Amy Sharp v. Carolyn Colvin, No. 15-1578 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1578 AMY SHARP, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Administration, Acting Commissioner, Social Security Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:14-cv-00340-HEH) Argued: September 20, 2016 Decided: November 14, 2016 Before KEENAN, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote opinion, in which Judge Floyd and Judge Thacker joined. the ARGUED: Bruce Knight Billman, Fredericksburg, Virginia, for Appellant. Elizabeth Wu, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Nora Koch, Acting Regional Chief Counsel, Victor Pane, Supervisory Attorney, Maija DiDomenico, Assistant Regional Counsel, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 BARBARA MILANO KEENAN, Circuit Judge: Amy Sharp upholding a appeals decision from of the the district Social court’s Security judgment Administration (Social Security), which denied her application for disability insurance benefits. Citing our decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), Sharp primarily argues that the Administrative using his (residual Law Judge assessment capacity) (ALJ) of when committed reversible her residual functional capacity credibility and evaluating her error in the opinion of her treating physician. Upon our review, we conclude that although the ALJ erred in certain aspects because regarding opinion, (1) the the and of his ALJ weight (2) analysis, those sufficiently he accorded substantial credibility determination. errors explained the evidence were harmless his decision treating supported physician’s the ALJ’s Accordingly, we affirm the district court’s judgment. I. We begin by describing the five-step sequential evaluation required by regulation that an whether a claimant is disabled. ALJ must use in determining See 20 C.F.R. § 404.1520(a)(4). The ALJ must assess whether: (1) the claimant has been engaged in “substantial gainful activity”; 3 (2) the claimant has impairments that meet the regulations’ severity and duration requirements; (3) the impairments meet or equal an enumerated impairment; (4) the claimant is unable to perform her past relevant work; and (5) the claimant can perform other work, if she cannot perform her past relevant work. three and four, the ALJ must assess the Id. Between steps claimant’s residual capacity, or “the most” the claimant can do in a work setting despite her limitations. Id. §§ 404.1545(a)(1), 404.1520(a)(4). The claimant bears the burden of proof through step four, after which the Security burden shifts Administration to the Commissioner (Commissioner) to of prove the step Social five. Mascio, 780 F.3d at 635; Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013). If, at step one, the ALJ finds that the claimant has been working or, at step two, finds that the claimant’s medical impairments do not meet the severity and duration requirements, the ALJ must conclude that the claimant is not disabled. C.F.R. § 404.1520(a)(4)(i)-(ii). 20 However, if the claimant meets her burden at these first two steps, the ALJ considers step three, and either finds that the claimant is disabled because her impairment meets or equals an enumerated impairment, or the ALJ moves on to consider step four. Id. § 404.1520(a)(4)(iii). In step four, if a claimant can perform her past work given her residual capacity, the ALJ will conclude that the claimant is 4 not disabled. Id. §§ 404.1520(a)(4)(iv), 404.1545(a)(5)(i). Otherwise, the ALJ proceeds to step five, which requires that the Commissioner prove that the claimant can perform work that “exists in significant numbers in the national economy,” and therefore is not disabled. Id. §§ 404.1560(c)(2), 404.1520(a)(4)(v). In the present case, the ALJ concluded that Sharp did not meet her burden at step four regarding her ability to perform her past work. concerns the As we explain in detail below, the present case ALJ’s erroneous use of his residual capacity determination in evaluating Sharp’s credibility and the opinion of her treating physician. II. Sharp 2005. was In diagnosed September with 2006, fibromyalgia she began between seeing 2004 Dr. and Charles Gibellato, a physician who is board-certified in the fields of physical medicine and rehabilitation. Dr. Gibellato treated Sharp multiple times per year for a period exceeding five years, until May 2012. In March 2010, Sharp, then thirty-nine years old, filed a “protective” application for disability insurance benefits, alleging an onset date of September 12, 2008, which she later amended