Opinion
No. 2:17-CV-00010-D
07-18-2018
Rickey Glen Campbell, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Rickey Glen Campbell instituted this action in May 2017 to challenge the denial of his application for social security income. Campbell claims that Administrative Law Judge ("ALJ") Lisa Hall erred in (1) failing to consider a prior Medicaid decision, (2) failing to apply the correct Grid Rule, 201.10, which would have required that ALJ Hall find him to be disabled, (3) failing to afford great weight to the opinion of Dr. Nicholas, (4) finding that Campbell had a residual functional capacity ("RFC") to perform a reduced range of light work, and (5) failing to credit fully Campbell's credibility and symptoms. Both Campbell and Defendant, Nancy A. Berryhill, have filed motions seeking a judgment on the pleadings in their favor. D.E. 17, 19.
Plaintiff's supporting brief, excluding the Certificate of Service, is 38 pages in length and thus violates E.D.N.C. L.R. 7.2(f)(1)(A) (absent prior court approval, "[a] memorandum in support of or in opposition to a motion . . . shall not exceed 30 pages in length, excluding the certificate of service page."). Counsel for Plaintiff should be familiar with the Local Civil Rules and is reminded to adhere to their provisions in future submissions.
After reviewing the parties' arguments, the court has determined that ALJ Hall reached the appropriate decision. ALJ Hall properly considered the prior Medicaid decision and the medical opinion evidence. And ALJ Hall did not err in evaluating Campbell's credibility. Substantial evidence supports her determination that Campbell can perform a reduced range of light work. Finally, her step five finding was proper because she referenced the appropriate Grid Rule in light of Campbell's specific vocational profile and the hypothetical questions to the Vocational Expert ("VE") accurately reflect his well-supported limitations. Therefore, the undersigned magistrate judge recommends that the court deny Campbell's motion, grant the Commissioner's motion, and affirm the Commissioner's decision.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In November 2012, Campbell protectively filed an application for supplemental security income, alleging a disability that began on May 1, 2005. After his claim was denied at the initial level and upon reconsideration, Campbell appeared before ALJ Hall for a hearing to determine whether he was entitled to benefits. ALJ Hall determined Campbell was not entitled to benefits because he was not disabled. Tr. at 14-24.
ALJ Hall found that Campbell had multiple severe impairments: degenerative disc disease, residuals from rotator cuff surgery, and residuals from a fractured ankle. Tr. at 16. ALJ Hall found that Campbell's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 19.
ALJ Hall then determined that Campbell had the RFC to perform a range of light work with additional limitations. Id. He can occasionally climb ladders, crawl, and reach overhead. Id. Campbell should avoid concentrated exposure to workplace hazards such as unprotected heights or dangerous or moving machinery. Id.
ALJ Hall concluded that Campbell could not perform his past relevant work as a construction worker. Tr. at 23. But ALJ Hall determined that, considering his age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that Campbell was capable of performing. Tr. at 23-24. These include: routing clerk, production assembler, or laundry classifier/sorter. Id. Thus, ALJ Hall found that Campbell was not disabled. Tr. at 24.
After unsuccessfully seeking review by the Appeals Council, Campbell began this action in May 2017. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Campbell suffered injuries in a fall in 1989. Tr. at 16. He continued to experience neck and back pain, which was aggravated by a 2008 motor vehicle accident. Id. In April 2009, Campbell suffered a trimalleolar fracture to his left ankle while roller-skating. Tr. at 18. After receiving treatment at an emergency room, Campbell sought treatment from Dr. Jeffrey Chase, who performed an open reduction and internal fixation of the left ankle. Id. Campbell continued to experience pain, despite physical therapy. Id. September 2011 x-rays showed the fracture site was united but also revealed osteophyte formation and joint space narrowing. Id. Providers assessed osteoarthritis and painful hardware in the left ankle, for which they have prescribed medications. Id.
