THOMAS E. ROGERS, III, Magistrate Judge.
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, finding that Plaintiff's disability ended as of May 31, 2011. The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
In a February 6, 2009 bench decision, ALJ Gregory M. Wilson found Plaintiff disabled and entitled to disability insurance benefits (DIB) as of the September 29, 2008, but stated that Plaintiff's claim should be reviewed in one year as medical improvement was quite possible with treatment. (Tr. 108-13). On May 20, 2011, the agency performed a continuing disability review (CDR) and determined that Plaintiff had medically improved and, as of May 31, 2011, was no longer disabled within the meaning of the Act. (Tr. 114-19). On reconsideration, a state agency disability hearing officer upheld this determination after a disability hearing. (Tr. 122-33). Plaintiff then filed a request for a hearing before an ALJ. (Tr. 134). On May 15, 2014, Plaintiff, who was represented by counsel, and a vocational expert (VE) testified at a hearing before the ALJ. (Tr. 47-76). On September 17, 2014, the ALJ found that medical improvement occurred as of May 31, 2011, and that Plaintiff was not disabled as of this date. (Tr. 24-46). The Appeals Council denied Plaintiff's subsequent request for review (Tr. 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff filed an action in this court on January 25, 2016.
Plaintiff was born on December 13, 1973, and was 37 years old on May 31, 2011, the medical improvement date. (Tr. 39). Plaintiff has at least a high school education and past relevant work as a welder, heavy equipment operator, and truck driver. (Tr. 39). He was previously found disabled due to three back surgeries. (Tr. 108, 113).
On January 16, 2009, Plaintiff visited J. Reilly Keiffer, D.O. for persistent low back pain and left lower extremity pain complaints with a history of disk herniation and status-post microdiscectomy in June 2008. (Tr. 288-90). Plaintiff noted that Lortab provided satisfactory pain relief. (Tr. 288). Plaintiff also noted taking Klonopin for anxiety. (Tr. 288). An October 2008 lumbar spine MRI revealed an annular fissure at L3/L4, small disk bulging at L3/L4, no evidence of recurrent disk herniation at L4/L5, no significant central stenosis, and some disk bulging with facet changes at L5/S1. (Tr. 289). On examination, Plaintiff was pleasant, cooperative, alert, oriented, and in no acute distress; could heel and toe-stand; and had an antalgic gait, 5/5 (full) strength in his lower extremities with no focal weakness, some reduced lumbar range of motion, normal muscle tone, a positive left straight leg raise test but negative right straight leg raise test, and no tenderness to palpation in his lumbar paraspinal muscles. (Tr. 289). Dr. Keiffer assessed Plaintiff with left lower extremity radiculopathy at L5 and no current low back pain. (Tr. 289). Dr. Keiffer suggested medication management and physical therapy. (Tr. 290).
From February 2009 to December 2010, Plaintiff continued treatment with Dr. Keiffer and Joseph McTavish, a physician assistant working with Dr. Keiffer. (Tr. 267-76, 282-87). Plaintiff consistently denied lumbar pain, and reported doing well on pain medication. (Tr. 268-69, 272-76, 283-87). Plaintiff also reported having an exercise plan in February, June, July, August, and September 2009, i.e., "walking about a mile a day several days per week," (tr. 287), "doing about a mile and a half on an incline treadmill on a regular basis," (tr. 284), and "now walking two miles a day seven days a week," (tr. 282).
On examinations, despite occasional positive straight leg raise test on the left and reported use of a cane in August 2010, Plaintiff was alert, oriented, pleasant, conversational, in good spirits, and in no acute distress; could heel- and toe-stand; and had a normal affect, a mostly normal gait, mostly no tenderness to palpation in the lumbar parapsinal muscles, and 5/5 (full) strength in his lower extremities. (Tr. 267-76, 282-87). Plaintiff was assessed with chronic left lower extremity L5 radiculopathy/radiculitis with no low back pain that improved (but flared in cold weather). (Tr. 267-76, 282-87). He was initially given Lortab but switched to Norco with a goal of weaning himself off pain medication and was encouraged to continue exercising. (Tr. 267, 270-76, 282-87). Dr. Keiffer encouraged Plaintiff to set goals of receiving more education and eventually returning to work. (Tr. 273).
