Jones v. Astrue, No. 5:2007cv00452 - Document 23 (E.D.N.C. 2009)

Court Description: ORDER denying 9 Motion for Judgment on the Pleadings; granting 17 Motion for Judgment on the Pleadings; adopting 21 Memorandum and Recommendations.Signed by Chief Judge Louise Wood Flanagan on 02/21/09. Copies served electronically. (Baker, C.)

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Jones v. Astrue Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No.5:07-CV-452-FL PEGGY R. JONES, ) ) ) ) Plaintiff/Claimant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ORDER ) ) This matter is before the court on the parties' cross-motions for judgment on the pleadings pursuantto Fed. R. Civ. P. 12(c), (DE ## 9,17), and plaintiffs timely objection to the memorandum and recommendations ("M&R") entered by the United States Magistrate Judge. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court denies plaintiffs objections to the M&R and adopts the findings in the M&R upholding defendant's decision denying benefits. STATEMENT OF THE CASE Plaintiff filed a claim for a period of disability and disability insurance benefits ("OIB") on July 20,2004, alleging disability beginning May 21, 2004. (R. at 15,49.) Plaintiffs claim was denied initially and upon reconsideration. (R. at 27,35.) Claimant then sought a hearing, which was held before an administrative law judge ("ALl") on November 17, 2006. (R. at IS.) In an opinion dated December 21,2006, the AU found plaintiffwas "not disabled." On May 3, 2007, the Appeals Council denied plaintiffs request for a review of the AU's opinion, thereby making that opinion defendant's final decision. Plaintiffthen timely filed the instant civil action on November 16,2007, Dockets.Justia.com seeking review of defendant's decision. The parties filed cross-motions for summary judgment, which are now before the court with benefit of an M&R and related objections filed by plaintiff. DISCUSSION A. Standard of Review This court's role in reviewing defendant's final decision 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." rd. In addressing a plaintiff's objection to an M&R, the district court "shall make a de novo determination of those portions ofthe report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l )(e). Upon careful review ofthe record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.; ~ Camby v. Davis, 718 F.2d 198,200 (4th Cir. 1983). B. Analysis Plaintiff purports to raise two objections to the M&R, but review of plaintiff s arguments reveals a number of the magistrate judge's findings in the M&R to which plaintiff objects. First, plaintiffargues the magistrate judge incorrectly found that the ALJ' s failure to make a determination regarding the severity of defendant's back pain was not reversible error. This objection consists of two related arguments. Plaintiff argues that the magistrate judge incorrectly found that the ALJ's 2 failure to make a determination as to whether plaintiffs lower back pain was a "severe" impairment at step two of the sequential evaluation was not reversible error. Plaintiff also argues that the magistrate judge incorrectly found that the AU properly considered plaintiff's overall back pain in making his determination of equivalence at step three of the sequential evaluation. Next, plaintiff contends that the magistrate judge erred by failing to account for an alleged omission by the AU in his discussion of two MRIs. Plaintiff also argues that the AU's purported omission indicates the related impairments were improperly excluded from the AU's consideration of whether any of plaintiffs conditions met or equaled Listing 1.04A. Plaintiff further objects to the M&R to the extent it found the AU had sufficiently explained his findings and his rationale with regard to his findings at steps three and four of the sequential evaluation. Finally, plaintiff objects to the M&R on the grounds that the magistrate judge incorrectly found that plaintiff presented insufficient documentation showing that fibromyalgia imposed severe functional limitations on her. The court now reviews the findings of the M&R on these matters de novo. Taking plaintiff's objections in order, the first issue to consider is plaintiffs contention that the AU committed reversible error by failing to make a determination regarding the severity of plaintiff's lower back pain at step two of the sequential evaluation. Step two of the sequential evaluation requires an AU to consider whether a claimant has a medically severe impairment or combination of impairments. See 20 C.F.R. §§ 404. I520(c), 404.1521(a), 416.920, 416.921. If the AU finds a claimant does not have a severe impairment or combination of impairments, then the claimant is found "not disabled" without further analysis. Otherwise, the analysis continues on to the third step of the sequential evaluation. In this case, the AU did not make a determination regarding whether plaintiffs lower back 3 