ROBERT T. NUMBERS, II, Magistrate Judge.
Plaintiff Richard Lee McIntyre instituted this action on December 5, 2016, to challenge the denial of his application for social security income. McIntyre claims that the Administrative Law Judge ("ALJ") Peggy McFadden-Elmore erred in finding that he had the residual functional capacity ("RFC") to perform a reduced range of sedentary work. Both McIntyre and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 16, 18.
After reviewing the parties' arguments, the court has determined that ALJ McFadden-Elmore reached the appropriate decision. The additional limitations McIntyre claims are not well-supported by the record. Thus, the undersigned magistrate judge recommends that the court deny McIntyre's motion, grant Berryhill's motion, and affirm the Commissioner's decision.
On July 19, 2013, McIntyre filed an application for disability benefits alleging a disability that began on December 15, 2012. After his claim was denied at the initial level and upon reconsideration, McIntyre appeared before ALJ McFadden-Elmore for a hearing to determine whether he was entitled to benefits. ALJ McFadden-Elmore determined McIntyre was not entitled to benefits because he was not disabled. Tr. at 10-22.
ALJ McFadden-Elmore found that McIntyre had several severe impairments: status-post left patellar tendon rupture and repair, chronic left lower extremity edema, and history of deep vein thrombosis ("DVT"). Tr. at 12. ALJ McFadden-Elmore found that McIntyre's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 13.
ALJ McFadden-Elmore then determined that McIntyre had the RFC to perform a range of sedentary work with additional limitations. Tr. at 14-15. He can occasionally push and/or pull with his left lower extremity. Tr. at 15. He cannot climb ladders, ropes, or scaffolds. Id. He can occasionally balance, stoop, kneel, crouch, and crawl and can occasionally climb ramps and stairs. Id. Finally, McIntyre must avoid concentrated exposure to hazards. Id.
ALJ McFadden-Elmore concluded that McIntyre was incapable of performing his past relevant work as a route salesman or district manager. Tr. at 20. But ALJ McFadden-Elmore determined that, considering McIntyre's age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that he was capable of performing. Tr. at 20-21. These include: information clerk and receptionist. Tr. at 21. ALJ McFadden-Elmore then found that although he was not able to perform a full range of sedentary work, McIntyre's age, education, and transferability of work skills made a finding of "not disabled" appropriate under Medical Vocational Rules 201.22 and 201.15. Id. Thus, ALJ McFadden-Elmore found that McIntyre was not disabled. Tr. at 22.
After unsuccessfully seeking review by the Appeals Council, McIntyre commenced this action in December 2016. D.E. 1.
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).
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).
In 2009, McIntyre underwent patella tendon repair surgery following an injury he sustained while playing basketball. Tr. at 389-90. A staph infection subsequently developed but this resolved with an extended course of antibiotics. Tr. at 332. McIntyre also took medications to address his deep vein thrombosis ("DVT"). Id.
Dr. Matthew Sincock examined McIntyre in January 2011. Tr. at 426-27. He observed generally normal findings with the exception of edema in the lower left extremity. Id. Dr. Sincock noted that a blood clot in 2009 had caused McIntyre to have ongoing problems including edema. Id. He recommended McIntyre take aspirin and wear a compression stocking to treat this condition. Id. Dr. Sincock's October 2012 treatment record notes McIntyre's ongoing leg swelling with no appreciable change since the previous year. Tr. at 428. An examination found edema in the lower left leg for which Dr. Sincock advised McIntyre to manage with elevation, compression, and aspirin. Tr. at 429-30.
Later that month, Michele Stavovy, PA-C, examined McIntyre for his DVT. Tr. at 431. An examination revealed varicose veins and pitting edema in the lower left leg, and Stavovy assessed thrombosis and embolism of the left lower extremity. Tr. at 432. She advised McIntyre to continue with compression hose and elevation. Id.
One year later, Dr. Ayman Gebrail performed a consultative examination. Tr. at 332-34. McIntyre informed Dr. Gebrail that he stopped working in 2012 when his position was eliminated upon sale of the company. Tr. at 333. An examination yielded generally normal findings except for pitting edema in the lower left limb, left knee swelling and tenderness, and reduced range of motion in the left knee. Tr. at 334. Dr. Gebrail opined that McIntyre would have problems with prolonged standing, carrying, and lifting and certain postural activities. Id. Dr. Gebrail re-examined McIntyre three months later. Tr. at 338-40. An examination again noted pitting edema in the lower left extremity and tenderness and swelling of the left knee with limited range of motion. Tr. at 339-40. Dr. Gebrail once again opined that McIntyre would have difficulty with prolonged standing and certain postural activities. Tr. at 340.
Later that month, Dr. Brett Haywood reviewed McIntyre's medical records. Tr. at 83-84. He opined that McIntyre could perform activities consistent with medium work with additional limitations on climbing, balancing, stooping, kneeling, crouching, and crawling. Tr. at 84.
