Professional Documents
Culture Documents
No. 14-1565
LISA DUNN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN,
Administration,
Acting
Commissioner,
Social
Security
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:13-cv-00222-JAG)
Argued:
Decided:
June 1, 2015
405(g)
in
the
district
court
of
the
Eastern
District
of
of
the
Social
Security
Administration
(Appellee)
on
May
1,
2007,
based
on
rheumatoid
arthritis,
As noted by
referred
to
the
magistrate
Recommendation (Report).
judge
for
Report
and
judgment
and
Appellant
district
court
granted
Appellees
deny
filed
overruled
the
motion
Appellants
objections
motion
to
objections,
for
summary
the
for
summary
Report.
adopted
The
the
Report,
judgment,
denied
We
42 U.S.C.
have
405(g)
jurisdiction
and
28
to
consider
U.S.C.
her
1291.
appeal
under
Discerning
no
I.
In
Social
Security
case
such
as
this,
it
is
the
the
Social
Security
Act,
205(g),
42
U.S.C.
Cir.
evidence
as
2012).
a
Substantial
reasonable
mind
evidence
might
is
accept
such
as
relevant
adequate
to
support a conclusion.
Cir.
citations
1996)
omitted).
(internal
It
consists
of
more
omitted)
than
(quotation
mere
marks
scintilla
of
evidence,
make
credibility
determinations,
or
substitute
our
650, 653 (4th Cir. 2005) (internal citations and quotation marks
omitted).
to
differ
as
to
whether
claimant
is
disabled,
the
Craig, 76
way,
without
administrative
interference
decision
is
not
by
subject
the
to
courts.
reversal
An
merely
1988) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984)) (internal citation omitted).
Consequently,
province
of
the
it
is
courts
beyond
to
dispute
resolve
that
factual
it
is
matters
not
in
the
Social
not
abdicate
their
duty
their
to
traditional
scrutinize
the
functions;
they
record
as
whole
Celebrezze,
331
F.2d
541,
543
(4th
Cir.
1964)
cannot
Thomas
(quoting
to
II.
The Social Security Administration has established a fivestep sequential evaluation process for determining if a person
is
disabled.
20
C.F.R.
404.1520(a)(4)(i-v)
(2004).
In
parties
agree
that:
(1)
Appellant
is
not
currently
several
medically
Appellants
determinable
severe
impairments
severe
do
not
impairments,
meet
or
(3)
equal
an
work.
They
disagree,
however,
as
to
Appellants
III.
There are two issues presented by this appeal: (1) whether
the ALJ was correct in his decision not to give the opinion of
the treating physician controlling weight, and (2) whether, in
making his credibility determination as to Appellant, the ALJ
erred
in
his
Appellants
consideration
treatment
and
of
her
medications as prescribed.
the
conservative
non-compliance
with
nature
taking
of
her
turn.
A.
First, Appellant contends that the ALJ erred in assigning
limited weight to the opinions of her treating physician, Dr.
John
Swing,
Gosnell.
and
her
treating
We are unconvinced.
psychiatric
counselor,
Betty
the
supportability
of
the
physicians
opinion,
(4)
the
consistency of the opinion with the record, and (5) whether the
physician is a specialist.
opinion
indication
generally
that
the
will
ALJ
not
has
be
disturbed
dredged
up
absent
some
specious
afforded
particular
opinion,
see
20
C.F.R.
404.1527(d) (1998).
According to 20 C.F.R. 404.1527(d)(2) & 416.927(d)(2), a
treating sources opinion on issues of the nature and severity
of the impairments will be given controlling weight when well
supported
by
medically
acceptable
clinical
and
laboratory
other
substantial
evidence
in
the
record.
Conversely,
is
not
dispositive;
opinions
as
to
relevant
that
he
disability
are
See 20 C.F.R.
evidence
explains
to
it,
support
the
more
his
opinion,
weight
his
and
opinion
the
is
weight
the
ALJ
will
give
to
it.