In April 2009, MRIs revealed mild spondylosis at C5-6 with disc space narrowing, spurring, and protrusion in the cervical spine. Id. Campbell's lumbosacral spine showed disc space narrowing and mild facet joint disease, along with disc herniation, disc protrusion, and mild disc bulging. Id. Follow-up MRIs performed in October 2013 showed mild spondylosis and facet arthropathy in the cervical and lumbosacral spines, with disc bulging and protrusion, but no evidence of spinal cord compression. Tr. at 17.
Dr. Theodore Nichols with Atlantic Pain Management treated Campbell's neck and back pain from July 2012 through April 2014. Id. An examination found tenderness and muscle spasms, full range of motion, and positive straight leg raise on the right. Id. Dr. Nichols's diagnoses included chronic low back pain and shoulder, right hand, and left ankle pain, for which he prescribed medications. Id.
Dr. Matthew McKenna with Outer Bank Orthopaedics treated Campbell's shoulder, neck, and back conditions. Id. In September 2011, Campbell complained of right shoulder pain, which an MRI revealed to be a rotator cuff tear. Dr. McKenna performed arthroscopic repair of the shoulder in June 2012. Id. Campbell continued to complain of pain and Dr. McKenna observed that despite tenderness, his strength and range of motion in the shoulder had improved. Id.
In September 2012, Campbell underwent a consultative examination with Dr. Robert Mitchell. Tr. at 18. Campbell described his multiple somatic complaints and his depressive symptoms which he attributed to his physical condition. Id. Campbell stated that he received no mental health treatment nor took any psychiatric medications. Id. Campbell's mental status examination yielded generally normal findings, and Dr. Mitchell diagnosed situational depression, secondary to his general medical condition. Id.
Campbell returned to Dr. McKenna in September 2013, where an examination found normal muscle strength and normal sensation in the extremities. Tr. at 17. Although Dr. McKenna referred Campbell to a spine specialist in October 2013, he did not pursue the referral. Id. In August 2014, Campbell returned to Dr. McKenna, who noted continued bilateral shoulder pain, with positive impingement sign and limited range of motion on the left side. Id. Dr. McKenna gave Campbell an injection, prescribed medications to him, and referred him to a pain specialist. Tr. at 17-18.
In December 2014, Dr. Kurt Voos with Center for Scoliosis and Spine examined Campbell. Id. Dr. Voos's examination noted normal gait, full range of motion, full muscle strength, and negative straight leg raises. Id. After reviewing Campbell's imaging studies, Dr. Voos assessed degenerative disc disease of the lumbosacral spine with spinal stenosis. Id. Dr. Voos referred Campbell for pain management. Id.
State agency physicians Drs. Perry Caviness and Edwin Swann opined that Campbell could perform light work with limitations on his abilities to push and pull as well as postural, manipulative, and environmental restrictions. Tr. at 22.
In February 2014, Campbell qualified for Medicaid coverage, effective May 2013. Id. The state adjudicator concluded that Campbell could perform sedentary work with postural and manipulative restrictions. Id.
At the hearing, Campbell testified that he can sit for 20 minutes, stand for 30-40 minutes, and walk for 20 minutes. Tr. at 21. He also stated he can lift up to ten pounds but that he drops things. Id. Campbell cannot bend or reach overhead. Id. Although he can drive, he has to stop every 30 minutes to move around. Id.
Campbell stated that his spine pain is his primary disabling condition. Id. He characterized it as "bone on bone" and stated that his providers want to perform surgery to relieve pressure. Id. He also testified that he may require ankle fusion but he has declined this treatment because he prefers to keep the motion in his ankle. Id.
D. Residual Functional Capacity
Campbell contends that the evidence establishes that he cannot meet the demands of light work because he cannot sit for six hours due to bilateral leg pain and numbness. The Commissioner maintains that there is substantial evidence in the record supporting Campbell's ability to perform the demands of a reduced range of light work. The undersigned agrees with the Commissioner's argument.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g. daily activities, observations)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Social Security Ruling ("SSR") 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record." Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Campbell argues that his bilateral leg pain and numbness is well-documented. He asserts that he must lie down every hour to relieve his symptoms. He also contends that his impairments impede his abilities to stand and walk.
