Opinion
Case No. 2:17-cv-1213-CMC-MGB
07-16-2018
Larry Parker, Plaintiff, v. Commissioner, Social Security Admin., Defendant.
REPORT AND RECOMMENDATION
Plaintiff Larry Parker, through counsel, seeks judicial review of an unfavorable final decision denying benefits on his applications for a period of disability and disability benefits ("DIB") and supplemental social security income ("SSI") pursuant to Titles II and XVI of the Social Security Act ("SSA"). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the assigned Magistrate Judge for review pursuant to Local Civil Rule 73.02(B)(2)(a) and 28 U.S.C. § 636(b)(1)(B). Having carefully considered the parties' briefs (DE# 11-13), the administrative record (DE#9), and applicable authority, the Magistrate Judge recommends that the Commissioner's final decision should be affirmed , based on the following proposed findings of fact and conclusions of law:
I. Standard of Review
The Court's review of the Commissioner's final decision is limited to: (1) whether substantial evidence supports such decision; and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lewis v. Comm'r, 858 F.3d 858, 865 (4th Cir. 2017). "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Substantial evidence is defined as "more than a mere scintilla but less than a preponderance." Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996). The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). If the decision is supported by substantial evidence, the reviewing court must affirm, even if it would have decided the case differently. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) ("Where conflicting evidence allows reasonable minds to differ as to whether a Plaintiff is disabled, the responsibility for that decision falls on the [ALJ].").
II. Relevant Statutory Law
The SSA provides that disability benefits are available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are disabled within the meaning of the statute. 42 U.S.C. § 423(a). The Plaintiff must produce evidence and prove that she is disabled under the SSA, § 205(g), 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981) (the Plaintiff "bears the burden of proving a disability"). Under the SSA, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Social Security regulations set forth a five-step sequential process that considers a plaintiff's age, education, work experience, and medical condition. 20 C.F.R. §§ 404.1520(a). To be entitled to benefits, Plaintiff "(1) must not be engaged in substantial gainful activity, i.e., currently working; and (2) must have a severe impairment that (3) meets or exceeds the listings of specified impairments, or is otherwise incapacitating to the extent that the plaintiff does not possess the residual functional capacity ["RFC"] to (4) perform [the plaintiff's] past work or (5) any other work." Albright v. Comm'r, 174 F.3d 473, 475 n.2 (4th Cir. 1999); Lewis, 858 F.3d at 860-61. Plaintiff bears the burden of production through the fourth step. Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). If Plaintiff reaches step 5, the burden of production shifts to the government to provide evidence that other work exists in significant numbers in the national economy that Plaintiff can do. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Plaintiff has the burden to show disability.
III. Background
A. Procedural history
The relevant facts have been extensively set forth in the ALJ's decision (AR 16-30) and in the parties' briefs (DE#11-13), and need only be summarized here. Plaintiff was born August 22, 1974 and was age 34 ("younger" person) on his alleged disability onset date. (AR 28, Finding 7; AR 470). Plaintiff has a seventh grade education, can read and write, and communicates in English. (AR 22). He is married, has four children (ages 3-18), and lives with his family. (AR 41). He has a driver's license and is able to drive. (AR 505, 508). Plaintiff has past relevant work experience as a machine operator (light, semi-skilled) and general laborer (light, unskilled). (AR 28, 56-57).
On July 24, 2009, Plaintiff filed his first set of applications for disability insurance benefits (DIB) and supplemental security income (SSI). He alleged disability beginning June 15, 2009, due to back and knee pain (AR 76-88). After an administrative hearing, the Administrative Law Judge issued a decision on October 26, 2011, finding that the Plaintiff was not disabled for purposes of the SSA. (AR 76-88, decision by ALJ Spidel).
Plaintiff's date last insured was March 31, 2013 (AR 227). Several months later, on May 9, 2013, Plaintiff filed his second set of applications for DIB and SSI benefits, again claiming disability as of July 24, 2009, due to back and knee pain. (AR 205-17, 227, 230).
On October 13, 2013, Plaintiff was incarcerated in South Carolina. (AR 486-88, Inmate Health Assessment and Screening Form at the Cherokee County Detention Center, 10/13/2013). He was released from incarceration the following year in April 2014.
The Commissioner correctly points out (DE# 12 at 6, no. 2) that benefit payments generally are not payable for any time during which a claimant is incarcerated for the commission of a crime. See 42 U.S.C. § 402(x)(1)(a) ("no monthly benefits shall be paid . . . to any individual . . . [in connection with periods when] such individual . . . is confined to jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense . . . [or] is fleeing to avoid prosecution . . .").
