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Turner v. Berryhill

United States District Court, M.D. North Carolina

March 13, 2018

ROBY A. TURNER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE

         Plaintiff, Roby A. Turner, seeks review of a final decision of the Commissioner of Social Security denying his claim for supplemental security income (“SSI”). The Court has before it the certified administrative record[1] and cross-motions for judgment, (ECF Nos. 9, 13).

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for SSI on January 7, 2013, [2] alleging a disability onset date of January 1, 1997, later amended to December 26, 2012. (Tr. 275-280, 297, 337.) The applications were denied initially and again upon reconsideration. (Id. at 176-83, 185-202.) A hearing was then held before an Administrative Law Judge (“ALJ”) at which Plaintiff, his attorney, and a vocational expert (“VE”) were present. (Id. at 46-84.) On January 12, 2016, the ALJ determined that Plaintiff was not disabled under the Act. (Id. at 18-39.) On August 2, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's determination the Commissioner's final decision for purposes of review. (Id. at 1-7.)

         II. STANDARD FOR REVIEW

         The scope of judicial review of the Commissioner's final decision is specific and narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Review is limited to determining if there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. § 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “In reviewing for substantial evidence, [the Court] do[es] not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The issue before the Court, therefore, is not whether Plaintiff is disabled but whether the Commissioner's finding that he is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Id.

         III. THE ALJ'S DECISION

         The ALJ followed the well-established sequential analysis to ascertain whether the claimant is disabled, which is set forth in 20 C.F.R. §§ 404.1520 and 416.920. See Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999).[3] Here, the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since his amended alleged onset date of December 26, 2012. (Tr. 23-24.) The ALJ next found that Plaintiff suffered from the following severe impairments: anxiety and status-post left rotator cuff repair. (Id. at 24-27.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one listed in Appendix 1. (Id. at 27-28.)

         Prior to step four, the ALJ determined Plaintiff's residual functional capacity (“RFC”). (Id. at 28-37.) Based on the evidence as a whole, the ALJ determined that Plaintiff retained the RFC to perform a range of light work as defined in 20 C.F.R. §416.967(b), with the following additional limitations:

[Plaintiff] can frequently climb ladders, ropes and scaffolds. He can frequently stoop and crouch. He can frequently reach overhead with his left upper extremity. [Plaintiff] should avoid concentrated exposure to unprotected heights. His work is limited to simple, routine tasks. He can have occasional interaction with his co-workers.

(Id. at 29.) At the fourth step, the ALJ determined that Plaintiff was capable of performing past relevant work as a production helper and landscaper. (Id. at 37.) In the alternative, the ALJ found at step five that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. (Id. at 38.) These jobs included sorter of agricultural products, laundry classifier, and bakery worker. (Id.) Consequently, the ALJ determined that Plaintiff was not disabled from the amended alleged onset date through the decision date. (Id. at 39.)

         IV. ISSUES AND ANALYSIS

         Plaintiff argues that the ALJ committed three errors that warrant remand. (ECF No. 10 at 5-19.) First, Plaintiff contends that the ALJ failed to find Plaintiff's back and knee impairments severe at step two and then failed to consider the effects of those non-severe impairments when conducting her RFC assessment. (Id. at 6-14.) Second, Plaintiff argues that the ALJ improperly weighed the opinion evidence. (Id. at 14-18.) Third, Plaintiff contends that the RFC for light work is not supported by substantial evidence. (Id. at 18-19.) For the following reasons, the Court disagrees.

         A. The ALJ's Step-Two Finding is Supported by Substantial Evidence

         In his first argument, Plaintiff contends that the ALJ erred at step two, first by failing to find that his back and knee impairments were severe, (id. at 6-12), then by failing to consider the effects of these impairments in her RFC assessment, (id. at 12-14). Step two requires the ALJ to determine if the claimant has any severe medically determinable impairments. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Id. at § 416.920(c). “An impairment or combination of impairments is not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities.” § 404.1522(a).[4]

         In the present matter, at step two, the ALJ found that Plaintiff's anxiety and status-post left rotator cuff repair constituted severe impairments. (Tr. 24.) The ALJ also found that Plaintiff had “other non-severe impairments as well that [we]re medically managed, acute, resolved with treatment, or otherwise ha[d] not been shown to have more than a minimal effect on [Plaintiff's] ability to engage in work-related activities.” (Id.) As to Plaintiff's back impairment, the ALJ found as follows:

[Plaintiff] has a remote history of “mild” lumbar and thoracic strain in November 1998 for which he received conservative treatment. Exhibit 2F:1. In January 2014, [Plaintiff's] physician still only recommended conservative treatment for his complaints of back pain. Exhibit 15F:127. An x-ray from July 2010 showed minimal osteophytosis at ¶ 1-L-4. Exhibit 8F:87. An x-ray from September 2013 showed some degenerative changes at ¶ 3-4 and minimal changes at ¶ 4 through S1. Exhibit 11F:2. An x-ray from October 2013 showed only “mild” interval progression in degenerative changes centered at ¶ 3-4. Exhibit 15F:35, 41. Moreover, a MRI of [Plaintiff's] lumbar spine from November 2013 showed only “mild” degenerative disc disease without canal or foraminal stenosis. Exhibit 15F:44. An MRI of [Plaintiff's] lumbar spine from April 2014 showed facet joint degeneration at ¶ 3-4 bilaterally and at ¶ 5 on the right. Exhibit 12F:9, 16. Notes throughout the record state that his straight leg-raising test was negative. Exhibit 9F:5; Exhibit 15F:48, 66, 90. Based on this evidence, the undersigned finds that [Plaintiff's] back sprain and degenerative disc disease are non-severe. His remote back strain resolved with conservative treatment. [Plaintiff's] back pain due to degenerative disc disease has been episodic and medically managed, and has not been shown to have more than a minimal effect on [Plaintiff's] ability to engage in work-related activities.

(Id. (referencing Tr. 445, 1112, 630, 728, 1020, 1026, 1029, 742, 749, 710, 1033, 1051, 1075).) The ALJ's analysis appears well-supported and error free for the reasons described, and the evidence cited, above. Plaintiff counters that the ALJ ignored imaging evidence[5] and findings on examination[6] that, he argues, are consistent with Plaintiff's reports of pain and support opinions significantly limiting his ability to stand and walk. (ECF No. 10 at 7-10.) Plaintiff's arguments are without merit.

         The ALJ specifically found that neither the above-cited imaging evidence nor the treatment notes showing only conservative treatment supported either Plaintiff's allegations about the severity of his pain, (id. at 30), or opinions that more significantly limited Plaintiff's ability to stand or walk, (id. at 33-37). See Dunn v. Colvin, 607 F. App'x 264, 273 (4th Cir. 2015) (unpublished) (“[T]he conservative nature of Appellant's treatment is an adequate basis to support the ALJ's conclusion that Appellant's testimony of her disabling condition was incredible.”); Somerville v. Colvin, No. 1:12CV1360, 2015 WL 1268258, at *3 (M.D. N.C. Mar. 19, 2015) (unpublished) (concluding that the ALJ's decision to give the physician's opinion less than controlling weight was supported by substantial evidence because the physician's opinion was inconsistent with the conservative treatment given to the plaintiff which included injections, medication, “a hand splint, physical therapy, and chiropractor treatment”). Plaintiff has not challenged the ALJ's credibility analysis and, as will be discussed in greater detail below, the ALJ gave good reasons for giving little weight to such opinions. (Tr. 33- 37.) Moreover, it is well-established that an ALJ need not provide a written evaluation for each document in the record. See Brittain v. Sullivan, 956 F.2d 1162, at *6 (4th Cir. 1992) (unpublished) (“An ALJ need not comment on all evidence submitted.”); see also Brewer v. Astrue, No. 7:07-CV-24-FL, 2008 WL 4682185, at *3 (E.D. N.C. Oct 21, 2008) (unpublished table decision) (“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.”).