to July 29, 2010. Sharp asserted that she was disabled 5 due to fibromyalgia, chronic fatigue, chronic lower back pain, and irritable bowel syndrome. Sharp presented her claim in a hearing before the ALJ in September 2012. She testified that she had widespread pain from her upper shoulders to her neck, lower spine, and hips, and behind her legs to her knees. She stated that her pain was unpredictable, and that its location and intensity varied. Dr. Gibellato’s notes indicated that between October 2010 and May 2012, Sharp’s symptoms were alleviated by medications and injections, but were aggravated by stress and activity. Dr. Gibellato’s notes also reflected that, between October 2010 and May 2012, Sharp reported: (1) that on a ten-point scale, her monthly average pain level ranged between six and eight, and (2) that in the twenty-four hour period prior to her appointments with Dr. Gibellato, she generally had achieved between seventy percent and eighty percent relief of her symptoms, with one instance in which she reported fifty percent relief. In December 2010, Sharp completed a report for Social Security in which she stated that on “bad days,” she experienced high pain levels that prevented her from attempting household activities. She also related that on bad days, she needed a cane to get to the bathroom to use the toilet, and that she could not do much more on such days. Sharp could feed and dress herself, and on “good days,” she could perform light household 6 chores, help her son with homework, prepare groceries, and walk outside with her dogs. meals, shop for According to Sharp, she had four or five good days each month. Dr. Gibellato referred Sharp to Dr. Jennifer Wartella, a licensed clinical psychological chronic pain September psychologist, distress and 2011, Sharp receive experienced depression. and to Dr. recorded treatment in Wartella that for the to her relation treated Sharp Sharp “tend[ed] in to catastrophize her pain.” After Sharp attended a session with a physical therapist in February 2012, the therapist’s notes indicated demonstrated good potential for rehabilitation. that Sharp The therapist recommended a treatment plan that included home exercise, heat, and ice. that In August 2012, a different physical therapist noted Sharp’s sixty-minute walking pain levels physical program or increased performance that she moderately test, engage and in throughout a recommended a stretching and conditioning. In a recorded statement in June 2012, Dr. Gibellato opined that in a work environment, Sharp would need to be able to take breaks, to change her position frequently, and to take narcotic medications while working. According to Dr. Gibellato, Sharp could not work in a cold environment, and could only perform work that involved a low level of stress. 7 In September 2012, Dr. Gibellato sedentary further work, it routine schedule. stated was that unlikely while that Sharp she could could perform maintain a He explained that her symptoms would increase and have a cumulative effect over time, requiring her to be absent from her job after working for between two and four days. Upon Sharp considering suffered from this evidence, fibromyalgia, the ALJ degenerative concluded disc degenerative joint disease, obesity, and depression. further concluded that Sharp could subject to certain limitations. perform that disease, The ALJ sedentary work The ALJ reasoned that while Sharp’s impairments were severe, they did not preclude her from performing “all sustained gainful activity.” The ALJ’s residual capacity assessment stated that Sharp was limited to lifting and/or carrying 5 pounds frequently, and 10 pounds occasionally, sitting six hours in an eight hour workday, and standing/walking two hours in an eight hour work day. [Sharp] had to avoid jobs that required production quotas, and involved more than occasional overhead work . . . . Sharp was limited to work that allowed her to change positions once an hour, and work in an inside environment . . . . She was also limited to occasional interaction with peers, supervisors, and the public, and she was allowed to be absent from work about 10 days a year. Because the ALJ concluded that Sharp could perform her past work as a payroll clerk, the ALJ held that she was not disabled during the relevant time period. 