Farrior, Jr. v. Astrue, No. 7:2010cv00164 - Document 30 (E.D.N.C. 2011)
Court Description: ORDER denying 19 Motion for Summary Judgment; granting 23 Motion for Judgment on the Pleadings; and, adopting 26 Memorandum and Recommendations.. Signed by Chief Judge Louise Wood Flanagan on 07/26/2011. (Baker, C.)
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Farrior, Jr. v. Astrue Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION NO.7: 1O-CV-164-FL LESLIE JAMES FARRIOR, JR., Plaintiff, v. MICHAEL 1. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ORDER This matter is before the court on plaintiffs motion for summary judgment (DE # 19) and defendant's motion for judgment on the pleadings (DE # 23).' The motions were referred to United States Magistrate Judge Robert B. Jones Jr. for entry of a memorandum and recommendation ("M&R") pursuant to 28 U.S.C. § 636(b)(l). In his M&R, entered June 1,2011 (DE # 26), the magistrate judge recommends the court deny plaintiffs motion and grant defendant's motion. Plaintiff timely objected to the M&R, and defendant responded. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the findings and conclusions of the magistrate judge, and upholds the final decision of the Commissioner. STATEMENT OF THE CASE Plaintiff filed an application for Disability Insurance Benefits ("018") on September 13, 2006, alleging disability beginning June 1, 2006. Plaintiffs claim was denied initially and upon reconsideration. On December 18, 2008, plaintiff appeared before an administrative law judge I Pursuant to this court's order entered October 27, 2010, the parties were to proceed in this action by filing motions for judgment on the pleadings pursuant to Rule l2(c) of the Federal Rules of Civil Procedure. The fact that plaintiff has captioned his motion as one for summary judgment in no way alters the court's analysis. Dockets.Justia.com ("ALl"). Plaintiff was represented by counsel, and a vocational expert ("VE") appeared and testified. On March 11, 2009, the ALJ issued a decision denying plaintiffs application. The Appeals Council denied plaintiffs request for review on June 25, 2009. Accordingly, the ALl's determination following hearing is the final decision of the Commissioner. Plaintiff filed complaint in this court on August 24, 2010, seeking review of the final agency decision denying benefits. Defendant answered on October 26, 2010. Plaintiff filed his motion for summary judgment on December 21, 2010, and defendant filed his motion for judgment on the pleadings on March 23,2011. The matter was referred to the magistrate judge, who concluded that substantial evidence supported the ALl's determination. Plaintifftimely objected to the magistrate judge's analysis on June 16,2011, and defendant timely filed a response. DISCUSSION A. Standard of Review The court has jurisdiction under 42 U.S.c. § 405(g) to review the Commissioner's final decision denying benefits. The court must uphold the factual findings of the ALJ "if they are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence is ... such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). This standard is met by "more than a mere scintilla of evidence but ... less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). To assist it in its review of the Commissioner's denial of benefits, the court may "designate a magistrate judge to conduct hearings ... and to submit ... proposed findings of fact and 2 recommendations for the disposition" of the parties' competing motions. See 28 U.S.c. § 636(b)(1 )(B). The court "shall make a de novo detennination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1)(C). Absent a specific and timely filed objection, the court reviews only for "clear error," and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,200 (4th Cir.1983). After 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 judge." 28 U.S.c. § 636(b)(1 )(C). B. Analysis The ALl's determination of eligibility for Social Security benefits involves a five-step sequential evaluation process, which asks whether: (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a medical impainnent (or combination of impainnents) that are severe; (3) the claimant's medical impairment meets or exceeds the severity of one of the impainnents listed in [the regulations]; (4) the claimant can perfonn her past relevant work; and (5) the claimant can perfonn other specified types of work. Johnson v. Barnhart, 434 F.3d 650, 654 n.l (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200,1203 (4th Cir. 1995). In this case, the ALl determined at step one that plaintiff was no longer engaged In substantial gainful activity. At step two, the ALl determined that plaintiffs degenerative joint