Amy Sharp v. Carolyn Colvin , 660 F. App'x 251 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1578
AMY SHARP,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:14-cv-00340-HEH)
Argued: September 20, 2016 Decided: November 14, 2016
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Bruce Knight Billman, Fredericksburg, Virginia, for
Appellant. Elizabeth Wu, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; Nora Koch, Acting Regional Chief Counsel,
Victor Pane, Supervisory Attorney, Maija DiDomenico, Assistant
Regional Counsel, Office of the General Counsel, SOCIAL SECURITY
ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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BARBARA MILANO KEENAN, Circuit Judge:
Amy Sharp appeals from the district court’s judgment
upholding a decision of the Social Security Administration
(Social Security), which denied her application for disability
insurance benefits. Citing our decision in Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015), Sharp primarily argues that the
Administrative Law Judge (ALJ) committed reversible error in
using his assessment of her residual functional capacity
(residual capacity) when evaluating her credibility and the
opinion of her treating physician.
Upon our review, we conclude that although the ALJ erred in
certain aspects of his analysis, those errors were harmless
because (1) the ALJ sufficiently explained his decision
regarding the weight he accorded the treating physician’s
opinion, and (2) substantial evidence supported the ALJ’s
credibility determination. Accordingly, we affirm the district
court’s judgment.
I.
We begin by describing the five-step sequential evaluation
required by regulation that an ALJ must use in determining
whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4).
The ALJ must assess whether: (1) the claimant has been engaged
in “substantial gainful activity”; (2) the claimant has
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impairments that meet the regulations’ severity and duration
requirements; (3) the impairments meet or equal an enumerated
impairment; (4) the claimant is unable to perform her past
relevant work; and (5) the claimant can perform other work, if
she cannot perform her past relevant work. Id. Between steps
three and four, the ALJ must assess the claimant’s residual
capacity, or “the most” the claimant can do in a work setting
despite her limitations. Id. §§ 404.1545(a)(1), 404.1520(a)(4).
The claimant bears the burden of proof through step four, after
which the burden shifts to the Commissioner of the Social
Security Administration (Commissioner) to prove step five.
Mascio, 780 F.3d at 635; Radford v. Colvin, 734 F.3d 288, 291
(4th Cir. 2013).
If, at step one, the ALJ finds that the claimant has been
working or, at step two, finds that the claimant’s medical
impairments do not meet the severity and duration requirements,
the ALJ must conclude that the claimant is not disabled. 20
C.F.R. § 404.1520(a)(4)(i)-(ii). However, if the claimant meets
her burden at these first two steps, the ALJ considers step
three, and either finds that the claimant is disabled because
her impairment meets or equals an enumerated impairment, or the
ALJ moves on to consider step four. Id. § 404.1520(a)(4)(iii).
In step four, if a claimant can perform her past work given her
residual capacity, the ALJ will conclude that the claimant is
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not disabled. Id. §§ 404.1520(a)(4)(iv), 404.1545(a)(5)(i).
Otherwise, the ALJ proceeds to step five, which requires that
the Commissioner prove that the claimant can perform work that
“exists in significant numbers in the national economy,” and
therefore is not disabled. Id. §§ 404.1560(c)(2),
404.1520(a)(4)(v).
In the present case, the ALJ concluded that Sharp did not
meet her burden at step four regarding her ability to perform
her past work. As we explain in detail below, the present case
concerns the ALJ’s erroneous use of his residual capacity
determination in evaluating Sharp’s credibility and the opinion
of her treating physician.
II.
Sharp was diagnosed with fibromyalgia between 2004 and
2005. In September 2006, she began seeing Dr. Charles
Gibellato, a physician who is board-certified in the fields of
physical medicine and rehabilitation. Dr. Gibellato treated
Sharp multiple times per year for a period exceeding five years,
until May 2012.
In March 2010, Sharp, then thirty-nine years old, filed a
“protective” application for disability insurance benefits,
alleging an onset date of September 12, 2008, which she later
amended to July 29, 2010. Sharp asserted that she was disabled
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due to fibromyalgia, chronic fatigue, chronic lower back pain,
and irritable bowel syndrome.