Meanwhile, Plaintiff's disability applications were denied initially and on reconsideration. Upon request, Administrative Law Judge Gregory Wilson ("ALJ") scheduled a hearing. At the hearing on February 5, 2016, Plaintiff (represented by counsel) and vocational expert Roy Sumpter ("VE") both testified. (AR 36-65, Hrg. Tr.). The ALJ posed a hypothetical question that incorporated all the restrictions found credible. (AR 61-62). In response, the VE testified that the Plaintiff could perform light, unskilled jobs such as cashier II (3,300,000 jobs nationally), storage facility rental clerk (430,000 jobs nationally), and paint spray inspector (472,000 jobs nationally). (AR 29, 62). The ALJ posed an even more restrictive hypothetical, but those restrictions were not found credible. On March 30, 2016, the ALJ issued a decision, finding at step 5 that the Plaintiff was not disabled for purposes of the SSA. (AR 16-30).
B. Activities of daily living
For his activities of daily living, Plaintiff reports that he mows the lawn, takes his children to school and to the park, cooks, washes dishes, does laundry, folds clothes, sweeps, mops, vacuums, takes the trash out, cleans the bathroom and living room, plays with his children, watches television, and takes care of maintenance around the house, including painting, using the leaf blower, and using the weed-eater in the yard. (AR 22-26, 50-53). He drives his car, goes shopping at stores, shops for antiques and crafts, occasionally goes fishing, takes the children to baseball, attends church twice a week, visits friends and relatives, goes out to eat once in a while, and engages in hobbies such as flying gas-powered planes. (Id.). He takes care of his own personal care and hygiene without issue, and is able to manage his own finances.
C. Summary of medical evidence
In July 2012, Plaintiff visited the emergency room complaining of lower back pain radiating down his right leg (AR 314). On examination, Plaintiff was found to have some mild tenderness to palpation and diminished reflexes, negative straight leg raise bilaterally, intact motor strength, intact sensation, normal range of motion ("ROM") in his joints, and no swelling or deformities (AR 315). Plaintiff was prescribed pain medication. (AR 315). Six months later, Plaintiff again complained of low back pain (AR 348, notes 1/22/2013, observing normal gait and indicating patient "is able to ambulate independently and can perform all activities of daily living without assistance"). Examination revealed some moderate tenderness to palpation, mild muscle spasm, and right straight leg positive test at 10 degrees, but fully intact motor strength, sensation, and reflexes, normal ROM of his joints, no swelling or deformities, and no tingling or foot drop. (AR 349-50). He was prescribed pain medication. (Id.).
Several months later (March 2013), Plaintiff had a lumbar MRI that showed a right paracentral focal protrusion at L4-L5 (moderate stenosis) and right paracentral focal extrusion at L5-S1 (AR 427). No abnormalities were detected at other disc locations. In April 2013, Plaintiff consulted with neurosurgeon Dr. Timothy Monroe, M.D. (AR 429-31). Upon examination, Dr. Monroe observed that Plaintiff was "well-developed" with normal gait, normal station, normal strength in all muscles, and normal motor "bulk, contour and tone." (AR 430). Dr. Monroe's notes also indicate "mental status exam performed" and that Plaintiff was "alert and oriented x3 with appropriate mood and affect" and had "normal attention span and ability to concentrate." Dr. Monroe diagnosed Plaintiff with lower back pain, lumbar spondylosis, and degenerative disc disease (AR 431). He recommended conservative treatment consisting of nonsteroidal anti-inflammatory drugs (NSAIDs), physical therapy, and steroidal injections (AR 431).
In June 2013, Plaintiff went to Dr. Donna Koroma, M.D., complaining of back pain (AR 420). Dr. Koroma reviewed the results of the recent MRI and noted the diagnosis of degeneration of lumbar disc (AR 421, 425). Plaintiff reported "unspecified back ache," but Dr. Koroma observed that Plaintiff had no difficulty walking, no muscle weakness, no numbness, and no tingling. (AR 421, 425). Dr. Koroma indicated that Plaintiff was well-developed and ambulating normally. (Id.). In July 2013, Plaintiff returned to Dr. Monroe for an evaluation regarding decompression and fusion surgery at L4-S1 (AR 440). However, the surgery was cancelled and the patient-doctor relationship was terminated. (AR 455, letter of 8/02/2013, "at this point the doctor/patient relationship has been irretrievably broken due to multiple situations of which you are aware").