On February 28, 2011, Plaintiff visited Lee Ashley Mullinax, M.D., with left leg pain complaints. (Tr. 349). Plaintiff reported walking daily and doing nightly stretches (Tr. 349). He also reported no significant back pain. (Tr. 349). He added that walking, exercise, and Lortab made his pain better. (Tr. 349). On examination, Plaintiff was in no acute distress, alert, and oriented, and no pain with back extension and flexion, mild pain with left facet loading, pain over his gluteal muscles, decreased sensation to light touch in L4 and L5 distribution in left leg above the knee, and 5/5 (full) lower extremity strength. (Tr. 349). Dr. Mullinax assessed Plaintiff with chronic left leg pain secondary to L4/5 radiculopathy and stable chronic low back pain (Tr. 349). He refilled Plaintiff's Norco prescription. (Tr. 349).
On March 18, 2011, after examination, Kurt L. Gandenberger, M.D., of Doctor's Care noted that Plaintiff had anxiety, insomnia, and panic but that medications helped his condition. (Tr. 299). On examination, Dr. Gandenberger found that Plaintiff was oriented but worried/anxious, and had appropriate thought content and adequate attention/concentration, but racing and distractible thoughts and poor memory. (Tr. 299). He opined that Plaintiff had "obvious" work limitations due to his mental condition. (Tr. 299).
On March 30 and April 27, 2011, Plaintiff had medication re-checks with Dr. Mullinax, who refilled Plaintiff's Norco prescription. (Tr. 345-48). Plaintiff reported an increase in his walking. (Tr. 345).
On May 25, 2011, Plaintiff returned to Dr. Mullinax with complaints of back pain and left-sided radicular pain. (Tr. 343-44). Plaintiff denied any psychological complaints. (Tr. 343). Plaintiff reported satisfactory control of his pain. (Tr. 343). On examination, Plaintiff was in no acute distress; walked with a cane; and had equal pain with extension and flexion of his back worse in left paraspinal muscles, 5/5 (full) lower extremity strength, and normal sensation to light touch except in the S1 distribution in left leg. (Tr. 343). Dr. Mullinax assessed Plaintiff with low back pain and neuritis/radiculitis, and increased Plaintiff's Norco pain medication. (Tr. 343-44).
From June 2011 to Plaintiff's discharge for a positive drug test showing amphetamine and methamphetamine use, Plaintiff continued treating with Dr. Mullinax for his back and leg pain. (Tr. 325-26, 338-39, 341-42, 372-73, 398-406, 419, 422, 424-28, 430-31, 433, 449). He received multiple epidural steroid injections and radio frequency ablations, which helped relieve some pain. (Tr. 325-26, 341, 430-31, 449). Plaintiff reported being happy with his pain control and that Norco alleviated most of it. (Tr. 341, 398, 402, 422, 425, 428, 431). On examinations, Plaintiff was in no acute distress, alert, oriented, and conversational, and had a normal affect, normal speech, a normal gait (but sometimes walked with a cane), tenderness to palpation and muscle spasms in his low back, good range of motion with low back extension or flexion, occasional left leg radicular symptoms, some tenderness in the left gluteal region, and mostly 5/5 (full) lower extremity muscle strength. (Tr. 341, 373, 398, 400, 402, 422, 425, 428, 430-31). Dr. Mullinax assessed Plaintiff with neuritis/radiculitis, lumbosacral spondylosis, lumbar disc degeneration, low back pain, and muscle spasms, and continued Plaintiff's Norco and Flexeril (eventually discontinued) prescriptions. (Tr. 341-42, 373, 398-02, 422, 424-28, 430-31, 433, 436).
On July 14, 2011, Plaintiff visited James Morrison, M.D., for medication refills. (Tr. 332). Dr. Morrison diagnosed Plaintiff with chronic low back pain, anxiety with depressive symptoms, and insomnia. (Tr. 332). Plaintiff was given anxiety medication with instructions for no refills. (Tr. 332).