pain constituted a severe impairment. The AU did, however, find that plaintiff suffered from the fol1owing severe combination of impairments: "degenerative disc disease ofthe neck; pulmonary hypertension; depression; sleep apnea; fibromyalgia; history ofirritable bowel syndrome and bladder leakage." (R. at 17.) Based on this finding, the AU continued his evaluation to step three. Though the Fourth Circuit has not addressed the question of whether an ALl's failure to consider the severity ofone ofmany impairments at step two ofthe evaluation constitutes reversible error where the AU makes a finding that the claimant has another severe impairment, other courts have done so and answered in the negative, provided the AU considered the impairment in subsequent steps ofthe sequential evaluation. See Hill v. Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008); Maziarz v. Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987); see also Masch v. Barnhart, 406 F. Supp. 2d 1038, 1053 (E.D. Wis. 2005); Tocco v. Astrue, 2008 U.S. Dist. LEXIS 92993, *IS (N.D. Ind. Nov. 14, 2008)(applying Maziarz for this holding); Washington v. Astrue, 2008 U.S. Dist. LEXIS 56258 (ED. Ark. July 23, 2008); Gomez v. Comm'r of Soc. Sec., 2008 U.S. Dist. LEXIS 9792 (M.D. Fla. 2008). This court agrees with these courts and finds it is not reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the AU considers that impairment in subsequent steps. This court finds that the AU here did adequately consider plaintiff's lower back pain in later steps of the sequential evaluation, though not necessarily in the most straighttorward manner. Review ofthe AU's opinion reveals that the AU discussed evidence related to plaintiff's back pain and related medical treatments on several occasions. The first mention comes in the brief explanation given by the AU for finding that plaintiff had a combination of severe impairments. (R. at 17.) Though the AU did not make an explicit finding as to the severity of plaintiffs back 4 pain, he does appear to have considered it at this juncture, noting the results of a 2003 magnetic resonance imaging ("MRI") scan performed on plaintiffs lower back. (ld.) At step three, the AU stated that, after considering all ofthe documentary evidence, he found that plaintiff did not have an impairment or combination of impairments that meets or medically equals one ofthe impairments listed in § 1.04A, Disorders of the Spine, 20 C.F.R. 404, Appendix I, Subpart P. (R. at 17.) The AU's discussion at this point of his opinion is spare. The reason behind the spareness ofthe AU's order discussing his findings at both steps two and three appears to be that the AU included his substantive discussion of the evidence in his consideration of plaintiffs residual functional capacity ("RFC"). (See R. at 18-22.) Such collapsing ofthe analysis of the evidence by an AU is not the preferred form of opinion writing for an AU because it makes review of his opinions more difficult, but it is not necessarily reversible error. See McCartney v. Apfel, 28 Fed. Appx. 277, 279 (4th Cir. 2002) (finding that an AU's analysis of medical evidence at step three instead of step four was not error because "the AU need only review medical evidence once in his decision."). Here, in his consideration ofplaintiffs RFC, the AU discusses, paragraph by paragraph, the bulk ofthe evidence he considered in assessing plaintiffs claim. This discussion includes treatment of plaintiffs December 2003 and February 2006 MRls of the lumbar and cervical regions of plaintiffs spine. The AU noted the findings ofboth MRls, which included limited lumbar mobility, tenderness, pain with lumbar rotation, and positive straight leg raise testing bilaterally at 85-90 degrees, as well as "minimal disc bulging leading to mild bilateral neural foraminal narrowing." (R. at 18, 19.) These findings appear to adequately reflect the documentary evidence related to plaintiffs MRls, (see R. at 221-27, 340-42), and provide a sufficient basis for the AU's 5 determinations at steps two and three. Consequently, the ALl's failure to make a determination regarding the relative severity ofplaintiff's lower back pain was not reversible error in this instance, and plaintiff's objection on this ground is overruled. Because the ALl adequately considered plaintiff's back pain in his discussion of plaintiff's RFC, plaintiff's next objection, that the magistrate judge incorrectly found that the ALl had sufficiently considered plaintiff's back pain at step three of the sequential evaluation, is also overruled. Plaintiff next lodges two related objections: first, that the magistrate judge erred by failing to account for an alleged omission by the ALl regarding findings from two MRIs; and second, that this purported omission indicates plaintiff's back impairments were improperly excluded from the ALl's consideration of whether any of plaintiff's conditions met or equaled Listing 1.04A. The omission alleged by plaintiff in the ALl's order is a discussion of certain findings contained in a December 2003 MRl of the plaintiff's spine. The ALJ reviewed the findings of these MRls in at least three places in his opinion, however, plaintiff contends that, in so doing, the ALl omitted crucial findings that demonstrate plaintiff suffers from nerve root compromise, thereby satisfYing Listing 1.04(A), which sets forth criteria for disabling spinal disorders. 