Despite his argument, Campbell has identified no specific medical records assessing limitations on his abilities to sit, stand, or walk. ALJ Hall noted that the record lacked any medical source statements from treating providers during the period at issue. Tr. at 22. And state agency physicians opined that Campbell was capable of performing the exertional demands of light work with additional postural, manipulative, and environmental limitations. Tr. at 22. Although he claims to need to lie down every hour to relieve his back pain, ALJ Hall did not find such a limitation to be supported in the record. Consequently, the RFC did not include this limitation.
ALJ Hall discussed Campbell's medical history, including his back, shoulder, and ankle conditions. While Campbell may have experienced limitations related to these areas, as discussed below, ALJ Hall did not find his statements fully credible. Aside from his own statements, Campbell has failed to identify specific evidence supporting his position that he cannot perform the exertional demands associated with light work. For this reason, he has not shown that ALJ Hall erred in her RFC determination. Thus, his argument on this issue lacks merit.
E. Medicaid Decision
Campbell next contends that ALJ Hall erred in failing to explain why she did not accord significant weight to a prior Medicaid decision, which found that Campbell was limited to a reduced range of sedentary work. The Commissioner asserts that ALJ Hall properly evaluated this determination and that a review of her decision makes clear why she did not assign it more weight. The court finds that a review of ALJ Hall's decision sets forth the reasons she declined to give significant weight to the Medicaid determination.
As provided by 20 C.F.R. § 404.1504 and further explained in Social Security Ruling ("SSR") 06-03p, "a determination made by another agency that [the claimant is] disabled or blind is not binding on" the Social Security Administration. 20 C.F.R. § 404.1504. Instead, "the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner." SSR 06-03p.
The Fourth Circuit addressed the value of disability findings by other agencies in Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012). The Fourth Circuit noted that while another agency's disability determination is not binding on the SSA, "another agency's disability determination 'cannot be ignored and must be considered.'" Bird, 699 F.3d at 343. The Fourth Circuit noted that often times the disability assessments serve the same governmental purpose of providing benefits to persons unable to work, evaluate a claimant's ability to perform full-time work, analyze a claimant's functional limitations, and require extensive medical documentation to support the claims. Bird, 699 F.3d at 343. Assigning less weight to another governmental agency's disability determination may be warranted "when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.
Subsequent case law within the Fourth Circuit has explicitly extended the holding in Bird to Medicaid decisions, noting that both the Medicaid and VA disability programs share markedly similar standards and requirements with the DIB and SSI programs at issue here. See, e.g., Harvey v. Colvin, No. 5:13-cv-00074, 2014 WL 4093483, at *5 (W.D. Va. Aug. 18, 2014) ("[T]he state agency's determination that [claimant] is disabled for purposes of Medicaid may provide relevant evidence that the Commissioner should consider."); Caraballo v. Colvin, No. 4:12-cv-125-D, 2013 WL 3197070, at *3-4 (E.D.N.C. June 21, 2013) ("Failure to discuss a Medicaid decision requires remand."). Whether the evidence submitted sufficiently addresses the reasons for North Carolina's disability determination or not, the ALJ must still explain the weight due to it. See Bannister v. Colvin, No. 1:14-cv-741, 2015 WL 5027530, at *6 (M.D.N.C. Aug. 25, 2015) (citing Bird, 699 F.3d at 343) (noting that although another agency's disability determination is not binding on the SSA, such a determination cannot be ignored and must be considered); Wilson v. Colvin, No. 1:11-cv-256, 2014 WL 4274253, at *5-6 (M.D.N.C. Aug. 29, 2014), adopted, slip op. (M.D.N.C. Sept. 17, 2014); Baughman v. Colvin, No. 5:13-cv-FL, 2014 WL 3345030, at *8 (E.D.N.C. July 8, 2014) (remand because ALJ failed to provide sufficient reasons for dismissing Medicaid decision so as to permit meaningful review); Watson v. Astrue, No. 5:08-cv-553-FL, 2009 WL 2423967, at *3 (E.D.N.C. Aug. 6, 2009) (noting that remand is proper where an ALJ fails to explain weight given to a state Medicaid decision)).