On August 18, 2011, Plaintiff visited Jeffrey Smith, M.D., with anxiety complaints. (Tr. 327-29). On examination, Plaintiff had an anxious but stable mood and psychomotor agitation, but he had a bright affect, no mania or psychosis, no suicidal or homicidal ideations, no cognitive deficits, normal concentration and focus, average insight and judgment, normal speech, a normal gait, and logical and goal-oriented thought processes. (Tr. 328). Plaintiff was assessed with anxiety disorder, not otherwise specified and a Global Assessment of Functioning (GAF) score of 61 (indicating only mild symptoms or difficulties). (Tr. 328). Plaintiff was given anxiety medications. (Tr. 328).
From January 2012 to April 2014, Plaintiff treated with Physician Assistant Joseph Friddle due to anxiety and pain. (Tr. 453-62). He consistently reported that his anxiety was better and manageable. (Tr. 453, 455, 457-58, 460, 462). On examinations, Plaintiff had an anxious but stable mood and psychomotor agitation, but he had a bright affect, no mania or psychosis, no suicidal or homicidal ideation, normal concentration and focus, average judgment and insight, a normal gait, normal speech, and logical thought processes. (Tr. 453, 455, 457-58, 460, 462). Plaintiff was assessed with anxiety disorder, not otherwise specified and GAF scores of 65 (indicating only mild symptoms or difficulties). (Tr. 453, 455, 457-58, 460, 462). Plaintiff was treated with anxiety medication and Neurontin (pain medication), which he stated controlled his pain well. (Tr. 453, 455, 457-58, 460, 462).
Plaintiff had a May 2014 lumbar spine MRI that showed L3-4 through L5-S1 disc degenerative changes, no disc herniation, a congenitally small spinal canal due to short pedicle syndrome, and previous posterior spinous limitations at L3-4 and L4-5. (Tr. 465).
On May 18, 2011, state agency physician Dr. Van Slooten opined that Plaintiff could occasionally lift and carry fifty pounds, frequently lift and carry twenty-five pounds, and stand and/or walk and sit for six hours each in an eight-hour workday. (Tr. 302). He added that Plaintiff could frequently climb ramps and stairs, balance, kneel, crouch, and crawl, and occasionally stoop and climb ladders, ropes, or scaffolds. (Tr. 303). He further opined that Plaintiff should avoid concentrated exposure to hazards (machinery, heights, etc.). (Tr. 305). Upon reconsideration, State agency physician Dr. Weston agreed with Dr. Van Slooten's conclusions. (Tr. 365-68).
On May 19, 2011, state agency psychologist Dr. Calhoun opined that Plaintiff's mental impairments were not severe (anxiety and panic disorder). (Tr. 309, 314). He added that Plaintiff had no restriction of daily activities or difficulties in maintaining social functioning and only mild difficulties in maintaining concentration, persistence, or pace. (Tr. 319).
On November 14, 2011, another state agency psychologist, Dr. Rogers-Hicks, opined that Plaintiff's mental impairments (anxiety and depression) were not severe. (Tr. 350, 353, 355). She added that Plaintiff had mild restriction of daily activities and difficulties in maintaining social functioning, concentration, persistence, and pace. (Tr. 360).
On April 20, 2011, the Cooperative Disability Investigations Unit (CDIU) initiated an independent fraud investigation of Plaintiff. (Tr. 258). The state agency referred this case to the CDIU regarding Plaintiff's physical impairment for a field investigation to obtain independent third party functioning information. (Tr. 258). CDIU Special Agent Ted Shealy subsequently conducted a business canvass of the convenience stores near Plaintiff's address and found that Plaintiff frequented three local convenience stores. (Tr. 259-60, 262-63). Upon investigation, Special Agent Shealy discovered that Plaintiff was a regular customer, walked fine without a limp or use of a cane, pushed a loaded cart, bent to the ground to pick up dropped items, and opened the door. (Tr. 259-60, 262-63).
Special Agent Shealy also visited Plaintiff's residence under the pretense that he had information that Plaintiff might have information about a wanted fugitive. (Tr. 261-62). Upon arrival, Plaintiff walked to Special Agent Shealy's car without a limp, along with his girlfriend, Erica Rosser. (Tr. 261). Special Agent Shealy, Plaintiff, and Ms. Rosser talked for approximately forty-five minutes while standing by his car. (Tr. 261). Special Agent Shealy twice observed Plaintiff walk to his residence, up six or seven stairs, and open the door, without any pain or discomfort. (Tr. 261). Plaintiff also leaned over to use the hood of Special Agent Shealy's car to write down his information without any pain or discomfort. (Tr. 261). Plaintiff also admitted to hunting and fishing during the conversation. (Tr. 261).