In August 2013, Plaintiff visited another doctor, Dr. Matthew Terzella, M.D., who continued Plaintiff's medications (AR 466). This doctor encouraged Plaintiff to continue home exercises, consider physical therapy, and undergo an epidural steroid injection. (Id.).
Plaintiff was then incarcerated from October 2013 until April 2014. Plaintiff has submitted sick call slips from this period of incarceration as evidence, although most of the slips concern transitory non-disabling matters. (AR 470-85, sick call slips for a toothache, dermatitis, and a cold, i.e. he says "[My] heads hurting. I got what ever one else has"). Several slips reflect that Plaintiff wanted pain medication for his back (AR 481-82, alleging he fell in the shower and wanted a second mattress).
In June 2014, Plaintiff went to Dr. Matthew Baird, M.D., complaining of back pain (AR 581). On examination, Dr. Baird observed no tenderness in Plaintiff's lumbar spine, no bony hip tenderness, 4/5 strength of right foot, 5/5 strength in all other muscle groups, and only mild tenderness to his right gluteal area (AR 583). Plaintiff was able to walk heel-toe. Although Plaintiff had a positive straight leg raise, he indicated his pain was "satisfactorily controlled now." (AR 581-82). Dr. Baird diagnosed Plaintiff with low back pain, lumbar radiculopathy, and disc herniation (Id.). Dr. Baird discontinued Plaintiff's narcotic medication ("Norco"), but continued his other medications, such as Neurotonin. (Id.). Plaintiff did not show up for subsequent appointments and the treating relationship was discontinued. (AR 510).
On September 4, 2014, Plaintiff visited family practitioner Dr. Julius Hedden, M.D., who observed that Plaintiff had no difficulty walking and had no muscles aches or weakness. (AR 561). Dr. Hedden's notes indicate that Plaintiff had refused the back injections recommended by Dr. Terzella (AR 560-61, "does not want [injection] again"). On October 24, 2014, Plaintiff visited Dr. Hedden, who noted Plaintiff's complaints of chronic low back pain, but found that Plaintiff's joints, bones, and muscles showed no tenderness and had "normal movement of all extremities." (AR 554, "ambulating normally"). His medication prescriptions were renewed.
Plaintiff went to Dr. Hedden several more times through October 2015, largely for medication refills. (AR 540, 549, 550, listing dates of refills in 2014-2015). On April 21, 2015, Plaintiff complained that his knees were locking up and making popping sounds. Dr. Hedden noted a history of back pain but observed no back pain, no muscle cramps, no weakness, and no difficult walking, although he also noted "knees painful" (AR 541). Plaintiff denied any walking or standing intolerance (AR 495, 12/12/2014). The treatment notes indicate that Plaintiff was taking Norco prescribed by Dr. Hedden, as well as Oxycodone prescribed by Dr. Matthew Baird. At multiple additional visits, Dr. Hedden observed that Plaintiff walked with a normal gait and station (AR 551, 545, 554, 559, 562). In April 2015, Dr. Hedden noted some tenderness and limited ROM, but only minimal effusion, and no crepitus in either knee (AR 541).
An MRI on April 30, 2015 of Plaintiff's right knee revealed normal patella, intact ligaments and tendons, but a moderate-sized joint effusion and a tear of the posterior horn of the medical meniscus. (AR 536). An MRI of Plaintiff's left knee revealed a small joint effusion and a minimal spur of the patella (AR 590-91). An MRI of Plaintiff's pelvis revealed mild degenerative changes in both hips with no other significant abnormalities (AR 533).
Meanwhile, in January 2015, Plaintiff also went to Dr. Eric Lenehan, M.D., for treatment of his lower back (AR 491-94). Dr. Lenehan examined Plaintiff and found full muscle strength, normal gait, and normal station, and normal muscle tone in all four limbs without atrophy. (AR 493). He diagnosed lumbar radiculopathy, disc herniation, and bilateral leg pain (AR 493). He continued Plaintiff's medications and referred him for a steroidal injection (Id.). Dr. Lenehan noted Plaintiff's "long history of narcotic use" (Id.).
