MILLER v. COLVIN, No. 1:2014cv00948 - Document 15 (M.D.N.C. 2016)

Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 02/03/2016. After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is suppor ted by substantial evidence and was reached based upon a correct application of the relevant law. Accordingly, this Court RECOMMENDS that Plaintiff's Motion for Summary Judgment (Docket Entry 8 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be GRANTED, and that the final decision of the Commissioner be upheld.(Taylor, Abby)

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MILLER v. COLVIN Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DONNA C. MILLER, ) ) ) ) ) ) Plaintiff, V CAROLYN Tø. COLVIN, Acting Commissioner of Social Secutity, 1.:1,4CY948 ) ) ) Defendant. ) MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Donna C. Miller, brought this action pursuant to 42 U.S.C. $$ a05(g) and 1383(c)(3) to obtain judicial review of a îtnal decision of Defendant, the Commissionet of Social Secudty, denying her claim for Disability Insurance Benefits the Social Security Act ("the ("DIB") undet Title II of Act"). Plaintiff has filed a motion fot summary judgment (Docket Ent y 8) and Defendant has filed a motion for judgment on the pleadings (Docket Entry 11). The Court has before it the cetified administtative tecotd. For reasons discussed below, it is recommended that the Commissioner's decision be affìrmed, that Plaintiffs motion for summary fudgment be denied, and that Defendant's motion fot judgment on the pleadings be granted. 1, Dockets.Justia.com PROCEDURAL HISTORY Plaintiff applied for DIB on or about February of Jantary 31, reconsideration. 2008. Gt 1,34-35.)1 Her (Ir. 1.,201.1., alleging a disability onset date application was denied initially and upon 87, 1,02-06.) Thereaftet, Plaintrff tequested aheaÃng de novo before an Administative LawJudge and a vocational expert ("N-|). Qr.35-72.) ("VE") Plaintifl het attotney, a medical expert appeared at the heating on Match 1,2, 201.3. (It. 35.) A decision was issued on July 22, 2013, upholding the denial of PlaintifPs application fot DIB. Qt.21,-34.) O" December 9,2009, the Appeals Council denied Plaintiffs request fot review of the decision, thereby making the ALJ's detetmination the Defendant's final decision fot purposes of ¡udicial teview. (Ir. 1-3.) II. STANDARD OF RE\rIEW The Commissioner held that Plaintiff was not disabled within the meaning of the Act. Under 42U.5.C. $ 405(9), the scope of judicial teview of the Commissionet's fìnal decision is specifìc and narow. Srnitlt u. Scltweiker, T95 F.2d 343, 345 (4th Cir. 1986). This Coutt's teview of that decision is limited to determining whethet thete is substantial evidence in the recotd to suppott the Commissioner's decision. 42U.5.C, $ a05(g); Hanter F.2d 31,, 34 (4th Cir. 1,992) þer curiam), 404.1,517 søþerseded u. Salliuan,993 in nonreleuarct part þt 20 C.F.R. S (d)Q); Hay u. Sulliuan, 907 F.2d 1453, 1,456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support conclusion." Hønter, 993 F.2d at 34 (cäng a Nchardson u. Perales,402 U.S. 389, 401. (1971). 1 Transcrþt citations refer to the administtative tecotd. 2 "[t] consists of more than a mere scintilla but may be somewhat less than a ptepondetaflce." Id. (qli.ottng l-aws u. Celebreçe, 368 F.2d 640, 642 (4th Cir. 1966))- The Commissioner must make findings HoJt,907 F.2d ^t of 1,456 (citing King u. Califuno, 599 fact and resolve conflicts in the evidence. F.2d 597 , 599 (4th Cit. 1,979)). The Coutt does not conduct a de novo review of the evidence ot the Commissioner's findings. Schweiker, 795F.2d at345. In reviewing for substantial evidence, the Court does not undetake to reweigh conflicting evidence, to make credibility determinations, ot to substitute its iudgment for that of the Commissioner. Craig u. Chater, 7 6 F.3d 585, 589 (4th Cir. 907 F.2d ^t 1,996) (citing Ha1s, 1,456). "Where conflicting evidence allows reasonable minds to diffet as to whethet a claknantis disabled, the responsibility for that decision falls on the fCommissioner] (ot the [Commissioner's] designate, the AIJ)." Craigl6F.3d at 589 (quoting lYalkeru. 