See
20
C.F.R.
404.1527(d)(4) (1998).
In rendering his decision on this issue, the ALJ considered
the opinions of four medical sources:
Betty Gosnell, L.P.C; (3) Martha Merrion, Ph.D.; and (4) Sandra
Francis, Ph.D.
As the ALJ noted in his decision, Appellant came to Dr.
Swing
on
anxiety.
March
7,
J.A. 10.
2007,
due
to
worsening
depression
and
mood
and
congruent
affect.
Id.
On
April
4,
2007,
she
She
Id.
Id.
16, 2007, at which time she expressed that she was going to get
a new job, because her current job was causing too much stress.
She was cooperative and talkative.
stable.
Id.
Id.
He also
Id.
Id.
Id.
On January 10, 2008, the ALJ noted from Dr. Swings records
that Appellant was pleasant, calm, and cooperative, with no
suicidal or homicidal ideation.
Id.
reported
anxiety
due
to
her
recent
10
medical
course,
and
She
was
Id. at 12.
Appellants
June
10,
Id.
2008,
appointment
with
Dr.
He
Id.
that
Id.
was
doing
okay.
She
reported
some
increased
Id.
full
dosage
of
medication
on
April
homicidal ideation.
appointment,
crying.
Id.
she
16,
Id.
because
she
could
not
Id. at 14.
2009,
Id.
[s]he
During Appellants
had
no
suicidal
or
complained
[of]
depression
and
increased
Id.
Id.
According
to
the
ALJ,
in
regards
to
Betty
Gosnell,
Appellants counselor,
Treatment notes from [Appellants] counselor in 2009
reflect that [Appellant] was reporting generalized
fatigue and pain, but her boyfriend was being a bit
more attentive to her. She noted positive experience
from the neurofeedback sessions and expressed this
[at] each appointment.
Treatment notes dated
November 4, 2009[], reflect that [Appellant] was in
good spirits, had a goal of cooking more healthy
foods for her family, and she was cooking more from
scratch to save money at the grocery store.
Id. at 15 (citations omitted).
of
abilities.
list
of
twenty
of
Appellants
work-related
Severe indicates
result
minutes.
in
failing
A.R. 893.
limitations:
work[ing]
coordination
without
being
even
short
duration:
5-10
work-related
in
after
distracted,
needing
with
or
special
[in]
mak[ing]
supervision,
proximity
simple
to
work
others
related
from
psychologically
12
based
symptoms
and
length
general
of
rests,
public
responding
or
interact[ing]
customers,
appropriately
to
appropriately
accept[ing]
criticism
with
the
instructions
and
from
supervisors,
and
expected
changes
goals
or
cleanliness,
in
mak[ing]
the
respond[ing]
work
plans
setting,
appropriately
set[ting]
independently,
and
realistic
travel[ing]
to
in
A.R.
to
the
extent
that
they
are
controverted
by
until
July
22,
2008,
three
to
four
times
month,
Merrion
found
Appellant
capable
of
doing
A.R. 907.
simple
and
Id. at 911.
many
render
coworkers
or
the
public
would
14
tend
to
her
less
efficient.
[Appellant]
has
mildly
to
moderately
Francis,
the
last
Id.
non-examining
State
Agency
hearing
before
the
ALJ,
concluded
that,
[d]ue
to
her
only
require
limited
contact
with
the
general
J.A. 18.
public,
To be more
She is
A.R. 929.
Based upon all of the medical evidence, the ALJ gave the
opinion
of
consistent
Dr.
Francis
with
[Appellant].
weight
to
inconsistent
objective
J.A.
the
[Appellants]
significant
18.
opinions
treating
with
their
weight
findings
made
Further,
the
of
Dr.
treatment
Id.
upon
ALJ
Swing
psychiatric
because
and
was]
examination
assigned
sources,
notes
[it
Ms.
as
contained
of
limited
Gosnell,
they
are
throughout
gave her opinion greater but not controlling weight because she
had the opportunity to examine [Appellant], but only saw her on
15
one occasion.
Id.
Hancock, 667
For example,
Dr. Swing wrote [o]n January 10, 2008, [that Appellant] was
pleasant, calm and cooperative, with no suicidal or homicidal
ideation.
J.A. 10.
And [o]n
June 18, 2009, she was mostly calm, but was slight[ly] anxious
at times.
Id.
Id. at 17.
Under our
she
Appellants
stated
October
that
she
5,
was
16
2007,
feeling
appointment
better
and
with
more
energized.
A.R. 948.
At
Id.
She is
better to get out of the house and says that she believes that
neurofeedback has been helpful.
Id.
At Appellants October
19, 2007, session, she said that she was doing pretty well but
feeling achy.
Id.
She has
And,
then
on
June
23,
Id.
2009,
just
weeks
before
Gosnell
A.R. 957.
that
Appellant
reports
that
that
Id.
helps
Gosnell also
quite
bit.
Id.
to
and
Swings
opinions
is
supported
by
substantial evidence.
B.
Second, Appellant argues that the ALJ erred in considering
the conservative nature of Appellants treatment and her noncompliance in determining whether she was credible.
We are
unpersuaded.
On this issue, the ALJ stated the following:
[Appellants]
testimony
regarding
her
extreme
symptoms
and
limitations
is
not
credible.
[Appellant] has not generally received the type of
medical treatment one would expect for a totally
disabled
individual.
Although
[Appellant]
has
received
treatment
for
the
allegedly
disabling
impairments, that treatment has been essentially
routine and conservative in nature.
Further the
record shows that [Appellant] has not been compliant
with recommended treatment. Treatment notes from Dr.
Swing indicate compliance issues with medications,
where [Appellant] had failed to start medications as
prescribed, or had self-discontinued medications.
Treatment notes from [Appellants] primary care
physician, as recent as November 2010, also show
[Appellant] having compliance issues [and] selfdiscontinuing
medications.
While
[Appellant]
complained of migraine headaches and rheumatoid
arthritis, the record shows that these have been
responsive to treatment, including medications and
trigger point injections.
[Appellants] routine and
18
17
(internal
citation
omitted).
As
already
noted,
in
1.
Prior to the ALJs consideration of Step Four of the fivestep
sequential
plaintiffs
evaluation,
Residual
the
Functional
416.920(e)-(f), 416.945(a)(1).
ALJ
Capacity
must
determine
(RFC).
20
C.F.R.
the
from
anatomical,
physiological,
or
psychological
requirement
for
entitlement
to
benefitswhich
could
complete,
the
ALJ
Id.
must
evaluate
the
intensity
and
Id. at 585.
This evaluation
must take into account not only the claimants statements about
her pain, but also all the available evidence, including the
claimants
findings,
medical
any
history,
objective
medical
medical
20
signs,
evidence
of
and
pain
laboratory
(such
as
other
Id.
evidence
relevant
to
the
severity
of
the
Id.
considered
statements
of
with
the
all
the
individual
evidence
or
his
physician
(including
as
to
the
42 U.S.C. 423(d)(5)(A).
rheumatoid
arthritis,
J.A. 6.
fibromyalgia,
headaches,
expected
to
cause
the
alleged
symptoms;
however,
that
they
are
inconsistent
the
ALJ
avowed
that
with
J.A. 10.
[Appellant]
the
. .
residual
Further, as stated
has
not
generally
for
treatment
nature.
has
the
been
allegedly
disabling
essentially
routine
impairments,
and
that
conservative
in
J.A. 17.
and
record.
beliefs
any
given
of
(emphasis omitted).
The
term
decision
is
idiosyncratic
maker.