In February 2015, Plaintiff also went Dr. David Shallcross, M.D., complaining of back pain and seeking pain medication. (AR 501-12). This doctor observed that Plaintiff could heel, toe, and tandem walk (and do this "well"), could fully squat, had a steady gait, good lumbar flexion without pain, and that Rhomberg test was normal (AR 503, 506, 508, 511). Dr. Shallcross prescribed MS-Contin (opioid pain medication) and Percocet (acetaminophen and oxycodone), but discontinued Plaintiff's prescription for Norco. (AR 502, 504, 509). Dr. Shallcross urged Plaintiff to cease use of tobacco (both smoking and chewing tobacco 5x daily) and ordered a drug screen analysis. (AR 512-18).
On October 13, 2015, Plaintiff returned to Dr. Hedden and complained that he had been dismissed from the pain clinic after having a positive drug screen, and had been off his medications for several months. (AR 530-32). On examination, Dr. Hedden noted that Plaintiff was ambulating normally, appeared well-developed, and not in any distress. He further observed that Plaintiff had no muscle aches, weakness, cramps, no arthralgia/joint pain, no swelling in the extremities, and no difficulty walking. (Id.). Plaintiff asked Dr. Hedden fill out disability papers for him.
IV. Summary of the ALJ's Decision
On March 30, 2016, the ALJ issued a decision, finding that the Plaintiff was not disabled for purposes of the SSA. (AR 16-30). Based on the record as a whole, the ALJ determined that Plaintiff's degenerative disc disease of the lumbar spine, degenerative joint disease of the pelvis, hips, and knees qualified as "severe" impairments for purposes of the SSA. (AR 19). The ALJ found that Plaintiff's depression and several temporary complaints (such as a scalp abrasion after being in a fight) caused no more than minimal functional limitations and were non-severe. (AR 19, Finding 3).
A non-severe impairment is defined as one that "does not significantly limit [a Plaintiff's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a); see also Wright v. Astrue, No. 2-14-CV-1999-TLW, 2015 WL 5036948, *4 (D.S.C. Aug. 26, 2015).
The ALJ considered the relevant listings and determined that Plaintiff's impairments (singly or in combination) were not of listing-level severity. (AR, Finding 4). See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. §§ 404.1520(d), 1525, 1526. The ALJ determined that Plaintiff had some limitations, but not to the extent alleged. (AR 22). The ALJ found that Plaintiff's statements concerning the "intensity, persistence, and limiting effects" of his symptoms were not substantiated by the objective medical evidence. (AR 22).
The ALJ considered the RFC assessments of Plaintiff's abilities, including the opinions of the state agency expert consultants Dr. Dale Van Slooten, M.D., Dr. Davis Junker, M.D., Dr. Craig Horn, Ph.D., and Dr. Manhal Wieland, Ph.D. (AR 26, citing Exs. B1A, B4A, B8A, B12F, The ALJ considered the Plaintiff's functional abilities and determined that Plaintiff had the residual functional capacity ("RFC") to perform work at the light exertional level with the following restrictions:
The claimant is able to lift twenty pounds occasionally and ten pounds frequently. The claimant is able to walk, stand, and sit for six hours in an eight-hour day. Furthermore, the claimant is able to occasionally push and pull with his lower extremities, but is unable to use ropes, ladders, or scaffolds. Additionally, the claimant is able to occasionally climb, stoop, kneel, crouch, and crawl, but should avoid concentrated exposure to hazards.(AR 22). Based on Plaintiff's age, education, work history, RFC, and the VE's testimony, the ALJ determined that Plaintiff could not perform his past relevant work (AR 28, Finding 6). The ALJ determined that Plaintiff, within his credibly established limitations, could still perform representative jobs existing in significant numbers in the national economy, such as cashier, storage facility rental clerk, and paint spray inspector. (AR 29, Finding 10). The ALJ concluded that Plaintiff was not disabled from the alleged onset date through the date of decision (AR 29-30). The Appeals Council denied review, and the ALJ's decision is the Commissioner's final decision.
IV. Different time periods for the DIB and SSI claims
The Commissioner correctly points out that the relevant time periods under consideration for the respective DIB and SSI applications are different. (DE#12 at 3). The relevant time period for the DIB claim began October 27, 2011 (the day after the prior unfavorable decision was issued on October 26, 2011) and ended on December 31, 2013, the date Plaintiff was last insured (AR 76-88, 227). See 20 C.F.R. § 404.957(c)(1) (res judicata applies when a claimant asserts the same facts and issues that were previously adjudicated and that decision is final).