Sharp presented her claim in a hearing before the ALJ in
September 2012. She testified that she had widespread pain from
her upper shoulders to her neck, lower spine, and hips, and
behind her legs to her knees. She stated that her pain was
unpredictable, and that its location and intensity varied.
Dr. Gibellato’s notes indicated that between October 2010
and May 2012, Sharp’s symptoms were alleviated by medications
and injections, but were aggravated by stress and activity. Dr.
Gibellato’s notes also reflected that, between October 2010 and
May 2012, Sharp reported: (1) that on a ten-point scale, her
monthly average pain level ranged between six and eight, and (2)
that in the twenty-four hour period prior to her appointments
with Dr. Gibellato, she generally had achieved between seventy
percent and eighty percent relief of her symptoms, with one
instance in which she reported fifty percent relief.
In December 2010, Sharp completed a report for Social
Security in which she stated that on “bad days,” she experienced
high pain levels that prevented her from attempting household
activities. She also related that on bad days, she needed a
cane to get to the bathroom to use the toilet, and that she
could not do much more on such days. Sharp could feed and dress
herself, and on “good days,” she could perform light household
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chores, help her son with homework, prepare meals, shop for
groceries, and walk outside with her dogs. According to Sharp,
she had four or five good days each month.
Dr. Gibellato referred Sharp to Dr. Jennifer Wartella, a
licensed clinical psychologist, to receive treatment for the
psychological distress Sharp experienced in relation to her
chronic pain and depression. Dr. Wartella treated Sharp in
September 2011, and recorded that Sharp “tend[ed] to
catastrophize her pain.”
After Sharp attended a session with a physical therapist in
February 2012, the therapist’s notes indicated that Sharp
demonstrated good potential for rehabilitation. The therapist
recommended a treatment plan that included home exercise, heat,
and ice. In August 2012, a different physical therapist noted
that Sharp’s pain levels increased moderately throughout a
sixty-minute physical performance test, and recommended a
walking program or that she engage in stretching and
conditioning.
In a recorded statement in June 2012, Dr. Gibellato opined
that in a work environment, Sharp would need to be able to take
breaks, to change her position frequently, and to take narcotic
medications while working. According to Dr. Gibellato, Sharp
could not work in a cold environment, and could only perform
work that involved a low level of stress. In September 2012,
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Dr. Gibellato further stated that while Sharp could perform
sedentary work, it was unlikely that she could maintain a
routine schedule. He explained that her symptoms would increase
and have a cumulative effect over time, requiring her to be
absent from her job after working for between two and four days.
Upon considering this evidence, the ALJ concluded that
Sharp suffered from fibromyalgia, degenerative disc disease,
degenerative joint disease, obesity, and depression. The ALJ
further concluded that Sharp could perform sedentary work
subject to certain limitations. The ALJ reasoned that while
Sharp’s impairments were severe, they did not preclude her from
performing “all sustained gainful activity.” The ALJ’s residual
capacity assessment stated that Sharp
was limited to lifting and/or carrying 5 pounds
frequently, and 10 pounds occasionally, sitting six
hours in an eight hour workday, and standing/walking
two hours in an eight hour work day. [Sharp] had to
avoid jobs that required production quotas, and
involved more than occasional overhead work . . . .
Sharp was limited to work that allowed her to change
positions once an hour, and work in an inside
environment . . . . She was also limited to occasional
interaction with peers, supervisors, and the public,
and she was allowed to be absent from work about 10
days a year.
Because the ALJ concluded that Sharp could perform her past work
as a payroll clerk, the ALJ held that she was not disabled
during the relevant time period.
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In making this determination, the ALJ accorded little
weight to Dr. Gibellato’s opinion that Sharp could not maintain
a routine schedule. The ALJ concluded that Sharp’s “reported
limitations were not supported by [Dr. Gibellato’s] office
notes, nor were they consistent with” the ALJ’s residual
capacity assessment. The ALJ also concluded that Sharp’s
impairments reasonably could be expected to cause her alleged
symptoms, but that her “statements concerning the intensity,
persistence and limiting effects of [her] symptoms [we]re not
credible,” in part because they were inconsistent with the ALJ’s
residual capacity determination. The ALJ also stated that
Sharp’s ability to function was not limited to the degree Sharp
alleged because: (1) her subjective complaints were “not fully
supported by the objective medical evidence”; (2) she had
received “conservative” medical treatment; and (3) her admitted
activities of daily living diminished her credibility regarding
the frequency, severity, and limiting effects of her symptoms.