In February 2014, Campbell qualified for Medicaid, effective as of May 2013. The state hearing officer who reviewed Campbell's application concluded that Campbell could perform sedentary work with no frequent stooping or crouching. Tr. at 132-34. Campbell also had mild limitations in his abilities to reach, handle, feel, grasp, and finger. Id.
ALJ Hall discussed the Medicaid determination and its findings. Tr. at 22. She concluded, however, that it was due little weight because it was inconsistent with the record as a whole. Id. While ALJ Hall's reasoning may seem brief, a review of her decision and its discussion of the evidence explains her rationale and supports her assessment.
ALJ Hall's RFC determination found that Campbell could perform a reduced range of light work. As noted above, substantial evidence supports that determination. Her decision and analysis reflects her reasons for finding that Campbell could perform light work and why he was not limited to sedentary work. Because ALJ Hall was not bound by the Medicaid decision and had to independently consider and evaluate the medical evidence, and because her determination has the support of substantial evidence, Campbell's argument on this issue lack merit and should be rejected
F. Medical Vocational Guidelines
Campbell argues that ALJ Hall erred in identifying the applicable Grid Rule. The Commissioner contends, and the undersigned agrees, that ALJ Hall referenced the correct Grid Rule.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence about the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
Campbell notes that the Medicaid adjudicator concluded that Rule 201.10, applicable to sedentary work, was appropriate to Campbell's claim. Campbell also points out that ALJ Hall noted the Grids would direct a finding of "disabled" to someone of Campbell's age, education, work experience, if he had an RFC for sedentary work. Tr. at 64.
Contrary to Campbell's argument, however, ALJ Hall referenced the applicable Grid Rule, 202.11, which addressed light, not sedentary work. Tr. at 24. Campbell premises his argument on the position that he cannot perform light work. As noted above, the RFC for a reduced range of light work is supported by substantial evidence. So the court should reject this argument as it, too, lacks merit.
G. Medical Opinion Evidence
Campbell also argues that ALJ Hall erred in considering Dr. Nicholas's opinion, and in particular, his April 2014 notation, "out of work indefinitely." The Commissioner asserts that ALJ Hall properly considered all the opinion evidence. The undersigned finds no error in ALJ Hall's consideration of Dr. Nicholas's opinion.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must offer an explanation of the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
ALJ Hall discussed the evidence from Dr. Nicholas. Tr. at 17, 20. She observed that this provider treated Campbell for almost two years for his complaints of back, hand, and ankle pain. Tr. at 17. ALJ Hall noted Dr. Nicholas's examination findings and treatment. Id. She recounted Campbell's testimony that he obtained a handicap placard for six months through Dr. Nicholas and that this provider subsequently dismissed Campbell from his care for an incident involving marijuana. Tr. at 20.
Campbell argues that ALJ Hall failed to weight Dr. Nicholas's opinion. He cites an April 2014 notation that approved Campbell's request for a disability placard. Tr. at 653. The entry states "out of work indefinitely." Id.
ALJ Hall did not err by not assigning weight to this brief statement. First, ALJ Hall remarked that there were no treating or examining medical source statements related to the current period. Tr. at 22. Clearly, then, ALJ Hall did not consider this record a "medical opinion" that the Regulations required her to weigh. Secondly, both the context and the basis for Dr. Nicholas's statement are unknown. As the Commissioner points out, it is unclear from the brevity of this entry whether Dr. Nicholas meant that Campbell had been, would be, or should be out of work for an indefinite period.
Finally, to the extent that Dr. Nicholas was opining that he believed Campbell would be out of work for an indefinite period, he would be addressing a matter reserved exclusively to the Commissioner. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). To the extent Dr. Nicholas opined Campbell could not work, his conclusion is inconsistent with ALJ Hall's RFC determination, a finding, as noted above, that has the support of substantial evidence. Thus, any error in failing to weigh this statement could be considered harmless where it conflicts with the other evidence in the record and would be entitled to little, if any, weight.
