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Foushee v. Colvin

United States District Court, M.D. North Carolina

December 3, 2014

DORIS FOUSHEE, Plaintiff,
v.
CAROLYN COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

N. CARLTON TILLEY, Jr., District Judge.

Plaintiff Doris Foushee brought this action pursuant to 42 U.S.C. § 405(g), Section 205(g) of the Social Security Act, to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance under Title II of the Social Security Act. Doc. #1. The administrative record was certified to the Court for review.[1] Plaintiff filed a Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, Doc. #9, and Defendant filed a Motion for Judgment on the Pleadings, Doc. #14. On November 18, 2014, a hearing was held on the parties' motions.[2] For the reasons explained below, Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security is DENIED, and Defendant's Motion for Judgment on the Pleadings is GRANTED.

I.

Plaintiff filed a Title II application for a period of disability and disability insurance benefits on May 4, 2010, with an alleged onset date of April 7, 2010. (A.R. 47-48.) The claim was denied initially and upon reconsideration. (Id. at 57, 69-70.) On May 10, 2012, a video hearing was held, at which Plaintiff was represented by counsel and she and a vocational expert testified. (Id. at 25-47.) In his decision dated June 20, 2012, the Administrative Law Judge ("ALJ") found Plaintiff not disabled. (Id. at 20.) Plaintiff alleges that (1) the ALJ committed reversible error by failing to give controlling weight to the opinion of Plaintiff's treating opthalmologist, Dr. Kelly Muir, [3] (2) the ALJ committed reversible error by relying on vocational expert testimony which was not based on a consideration of all relevant evidence of record on Plaintiff's impairments, (3) substantial evidence does not support the ALJ's conclusion that Plaintiff is capable of successfully adjusting to other work that exists in the national economy in significant numbers, and (4) the ALJ committed reversible error when he ignored and failed to consider evidence of another agency's disability determination. Doc. #9. Substantial evidence supports the ALJ's decision, and, thus, there is no error.

II.

This Court's review of the Commissioner of Social Security's decision that Plaintiff is not disabled is limited to determining whether the ALJ's findings are supported by substantial evidence and whether he applied the correct law. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted). This Court does not reweigh evidence or make credibility determinations. Id.

Plaintiff first alleges that the ALJ erred by failing to give controlling weight to the opinion of Plaintiff's treating opthalmologist, Dr. Muir. "Generally, " the ALJ gives "more weight" to the opinions of treating physicians, such as Dr. Muir. 20 C.F.R. § 404.1527(c)(2). If the treating physician's opinion on the issues of the nature and severity of impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and is consistent with other substantial evidence, the ALJ gives the opinion "controlling weight." Id . When the ALJ does not give the treating physician's opinion controlling weight, he examines factors in 20 C.F.R. § 404.1527(c)(2)(i)-(ii) and (c)(3)-(6) to determine the weight to afford the opinion. Id.

The ALJ found as part of Plaintiff's Residual Functional Capacity ("RFC") that she "has a visual impairment that would limit her to gross type vision, for example, not having to pay attention to fine detail and small print." (A.R. 16.) As part of his analysis to determine Plaintiff's RFC, the ALJ explained that Plaintiff has glaucoma, 20/20 corrected visual acuity in her right eye, and light perception only in the left eye as Dr. Muir noted on the Visual RFC Questionnaire. (Id. at 18.) The ALJ recognized that Dr. Muir believed that Plaintiff's right eye is normal, but she would be restricted in all visual work activities such as near and far acuity in her left eye. (Id. at 18-19.) The ALJ "generally" agreed with Dr. Muir's opinion. (Id. at 19.) However, he found Dr. Muir's "conclusions regarding [Plaintiff's] exertional limitations, postural limitations, and environmental limitations[4] inconsistent with the weight of the medical evidence." (Id.) The ALJ explained that

limiting [Plaintiff] to activities that do not involve focusing on fine detail or small print fully encompasses her limitations secondary to her left eye visual limitations. She has 20/20 vision in her right eye and is limited to primarily sitting jobs. Accordingly, [there is] no need for additional environmental limitations. Furthermore, ... visual limitations would not preclude the performance of postural activities.

