COX v. COLVIN, No. 1:2015cv00652 - Document 14 (M.D.N.C. 2016)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/25/2016, that the Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 10 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be GRANTED, and that the final decision of the Commissioner be upheld.(Taylor, Abby)
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COX v. COLVIN Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA JEFFREY D. COX, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) l:15CY652 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE Plaintiff,Jeffrey D. Cox, brought this action to obtain judicial review of a ftnal decision of the Commissioner of Social Security denying his claims for insurance benefìts a period of disability, disability ("DIB") and Supplemental Security Income ("SSI") under Titles II XVI of the Social Security r\ct ("the Act"). The Coutt has before and it the certifìed administrative record and cross-motions for ¡udgment (Docket Entries 7,1,0,12). tror the reasons set forth below, the Coutt recommends that Defendant's motion (Docket Entry 12) be granted and Plaintifls motion (Docket E.rtry 10) be denied, and that the Commissioner's decision be affìrmed. I. PROCEDURAL HISTORY Plaintiff filed an application for DIB and SSI in May date ofJuly 1,201,0 (Tr. 175-86.)t 201,2, alleging a disability onset At the hearing Plaintiff was allowed to amend his disability i Transcript citations refer to the administrative record which was filed with Defendant's ,\nswer. (Docket Entry 7.) Dockets.Justia.com onset date to May 2, 201,2. (ft. 31.) The application was denied initially and again upon reconsideration. (Tt. 76-77, 105-06.) Plaintiff then requested a hearing before an dministtative LawJudge ("ALJ"). (Tr. 1,40-41,.) Present atthe hearing were the,\LJ, Plaintiff and his attorney. Qr. 26-50.) O. May 9,201.4, the ,A.LJ determined in a written decision that Plaintiff was not disabled under the ,{,ct. Qr. 9-25.) The Appeals Council denied Plaiqtiffs request for review, making the A,LJ's determination the Commissioner's final decision for purposes of review. (Tr. 1-6.) II. THE STANDARD FOR REVIEW The Commissionet held that Plaintiff was not under a disability within the meaning of the ,{.ct. Under 42 U.5.C. S 405G), the scope of judicial review of the Commissioner's fìnal decision is specifìc and narow. Smith u. Sthweiker,795 tr.2d 343,345 (4th Cir. 1986). This Court's teview of that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. $ a05G); Hanter u. Salliuan, 993 tr.2d 31,, 34 (4th Cir. 1992); Ha1: u. Salliuan, 907 tr.2d 't453, 1,456 (4th Cir. 1990). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to supportaconclusion."' Flanter,993tr.2dat34 (citing Richørd¡onu. Perales,402U.5.389,4fJ1. (197'I)). "[It] 'consists of more thana mere scintilla of evidence but may be somewhat less than a prepondetance."' 1/. (quoting l-,ctwt u. Celebrerye, 368 tr.2d 640, 642 (4th Cir. 1966)). The denial of benefits will be reversed only adequate if no reasoriable mind could accept to support the determination. Nchardnn,402 U.S. ^t the record as 401.. The issue before the Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding 2 that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Cofnan u. Bowen,829 F.2d 51,4, 517 (4th Cir. 1987). Thus, "la] claimant fot disability benefits bears the burden of proving a disability," Ha// u. Hari4 658 F.2d 260, 264 (4th Cit. 1981), and in this context, "disability" means "'inability to engage in any substantial gainful activity by reason of the any medically detetminable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 monthsLl"' Id.(quoting 42 U.S.C. 5$ 423(dX1)(A). Administration has "To regularize promulgated the adjudicative process, the Social . . . detailed regulations incorporating Securiry longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and work experience in addition to fthe claimant's] medical condition." //. "These regulations establish a 'sequential evaluation process' to determine whether a claimant is disabled." Id. (internal citations omitted). This sequential evaluation process ("SEP") has up to five steps: "The claimant (1) must not be engaged in 'substantial gainful activity,' i.e., curcently working; and (2) must have a 'severe' impairment that (3) meets ot exceeds the 'listings' of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacrty ("RFC") to (4) perform fthe claimant's] past work or (5) any other work." Albright Comm'r of Soc. ¡ee Sec. Admin., 17 u. 4 F.3d 473, 47 5 n.2 (4th Cir. 1,999) (citing 20 C.F.R. $ 404.1520); al¡o 20 C.F'.R. S 416.920. The law concerning these five steps is well-established. See, e.!., Mastro u. Apfel, 2:70 tr.3d 171., '1.77 -1.80 (4th Ck. 200't); Hall, J 658 tr.2d at 264-65. III. THE ALJ'S DECISION The ALJ followed the well-established five-step sequential analysis to ascertain whether Plaintiff is disabled, which is set fonh in 20 C.F.R. Conm'r of Soa Sec. SS 404.1520 and 416.920, See Albright Admin., 1,74 tr.3d 473, 475 n.2 (4th Cir. 1999). In rendering her disabitity determination, the ALJ made the following findings later adopted by Defendant: 1,. The claimant meets the insured status requirements of the Social Security ,{.ct thtough December 31,201,5. 2. The claimant has not engage in substantial gainful activity sinceJuly 1,201.0, the alleged onset date Q0 CF'R 404.1 571 et xq., and 416.971 et teq.). 3. The claimant has the following and Resection Headaches 4. u. severe impairments: Status Post Craniotomy of Meningioma, with Residual Effects , and Dizziness (20 CFR 404.1520(c) . . . with Migraine and 20 CFR 416.920(c). The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 40 4.1, 526, 4't 6.9 20 (d), 41 6.9 25 and 41, 6.9 26) . 5. ,\fter careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity IRtrC] to perform a wide range of medium work as defined in 20 CFll 404.1567(c) and 20 CFR 416.967 (c). The claimarit can stand and walk for 6 hours in an 8-hour workday; he can sit for 6 hours in an 8-hour workday; and he can lift and carry, and push and pull 50 pounds occasionally and 25 pounds ftequently. The claimant c^î never climb ladders, ropes or scaffolds, and he must avoid concentrated exposure to dangerous moving machinery, and unprotected heights. 4 (r.14-1,5.) In light of the above fìndings regarding Plaintiffs RFC, the ALJ determined that Plaintrff was unable to perform any of his past relevant work. (Tt. 19.) Based upon PlaintifPs age, education, work experience, and his RFC, the LJ concluded that "there are jobs that exist in significant numbers in the nalonal economy that the claimant can performed." 20 (citing 20 C.F.R. SS Gt 404.1560(c), 404.1566, (a),416.960(c), and 41,6.966)). Accordingly, the ALJ concluded that Plaintiff was not disabled. Çr.32.) IV. ANALYSIS Plaintiff contends that the ALJ erred by failing to include work related limitations in the RFC due to his migraine headaches. pocket Entry 11, at 4-7.) Plaintiff further asserts that "it is logically inconsistent for the ALJ to admit that an impairment is 'severe' atStep 2 and then include no work related limitations for that impaitment in the RFC." (Id. at 4.) "However, the finding at step two that Plaintiff has a severe impairment . . . does not reqaire the ALJ to include any limitations from such impairment when stating the PlaintifPs RFC." Carueru. Coluin,No. 1:13CV1,3,2015WL4077466,atx4 (I\4.D.N.C.July 6,201,5) (unpublished) (emphasis in the odginal). Determining whether an impairment is severe at step rwo is minimis test" structured 1:10CV384,201,4 ì7L to disposed of ^ "de unmeritorious claims. Chappell u. Coluin, No. 509150, at *4 (M.D.N.C. Feb. 7, 201,4) (unpublished); P-elron-Miller u. Atîraq 459 tr. App'* 226,230 (4th Cir. 201,1) (unpublished) ("Step two of the sequential evaluation is a threshold question with a de minimis severity requirement."). "r{. fìnding de of minimi¡ limitations is not proof that the same limitations have the greater signifìcant and specifìc nature required to gain their inclusion in an RFC assessment at step 20't4WL 509150, at x4 5 four." Chdppell, Here, the ,\LJ discussed in detail Plaintiffls chronic headaches. The ALJ states rhat Plaintiff reported to his neurologist that he had ongoing dalIy headaches in April 201,3. (Tt. 1,6,309.) In May 201,3, Plaintiff "reported persistent mild retro-orbital headaches." Çt 1,7, 344.) The,\LJ also noted that in July 201,3, Plaintiff complained that he had headaches every day or every other day. (Tr. 1,7 ,31,4.) The ALJ also described Plaintiffs hearing testimony in which Plaintiff stated his headaches gave him sharp head pain. Çr. 17,44.) Thus, it is clear the LJ took Plaintiffs headaches into account. The ALJ also noted that Plaintiff testified that the headaches did not bother him much if he took his medication. (Tr. 18, 46.) In addition, the ,A.LJ gave as "significant weight" to the opinion of the non-examining state agency medical consultant, Dr. Frank Virglli M.D., who opined that the claimant retained the capacity to do medium work. (Ir. 8a). The ALJ found that Dr. Virgrli's opinions are supported by the results of several examinations in the record. (Tt. 19 (citing 300,31,1,,314-1,5,320,34g)). Dr. Virgili discussed Plaintiffls headaches in his RFC assessments. (Tr. 84, 93, 1,02.) It is clear that the ALJ relied on Dr. Virgili's assessment because the RFC almost mirrors Dr. Virgili's fìndings. (Tt. 15,84,93,102.) The ALJ further limited Plaintiff to never climbing ladders, ropes, or scaffolds. (Tr. 15.) '{.dditionally, the ALJ gave little weight to the medical fìndings and opinions of the claimant's treating physician, Dr. Pool. (Tr. 19.) The ALJ acknowledges that Dr. Pool was claimant's neurosurgeon and that his opinions must be given very careful consideratton. (Id.) However, the ,A,LJ noted that, onJune 13, 201,2, Dr. Pool stated that Plaintiff was doing well after his surgery and instructed Plaintiff "to increase his activities." (Tr. 16, 300.) On September 12, 2012, and again on September '1.4, 2012, 6 Dr. Pool stated that Plaintiff was unable to work. [r in full activities." 1,6,347 Çr .) On Septembet 20,2012, Dr. Pool cleared Plaintiff to "engage 1,6,349.) On April 2,201.3, Dr. Pool opined that Plaintiff was unable to wotk in any capacity. Qt. '1,7,346.) On,{pril 23,201.3, Dr. Pool completed a form which stated that Plaintiff was not able to work for 2 months, but a note at the bottom of the form stated that "pfatien]t. . . does not want this note." Çr. 1,7,348.) The ALJ signature does not appear to be that of the physician." (Ir. 19.) states that "[t]he Finally on May 2,201,3,Dl Pool opined that Plaintiff was "permanently and totally disabled." Qr. 17,344.) The ALJ gave little weight to the opinions of Dr. Pool because he found them to be inconsistent with the results of his own neurological examinations of the claimant; with "his opinion rendeted on Septeml¡er 20,2012, that the claimant was free to engage in all activities and with the results of offìce visits with neurologists and primary care providers." Tr. 1,9 (internal citation omitted); Caruer u. Coluin, No. 1:13CV1.3,201.5WL 4077466, at *4 (M.D.N.C. July 6, 201,5) (fìnding that the ALJ did not have to add limitations to the RFC to account for the plaintifls left eye blindness because the LJ extensively discussed the plaintiffs visual impairments and placed limitations in the RFC regarding the plaintiffs vision that where consistent with the fìndings of a consultant examiner); Darharn u. Coluin, No. 1:1OCV405,2015 WL 457939,at*10 (I\4.D.N.C. Feb. 3, 2015) (concluding that the opinion evidence records did not indicate that Plaintiff needed limitations fìndings at step two); 3747533, at*2 Q. rce also lWi¡eman u. Cornm'r, Soc. Sec. and medical to satisfy the severe impairment Admin., No. S,{.G-1,5-2521,2016WL Md. July 11,201,6) (fìnding that the ALJ's decision to not add limitations to the RF-C regarding the plaintiffs asthma was supported by substantial evidence "because the medical record documents only a few episodes of acute exacerbatio ns"); Kingu. Coluin,No. 7 6:13-CV-02101-DCN,201.5 WL 1313085, at x16 (D.S.C. Mar. 24,201,5) (reasoning that the AIJ" decision to not ptovide limitations for the plaintiffs gastritis, GERD, and lactose intolerance was supported by substantial evidence because "objective findings were relatively benign" and the plaintiffs health improved when he followed ffeatment protocols). In addition, the ALJ noted Plaintiffs "disability-seeking behavior." (Tr. 18.) On April 1.7,201,3, Plaintiff asked Dr. Chades Willis to write a letter keeping him out of work but Dr. Willis stated that he "made fPlaintiffl aware that [he] would not do that." (Ir. 311.) In making the RFC finding; the ,{LJ expressly weighed Plaintiffs own statements regarding the severity and limiting effects of his symptoms, the objective medical findings, and course of treatment. (fr. 15-19). Based upon the foregoing, the undersigned concludes that the ALJ's RFC analysis is based upon substantial evidence and without legal error. Plaintiff faults the ALJ for telying on neurological examinations to determine that Plaintiffs headaches were disabling because neuroimaging examinations cannot detect headaches. (Docket Entty 'l1 at 5-7.) However, Plaintiff takes the ALJ's statement out of context. The ALJ stated that based on the results of several neurologicalexaminations, there is no evidence in the record of any neurological impairment or combination of impairments that would preclude the claimant from standing, walking, or sitting for 6 hours (with normal breaks) in an 8-hout workday, or from lifting and carrying objects of medium weights. (It. 18-19.) (internal citations omitted). The ALJ simply concluded that the neurological examinations did not suggest Plaintiff was incapable of performing medium work. The ,A.LJ is obligated to take into account all of the medical evidence. Sanþrd u. Coluin, No. 1:14CV885, 201.6 WL 951.539, at x2 n.3 (À{.D.N.C. Mar. 9, 201,6) ("RF'C is 8 to be determined by the ALJ only after fthe ALJ] considers all relevant evidence of a claimant's impairments and any related symptoms . . . .") (internal citation and quotation omitted). The ALJ must also determine whether all of Plaintiffs othet severe impairments, including status post craniotomy and resection of meningioma, combine to make Plaintiff disabled. Id. ("an ALJ must consider the combined effect of all physical and mental impairments when determining a claimant's disability status") (intetnal citations omitted). Thus, neurological examinations may shed light of the impact of these impairments. Furthermore, the ,{.LJ separately headaches elsewhere. Therefore, addresses PlaintifÎs the ALJ appropriately took Plaintiffs neurological exafnnatlons lrito account. Additionally, Plaintiff contends that the ALJ incorrectly reasons that Dr. Pool made inconsistent statements. Plaintiff asserts that "[t]he ALJ . . . found that Dr. Poole's 2013 opinion was inconsistent with Dr. Poole's statement fuom a yeat earher where he noted that fPlaintiff] was clear to engage in full activities." (Docket Entty 11 at7.) ,{.ccotding to Plaintiff, "[t]he ,{LJ . . . took this statement out of context . . . þecause] [t]his statement was made a couple of months aftet fPlaintiffs] brain surgely when Dr. Poole noted . . .'that the headaches are reasonably normal following craniotomy and should dissipate with Entty 11, at7.) Plaintiff further asserts that "[a]s time went time."' (Docket on. . . fPlaintiffs] headaches did not dissipate." (Id.) However, the .LJ correctly expressed doubts regarding the creditability of Dr. Pool's opinions. First, the ALJ noted that Dr. Pool told Plaintiff "to activities." (Tr. 16.) -4. increase his month later the ,\LJ noted Dr. Pool repoted that Plaintiff "was doing reasonably well, although fPlaintiffl complained neurological functions were normal . . . . of some intermittent headachesl,] . . . þiE On the same day Dr. Pool opined that Plaintiff was 9 unable to engage work. (Id.) A little over a week later, Dr. Pool reported that Plaintiff was able to in full activities. (Id.) Eight months later, Dr. Pool completed a form which stated that Plaintiff was not able to work. (r 1,7.) Three weeks later Dr. Pool determined that Plaintiff was unable to work for2months. (1/.) Finally, only nine days later, Dr. Pool opined that Plaintiff was permanently and totally disabled. (Id.) The ALJ expressly noted the inconsistencies between Dr. Pool's September 20,2012, opinion, fìnding that Plaintiff could engage in full activities, and his other opinions befote and after in which Dt. Pool found that Plaintiff could not work. The ,\LJ also documented the inconsistences with respect to how long Dt. Pool opined that Plaintiff should be out of work. In addition, the ALJ called into question the authenticity of one of Dr. Pool's opinions, in which he stated that Plaintiff was unable to work for 2 months, because the signature for this statement did not appear to be Dr. Pool's. (Ir. 19.) The ,{.LJ noted PlaintifFs disabiliry- seeking behavior and how it was documented that Plaintiff did not want the opinion from Dr. Pool indicating that he was disabled for two months. (//.) Further, it was only nine days later when Dr. Pool's opinion changed because he found that Plaintiff was permanently and fully disabled. This abrupt change in Dr. Pool's opinion, after Plaintiff acknowledged that he did not want a note explaining that he was disabled for two months, reinforces the ALJ's concerns regarding the authenticity of Dr. Pool's opinion and the AIJ" assertion disability-seeking behaviot. Lastly, the ALJ correctly noted that that Plaintiff exhibited Dr. Pool's statements regarding whether Plaintiff was unable to wotk or disabled are issues left to the Commissioner. Id.;Carnr,201,6WL 1735885, at*1.3 (unpublished) (citing20 C.F.R. 5404.1,527(u)Ø) (finding that a physician's opinion "that Plaintiff is quite disabled' does not qualify as a 'medical l0 opinion' generally entitled to deference"); Ballard 201,5) (unpublished) u. Coluìn,90 F. Supp . 3d 470,477 (À4.D.N.C. (finding that the ALJ propedy rejected the portion of the physician's medical opinion concluding that the plaintiff was "disabled" or "unable to work") (internal citations omitted). Thus, the ALJ's conclusion that Dr. Pool's opinions were inconsistent has merit and the other issues with Dr. Pool's opinions, hightighted above, were problematic allowing the ALJ to give his opinions little weight. V. For the reasons stated herein, IT CONCLUSION IS THEREFORE RECOMMENDED that the PlaintifPs Motion for Judgment Reversing the Commissioner (Docket Errtty 10) DENIED, be that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12) t:e GRANTED, and that the final decision of the Commissioner be upheld. L. \X/ebster States Magisrate Judge e Uni Durham, North Carolina Augusr , zot6 t5' 1l
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