As substantial evidence supports ALJ Hall's determination, the court should deny Campbell's argument on this issue.
Campbell also contends that ALJ Hall erred in failing to reference Dr. Mitchell's assessed Global Assessment of Functioning ("GAF") score. ALJ Hall discussed the evidence from this provider. Tr. at 18. Moreover, it is well-settled that an ALJ is not required to discuss every piece of evidence. See Brewer v. Astrue, No. 7:07-CV-24-FL, 2008 WL 4682185, at *3 (E.D.N.C. Oct. 21, 2008) ("While the ALJ must evaluate all of the evidence in the case record, the ALJ is not required to comment in the decision on every piece of evidence in the record, and the ALJ's failure to discuss a specific piece of evidence is not an indication that the evidence was not considered.")
After ALJ Hall's decision here, the SSA superseded SSR 96-7p with SSR 16-3p, 2016 WL 1119029 (effective Mar. 28, 2016). SSR 16-3p eliminates use of the term "credibility," and clarifies that subjective symptom evaluation is not an examination of an individual's character. Although SSR 16-3p eliminates the term credibility, it requires assessment of most of the factors previously considered under SSR 96-7p. Because this case was decided before March 28, 2016, the court analyzes the decision based on the provisions of SSR 96-7p, which required assessment of the claimant's credibility. See Best v. Berryhill, No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (applying SSR 96-7p under the same circumstances).
Campbell's next argument is that ALJ Hall erred in finding that he was not fully credible. He maintains that the evidence supports his statements on the limiting effects of his impairments. The Commissioner submits that ALJ Hall's credibility analysis is supported by the record. The undersigned concludes ALJ Hall credibility determination was proper and sufficiently explains the reasons she did not find Campbell fully credible.
The Social Security Regulations provide the authoritative standard for the evaluating subjective complaints of pain and symptomology. See Craig, 76 F.3d at 593; 20 C.F.R. § 404.1529(a). Under the Regulations, "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Id. at 594. First, as an objective matter, the ALJ must determine whether the claimant has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged. Id.; see also SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). If this threshold question is satisfied, then the ALJ evaluates the actual intensity and persistence of the pain or other symptoms, and the extent to which each affects a claimant's ability to work. Id. at 595. The step two inquiry considers "all available evidence," including objective medical evidence (i.e., medical signs and laboratory findings), medical history, a claimant's daily activities, the location, duration, frequency and intensity of symptoms, precipitating and aggravating factors, type, dosage, effectiveness and adverse side effects of any pain medication, treatment, other than medication, for relief of pain or other symptoms and functional restrictions. Id.; see also 20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996 WL 374186, at *3. The ALJ may not discredit a claimant solely because his subjective complaints are not substantiated by objective medical evidence. See id. at 595-96. However, neither is the ALJ obligated to accept the claimant's statements at face value; rather, the ALJ "must make a finding on the credibility of the individual's statements based on a consideration of the entire case record." SSR 96-7p, 1996 WL 374186, at *2.
The ALJ has full discretion to weigh the subjective statements with the objective medical evidence and other matters of record. Craig, 76 F.3d at 595 (holding that claimant's allegations of pain need not be accepted to extent that they are inconsistent with the record); see also Hawley v. Colvin, No. 5:12-cv-260-FL, 2013 WL 6184954, at *15 (E.D.N.C. Nov. 14, 2013) (ALJ need not accept claimant's claims at face value). In a district court's review, the ALJ's findings are entitled to great weight because of the ALJ's ability to observe and evaluate testimony firsthand. Shively, 739 F.2d at 989-90.