         Here, as demonstrated above, and despite Plaintiff's argument to the contrary, the ALJ did discuss the imaging evidence.[7] (Tr. 24.) As to the examination findings, although the ALJ did not specifically mention Plaintiff's “abnormal gait” or certain other specific treatment notes, the record supports her conclusion that Plaintiff's back pain was episodic and medically managed. (Id.) For example, Plaintiff cites some fifteen occasions on which a medical provider documented a slow, abnormal, or antalgic gait. (ECF No. 10 at 8.)[8] However, the record also shows that Plaintiff's treating physicians frequently found his gait to be “within normal limits.” (See, e.g., Tr. 1033, 1075, 1079, 1111, 1328.) Moreover, like straight-leg raise tests, which yielded varied results, (see, e.g., Tr. 710, 1033, 1051, 1075 (negative straight-leg raise tests); Tr. 727, 1024, 1328, 1376 (positive straight-leg raise tests)), Plaintiff's physicians only sporadically, rather than consistently, found restricted range of motion, (see, e.g., Tr. 1061, 1273, 1291, 1371 (finding normal range of motion)), or paraspinal tenderness. See Ferrell v. Astrue, No. 3:11-CV-00503, 2012 WL 4378131, at *13 (S.D. W.Va. June 22, 2012) (unpublished) (“The [Commissioner] is entitled to rely not only on what the record says, but also on what it does not say.” (alteration in original) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.1983))), report and recommendation adopted, 2012 WL 4378126 (S.D. W.Va. Sept. 25, 2012); Bostic v. Astrue, No. 3:10CV630-GCM-DSC, 2011 WL 3667219, at *5 (W.D. N.C. July 22, 2011) (holding same), report and recommendation adopted, 2011 WL 3667215 (W.D. N.C. Aug. 22, 2011), aff'd, 474 F. App'x 952 (4th Cir. 2012)). Further, as the ALJ noted, in spite of any findings on examination, Plaintiff's physicians recommended only conservative treatment. (Tr. 24.) The record therefore supports a finding that Plaintiff's back impairment was non-severe.

         In his first argument, Plaintiff also contends that the ALJ erred in finding his left knee impairment to be non-severe. (ECF No. 10 at 10-12.) As to Plaintiffs left knee impairment, the ALJ found as follows:

[Plaintiff] has been assessed with osteoarthritis of the left knee, according to an xray [sic] from May 2010. The x-ray showed mild medial compartment joint space narrowing. Exhibit 8F:115. [Plaintiff] testified that he hurt his knee when he was 15 years old (he is currently 52 years of age). [Plaintiff] testified he has not had any surgery on his knee since the 1980's. He receives conservative treatment of injections about every [six] months. [Plaintiff] alleged in testimony that his knee “gives out on him” but was vague about how often this occurs. An x-ray of [Plaintiff's] right knee from September 2013 states that [Plaintiff] had “mild” medial compartment joint space narrowing. Exhibit 15F:7. Additionally, an x-ray of [Plaintiff's] left knee from September 2013 states that [Plaintiff] had mild medial and lateral compartment joint space narrowing with relative preservation of the patellofemoral compartment joint space. Exhibit 15F:10. Osteophytes were present with no joint effusion. Exhibit 15F:10. The record shows that [Plaintiff] was able to perform some work despite these difficulties (self-employed as a landscaper/painter at $10.00 per hour, 40 hours per week, thru Dec. 2011 per Exh. 8E, and working as an assembler for $10.00 per hour, 40 hours per week, from July to August 2012 per Exh. 4E). In addition, treatment notes reflect that [Plaintiff] received good pain relief for six months after his injections. Exhibit 8F:84. Therefore, the undersigned finds [Plaintiff's] left knee osteoarthritis is non-severe.

(Tr. 25 (referencing 658, 992, 995, 321-32, 349-57, 627).) Here, too, the ALJ's analysis appears well-supported and error free for the reasons described, and the evidence cited, above.

         Plaintiff again argues that the ALJ ignored imaging[9] and other objective evidence[10] that conclusively demonstrates that Plaintiff's knee impairment constitutes a severe impairment. (ECF No. 10 at 10-12.) As before, the ALJ's failure to mention every aspect of the 2013 x-ray is permissible because the record makes clear that the ALJ considered that evidence in making her determination that Plaintiff's left knee osteoarthritis was non-severe. (Tr. 25.) The ALJ concluded, and the record supports a finding, that despite imaging evidence, [11] Plaintiff's left knee pain was well controlled by bi-annual steroid injections. (Id. (referencing Tr. 627); see, e.g., Tr. 653-54, 993, 1106, 1143-44, 1294). See also Gross v. Heckler,785 F.2d 1163, 1165-66 (4th Cir. 1986) (“If a symptom can be reasonably controlled by medication or treatment, it is not disabling.” (citing Purdham v. Celebrezze, 349 F.2d 828, 830 (4th Cir. 1965))); 20 C.F.R. § 404.1530. For example, many of the findings to which Plaintiff refers were recorded on the same day that Plaintiff received a steroid injection, (see, e.g., Tr. 993-94, 1108, 1143-45, 1294-97) ...


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