Bracey v. Astrue, No. 5:2007cv00265 - Document 20 (E.D.N.C. 2009)
Court Description: ORDER denying 10 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings; and, adopting 16 Memorandum and Recommendations. Signed by Chief Judge Louise Wood Flanagan on 01/05/09. Copies served electronically. (Baker, C.)
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Bracey v. Astrue Doc. 20 IN THE UNITED STATES DISTRlCT COURT FOR THE EASTERN DISTRlCT OF NORTH CAROLINA WESTERN DIVISION NO.5:07-CV-265-FL MARY C. BRACEY, ) ) Plaintiff, ) ) ) v. ORDER ) MICHAEL 1. ASTRUE, Commissioner of Social Security, ) ) ) Defendant. ) This matter is before the court on the parties' cross-motions for judgment on the pleadings (DE #10, 14) and plaintiffs timely objections to the memorandum and recommendation ("M&R") entered by United States Magistrate Judge Robert B. Jones, Jr. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court rules in favor ofdefendant on the parties' crossmotions. BACKGROUND Plaintiff filed an application for disability insurance benefits on May 27, 2004, alleging a disability onset date ofApril 3, 2004, due to degenerative disc disease and arthritis. The application was denied initially and again upon reconsideration, and a request for hearing was timely filed. A hearing was held before Administrative Law Judge ("ALJ") Peter C. Edison on November 15,2006, at which plaintiff was represented by counsel. On January 18,2007, the ALJ issued a decision denying plaintiff's claim. The Appeals Council denied plaintiffs request for review, thereby rendering the ALJ's decision the final decision of the Commissioner of Social Dockets.Justia.com Security ("the Commissioner"). Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiffargues that the ALl's decision should be reversed on the principal grounds that the ALl erred by (I) failing to consider whether plaintiff s impairments in combination are equivalent to a listed impairment; (2) improperly determining plaintiff's residual functional capacity C'RFC"); and (3) erroneously assessing plaintiffs credibility. Through M&R entered May 29,2008, the magistrate judge recommends that this court deny plaintiffs motion for judgment on the pleadings, grant defendant's motion, and uphold the final decision of the Commissioner. Plaintiff timely objected to the M&R and defendant replied. DISCUSSION A. Standard of Review This court's role in reviewing defendant's final decision regarding plaintiff's disability status is limited to determining whether substantial evidence supports defendant's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). It must be "more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In addressing an objection to an M&R, the district court "shall make a de novo determination ofthose portions ofthe report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(I )(C). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate 2 judge." Id.; see Cambv v. Davis, 718 F.2d 198,200 (4th Cir. 1983). B. Analysis Plaintiff raises two objections to the M&R. First, plaintiff argues that both the AU and magistrate judge erred by failing to consider the chronic and progressive nature of plaintiffs impairments over the entire time period at issue, and that this error affected the AU's factual findings, including the ALl's evaluation ofplaintiffs RFC and credibility. Second, plaintiffargues that the magistrate judge erred by concluding that the absence of any treating or examining medical source statements in the record indicated plaintiffs nondisability. The court considers each objection in tum. Plaintifffirst objects that the AU and magistrate judge failed to consider the progressive and chronic nature of plaintiffs rheumatoid arthritis, and thus wrongly gave greater weight to the medical evidence generated early in the relevant time period compared to the most recent evidence in the record. Plaintiffargues that this error affected the ALl's findings that plaintiffhad the ability to perform the full range of light work and that plaintiffs testimony regarding her functional restrictions was not fully credible. In support ofthis argument, plaintiff first contends that the AU failed to apply the required regulatory criteria to the opinions of the non-examining Disability Determination Service ("DDS") consulting physicians, who determined that plaintiff had the RFC to perform light work, and that the AU improperly ascribed "great weight" to these opinions. The court disagrees. The Social Security Administration recogmzes DDS consultants as highly qualified physicians who are experts in the evaluation of disability claims under the Social Security Act. See 20 C.F.R. § 404.1527(f)(2)(i); Social Security Ruling ("SSR") No. 96-6p, 1996 WL 374180, *2 3 (1996). Although an AU is "not bound by any findings made by State agency medical ... consultants," an AU must consider such findings "as opinion evidence, except for the ultimate determination about whether [a claimant is] disabled." 