did not preclude [Plaintiff] from performing a range of sedentary work-related functioning." (AR 93-99, 112-20).
V. Conclusion
Accordingly, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be AFFIRMED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 26, 2018
Charleston, South Carolina Plaintiff's attention is directed to the following important notice :
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).