After the Appeals Council denied Sharp’s request for review
of the ALJ’s decision, Sharp filed a complaint in the district
court seeking review of the Commissioner’s final decision
denying her request for benefits. A magistrate judge
recommended that the district court deny Sharp’s motion for
summary judgment, grant the Commissioner’s motion for summary
judgment, and affirm the ALJ’s final decision denying Sharp’s
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application for disability benefits. The district court adopted
the magistrate judge’s report and recommendation, and upheld the
Commissioner’s determination. This appeal followed.
III.
A.
We first state the well-established standards governing our
review of disability determinations. We must uphold the ALJ’s
disability determination unless it was based on legal error or,
in light of the whole record, is unsupported by substantial
evidence. 42 U.S.C. § 405(g); Mascio, 780 F.3d at 634 (citation
omitted); Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
The substantial evidence standard requires more than a
scintilla, but may be less than a preponderance, of evidence.
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). We do not
“reweigh conflicting evidence, make credibility determinations,
or substitute our judgment for that of the [ALJ].” Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam)
(alteration in original) (citation omitted). When conflicting
evidence could lead reasonable minds to differ regarding whether
a claimant is disabled, we defer to the ALJ’s disability
determination. Hancock, 667 F.3d at 472 (citation omitted).
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B.
Sharp contends that the ALJ applied incorrect legal
standards (1) in evaluating the weight to be given Dr.
Gibellato’s opinion; and (2) in assessing Sharp’s credibility.
Sharp argues that these errors were not harmless and require
reversal of the ALJ’s disability determination.
1.
Relying on our decision in Mascio, Sharp contends that the
ALJ committed reversible error by according little weight to Dr.
Gibellato’s opinion on the ground that the opinion conflicted
with the ALJ’s residual capacity determination. In advancing
this argument, Sharp acknowledges that the ALJ provided a second
reason for assigning little weight to Dr. Gibellato’s opinion,
namely, that Sharp’s “reported limitations were not supported by
[Dr. Gibellato’s] office notes.” However, Sharp contends that
this explanation is merely conclusory in nature, does not
provide a sufficient basis on which to uphold the ALJ’s
decision, and, because of its absence of detail, prevents us
from engaging in meaningful appellate review.
In addressing this issue, we first observe that an ALJ must
accord controlling weight to a treating physician’s medical
opinion regarding a claimant’s ability to work, if that opinion
“is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
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the other substantial evidence” in the record. 20 C.F.R.
§ 404.1527(c)(2); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.
2001); see 20 C.F.R. § 404.1527(a)(2). Thus, “[b]y negative
implication, if a physician’s opinion is not supported by
clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less
weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); see
generally 20 C.F.R. § 404.1527(c). Ultimately, the ALJ is not
bound by a treating physician’s opinion that a claimant is
disabled or unable to work, because that determination is
reserved for the ALJ. See 20 C.F.R. § 404.1527(d)(1).
We agree with Sharp that the ALJ committed legal error in
his analysis of the weight to be accorded to Dr. Gibellato’s
opinion. As we have noted, the ALJ used his residual capacity
assessment as one basis for assigning little weight to Dr.
Gibellato’s opinion. We examined a similar analytical error in
Mascio. The ALJ in that case had concluded that “the claimant’s
statements concerning the intensity, persistence and limiting
effects of [the claimant’s] symptoms [we]re not credible”
because they were inconsistent with the ALJ’s own residual
capacity assessment. Mascio, 780 F.3d at 639.
We explained in Mascio that the ALJ’s reasoning conflicted
with the agency’s regulations. Id. Those regulations require
that an ALJ consider a claimant’s credibility before determining
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her residual capacity, instead of permitting the ALJ’s
determination of residual capacity to serve as a basis for
rejecting a claimant’s credibility. Id.
The ALJ in the present case similarly erred by concluding
that Dr. Gibellato’s opinion merited little weight because it
was inconsistent with the ALJ’s assessment of Sharp’s residual
capacity. The regulations direct that an ALJ evaluate
statements from treating physicians before, rather than after,
determining a claimant’s residual capacity. 20 C.F.R.
§ 404.1545(a)(3). Thus, the regulations do not allow an ALJ to
consider whether a treating physician’s opinion is consistent
with the ALJ’s residual capacity assessment when determining
what weight to accord that physician’s opinion. See id.§ 404.1527(c)(2).
We further explained in Mascio, however, that an error of
this nature may be deemed harmless when the ALJ has provided a
sufficient alternate basis for his negative assessment of
particular evidence. Mascio, 780 F.3d at 639. Therefore, we
must now consider the sufficiency of the ALJ’s other stated
reason for according less weight to Dr. Gibellato’s opinion.
When, as here, an ALJ denies a claimant’s application, the
ALJ must state “specific reasons for the weight given to the
treating source’s medical opinion,” to enable reviewing bodies
to identify clearly the reasons for the ALJ’s decision. Social
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Security Ruling (SSR) 96-2p, 61 Fed. Reg. 34,490, 34,492 (July
2, 1996). Based on our review of the record before us, we
conclude that the ALJ provided a second, specific reason that is
sufficient to afford such appellate review.
The ALJ did not summarily conclude that Dr. Gibellato’s
opinion merited little weight. Cf. Monroe v. Colvin, 826 F.3d
176, 190-91 (4th Cir. 2016) (holding ALJ’s statement that “the
objective evidence or the claimant’s treatment history did not
support the consultative examiner’s findings” precluded
meaningful review); Radford, 734 F.3d at 295; DeLoatche v.
Heckler, 715 F.2d 148, 150 (4th Cir. 1983). Instead, the ALJ
explained why he discredited Dr. Gibellato’s opinion, remarking
that “the claimant’s reported limitations were not supported by
[Dr. Gibellato’s] office notes.” While the ALJ did not cite
specific pages in the record, his explanation relied on and
identified a particular category of evidence. See generally 20
C.F.R. § 404.1527(c)(2); SSR 96-2p.
Indeed, the record contains substantial evidence supporting
the ALJ’s conclusion that Dr. Gibellato’s opinion did not merit
controlling weight. Dr. Gibellato’s notes indicated that
although Sharp’s symptoms were aggravated by stress and
activity, medications and injections regularly provided Sharp
relief. And, according to Dr. Gibellato’s notes, Sharp
tolerated injections well and did not experience any
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complications as a result of these procedures. Furthermore, his
notes indicated that Sharp often reported feeling relief of
between seventy percent and eighty percent as a result of the
treatments she received. These notes, considered as a whole,
suggested that Sharp could manage her pain and maintain a
routine work schedule, and were inconsistent with Dr.
Gibellato’s contrary opinion.
The ALJ also was entitled to consider whether Dr.
Gibellato’s opinion was inconsistent with other material
evidence, such as (1) Dr. Wartella’s opinion that Sharp tended
to “catastrophize” her pain, (2) the opinion of one physical
therapist that Sharp had good potential for rehabilitation with
use of a home exercise program, heat, and ice, and (3) the
opinion of another physical therapist that Sharp’s problems
could be alleviated in part by a walking program, or by
stretching and conditioning. See 20 C.F.R. § 404.1527(c)(2).
Based on this other evidence, the ALJ was not obligated to adopt
Dr. Gibellato’s opinion about Sharp’s ability to work. See id.§ 404.1527(d)(1). Moreover, we may not reweigh this evidence,
and we must defer to the ALJ’s determination when, as here,
conflicting evidence might lead reasonable minds to disagree
whether Sharp was disabled. See Hancock, 667 F.3d at 472;
Johnson, 434 F.3d at 653.
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2.
We next address the ALJ’s determination that Sharp’s
testimony lacked sufficient credibility. Sharp again relies on
our decision in Mascio, asserting that the ALJ erred when he
concluded that Sharp’s descriptions of the intensity,
persistence, and limiting effects of her symptoms were not
credible, because they were inconsistent with the ALJ’s own
residual capacity determination. However, Sharp recognizes that
the ALJ provided three additional reasons for his credibility
determination, including that: (1) Sharp’s subjective complaints
were “not fully supported by the objective medical evidence;”
(2) Sharp’s treatment was “conservative;” and (3) Sharp’s
admitted activities of daily living diminished her credibility
regarding the frequency, severity, and limiting effects of her
symptoms. Sharp nevertheless maintains that the three
conclusions above are not supported by substantial evidence.
We agree with Sharp that the ALJ applied the same incorrect
legal standard that we identified in Mascio, by using the ALJ’s
own assessment of Sharp’s residual capacity to assess her
credibility. See Mascio, 780 F.3d at 639. As we explained
above, the regulations require that the ALJ consider the
claimant’s credibility before determining her residual capacity,
instead of permitting the ALJ’s residual capacity determination
to serve as a basis for rejecting a claimant’s credibility. Id.
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Nevertheless, we again conclude that this error was harmless,
because the ALJ provided sufficient additional reasons for
concluding that Sharp’s statements about the extent of her
limitations were not credible. See id.
In determining the extent to which a claimant’s symptoms
affect her capacity to perform basic work activities, the ALJ
considers, among other factors, the claimant’s daily activities.
20 C.F.R. § 404.1529(c)(3)-(4); see Johnson, 434 F.3d at 658.
The ALJ also considers the claimant’s statements about the
intensity, persistence, and limiting effects of her symptoms,
and whether the functional limitations from those symptoms “can
reasonably be accepted as consistent with the objective medical
evidence * and other evidence.” 20 C.F.R. § 404.1529(c)(4).
While we may not make our own credibility determinations, we may
review whether substantial evidence supports an ALJ’s
credibility determination. See Johnson, 434 F.3d at 658.
Here, the ALJ concluded that Sharp’s statements about the
extent of her limitations were not fully supported by objective
*Objective medical evidence includes “medical signs and
laboratory findings.” 20 C.F.R. § 404.1529(a). Medical signs
are “anatomical, physiological, or psychological abnormalities
which can be observed, apart from [the claimant’s] statements.”
Id. § 404.1528(b). Laboratory findings are “anatomical,
physiological, or psychological phenomena which can be shown by
the use of medically acceptable laboratory diagnostic
techniques.” Id. § 404.1528(c).
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medical evidence. Dr. Gibellato’s notes indicated that Sharp’s
symptoms were alleviated significantly with medications and
injections, and that Sharp tolerated the injections well and did
not experience any complications. When we consider these notes
together with (1) Dr. Wartella’s opinion that Sharp tended to
“catastrophize” the effects of her symptoms, and (2) the above-
stated opinions and recommendations of the two physical
therapists who evaluated Sharp, we conclude that substantial
evidence supports the ALJ’s conclusion that objective medical
evidence undermined Sharp’s statements regarding the extent of
her limitations. See Hancock, 667 F.3d at 472.
The ALJ further observed that Sharp’s medical care, which
included injections, pain medication, and physical therapy, was
“conservative.” The ALJ was permitted to make this
determination that Sharp’s treatment was conservative, and that
her course of treatment supported a conclusion that she was able
to maintain a routine work schedule. See Wall v. Astrue, 561
F.3d 1048, 1058-60, 1069 (10th Cir. 2009) (concluding that
claimant’s treatment for pain, which included local anesthetic
patches, Motrin, and cortisone injections in her back, was
conservative).
Finally, the ALJ concluded that Sharp’s reported daily
activities were inconsistent with her alleged limitations. The
ALJ recognized that Sharp’s pain was unpredictable and caused
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her difficulties. However, the ALJ also considered Sharp’s
statements that on good days, Sharp could perform household
chores and shop for groceries. We may not reweigh this
evidence, make credibility determinations, or supplant the ALJ’s
judgment with our own. Johnson, 434 F.3d at 654. Accordingly,
viewing the record as a whole, we conclude that substantial
evidence supports the ALJ’s credibility determination. See
Hancock, 667 F.3d at 472; Meyer, 662 F.3d at 704.
IV.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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