In the decision of September 17, 2014, the ALJ made the following findings of fact and conclusions of law:
(Tr. 29-40).
The Plaintiff argues that the ALJ erred in his decision, and that reversal and remand are appropriate in this case. Specifically, Plaintiff alleges that the ALJ erred by (1) failing to consider and discuss the relevant factors for analyzing pain, (2) failing to give weight to the opinion of Dr. Gandenberger, (3) disregarding the testimony of his girlfriend, and (4) disregarding a second hypothetical posed to the VE.
The Commissioner argues that the ALJ's decision is supported by substantial evidence.
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: 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 at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
Medical improvement is defined as "any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled . . ." 20 C.F.R. § 404.1594(b)(1). Such a finding must be based on "changes (improvement) in the symptoms, signs and/or laboratory findings associated with the impairments."
When determining whether a claimant who has previously been found to be disabled continues to be disabled under applicable regulations, the ALJ is required to apply an eight-step sequential evaluation process.
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [ ] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case.
The court's function is not to "try these cases
Plaintiff argues that the ALJ failed to consider and discuss the factors contained in 20 CFR § 404.1529(c)(3) for analyzing his subjective complaints of pain. a two-step process is required when assessing the credibility of a claimant's subjective pain complaints. 20 CFR § 404.1529;
In his decision, the ALJ first discussed that, at the time of the CPD, February 6, 2009,
(Tr. 34). The ALJ discussed that Plaintiff reported in July of 2009 to April of 2011 that he was consistently exercising, i.e., walking a mile and a half on an incline daily and later walking two miles a day every day. (Tr. 34). The ALJ also noted that Plaintiff reported no significant back pain at times and stated that he was pleased with his pain control, including relief from pain medications, and that he was able to take less pain medication to gain relief. The ALJ also noted that Plaintiff reported no side effects from his medication. (Tr. 34).
Plaintiff argues that the ALJ failed to consider the appropriate factors as of May 31, 2011, although he points to no medical records that the ALJ failed to consider. He also argues that the ALJ failed to consider his obesity, anxiety and panic attacks as they relate to his pain. Again, Plaintiff fails to point to any medical records indicating a relation between his obesity, anxiety, and/or panic attacks to his pain. In addition, the ALJ stated,
(Tr. 29). The ALJ also discussed Plaintiff's anxiety and panic attacks with a thorough discussion of his treatment from 2006 through 2014, as well as medical opinions and noted that Plaintiff consistently stated that his anxiety was managable with his medication. (Tr. 30-33).
In sum, the ALJ's findings regarding Plaintiff's subjective complaints of pain are supported by substantial evidence.
Plaintiff argues that the ALJ failed to give weight to the opinion of Dr. Gandenberger. The Social Security Administration's regulations provide that "[r]egardless of its source, we will evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(c). Generally, more weight is given to the opinions of examining physicians than nonexamining physicians. More weight is given to the opinions of treating physicians since they are more likely to be able to provide a detailed, longitudinal picture of a claimant's medical impairment.
In determining what weight to give the opinions of medical sources, the ALJ must apply all of the factors in 20 C.F.R. § 404.1527(c)(1)-(6), which are: whether the source examined the claimant; whether the source has a treatment relationship with the claimant and, if so, the length of the relationship and the frequency of examination; the nature and extent of the treatment relationship; the supportability and consistency of the source's opinion with respect to all of the evidence of record; whether the source is a specialist; and, other relevant factors.
Furthermore, 20 C.F.R. § 404.1527(d)(2) states: "[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." SSR 96-2p requires that "the notice of the determination or 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 adjudicator gave to the treating source's medical opinion and the reasons for that weight."