8 In making this determination, the ALJ accorded little weight to Dr. Gibellato’s opinion that Sharp could not maintain a routine schedule. The ALJ concluded that Sharp’s “reported limitations were not notes, were they nor capacity supported assessment. by consistent The ALJ [Dr. with” also Gibellato’s] the ALJ’s concluded office residual that Sharp’s impairments reasonably could be expected to cause her alleged symptoms, but that her “statements concerning the intensity, persistence and limiting effects of [her] symptoms [we]re not credible,” in part because they were inconsistent with the ALJ’s residual capacity determination. The ALJ also stated that Sharp’s ability to function was not limited to the degree Sharp alleged because: (1) her subjective complaints were “not fully supported by the objective medical evidence”; (2) she had received “conservative” medical treatment; and (3) her admitted activities of daily living diminished her credibility regarding the frequency, severity, and limiting effects of her symptoms. After the Appeals Council denied Sharp’s request for review of the ALJ’s decision, Sharp filed a complaint in the district court denying seeking her recommended review request that the of for the Commissioner’s benefits. district court A deny final decision magistrate Sharp’s judge motion for summary judgment, grant the Commissioner’s motion for summary judgment, and affirm the ALJ’s final decision denying Sharp’s 9 application for disability benefits. The district court adopted the magistrate judge’s report and recommendation, and upheld the Commissioner’s determination. This appeal followed. III. A. We first state the well-established standards governing our review of disability determinations. We must uphold the ALJ’s disability determination unless it was based on legal error or, in light of evidence. the whole record, is unsupported by substantial 42 U.S.C. § 405(g); Mascio, 780 F.3d at 634 (citation omitted); Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011). The substantial evidence standard requires more than a scintilla, but may be less than a preponderance, of evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). We do not “reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (alteration in original) (citation omitted). Johnson v. (per curiam) When conflicting evidence could lead reasonable minds to differ regarding whether a claimant is determination. disabled, we defer to the ALJ’s disability Hancock, 667 F.3d at 472 (citation omitted). 10 B. Sharp standards contends (1) in that the evaluating ALJ the applied weight incorrect to be legal given Dr. Gibellato’s opinion; and (2) in assessing Sharp’s credibility. Sharp argues that these errors were not harmless and require reversal of the ALJ’s disability determination. 1. Relying on our decision in Mascio, Sharp contends that the ALJ committed reversible error by according little weight to Dr. Gibellato’s opinion on the ground that the opinion conflicted with the ALJ’s residual capacity determination. In advancing this argument, Sharp acknowledges that the ALJ provided a second reason for assigning little weight to Dr. Gibellato’s opinion, namely, that Sharp’s “reported limitations were not supported by [Dr. Gibellato’s] office notes.” this explanation provide a is merely sufficient basis However, Sharp contends that conclusory in nature, on to uphold which does the not ALJ’s decision, and, because of its absence of detail, prevents us from engaging in meaningful appellate review. In addressing this issue, we first observe that an ALJ must accord controlling weight to a treating physician’s medical opinion regarding a claimant’s ability to work, if that opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 11 the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); see 20 C.F.R. § 404.1527(a)(2). implication, clinical if a physician’s evidence or if Thus, “[b]y negative opinion it is is not supported inconsistent with by other substantial evidence, it should be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); see generally 20 C.F.R. § 404.1527(c). bound by a or disabled treating unable physician’s to reserved for the ALJ. work, Ultimately, the ALJ is not opinion because that that a claimant is determination is See 20 C.F.R. § 404.1527(d)(1). We agree with Sharp that the ALJ committed legal error in his analysis of the weight to be accorded to Dr. Gibellato’s opinion. As we have noted, the ALJ used his residual capacity assessment as one basis Gibellato’s opinion. Mascio. for assigning little weight to Dr. We examined a similar analytical error in The ALJ in that case had concluded that “the claimant’s statements concerning effects of because they [the the intensity, claimant’s] were capacity assessment. persistence symptoms inconsistent with [we]re the ALJ’s and not