The relevant time period for the SSI claim began when Plaintiff's second SSI application was filed on May 9, 2013 and ended on March 30, 2016, when the ALJ issued his decision. See 20 C.F.R. § 416.202 (explaining that a claimant is not eligible for SSI until the date an application for SSI benefits is filed); 20 C.F.R. § 416.501 (stating that claimant may not be paid SSI for any time period that precedes the first month he satisfies the eligibility requirements, which cannot predate the date on which the application was filed).
V. Discussion
Plaintiff generally argues that the ALJ 1) did not assign sufficient weight to his subjective complaints; and 2) did not assign sufficient weight to the form opinions of certain medical providers. (DE# 11). The Commissioner responds that: 1) the ALJ appropriately explained that Plaintiff's subjective claims were inconsistent with the objective medical records and other evidence; and 2) the ALJ discussed the medical evidence as a whole and properly assigned limited weight to several medical opinions that were not substantiated by the doctors' own treatment notes, the objective medical evidence, and other evidence of record. (DE# 12). Plaintiff filed a reply that essentially repeats his initial arguments. (DE# 13).
Plaintiff does not challenge the ALJ's analysis with respect to his non-severe mental impairment, so the parties have appropriately limited their discussion to the physical impairments.
A. Whether the ALJ erred by finding that Plaintiff was not as limited as he alleged
Factors used to assess a claimant's subjective complaints may include: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's symptoms; factors that precipitate and aggravate the symptoms; any medication taken to alleviate pain or symptoms; treatment and other measures used to relieve symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c).
Plaintiff alleges that the ALJ improperly discounted his subjective complaints regarding the severity of his symptoms and functional limitations, and contends that the ALJ did not provide "an adequate explanation for his credibility determinations." (DE# 11 at 22). Plaintiff argues that "his daily activities do not prove him incredible" and suggests that those activities were "sporadic and unquantified." (Id. at 23). Plaintiff also generally suggests that, with respect to his ability to walk normally, the ALJ "selectively" relied on the evidence. (Id. at 24).
The Commissioner responds that the ALJ sufficiently explained his finding regarding Plaintiff's subjective complaints, and that the ALJ's decision is well-supported by substantial evidence. The Commissioner points out that, contrary to Plaintiff's allegation, the ALJ properly considered Plaintiff's subjective complaints in light of the evidence as a whole and sufficiently explained why he found that Plaintiff was not as limited as he alleged. See 20 C.F.R. § 404.1529; Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). The ALJ discussed Plaintiff's subjective complaints and compared them to the objective medical findings, treatment notes, medical opinions, Plaintiff's activities of daily living, and other relevant evidence. (AR 22-24). For example, the ALJ explained that although Plaintiff testified that he had pain in his back/knees/hips, Plaintiff "continues to cook, do dishes, wash laundry, clean, mow the lawn, drive, and fishes a couple times a year." (AR 22). At the hearing, the ALJ had questioned the Plaintiff at considerable length about the sorts of activities that Plaintiff was able to do. (AR 50-54). The ALJ had the opportunity to observe Plaintiff's demeanor at the hearing, and the ALJ's observations regarding Plaintiff's subjective complaints are given great weight. Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984).
The Commissioner correctly points out that, as a matter of correct terminology, the finding at issue is no longer referred to as a "credibility determination." On March 16, 2016, the agency issued Social Security Ruling 16-3p, which superseded SSR 96-7p. The new Ruling provides guidance on how to evaluate statements about the intensity, persistence, and limiting effects of symptoms. SSR 16-3p, 2016 WL 1119029, *1. The new Ruling sought to avoid use of the term "credibility" because evaluation of subjective symptoms is not considered to be an examination of a claimant's character. (Id.). SSR 16-3p became effective on March 28, 2016. Here, the ALJ's decision was issued several days later on March 30, 2016, and thus, SSR 16-3p applies. Under SSR 16-3p, the ALJ uses the same two-step analysis, but omits reference to "credibility." In reply, Plaintiff acknowledges that under the new Ruling, the ALJ must still use the same two-step analysis to explain the reasons for his finding. (DE# 13 at 2).
Although the ALJ questioned Plaintiff at length about his ability to engage in a wide variety of daily activities (AR 50-54), Plaintiff suggests that such activities were "sporadic and unquantified" (DE# 11 at 23) and that there is no evidence of "any extent of [his] activities." (DE# 13 at 2). Plaintiff appears to base such argument on a few leading questions by his counsel at the hearing. (AR 54). Courts have observed that responses to leading questions "may impact credibility." Cheney v. Colvin, Case No. 2:12-3366-TMC, 2014 WL 1268575, *2 (D.S.C. Mar. 26, 2014) (holding that an ALJ may appropriately discount responses to leading questions, particularly when the overall evidence is not consistent with such responses).