(Id.)

According to the evidence before the ALJ, Dr. Muir treated Plaintiff from September 2009 to June 2010 and July 2011 to December 2011, for a total of approximately ten appointments. (Id. at Exs. 12F-14F.) Medical records evidence, among other things, Plaintiff's history of glaucoma with corneal grafts. (See, e.g., id. at Ex. 3F.) On April 10, 2012, Dr. Muir completed the Vision RFC Questionnaire, (id. at Ex. 14F), at the request of Plaintiff's counsel, Tr. 38:22-23. With respect to Plaintiff's left eye, Dr. Muir noted, among other things, that Plaintiff's left eye visual acuity is limited to light perception only and that Plaintiff can never perform work activities involving near acuity, far acuity, depth perception, accommodation, color vision, or field of vision. (A.R. Ex. 14F (Questions 5, 8.a.).)

Dr. Muir was also asked the following question, "Will your patient sometimes need to take unscheduled breaks during an 8-hour working day?" to which she was to respond by checking a box for "Yes" or "No." (Id. at Ex. 14F (Question 10).) Dr. Muir checked "Yes." Although the Vision RFC Questionnaire defines "rarely, " "occasionally, " and "frequently, " it does not define "sometimes." Question 10 affords no room for Dr. Muir to expound upon her answer, nor did Dr. Muir choose to do so on her own. Consequently, it is unclear what Dr. Muir opined. As Plaintiff's counsel conceded at the hearing, the question does not ask Dr. Muir if Plaintiff would sometimes need to take unscheduled breaks during each 8-hour working day. Tr. 40:14-18 (emphasis added). Likewise, Plaintiff's counsel conceded that sometimes could be once a month or once every six months. Id. at 40:19-22. In other words, Dr. Muir's answer to Question 10 of the Vision RFC Questionnaire is vague.

Plaintiff contends that her own testimony before the ALJ - that she has to rest her eyes anywhere from eight to twelve times a day for fifteen to thirty minutes at a time (A.R. 33) - supports Dr. Muir's opinion. Tr. 40:23-41:4. However, it is unclear what Dr. Muir's opinion as to Plaintiff's need for breaks really is. See, e.g., Tr. 41:17-22 (Plaintiff's Counsel: "I don't know why the claimant's testimony, especially if it is supportive of the opinion of the treating physician, doesn't help in that situation." The Court: "You don't know whether it is supportive or not. Dr. Muir could have said one time every six months." Plaintiff's Counsel: "Correct.") Furthermore, a review of Plaintiff's medical records, including records from Dr. Muir, Plaintiff's primary care physicians, Plaintiff's orthopaedic physicians, and hospital admissions reveals no indication that Plaintiff would require unscheduled breaks during an 8-hour working day and, therefore, no explanation as to how frequently or how long those breaks would need to be. (See A.R. Exs. 1F-19F.)

Dr. Muir's vague and unsupported response to Question 10 on the Vision RFC Questionnaire is weak evidence of Plaintiff's alleged requirement for unscheduled breaks. See 20 C.F.R. § 404.1527(c)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, ... [and] [t]he better an explanation a source provides for an opinion, the more weight" is afforded to that opinion.). Cf. Lawson v. Colvin, No. 7:13-cv-260, 2014 WL 1870853, *6 (W.D.Va. May 8, 2014 (distinguishing Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993) (finding form report requiring physician to check box or fill in blank was weak evidence) because, unlike in Mason, Lawson's treating physician's own examination notes and other physicians' treatment notes supported the treating physician's answers in the form report which should have been afforded controlling weight). Dr. Muir's purported opinion expressed in her response to Question 10 can hardly be considered an opinion for purposes of determining Plaintiff's vision residual functional capacity. There simply is not enough information in the question propounded to Dr. Muir or Dr. Muir's response ...


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