20 C.F.R. § 404.1527(1)(2)(i). When evaluating the findings of state agency consultants, the ALl must consider relevant factors such as the consultant's "medical specialty and expertise in [Social Security Administration] rules, the supporting evidence in the case record, supporting explanations provided by the [consultant], and any other factors relevant to the weighing ofthe opinions." 20 C.F.R. § 404.1 527(1)(2)(ii). Where, as here, no controlling weight is given to the opinion of a treating source, the ALl must explain the weight given to the opinions of the DDS consultants. Id. The record contains a physical RFC assessment by a DDS non-examining consultant dated November 19, 2004, and a Request for Evaluation of Medical Severity dated March 24, 2005, which affirms the November 2004 physical RFC assessment.' (R. at 19, 291-98, 299.) Basing their opinions upon a review of the entire then-existing case record, these consultants determined that plaintiff could perform a full range oflight work. (R. at 298, 299.) As an initial matter, the court finds that the AU applied the proper regulatory criteria in evaluating the reports of the DDS consulting physicians. The ALl explained that the opinions ofthe non-examining DDS consultants, including their RFC assessments, were "weighed in accordance with 20 CFR 404.1527(1) and Social Security Ruling 96-6p." (R. at 19.) The AU found the assessments consistent with plaintiffs longitudinal medical record and gave them "great weight." (R. at 19.) 'The record also contains a Psychiatric Review Technique Form (PRTF) assessment by a DDS non-examining consultant dated November 18,2004, and a Request for Evaluation of Medical Severity dated March 25, 2005, which affinn' the November 2004 PRTF assessment. CR. at 276-290,300.) Plaintiff does not object to the ALJ's treatment of these assessments. 4 Plaintiff does not chaHenge the substantive findings of the DDS medical consultants when made. Instead, plaintiff argues that the AU erred by giving their assessments great weight because medical records from rheumatologist Dr. Hogarty, which postdate the DDS consultative reports, are inconsistent with the determination that plaintitf can perform light work. Despite plaintiffs contention to the contrary, however, substantial evidence supports the AU's determination that the DDS consulting physicians' RFC assessments are consistent with plaintiffs longitudinal medical record as a whole. The AU did not err in giving great weight to these assessments. In determining plaintiff s RFC, the AU did not rely only on assessments by the non examining DDS consulting physicians, but also considered all of plaintiff's symptoms, including pain, and plaintiffs entire medical record, including reports by examining physicians which postdate the DDS consulting physician reports. Following the assessments by the DDS consultants, treatment notes from Dr. Hogarty from May through June 2006 (R. at 313-20) were added to the record. Upon de novo review, the court agrees with the magistrate judge that these treatment notes and clinical findings, along with others that were submitted after the DDS assessments were made, indicate similar complaints and assessments as those reviewed by the DDS consultants. This additional evidence was considered by the AU, and it does not demonstrate a marked change for the worse in plaintiffs health. Contrary to plaintiff s contention otherwise, the AU considered the progression ofplaintiff's rheumatoid arthritis, from plaintiffs first examination for the condition by Dr. Stanescu in May 2004, until the most recent examinations in the record by Dr. Hogarty in June 2006. (R. at 17-18.) The AU discussed the relevant findings by Dr. Hogarty, including that plaintiff has synovial thickening of the Mep joints, right greater than left, a decreased range of motion of the wrists, and 5 signs ofinflammatory arthropathy consistent with rheumatoid arthritis, including erosion ofthe MCP joints and narrowing ofthe PIP joints with sclerosis and ankylosis. (R. at 17.) At plaintiff's May 30, 2006 exam, Dr. Hogarty characterized plaintiffs rheumatoid arthritis as appearing "mild," and treatment notes by Dr. King-Thiele from July 2006 indicated that plaintiffs arthritic pain had improved with medication and that plaintiff was feeling much better. (R. at 318, 326-27.) Although plaintiff objects that the ALJ and the magistrate judge failed to explain how someone with plaintiffs arthritic condition could perform light work, plaintiff bears the burden of both production and proof during the first four steps of the sequential evaluation process, and plaintiff bears the risk of non-persuasion. Pass v. Chatel', 65 F.3d 1200, 1203 (4th Cir. 1995); Seacrist v. Weinberger, 538 F.2d 1054, 1057 (4th Cir.1976). This burden includes the responsibility of "providing the evidence [the ALJ] will use to make a finding about [a claimant's] residual functional capacity." 