Appellants
to
Br.
the
26
We disagree.
if
someone
is
disabled,
it
is
appropriate
to
22
As this
they
inconsistent
need
with
not
the
be
accepted
available
to
evidence,
the
extent
including
they
are
objective
See
also Gross v. Heckler, 785 F.2d 1163, 1165-66 (4th Cir. 1986)
(finding the claimants claim that he was disabled not credible
when [h]is arthritis responded to conservative treatment, and
his stomach pains were relieved by antacids.
If a symptom can
He has
prior
supplemental
hearing,
23
claimant
indicated
that
the
medication he was taking for pain was Extra Strength Tylenol and
Extra Strength Excedrin, both nonprescription medicines.
latest
supplemental
hearing,
claimant
testified
that
At the
he
was
relief
from
acute
osteoarthritis.
The
flairs
ALJ
of
observed
rheumatoid
that
arthritis
stronger
and
medications
in
as
allowing
one
of
the
the
claimants
conservative
factors
credibility,
nature
court
we
may
are
of
ones
consider
in
accord
in
with
See,
e.g., Smith v. Colvin, 756 F.3d 621, 626 (8th Cir. 2014) (noting
with
approval
that
the
ALJs
credibility
determination
was
Astrue,
481
F.3d
742,
751
(9th
Cir.
2007)
(stating
that
claimants
testimony
regarding
the
severity
of
an
nature
of
plaintiffs
conservative
in
treatment
making
his
as
having
credibility
been
routine
decision)
and
(internal
1996)
(holding
that
physicians
conservative
medical
given
substantial
choice
decision
evidence
within
which
maker[,]
standard
the
Appellants
presupposes
decisionmakers
can
Br.
.
go
26,
a
the
zone
either
of
way,
An administrative decision
at 272-73.
In reviewing Appellants arguments, it appears that she may
be missing the reason as to why it is proper for the ALJ to
consider the conservative treatment of a claimant in making a
credibility decision.
It is as simple as this:
unable to work in any job whatsoever, but the ALJ finds that the
treatment was not as aggressive as one would reasonably think
would be employed if the alleged disability were actually that
severe, then it is reasonable for the ALJ to conclude that the
conservative treatment bears on the claimants credibility.
Of
course,
there
may
be
any
number
of
reasons
for
is
for
that
necessarily
render
benefits.
which
is
the
any
treatment
other reasons.
that
that
such
claimant
treatment
alone
ineligible
for
would
not
disability
there
aggressive
reason
suggestion
yet
that
received
Appellant
conservative
required
treatment
more
for
conservative
nature
of
Appellants
treatment
was
Because
determination,
we
hold
that
there
is
substantial
26
2.
Next, Appellant maintains that her alleged non-compliance
with prescribed medication regimens is an improper factor for
evaluation of credibility in the absence of any connection to
[Appellants] credibility such as [Appellant] did not need the
medication,
produce
was
failing
disability
compliance.
or
to
take
was
the
medication
attempting
to
in
hide
order
the
to
non-
We disagree.
J.A.
17.
notes
from
medication,
where
According
Dr.
Swing
to
the
indicate
[Appellant]
had
ALJs
decision,
compliance
failed
to
issues
start
Id.
Abilify,
during
Appellants
November
19,
2007,
Id. at 978.
Although noncompliance
Appellant
made
any
attempt
to
obtain
assistance
in
Dr.
Swings
notes
from
Appellants
May
14,
2009,
Wellbutrin,
appointment,
as
directed
id. at 976.
during
her
April
21,
2009,
Although Dr.
Id.
with
the
treatment
her
physicians
prescribed.
Cf.,
undermined
the
credibility
of
claimants
testimony
Craig, 76 F.3d
at 589.
In
any
event,
the
ALJ
did
not
deny
Appellant
benefits
Rather,
ALJ
considered
in
determining
that
Appellants
testimony
Because the
IV.
Certainly,
the
ALJ
could
have
done
better
job
in
more thorough explanation for his decision does not change our
conclusion that substantial evidence in the record supports that
29
decision.
V.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED
30