No. 5:16-CV-00312-FL.

Donna Lucas Gallion, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

United States District Court, E.D. North Carolina, Western Division.

Editors Note
Applicable Law: 42 U.S.C. § 416
Cause: 42 U.S.C. § 416 Denial of Social Security Benefits
Nature of Suit: 863 Social Security: DIWC / DIWW
Source: PACER

Attorney(s) appearing for the Case

Donna Lucas Gallion, Plaintiff, represented by Vance Edward Jennings , Brent Adams & Associates.

Nancy A. Berryhill, Defendant, represented by Jill S. Reeder , Social Security Administration.

Memorandum & Recommendation

ROBERT T. NUMBERS, II, Magistrate Judge.

Plaintiff Donna Lucas Gallion instituted this action on June 2, 2016, to challenge the denial of her application for social security income. Gallion claims that the Administrative Law Judge ("ALJ") Anne-Marie A. Ofori-Acquaah erred in evaluating the opinion evidence from her treating cardiologist. Both Gallion and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 14, 16.

After reviewing the parties' arguments, the court has determined that ALJ Ofori-Acquaah reached the appropriate decision. Substantial evidence supports her evaluation of the medical opinion evidence. Therefore, the undersigned magistrate judge recommends that the court deny Gallion's motion, grant Berryhill's motion, and affirm the Commissioner's decision.2

I. Background

On December 10, 2013, Gallion filed an application for disability benefits, alleging a disability that began on April 14, 2012. After her claim was denied at the initial level and upon reconsideration, Gallion appeared before ALJ Ofori-Acquaah for a hearing to determine whether she was entitled to benefits. ALJ Ofori-Acquaah determined Gallion was not entitled to benefits because she was not disabled. Tr. at 22-29.

ALJ Ofori-Acquaah found that Gallion had the following severe impairments: ischemic heart disease, congestive heart failure, and carpal tunnel syndrome. Id. at 24. ALJ Ofori-Acquaah found that Gallion's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id. at 25. ALJ Ofori-Acquaah then determined that Gallion had the RFC to perform sedentary work, with additional limitations. Id. Gallion can engage in frequent handling and fingering with her bilateral upper extremities. Id. She can occasionally climb ramps and stairs but she can never climb ladders, ropes, or scaffolds. Id. She is able to occasionally kneel, stoop, crouch, and/or crawl. Id. Gallion can never be exposed to unprotected heights but she may occasionally be exposed to moving mechanical parts. Id. She may also occasionally be exposed to dust, odors, fumes, and pulmonary irritants. Id.

ALJ Ofori-Acquaah concluded that Gallion was capable of performing her past relevant work as an administrative assistant and a telecommunicator supervisor as those jobs are generally performed and actually performed. Id. at 29. She also determined that Gallion could perform her past work as a customer service manager as it is generally performed. Id. Thus, ALJ Ofori-Acquaah found that Gallion was not disabled. Id. at 29.

After unsuccessfully seeking review by the Appeals Council, Gallion commenced this action on June 2, 2016. D.E. 1.

II. Analysis

A. Standard for Review of the Acting Commissioner's Final Decision

When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to the determination of whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

B. Standard for Evaluating Disability

In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

C. Medical Background

Prior to her alleged onset date, a 2008 nerve conduction study indicated that Gallion had ulnar nerve entrapment at the right elbow and carpal tunnel syndrome of the left wrist. Tr. at 328-29. In June 2011, she underwent surgery for right cubital tunnel syndrome. Id. at 355.

Gallion suffered a heart attack on April 14, 2012, her alleged disability onset date. Id. at 259-81. Providers performed cardiac catheterization and stent placement for her coronary artery disease. Id. Gallion remained hospitalized for five days. Id. Follow-up treatment records note that Gallion had diagnoses of congestive heart failure, chronic obstructive pulmonary disease ("COPD"), asthma, hypertension, gout, and obesity. Id. at 388-93, 505-09. She also reported shortness of breath on occasion. Id. Records also recorded Gallion's ejection fraction ("EF") as follows: 20-25% in April 2012; 35-40% in October 2013; and 45% in November 2014. Id.

Dr. John Kelley, Gallion's treating cardiologist, prepared a letter dated May 21, 2013. Id. at 393. Dr. Kelley noted Gallion's history of a heart attack which required catheterization and stent placement. Id. He recounted her diagnoses of congestive heart failure, COPD with asthma, and gout. Id. Dr. Kelley opined that Gallion is unable to sit or stand for any length of time and that she cannot tolerate stress. Id. He further remarked that her medication cause her to use the bathroom constantly. Id. Dr. Kelley opined that Gallion was totally and permanently unable to work. Id.