own limiting credible” residual Mascio, 780 F.3d at 639. We explained in Mascio that the ALJ’s reasoning conflicted with the agency’s regulations. Id. Those regulations require that an ALJ consider a claimant’s credibility before determining 12 her residual capacity, determination of instead residual of capacity rejecting a claimant’s credibility. to permitting serve as the a ALJ’s basis for Id. The ALJ in the present case similarly erred by concluding that Dr. Gibellato’s opinion merited little weight because it was inconsistent with the ALJ’s assessment of Sharp’s residual capacity. The regulations direct that an ALJ evaluate statements from treating physicians before, rather than after, determining a claimant’s § 404.1545(a)(3). residual capacity. 20 C.F.R. Thus, the regulations do not allow an ALJ to consider whether a treating physician’s opinion is consistent with the ALJ’s what weight to residual accord capacity that assessment physician’s when determining opinion. See id. § 404.1527(c)(2). We further explained in Mascio, however, that an error of this nature may be deemed harmless when the ALJ has provided a sufficient alternate particular evidence. must now consider the basis for his negative Mascio, 780 F.3d at 639. sufficiency of the ALJ’s assessment of Therefore, we other stated reason for according less weight to Dr. Gibellato’s opinion. When, as here, an ALJ denies a claimant’s application, the ALJ must state “specific reasons for the weight given to the treating source’s medical opinion,” to enable reviewing bodies to identify clearly the reasons for the ALJ’s decision. 13 Social Security Ruling (SSR) 96-2p, 61 Fed. Reg. 34,490, 34,492 (July 2, 1996). Based on our review of the record before us, we conclude that the ALJ provided a second, specific reason that is sufficient to afford such appellate review. The ALJ did not summarily conclude that Dr. Gibellato’s opinion merited little weight. Cf. Monroe v. Colvin, 826 F.3d 176, 190-91 (4th Cir. 2016) (holding ALJ’s statement that “the objective evidence or the claimant’s treatment history did not support the meaningful consultative review); examiner’s Radford, 734 F.3d findings” at 295; Heckler, 715 F.2d 148, 150 (4th Cir. 1983). precluded DeLoatche v. Instead, the ALJ explained why he discredited Dr. Gibellato’s opinion, remarking that “the claimant’s reported limitations were not supported by [Dr. Gibellato’s] office notes.” specific pages in the record, While the ALJ did not cite his explanation identified a particular category of evidence. relied on and See generally 20 C.F.R. § 404.1527(c)(2); SSR 96-2p. Indeed, the record contains substantial evidence supporting the ALJ’s conclusion that Dr. Gibellato’s opinion did not merit controlling weight. although Sharp’s activity, medications Dr. Gibellato’s symptoms relief. And, tolerated injections and were aggravated injections according well to Dr. and 14 notes indicated by stress that and regularly provided Sharp Gibellato’s notes, Sharp did not experience any complications as a result of these procedures. notes indicated that Sharp often reported Furthermore, his feeling relief of between seventy percent and eighty percent as a result of the treatments she received. suggested routine that work Sharp These notes, considered as a whole, could schedule, manage and her were pain and maintain inconsistent a with Dr. whether Dr. Gibellato’s contrary opinion. The ALJ Gibellato’s also was opinion entitled was to consider inconsistent with other material evidence, such as (1) Dr. Wartella’s opinion that Sharp tended to “catastrophize” her pain, (2) the opinion of one physical therapist that Sharp had good potential for rehabilitation with use of a home exercise program, heat, and ice, and (3) the opinion could of be another physical alleviated in part stretching and conditioning. therapist by a that Sharp’s walking program, problems or by See 20 C.F.R. § 404.1527(c)(2). Based on this other evidence, the ALJ was not obligated to adopt Dr. Gibellato’s opinion about Sharp’s ability to work. § 404.1527(d)(1). See id. Moreover, we may not reweigh this evidence, and we must defer to the ALJ’s determination when, as here, conflicting whether evidence Sharp was might disabled. lead reasonable See Johnson, 434 F.3d at 653. 15 Hancock, minds 667 to F.3d disagree at 472; 2. We next address the ALJ’s determination testimony lacked sufficient credibility. that Sharp’s Sharp again relies on our decision in Mascio, asserting that the ALJ erred when he concluded that persistence, credible, Sharp’s limiting and descriptions effects because they were of of her inconsistent residual capacity determination. the intensity, symptoms with the were not ALJ’s own However, Sharp recognizes that the ALJ provided three additional reasons for his credibility determination, including that: (1) Sharp’s subjective complaints were “not fully supported by the objective medical evidence;” (2) Sharp’s treatment was “conservative;” and (3) Sharp’s admitted activities of daily living diminished her credibility regarding the frequency, severity, and limiting effects of her symptoms. Sharp nevertheless maintains that the three conclusions above are not supported by substantial evidence. We agree with Sharp that the ALJ applied the same incorrect legal standard that we identified in Mascio, by using the ALJ’s own assessment credibility. above, the of Sharp’s residual capacity See Mascio, 780 F.3d at 639. regulations require that the to assess her As we explained ALJ consider the claimant’s credibility before determining her residual capacity, instead of permitting the ALJ’s residual capacity determination to serve as a basis for rejecting a claimant’s credibility. 16 Id. Nevertheless, we again conclude that this error was harmless, because the concluding ALJ that provided Sharp’s sufficient statements limitations were not credible. additional about the reasons extent for of her See id. In determining the extent to which a claimant’s symptoms affect her capacity to perform basic work activities, the ALJ considers, among other factors, the claimant’s daily activities. 20 C.F.R. § 404.1529(c)(3)-(4); see Johnson, 434 F.3d at 658. The ALJ also considers the claimant’s statements about the intensity, persistence, and limiting effects of her symptoms, and whether the functional limitations from those symptoms “can reasonably be accepted as consistent with the objective medical evidence * and other evidence.” 20 C.F.R. § 404.1529(c)(4). While we may not make our own credibility determinations, we may review whether substantial credibility determination. evidence supports an ALJ’s See Johnson, 434 F.3d at 658. Here, the ALJ concluded that Sharp’s statements about the extent of her limitations were not fully supported by objective * Objective medical evidence includes “medical signs and laboratory findings.” 20 C.F.R. § 404.1529(a). Medical signs are “anatomical, physiological, or psychological abnormalities which can be observed, apart from [the claimant’s] statements.” Id. § 404.1528(b). Laboratory findings are “anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques.” Id. § 404.1528(c). 17 medical evidence. symptoms were Dr. Gibellato’s notes indicated that Sharp’s alleviated significantly with medications and injections, and that Sharp tolerated the injections well and did not experience any complications. When we consider these notes together with (1) Dr. Wartella’s opinion that Sharp tended to “catastrophize” the effects of her symptoms, and (2) the abovestated opinions therapists who and recommendations evaluated Sharp, we of the conclude two that physical substantial evidence supports the ALJ’s conclusion that objective medical evidence undermined Sharp’s statements regarding the extent of her limitations. See Hancock, 667 F.3d at 472. The ALJ further observed that Sharp’s medical care, which included injections, pain medication, and physical therapy, was “conservative.” The ALJ was permitted to make this determination that Sharp’s treatment was conservative, and that her course of treatment supported a conclusion that she was able to maintain a routine work schedule. F.3d 1048, 1058-60, 1069 (10th Cir. See Wall v. Astrue, 561 2009) (concluding that claimant’s treatment for pain, which included local anesthetic patches, Motrin, and cortisone injections in her back, was conservative). Finally, the ALJ concluded that Sharp’s reported activities were inconsistent with her alleged limitations. daily The ALJ recognized that Sharp’s pain was unpredictable and caused 18 her difficulties. statements chores and that However, on shop good for the days, ALJ Sharp groceries. We also considered could may perform not Sharp’s household reweigh this evidence, make credibility determinations, or supplant the ALJ’s judgment with our own. Johnson, 434 F.3d at 654. viewing a evidence the record supports as the whole, ALJ’s we conclude credibility that Accordingly, substantial determination. See Hancock, 667 F.3d at 472; Meyer, 662 F.3d at 704. IV. For these reasons, we affirm the district court’s judgment. AFFIRMED 19

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