In addition to the Plaintiff's hearing testimony, the ALJ observed that treatment notes reflected that examining physicians typically found that Plaintiff walked normally and had full muscle strength. (AR 23, citing Exs. B16F, B12F, B1F, patient had "no muscle aches, no joint pain, negative for back pain and mild tenderness of the lumbar spine"). The ALJ observed that Plaintiff had reported pain at some visits. (AR 24, discussing MRI after Plaintiff reported knee pain in April 2015). However, the ALJ properly determined that the overall evidence did not suggest that Plaintiff was as limited as he claimed. Plaintiff does not point to any inaccuracies in the ALJ's summation of the evidence. Instead, Plaintiff selectively relies on several medical notes for the few occasions when Plaintiff's knees were sore and affected his walking. (DE# 11 at 24). Although Plaintiff suggests that the ALJ "selectively" relied on the evidence, Plaintiff's argument is itself based on only a few selective pieces of evidence. Review of the Commissioner's final decision reflects that the ALJ thoroughly discussed the medical evidence as a whole, and contrary to Plaintiff's allegation, fairly characterized it. Hays, 907 F.2d at 1456 (it is the ALJ's duty to resolve conflicts in the evidence).
The ALJ discussed the medical evidence at length and found that the Plaintiff's statements "concerning the intensity, persistence, and limiting effects" of his symptoms were not consistent with the objective medical evidence and other evidence of record. See Myers v. Comm'r, 456 F. App'x 230, 232 (4th Cir. 2011) (citing Owen v. Astrue, 551 F.3d 792, 800 n. 3 (4th Cir. 2008)). The ALJ cited evidence from a variety of physicians all repeatedly indicating that Plaintiff had full muscle strength and was able to walk without difficulty. The Commissioner points out that the ALJ gave appropriate reasons for discounting Plaintiff's subjective complaints.
After reviewing all the evidence, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to produce the alleged symptoms but that Plaintiff's statements concerning the intensity, persistence and limiting effects of these symptoms were not substantiated by the evidence of record. (AR 22-24, "the evidence submitted does not support the severity of symptoms alleged"). The ALJ discussed the medical evidence in considerable detail, including the Plaintiff's conservative treatment (medication refills and a few injections) and the repeated observations by treating physicians that Plaintiff could walk normally, fully squat, and had a steady gait. (AR 23-24). The ALJ appropriately pointed out that the evidence from medical providers "indicates the claimant continues to engage in many activities of daily living such as the following: cooking, driving, mowing the lawn, taking his children to school, playing with his children, and maintenance around the house." (Id. 24-25).
The ALJ properly determined that the testimony and medical evidence did not support the extent of the Plaintiff's subjective complaints and any resulting functional limitations. See 20 C.F.R. §§ 404.1529(a), 416.929(a); Hutchinson v. Astrue, 2012 WL 1267887, *8 (M.D.N.C. April 16, 2013) (observing that the issue is not whether Plaintiff has any pain, but rather, "the issue is whether the ALJ considered the record as a whole and properly determined that the extent and limiting effects" were not as great as he claimed). The ALJ adequately considered the extent to which Plaintiff's self-reported symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence.
The ALJ appropriately discussed Plaintiff's conservative medical treatment and his ability to engage in a wide range of activities of daily living. A claimant's conservative medical treatment and daily activities are relevant factors in making such determination. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Such evidence supports the ALJ's finding that Plaintiff's functional limitations were not as severe as alleged. Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (extent of Plaintiff's daily activities supported the ALJ's finding that the claimant's alleged impairments were not as severe as claimed); Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005) (same).