McIntyre returned to Dr. Sincock in January 2014 for his left leg edema. Tr. at 360-61. Dr. Sincock assessed post-thrombotic syndrome and recommended McIntyre continue with his conservative treatment of elevation, compression, and aspirin. Tr. at 361. He referred McIntyre to a lymphedema management center. Id. McIntyre informed Dr. Sincock that he may apply for disability, which Dr. Sincock found "quite understandable" given McIntyre's leg edema and leg pain. Id.
In April, McIntyre saw Dr. Joshua Walton for his lower left extremity edema, which he described as moderate and improving. Tr. at 364. An examination showed non-pitting edema. Id. Dr. Watson concluded the edema was stable and recommended that McIntyre continue wrapping and elevation and follow-up with the lymphedema clinic. Tr. at 366.
Physical therapy notes from later that month noted McIntyre suffered from lymphedema, for which he received manual lymph drainage. Tr. at 125. Providers instructed him on how to perform this procedure at home and recommended he continue to use his vasopneumatic pump and multiple-layer bandaging. Id. In May, physical therapy notes reflect he was treated with a vasopneumatic pump, which he also used at home. Tr. at 122.
McIntyre returned to Dr. Watson three months later where an examination found pitting edema in the lower left leg. Tr. at 352. Dr. Watson recommended McIntyre continue his conservative management of the condition. Id. Dr. Watson next examined McIntyre in February 2015 and noted normal balance and gait with edema in the left leg. Tr. at 343-45. Dr. Watson next saw McIntyre six months later for swelling in the lower left extremity. Tr. at 458. Dr. Watson observed pitting edema and started McIntyre on a new pain medication. Id.
In August 2015, four months after the hearing before ALJ McFadden-Elmore, Dr. Watson again examined McIntyre. Tr. at 456-59. Dr. Watson noted that McIntyre's lower leg swelling had worsened, for which he recommended elevation and to avoid dangling the affected limb. Tr. at 456-57.
McIntyre contends that ALJ McFadden-Elmore incorrectly concluded that he had the RFC to perform a reduced range of sedentary work and failed to consider his inability to sit for long periods and his need to elevate his legs. The Commissioner asserts, and the undersigned agrees, that substantial evidence supports ALJ McFadden-Elmore's RFC determination and that the record lacked evidence to support the additional limitations advanced by McIntyre.
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 ALJ's responsibility. 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 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.").
Here, the RFC limits McIntyre to a reduced range of sedentary work with additional limitations: occasional pushing and/or pulling with his left lower extremity; no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and stairs; occasional balancing, stooping, kneeling, crouching, and crawling; and no concentrated exposure to hazards. Tr. at 15. McIntyre asserts that he is restricted in his ability to sit and must elevate his legs to a certain level and for a certain length of time, limitations not addressed in the RFC.
McIntyre first argues that the RFC fails to reflect his need to elevate his legs to a certain level and for a certain amount of time. The Commissioner maintains that the record does not support such a limitation and, therefore, ALJ McFadden-Elmore committed no error in declining to adopt a restriction allowing for leg elevation in the RFC. The undersigned finds that McIntyre has not sufficiently established that such a limitation is well-supported by the evidence.
McIntyre argues that he needs to elevate his legs to relieve the edema he experiences. Although ALJ McFadden-Elmore concluded that the record did not indicate that he needed to elevate his legs, tr. at 19, McIntyre points to evidence he claims supports his position. He testified at the hearing that he elevates his leg eight to ten non-sleeping hours a day. Tr. at 15. In January 2012, Dr. Sincock recommended that McIntyre continue elevating his leg. Later that month, a PA noted that he elevated his leg. Two years later, Dr. Sincock remarked that McIntyre's edema was relieved with elevation, a conclusion Dr. Watson noted in April 2014. He reiterated this finding ten months later when he again remarked that McIntyre's edema was relieved with elevation. Dr. Watson's post-hearing report also observed that McIntyre should elevate his leg and avoid dangling it for long periods of time, including sitting. Tr. at 456. The same treatment notes found that McIntyre chronic leg pain limited his ability to stand for prolonged periods of time, but did not similarly conclude it impacted his ability to sit. Id.
McIntyre further maintains that common sense supports a finding that he must elevate his leg. He maintains that his knee surgery and DVT cause him to experience edema in the lower left limb. He states that elevating the limb above his torso allows gravity to move the excess fluid out of his leg. He also uses a vasopneumatic compressor to move fluid out of the left leg. In December 2013, Dr. Gebrail noted McIntyre's use of a device to assist in circulation. Four months later, PT notes recommended he continue to use the pump.
Despite McIntyre's contentions, ALJ McFadden-Elmore discussed the evidence addressing McIntyre's ongoing edema and his leg elevation. Tr. at 18. She concluded, however, that the treatment records failed to corroborate his testimony that because of swelling he had to elevate his legs above heart level for eight to ten non-sleeping hours every day. Tr. at 15, 18. Providers recommended a conservative course of treatment consisting of medication, compression stocking, and elevation. But no treating physician or other provider assessed a limitation directing McIntyre to elevate his legs to a certain level or position for a prescribed amount of time throughout the day.