834 F.2d 635, 640 (7th Cir. 1987)). The denial Bowen, of benefits will be teversed only if reasonable mind could accept the tecotd as adequate to suppott the detetmination. no See Pera/es, 402 U.S. at 401,. The issue befote the Court, therefote, is not whethet Plaintiff is disabled, but whethet the Commissionet's fìnding that Plaintiff is not disabled is suppotted by substantial evidence and was reached based upon See ^ corcect application of the televant law. id.; Cofman u. Bowen,829 tr.2d 5L4,5L7 (4th Cit. 1987). III. THE ALJ'S DISCUSSION The Social Security Regulations defìne "disability" fot the purpose of obtaining disability benefits as the "inabthty to do any substantial gainful activity by reason of J any medically determinable physical or mental impaitment2 which can be expected to result in death or which has lasted or c 12 months." 20 C.F.R. rL be expected to last fot a continuous pedod of not less than S 404.1505 (a); see also 42 U.S.C. SS 423(dX1)(A), 1'382c(a)(3)(A). To meet this definition, a claimant must have a sevete impairment which makes it impossible to do previous work or aîy othet substantial gainful activity3 that exists in the national economy. 20 C.F'.R S 404.1505 (a); see also A. 42 U.S.C. SS 423(dX2)(A), 1382c(a)(3)@). The Five-Step Sequential Analysis The Commissionet follows a five-step sequential analysis to ascertain whethet the claimant is disabled, which is set fotth Comrn'r of Soa Sec. in 20 C.F.R. SS 404.1520, 41,6.920. See Albri¿ht u. Admiru.,174F.3d 473,475 n.2 (4th Cit. 1,999). The ALJ must determine in sequence: (1) \iflhethet the claimant is engaged in substantial gainful activity claimant is Q) wotking). If inquþ whether the not disabled and the inquiry ends. \Jflhethet the claimant has a sevete impairment. disabled and the (3) so, the claimant is Q.a., If not, then the claimant is not ends. \)Øhether the impaitment meets ot equals to medical ctitetia of 20 C.F.R., Pan 404, Subpatt P, Appendix 1, which sets fotth a list of impafuments thatwanant a 2 A "physical or mental impairmenC' is an impairment resulting ftom "aîatomical, physiological, or psychological abnormalities which ate demonsftable by medically acceptable clinical and labotatory diagnostic techniques." 42 U.S.C. $S 423(dX3), 1382c(a)(3)(D). 3 "substantial gainfuI a;ctrvjtty" is work that (1) involves performing signifrcant ot ptoductive physical ormentaldud.es, andQ) is done (orintended) fot¡aV orprofit. 20 C.tr.R. SS 404.1510,41,6.91,0. finding of disabiìity without consideting vocational criterta. If so, the claknant is disabled and the inquiry is halted. ìØhethet the impairment prevents the claimant ftom performing past televant (4) wotk. If not, the claimant is not disabled and the inquity is halted. !Øhether the claimant is able to perfotm any othet wotk considering both her (s) residual functionai capacitya and her vocational abilities. If so, the claimant is not disabled. 20 c.F.R. SS 404.1520,416.920 In rendering his disability determination, the ALJ made the following findings latet adopted by the Defendant: 1,. The claimant meets the insuted Act through December status tequirements of the Social Secutity 31.,201,3. 2. The claimant has not engaged in substantial gainful activity since January 31.,2008, the alleged onset date Q0 CFR 404.1571. et :eq.). 3. The claimant has the following severe impaitments: major deptessive disorder, chtonic, modetate to severe; dissociative disotder with dep ets o nahzatton and deteali zaion p a henomena; p s eudo s eizure; dep endent "Residual functional capacity" ("RFC") is the most a claima¡t can do in a work setting despite the physical and mental limitations of her impairment and any telated symptom (e.9., pan). See 20 C.F.R. RFC SS 404.1545(")(1), a1,6.9a5@)(1); see also Hines u Barnltart,453 F.3d 559,562 (4th Cir. 2006). The to do includes both a "physical exertional or sttength limitation" tlrat assesses the claimant's "ability sedentary, light, medium, heavy, or very heavy work," as well as "nonexertional limitations (mental, sensoly or skin impairments)." Ha// a. Harris,658 tr.2d 260,265 (4th Cir. 1981). 