Gallion also sought treatment from Raleigh Orthopaedic for right knee pain and swelling, instability, and difficulty sleeping because of her knee pain. Id. at 394-400. Providers diagnosed osteoarthritis as well as a right knee meniscus tear based on an MRI study. Id.

The following year, Gallion again sought orthopedic treatment for bilateral numbness in her hands. Id. at 510-13. Carpal tunnel tests yielded positive results. Id. Gallion received injections which provided minimal relief of her symptoms. Id. After an October 2015 nerve conduction study yielded abnormal results, providers diagnosed Gallion with bilateral carpal tunnel syndrome and elbow neuropathy. Id. at 579-89. Gallion underwent left carpal tunnel release surgery on December 15, 2015. Id.

Treatment notes from 2015 reveal Gallion sought treatment from cardiologist Dr. David B. Walker. Id. at 572-78. On April 8, 2015, Dr. Walker noted that Gallion was doing well and that she had good functional capacity. Id. at 572-73. Gallion stated that her primary care providers directed her to eliminate stressors. Id. She reported decreased energy and fatigue, but she denied any exertional symptoms with mild to moderate exertion levels. Id. Only with heavy exertion did Gallion report shortness of breath, which resolved with rest. Id. Gallion also stated that she tolerated her medications well. Id. While she had some episodes of increased swelling in her hands and ankles, this improved with rest, elevation, and diuretic medication. Id. Gallion again saw Dr. Walker on September 2, 2015. Id. at 576. Treatment notes reflect that Gallion was tolerating her medications well, she felt well overall, and her dyspnea on exertion was stable. Id. Dr. Walker found her to be doing well overall. Id.

Eastern Carolina Medical Clinic treated Gallion between 2011 and 2015. Id. at 282-308, 315-26, 461-504, 514-71. Records from this period reflect complaints of shortness of breath knee pain, COPD and coronary artery disease, asthma, gout, and carpal tunnel syndrome. Id.

D. Medical Opinion Evidence

Gallion maintains that ALJ Ofori-Acquaah failed to accord proper weight to the medical opinions of her treating cardiologist, Dr. Kelley. The Commissioner contends, and the court agrees, that ALJ Ofori-Acquaah's evaluation of the medical opinion evidence was proper.

Regardless of the source, the ALJ must evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). While an ALJ is under no obligation to accept any medical opinion, see Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006), he must nevertheless explain the weight accorded to the opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996); SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996). When evaluating medical opinions, the ALJ should consider "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson, 434 F.3d at 654. An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up "specious inconsistencies," Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has failed to give a sufficient reason for the weight afforded a particular opinion, see 20 C.F.R. § 404.1527(c). Generally, the more the medical source presents relevant evidence to support his opinion, and the better that he explains it, the more weight his opinion is given. See id. § 404.1527(c)(3). Additionally, the more consistent the opinion is with the record as a whole, the more weight the ALJ will give to it. See id. § 404.1527(c)(4).

According to 20 C.F.R. § 404.1527(c)(2), a treating source's 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 diagnostic techniques and when the opinion is consistent with the other substantial evidence in the record. Conversely, however, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); see also Craig, 76 F.3d at 590 (4th Cir. 1996) (finding that "if a physician's opinion in not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight"). A medical expert's opinion about whether one is disabled is not dispositive; opinions as to disability are reserved for the ALJ alone. See 20 C.F.R. § 404.1527(d)(1).

Dr. Kelley issued a letter dated May 21, 2013. Tr. at 393. It recounts that Gallion had a heart attack in April 2012 following which she underwent cardiac catheterization and coronary stent surgery. Id. He references her diagnoses of congestive heart failure, COPD with asthma, and gout. Id. Dr. Kelly opined that she is unable to sit or stand for any length of time, she cannot tolerate stress, and her medication, a diuretic, causes her to use the bathroom constantly. He also stated that Gallion is totally and permanently unable to work. Id.

Gallion contends that ALJ Ofori-Acquaah failed to properly consider Dr. Kelley's opinion. She also argues that ALJ Ofori-Acquaah failed to address not only her limitation due to her frequent bathroom use but also the directive that she avoid stressors.

ALJ Ofori-Acquaah considered Dr. Kelley's letter but found it deserved little weight. Id. at 27. Contrary to Gallion's assertion that this opinion was not evaluated under the § 1527(c) factors, ALJ Ofori-Acquaah specifically noted Dr. Kelley's specialty in cardiology and the fact that he was one of Gallion's treating providers. Id. However, she also observed that Dr. Kelley's letter assessed limitations not supported by the record as a whole. ALJ Ofori-Acquaah noted that while Gallion had documented limitations at the time of her cardiac episode in April 2012, the record since that time documented improvement in her condition. Id. She remarked that evidence showed that Gallion can perform sustained activities including sitting and standing as well as activities of daily living. Id. Finally, she noted Dr. Kelley's assessment on the ultimate issue of disability is one reserved to the Commissioner. See SSR 06-03p ("[T]he ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner.").