Dr. Gandenberger of Doctor's Care Berea found on March 18, 2011, that Plaintiff had racing and distractible thoughts, was worried/anxious, and had poor memory but was oriented, had appropriate thought content, and had adequate attention and concentration. (Tr. 299). He also noted that Plaintiff's anxiety, insomnia, and panic were helped with medication. (Tr. 299). Dr. Gandenberger opined that Plaintiff had "obvious" work limitations due to his mental condition. (Tr. 299). However, he provided no further specifics regarding work related limitations that he found to be obvious. (Tr. 299).
As to Dr. Gandenberger's opinion, the ALJ stated,
(Tr. 32). As stated above, the ALJ thoroughly discussed Plaintiff's mental health treatment. (Tr. 30-33). Plaintiff was consistently pleasant, cooperate, alert, oriented, conversational, and in good spirits, and had a bright and normal affect, normal speech, no mania or psychosis, no suicidal or homicidal ideations, no cognitive deficits, had normal concentration and focus, average insight and judgment, and logical and goal-oriented thought processes. (Tr. 267-76, 282-87, 289, 328, 341, 349, 372, 398, 400, 402, 422, 425, 428, 430-31, 453, 455, 457-58, 460, 462). Plaintiff also specifically denied any psychological complaints in May 2011. (Tr. 343). Plaintiff reported that his anxiety was better and manageable during treatment with Piedmont Psychiatric Services from January 2012 to April 2014. (Tr. 453, 455, 457-58, 460, 462). After the date of medical improvement (May 31, 2011), Plaintiff was repeatedly assessed with GAF scores of 61 and 65 (indicating only mild symptoms or difficulties). (Tr. 328, 453, 455, 457-58, 460). Consistent with this evidence, both state agency psychologists opined that Plaintiff's mental impairments were not severe (Tr. 309, 314, 350, 353, 355).
As set forth above, "if a physician's opinion is not supported by clinical evidence, it should be accorded significantly less weight."
For these reasons, the ALJ's decision to give no weight to the opinion of Dr. Gandenberger is supported by substantial evidence.
Plaintiff argues that the ALJ failed to consider the testimony of Plaintiff's live in girlfriend, Erica Rosser. An ALJ is permitted to use evidence from non-medical sources at his discretion. 20 C.F.R. § 404.1513 (stating that an ALJ "may" use evidence from non-medical sources, such as spouses and friends, to determine the severity of an impairment); Social Security Ruling (SSR) 96-7p, 1996 WL 374186, at *8 (stating that an ALJ "may" draw credibility inferences and conclusions from family and friends). In considering the testimony of his girlfriend, it is appropriate for an ALJ to consider such factors such as the nature and extent of the relationship, whether the evidence is consistent with the other evidence, and any other factors that tend to support or refute the evidence. SSR 06-03p, 2006 WL 2329939, at *3.
Here, the ALJ noted that Ms. Rosser testified that Plaintiff has severe anxiety and that the anxiety is heightened when he is in pain. (Tr. 30). He further discussed her testimony as follows:
(Tr. 38).
Plaintiff argues that the ALJ did not indicate the weight he gave to Ms. Rosser's statement that Plaintiff's anxiety increased when he was in pain. However, the ALJ did discuss Ms. Rosser's testimony regarding Plaintiff's pain and gave it no weight as it was inconsistent with the record evidence. Thus, it follows that he gave the remainder of her testimony regarding Plaintiff's anxiety as a result of pain the same weight. The undersigned finds no error here.
Plaintiff argues that the ALJ improperly disregarded the hypothetical given to the VE by Plaintiff's counsel that included "additional factors/impairments, to wit panic attacks." (Pl. Brief 3). The first hypothetical to the VE, given by the ALJ was as follows:
(Tr. 74). The VE testified that such an individual could not perform any of the claimant's past relevant work but there were other jobs in the national economy that the individual could perform. (Tr. 74). Plaintiff's attorney then offered a second hypothetical:
(Tr. 75). The VE testified that these additional limitations would preclude work. (Tr. 75).
Plaintiff argues that the ALJ failed to take these additional limitations into consideration in forming Plaintiff's RFC, as well as Plaintiff's obesity, anxiety and panic attacks. A hypothetical question need only include limitations that are supported by the record.
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. As previously discussed, despite the Plaintiff's claims, he has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, this Court finds that the ALJ's findings are supported by substantial evidence. Therefore, it is RECOMMENDED that the Commissioner's decision be AFFIRMED.
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:
