Freeman v. Astrue, No. 3:2010cv00357 - Document 10 (S.D.W. Va. 2011)
Court Description: PROPOSED FINDINGS AND RECOMMENDATIONS the Magistrate Judge respectfully Proposes that the United States District Judge confirm and accept the findings herein and Recommends that the District Court Deny Plaintiff's Motion for Judgment on the Plea dings; Grant Defendant's Motion for Judgment on the Pleadings; Affirm the final decision of the Commissioner, and Dismisses this action from the docket of the Court; Parties shall have 14 days within which to file with the Clerk any written objections. Signed by Magistrate Judge Cheryl A. Eifert on 4/19/2011. (cc: attys; any unrepresented party) (skm)
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Freeman v. Astrue Doc. 10 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 CON N IE FRAN CES FREEMAN , Plain tiff, v. CIVIL ACTION N O. 3 :10 -0 0 3 57 MICH AEL J. ASTRU E, Co m m is s io n e r o f So cial Se cu rity, D e fe n d an t. PROPOSED FIN D IN GS AN D RECOMMEN D ATION S This is an action seeking review of the decision of the Com m issioner of the Social Security Adm inistration (hereinafter the “Com m issioner”) denying Claim ant’s application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 40 1-433. This case was referred to the undersigned United States Magistrate J udge by standing order for subm ission of proposed findings of fact and recom m endations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The case is presently pending before the Court on the parties’ crossm otions for judgm ent on the pleadings as articulated in their briefs. (Docket Nos. 7 and 8). The undersigned United States Magistrate J udge has fully considered the evidence and the argum ents of counsel. For the reasons set forth below, the undersigned proposes and recom m ends that the United States District J udge find -1- Dockets.Justia.com that the decision of the Com m issioner is supported by substantial evidence and should be affirm ed. I. Pro ce d u ral H is to ry Plaintiff, Connie Frances Freem an (hereinafter “Claim ant”), protectively filed a DIB application on J une 26, 20 0 8,1 alleging disability beginning J anuary 1, 20 0 6 due to “bad knees, high blood pressure & legs and osteoarthritis.” (Tr. at 130 and 135). Her application was denied initially and upon reconsideration. (Tr. at 55-59 and 6163). Claim ant then filed a tim ely request for a hearing, which was held on Decem ber 18, 20 0 8 before the Honorable William R. Paxton, Adm inistrative Law J udge (hereinafter “ALJ ”). (Tr. at 18-52). By decision dated J une 22, 20 0 9, the ALJ determ ined that Claim ant had not been under a disability as defined by the Social Security Act. (Tr. at 9-17). The ALJ ’s decision becam e the final decision of the Com m issioner on J anuary 28, 20 10 when the Appeals Council denied Claim ant’s request for review. (Tr. at 1-5). On March 18, 20 10 , 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). The Com m issioner filed his Answer and a transcript of the adm inistrative proceedings on J une 2, 20 10 . (Docket Nos. 5 and 6). The parties filed their briefs in support of judgm ent on the pleadings on J uly 1, 20 10 and J uly 21, 20 10 . (Docket Nos. 7 and 8). The m atter is, therefore, ripe for resolution. 1 Claim ant filed an application for Social Security Incom e (SSI) on the same date, but the application was denied because her incom e exceeded the lim its of Title XVI of the Social Security Act. Claim ant also previously filed DIB and SSI applications in 1993 which were denied at the initial level with no further appeal. (See Tr. at 110 ). -2- II. Su m m ary o f th e ALJ’s D e cis io n Under 42 U.S.C. § 423(d)(5), a claim ant seeking 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 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 . The first step in the sequence is determ ining whether a claim ant is currently engaged in substantial gainful employm ent. Id. § 40 4.1520 (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). If a severe im pairm ent is 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). 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 m ust 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. Id. § 40 4.1520 (e). 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 (f). If the im pairm ents do prevent the perform ance of past relevant work, then the claim ant has -3- 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 (g); see also McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Com m issioner m ust establish two things: (1) that the claim ant, 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 (4th Cir. 1976). In this case, the ALJ determined that Claim ant m et the insured status requirem ents for DIB through J une 30 , 20 0 7 and had not engaged in substantial gainful activity since her alleged disability onset date of J anuary 1, 20 0 6, thereby fulfilling the first step of the sequential evaluation. (Tr. at 11, Finding Nos. 1 and 2). At the second step of the analysis, the ALJ concluded that Claim ant had severe im pairm ents of degenerative arthritis in the knees and left ankle and obesity. (Tr. at 11, Finding No. 3). The ALJ also considered Claim ant’s high blood pressure and found it to be a non-severe im pairm ent. (Id.) At the third step of the evaluation, the ALJ concluded that Claim ant did not have an im pairm ent or com bination of impairm ents that m et or m edically equaled an im pairm ent listed in 20 C.F.R. Part 40 4, Subpart P, Appendix 1. (Tr. at 12, Finding No. 4). The ALJ then found that Claim ant had the residual functional capacity (“RFC”) to do the following: [L]ight work as defined in 20 C.F.R. 40 4.1567(b). The claim ant could do no clim bing of ladders, ropes, or scaffolds. She could occasionally clim b -4- ram ps and stairs. She could occasionally balance, kneel, and stoop. She could do no crouching or crawling. She would have to avoid concentrated exposure to hazards such as heights and m achinery. (Tr. at 12, Finding No. 5). Considering the testim ony of a vocational expert, the ALJ concluded that Claim ant was capable of perform ing her past relevant work as a grocery store cashier, because it did not require work-related activities which were precluded by her RFC. (Tr. at 16, Finding No. 6). The ALJ noted that Claim ant’s work as a grocery store cashier in 1998 lasted long enough for her to learn to perform the job and constituted substantial gainful activity with the m eaning of the Regulations. (Id.). In com paring Claim ant’s RFC with the physical and m ental dem ands of this work, the ALJ found that Claim ant was capable of com pleting the duties of the job as they were generally perform ed. (Id.). Accordingly, Claim ant was not under a disability as defined by the Social Security Act. (Tr. at 17, Finding No. 7). III. 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. In Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972), the Fourth Circuit Court of Appeals defined substantial evidence 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 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, supra at 776, quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966). -5- 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, m ake credibility determinations, or substitute its judgm ent for that of the Com m issioner. Id. The Court’s responsibility is 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 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). The Court decides “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). IV. Claim an t’s Backgro u n d Claim ant was 45 years old on the date of her adm inistrative hearing. (Tr. at 22). She attended high school through m ost of the ninth grade. (Id.). She could speak and understand English. (Tr. at 134). Her past relevant work included em ploym ent as a dishwasher at a restaurant, a housekeeper, a deli worker, a cashier at a grocery store, and a kitchen aide and housekeeper at a nursing hom e. (Tr. at 136). V. 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 contends that the decision of the Com m issioner is not supported by substantial evidence for three reasons: (1) the ALJ erred in assessing Claim ant’s credibility, (2) the ALJ im properly afforded the non-exam ining State agency -6- consultant’s opinion significant weight, and (3) newly subm itted m edical evidence required a rem and pursuant to sentence six of 42 U.S.C. § 40 5(g). (Docket No. 7). The Com m issioner responds (1) that the ALJ properly evaluated Claim ant’s subjective com plaints of pain and assessed her credibility under 20 C.F.R. § 40 4.1529 and Social Security Ruling 96-7p; (2) that the ALJ gave proper weight to the State agency physician’s assessm ent; and (3) that the case should not be rem anded on the basis of newly subm itted evidence because Claim ant could have obtained the evidence before the ALJ issued his decision and the evidence would not have been m aterial to the ALJ ’s decision. (Docket No. 8). VI. Me d ical Re co rd s The undersigned reviewed the m edical evidence in its entirety and sum m arizes below the relevant records. The m ajority of the m edical evidence post-dates the period during which Claim ant was insured. However, inasm uch as Claim ant m ust prove that she was disabled on or before the final date on which she m et the insured requirem ents for entitlem ent to disability benefits, the undersigned has considered this evidence to determ ine whether it elucidates Claim ant’s condition during the relevant tim e period. See Stahl v. Com m issioner, 20 0 8 WL 2565895, *4 (N.D.W.Va.), citing Highland v. Apfel, 149 F. 3d 873 (8th Cir. 1998). A. Evid e n ce Re latin g to th e Re le van t Tim e Pe rio d The m edical evidence created during the relevant tim e fram e (J anuary 1, 20 0 6 through J une 30 , 20 0 7) is essentially lim ited to three office visits with Enrique C. Sta. Ana, J r., M.D., at Em ergi-Care, Inc. (Tr. at 20 8). On Decem ber 7, 20 0 6, Claim ant m ade her initial visit to Dr. Sta. Ana, com plaining that her blood pressure was -7- “running high,” but reporting no other m edical concerns. (Tr. at 20 8). On Decem ber 22, 20 0 6, Claim ant returned to Dr. Sta. Ana for “follow up with blood work and EKG.” (Tr. at 20 9). Finally, on February 27, 20 0 7, Claim ant presented for a routine check-up with Dr. Sta. Ana. At this visit, Claim ant com plained of pain in her right leg radiating to her hip, indicating that the pain had been present for years, but was getting worse. (Tr. at 210 ).2 With the exception of som e routine laboratory reports and a m edication notation, the transcript of proceedings contains no other m edical record prepared between J anuary 1, 20 0 6, the alleged disability onset date, and J une 30 , 20 0 7, the date on which Claim ant was last insured. B. Po s t-In s u re d Evid e n ce On August 21, 20 0 7, Claim ant had a check-up appointm ent with Dr. Sta. Ana during which she com plained that her right leg pain continued to increase and her leg was swelling. (Tr. at 211). Dr. Sta. Ana scheduled Claim ant to undergo venous and arterial doppler studies. A bilateral venous duplex study was com pleted on Septem ber 17, 20 0 7. The indication for the study was noted to be varicose veins, and the findings included evidence of a Baker’s cyst, but no evidence of deep reflux. (Tr. at 221-223). On March 20 , 20 0 8, Claim ant’s left knee reportedly “went out,” causing her to fall and hurt her left foot. (See Tr. at 216). Three views were taken of her left ankle at CAMC Teays Valley Hospital. (Tr. at 225). J ohn E. Reifsteck, M.D. noted possible soft tissue injury to the lateral aspect of the left ankle, as well as som e degenerative 2 By way of background, Claim ant reports having two open surgeries on her right knee and one knee arthroscopy in 1986 and 1987, prior to her alleged onset of disability. (See Tr. at 234 and 30 ). She states that she had knee pain since around the sixth grade. (Id.). -8- changes, but no gross signs of acute fracture or dislocation. (Tr. at 225). Five days later, on March 25, 20 0 8, Claim ant presented for a follow-up appointm ent with Dr. Sta. Ana, reporting her fall and visit to the em ergency room . (Tr. at 216). She acknowledged that x-rays of her foot showed no fracture or break, but stated that she was told that her “ligam ents were m essed up” and that they placed her foot in a brace. (Id.). On the sam e date, four views were taken of Claim ant’s right knee at CAMC Teays Valley Hospital and were com pared to prior studies taken in August 20 0 7. (Tr. at 226). Christopher A. Schlarb, M.D. noted severe degenerative changes in Claim ant’s right knee, particularly within the m edial joint com partm ent; that a “loose body” was possibly present in her knee, which was also shown in her prior studies; and that no acute fractures or dislocations were identified. (Id.). Dr. Schlarb’s im pression was severe degenerative disease involving the knees. (Id.). On April 4, 20 0 8, an MRI was taken of Claim ant’s right knee at CAMC Teays Valley Hospital, indicating m arked degeneration with advanced tricom partm ental degenerative joint disease m ost pronounced at the m edial location. (Tr. at 228). J effrey C. Dam eron, M.D., noted that he could not identify the posterior horn of the m edial m eniscus and that the posterior horn of the lateral m eniscus appeared com plex and probably torn and com bined with degenerative intrasubstance degeneration; that he suspected intrarticular loose body that m igrated posterior to the m edial head of the gastrocnem ius m uscle insertion site; that she had sm all to m oderate knee joint effusion; that she had what was m ost com patible with bone bruising and/ or chronic hyperem ia from near bone-on-bone appearance of the m edial knee joint compartm ent; and that he could not visualize the anterior cruciate -9- ligam ent which concerned him for it being chronically torn and/ or degenerated; and that her PLC and collateral ligaments rem ained intact. (Id.). On May 7, 20 0 8, Claim ant was evaluated by Christopher M. Santangelo, PA-C (Physician Assistant-Certified) at Teays Valley Orthopedics to assess her right knee pain. (Tr. at 235). Mr. Santangelo’s im pression was that Claim ant suffered from severe osteoarthritis in her right knee with a chronic ACL tear. (Id.). Mr. Santangelo did not com m ent on the status of Claim ant’s left knee in the m edical history or physical exam ination notes from this visit. (Id.). On J une 9, 20 0 8, Claim ant was given an ultrasonogram of the deep veins of her left lower extrem ity. (Tr. at 229). Dr. Dam eron noted that there was no sonographic evidence of deep venous throm bosis, but Claim ant did have a rather large popliteal cyst (“Baker’s cyst”). (Id.). On the sam e date, four x-ray views were taken of her left knee, indicating a cystic bone lesion greater than 3 centim eters with what could be internal septations and com partm ents, which would be m ost com patible with an aneurism al bone cyst. (Tr. at 230 ). On J une 14, 20 0 8, an MRI was taken of Claim ant’s left knee without contrast. (Tr. at 231-232). Frank A. Muto, M.D., noted m oderate three com partm ent degenerative changes of the left knee, degenerative cartilidge thinning in the m edial and lateral fem oral condyles and lateral facet of the patella, a large Baker’s cyst, subcutaneous edem a, and a questionable m ild strain of the m edial collateral ligam entous com plex. (Tr. at 232). On J une 23, 20 0 8, Claim ant returned to Teays Valley Orthopedics com plaining of left knee pain that she had for “a long tim e.” (Tr. at 236). Mr. -10 - Santangelo’s im pression was that she had osteoarthritis with a m edial m eniscus tear and popliteal cyst in her left knee. (Id.). He discussed the options with her and she stated that she wished to proceed with a diagnostic and surgical arthroscopy of her left knee with an open excision of the popliteal cyst. (Id.). On J uly 11, 18, and 25 of 20 0 8, Claim ant was given Synvisc injections in her right knee at Teays Valley Orthopedics. (Tr. at 241-243). She returned on August 25, 20 0 8 and was seen by J am es B. Cox, M.D., reporting that her knee was a “little bit better” and that she could go back and forth to the store, but “that [was] about it as far as strenuous activities.” (Tr. at 284). Dr. Cox reviewed her x-rays and stated that she had advanced degenerative changes to both knees and that he did not think that further anthrsocopy would help. (Id.). Dr. Cox believed that they exhausted all conservative treatm ent options, as she was taking Lodine, receiving interm ittent cortisone and Synvisc injections, wearing a brace, doing hom e exercises. (Id.). Therefore, given the fact that she was “very young,” Dr. Cox thought the next step would be total replacem ent anthroplasty on both knees. (Id.). C. RFC Op in io n s On August 2, 20 0 8, agency single decision m aker Kay Means was asked to com plete a physical assessm ent evaluating Claim ant’s RFC through her last insured date. (Tr. at 155). Ms. Means found that there was insufficient evidence prior to Claim ant’s last insured date upon which to assess Claim ant’s RFC. (Tr. at 162). On Septem ber 10 , 20 0 8, agency consultant Rabah Boukhem is, M.D. was also asked to com plete an assessm ent of Claim ant’s physical RFC during the relevant tim e period. (Tr. at 251). Dr. Boukhem is likewise determ ined that there was insufficient -11- m edical evidence from Claim ant’s alleged onset date through her last insured date upon which to m ake a reasoned assessm ent. (Id.). On August 13, 20 0 9, Dr. Sta. Ana wrote a letter, which was subm itted to the Appeals Council in the course of its consideration of Claim ant’s request for a review of the ALJ ’s unfavorable decision. (Tr. at 10 3). Dr. Sta. Ana stated only the following: Claim ant “has history of osteoarthritis for years and was getting worse on February 27, 20 0 7. She was unable to perform full tim e work prior to J une 30 , 20 0 7.” (Id.). The Appeals Council m ade this letter a part of the record. (Tr. at 5). VII. An alys is A. Cre d ibility Claim ant first argues that the ALJ erred in finding that Claim ant was not fully credible when describing the intensity, persistence and lim iting effects of her pain and other sym ptom s. According to Claimant, her testim ony was not inconsistent with any m aterial fact or the evidence of record. She contends that the ALJ had a “predetermined” conclusion regarding her RFC and then rejected her statem ents about pain and other sym ptom s, because they were in conflict with that prem ature conclusion. (Docket No. 7). Having considered all of the evidence, the undersigned finds this argum ent to be entirely without m erit. Social Security Ruling 96-7p clarifies the two-step process by which the ALJ m ust evaluate sym ptom s, including pain, pursuant to 20 C.F.R. §§ 40 4.1529 and 416.929, in order to determ ine their lim iting effects on a claimant. First, the ALJ m ust establish whether the claim ant’s m edically determ inable m edical and psychological conditions could reasonably be expected to produce the claim ant’s -12- sym ptom s, including pain. SSR 96-7P. Once the ALJ finds that the conditions could be expected to produce the alleged sym ptom s, the ALJ m ust evaluate the intensity, persistence, and severity of the sym ptom s to determine the extent to which they prevent the claim ant from perform ing basic work activities. Id. Whenever the intensity, persistence or severity of the sym ptom s cannot be established by objective m edical evidence, the ALJ m ust assess the credibility of any statem ents m ade by a claim ant to support the alleged disabling effects. The Ruling sets forth the factors that the ALJ m ust consider in assessing the claim ant’s credibility, em phasizing the im portance of explaining the reasons supporting the credibility determ ination. The Ruling further directs that the credibility determ ination m ust be based on a consideration of all of the evidence in the case record. Id. When evaluating whether an ALJ ’s credibility determ inations are supported by substantial evidence, the Court is not charged with sim ply replacing its own credibility assessm ents for those of the ALJ ; rather, the Court m ust review the evidence to determ ine if it is sufficient to support the ALJ ’s conclusions. “In reviewing the record for substantial evidence, the Court does not re-weigh conflicting evidence . . . or substitute its own judgm ent for that of the Com m issioner.” See Hay s v. Sullivan, 90 7 F.2d. 1453, 1456 (4th Cir. 1990 ). 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 (4th Cir. 1984), citing Ty ler v. W einberger, 40 9 F. Supp. 776 (E.D.Va. 1976). -13- In this case, the ALJ found that Claim ant had m edically determ inable im pairm ents that could cause her alleged sym ptom s. As such, the ALJ considered Claim ant’s statem ents about the intensity, persistence and lim iting effects of her sym ptom s, com paring and contrasting them to (1) Claim ant’s daily activities, such as perform ing housework and driving to the post office, the store, and the doctor’s office; (2) the location, duration, frequency, and intensity of her pain and other sym ptom s, such as pain and num bness in her legs and occasional pain in her hips, feet, and ankles; (3) precipitating and aggravating factors, such as extended periods of standing, walking, or sitting; (4) her m edication and side effects, as well as other form s of relief and treatm ent, such as walking on a treadm ill and taking pain m edication; and (5) other factors concerning functional lim itations related to pain or other sym ptom s. (Tr. at 13-16); 20 C.F.R. 20 C.F.R. § 40 4.1529(c)(3). Pointing to inconsistencies between Claim ant’s statem ents and the other evidence of record, the ALJ ultimately concluded that Claim ant’s statem ents concerning the intensity, persistence and lim iting effects of her sym ptom s were not credible to the extent that they were inconsistent with her ability to engage in light exertional level work activities as outlined in his RFC finding. (Tr. at 14). After reviewing the ALJ ’s explanation for his determ ination and scrutinizing the evidence of record, the undersigned finds that the ALJ 's credibility assessm ent of Claim ant is consistent with the applicable regulation, case law, and Social Security Rulings and is supported by substantial evidence. 20 C.F.R. §§ 40 4.1529; SSR 96-7p, 1996 WL 374186 (J uly 2, 1996); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). -14- Claim ant testified that she was not able to work because her right leg “buckles,” swells, and hurts “all the tim e” and that she cannot squat or bend it. (Tr. at 25). She also stated that she could not “stay on her [left leg] very long or walk” without it “tighten[ing] up the back” and that she can hardly bend it. (Id.). She claim ed that she could not put pressure on her legs, such as by lifting things, and that she could not “do steps.” (Tr. at 26). She indicated that she could only stand for thirty m inutes and that it took her a while to “get m oving” after sitting because her legs were so stiff. (Tr. at 27). She testified that she had been falling “for years” because her legs would buckle beneath her. (Tr. at 28). She stated that all of these sym ptom s were the sam e before her date last insured, except that her pain was “probably worse” at the tim e of her hearing, but “not a lot [worse].” (Tr. at 26-28). Claim ant also noted high blood pressure on her application for disability benefits; however, she did not describe how it lim ited her ability to work and only briefly referenced high blood pressure during the adm inistrative hearing. (Tr. at 10 5 and 34). The record fails to corroborate Claim ant’s allegations that she experienced this extrem e level of intensity and persistence of sym ptom s during the period of her alleged disability onset date through her last insured date. As aptly noted by the ALJ , the vast m ajority of Claim ant’s m edical treatm ent occurred after J une 30 , 20 0 7. In fact, the file contains only three progress notes and one letter, written retrospectively, which pertain to the tim e fram e at issue. (Tr. at 20 8-210 and 10 3). None of the contem poraneous notes paints a picture of debilitation as conclusive and severe as that described by Claim ant at the adm inistrative hearing. Although Dr. Sta. Ana’s notes are som ewhat illegible, they clearly docum ent that Claim ant’s only concern at -15- her initial visit on Decem ber 7, 20 0 6 was high blood pressure, (Tr. at 20 8), which thereafter was treated and controlled. (Tr. at 259). Claim ant ostensibly m ade no m ention of concerns related to her knees, legs or ankles during her two docum ented visits with Dr. Sta. Ana in 20 0 6. (Tr. at 20 9). Claim ant did com plain during a routine “check-up” with Dr. Sta. Ana on February 27, 20 0 7 that she had pain in her right leg radiating to her hip, which had been present for years and was worsening. However, the record of this visit does not suggest that Dr. Sta. Ana was overly concerned by this com plaint. (Tr. at 210 ). He did not undertake a diagnostic work-up at that tim e; on the contrary, he did not order any diagnostic studies of Claim ant’s extrem ities until late August 20 0 7, after Claim ant com plained of increased pain and swelling in her right leg. (Tr. at 211-212). Adm ittedly, after Claim ant fell in March 20 0 8, her m usculoskeletal sym ptom s becam e m ore predom inant and widespread and were diagnosed to be degenerative. Still, the record does not substantiate disabling sym ptom s or a high level of concern, either by Claim ant or her physician, over the condition of Claim ant’s legs and knees on or before J une 30 , 20 0 7. Of the treatm ent records prepared by Dr. Sta. Ana during the relevant tim e fram e, one solitary progress note docum ents that Claim ant reported pain in her leg, and that note m entioned only a longstanding pain in the right leg that radiated to her hip. Otherwise, the relevant records are devoid of notations regarding the condition of Claim ant’s legs and never m ention her left leg and her knees, which later becom e prim ary locations of pain. (Tr. at 210 and 216). It is im plausible that Claim ant would have failed to report her sym ptom s to Dr. Sta. Ana if Claim ant was truly experiencing the degree of pain and the extent of functional -16- lim itation that she described to the ALJ at the hearing. Furtherm ore, considering Claim ant’s willingness to receive m edical care, it is probable that she would have sought m ore aggressive treatm ent to relieve her debilitating sym ptom s if they had existed before J une 30 , 20 0 7. In fact, when her sym ptom s becam e intolerable in Sum m er 20 0 8, Claim ant underwent serial injections in her knees, wore a knee brace, and pursued surgical correction. In contrast, she took none of these steps during her insured period. The m edical records docum ent only a few seem ingly routine checkups during that tim e fram e. When m aking a credibility assessm ent of a claim ant’s allegations of pain, the ALJ m ust exam ine “the entire case record, including the objective m edical evidence, the individual’s own statem ents about sym ptom s, statem ents and other inform ation provided by treating or exam ining physicians or psychologists and other persons about the sym ptom s and how they affect the individual.” SSR 96-7p. The ALJ is prohibited from rejecting a claimant’s allegations of pain s o le ly on the basis that the pain is not substantiated by objective m edical evidence, but m ay consider the lack of objective evidence or other corroborating evidence as factors in his decision. Craig v. Chater, 76 F.3d. 585 (4 th Cir. 1996). Here, the ALJ determined that Claim ant suffered “from som e lim itation on her ability to perform work but not to the degree alleged.” (Tr. at 16). He questioned her credibility of her statem ents to the extent that they were inconsistent with his RFC assessm ent, because the descriptions of her daily activities, the absence of diagnostic records, and the lack of m edical intervention prior to J une 30 , 20 0 7 cast into doubt the accuracy of her testim ony. (Tr. at 14 and 12). This conclusion is plainly supported -17- by substantial evidence for the reasons cited above. The record sim ply does not establish m ore severe restrictions than those noted in the ALJ ’s RFC finding and as such, any of Claim ant’s statem ents indicating otherwise were properly assessed as not fully credible. Thus, the undersigned respectfully PROPOSES that the United States District J udge FIN D that the ALJ ’s credibility determ ination was supported by substantial evidence. B. N o n -Exam in in g State Ph ys ician Claim ant next argues that the ALJ im properly afforded significant weight to the 20 0 8 opinion of the State agency physician, Dr. Boukhem is, despite the fact that Dr. Boukhem is did not exam ine Claim ant or m ake any finding as to her RFC. Claim ant also contends that the ALJ erred in not setting forth his analysis of the factors listed in 20 C.F.R. § 40 4.1527(d) when he chose to give the greatest weight to Dr. Boukhem is’ opinion. (Pl.'s Br. at 7-8). The undersigned finds Claim ant’s argum ents unpersuasive and further finds no error in the ALJ ’s treatm ent of Dr. Boukhem is’ opinion. In determ ining an individual’s RFC, an ALJ m ust consider and evaluate “all of the relevant evidence in the case record,” SSR 96-8p, including “any assessm ent of the individual's RFC by a State agency m edical or psychological consultant and by other program physicians or psychologists.” SSR 96-6p. Title 20 C.F.R. § 40 4.1527 outlines how m edical opinions will be weighed in determ ining whether a claim ant qualifies for DIB benefits. In general, the SSA will give m ore weight to the opinion of an exam ining m edical source than to the opinion of a non-exam ining source. See 20 C.F.R. '40 4.1527. Even -18- greater weight will be allocated to the opinion of a treating physician, because that physician is usually m ost able to provide Aa detailed, longitudinal picture@ of a claim ant=s alleged disability. Id. Indeed, a treating physician’s opinion will be afforded controlling weight if two conditions are met: (1) the opinion is wellsupported by clinical and laboratory diagnostic techniques and (2) 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. 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. If the ALJ determ ines that a treating physician=s opinion should not be afforded controlling weight, the ALJ m ust then analyze and weigh all the evidence of record, taking into account the factors listed in 20 C.F.R. ' 40 4.1527(d). 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. “A finding that a treating source’s m edical opinion is not entitled to controlling weight does not m ean that the opinion is rejected. It m ay still be entitled to deference and be adopted by the adjudicator.” SSR 96-2p. When a treating source’s opinion is not given controlling weight, and the opinions of agency experts are considered, the ALJ “m ust explain in the decision the weight given to the opinions of a State agency m edical or psychological consultant or other program physician or psychologist as the [ALJ ] m ust do for any opinions from treating sources, nontreating sources, and other nonexam ining sources. . .” 20 C.F.R. § 40 4.1527. -19- The opinions of non-exam ining sources are subject to a m ore rigorous review than those of treating sources. “For this reason, the opinions of State agency m edical and psychological consultants and other program physicians and psychologists can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the adm inistrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other m edical opinions, and any explanation for the opinion provided by the State agency m edical or psychological consultant or other program physician or psychologist” and “all other factors that could have a bearing on the weight to which an opinion is entitled.” Id. However, “[i]n appropriate circum stances opinions from State agency m edical and psychological consultants and other program physicians and psychologists m ay be entitled to greater weight than the opinions of treating or exam ining sources.” Id. As discussed, the lack of m edical evidence is a distinguishing factor of Claim ant’s case. Claim ant takes issue with the ALJ ’s treatm ent of Dr. Boukhem is’ opinion; however, his opinion was the only acceptable m edical source opinion on the subject of Claim ant’s RFC available to the ALJ at the tim e of his decision. In August 20 0 8, single decision m aker Kay Means opined that there was insufficient m edical evidence prior to Claim ant’s last insured date to m ake a RFC finding. (Tr. at 155). The ALJ appropriately afforded little weight to Ms. Means’ opinion because she was not an acceptable m edical source. (Tr. at 16); see SSR 0 6-0 3p. Then, in Septem ber 20 0 8, Dr. Rabah Boukhem is also found that there was insufficient evidence from the -20 - relevant tim e period to m ake a RFC assessm ent. (Tr. at 251). The ALJ gave Dr. Boukhem is’ opinion significant weight as it was “consistent with the m edical evidence of record,” created during the relevant tim e fram e, which, indisputably, is sparse. (Tr. at 16). No m edical source opinion as to Claim ant’s RFC from any treating or exam ining physician existed in the record at the tim e; consequently, no m edical source opinion conflicted with or weighed against the validity of Dr. Boukhem is’ conclusion. The progress notes from Claim ant’s treating physician m erely recorded Claim ant’s com plaints, vital signs, diagnoses, and m edications. They contained no opinion as to what Claim ant was functionally capable of doing despite her lim itations. (Tr. at 20 8-210 ). Moreover, Claim ant’s criticism that Dr. Boukhem is neither exam ined nor treated her is unjustified. The lack of an exam ination by Dr. Boukhem is is irrelevant in light of the fact that Claim ant was no longer insured by the tim e Dr. Boukhem is’ was retained to com plete an RFC assessm ent. Undoubtedly, a physical exam ination of Claim ant perform ed by Dr. Boukhem is in Septem ber 20 0 8, after Claim ant had seem ingly experienced a m aterial change in her condition, would not have yielded reliable inform ation as to Claim ant’s functional abilities over one year earlier. Likewise, it was unnecessary for the ALJ to provide a m ore extensive discussion of his evaluation of the factors listed in 20 C.F.R. § 40 4.1527(d), because there were no com peting m edical source opinions. If treating or exam ining source opinions on the issue of Claim ant’s RFC had been available at the tim e of the adm inistrative hearing and were contradictory to Dr. Boukhem is’ opinion, the ALJ certainly would have been required to assess and explain the weight given to each -21- opinion using the factors set forth in 20 C.F.R. § 40 4.1527(d). The circum stances of the case, however, rendered any such discussion superfluous. As indicated supra, Dr. Sta. Ana did subm it a letter over two years after expiration of Claim ant’s insured status, opining that Claim ant had “a history of osteoarthritis for years and was getting worse on February 27, 20 0 7. She was unable to perform full tim e work prior to J une 30 , 20 0 7.” (Tr. at 10 3). The Appeals Council considered this opinion and understandably rejected it. Dr. Sta. Ana’s letter failed to elucidate the basis for his opinion; failed to outline on a function by function basis what Claim ant was physically capable of doing during the relevant tim e period; and failed to subm it objective m edical evidence in support of his opinion. Moreover, the opinion was neither consistent with nor bolstered by Dr. Sta. Ana’s own office records. In addition, Dr. Sta. Ana’s statem ent that Claim ant was unable to work during the relevant tim e period was not a m edical opinion, but was a legal conclusion on an issue reserved to the Com m issioner. See 20 C.F.R. § 40 4.1527(e)(3). Medical source opinions on issues reserved to the Com m issioner are treated differently than other m edical source opinions. 20 C.F.R. 40 4.1527(e). In both the aforestated regulation and Social Security Ruling 96-5p, the SSA addresses how m edical source opinions are considered when they encroach upon these “reserved” issues; for exam ple, opinions on “whether an individual’s im pairm ent(s) m eets or is equivalent in severity to the requirem ents of any im pairm ent(s) in the Listing of Im pairm ents in appendix 1, subpart P of 20 CFR part 40 4 (the listings); what an individual’s residual functional capacity (RFC) is;. . . . and whether an individual is ‘disabled’ under the Social -22- Security Act. . .” Opinions concerning issues reserved for the Com m issioner are never entitled to controlling weight or special significance, because “giving controlling weight to such opinions would, in effect, confer upon the treating source the authority to m ake the determ ination or decision about whether an individual is under a disability, and thus would be an abdication of the Com m issioner’s statutory responsibility to determ ine when an individual is disabled.” SSR 96-5p at 2. However, these opinions m ust always be carefully considered and “m ust never be ignored.” Id. Although Dr. Sta. Ana’s opinion that Claim ant was unable to work could not be overlooked, it was not entitled to controlling evidentiary value and was appropriately considered as any other piece of evidence. Because Dr. Sta. Ana did not offer any objective m edical evidence to support his conclusions, such as clinical findings or test results, and because his statem ents were inconsistent with the evidence of record, including his own progress notes from the relevant tim e period, the letter did not adequately rebut the ALJ ’s sound decision to afford significant weight to Dr. Boukhem is’ opinion. Thus, the undersigned respectfully PROPOSES that the United States District J udge FIN D that the ALJ ’s decision to give significant weight to the opinion of agency physician Dr. Boukhem is was supported by substantial evidence. C. N e w an d Mate rial Evid e n ce Claim ant’s final argum ent is that Dr. Sta. Ana’s 20 0 9 letter constitutes new and m aterial evidence warranting rem and pursuant to sentence six of 42 U.S.C. § 40 5(g). (Pl.'s Br. at 6-7). (Tr. at 10 3). Claim ant suggests that the letter should be allocated controlling weight, “because it is consistent with substantial evidence and is -23- supported by clinical and laboratory diagnostic techniques including MRI’s which confirm ed severe degenerative problem s with Claim ant’s knees.” (Pl. Br. at 7). Claim ant asserts that even if the letter is not given controlling weight, it represents a new and m aterial opinion that m ay have resulted in the ALJ reaching a different decision. (Id.). Title 42 U.S.C. § 40 5(g) provides that the Court “m ay at any tim e order additional evidence to be taken before the Com m issioner of Social Security, but only upon a showing that there is new evidence which is m aterial and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . .” Remand to the Com m issioner on the basis of newly discovered evidence is appropriate if: (1) the evidence is relevant and not cum ulative; (2) the Com m issioner's decision “m ight reasonably have been different” had that evidence been presented; (3) good cause for failure to subm it the evidence before the Com m issioner is established; and (4) Claim ant offers “at least a general showing of the nature” of the newly discovered evidence. 42 U.S.C. 40 5(g); Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985). Evidence is new if it is “neither duplicative nor cum ulative,” Bradley v. Barnhart, 463 F.Supp.2d 577, 581 (S.D.W.V. 20 0 6), and is m aterial if it “bear[s] directly and substantially on the m atter in dispute,” and generates a “reasonable possibility that the new evidence would have changed the outcom e of the determ ination.” Bradley v. Barnhart, supra at 579, citing Bruton v . Massanari, 268 F3d. 824 (9 th Cir. 20 0 1). Accordingly, Claim ant m ust dem onstrate that Dr. Sta. Ana’s letter constitutes new evidence that is m aterial to the question of whether Claim ant was disabled at the tim e of her hearing before the ALJ . If so, then -24- Claim ant m ust also provide good cause for not having produced this evidence to the Com m issioner during the pendency of her disability application. Technically, Dr. Sta. Ana’s letter is not “new” evidence, because it was subm itted during the pendency of the application, was m ade part of the record, and was considered by the Appeals Council before it refused to review the decision of the ALJ . In any event, having exam ined Dr. Sta. Ana’s letter, the undersigned is hardpressed to conclude that there is a reasonable probability that this letter would have changed the outcom e of the ALJ ’s determ ination. As noted, the regulations provide that a treating physician's opinion is entitled to controlling weight only where it is well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See 20 C.F.R. § 40 4.1527(d)(2); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir.1996) (“[I]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight”). The opinions expressed in Dr. Sta. Ana’s letter are entirely unsupported by explanation, discussion, or data. Dr. Sta. Ana does not, for exam ple, explain how he determ ined that Claim ant had osteoarthritis for years; whether his diagnosis was based on clinical observation, radiographic studies, past m edical records or sim ply on Claim ant’s subjective reports. Sim ilarly, Dr. Sta. Ana’s letter does not indicate the extent of Claim ant’s osteoarthritis; how it m ight have lim ited her range of m otion or restricted her ability to perform basic work activities; and how he discerned her level of functioning. He m akes no effort to justify his conclusions or docum ent his knowledge and expertise on the subject m atter of the -25- letter. Claim ant contends that the opinion is supported by objective m edical evidence, but the evidence referenced by Claim ant post-dated Claim ant’s insured status. Contrary to Claim ant’s statem ents, Dr. Sta. Ana had no contem poraneous clinical or laboratory data upon which to support his conclusion. Moreover, Dr. Sta Ana’s opinion that Claim ant was unable to work during the relevant tim e period likewise is a bald legal conclusion without identifiable findings or objective evidence. The ALJ is not required to accept the opinion of a treating source when that opinion is given on an issue reserved to the Com m issioner. See 20 C.F.R. §§ 40 4.1527(e). A bare-bones opinion, written two years late and retrospectively, without any objective supporting m edical evidence, is unlikely to have changed the outcom e of the ALJ ’s decision. Accordingly, the undersigned respectfully PROPOSES that the United States District J udge FIN D that Dr. Sta. Ana’s letter, which Claim ant subm itted as new evidence to the Appeals Council, does not constitute new or m aterial evidence under the applicable case law and, therefore, does not warrant a rem and under sentence six of 42 U.S.C. § 40 5(g). VIII. Re co m m e n d atio n s fo r D is p o s itio n Based on the foregoing, the undersigned Magistrate J udge respectfully PROPOSES that the United States District J udge confirm and accept the findings herein and RECOMMEN D S that the District Court D EN Y plaintiff’s Motion for J udgm ent on the Pleadings (Docket No. 7); GRAN T defendant’s Motion for J udgm ent on the Pleadings (Docket No. 8), AFFIRM the final decision of the Com m issioner, and D ISMISS this action from the docket of the Court. -26- The parties are notified that this “Proposed Findings and Recom m endations” is hereby FILED , and a copy will be subm itted to the Honorable Robert C. Cham bers, United States District J udge. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, Plaintiff shall have fourteen days (filing of objections) and three days (m ailing) from the date of filing this “Proposed Findings and Recom m endations” within which to file with the Clerk of this Court, specific written objections, identifying the portions of the “Proposed Findings and Recom m endations” to which objection is m ade, and the basis of such objection. Extension of this tim e period m ay be granted by the presiding District J udge for good cause shown. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Sny der v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thom as v. Arn, 474 U.S. 140 (1985); W right v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to the opposing parties, J udge Cham bers and Magistrate J udge Eifert. The Clerk is directed to file this “Proposed Findings and Recom m endations” and to provide a copy of the sam e to counsel of record. FILED : April 19, 20 11. -27-
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