Substantial evidence supports ALJ Ofori-Acquaah's finding that Dr. Kelley's assessment was not entitled to controlling weight, as Gallion contends. Dr. Kelley's letter lacks support such as medical signs or laboratory findings supporting his conclusions of Gallion's limitations. Additionally, his opinion is inconsistent with other evidence in the record which showed Gallion would lie down between 30-60 minutes at a time, and that she walked and rode an exercise bike. Tr. at 26, 56, 61. Even though she reported shortness of breath, Gallion's providers repeatedly recommended that she exercise. Id. at 26, 506, 509, 565, 567. By August 2015, Gallion reported that she was walking ten minutes per day, three times per day on multiple days of the week, and she was instructed to increase her exercise frequency. Id. at 567. This evidence undermines Dr. Kelley's statement that Gallion could not sit or stand for any length of time. In sum, the longitudinal record, much of which developed after Dr. Kelley issued his letter, demonstrated that Gallion's symptoms improved following her cardiac event. Id. at 27. Accordingly, ALJ Ofori-Acquaah did not err in assigning Dr. Kelley's opinion little weight.

Treatment records from Dr. Walker also support ALJ Ofori-Acquaah's determination that Gallion was capable of more activities than Dr. Kelley opined. In April 2015, Dr. Walker noted that Gallion was doing well overall, she tolerated her medications well, and she remained asymptomatic. Id. at 572-73. Although Gallion noted some swelling, decreased energy, and fatigue, she had no symptoms with mild or moderate exertion, only experiencing symptoms with heavy exertion. Id. Dr. Walker found that she had good functional capacity. Id. In September of that year, Dr. Walker's records reflect Gallion was doing well, as she was tolerating her medications well, and she was not experiencing shortness of breath. Id. at 576-78. These records support a finding that Gallion experienced significant improvement in her symptoms and cast doubt upon Dr. Kelley's assessed limitations offered the previous year.

Finally, ALJ Ofori-Acquaah noted the record reflected statements that Gallion's should avoid stress and that she experienced frequent bathroom use. She did not, however, incorporate these into the RFC. The limitation that Gallion avoid stressors was not made by a cardiologist but instead in contained in Dr. Walker's treatment notes as a directive that Gallion reported from her primary care providers. Id. at 572. Dr. Walker's notes reflect that Gallion was doing well and that she tolerated her medications well. Id. at 572-78. ALJ Ofori-Acquaah also noted that Gallion condition improved since the time of her cardiac event so that she was able to perform sustained activities. ALJ Ofori-Acquaah did not find that Gallion required frequent bathroom usage or that such a limitation would limit her ability to engage in basic work activity. This counsels against additional restrictions to avoid stress or that Gallion requires frequent bathroom availability, especially given the sparse evidence supporting these limitations. Moreover, ALJ Ofori-Acquaah was not required to adopt the limitations, even if she had accorded more weight to Dr. Kelley's letter. See Bennett v. Colvin, No. 3:13-cv-01176, 2015 WL 153950, at *13 (M.D. Tenn. Jan. 12, 2015) (an ALJ who accords great weight to opinion not required to adopt that opinion wholesale).

Finding that ALJ Ofori-Acquaah properly analyzed the medical opinion evidence and that she did not err in assigning Dr. Kelley's opinion less than controlling weight, the undersigned finds that Gallion's argument lacks merit.

III. Conclusion

For the forgoing reasons, the court recommends that the court deny Gallion's Motion for Judgment on the Pleadings (D.E. 14), grant Berryhill's Motion for Judgment on the Pleadings (D.E. 16), and affirm the Commissioner's determination.

Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).


Attached to this notice is a memorandum and recommendation of a United States Magistrate Judge in this action that has been entered on the records of this court pursuant to 28 U.S.C. §636(b)(1)(c), Fed.R.Civ.P. 72(b)(2)-(3), and Local Civil Rule 72.4(b), EDNC. Rule 72(b) provides as follows:

(2) Objections. Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient. (3) Resolving Objections. The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.

You are hereby notified that unless written objections are timely filed in accordance with this rule, you will have waived the right to further consideration of these issues by the district judge, and an appropriate order based on the memorandum and recommendation will be entered. Furthermore, failure to file timely objections to the findings and recommendation set forth by the magistrate judge may result in a waiver of the right to appeal from a judgment of this court based on such findings and recommendations. See Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).


1. Berryhill replaced Carolyn Colvin as the Acting Commissioner of Social Security on January 20, 2017.
2. The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).


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