Thomas v. Astrue, No. 3:2009cv00586 - Document 12 (S.D.W. Va. 2010)
Court Description: MEMORANDUM OPINION. For reasons stated, the Court finds that the Commissioner's decision is supported by substantial evidence. The Cour affirms the decision of the Commissioner and dimisses this matter from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 11/24/2010. (cc: attys) (gan)
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Thomas v. Astrue Doc. 12 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 EU GEN IA D IAN A TH OMAS, Plain tiff, v. Civil Actio n N o . 3 :0 9 -0 0 58 6 MICH AEL J. ASTRU E, Co m m is s io n e r o f th e So cial Se cu rity Ad m in is tratio n , D e fe n d an t. MEMORAN D U M OPIN ION This is an action seeking review of the decision of the Com m issioner of Social Security (hereinafter “Com m issioner”) denying Claim ant’s application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 40 1433. (Docket No. 1). Both parties have consented in writing to a decision by the United States Magistrate J udge. (Docket Nos. 4 and 5). The case is presently pending before the Court on the parties’ cross-m otions for judgm ent on the pleadings (Docket Nos. 8 and 9). I. Pro ce d u ral H is to ry Plaintiff, Eugenia Diana Thom as (hereinafter “Claim ant”), filed an application for DIB on May 1, 20 0 6, alleging disability beginning April 23, 20 0 4 due to the following conditions: osteoarthritis, degenerative disc disease, scoliosis, high cholesterol, high blood pressure, diabetes, and depression. (Tr. at 119 and 131). The 1 Dockets.Justia.com claim s were denied initially on J une 13, 20 0 6 (Tr. at 65-69) and upon reconsideration on Decem ber 8, 20 0 6 (Tr. at 75-77). Thereafter, Claim ant requested an adm inistrative hearing. (Tr. at 78). The hearing was held on February 5, 20 0 8 before an Adm inistrative Law J udge, the Honorable Andrew Chwalibog (hereinafter the “ALJ ”). (Tr. at 28-57). By decision dated April 1, 20 0 8, the ALJ determined that Claim ant was not entitled to benefits. (Tr. at 10 27). Under 42 U.S.C. § 423(d) (5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th 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 “sequential evaluation” for the adjudication of disability claim s. 20 C.F.R. § 416.920 (20 0 8). If an individual is found “not disabled” at any step, further inquiry is unnecessary. § Id. 416.920 (a). The first inquiry under the sequence is whether a claim ant is currently engaged in substantial gainful em ploym ent. Id. § 416.920 (b). If the claim ant is not engaged in substantial gainful em ploym ent, the second inquiry is whether claim ant suffers from a severe im pairm ent. Id. § 416.920 (c). If a severe im pairm ent is present, the third inquiry is whether such 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. § 416.920 (d). If it does, the claim ant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is 2 whether the claim ant's im pairm ents prevent the perform ance of past relevant work. Id. § 416.920 (e). By satisfying inquiry four, the claim ant establishes a prim a facie case of disability. Hall v. Harris, 658 F.2d 260 , 264 (4th Cir. 1981). The burden then shifts to the Com m issioner, McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claim ant is able to perform other form s of substantial gainful activity, considering claim ant's rem aining physical and m ental capacities and claimant's age, education and prior work experience. 20 C.F.R. § 416.920 (f). The Com m issioner m ust show two things: (1) that the claim ant, considering claim ant’s age, education, work experience, skills and physical shortcom ings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national econom y. McLam ore v. W einberger, 538 F.2d 572, 574 (4th Cir. 1976). In this particular case, the ALJ determ ined that Claim ant m et the insured status requirem ents of the Social Security Act through December 31, 20 10 . (Tr. at 15, Finding No. 1). He further found that Claim ant satisfied the first inquiry because she had not engaged in substantial gainful activity since April 23, 20 0 4, the alleged onset date. (Id. at Finding No. 2). Under the second inquiry, the ALJ found that Claim ant suffered from the severe im pairm ents of degenerative disc disease and chronic pain of the spine, Type II diabetes m ellitus, and obesity. (Id. at Finding No. 3). At the third inquiry, the ALJ concluded that Claim ant’s im pairm ents did not m eet or equal the level of severity of any listing in Appendix 1. (Tr. at 18, Finding No. 4). The ALJ then found that Claim ant had the residual functional capacity (hereinafter 3 “RFC”) to perform a range of light level work activities as defined in 20 C.F.R. 40 4.1567(b), lim ited by the following: The claim ant can lift and/ or carry twenty pounds occasionally and ten pounds frequently, stand and/ or walk for six out of eight hours, and sit for six out of eight hours. Nonextertionally, the claim ant can only occasionally clim b, balance, stoop, kneel, crouch, and crawl; she m ust avoid concentrated exposure to extrem e cold tem peratures and vibrations. (citations om itted) (Tr. at 19, Finding No. 5). As a result, Claim ant could not return to her past relevant em ploym ent as a factory worker and hand packager, which was classified by the vocational expert at the adm inistrative hearing as requiring m edium to very heavy exertional activities of an unskilled and sem iskilled nature. (Tr. at 25, Finding No. 6). Nevertheless, the ALJ considered Claim ant’s age of 49 years old at the tim e of the decision, which is defined as a younger individual aged 19-49, and the fact that she com pleted high school and could com m unicate in English in finding that transferability of job skills was not m aterial to the disability determ ination.1 (Tr. at 25, Finding Nos. 7-9). The ALJ concluded that Claim ant could perform jobs such as m achine tender, production inspector, surveillance system m onitor, and inform ation clerk. (Tr. at 25-26, Finding No. 10 ). On this basis, the ALJ denied benefits. (Tr. at 27). The ALJ ’s decision becam e the final decision of the Com m issioner on March 27, 20 0 9 when the Appeals Council denied Claim ant’s request or review. (Tr. at 1-4). On May 27, 20 0 9, Claim ant brought the present civil action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. § 40 5(g). (Docket No. 1). 1 The Medical-Vocational Rules supported a finding that she was not disabled regardless of whether she had transferable job skills. 4 The Com m issioner filed an Answer on J uly 22, 20 0 9. (Docket No. 6). The parties filed their briefs in support of judgm ent on the pleadings on August 21, 20 0 9 and Septem ber 22, 20 0 9. (Docket Nos. 8 and 9). The m atter is, therefore, ripe for resolution. II. Sco p e o f Re vie w The sole issue before this Court is whether the final decision of the Com m issioner denying Claim ant’s applications for benefits is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined as the following: Evidence 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). Consequently, the decision for the Court to m ake is “not whether the claim ant is disabled, but whether the ALJ ’s finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434 F. 3d 650 ,653 (4 th Cir. 20 0 5), citing Craig v. Chater, 76 F.3d585, 589 (4 th Cir. 20 0 1). Additionally, the Com m issioner, not the court, is charged with resolving conflicts in the evidence. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). The Court will not re-weigh conflicting evidence or substitute its judgm ent for that of the Com m issioner. Id. However, the Court must not “escape [its] duty to scrutinize the record as a whole to determ ine whether the conclusions reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). The ultim ate question for the Court is whether the decision of the Com m issioner is well-grounded, bearing in m ind that “[w]here conflicting evidence allows reasonable m inds to differ as to whether a 5 claim ant is disabled, the responsibility for that decision falls on the [Com m issioner].” W alker v. Bow en, 834 F.2d 635, 640 (7th Cir. 1987). A careful review of the record reveals that the decision of the Com m issioner is supported by substantial evidence. III. Claim an t’s Backgro u n d Claim ant was 49 years old at the tim e of the adm inistrative hearing. (Tr. at 49). She com pleted high school. Id. Her past work experience included over sixteen years of em ploym ent as a chem ical operator at a plastic chem ical plant and a period of selfem ploym ent lasting one year or less at a flea m arket. (Tr. at 147). 2 III. Th e Me d ical Re co rd The m edical evidence reflects that between April 13, 20 0 4 and J une 22, 20 0 4, Claim ant was evaluated and treated weekly at Gallipolis Chiropractic Clinic for neck and back pain. (Tr. at 199-20 0 ). On the date of her final visit, Dr. J oey Wilcoxon, the responsible chiropractor, com pleted a Physician’s Report for Claim ant’s em ployer, M & G Polym ers, listing the following diagnoses: “847.0 Cervical” and “846.0 Lum bosacral.” (Tr. at 199). Dr. Wilcoxon noted that Claim ant was “unable to work at this tim e,” but was “showing im provem ent;” that her total disability began on April 23, 20 0 4 and that her “spine [was] in a weakened state and [would] require ongoing care on a reduced frequency” basis for the “next 12 m onths.” Dr. Wilcoxon could not determ ine if Claim ant would require treatm ent after that period. Id. 2 The ALJ found that Claimant’s work at the flea market did not constitute substantial gainful employment. (Tr. at 15). 6 On August 4, 20 0 4, J am es P. Wagner, D.O., Claim ant’s prim ary care physician at the tim e, referred Claim ant to Ralph W. Webb, M.D., a rheum atologist at University Physicians, who docum ented that Claim ant had a past m edical history of hypertension, hyperlipidem ia, insom nia, anxiety disorder, and im paired glucose tolerance. (Tr. at 20 3). His im pression was the following: 1. Vague history of possible rheum atoid arthritis. I do not see any clinical signs to strongly suspect rheum atoid arthritis at this tim e. While it is true that som etim es patients will develop peripheral nodules before having discrete arthritis, the patient’s tissue enlargem ent in the ankle area really looks like adipose tissue to m e rather than rheum atoid nodules. The patient’s various low liter antibody values are not necessarily of any clinical significance in this setting. 2. Degenerative joint disease. 3. Multiple m edical problem s as listed above. (Tr. at 20 4). On March 1, 20 0 5, Richard Del Checcolo, M.D., exam ined Claim ant at the request of M & G Polym ers. Dr. Del Checcolo assessed Claim ant’s m edical conditions to include the following: 1. Chronic spine and joint pain for two years plus. I believe she has m ainly DJ D with chronic pain and swelling which lim its her ability to perform physical labor. 2. Chronic anxiety and depression well controlled with Lexapro. 3. Hypertension. 4. Status post hysterectom y, appendectom y, and [transient ischem ic attack] 5. Mild diabetes [with blood sugar] 130 (Tr. at 213-216). 7 On J une 12, 20 0 6, G. David Allen, Ph.D., com pleted a Psychiatric Review Technique at the request of the Social Security Adm inistration (“SSA”), evaluating Claim ant’s m ental faculties since April 23, 20 0 4. (Tr. at 254-267). He found that she had non-severe depression and anxiety, “per [her] treating source.” (Tr. at 254, 257 and 259). On a scale of “none,” “m ild,” “m oderate,” “m arked,” “extreme,” and “insufficient evidence,” he found that Claim ant had no lim itation in “activities of daily living” and no “episodes of decom pensation” and a “m ild” lim itation in “difficulties in m aintaining social functioning” and “difficulties in m aintaining concentration, persistence or pace.” (Tr. at 264). Dr. Allen noted that Claim ant’s husband denied her assertions that she needed to be rem inded “to go places” and that “she gets grouchy easily,” but that overall, her statem ents appeared credible. (Tr. at 266). He also stated that her treating source indicated that her m ental conditions were well controlled by the m edication Lexapro. Id. On J une 13, 20 0 6, Dr. Gregory Langford com pleted a physical RFC assessm ent at the request of the SSA. (Tr. at 268-275). He found the following: - Claim ant could lift and/ or carry 20 pounds occasionally and 10 pounds frequently; stand and/ or walk and sit with norm al breaks for about 6 hours in an 8-hour workday; and push and/ or pull an unlim ited am ount, other than as shown for lift and/ or carry. - Claim ant could occasionally clim b ram ps/ stairs/ ladders/ ropes/ scaffolds, balance, stoop, kneel, crouch, and crawl. - Claim ant had no m anipulative, visual, com m unicative, or environm ental lim itations. (Tr. at 269-272). Dr. Langford noted that regarding activities of daily living, Claim ant com plained of “restless sleep,” but that there were “no self-care deficits” as she was able to prepare 8 full m eals, clean her house, do laundry, “m ow her grass som etim es,” drive, shop and go to yard sales, and lift approxim ately twenty pounds, although she claim ed that she could not stand because her “legs swell” and her “back hurts.” (Tr. at 273). He stated that the pain she com plained of was not credible, as she was “on no pain” m edication, had no end-organ dam age from hypertension, no coronary artery disease from high cholesterol, no end-organ dam age or diabetic ketoacidosis episodes from diabetes m ellitus, and that her RFC was reduced to light work based on physical findings. Id. Dr. Langford noted that Dr. Checcolo’s March 1, 20 0 5 statem ent that he believed that Claim ant had m ainly degenerative joint disease with chronic pain and swelling, which lim ited her ability to perform physical labor was not supported by the evidence in the file. (Tr. at 274). Dr. Langford stated that Dr. Checcolo’s statem ent was not supported by the record because although Claim ant com plained of physical lim itations, she was not precluded from perform ing light work with the restrictions and lim itations noted by Mr. Langford. Id. On October 27, 20 0 6, J eff Harlow, Ph.D., com pleted a Psychiatric Review Technique. (Tr. at 290 -30 3). He found that Claim ant suffered from non-severe depression and anxiety. (Tr. at 290 , 293 and 295). She was m ildly lim ited in each of the listed categories, but there were no episodes of decom pensation. (Tr. at 30 0 ). Dr. Harlow noted that Claim ant’s “statem ents about functional capacities on the [activities of daily living] form [were] partially credible because they [were] externally inconsistent with clinical findings of the treating sources.” (Tr. at 30 2). He further stated that since “all key functional capacities are indicated to be within norm al lim its or m ildly deficient and treatm ent indicates adequate m ental functioning, it is concluded that m ental im pairm ents are not severe.” Id. 9 On Novem ber 21, 20 0 6, Kip Beard, M.D., com pleted a consultative exam ination report. (Tr. at 30 4-311). Dr. Beard’s sum marized his conclusions as the following: The claim ant is a 48-year-old fem ale with a history of type 2 diabetes. Exam ination today reveals no appreciable end-organ dam age related to diabetes. There is also a history of hypertension without appreciable end-organ dam age associated with hypertension. There is also history of chronic neck and back pain following injury. Exam ination today revealed som e m ild range of m otion loss of the neck and back with som e m ild pain and m uscular tenderness. There was no focal weakness, atrophy, or sensory loss. Reflexes did seem increased. There was bilateral Hoffm an sign and four to five beats of clonus in the lower extrem ities. These findings could perhaps represent som e early m yelopathy, but the claim ant’s gait was not spastic, and m anipulation was well preserved. Regarding the joint pain, exam ination today reveals som e slight m otion loss at the knees, but otherwise preserved range of m otion. There was no evidence of inflam m atory arthritis. The claim ant’s gait appeared norm al. She did not present with or require am bulatory aids. (Tr. at 310 ). On December 2, 20 0 6, Marcel Lam brechts, M.D., com pleted a physical RFC assessm ent. (Tr. at 313-320 ). Dr. Lam brechts reiterated Mr. Langford’s J une 12, 20 0 6 findings, except that he added that Claim ant should avoid concentrated exposure to extrem e cold or vibration. (Tr. at 317). Dr. Lam brechts stated: This claim ant’s sym ptom s seem consi[s]tent with the findings. She is diabetic, moderately obese with m ild hypertension and has evidence of arthritis already. She [has] neck low back pain and her LSS XR shows facet degeneration at L5-S1. It seem s that she can still work and her RFC is reduced as noted. (Tr. at 318). On J anuary 7, 20 0 8, Stephan J . Serfontein, M.D., evaluated Claim ant. (Tr. at 336-337). Dr. Serfontein began treating Claim ant on J uly 6, 20 0 6, replacing Dr. Wagner as Claim ant’s prim ary care physician. (Tr. at 168; Def. Br. at 7). Regarding 10 depression, Dr. Serfontein noted that Claim ant was doing very well with no depressive sym ptom s on screening, that she experienced no side-effects from her m edication, and that she had no suicidal ideation and was able to handle everyday situations well. (Tr. at 337). He also stated that Claim ant diabetes was controlled and that she had no side effects from her m edication. Id. Regarding hyperlipidem ia, Claim ant was “doing well” and her lipids were within acceptable lim its. Id. Lastly, Dr. Serfontein reviewed Claim ant’s blood pressure m edication with her and instructed her to follow a low-salt diet, exercise regularly, and lim it her caloric intake. Id. On J anuary 29, 20 0 8, Dr. Serfontein responded to a list of questions prepared by Claim ant’s attorney: Q Do you feel that [Claim ant’s] subjective com plaints of pain and fatigue are consistent with your objective findings? If so, on what do you base this opinion? A Yes, has fibrom yalgia. Q Do you think that [Claim ant] could engage in em ploym ent (8 hours a day, 5 days a week) on a consistent basis? If not, why? A No; severe pain + discom fort. Q Does [Claim ant] have other impairm ents which lim it her ability to work? If so, what? A Severe asthm a Depression (Tr. at 375-376). On J anuary 30 , 20 0 8, Dr. Wilcoxon completed an assessm ent of Claim ant’s physical ability to do work-related activities at the request of Claim ant’s attorney. (Tr. at 330 -334). He noted that she could lift 15 pounds and carry 8 pounds and that she could lift/ carry a m axim um of 6-8 pounds occasionally and 0 -6 pounds frequently, 11 based on her “degenerative disc disease of the lum bar, thoracic, and cervical spine.” (Tr. at 332). She could stand and/ or walk a total of 4 hours in a workday with breaks every 10 m inutes. (Tr. at 333). She could sit for 6-7 hours in a workday with breaks every 20 minutes. Id. She could occasionally balance, stoop, crouch, kneel, and crawl, but never clim b. Id. Physical functions of “handling and pushing/ pulling would cause acute exacerbations if pressed beyond her lim its,” but she was not lim ited in reaching, feeling, seeing, hearing, or speaking. (Tr. at 334). She should avoid heights and m achinery because she could not “balance or m ove fast enough to get out of the way” and tem perature extrem es because they “affect her arthritis adversely.” Id. Dr. Wilcoxon also responded to the list of questions prepared by Claim ant’s attorney: Q Do you feel that [Claim ant’s] subjective com plaints of pain and fatigue are consistent with your objective findings? If so, on what do you base this opinion? A Yes. I base this opinion on the fact that [Claim ant] lives with chronic degenerative disc disease and osteoarthritis on a daily basis. These conditions are perm anent and will further degenerate as she ages. Q Do you think that [Claim ant] could engage in em ploym ent (8 hours a day, 5 days a week) on a consistent basis? If not, why? A No, her spine has too m uch degenerative disease present even for her to have a sedentary job 8 hrs/ day 5 days/ week. She would not hold up under that kind of postural stress and pressure. Q Does [Claim ant] have other impairm ents which lim it her ability to work? If so, what? A I believe she is also suffering from fibrom yalgia that affects the m uscles of her arm s, trunk and legs as well. (Tr. at 330 -331). 12 On February 21, 20 0 8, Dr. Wilcoxon stated the following in a letter to Claim ant’s attorney: I have treated your client/ m y patient [Claim ant] since 11/ 0 2/ 20 0 1 and this letter is written to clarify her condition and the treatm ent that has been rendered. [Claim ant] first entered this office in Novem ber of 20 0 1 for exam ination and possible treatm ent of pain in the lum bar spine, right hip, legs, ankles, and cervical spine.Chiropractic/ orthopedic/ neurological testing coupled with X-rays and MRI studies have led to the diagnosis of cervical disc bulging at C5, C6 and C6-C7. Degenerative disc disease is present at those levels as well as the bottom three lum bar levels. In addition, she suffers from fibrom yalgia involving the cervical, thoracic, and lum bar regions. Her condition becam e so severe that she had to leave work in April of 20 0 4. She treats for these conditions once per week and has done so since her beginning date with very few exceptions. Her prognosis is fair with continuing treatm ent. Her conditions are perm anent and will m ost likely becom e m ore severe as she ages. The degenerative process is advanced as com pared to her age and [in] m y professional opinion she is totally disabled and will not be able to return to, not only her job, but any job that is full tim e. (Tr. at 335). On February 25, 20 0 8, Dr. Serfontein com pleted a m edical assessm ent of Claim ant’s physical ability to do work-related activities at the request of Claim ant’s attorney. (Tr. at 372-376). In his opinion, Claim ant was lim ited to lifting/ carrying 12-15 pounds occasionally and 15 pounds frequently due to “chronic, persistent m uscle pain where having pains.” (Tr. at 372). Also, Claim ant could stand/ walk for a total of 1 hour in a workday, sit for 30 m inutes without interruption, occasionally balance and stoop, but never clim b, crouch, kneel, or crawl. (Tr. at 373). She was lim ited in pushing/ pulling, but not in reaching, handling, feeling, seeing, hearing, or speaking. (Tr. at 374). She should avoid heights, m oving m achinery, tem perature extrem e, chem icals, dust, fum es, and hum idity. Id. The sam e day, Dr. Serfontein assessed Claim ant’s m ental ability to do workrelated activities. (Tr. at 377-379). On a scale of “unlim ited,” “good,” “fair,” “poor,” and 13 “none,” Claim ant was “unlim ited” in following work rules and relating to co-workers; “good” in using judgm ent, interacting with supervisor(s), functioning independently, and m aintaining attention/ concentration; “fair” in dealing with the public; and “poor” in dealing with work stresses. (Tr. at 377). On the sam e scale, Claim ant was “good” in understanding, rem em bering, and carrying out sim ple to com plex job instructions; “unlim ited” in m aintaining personal appearance; “good” in relating predictably in social situations and dem onstrating reliability; and “fair” in behaving in an em otionally stable m anner. (Tr. at 378). IV. Claim an t’s Ch alle n ge s to th e Co m m is s io n e r’s D e cis io n Claim ant asserts that (1) the ALJ ’s decision is not supported by substantial evidence because “the weight of the m edical evidence is sufficient to prove that [Claim ant] is disabled” or in the alternative, “that her im pairm ents prevent her from engaging in substantial gainful activity;” (2) that the ALJ failed to properly consider the opinions of Claim ant’s treating sources; and (3) that relevant and m aterial evidence is m issing from the transcript of record. (Pl.'s Br. at 4-11). The Com m issioner, on the other the hand, argues that the ALJ com plied with the regulations in evaluating the m edical source opinions and Claim ant’s subjective com plaints and that the electronic transcript is com plete. (Def.'s Br. at 11-20 ). V. D is cu s s io n a. Claim an t’s Im p airm e n ts in Co m bin atio n Claim ant’s initial allegation of error has two alternate prongs. First, Claim ant contends that the sheer num ber of her m edical conditions, standing alone, is proof of disability. She argues that her m ultitude of problem s, when considered in com bination, 14 m ust equal or m eet a Listed Impairm ent. (Pl.'s Br. at 5). Claim ant offers no insight, however, into what Listed Im partm ent is m et by her com bination of conditions. “The Listing of Im pairm ents describes, for each of the m ajor body system s, im pairm ents that are considered severe enough to prevent an adult from doing any gainful activity,” see 20 C.F.R. § 40 4.1525(a) (20 0 8), regardless of age, education or work experience, see Sullivan v. Zebley , 493 U.S. 521, 532 (1990 ). “For a claim ant to qualify for benefits by showing that his unlisted im pairm ent, or com bination of im pairm ents, is ‘equivalent’ to a listed impairm ent, he m ust present m edical findings equal in severity to all the criteria for the one m ost sim ilar listed im pairm ent.” See Id. at 531. In Spaulding v. Astrue, 20 10 WL 3731859 (S.D.W.Va. 20 10 ), the claim ant made the sam e argum ent that her im pairm ents “[o]bviously” equaled a listed im pairm ent and prevented her from working. Spaulding, 20 10 WL 3731859 at *16. The Court held that her argum ent was without m erit, stating that “[u]nder the regulations, it is Claim ant's burden to prove that her condition equals the criteria of one of the listed im pairm ents, yet Claim ant does not even attem pt to specify which listing she believes her conditions m eet.” Id. Here, the ALJ specified why Claim ant’s severe im pairm ents did not m eet a Listing. (Tr. at 18-19). He then stated the following: The undersigned has also considered the claim ant’s im pairm ents in com bination to see if they equal in severity any of the listings under Appendix 1 but finds that the evidence establishes that the claim ant is able to perform a wide range of activity, which is not consistent with presum ptive disability (Exhibit 16F).3 Therefore, her im pairm ents, singly 3 “Exhibit 16F” is a Physical RFC Assessment com pleted by Dr. Lambrechts dated Decem ber 2, 20 0 6. (Tr. at 313-320 ). 15 and in com bination, do not equal in severity any listed im pairm ent. Thus, a determ ination of whether she retains the [RFC] to perform the requirem ents of her past relevant work or can adjust to other work is required. (Tr. at 19). Substantial evidence supports the ALJ ’s determ ination that Claim ant’s com bination of im pairm ents does not equal in severity any of the im pairm ents listed, and Claim ant does not offer any precise argum ent to contradict this finding. Therefore, the Court rejects Claim ant’s contention that her physical and m ental im pairm ents in com bination equal a Listed Im pairm ent. Second, Claim ant argues in the alternative that “in the event the [Claim ant’s] im pairm ents in com bination do not equal a Listed Im pairm ent, then it is [her] position that her im pairm ents prevent her from engaging in substantial gainful activity.” (Tr. at 5-6). In support of this argum ent, Claim ant (1) points to the testim ony of the vocational expert who stated that Claim ant was incapable of substantial gainful activity if afforded full faith and credibility, (2) argues that the ALJ erred in finding that her testim ony was not entirely credible and that her credibility was only “fair,” and (3) alleges that the ALJ im properly substituted his personal opinion for that of Dr. Serfontein and Dr. Wilcoxon and did not provide any m eaningful discussion as to why he disregarded their m edical opinions. (Pl.'s Br. at 6-8). As Claim ant states, the ALJ ’s “credibility determination is all the m ore im portant in this case because the Vocational Expert testified that [Claim ant was] unable to perform substantial gainful activity if her testim ony is found to be fully credible.” However, contrary to Claim ant’s assertions, the ALJ appropriately assessed Claim ant’s credibility in accordance with 20 C.F.R. § 40 4.1529. 16 Because the ALJ determ ined that Claim ant had m edically determ inable im pairm ents that could cause her pain or sym ptom s, he evaluated the intensity, persistence, and lim iting effects of Claim ant’s sym ptom s to determ ine the extent to which they lim ited her ability to do basic work activities. (Tr. at 19); see 20 C.F.R. § 40 4.1529. For this purpose, whenever statem ents about the intensity, persistence, and lim iting effects of pain and other sym ptom s were not substantiated by objective m edical evidence, the ALJ m ade a credibility determ ination based on a consideration of the entire case record. Id. The ALJ thoroughly considered and discussed Claim ant’s daily activities; the location, duration, frequency, and intensity of Claim ant’s pain and other sym ptom s; precipitating and aggravating factors; Claim ant’s m edication and side effects; and treatm ent other than m edication.(Tr. at 20 -21). Upon considering all of the evidence, the ALJ concluded that Claim ant’s statem ents concerning the intensity, persistence, and lim iting effects of her sym ptom s were “only fair.” (Tr. at 21). The ALJ thoroughly articulated the basis for his credibility finding, explaining in detail how specific pieces of m edical and testim onial evidence did not reconcile with Claim ant’s statem ents regarding her pain and sym ptom s. (Tr. at 2123). Therefore, his credibility determ ination fully com ported with 20 C.F.R. § 40 4.1529, and Claim ant’s argum ent that the ALJ erred in finding that Claim ant’s statem ents were not entirely credible is without m erit. Claim ant’s contention that the ALJ im properly substituted his personal opinion for that of Dr. Serfontein and Dr. Wilcoxon and did not provide any meaningful discussion as to why he disregarded their m edical opinions is sim ilarly unfounded. Claim ant argues that the ALJ exceeded the boundaries of his expertise in finding that that Claim ant did not suffer from fibrom yalgia despite the fact that Dr. Serfontein and 17 Dr. Wilcoxon stated that she had the condition. (Pl.'s Br. at 7-8). Claim ant specifically cites portions of letters written to Claim ant’s attorney by Dr. Serfontein and Dr. Wilcoxon (Pl.'s Br. at 8). 4 At the second step of the five-step sequential evaluation process, an ALJ m ust determ ine whether the claim ant has m edically determ inable im pairments or a com bination of im pairm ents that are “severe.” 20 C.F.R. 40 4.1520 (c). At this step, the ALJ considered Claim ant’s alleged fibrom yalgia, stating: In February 20 0 7 shortly after the death of her m other, although there was no indication of any sensory deficits, upon the claim ant’s subjective com plaints of increased depression, neuropathic type pain of the extrem ities, and m ulti-joint pain with clinical signs of trigger point tenderness, Dr. Serfontein rendered additional assessm ents of fibrom yalgia and neuropathy (Exhibit 26F). However, follow up visits in May and Septem ber 20 0 7, show both greatly im proved with m edication (Lyrica, a nerve pain reliever, Darvocet, a pain reliever, and Lexapro, [an] anti-anxiety/ anti-depressant m edication. (Id.). Moreover, there is no indication of further com plaints to this degree and there is nothing in the m edical evidence to suggest that diagnostic workup has been ordered. (Id.). In fact, other than this one occasion of positive trigger point tenderness, there is no indication that m ultiple trigger points have been dem onstrated upon repeated exam ination (Exhibits 10 F and 26F). Sim ilarly, while reports of Dr. Wilcoxon dated J anuary and February 20 0 8 indicate that he believes the claim ant is also suffering from fibrom yalgia involving the shoulders, cervical spine, and lum bar regions, as is the case with Dr. Serfontein’s treatm ent notes, there are only vague descriptions of m uscular tenderness without specific signs to support such a diagnosis (Exhibits 24F and 25F). Absent m ore, the undersigned does not find that the m edical evidence establishes a definitive medically determ inable im pairm ent of either neuropathy or fibrom yalgia. (Tr. at 17). 4 Dr. Wilcoxon’s letter is Exhibit 25F, which Claim ant states is m issing from the transcript of record. However, a review of the electronically filed transcript reflects the presence of this docum ent. (See Tr. at 335). 18 A review of the m edical record, specifically focusing on the treatment notes and letters from Dr. Serfontein and Dr. Wilcoxon (Tr. at 336-371, 276-287, 329-334, and 335), reveals that the ALJ ’s rationale and finding regarding Claim ant’s alleged fibrom yalgia is supported by substantial evidence. In response to the question by Claim ant’s attorney, “Do you feel that [Claim ant’s] subjective com plaints of pain and fatigue are consistent with your objective findings? If so, on what do you based this opinion,” Dr. Serfontein stated, “Yes, has fibrom yalgia.” (Tr. at 375). Dr. Wilcoxon stated in J anuary 20 0 8, “I believe she is also suffering from fibrom yalgia” and in February 20 0 8 that Claim ant “suffers from fibrom yalgia.” (Tr. at 335). However, these statem ents rest entirely on Claim ant’s subjective com plaints rather than objective m edical evidence. As discussed, the ALJ concluded that Claim ant’s statem ents concerning the intensity, persistence, and lim iting effects of her sym ptom s were “only fair.” (Tr. at 21). The Court found that the credibility determ ination was supported by substantial evidence. This Court m ust give great deference to the ALJ 's credibility determ inations. See Eldeco, Inc. v. N.L.R.B., 132 F.3d 10 0 7, 10 11 (4th Cir. 1983). The Court of Appeals for the Fourth Circuit has determ ined that “[w]hen factual findings rest upon credibility determ inations, they should be accepted by the reviewing court absent ‘exceptional circum stances.’” Id., quoting N.L.R.B. v. Air Prods. & Chem s., Inc., 717 F.2d 141, 14 (4th Cir. 1983). Exceptional circum stances include cases where “a credibility determ ination is unreasonable, contradicts other findings of fact, or is based on an inadequate reason or no reason at all.” Id., quoting NLRB v. McCullough Environm ental Services, Inc., 5 F.3d 923, 928 (5th Cir. 1993). 19 There are no such “exceptional circum stances” present here. The credibility determ ination is reasonable, does not contradict other findings of fact, and is based on adequate reasoning. Therefore, the ALJ ’s finding of fact that Claim ant does not suffer from fibrom yalgia, as it is based on his proper assessm ent of Claim ant’s credibility as “only fair,” is supported by substantial evidence. Finally, Claim ant argues that the ALJ “failed to articulate in any m eaningful m anner why he disregarded the m edical opinion of Dr. Wilcoxon” and “Dr. Serfontein” and that he failed to appreciate the im pact that “m edium to very heavy in exertion” em ploym ent history had on a wom an “5’6”in height and weighing 20 5-237 pounds.” (Pl.'s Br. at 8 and 9). These argum ents ignore the written decision of the ALJ . The ALJ explained at length his reasoning for the weight he afforded to the opinions of both doctors. (Tr. at 24-25). Further, the ALJ considered the effect of Claim ant’s work history by questioning her about her past em ploym ent during the adm inistrative hearing, by inquiring what prevented her from working, by considering her subjective com plaints in m aking a credibility determ ination, and in considering the m edical evidence of record. (Tr. at 31-53 and 20 -25). b. Co n s id e ratio n o f Tre atin g So u rce Op in io n s Claim ant next alleges that the ALJ failed to follow the Social Security Regulations and case law in his treatm ent of Claim ant’s treating doctors’ opinions. (Pl.'s Br. at 9). In evaluating the opinions of treating sources, the Com m issioner generally m ust give m ore weight to the opinion of a treating physician because the physician is often m ost able to provide “a detailed, longitudinal picture” of a claim ant’s alleged disability. 20 See 20 C.F.R. § 40 4.1527(d) (2) (20 0 8). Nevertheless, a treating physician’s opinion is afforded “controlling weight only if two conditions are m et: (1) that it is supported by clinical and laboratory diagnostic techniques and (2) that it is not inconsistent with other substantial evidence.” W ard v. Chater, 924 F. Supp. 53, 55 (W.D. Va. 1996); see also 20 C.F.R. § 40 4.1527(d)(2) (20 0 8). The opinion of a treating physician m ust be weighed against the record as a whole when determ ining eligibility for benefits. 20 C.F.R. §§ 40 4.1527(d)(2) (20 0 0 ). Ultim ately, it is the responsibility of the Com m issioner, not the Court, to review the case, m ake findings of fact, and resolve conflicts of evidence. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). The Court’s obligation is to scrutinize the record as a whole to determ ine whether the Com m issioner’s conclusions are rational. Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1994). Section 20 C.F.R. § 40 4.1527 addresses how the SSA considers m edical opinions in deciding whether a claim ant is disabled. According to 20 C.F.R. § 40 4.1527(d), “[r]egardless of its source, we [the SSA] will evaluate every m edical opinion we receive. Unless we give a treating source’s opinion controlling weight under paragraph (d)(2), we consider all of the following factors in deciding the weight we give to any m edical opinion.” Consequently, if the ALJ determ ines that a treating physician’s opinion should not be afforded controlling weight, the ALJ m ust consider the factors listed in 20 C.F.R. § 40 4.1527(d) in weighing all of the m edical opinions, including those of the treating physician. These factors include: (1) length of the treatm ent relationship and frequency of evaluation, (2) nature and extent of the treatm ent relationship, (3) supportability, (4) consistency, (5) specialization, and (6) various other factors. Additionally, the regulations state that the Com m issioner “will always give good 21 reasons in our notice of determination or decision for the weight we give your treating source’s opinion.” Id. § 40 4.1527(d)(2). Under § 40 4.1527(d)(1), m ore weight is given to an exam iner than to a nonexam iner. Section 40 4.1527(d)(2) provides that m ore weight will be given to treating sources than to exam ining sources (and, by extension, than to non-exam ining sources). Section 40 4.1527(d)(2)(i) states that the longer a treating source treats a claim ant, the m ore weight the source’s opinion will be given. Under § 40 4.1527(d)(2)(ii), the m ore knowledge a treating source has about a claim ant’s im pairm ent, the m ore weight will be given to the source’s opinion. Section 40 4.1527(d)(3), (4), and (5) adds the factors of supportability (the m ore evidence, especially m edical signs and laboratory findings, in support of an opinion, the m ore weight will be given), consistency (the m ore consistent an opinion is with the evidence as a whole, the m ore weight will be given), and specialization (m ore weight given to an opinion by a specialist about issues in his/ her area of specialty). In his decision, the ALJ discussed the m edical evidence received from Dr. Wilcoxon and concluded: While Dr. Wilcoxon’s opinions as a longtim e treating practitioner have been considered, the undersigned cannot accord them great weight for several reasons. First, pursuant to 20 C.F.R. § 40 4.1513/ 416.913 although the opinions of a physician assistant or sim ilar type of m edical professional can be used to establish the nature and severity of an individual’s im pairm ents, these individuals are not considered to be acceptable m edical sources. Second, the ultim ate decision of disability is one to be decided by the Social Security Adm inistration, not that of a physician (Social Security Ruling 96-5p). Finally, as treatm ent, which in and of itself appears to be som ewhat inconsistent with his conclusions as does the change in his opinions from J anuary in that the claim ant could perform a range of sedentary activities to her being totally disabled in February 20 0 8. For all of these reasons, the undersigned does not find Dr. 22 Wilcoxon’s opinions to be persuasive and, thus, accords them little weight herein. (Tr. at 24). The ALJ com plied with all of the applicable Regulations regarding the opinions of Dr. Wilcoxon. The ALJ is correct that chiropractors are not listed as acceptable sources of m edical evidence of im pairm ent. 20 C.F.R. § 40 4.1513(a). Chiropractors m ay help the Com m issioner understand how an im pairm ent affects a party's ability to work, 20 CFR § 40 4.1513(e)(3); however, m edical opinions of chiropractors are entitled to little or no weight above that of the laym an. Rule v. Apfel , 20 0 1 WL 34670 957, *22 (N.D.W.Va. 20 0 1), citing Lee v. Sullivan, 945 F.2d 687 (4th Cir. 1991). Here, the ALJ concluded that Dr. Wilcoxon’s ultim ate conclusions were inconsistent with his treatm ent notes. (Tr. at 24). Therefore, the ALJ properly accorded little weight to Dr. Wilcoxon’s opinions. In addition, the ALJ properly rejected Dr. Wilcoxon’s statem ent that Claim ant is totally disabled. Social Security Ruling (hereinafter “SSR”) 96-5p states: “Under 20 CFR 40 4.1527(e) and 416.927(e), som e issues are not m edical issues regarding the nature and severity of an individual's im pairm ent(s) but are adm inistrative findings that are dispositive of a case; i.e., that would direct the determ ination or decision of disability.” SSR 96-5p. An exam ple of such an issue is “[w]hether an individual is ‘disabled’ under the Act.” Id. “The regulations provide that the final responsibility for deciding issues such as [whether an individual is disabled] is reserved to the Com m issioner.” Id. In regard to Dr. Serfontein, the ALJ exam ined the evidence received from him , along with the other evidence of record, and stated: 23 As with Dr. Wilcoxon’s opinions, the undersigned has given consideration to these opinions, however, his conclusory statem ent that the claim ant is unable to engage in work activity is rejected pursuant to Social Security Ruling 96-5p. Sim ilarly, the undersigned does not find either his physical or m ental assessm ents to be consistent with his own treatm ent notes nor with the other substantial evidence of record. As detailed above, exam ination on J anuary 3, 20 0 8, just five days prior to the doctor’s first report and less than two m onths prior to his subsequent m edical assessm ents, he found the claim ant to have a norm al m ood and affect and good ability to handle everyday situations (Exhibit 26F). Second, neither the claim ant nor his exam ination revealed any shortness of breath or pulm onary deficits and there was no joint swelling or weakness. (Id.). In fact, other than dim inished sensation over both feet, there were no other significant findings noted and the claim ant denied pain and said that she was doing well. (Id.). As such, it appears that in rendering these opinions the doctor relied heavily upon the claim ant’s subjective com plaints rather than his objective findings. Finally, as a general practitioner, the undersigned not only finds Dr. Serfontein’s opinions with respect to the claim ant’s m ental health not only inconsistent with his exam ination findings but even m ore im portantly, these opinions rest out of his area of expertise. Given all of the above, the undersigned rejects these opinions pursuant to Social Security Ruling 96-2p. (Tr. at 24-25). Unlike Dr. Wilcoxon, Dr. Serfontein is defined as an acceptable medical source. 20 C.F.R. § 40 4.1513(a). Therefore, the ALJ was required to consider Dr. Serfontein’s opinion that Claim ant was unable to engage in any work activity, an issue reserved to the Com m issioner, to the extent required by SSR 96-5p: If the case record contains an opinion from a m edical source on an issue reserved to the Com m issioner, the adjudicator m ust evaluate all the evidence in the case record to determ ine the extent to which the opinion is supported by the record. SSR 96-5p. The ALJ com plied with this directive in rejecting Dr. Serfontein’s opinion that Claim ant could not engage in any em ploym ent. Dr. Serfontein’s opinion that Claim ant could not engage in any em ploym ent was expressed in one of his responses to a list of questions written by Claim ant’s attorney. In particular, the question asked if Dr. Serfontein thought that Claim ant’s could engage in em ploym ent on a consistent 24 basis and if so, why not? Dr. Serfontein responded, “no, severe pain + discom fort.” (Tr. at 375). Claim ant quotes New ton v. Apfel, 20 9 F.3d 448, 453 (5th Cir. 20 0 0 ) in support of her position that “[a]t a m inim um , the ALJ should have m ade an inquiry of Dr. Serfontein for clarification as to his basis for stating that [Claim ant] is unable to engage in work activity.” However, the ALJ was not required to seek such clarification because clarification was not necessary. As was clear from Dr. Serfontein’s own statem ent, he relied on Claim ant’s subjective com plaints that she suffered from severe “pain” and “discom fort” in form ing his opinion. The ALJ rejected his statem ent on this basis, as Claim ant’s subjective com plaints, and thus, an opinion based on them , did not com port with the evidence of record. The ALJ next considered Dr. Serfontein’s physical and m ental assessm ents. As discussed, when an ALJ does not afford controlling weight to a claim ant’s treating physician, the ALJ must analyze and weigh all of the evidence of record, taking into account the factors listed in 20 C.F.R. § 40 4.1527 and he m ust adequately explain his rationale in the decision. The ALJ com plied with these requirem ents in rejecting Dr. Serfontein’s assessm ents. He considered the length, frequency, nature, and extent of the treatm ent relationship between Claim ant and Dr. Serfontein. He noted at the outset that the m ajority of Claim ant’s care has been rendered by Dr. Wilcoxon, Dr. Wagner, Claim ant’s form er prim ary care physician, and Dr. Serfontein, Claim ant’s current prim ary care physician. (Tr. at 15). The ALJ later noted that Claim ant is followed by her chiropractor, Dr. Wilcoxon, whom she sees weekly, and by her prim ary care physician, Dr. Serfontein. (Tr. at 20 ). The ALJ was clearly cognizant of the length, frequency, nature, and extent of the treating relationship between Claim ant and Dr. Serfontein. 25 The ALJ then considered the factors of supportability and consistency and found that they were lacking. The ALJ found that Dr. Serfontein’s physical and m ental assessm ents were not supported by his own treatm ent notes. (Tr. at 24). Further, the ALJ found that his assessm ents were not consistent with the other substantial evidence of record. (Tr. at 24). For instance, on J anuary 7, 20 0 8, Dr. Serfontein’s objective findings showed that Claim ant’s diabetes was controlled; that she had no side effects from her m edication; and that was “doing well” regarding her hyperlipidem ia and her lipids were within acceptable lim its. (Tr. at 337). The following m onth, when asked to fill out a physical assessm ent form , Dr. Serfontein assessed Claim ant with various lim itations, repeatedly noting “pain” as the m edical findings which support his assessm ent. (Tr. at 372-374). Dr. Serfontein did not note clinical findings or other objective evidence in support of his opinions; rather, he noted only subjective com plaints. Id. Dr. Serfontein had physically exam ined and tested Claim ant, yet he did not note those results to support his opinions because as is evident from his notations, it was her subjective com plaints, not the objective evidence, that supported his opinions regarding Claim ant’s lim itations. Dr. Serfontein clearly indicates that he relied on Claim ant’s subjective com plaints of pain in form ing his physical assessm ent of Claim ant. As discussed, the ALJ properly assessed Claim ant credibility as only “fair.” (Tr. at 21). Therefore, as Dr. Serfontein’s opinions conflicted with the objective evidence of record due to his reliance on Claim ant’s subjective com plaints, the ALJ properly rejected them . In addition, Dr. Serfontein is a general practitioner. He is not qualified to evaluate Claim ant’s m ental faculties. The ALJ properly rejected his m ental assessm ent for this reason. 26 c. Mis s in g D o cu m e n ts Claim ant’s final argum ent is that pages 293 through 336 are m issing from the transcript of the record. (Pl.'s Br. at 11). Claim ant is correct that these pages, which include a portion of Exhibit 13F, Exhibits 14F through 25F in full, and a portion of Exhibit 26F, are m issing from the printed version of the transcript; however, the electronically docketed version is com plete. (Docket No. 7). The ALJ clearly considered these docum ents, as he cites to them throughout his decision. (Tr. at 15-26). The Court considered these records as well. Therefore, the absence of the docum ents from the printed record does not necessitate rem and. 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 24, 20 10 . 27
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