Notably, treatment records indicated that McIntyre described his edema as chronic but stable and moderate just two months before his hearing before ALJ McFadden-Elmore. Tr. at 343. At an appointment four months after his hearing, Dr. Watson remarked that McIntyre's condition had a poor response to elevation. Tr. at 456.
In sum, the evidence does not support a functional limitation on McIntyre's need to elevate his leg. The record does provide substantial evidence supporting ALJ McFadden-Elmore's RFC determination for a reduced range of sedentary work that declined to include such a limitation. See Criss v. Colvin, No. 5:16-CV-86, 2017 WL 3025744, at *14 (N.D.W. Va. May 17, 2017) ("[O]nly two places in the medical records where feet elevation was recommended to ease the edema. Neither specified raising the feet above the heart and neither gave a time period for which elevation was to be done."), adopted by, Criss v. Comm'r of Soc. Sec., No. 5:16CV86, 2017 WL 2730647 (N.D.W. Va. June 26, 2017); Wood v. Astrue, Civ. A. No. 4:10-927-CMC-TER, 2011 WL 4344113, at *4 (D.S.C. Sept. 14, 2011) (rejecting plaintiff's argument that the ALJ failed to properly evaluate her RFC by ignoring plaintiff's need to elevate her legs); Brooks v. Comm'r of Soc. Sec., No. 3:13-cv-44, 2014 WL 1048498 (N.D.W. Va. Mar. 18, 2014) (adopting Magistrate Judge's Report and Recommendation finding ALJ did not err in failing to include a limitation regarding leg elevation where medical record did not specifically note that claimant had to elevate to chest level for a length of time outside of normal breaks). As McIntyre has failed to demonstrate that the record establishes that he must elevate his leg as he testified, his argument on this issue lacks merit.
McIntyre next contends that the RFC for a reduced range of sedentary work is unsupported by the record which, he contends, demonstrates his inability to sit for long periods of time. The Commissioner argues that McIntyre has failed to meet his burden of proof that he is unable to sit consistent with the requirements of sedentary work. The court finds that the evidence does not establish that McIntyre has assessed limitations in his ability to sit as required to perform sedentary work.
McIntyre maintains that his left leg edema interferes with his ability to sit for long periods of time. Although ALJ McFadden-Elmore acknowledged his edema, she did not find any limitations on his ability to sit. Tr. at 18.
McIntyre argues that the evidence supports a limitation on his ability to sit. Dr. Gebrail's treatment records reflecting that he had problems with prolonged sitting and standing. Similarly, Dr. Sincock remarked that McIntyre's edema was exacerbated by sitting or standing for long periods of time. In April 2014, Dr. Watson noted that McIntyre's symptoms were exacerbated by prolonged sitting and standing. He echoed this remark three months later when he noted that McIntyre's edema worsened with sitting. One year later, Dr. Watson noted that the edema was aggravated by sitting and walking. Similarly, PT notes reflect McIntyre's symptoms were worse with walking and sitting.
Given this evidence, McIntyre argues that ALJ McFadden-Elmore's statement that the record did not contain abnormal findings exceeding the limitations set forth in the RFC is incorrect. He contends that the Fourth Circuit's holding in Monroe v. Colvin requires remand where medical findings demonstrating his edema worsened with sitting but the ALJ did not explain why a limitation on sitting was not incorporated into the RFC. 826 F.3d 176 (4th Cir. 2016).
However, none of the providers assessed limitations on McIntyre's ability to sit. First, the evidence McIntyre identifies appear to reflect his own statements to providers, not their findings. Accordingly, they are not medical opinions or medical evidence. And Dr. Haywood, a State agency reviewer whose opinions ALJ McFadden-Elmore gave great weight, concluded that McIntyre was capable of both sitting and standing or walking each for up to six hours in an eight-hour workday. Tr. at 83. The post-hearing treatment notes from Dr. Watson opined that McIntyre's condition limited his ability to stand for long periods of time, described as between two and three hours, but made no similar assessment or quantification on his ability to sit. Tr. at 456.
As no provider restricted McIntyre's ability to sit by setting forth a limitation of how long he could sit, the undersigned cannot conclude there is any error in failing to incorporate such a limitation in the RFC assessment. Having failed to meet his burden of establishing he is restricted in his ability to sit, the undersigned cannot find that ALJ McFadden-Elmore's RFC for a reduced range of sedentary work was erroneous or unsupported by the record. Accordingly, McIntyre has failed to establish he is entitled to relief on this issue.
For the forgoing reasons, the court recommends denying McIntyre's Motion for Judgment on the Pleadings (D.E. 16), granting Berryhill'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)(1); 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.