disease ofthe left ankle was a severe impainnent; however, the ALl concluded that plaintiffhad no medically detenninable severe back impairment. At step three, the ALl found that plaintiffs impainnent did not meet or medically equal a listed impainnent. Specifically, the ALl referenced 3 Section 1.02, "major dysfunction of a joint," which requires that a claimant be unable to ambulate effectively. The ALl concluded that plaintiff was able to ambulate effectively based upon his testimony at hearing. Prior to proceeding to step four of the analysis, the ALl assessed plaintiff's residual functional capacity ("RFC"). The ALl found that claimant had the RFC to lift and carry ten (l0) pounds frequently and twenty (20) pounds occasionally, and to stand and/or walk two hours and sit six hours in an eight-hour work day. In reaching this conclusion, the AU evaluated plaintiff's credibility regarding the subjective severity of his symptoms and gave "significant" but not "controlling" weight to the opinion of plaintiff's treating physician, Dr. David A. Esposito. Following this determination, at step four, the ALl concluded that plaintiff was unable to return to any past relevant work. But at step five, based on VE testimony, the AU concluded that jobs exist in significant numbers in the national economy that plaintiffcould perform given his age, education, work experience, and RFC. Accordingly, the ALl determined that plaintiff was not disabled. In his motion for summary judgment, plaintiff contends that the ALl erred by (l) failing to follow the "treating physician" rule, (2) failing to properly evaluate plaintiff's credibility, and (3) relying on flawed VE testimony. The magistrate judge, in his lengthy and thoughtful M&R, concluded that each of these arguments was without merit. Plaintiff's objections challenge the magistrate judge's conclusions as to all three grounds raised in the summary judgment motion. 1. The Opinion of Plaintiff's Treating Physician The opinion of a treating physician is "entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.2001) 4 (citing 20 C.F.R. § 416.927). However, if the treating physician's opinion is not supported by clinical evidence or is inconsistent with other "substantial evidence" of record, the ALl has the discretion to give the opinion "significantly less weight" due to the "persuasive contrary evidence." kl (citing Craig, 76 F.3d at 590; Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). If the ALl does not afford a treating physician's opinion controlling weight, he must consider (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the relevant evidence supporting the opinion, (4) consistency with the record as a whole, and (5) whether the physician is a specialist. See 20 C.F.R. § 404. 1527(d). The AU must give "good reasons" for the weight given a treating physician's opinion. Id. Here, the AU gave Dr. Esposito's opinion great weight, but declined to give controlling weight to Dr. Esposito's statements that plaintiff "is unable to stand" due to his left ankle degenerative joint disease, and that "the only job that he could do would be sitting and the ankle would have to be elevated above the heart." See Tr. 241. The AU noted that the treatment records did not support such limitations, and that plaintiff engaged in a number of activities that required standing, walking, and/or not having his foot not elevated. Accordingly, although the AU determined that Dr. Esposito's opinion that plaintiff can only perform work that allows sitting at the sedentary exertional level (i. e., sitting six hours in an eight hour day) was persuasive, he declined to impose the additional restrictions of no standing and elevating plaintiffs left ankle. After a thorough review of the record, the magistrate judge concluded that substantial evidence supported the ALl's decision to afford great but not controlling weight to Dr. Esposito's opinion. Specifically, the magistrate judge noted that Dr. Esposito did not reference medical findings in his opinion and that a requirement that plaintiff keep his left leg elevated above his heart 5 is not supported in the treatment records. The magistrate judge further noted that plaintiff shearing testimony established that he drove a standard transmission truck "at some point," is able to drive an automatic transmission "real good," spends the majority of his days watching television, occasionally cooks or does dishes, and can stand for "ten good minutes." In his objections to the magistrate judge's recommendation, plaintiff argues that his testimony indicated that he could no longer drive a standard transmission truck, that daily life activities of cooking and doing dishes are not inconsistent with an inability to stand in a work environment, and that Dr. Esposito's opinion was supported by clinical evidence. Relying on Brownawell v. Astrue, 554 F.3d 352 (3d Cir. 2008), Leckenby v. Astrue, 487 F.3d 626 (8th Cir. 2007), and Om v. Astrue, 495 F.3d 625 (9th Cir. 2007), plaintiff further argues that the magistrate judge improperly imposed a requirement that the specific limitation imposed by plaintiffs treating physician appear in his treatment records. Upon de novo review, the court is compelled to reject plaintiffs objections and agree with the magistrate judge that the ALl properly weighed Dr. Esposito's opinion. Even if plaintiff is unable to drive a standard transmission truck, the ALl was permitted to conclude that Dr. Esposito's opinion that plaintiff is "unable to stand" and must keep his leg elevated above his heart was inconsistent with plaintiffs testimony that he could stand for ten minutes at a time, is able to cook and wash dishes, and is able to drive a vehicle with an automatic transmission. See Mastro, 270 F.3d at 178. Furthermore, despite plaintiffs interpretation of the out-of-circuit cases he cites, the court agrees with the magistrate judge that an ALl is permitted to ascribe a treating physician's opinion less weight where the physician's treatment records fail to corroborate his opinion. See Montgomery v. Chater, 107 F.3d 866, 1997 WL 76937, at *1 6 (4th Cir. Feb. 25, 1997) (unpublished table decision); Cooper v. Chater, 108 F.3d 1371, 1997 WL 68252, at *1-2 (4th Cir. Feb. 19, 1997) (unpublished table decision); Miller v. Chater, 91 F.3d 132, 1996 WL 389481, at *5 (4th Cir. July 12, 1996) (unpublished table decision); see also 20 C.F.R. § 404.1527(d)(3) (noting that a physician's opinion is entitled to greater weight ifthe physician presents relevant evidence in support of his opinion).2 2. The ALl's Credibility Determination An AU employs a two-step process in evaluating the intensity, persistence, and limiting effects of symptoms on a claimant's ability to perform basic work. See Craig, 76 F.3d at 594; SSR 96-7p, 1996 WL 374186 at *2 (July 2, 1996). "First, the AU must determine whether medically determinable mental or physical impairments can produce the symptoms alleged. Second, the AU must evaluate the claimant's testimony about his subjective experiences." Fisher v. Barnhart, 181 F. App'x 359. 363 (4th Cir. 2006) (unpublished) (citing Craig, 76 F.3d at 591-96). The AU must consider the entire record in making this determination, and may not discredit a claimant's testimony regarding the intensity and persistence of her symptoms solely because the objective medical evidence does not substantiate that testimony. See 20 C.F.R. § 404. I529(c); SSR 96-7p, 1996 WL 374186 at *4. "The reasons for the [ALl's] credibility finding must be grounded in the evidence and articulated in the determination or decision." ld. At the first step of the credibility determination, the ALJ concluded that plaintiffs degenerative joint disease could reasonably be expected to produce pain and other symptoms. But 2 An unpublished Fourth Circuit opinion, like the published cases from the Third, Eighth, and Ninth Circuits cited by plaintiff, is not binding on this court. See Va. Soc'y for Human Life. Inc. v. Fed. Election Comm 'n. 263 F.3d 379. 394 (4th Cir. 200 1) ("[D]ecisions in one circuit are not binding on district courts in another circuit."); United States v. Ruhe. 191 FJd 376. 392 (4th Cir. 1999) ("Unpublished opinions are not binding precedent in this circuit."). Nevertheless, the reasoning of Montgomery, Cooper, and Miller is persuasive in light of the facts of this case and the relevant Social Security regulations regarding opinions of treating physicians. 7 at the second step, the ALl concluded that plaintiff s allegations regarding the frequency and severity of these symptoms were inconsistent with his testimony regarding his daily activities, his choice to continue with cortisone injections rather than surgery, his use of over-the-counter as opposed to prescription pain medications, and the fact that the treatment records do not suggest functional limitations or other restrictions. The magistrate judge recommends the court uphold the ALl's conclusion, which is based on the substantial evidence cited above. Plaintiffs first objection to the magistrate judge's resolution of his challenge to the ALl's credibility determination deals with the ALl's reliance on a lack of support within the treatment records for plaintiffs alleged limitations. The court has already addressed this argument with respect to the weight given to plaintiffs treating physician, and it is similarly without merit here. Although the ALl may not rely solely on the lack of objective medical evidence supporting a claimant's subjective complaints in rejecting the severity of those complaints, the lack of such support in the treatment records is an important factor to be considered. See Craig, 76 F.3d at 59697 (citing 20 C.F.R. § I 529(c)(4) and noting that objective medical evidence, including a claimant's medical history, is "crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs [his] ability to work"). Plaintiffs second objection involves the magistrate judge's agreement with the ALl that a claimant's election of more conservative treatment is a factor tending to show that the claimant's subjective complaints are not fully credible. Plaintiff argues that Social Security Ruling 82-59 "dictates that a claimant's refusal to undergo surgery after a prior surgery was unsuccessful cannot be held against the claimant." See Obj. 4. But the ruling cited by plaintiff pertains only to those cases where "[a]n individual who would otherwise be found to be under a disability, but who fails 8 without justifiable cause to follow treatment prescribed by a treating source which ... can be expected to restore an individual's ability to work ...." SSR 82-59, 1982 WL 31384 at * 1 (1982). The ruling does not prohibit an ALl from considering a claimant's election of more conservative treatment when assessing his credibility regarding the severity of his symptoms. See Copper v. Astrue, No. PWG-08-2621, 2010 WL 3294691, at *3 (D. Md. Aug. 19,2010); see also Simila v. Astrue, 573 F.3d 503, 519 (7th Cir. 2009) (holding that an AU can consider whether conservative treatment is inconsistent with a claimant's subjective complaints because "the regulations expressly permit the ALl to consider a claimant's treatment history"V In addition to the lack of support for the severity of plaintiff s complaints in the treatment record and plaintiffs choice to continue receiving more conservative treatments such as cortisone shots and over-the-counter pain medication to control his symptoms, the court agrees with the magistrate judge and the ALl that plaintiffs testimony regarding his daily activities could support an adverse credibility determination. For this reason, upon de novo review ofthe magistrate judge's analysis, the court concludes that the ALl did not err in evaluating plaintiffs subjective description of his symptoms and limitations. 3. The ALl's Questioning of the Vocational Expert Plaintiffs objection to the magistrate judge's analysis of the AU's questioning of the VE is raised in a footnote on the final page of his objections. He argues that because "the ALl failed to properly determine [plaintiffs] RFC based upon a misapplication of the treating physician rule and J At least one court has noted that "although conservative treatment can undennine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant's credibility where the claimant has a good reasonfor not seeking more aggressive treatment." See Cannickle v. Commissioner, 533 F.3d 1155, 1162 (9th Cir. 2008) (emphasis added). That court did not rely on SSR 82-59, however, in reaching its decision. More importantly, it does not appear that plaintiff gave a "good reason" (or any reason) to the AU for his choice to forego surgery and continue to receive sporadic cortisone shots. Plaintiffs contention that he thought additional surgery would not be helpful because a previous surgery was not fully successful appears to have been raised for the first time before this court. 9 misapplied the appropriate credibility standard," reliance on the VE's answers to hypothetical questions based on this RFC was necessarily error. See Obj. 5 n.l. Because the ALl did not err in assigning the opinion of plaintiff s treating physician "great" rather than "controlling" weight, nor did he err by finding plaintiffs complaints not fully credible in light of the other evidence in the record, the court is compelled likewise to reject plaintiff s derivative claim of error in relying on the VE's testimony based on the ALl's RFC finding. CONCLUSION For the foregoing reasons, upon de novo review of those portions of the magistrate judge's M&R to which specific objections have been filed, and after a careful review of those portions to which no objection was made, the court ADOPTS the findings and recommendations of the magistrate judge (DE # 26) as its own. Plaintiffs motion for summary judgment (DE # 19) is DENIED, and defendant's motion for judgment on the pleadings (DE # 23) is GRANTED. The final decision of the Commissioner is upheld. The Clerk is directed to close this case. SO ORDERED, this the02lO" day of July, 2011. ISE . FLANAGAN Chief United States District Judge 10
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