20 C.F.R. § 404. I 545(a)(3); see also 20 C.F.R. § 404.l512(c) ("You must provide evidence ... showing how your impairment(s) affects your functioning during the time you say that you are disabled ..."). In its inquiry, this court may not "undertake to re-weigh conflicting evidence ... or substitute [its] judgment for that ofthe [Commissioner]." Mastro v. Apfel, 270 F.3d 171,176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585,589 (4th. Cir. 1996». With these principles in mind, the court finds that the AU properly considered plaintiff's medical record as a whole, and that the ALJ's RFC assessment is supported by substantial evidence. Plaintiff also objects to the M&R on the basis that the ALJ's failure to consider plaintiff's medical records over the entire range of time at issue affected the ALJ's evaluation of plaintiffs credibility. Plaintiffdoes not elaborate on this objection, nor does plaintiff object to the magistrate's finding that the ALJ's assessment of plaintiff's credibility was otherwise proper. Having found that 6 the ALJ did consider plaintiff's longitudinal medical record, including the medical findings of Dr. Hogarty so heavily relied on by plaintiff, the court dispenses with this objection. So too does the court dispense with the objection that the ALJ's failure to consider plaintiffs medical record over the entire time period at issue affected other relevant findings by the ALl As already discussed, the ALJ properly considered the entirety of plaintiff s medical record, and any objections based on this alleged failure must be rejected. In plaintiff's second major objection to the M&R, plaintiff argues that the magistrate judge erred by concluding that the absence ofa treating physician's supporting opinion indicated plaintiff s nondisability. As both the ALJ and the magistrate judge noted, plaintiff s record contains no treating or examining medical source statements regarding plaintiffs physical or mental limitations, and what plaintiff can still do despite the limitations. Had such opinions been present in the record, the ALJ would have been required to evaluate and weigh them in accordance with the factors set forth in 20 C.F.R. § 404.1527. Despite plaintiff's contention to the contrary, neither the ALJ nor the magistrate judge relied on the absence of a supporting opinion from a treating source as substantial evidence of plaintiff s nondisability. In one mention of the absence of such opinions in the record, the magistrate judge indicated merely that the ALl's decision to give great weight to the RFC assessments of the DDS consultants did not conflict with any opinions from treating sources, because none existed. (M&R 14.) The magistrate judge later mentioned the absence of examining medical source opinions in discussing plaintiffs burden ofproduction, but the magistrate did not imply that the absence of such opinions indicated conclusively that plaintiff was not disabled. Rather, the magistrate found, and this court agrees, that the ALJ thoroughly discussed the relevant medical records, the findings of 7 plaintiffs treating sources and the DDS reviewing physicians, and plaintiffs testimony, and that substantial evidence supported the ALJ's findings. (M&R 18.) The magistrate judge again mentioned the absence of treating source opinions in the record in distinguishing the instant case from Hines v. Barnhart, 453 F.3d 559 (4th Cir. 2006), where the ALJ had disregarded the treating physician's opinion that the claimant was disabled. (M&R 23.) In none ofthese instances did the magistrate judge imply that the absence ofa treating source opinion as to plaintiffs functional capabilities meant that plaintiff was not disabled. Furthermore, the magistrate judge does not, as plaintiff contends, suggest that the ALJ could not consider the vocational impact ofDr. Hogarty's medical findings without an opinion from Dr. Hogarty as to their effect on plaintiffs functional work capacities. Indeed, by considering Dr. Hogarty's findings along with the rest of the record evidence in determining plaintiff s RFC, the ALJ did consider their vocational impact. (R. at 19.) The ALJ was under no obligation to contact plaintiffs physicians for an opinion regarding plaintiffs functional capabilities or to obtain an additional consultative examination where, as here, the evidence as a whole was sufficient to support a decision. See 20 C.F.R. §§ 404.1519, 404.1519a. Accordingly, the court rejects plaintiffs second objection to the M&R. CONCLUSION Where the court has conducted a de novo review of those portions of the magistrate judge's M&R to which specific objections have been filed, otherwise adopting as its o'wn the uncontested proposed findings and conclusions upon a considered review, for the reasons more particularly stated herein, the M&R is ADOPTED. The court therefore upholds the decision of the Commissioner. Plaintiffs motion for judgment on the pleadings is DENIED, and defendant's motion for judgment 8 on the pleadings is GRANTED. The clerk is directed to close the case. SO ORDERED, this the <5 J.. day of January, 2009. 9
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