Campbell contends that ALJ Hall improperly discredited his statements because he did not support them with objective evidence. Campbell points to the evidence documenting his chronic back, shoulder, and ankle conditions. He contends that ALJ Hall minimized these impairments and failed to recognize that various treatment measures, including medication, injections, and physical therapy, did not relieve his symptoms. Campbell also asserts that ALJ Hall's reference to his attempts to work, gaining custody of his four children in 2007, and his 2009 roller skating accident are not relevant to the credibility assessment because they occurred several years before his current disability application in 2012.
Substantial evidence supports ALJ Hall's credibility determination. Campbell is correct in stating that ALJ Hall could not require him to verify his chronic complaints of neck, shoulder, and ankle pain with objective evidence. However, ALJ Campbell did not discredit his statements merely on a lack of evidence. Instead, she identified those portions of the medical record which undermined Campbell's claims.
Campbell asserted that he had "bone-on-bone" in three vertebrae for which providers recommended surgery. However, the imaging studies showed only mild degenerative disc disease with vertebral heights preserved. ALJ Hall remarked that there was no evidence of nerve root compression or diffuse radiculopathy and no surgery was planned. Tr. at 22.
Campbell also claimed he may require ankle-fusion surgery which he preferred not to undergo. ALJ Hall noted, however, that x-rays showed his previous fracture healed with no signs of joint inflammation. And Campbell had not required treatment except for medication since his 2009 ankle surgery.
Campbell also maintained that, following surgery for his rotator cuff tear, he possibly experienced another rotator cuff tear and/or impingement. ALJ Hall observed that, lacking an MRI or other imaging, Campbell's assessment was speculative as examinations found no persistent inflammation and no manipulative functioning effects were noted.
Finally, although Campbell contends that ALJ Hall cited several facts that occurred before his present application, these events still occurred since his disability onset date, May 1, 2005. Thus, they are relevant to the current application for disability.
Because the evidence undermines Campbell's allegations about his impairments and their limiting effects on his functioning, ALJ Hall did not err in finding that he was not fully credible. As a result, the court should reject Campbell's arguments on this issue.
I. Step Five
Campbell next maintains that ALJ Hall erred in her hypothetical questions to the VE. The Commissioner contends that the hypothetical questions to the VE reflected all of Campbell's well-supported limitations. Campbell's argument on this issue is unpersuasive.
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). In order for a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-cv-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Campbell observes that one of the hypothetical questions posed to the VE included a requirement that he be permitted to lie down twice per day for 30 minutes. Tr. at 64. The VE testified there was no available work that would accommodate such a restriction. Id. The VE also offered testimony that if an individual required a sit/stand option to alternate positions every 15 minutes, the assembly production position would be eliminated but that a small parts assembler job could be substituted. Tr. at 64-65.
Although Campbell contends that he has additional limitations in his abilities to sit, stand, and walk, and he must lie down, the RFC does not incorporate such limitations. Again, as discussed more fully above, substantial evidence supports ALJ Hall's RFC limitation. While Campbell contends has additional limitations, further restrictions in his abilities to sit, stand, walk, or a need to lie down throughout the day were restrictions that lacked support in the record. So ALJ Hall did not err in omitting these further limitations in either her RFC determination or in the hypothetical questions to the VE. Consequently, the court should reject Campbell's argument on this issue.
The undersigned also finds no merit to Campbell's conclusory and unsupported argument that he is disabled because he cannot work on a regular and continuing basis. See Boston v. Colvin, No. 4:14-CV-206-D, 2016 WL 721563, at *7 (E.D.N.C. Feb. 2, 2016), adopted by No. 4:14-CV-206-D, 2016 WL 738762 (E.D.N.C. Feb. 23, 2016) ("[B]y not specifying otherwise, the ALJ's decision indicates his determination that plaintiff could perform work "8 hours a day, for 5 days a week, or an equivalent work schedule.") (quoting SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (a claimant's RFC signifies an "individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," and " 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.")). --------
III. Conclusion
For the forgoing reasons, the court recommends denying Campbell's Motion for Judgment on the Pleadings (D.E. 16), granting the Commissioner's Motion for Judgment on the Pleadings (D.E. 18), and affirming the Commissioner's decision.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: July 18, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge