Weaver v. Astrue, No. 3:2009cv00370 - Document 20 (S.D.W. Va. 2010)
Court Description: MEMORANDUM OPINION After a careful consideration of the evidence of record, the Court finds that the Commissioner is Affirmed and this matter is Dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 11/10/2010. (cc: attys; any unrepresented party) (skm)
Download PDF
<![CDATA[
Weaver v. Astrue Doc. 20 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION LISA A. WEAVER, Plaintiff, v. Case No.: 3:0 9-cv-0 0 370 MICHAEL J . ASTRUE, Com m issioner of the Social Security Adm inistration, Defendant. MEMORAN D U M OPIN ION This action seeks a review of the decision of the Com m issioner of the Social Security Adm inistration denying plaintiff’s applications for Disability Insurance Benefits (DIB) and Supplem ental Security Incom e (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 40 1-433 and 1381-1383f. This case is presently before the Court on the parties’ Motions for J udgm ent on the Pleadings. (Docket Nos.13 and 17). Both parties have consented in writing to a decision by the United States Magistrate J udge. (Docket Nos. 8 and 9). The Court has fully considered the evidence and the argum ents of counsel. For the reasons set forth below, the Court finds that the decision of the Com m issioner should be affirm ed. I. In tro d u ctio n Plaintiff, Lisa A. Weaver, filed applications for DIB and SSI on February 7, 20 0 6 claim ing that she had been disabled since Decem ber 30 , 20 0 5 due to chronic obstructive - 1Dockets.Justia.com pulm onary disease (COPD); congestive heart failure; sleep apnea; spur in lungs; depression and nerves. (Tr. at 56-60 , 69). The Social Security Adm inistration (SSA) initially denied the claim s on May 11, 20 0 6 and, upon reconsideration, again denied them on J uly 22, 20 0 6. (Tr. at 18). Thereafter, plaintiff filed a written request for a hearing, which was conducted on Novem ber 5, 20 0 7 by the Honorable Algernon W. Tinsley, Adm inistrative Law J udge (ALJ ). (Tr. at 516-573). By decision dated February 22, 20 0 8, the ALJ determ ined that plaintiff was not entitled to benefits. (Tr. at 18-27). The ALJ ’s decision becam e the final decision of the Com m issioner on February 12, 20 0 9 when the Appeals Council denied plaintiff’s request for review. (Tr. at 6-8). Plaintiff tim ely filed the present action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. §40 5(g). (Docket No. 2). Under 42 U.S.C. § 423(d)(5) and 1382c(a)(3)(H)(i), a claim ant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4 th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any m edically determ inable im pairm ent which can be expected to last for a continuous period of not less than 12 m onths. . . .” 42 U.S.C. 423(d)(1)(A). The Social Security Regulations establish a five step sequential evaluation process for the adjudication of disability claim s. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§40 4.1520 , 416.920 . The first step in the sequence is determ ining whether a claim ant is currently engaged in substantial gainful em ploym ent. Id. §§40 4.1520 (b), 416.920 (b). If the claim ant is not, then the second step requires a determ ination of whether the claim ant suffers from a severe im pairm ent. Id. §§40 4.1520 (c), 416.920 (c). If severe im pairm ent is -2- present, the third inquiry is whether this im pairm ent m eets or equals any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4. Id. §§40 4.1520 (d), 416.920 (d). If the im pairm ent does, then the claim ant is found disabled and awarded benefits. However, if the im pairm ent does not, the adjudicator must determ ine the claim ant’s residual functional capacity (RFC), which is the m easure of the claim ant’s ability to engage in substantial gainful activity despite the lim itations of his or her im pairm ents. After m aking this determ ination, the next step is to ascertain whether the claim ant’s im pairm ents prevent the perform ance of past relevant work. Id. §§40 4.1520 (e), 416.920 (e). If the im pairm ents do prevent the perform ance of past relevant work, then the claim ant has established a prim a facie case of disability, and the burden shifts to the Com m issioner to prove, as the final step in the process, that the claim ant is able to perform other form s of substantial gainful activity, when considering the claim ant’s rem aining physical and m ental capacities, age, education, and prior work experiences. Id. §§40 4.1520 (f), 416.920 (f); See also, McLain v. Schw eiker, 715 F.2d 866, 868-69 (4 th Cir. 1983). The Com m issioner m ust establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcom ings has the capacity to perform an alternative job, and (2) that this specific job exists in significant num bers in the national econom y. McLam ore v. W einberger, 538 F.2d. 572, 574 (4 th Cir. 1976).1 1 When a claim ant alleges a m ental or psychiatric im pairm ent, the SSA “m ust follow a special technique at every level in the adm inistrative review.” 20 C.F.R. §§40 4.1520 a, 416.920 a(a). In this case, plaintiff alleged psychiatric im pairm ents of depression and nerves. The ALJ applied the special technique in evaluating plaintiff’s psychiatric im pairm ents, and his decision incorporated the pertinent findings and conclusion. (Tr. at 21). Plaintiff has not com plained about the ALJ ’s application of the special technique or his conclusion that plaintiff’s psychiatric im pairm ents were non-severe. Accordingly, the Court will not address these issues in this opinion. -3- In this case, the ALJ determ ined that plaintiff satisfied the first step of the process, because she had not engaged in gainful activity since the date of the alleged onset of disability. (Tr. at 20 , Finding No. 2). Likewise, plaintiff survived the second step of the process when the ALJ found plaintiff to have severe im pairm ents of COPD, sleep apnea, back pain and obesity. (Tr. at 20 , Finding No. 3). The ALJ recognized that plaintiff had other im pairm ents, including depression and anxiety, but these were found to be nonsevere. (Id.) At the third step in the evaluation, the ALJ found that plaintiff’s im pairm ents, separately and in com bination, did not m eet or equal the level of severity of any im pairm ents listed in Appendix 1. (Tr. at 22, Finding No. 4). The ALJ concluded from the evidence that the plaintiff had a RFC to “lift/ carry 50 pounds occasionally and 25 pounds frequently. Non-exertionally, she should only occasionally crawl and never clim b ladders/ ropes/ scaffolds. She should also avoid fum es, odors, dusts, gases, poor ventilation, etc.; and avoid hazards (m achinery, heights, etc.).” (Tr. at 22, Finding No. 5). At step four, the ALJ found that the plaintiff was unable to perform any past relevant work. (Tr. at 25, Finding No 6). However, considering plaintiff’s age, education, residual functional capacity, and work experience, com bined with the testim ony of the vocational expert, the ALJ concluded that plaintiff was capable of m aking “a successful adjustm ent to other work that exists in significant num bers in the national econom y,” including work as a cashier, hand packager, inform ation clerk, order clerk, or routing clerk. (Tr. at 26, Finding No. 10 ). On this basis, the ALJ found that the plaintiff was not disabled, as defined in the Social Security Act, and was not entitled to benefits. (Tr. at 27). II. Sco p e o f Re vie w The issue before the Court is whether the final decision of the Com m issioner is based upon an appropriate application of the law and is supported by substantial evidence. -4- In Blalock v. Richardson, the Fourth Circuit Court of Appeals defined “substantial evidence” to be: [E]vidence which a reasoning m ind would accept as sufficient to support a particular conclusion. It consists of m ore than a m ere scintilla of evidence but m ay be som ewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966)). This Court is not charged with conducting a de novo review of the evidence. Instead, the Court’s function is to scrutinize the totality of the record and determ ine whether substantial evidence exists to support the conclusion of the Com m issioner. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). If substantial evidence exists, then the Court m ust affirm the decision of the Com m issioner “even should the court disagree with such decision.” Blalock v. Richardson, supra at 775. A careful review of the record reveals that the decision of the Com m issioner is based upon an accurate application of the law and is supported by substantial evidence. III. Plain tiff’s Backgro u n d an d Re le van t Me d ical Re co rd s Plaintiff was born in 1968 and was 37 years old at the tim e she applied for disability benefits. (Tr. At 65). She graduated from high school in 1986 and was em ployed prim arily as a hom e health caregiver until Decem ber 20 0 5, when she stopped working. (Tr. at 70 , 7476). Plaintiff is able to read, speak, and understand English. (Tr. at 69). From a review of the m edical records, plaintiff received psychological evaluations in 1981 and 1983 related to her poor perform ance at school. In 1983, plaintiff was assessed to have a full scale I.Q. of 78 and a perform ance I.Q. of 86. (Tr. 127-138). Plaintiff received resource room assistance in all academ ic courses and graduated from high school with a 2.0 average. (Tr. At 125). -5- Plaintiff started treating with Dr. Robert Tayengco, an internal m edicine specialist in Mason, West Virginia, in approxim ately 1997. (Tr. at 524-525, 557). Plaintiff’s m edical records from Dr. Tayengco’s office include notes of appointm ents starting in May 1999 and ending in late August 20 0 7, approxim ately two and half m onths before the ALJ ’s hearing. (Tr. at 261-291, 484-485). These notes indicate that plaintiff prim arily treated with Dr. Tayengco for weight m anagem ent until 20 0 1, when she developed gynecological concerns. She underwent a total abdom inal hysterectom y in October 20 0 1. In February 20 0 2, plaintiff first com plained of sym ptom s of depression, which Dr. Tayengco treated with Wellbutrin. (Id. at 286). Depression appeared to be her prim ary m edical problem until 20 0 3, when she began to com plain of back and chest pain. (Id. at 278-280 ). In March 20 0 3, plaintiff was adm itted to Pleasant Valley Hospital with shortness of breath, congestion and cough. (Tr. at 156). She was treated by Dr. Tayengco with IV antibiotics and nebulizer treatm ents and was told to quit sm oking. Dr. Tayengco diagnosed plaintiff with COPD and left lingular pneum onia. (Tr. at 155). In late J uly 20 0 3, plaintiff was again adm itted to the hospital with an exacerbation of COPD and bilateral pneum onia. (Tr. at 166). In August 20 0 4, plaintiff began to com plain of m igraine headaches. (Tr. at 40 8). She stated that she had a long history of m igraines. (Id.). By March 20 0 5, her headaches continued, and she also com plained of fatigue. She was diagnosed with possible sleep apnea. (Tr. at 275). Dr. Tayengco referred plaintiff to Dr. William Beam , a Diplom ate of the Am erican Board of Sleep Medicine, who perform ed a com plex polysom nographic evaluation of plaintiff in April 20 0 5. (Tr. at 374-375, 385-386). Dr. Beam diagnosed plaintiff with sym ptom atic obstructive sleep apnea with significant hypoxem ia and recom m ended a trial of nasal C-PAP and weight loss. (Tr. at 385-386). On follow-up in -6- May, Dr. Beam concluded that the C-PAP was helping plaintiff. He determ ined that her norm al sleep efficiency was 87%. (Tr. at 374). In Decem ber 20 0 5, Dr. Tayengco diagnosed plaintiff with “COPD exacerbation— failed outpatient treatm ent” and placed her on intravenous antibiotics. (Id. at 272). On J anuary 23, 20 0 6, Dr. Tayengco noted that plaintiff’s chief com plaints were a cough and chest tightness. A CT scan did not reveal any acute infiltrate, congestive heart failure or m asses. (Id. at 269). Her oxygen saturation was 97% on room air. Dr. Tayengco felt that plaintiff could not work at that tim e, and he scheduled plaintiff for a com plete pulm onary function study. On J anuary 24, 20 0 6, Dr. Tayengco perform ed pulm onary function studies and diagnosed a “m inim al obstructive lung defect.” (Tr. at 347). Oxim etry studies perform ed on April 13, 20 0 6 revealed an average oxygen saturation of 96% with C-PAP. (Tr. at 337). A chest x-ray taken on J uly 24, 20 0 6 dem onstrated fibrotic changes, but no acute changes or infiltrates. (Tr. at 326). Dr. Tayengco diagnosed bronchitis and treated plaintiff with intravenous antibiotics. (Id.). Another x-ray taken in August showed essentially clear lungs, but Dr. Tayengco again prescribed antibiotics. (Tr. at 318-320 ). He referred plaintiff to Dr. Sanpal Mavi for further m anagem ent of her COPD. (Tr. at 265). Also in 20 0 6, plaintiff was evaluated by Dr. J ohn Todd, a licensed psychologist, at the request of the SSA. Dr. Todd found that plaintiff suffered from generalized depression and anxiety, but stated that claim ant “alleges no m ental functioning problem s and at CE m ental status was all WNL except m ild social def. Able to perform all ADL functions through som ewhat restricted by physical com plaints. Lim itations due to mental D/ O are considered to be non-severe.” (Tr. at 239). In May 20 0 6, the SSA additionally referred plaintiff to Dr. Rafael Gom ez for a residual functional capacity assessm ent. (Tr. at 241-248) Dr. Gom ez felt that plaintiff was not entirely credible in her com plaints. He indicated that -7- she had diagnoses of COPD and sleep apnea, but her blood gases on room air were norm al, as was her chest x-ray. Dr. Gom ez reduced plaintiff to “m edium work with postural lim itations on the basis of her obesity.” (Tr. at 246). On February 9, 20 0 7, Dr. Sanpal Mavi exam ined plaintiff at the request of Dr. Tayengco. (Tr. at 467-468). Dr. Mavi diagnosed plaintiff with m ultiple pulm onary nodules by history, COPD, acute bronchitis and sleep apnea. (Id.) Dr. Mavi scheduled plaintiff for a CT scan and advised her to continue on her m edications for COPD, stop sm oking, stay active and lose weight.2 The CT scan revealed no pulm onary abnorm ality. On follow-up, Dr. Mavi recom m ended that plaintiff continue with her COPD m edications and C-PAP. He reassured her that she had no worrisom e findings on the CT scan and scheduled her to return for routine follow-up in four or five m onths. (Tr. at 464). Dr. Tayengco again referred plaintiff to Dr. William Beam in Septem ber 20 0 7 for an evaluation of her sym ptom atic COPD. Dr. Beam perform ed a com plete exam ination and concluded that plaintiff had sym ptom atic COPD with a com ponent of restriction due to chest wall m echanics and obstructive sleep apnea. He recom m ended a cardiac assessm ent to rule out occult coronary disease and pulm onary function tests, including lung volum es, DLCO, and bronchodilator response. (Tr. at 483). The cardiac assessm ent showed no coronary or valvular disease, and the pulmonary function tests reconfirm ed a “m inim al obstructive airways disease-peripheral airway.” (Tr. at 456-459). On October 2, 20 0 7, Dr. Beam docum ented his im pression that plaintiff had COPD with asthm atic com ponent, which was “well com pensated on current m edications,” and obstructive sleep apnea, which was “com pensated on nasal C-PAP.” (Tr. at 492). He advised plaintiff to continue her 2 Her weight at this tim e was 271 pounds. -8- current m edications, lose weight, and return to Dr. Tayengco for general m edical care. Dr. Beam only planned to see plaintiff on an “as needed” basis. (Tr. At 493). On October 31, 20 0 7, Dr. Tayengco completed a residual functional capacity assessm ent in which he indicated that plaintiff could perform only sedentary work. (Tr. at 486-490 ). He diagnosed her with severe COPD and m oderate osteoarthritis. (Id.). IV. Plain tiff’s Ch alle n ge s to th e Co m m is s io n e r’s D e cis io n Plaintiff asserts three failures on the part of the Com m issioner that would support a reversal of his decision and either a rem and or an allowance of benefits. First, plaintiff contends that the ALJ failed to consider plaintiff’s exacerbations of COPD when determ ining whether that im pairm ent m et or equaled any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4. Second, plaintiff claim s that the ALJ ignored plaintiff’s subaverage I.Q., which, at a m inim um , should have been determ ined to be a severe im pairm ent. Finally, plaintiff argues that the ALJ im properly rejected the opinion of plaintiff’s treating physician without articulating a good reason for doing so. In response, the Com m issioner m aintains that plaintiff’s COPD did not descriptively m eet the criteria of Listing 3.0 2 (A) related to chronic pulm onary insufficiency; therefore, the ALJ correctly determ ined that plaintiff’s COPD did not m erit a finding of disability. Secondly, the Com m issioner contends that the records in evidence do not support a conclusion that plaintiff’s m ental im pairm ent is a disability or a severe im pairm ent that significantly lim its her ability to work. Finally, the Com m issioner argues that the ALJ fully discussed the m edical evidence and provided a substantial factual basis for rejecting the opinion of Dr. Robert Tayengco, plaintiff’s treating physician. -9- V. An alys is A. Plain tiff’s Exace rbatio n s o f COPD U n d e r th e Lis tin g At the second step of the sequential evaluation, the ALJ was responsible for determ ining if plaintiff suffered from a severe im pairm ent. 20 C.F.R. §§40 4.1520 (c), 416.920 (c). If a severe im pairm ent existed, the evaluation m oved to the third step, and the ALJ was required to ascertain whether the im pairm ent m et or equaled any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4 (the “Listing”). Id. §§40 4.1520 (d), 416.920 (d). The Listing “describes, for each of the m ajor body system s im pairm ents that [the SSA] consider[s] severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” Id. §§ 40 4.1525(a), 416.925 (a). If plaintiff dem onstrated an im pairm ent that m et the severity requirem ents of the sam e or sim ilar im pairm ent contained in the Listing, then the evaluation process ended at that step; the plaintiff should have been adjudged disabled and awarded benefits regardless of her vocational background. Plaintiff avers that the ALJ incorrectly construed the Listing in relation to plaintiff’s im pairm ent of COPD, because the ALJ failed to consider the acute exacerbations of COPD regularly suffered by plaintiff. According to plaintiff, the Listing does not specifically outline severity requirem ents pertaining to COPD; therefore, the ALJ should have analyzed plaintiff’s respiratory im pairm ent under the sections on episodic respiratory diseases, such as asthm a, cystic fibrosis, or bronchiectasis, as these would take into account periodic and acute respiratory attacks. (Pl. Br. at 6-7). However, as the Com m issioner points out, the Listing actually does include elem ents pertinent to COPD, d u e t o a n y ca u s e , under Section 3.0 2 (A). In order to m ake a finding of disability in cases of COPD, Section 3.0 2 (A) requires that the claim ant’s FEV1 be equal to or less than the values contained in Table - 10 - 1, which are based upon the height of the claim ant.3 As plaintiff is 64-65 inches in height, Table 1 requires that her FEV1 be equal to or less than 1.25 (L, BTPS). In fact, the record reflects that plaintiff’s lowest docum ented FEV1 was 2.53, m ore than double the “disabled” value. (Tr. at 346, 460 ).4 To qualify for benefits on account of an im pairm ent contained in the Listing, plaintiff m ust present m edical findings that m eet all elem ents of the Listing for that im pairm ent. Sullivan v. Zem bly , 493 U.S. 521 (1990 ). In the case of COPD, the FEV1 m easurem ent is the prim ary elem ent by which disability is determ ined. Accordingly, the ALJ properly concluded that plaintiff did not m eet or equal the severity criteria of the COPD im pairm ent contained in the Listing. B. As s e s s m e n t o f Plain tiff’s In te llige n ce Le ve l In relation to her intelligence, plaintiff m akes two argum ents. First, she contends that the ALJ erred by not considering her “significantly subaverage I.Q.” as an im pairm ent that m et the elem ents of Section 12.0 5 of the Listing, requiring an im m ediate finding of disability. Second, she asserts that after ignoring the elem ents of the Listing, the ALJ com pounded his error by failing to factor plaintiff‘s low I.Q. into an individual assessm ent of her disability. The Court finds that these argum ents are without m erit. The records in evidence confirm two instances on which plaintiff underwent intelligence testing. In 1981, when plaintiff was in the seventh grade, she took the Weschsler Intelligence Scale for Children and achieved a perform ance, verbal and full scale I.Q. score of 85 or higher. (Tr. at 137). She repeated the testing two years later and scored 3 FEV1 is a m easurem ent of the reported one-second forced expiratory volum e. Even if plaintiff’s assertion was correct and Section 3.0 3B, 3.0 4B, or 3.0 7B was applicable, plaintiff’s m edical records do not appear to contain sufficient docum entation to support a factual conclusion that plaintiff suffered from “attacks” at least once every 2 m onths or six tim es per year as required by those sections. 4 - 11 - a perform ance, verbal, and full scale I.Q. of 73 or higher. (Tr. at 128). Plaintiff contends that based upon these scores and her high school grades, which ranged from A’s to F’s (Tr. at 125), the ALJ should have concluded that plaintiff’s subaverage intelligence m et the elem ents of Section 12.0 5 of the Listing. To qualify as disabled under Section 12.0 5 of the Listing, which is entitled “m ental retardation,” plaintiff m ust (1) produce a valid verbal, perform ance or full scale I.Q. of 59 or less, or (2) substantiate an I.Q score of between 60 and 70 with evidence of a concurrent physical or m ental im pairm ent that im poses an additional or significant work-related lim itation of function. Plaintiff’s I.Q. was never docum ented at 70 or below; therefore, she cannot m eet one of the threshold elem ents of Section 12.0 5. As stated above, the Listing will not be considered as proof of disability unless the claim ant can dem onstrate all of the elem ents of a listed im pairm ent. Aside from the Listing, plaintiff asserts that her low I.Q. constituted a severe im pairm ent, which should have been m ore fully considered by the ALJ when determ ining her ability to work. In fact, the ALJ did address and consider plaintiff’s level of intelligence and education when evaluating her RFC. (Tr. at 23-24). He confirm ed plaintiff’s testim ony that she was placed in special education classes at school due to ADHD and had taken I.Q. tests in which the resulting scores were below 72 and 74. (Id.) 5 However, the ALJ sim ply did not find plaintiff to be credible when she argued that her intelligence level substantially hindered her ability to work. (Tr. at 24-25, 27). “In reviewing the record for substantial evidence, the Court does not re-weigh conflicting evidence, m ake determ inations as to credibility, or substitute its own judgm ent for that of the Com m issioner.” See Hay s v. Sullivan, 90 7 F.2d. 1453, 1456 (4 th Cir. 1990 ). 5 The ALJ noted, however, that these I.Q. tests were not in evidence and could not be proven. (Tr. at 27). - 12 - Because the ALJ had the “opportunity to observe the dem eanor and to determ ine the credibility of the claim ant, the ALJ ’s observations concerning these questions are to be given great weight.” Shively v. Heckler, 739 F.2d 987, 989-990 (4 th Cir. 1984), citing Ty ler v. W einberger, 40 9 F. Supp. 776 (E.D.Va. 1976). The record in this case reflects that plaintiff’s intelligence level did not significantly im pede her ability to tackle m entally challenging duties in her prior em ploym ent positions and supports the conclusion that she functioned at a level that belied her childhood I.Q. scores. As a hom e health caregiver, plaintiff was required to shop, pay bills, assist with physician visits, and com plete daily logs, all of which she apparently accom plished in a satisfactory m anner as she was em ployed in that capacity for at least seven years. (Tr. at 76, 78). In addition, a diagnostic evaluation of plaintiff perform ed on Decem ber 21, 20 0 5 by Associates in Psychology and Therapy substantiated that plaintiff com pleted high school without repeating any grades; her speech was relevant and clear; her judgm ents, concentration, insights, and m em ory were all norm al. (Tr. at 20 3-20 6). The paperwork com pleted by plaintiff to apply for benefits and her testim ony at the hearing were both reasoned and articulate. Moreover, she did not raise her intellectual level as an im pairm ent to em ploym ent when asked by the ALJ and only discussed it when prom pted by her counsel. (Tr. at 529-530 , 542-544). These facts, in conjunction with the ALJ ’s expressed reservations regarding plaintiff’s credibility and the lack of docum entation supportive of a Section 12.0 5 im pairm ent, constitute substantial evidence that plaintiff’s intelligence level was not a significant factor to her disability assessm ent. C. W e igh t o f Op in io n o f Tre atin g Ph ys ician The ALJ is required to analyze every m edical opinion received and determ ine the weight to give to such an opinion in m aking a disability determ ination. 20 C.F.R. §§ - 13 - 40 4.1527(d) and 416.927(d); See also DeBerry v. Astrue, 20 10 WL 370 3222 (W.D.Va.). “A treating physician’s opinion on the nature and severity of the claim ed im pairm ent is entitled to controlling weight if it is well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record.” 20 C.F.R. §§ 40 4.1527(d)(2) and 16.927(d)(2). When considering the weight to give a treating physician’s opinion, the ALJ m ust consider a num ber of factors, including (1) whether the physician has exam ined the plaintiff; (2) the existence of an ongoing physician-patient relationship; (3) the diagnostic and clinical support for the opinion; (4) the opinion’s consistency with the record; and (5) whether the physician is a specialist. 20 C.F.R. §§ 40 4.1527(d) and 416.927(d); DeBerry v. Astrue, 20 10 WL 370 3222 at 5 (W.D.Va.). The opinion of the treating physician m ust be weighed against the record as a whole when determining eligibility for benefits. 20 C.F.R. §§ 40 4.1527(d)(2) and 416.927(d)(2). If the ALJ discounts the opinion of a treating physician, the ALJ must explain the reasons for m aking that determ ination. DeBerry v. Astrue, supra. Plaintiff contends that the ALJ im properly rejected the opinion of Dr. Tayengco, who assessed plaintiff’s RFC in October 20 0 7 and concluded that she was only capable of work at a sedentary level. Plaintiff argues that “[b]y failing to articulate how he arrived at his conclusion the ALJ ’s decision does not allow subsequent reviewers to understand how he arrived at his total rejection of the opinion of the treating doctor.” (Pl. Br. at 11). To the contrary, the Court finds that the ALJ sim ply and succinctly explained his reason for discounting Dr. Tayengco’s RFC assessm ent, stating: A pulm onary function test in October 20 0 7 suggested deconditioning as a cause of sym ptom s and Dr. Beam noted that her COPD and obstructive sleep apnea was well com pensated on current m edication and CPAP. In fact, the only physician to give her a poor prognosis is Dr. Tayengco and this is not followed by any evaluation to support this finding. . . As for the functional capacity evaluation of Dr. Tayengco, - 14 - who lim ited her to sedentary level work. . . .based on severe COPD and m oderate osteoarthritis. . .I reject this assessm ent as there is no evaluation to show such an extrem e set of lim itations should be given to the claim ant. She is clinically m ild with a m odest treatm ent regim en. Her condition was noted to be under control with m edication and CPAP. . .This assessm ent was given based on the claim ant’s subjective com plaints and not objective m edical evidence. (Tr. at 25). Accordingly, the ALJ did not reject the opinions of Dr. Tayengco in toto; instead, he rejected Dr. Tayengco’s assessm ent of the severity of plaintiff’s lim itations, because it conflicted with the opinions of other physicians and the objective m edical records and was not supported by a concurring m edical evaluation. “The ALJ holds the discretion to give less weight to the testim ony of the treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4 th Cir. 20 0 1), citing Hunter v. Sullivan, 993 F.2d 31, 35 (4 th Cir. 1992). In the instant case, persuasive evidence exists in the record upon which to conclude that plaintiff’s lim itations are not as extensive as they are described by Dr. Tayengco. The Com m issioner, not the court, is charged with resolving conflicts in the evidence. Hay s v. Sullivan, 90 7 F.2d 1453 (4th Cir. 1990 ). The ALJ acknowledged that plaintiff’s determ inable im pairm ents could reasonably be expected to produce the sym ptom s about which she com plained, but he questioned her credibility concerning the intensity, persistence, and lim itations of her sym ptom s. (Tr. at 24-25). Because Dr. Tayengco’s RFC was based prim arily upon the subjective com plaints of plaintiff rather than the objective m edical findings, the ALJ appropriately exercised his discretion to discount that RFC assessm ent. From a review of the totality of the record, the Court concludes that the ALJ thoroughly considered the evidence and sufficiently docum ented his conclusions. Relying upon the vocational expert, the ALJ determ ined that there were jobs that plaintiff could - 15 - perform at the m edium , light and sedentary work levels. (Tr. At 26-27). The Court finds that the ALJ had substantial evidence to support this determ ination. VI. Co n clu s io n After a careful consideration of the evidence of record, the Court finds that the Com m issioner’s decision IS supported by substantial evidence. Accordingly, by J udgm ent Order entered this day, the final decision of the Com m issioner is AFFIRMED and this m atter is D ISMISSED from the docket of this Court. The Clerk of this Court is directed to transm it copies of this Order to all counsel of record. EN TERED : Novem ber 10 , 20 10 . - 16 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
