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Foster v. Colvin

United States District Court, Fourth Circuit

July 5, 2013

CAROLYN W. COLVIN, Commissioner of Social Security.


JILLYN K. SCHULZE, Magistrate Judge.

Plaintiff William Edward Foster brought this action pursuant to 42 U.S.C. § 405(g) for review of the Social Security Administration's (SSA) final decision denying his claim for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act, 42 U.S.C. §§ 401 et. seq. (the Act). Both parties' motions for summary judgment are ready for resolution, see ECF Nos. 12 and 15, and no hearing is deemed necessary. See Local Rule 105.6. For the reasons set forth below, Foster's motion for summary judgment is denied and the Commissioner's motion for summary judgment is granted.

1. Background.

Foster filed applications for DIB and SSI on April 14, 2008, with an alleged disability onset date of December 11, 2007. R. 47-53, 324-30. The onset date was later amended to April 1, 2008. R. 46. His claims were denied initially on July 7, 2008, and upon reconsideration on December 5, 2008. R. 28, 29. Foster then filed a written request for a hearing before an Administrative Law Judge (ALJ), which concluded on February 22, 2010. R. 379. The ALJ, G.B. Arthur, issued a decision on March 16, 2010, finding that Foster could perform a limited range of light work and was therefore not disabled under the meaning of the Act. R. 25. The Appeals Council subsequently denied Foster's request for review on June 12, 2012, and the ALJ's decision became the final, reviewable decision of the agency. R. 6.

2. ALJ's Decision.

The ALJ evaluated Foster's disability claim using the five-step sequential process described in 20 C.F.R. § 404.1520.[1] At step one, the ALJ found that Foster had not engaged in any substantial gainful activity since the alleged onset date of April 1, 2008. R. 16. At step two, the ALJ identified Foster's severe medical impairments: degenerative joint disease in both knees and a possible adjustment disorder. R. 16. At step three, the ALJ found that Foster did not suffer from an impairment, or combination of impairments, listed in 20 C.F.R Part 404, Subpart P, Appendix 1. R. 17. At step four, the ALJ reviewed the record and determined that Foster possessed the Residual Functional Capacity (RFC) to perform light work with some additional limitations.[2] R. 17. The ALJ found Foster unable to perform any of his past relevant work. R. 23. At step five, given Foster's age, high school education, work experience, and RFC, the ALJ considered the testimony of the vocational expert (VE) and concluded that Foster is eligible for work that exists in significant numbers in the national economy. R. 25. Moreover, the ALJ could not identify a period of 12 consecutive months during which Foster suffered from disability. R. 21; 20 C.F.R. § 404.1509. Therefore, the ALJ denied Foster's applications for benefits.

3. Standard of Review.

The role of this court on review is to determine whether the ALJ applied the correct legal standards in finding Foster not disabled, and whether substantial evidence supports that conclusion. 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995). Substantial evidence requires "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotation marks omitted). To be substantial, there must be more than a scintilla, but less than a preponderance, of the evidence presented. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). This court may not try the case de novo, and will affirm a decision if it is supported by substantial evidence. Id. If conflicting evidence could cause reasonable minds to differ on whether or not the claimant is disabled, it is the ALJ's responsibility to make that determination. Craig v. Chater, 76 F.3d, 589 (4th Cir. 1996) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).

4. Discussion.

Foster has failed to establish a consecutive 12 month period during which he was disabled under the Act. "Under the SSA's regulations, disability' is defined as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'" Elliott v. Sara Lee Corp., 190 F.3d 601, 607 (4th Cir. 1999) (quoting 20 C.F.R. § 404.1505(a)).

Multiple surgeries alone do not create a prolonged disability. Schaffer v. Califano, 433 F.Supp. 1218, 1223 (D. Md. 1977). If, between operations, the symptoms are "correctable so that the plaintiff could return to work, " the disability does not persist, even if the underlying condition remains. Id.; see also Maher v. Sec'y of Health & Human Servs., 898 F.2d 1106, 1109 (6th Cir. 1989) ("claimant's hospitalization and periods of recuperation represent distinct and separate periods of disability which cannot satisfy the statutory requirement of continuous disability"). Here, Foster underwent two surgeries after the alleged onset date. R. 20-21. After the surgery in August 2008, the follow-up records report that it was healing nicely. R. 242. In October a State Agency assessment indicated that his described limitations were credible but expected to improve. R. 240. Dr. Trent's physical exam in October reported no drainage, cellulitis, or instability, and full knee extension. R. 318. A follow-up in November reported a good range of motion and only mild effusion with intermittent pain and swelling. R. 317. While further complaints of pain led to his final surgery in October 2009, by November he was able to participate in physical therapy, including 8 minutes of cycling, until he elected to stop attending. R. 21, 285-87. In short, substantial evidence supports the ALJ's conclusion that Foster did not endure a continuous, 12-month period during which he could not engage in a substantial gainful activity. Nonetheless, the court will address Foster's arguments as outlined in his brief.

Foster disagrees with the ALJ's decision in three respects. He argues that (1) the ALJ did not assign appropriate weight to the relevant medical opinions; (2) the ALJ improperly disregarded Foster's own testimony of pain and disability; and (3) the vocational evidence that the ALJ relied upon did not properly account for all of Foster's limitations. ECF No. 12-1 at 1-2.

A. The ALJ's consideration of medical opinions in determining Foster's RFC.

Foster claims that the ALJ failed to give proper weight to the opinions of his treating physician, Dr. Peter S. Trent, M.D. ECF No. 12-1 at 17. Specifically, he contends that the ALJ was not justified in according "limited weight" to Dr. Trent while according "some evidentiary weight" to the medical exam performed by Dr. Khan and the State Agency assessments. Id. at 17-20. A treating physician's opinion is generally entitled to greater weight, but only if it is both well-supported by medically acceptable diagnostic techniques and consistent with the other substantial evidence in the record. 20 CFR § 404.1527(d)(2); Craig, 76 F.3d at 590. If the opinion of the treating physician goes against the substantial evidence, or is not supported by the evidence, "it should be accorded significantly less weight." Craig, 76 F.3d at 590. In such cases, the proper weight is assigned based on a series of factors: (1) the length of treatment and frequency of examination; (2) the nature and extent of the treatment relationship; (3) medical evidentiary support; (4) consistency; (5) specialization; and (6) any other ...

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