5 histtionic traits; botdetline versus low avetage intellectual functioning; hypertension; and degenetative changes at C5-C6 (20 CFR a0al,520(c)). 4. The claimant does not have an impairment or combination of impaitments that meets ot medically equals one of the listed impairments in 20 CFR Patt404, SubpartP, ,\ppendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1,526). 5. Aftet careful considetation of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in20 CFR 404.1567(c) except fot lift no mote than 50 pounds occasionally,lift and carry 25 pounds ftequendy, and occasional climbing of laddets, ropes, and scaffolds. Mentally, she requires L ot 2-step tasks in a low stress iob with only occasional decision making required, only occasional changes in the wotk place setting, no ptoduction, r.ate or pace wotk, only occasional intetaction with the pubìic, occasional intetaction with co-workets with no tandem tasks, and wotk is to be isolated with only occasional supervision. Qr23-26.) In light of the above findings regatding Plaintiffs RFC, the AIJ determined that Plaintiff was unable to perform het past relevant work. Çr.32.) The AIJ also found that Plaintif( who was 51 years old at the time of the decision, met the definition of "advanced age;' Id. (cittng2O C.F.R. S 404.1563). Finally, was not an issue communicate the AIJ noted that tansferability of job skills in the case, and added that Plaintiff has a limited education and can in English. (It. 33.) Based on these factors, PlaintifPs RFC, and the VE's testimony, the AIJ concluded that "there are jobs that exist in significant national economy that the claimant can petfotm." Id. (cäng 20 C.F.R. 6 numbets in the SS 404.1569 and 40a.1,569(a).) Accordingly, the AIJ decided that Plaintiff was not under a "disabilitI," defined in the Act, from her alleged onset date thtough the date of the decision. as Çr 34.) IV. ANALYSIS Plaintiff contends that the Commissionet ered in determining that she was not disabled for pwposes of the Act. pocket Entry 9). In conclusory fashion, Plaintiff taises the following five arguments: (1) the ALJ etted in tejecting the medical opinions of Plaintiffs pflmzlry physician; (2) the ALJ ered in evaluating PlaintifPs subjective complaints of fatigue, anxiety, extreme memory loss, and inability to concenttate; (3) the ALJ failed het buden of establishing that there was other work in the economy that Plaintiff can perfotm; (a) the ALJ ered in faiìing to request input from a psychiattist as the ALJ observed was necessa{y; and (5) the AIJ's conclusion is not supponed by substantial evidence. As explained below, the undersigned concludes that the ALJ ptopedy evaluated the objective and subjective evidence, and her decision is supported by substantial evidence and was reached based upon a cotect application of the relevant law. A. Opinion Evidence Plaintiff states, without further argument, that the ALJ ptovided "no explanation whatsoever for her tejection of the opinions and assessments of fPlaintiffs] primary tteating physician Dr. Hassan at Uwharrie Medical Center and Dr. Satet at Cornerstone Medical Center." (Docket E.rt y 9 at 2) If a treating soutce's medical opinion is "well-suppotted and not inconsistent with the other substantial evidence in the case record, controlling weight[.]" SSR 96-2p,1996 WL 3741'88 fluly 2,7996); 7 it must be given see also 20 C.F.R' S 404.1527 (d)(2) þroviding that the treating soutce's opinion will be given conttolling weight if well-suppoted by medically-acceptable clinical andlaboratory diagnostic techniques and not in the tecord); inconsistent with othet substantial evidence Craig 7 6 F3d at 590. The Commissioner typically affords greater weight to the opinion of a clatmant's tteating medical sources because such sources are best able to provide "a detailed longitudinal picture" claimant's alleged disability. See of a 20 C.F.R. S 404.1,527 GX2). However, a tteattng physician's opinion is not due controlling weight when "it is not supponed by clinical evidence ot if it is inconsistent with other substantial evidence." Cmig 7 6 F.3d at weigh medical opinions pursuant to the following nonexclusive 590. "Coutts list: evaluate and (1) whether the physician has examined the applicant, (2) the treatment telationship between the physician and the applicant, (3) the suppotability of the physician's opinion, (4) the consistency of the opinion with the tecord, and (5) whethet the physician is a specialist." 650, 654 (4th Cir. 2005); 20 C.F.R. S 404.1527(d). Johnson u. Bamhart, 434 F.3d ",\n AIJ's decision not to afford controlling weight to a tteattne physician's opinion must be supported by substantial evidence in the record." Dyda u. Coluin,47 F. Srrpp. 3d 318, 324 M.D.N.C. 2014) (citing ll/inþrd u. Chater,9IT F. Srrpp. 398, 401) (E.D.Va. 1996)). Hete, there is limited documentation of Dt. Sami Hassan's tteatment of Plaintiff. Gt 326, 371,-73.) These documents reflect treatment notes fuom 4 office visits from May 1.2, 2010 through Decembet 2,201,1,. Qr.326,371-73.) The Coutt does not ascertain, not has Plaintiff made aware, any explicit language in the notes which tendets a "medical opinion." See 20 C.F.R. S 41,6.927 ("Medical opinions are sttements ftom physicians and psychologists 8 or other acceptable medical sources that reflect judgments about the nature and sevetity of [the claimant's] impairment(s), including [the claimant's] symptoms . . . what fthe claimant's] can still do despite impairment(s), and [the claimant's] physical ot mental testrictions."). In reviewing those notes, the deptession. Qr. Sater 27 AIJ noted in her decision that Plaintiff teceived medication for .) At the tequest of Dr. Flassan, Plaintiff was teferred to Dr. Richatd fot a neurological consultation on or about June 20,201,2. Çl375-77.) Dr. Sater perfotmed an examination and concluded that Plaintiff had some neck and back tenderness, but good tange of motion. Qr. 377.) He concluded that Plaintiff was alert with fluent speech, that het extraoculat muscles were intact, her limbs, muscle bulk, tone and strength were notmal, deep tendon teflexes were normal, and plantar. responses were summaty, Dt. Satet indicated that Plaintiff deals flexor. Qd.) In with "fatigue, subjective cognitive decline, joint and muscle aches, and insomnia;" however, he "feel[s] the chance that fPlainldlff] may have multiple sclerosis is less than 1,0o/o." (Id.) He furthet stated that PlaintifPs "pain, combined with insomtia and subjective memory concerns are consistent with a diagnosis for fibtomyaþia" assessment ^nd mild deptession. (Id.) The AIJ tefetenced Dr. Sater's evaluation in het of Plaintiffs RFC. Qt.29-30.) In considedng acttal medical source statements by non-treating physicians (which wete given gteat weight), the ALJ repeatedly indicated that the evaluations ftom the non-tteating physicians were consistent with medical evidence and notes from Plaintiffs treating physicians. Qr. 31,-32.) Fot example, Dr. Carlo Yuson, a consultative examinet, felt that Plaintiff did not have multiple sclerosis, but "more likely is suffedng ftom an underþing deptession with some somatfzatTon." 9 (Ir. 340.) Although Plaintiff received medication for deptession, she had not sought mental health treatment' Thus, a consultative examination was done in June concluded that Plainti ff 201.1., which Dr. Gtegory A. Villatosa may have "some difficulty with wotk-related activities," she has gotten along with othets in work settings in the past, has the ability to follow directions, has the ability to maintain focus with tasks at a somewhat slowet pace, and that she may have difficuities with ptessures of day-to-day work activities. Qr 35a.) Anothet consultative examinet's opinion was given great weight by the AIJ, and likewise consistent with PlaintifFs ffeating physicians. Qr 31.-32; 41,2-1.3.) Fout state agency opinions wete also given significant weight which wete also supported by the medical evidence in the tecotd. Qr. 31.-32;73-86; 8S-101.) The Court concludes the ALJ evaluated all of the medical opinions of the recotd, giving appropriate weight to each. Thus, PlaintifPs argument is without medt. B. PlaintifPs Credibility Platnlff ALJ failed to ptopetly evaluate Plaintiffs subjective complaints. argues that the (Docket Entry 9 at2.) The Fourth Circuit Court of Appeals has adopted a nvo-step process by which the ALJ must weigh the credibility of a claimant's personal statements in the disability determination process. The frst step requires the ALJ to detetmine if thete is "objective medical evidence showing the existence of a medical impairment which could reasonably be expected to produce the actual pain, Craig 76 F.3d ^t 594. The in the amount and degree, alleged by the claknant." second step tequites an evaluation of subjective evidence, considering claimant's "statements about the intensity, petsistence, and limiting effects of fclaimant's] symptoms." Id. at 595 (citing 20 C.F.R. SS 416.929(c)(4) and a0aJ'529(c)@.) 10 "The ALJ must consider the following: (1) a claimant's testimony and other statements concerning pain or othet subjective complaints Q) clatmant's medical history and laboratory findings; Q) u"y objective medical evidence of pain; and (4) any othet evidence televant to the severity of the impairment." Grwbþt u. Astrae, No. 1:09CY364,2010 WL 5553677, at*3 flX/.D.N.C. Nov. L8,201,0) (citing Craig76F.3dat595;20 C.F.R. $ a04.1529(c). "Othet evidence" refers to factors such as claimant's daily activities, duration and ftequency of pain, tretment other than medication received for telief of symptoms, and any othet measures used to telieve claimant's alleged pain. Id. A review of the tecord PlaintifPs credibility. indicates that the ALJ did not error !7ith tegards to Step 1, the ALJ concluded that "the medically determinable impairments could teasonably be expected symptoms." in het evaluation of to cause Çr 27.) At step two, the ALJ determined that "the claimant's claimant's the alleged statements concerning the intensity, petsistence and limiting effects of these symptoms are not entirely credible fot the reasons explained in this decision."s (Id.) The ALJ concluded that Plaintiffs medical impairments would likely produce some pain, "but not to the extent alleged." 30.) For example, Plaintiff testified that she relied upon her husband Gt to help her get out of bed and that she is constantly tired and weak so she is on the couch most of the day Qr. 4344), but she told Dr. Villarosa that, onatypicalday, she cates fot het dogs, makes the bed, watches television, and sometimes water the flowets. (Tr. 353.) She also cooks twice a week, The Coutt notes that the language used by the AIJ is diffetent ftom the objectionable boilelplate language regarding credibility that is at issue tn Mascio u. Coluin,780 F.3d 632,639 (4th Cir. 201'5). 5 1.1 goes out to eat three times a month, and uses het also indicated that she had pool a couple times a week. (Id.) Plaintiff to "hold everything trylng to get thtough the house," (Tt. 44),b,lt during the psychiatric consultation, Plaintiff "exhibited notmal gaít, [with] "unusual movements." Çr. a}a.) As fot PlaintifPs deptession, she tequested medication, but sought any mental health treatment. Çt. 55,372.) has not "Because [she] had the oppottunity to observe the demeanor and to detetmine the credibiJity of the clumant, the ALJ's observations concerning these questions ^re to be given gteat weight." Shiueþ u. Heck/er,739 F.2d987,989 (4th Cit. 1984) (citing þler u. Il/einberger,409 F. S,rpp. 776 F,.D. Ya. 1,976)). In making her credibility detetminations, the ALJ in the ptesent case assessed all evidence and noted specific inconsistencies with PlaintifPs complaints of disabling symptoms and limitations, and the medical evidence presented that wauanted discrediting the PlaintifPs testimony. The ALJ's credibility determination is sufficient based upon the evidence of tecotd. Thus, this atgument is without metit. C. The ALJ's Step-Five Analysis Plaintiff argues that the ALJ failed to meet her burden of establishing that there were othet jobs in the national economy that Plaintiff could petfotm. (Docket Etrtty 9 at2.) The Commissioner contends that the hypothetical question presented to the vocational expert at the hearing "accutately porrayed Plaintiffs limitations." (Docket E.ttry 'l.,2 at 1,3.) The undetsigned agrees. At step five, the Commissioner has the "butden of ptoviding evidence of a significant numbet of jobs in the national economy that a claimant could 1,2 petfotm." IN/al/: u. Barnhart, 296 F.3d 287,290 (4th Cir. 2002) (citing Powers u. Apfel, 201 F.3d 431,, 436 (7th Cit.2000)). Hete, the ALJ relied upon the VE testimony to detetmine whether there ate othet jobs in the national economy which Plaintiff could perform. "In otder for avocattonal expett's opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record." Wal/eer u. Boweru, 889 F.2d 47, 50 (4th Cir. 1939). The ALJ posed a hypothetical question to the VE as to whethet an individual like Plaintiff of the same age, educational level, wotk expedence, and RFC limitations could find employment in the national economy. (Tt 63-69.) The VE testified that jobs such existed as a material handler, a kitchen helpet, and a cleanet in the national economy which Plaintiff could petform. (Tt. 69.) The AIJ determined that the VE's testimony was consistent with the Dictionary of Occupational Titles and ultimately concluded that Plaintiff is "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Ir. 33-34.) Having considered the evidence of the record, the Coutt concludes that substantial evidence supports the AIJ's conclusion at this step. Plaintiffs conclusory statement that the,\LJ failed to meet her burden at step five of the sequential evaluation process is without merit. D. Psychiatrist Records Plaintiff also argues that the ALJ "etted in failing to request input from as a Psychiatrist the [ALJ] observed was necessary." (Docket Entty 9 at2.) This atgument also lacks medt. At the conclusion of the hearing, the ALJ stated that he would "geta psychiattist to teview fPlaintiffs] record and offer an opinion." Qr.71,.) The AIJ left the record open and delayed his decision until there was "futthet input frorr' a 13 psychiattist." (Id.) On Apdl 17 ,201.3,Dt. Richatd L. Spencet conducted a consultative psychiatric evaluation and submitted an opinion. Qr 404-1,4.) The AIJ explicitly noted this in het decision. Qr. 27-28.) Therefote, Plaintiffs argument lacks medt. E. Substantial Evidence Lastly, to the extent Plaintiff substantial evidence, this atgument argues that the ALJ's decision is not fails. In het decision, the ALJ stated that based upon she consideted the entire medical evidence of tecotd in teaching het conclusion as to PlaintifPs disabiJity status. Çt23.) The ALJ concluded that PlaintifPs RFC "which limits fPlaintiffl to medium wotk with mental limitations[,] mote than adequately accounts fot þet] impairments." Gt. 32.) The ALJ's conclusion that Plaintiff could petfotm medium wotk subject to sevetal physical and mental limitations is consistent with the medical evidence and is supported by evidence which Johnson, 434 "a reasor'table mind might accept as adequate to supp ort a conclusion." F3d at 653 (quoting C*tg,76 F.3d at 589). The ALJ's decision that Plaintiff could perfotm other jobs in the national economy is also suppoted by substantial evidence. Thetefote, tevetsal is not wartanted on this basis. V. CONCLUSION Aftet a carcfvl considetation of the evidence of record, the Court fìnds that the Commissionet's decision is supported by substantial evidence and was reached based upon coffect application of the televant a law. Accotdingly, this Coutt RECOMMENDS that PlaintifPs Motion fot Summary Judgment (Docket Entry 8) be 14 DENIED, that Defendant's Motion forJudgment on the Pleadings (Docket Entry 11) be GRANTED, and that the final decision of the Commissionet be upheld. February Jo" Uni &rotu Dwham, Notth Carobna 15 States Magisttate Judge

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