Plaintiff's treatment consisted of largely of prescription medication which he took "as needed." This maintenance dose of pain medication admittedly helped him. See Gross, 785 F.2d at 1166 ("If a symptom can be reasonably controlled by medication or treatment, it is not disabling."); see e.g., Austin v. Colvin, Case No. 0:11-cv-02768-DCN-PJG, 2013 WL 1181952, *7 fn. 4 (D.S.C. March 21, 2013). In fact, as noted by the ALJ, Plaintiff was dismissed from the pain clinic for having a positive drug screen and was "off medications for months," but Dr. Hedden observed that Plaintiff had no back pain and was walking normally. (AR 25, citing Ex. B16F). The notes of various doctors also reflected that Plaintiff had declined further steroidal injections for his back that were medically recommended, and that his discectomy surgery was cancelled. Under the regulations, an "individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints." SSR 96-7p, 1996 WL 374186, *7 (S.S.A.1996). It is well-settled that an ALJ may appropriately consider the conservative nature of treatment in determining a claimant's subjective complaints. See, e.g., Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005) (ALJ properly considered the "routine and conservative" nature of Plaintiff's treatment); Smith v. Colvin, 756 F.3d 621, 626 (8th Cir. 2014) (same); Wall v. Astrue, 561 F.3d 1048, 1068-69 (10th Cir. 2009) (same); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (evidence of conservative treatment allowed ALJ to discount the Plaintiff's testimony regarding the severity of alleged symptoms), cert. denied, 552 U.S. 1141 (2008); Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (same).
The ALJ reasonably explained that he did "not doubt that the claimant has some limitations due to his physical pain; however, it does not rise to the level alleged by the claimant." (AR 25). Review of the Commissioner's final decision reflects that the ALJ articulated sufficient reasons to support the finding that Plaintiff was not as functionally limited as he alleged. "It is the province of the [ALJ], and not the courts, to make credibility determinations." Mickles v. Shalala, 29 F.3d 918, 929 (4th Cir. 1994); see also, Craig, 76 F.3d at 589.
Plaintiff's argument amounts to an invitation for the Court to re-weigh the evidence, make credibility determinations, and substitute its judgment for that of the Commissioner. A reviewing court may not do so. Judicial review of the Commissioner's decision is limited to determining whether the decision is supported by substantial evidence. Hays, 907 F.2d at 1456. It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Id. Here, the ALJ weighed all the information in the record as a whole and appropriately concluded that Plaintiff's allegations of totally disabling symptoms were not fully credible.
To the extent Plaintiff suggests that additional evidence should have been cited, an ALJ need not mention every single piece of evidence from the extensive record. Reid v. Comm'r, 769 F.3d 861, 865 (4th Cir. 2014) ("there is no rigid requirement that the ALJ specifically refer to every piece of evidence"); Gilbert v. Colvin, Case No. 2:14-cv-981-MGL-MGB, 2015 WL 5009225, *6 (August 19, 2015) (same). Here, the ALJ fairly characterized the evidence as a whole. Plaintiff's argument based on a few pieces of evidence provides no basis for remand. In sum, the ALJ's decision is supported by substantial evidence.
B. Whether the ALJ Appropriately Weighed the Form Opinions
When evaluating medical opinions, an ALJ considers: "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Dunn v. Colvin, 607 F.App'x 264, 2015 WL 3451568 (4th Cir. 2015) (citing Johnson, 434 F.3d at 654); SSR 96-2p; 20 C.F.R. §§ 404.1527, 416.927. Generally, the more the medical source presents relevant evidence to support his or her opinion, and the better that the physician explains it, the more weight such opinion is given. See 20 C.F.R. § 404.1527(d)(3) (1998). The more consistent the opinion is with the record as a whole, the more weight the ALJ will give to it. See 20 C.F.R. § 404.1527(d)(4) (1998). The nature and extent of a treatment relationship also affects the weight given by an ALJ. See 20 C.F.R. §§ 404.1527(d)(2)(ii) and 416.927(d)(2)(ii).
An ALJ need not always give a treating opinion controlling weight. Hunter, 993 F.2d at 35. "If 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." Boyd v. Colvin, Case No. 0:13-cv-638-TLW-PJG, 2014 WL 4097924, *5 (D.S.C. Aug. 18, 2014). Opinions by a physician regarding the ultimate issue of whether a claimant is disabled within the meaning of the SSA never receive controlling weight because the decision on that issue is reserved to the Commissioner alone. 20 C.F.R. § 404.1527(e).
In October/November 2014, Drs. Baird and Hedden submitted answers to a one-page questionnaire consisting of leading questions submitted by Plaintiff's counsel. (AR 489, 10/28/2014; AR 490, 11/16/2014). In 2015 and 2016, Drs. Shallcross and Lenehan also submitted answers to a similar one-page questionnaire submitted by Plaintiff's counsel. (AR 520, Ex. B14F; AR 598, 3/3/2016).
The questionnaires sent to Drs. Hedden, Baird, and Lenehan asked "can Larry Parker engage in anything more than SEDENTARY work?" Drs. Hedden and Baird responded "No," while Dr. Lenehan responded "it is unlikely." (AR 489, 490, 598). The questionnaire sent to Drs. Shallcross did not ask this question, and instead, asked whether the claimant "would most probably have to miss more than 3 days of work per month," to which Dr. Shallcross responded "Yes." (AR 520).
The ALJ properly discounted these one-page form opinions. (AR 489-90, 520, 598). The ALJ observed that these doctors were not specialists and saw Plaintiff only a few times. (AR 25-26). The doctors then completed a one-page check-the-box form questionnaire consisting of a few leading questions regarding Plaintiff's alleged functional limitations. Courts have recognized the "limited probative value" of such forms, especially where, as here, they lack well-supported explanatory notes. See, e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) ("check-the-box assessments without explanatory comments are not entitled to great weight"); Foushee v. Colvin, 2014 WL 6831766, *3 (M.D.N.C. Dec. 3, 2014) (referring to it as "weak evidence"); McGlothlen v. Astrue, 2012 WL 3647411, *6 (E.D.N.C. Aug. 23, 2012) (same); Shelton v. Colvin, 2015 WL 1276903, *13 fn.6 (W.D.Va. March 20, 2015); Leonard v. Astrue, 2012 WL 4404508, *4 (W.D.Va. Sept. 25, 2012).
The ALJ gave good reasons for giving each of these form opinions little weight. (AR 25-26). The ALJ explained that each of these doctors had a brief treating relationship with Plaintiff and that their medical records did not substantiate such restrictive opinions. The ALJ appropriately explained that each of these form opinions were inconsistent with the doctors' own examination findings, with other objective treatment records, with the conservative treatment, and with Plaintiff's ability to engage in daily activities. (AR 25-26); 20 C.F.R. § 404.1527; see Martise v. Astrue, 641 F.3d 909, 926 (8th Cir. 2011) (treating physician's opinion is properly discounted when it is inconsistent with his own treatment notes, the objective medical evidence, and other evidence of record). For example, the ALJ pointed out that Dr. Baird saw Plaintiff on only a single occasion, and that the physical examination on that date reflected that Plaintiff had no difficulty walking, no numbness, no muscle aches, no back pain, no swelling of the extremities, and no weakness, cramps, arthralgia, or joint pain. (AR 25, citing Ex. B15F). The ALJ properly explained that Dr. Baird's own notes from the single examination undermined his restrictive opinion on the form questionnaire (i.e. that Plaintiff could do no more than sedentary work).
Similarly, the ALJ pointed out that in early 2015, Dr. Hedden saw Plaintiff and indicated that he "appeared healthy and under no acute distress with normal ambulation and normal memory." (AR 25, citing Ex. B16F). The ALJ sufficiently discussed how the answers on Dr. Hedden's questionnaire were inconsistent with the doctor's own treatment notes which reflected that Plaintiff could walk normally and that his pelvic MRI in 2015 did not reflect any significant abnormal findings. (AR 25). The ALJ also discussed the specific ways in which the one-page form opinion of Dr. Shallcross was inconsistent with other medical evidence, such as Dr. Lenehan's notes, which indicated that Plaintiff had normal gait and muscle strength. (Id.). The ALJ also noted that while Dr. Shallcross is a treating source, a physician's assistant (PA) actually saw Plaintiff at this office. (AR 26). The ALJ correctly noted that a PA is not considered an "acceptable medical source" under the regulations. (Id.).
A treating source's opinion, like all medical opinions, must be both well-supported by medical signs and laboratory findings and consistent with the other substantial evidence in the case record. 20 C.F.R. §§ 404.1527(d)(2)-(4) and 416.927(d)(2)-(4). "[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." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); Craig, 76 F.3d at 590. Here, the ALJ gave appropriate reasons for the reduced weight assigned to these doctors' one-page form opinions. The ALJ explained that their opinions were based on a very brief treating history and appeared to be largely based on Plaintiff's own subjective complaints. The ALJ explained that the opinions also conflicted with the evidence that Plaintiff engaged in a wide variety of daily activities that were inconsistent with his subjective complaints of debilitating symptoms. In conclusion, review of the ALJ's decision reflects that it is well-supported by substantial evidence.
VI. Recommendation
Accordingly, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be AFFIRMED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 16, 2018
Charleston, South Carolina
Plaintiff's attention is directed to the following important notice :
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).