20 C.F.R. 404, Subpt. P, App. I § 1.04. Review of the relevant records indicates, however, that plaintiff's characterization is misleading. Neither MRI found evidence of nerve root compromise in plaintiff's lumbar spinal region. To the contrary, the December 2003 MRl specifically stated there appeared no evidence of "nerve root impingement." (R. at 227.) The February 2006 MRl found no significant changes from the 2003 MRl with respect to plaintiff's lumbar spine. CR. at 341-42.) And, though the MRls did indicate some stenosis, or narrowing, of plaintiff's cervical spine, neither MRl indicated plaintiff suffered from nerve root compromise, as required by Listing I.04(A). As already discussed, the ALl 6 considered the results of these MRIs and determined that plaintiff did not have an impairment that satisfied Listing 1.04(A). This court's review of these records indicates there was substantial evidence on which the All based his determination. As such, plaintiffs objection that the All omitted necessary details of the medical record fails. Plaintiff s related argument that the All improperly failed to consider plaintiff s back problems, either alone or in combination with her other conditions, in determining whether plaintiff has an impairment that meets or equals a Listing also fails. As already discussed, the All adequately considered the evidence regarding plaintiffs back conditions. Based on that consideration, the All determined at step three that plaintiffdid not have an impairment or combination ofimpairments that meets or medically equals one of the impairments listed in § 1.04A, Disorders of the Spine, 20 C.F.R. 404, Appendix I, Subpart P. (R. at 17.) The All's analysis of plaintiffs back conditions clearly indicates the AU considered those impairments by themselves. However, in making a determination regarding whether a claimant has any condition which meets or equals a Listing, an AU must also consider the combined effect ofa claimant' s impairments. Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989). And, "the AU must adequately explain his or her evaluation ofthe combined effect of impairments." rd. "This rule merely elaborates upon the general requirement that a AU is required to explicitly indicate the weight given to relevant evidence." Id. Plaintiff argues that the AU failed to consider the combined effects of plaintiffs ailments and, therefore, his decision must be reversed. Review of the AU's opinion in this case indicates that, despite collapsing his analysis into his discussion of plaintiffs RFC, the AU made these necessary findings. Over the course offour pages in this section of his opinion, the AU detailed the evidence ofall of plaintiff s medical conditions that he considered in making his determination. (R. 7 at 18-22.) The AU specifically made findings as to the relative weight of plaintiff s claims of pain and limitations versus other medical evidence. (R. at 20-21.) The ALl specifically noted that he did not assign full weight to plaintiffs claims because those claims were not supported by the medical evidence. (ld.) He also noted that he gave substantial weight to the findings of the state agency physician and psychologist because their opinions were consistent with the other evidence in the case. (ld. at 21.) The AU's discussion indicates that he considered plaintiffs combined impairments, including her back problems, in making his determinations. As a result, plaintiffs objection on this issue fails. In a similar vein, plaintiffobjects to the M&R to the extent it found the AU had sufficiently explained his findings and his rationale with regard to his findings at steps three and four of the sequential evaluation. However, as already discussed, the AU did sufficiently review the evidence, the various weights he assigned to each piece ofevidence, and the reasons behind those weightings. This analysis sufficiently explained the AU's findings at step three of the sequential evaluation. At step four, the AU found that, based on plaintiffs assigned RFC, plaintiffwas unable to perform her past relevant work. (R. at 22.) The AU based his opinion at step four on plaintiff's RFC as he determined it and on the testimony of the vocational expert. The AU's finding at this step is thus adequately explained by the AU's opinion. Because the AU sufficiently explained his findings and rationales at steps three and four, plaintiffs objection on this ground is overruled. Finally, plaintiffobjects to the M&R, arguing that the magistrate judge incorrectly found that plaintiffpresented insufficient documentation showing that fibromyalgia imposed severe functional limitations on her. Plaintiffs arguments to this point seem to proceed under the assumption that the because the AU determined plaintiffs subjective complaints were not fully supported by the 8 objective evidence, the ALl must have been laboring under the notion that plaintiff does not have fibromyalgia. Plaintiff points to several pieces of medical evidence that support plaintiffs contention that she does indeed have fibromyalgia and then asserts that this evidence indicates the ALl's finding that plaintiffs subjective complaints were not entirely credible is not supported by substantial evidence. There is no debate on the record as to whether plaintiffhas fibromyalgia. The ALl expressly concluded that plaintiff does indeed suffer from fibromyalgia at step two of the sequential evaluation. (R. at 17.) The ALl also specifically considered the records highlighted by plaintiff. (See R. at 18-19,21 (discussing February 2005 visit to Henderson Family Care and visits to sleep disorders clinic, specifically noting "alpha-delta sleep present, consistent with a clinical diagnosis offibromyalgia and decreased sleep efficiency").) Plaintiffnow essentially asks this court to re-weigh the evidence and make a new credibility assessment regarding plaintiffs subjective complaints. Such re-weighting ofthe evidence is not the province ofthis court. See Laws v. Celebrezze, 368 F.2d at 642. This court may only consider whether the ALl appropriately applied the correct legal standards and whether substantial evidence exists to support the ALl's findings. Plaintiffs objection here deals with the ALl's assessment of plaintiffs subjective complaints of pain. In determining the credibility of a plaintiffs subjective complaints of pain, an ALl must follow a two step procedure. See Hines v. Barnhart, 453 F.3d 559, 563-64 (4th Cir. 2006); Social Security Ruling 96-7p, 1996 SSR LEXIS 4 (1996). First, an ALl must make a determination whether there is objective medical evidence ofan underlying condition that could reasonably be expected to produce the individual's pain or symptoms. Social Security Ruling 96-7p, 1996 SSR LEXIS 4, *5-*7 (1996). Second, ifsuch objective medical evidence exists, the ALl must evaluate the intensity, persistence 9 and limiting effects of the claimant's symptoms to determine their effect on the claimant's ability to do basic work activities. Id. In performing this evaluation, the AU must consider the following factors: (I) the individual's daily activities; (2) the location, duration, frequency, and intensity ofthe individual's pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Id. The AU in this case followed this two-step procedure. He first concluded that objective medical evidence supported a finding that plaintiff had impairments that could reasonably be expected to produce the pain and symptoms of which plaintiff complained. (R. at 20.) However, he then went on to conclude that plaintiff's complaints were not entirely credible. Review of the AU's analysis indicates that he considered the necessary factors. The AU's opinion specifically discusses plaintiffs activities of daily living, (R. at 21), and her various symptoms. (Id.) He further noted aggravating factors, such as plaintiff's tiring easily from exertion and the side effects of her medications. (R. at 20.) As to medications and treatments, the AU repeatedly noted that plaintiff took 18 different medications, was directed to use a CPAP machine to treat her sleep problems, and that plaintiffself-treated by taking one-to-two hour naps daily. (ld.) Importantly, the AU also noted plaintiffs noncompliance with regard to her use of a CPAP machine to allow her restorative sleep, inconsistency between plaintiff's complaints of incontinence and her failure to seek out treatment for that impairment since 2004, and her diagnosis of depression and failure to seek treatment for 10 depression. (Id. at 21.) The AU sufficiently considered the evidence with regard to plaintiffs subjective complaints of pain. That evidence and the inconsistencies the AU identified between plaintiffs subjective complaints and the objective evidence available were sufficient to permit the AU to find that plaintiffs complaints were not entirely credible under the substantial evidence standard that governs this court's review. As such, plaintiffs objection on this issue must be, and is, overruled. CONCLUSION For the foregoing reasons. the court GRANTS defendant's motion for summary judgment. Plaintiffs objections to the M&R are accordingly OVERRULED, and plaintiffs motion for summary judgment is DENIED. The clerk of court is directed to close the case. SO ORDERED, this thec9)~day of February, 2009. UISE W. FLANAGAN Chief United States District Judge 11

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