Opinion
C/A No. 0:18-367-BHH-PJG
05-31-2019
Paula Diane Burch, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Paula Diane Burch, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be affirmed.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "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." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In July 2014, Burch applied for DIB and SSI, alleging disability beginning May 12, 2014. Burch's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on January 27, 2017 at which Burch, who was represented by Bradley A. Norton, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on March 24, 2017 concluding that Burch was not disabled from May 12, 2014 through the date of the decision. (Tr. 35-48.)
Burch was born in 1971 and was forty-three years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as an assistant manager at Starbucks, a care giver at an assisted living facility, and a salesperson at a car dealership. (Tr. 261-62.) Burch alleged disability due to fibromyalgia; depression; post-traumatic stress disorder; back injuries; arthritis; anxiety; attention deficit disorder; chronic irritable bowl syndrome; high blood pressure; and torn, herniated, bulging discs. (Tr. 260.)
In applying the five-step sequential process, the ALJ found that Burch had not engaged in substantial gainful activity since her alleged onset date of May 12, 2014. The ALJ also determined that Burch's history of degenerative changes of the cervical spine status post disc replacement, polyarthralgias of the hands and knees, anxiety, depression, and post-traumatic stress disorder were severe impairments. However, the ALJ found that Burch did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Burch retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift and/or carry twenty pounds occasionally and ten pounds frequently; can stand and/or walk two hours out of an eight-hour workday; can sit 6 of 8 hours; can never climb ropes, ladders or scaffolds; can occasionally climb ramps or stairs, balance, stoop, kneel, crouch and crawl; can frequently reach overhead; can frequently handle and finger; and should avoid concentrated exposure to hazards. The claimant can perform unskilled work (i.e. SVP 1 or 2) on a sustained basis for eight hours a day, five days a week with normal breaks.(Tr. 41.) The ALJ found that Burch was unable to perform any past relevant work, but that considering Burch's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Burch could perform. Therefore, the ALJ found that Burch was not disabled from May 12, 2014 through the date of the decision.
The Appeals Council denied Burch's request for review on December 7, 2017, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Burch does not list any specific issues for this judicial review; nor does she offer any citations to any controlling law. However, from Burch's discussion in her brief it appears that Burch is arguing that the ALJ erred (1) in evaluating her subjective complaints, and (2) in evaluating the opinion evidence from Dr. Edward H. Booker, Jr., Burch's treating family physician.
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527, 416.913, 416.927. Because the instant claims were filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Burch's applications for benefits were filed, unless otherwise specified.
A. Subjective Complaints
With regard to subjective complaints, the United States Court of Appeals for the Fourth Circuit has stated that "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The first step requires there to "be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged." Id. (internal quotation omitted). During the second step the ALJ must expressly consider "the intensity and persistence of the claimant's [symptom] and the extent to which it affects her ability to work." Id. In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10. ALJs are further instructed to
Effective March 28, 2016, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029. See 2016 WL 1237954 (correcting the effective date of SSR 16-3p to read March 28, 2016). The ALJ's decision in this matter post-dates the effective date of SSR 16-3p.
limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial
court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities . . . .Id., at *11.
Further, "claims of disabling pain may not be rejected 'solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her pain." Craig, 76 F.3d at 595 (citations omitted) (alteration in original). "This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work." Id. A claimant's subjective complaints "need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges [he] suffers." Id. The social security regulations inform claimants that in evaluating subjective complaints, the Commissioner will consider the following relevant factors:
(i) Your daily activities;20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.
In this case, the ALJ summarized Burch's allegations as follows:
The claimant alleged pain in her neck, lower back, hips, knees and hands. The claimant alleged she experiences burning and stabbing sensations in her hips, which affect her ability to stand or walk. Specifically, the claimant alleged she is capable of standing or walking for only fifteen minutes at a time. The claimant alleged her right knee "catches and pops" when she goes up or down stairs. The claimant alleged she has arthritis in her hands, which makes it difficult to grasp small items for long periods of time. The claimant farther alleged that she has anxiety, depression and posttraumatic stress disorder. The claimant alleged she suffers from panic attacks approximately three times a week. However, the claimant stated her depression would likely improve if she were capable of returning to work. Moreover, the claimant's representative stated the claimant's mental impairments, although severe, would not significantly interfere with her ability to perform basic work activities.(Tr. 41.) However, the ALJ found that Burch's statements were "not entirely consistent with the medical evidence and other evidence in the record . . . ." (Tr. 42.)
Specifically, with regard to limitations stemming from Burch's alleged physical impairments, the ALJ found as follows:
Burch's arguments do not appear to raise any issues regarding the ALJ's evaluation of her mental impairments.
The objective medical evidence supports a finding that the claimant possesses functional limitations related to her neck, lower back, hips, knees and hands. Diagnostic imaging from May 2014 revealed disc herniation at L5-S1 with displacement of the S1 nerve root, mild disc bulge at L4-L5 with no significant mass effect, and mild lumbar spondylosis greatest at L5-S1 (Exhibit B2F/1). Physical examinations consistently noted tenderness of the lumber spine (Exhibits B3F; B8F; B15F). There is no diagnostic imaging related to the claimant's cervical spine included in the medical evidence of record. However, treatment records reflect the claimant underwent cervical disc replacement (Exhibit B16F/2). The claimant started pain management during the summer of 2014 (Exhibit B7F). Treatment notes from pain management indicated the claimant had a history of polyarthralgias, but these were fairly well controlled and the claimant reported doing well (Exhibit B7F). The claimant received a steroid epidural injection on July 7, 2014, and denied any pain in the lower extremities during a follow-up visit later that month (Exhibits B5F; B8F/4). The claimant started physical therapy in August 2014 and accompanying
treatment notes indicated the claimant was found to have good rehabilitation potential (Exhibit B11F). The claimant restarted pain management in the summer of 2015 (Exhibit B15F). The claimant received at least one infusion of Lidocaine and she subsequently reported decreased pain and increased activity level (Exhibit B15F/8).(Id.) The ALJ also found that, contrary to Burch's allegation that she can walk or stand only for fifteen minutes at a time, treatment records from several sources note normal gait, negative straight leg raises, normal ranges of motion in Burch's extremities, and no sensory deficiencies in Burch's lower extremities. (Tr. 42-43.) With regard to Burch's hands and knees, the ALJ observed that February 2015 treatment notes noted "full range of motion of the wrists and hands and no impairment in gross or fine motor coordination"; that Burch did not have any weight bearing restrictions when she participated in physical therapy; and that treatment notes from July 2015 to August 2016 indicated some tenderness and crepitus of the knees but intact handgrip. (Tr. 43.) The ALJ observed that Burch underwent cervical disc replacement, but that May 2014 to February 2015 treatment notes indicated that Burch had full range of motion of the cervical spine and her upper extremities were symmetrical. The ALJ further found that although Burch testified to high levels of pain even when taking medications, treatment records suggested that her pain is not the degree reported, pointing to records indicating no leg or hip pain or tenderness and that her symptoms were controlled with medication. Finally, the ALJ found Burch's subjective complaints to be inconsistent with her "activities of daily living which included cooking, doing laundry, folding clothes, sweeping, vacuuming, crocheting, flying to Rhode Island, seeing friends relatives and family, using Facebook, texting, emailing, doing research on the Internet, quilting, going out to get something to eat, and raising young children that included going to cheerleading practice and competitions, and getting the children off to school." (Tr. 44.)
Burch first argues that this matter must be remanded for further consideration of Burch's subjective complaints because the ALJ erroneously found that, contrary to Burch's testimony, Burch worked in the fourth quarter of 2014 and the first three quarters of 2015. Although Burch is correct that the ALJ erred in finding Burch's earnings record suggested any work activity after her alleged onset date of May 12, 2014, there is no suggestion at all by the ALJ that he considered these alleged earnings in evaluating her subjective complaints. In fact, the only mention of them is at step one of the sequential process in finding that Burch had not engaged in substantial gainful activity since her alleged onset date. The ALJ observed that Burch denied engaging in work activity since her alleged onset date, but that her earnings records indicated earnings after that date. However, the ALJ also concluded that none of these earnings after her alleged onset date rose to the level of substantial gainful activity. Thus, Burch has failed to show that this error was harmful and therefore reversal is not warranted on this basis.
It appears that the ALJ's support for finding that Burch's earnings record indicated earnings in the last quarter of 2014 and the first three quarters of 2015 was based on records pertaining to another individual that were removed from the record submitted to the court for this judicial review. (Compare Tr. 37 (citing Ex. B7D/3-4) with Tr. 248-49 (stating Ex. B7D/3-4 were replaced with a marker page because it referenced another individual)).
Burch also appears to argue that the ALJ's evaluation of her subjective complaints is unsupported based on a letter from Dr. Booker, supporting his opinion evidence. However, for the reasons discussed below, Burch has failed to demonstrate that the ALJ's decision to discount Dr. Booker's opinion is unsupported by substantial evidence even considering the statements in Dr. Booker's letter. Similarly, this letter does not render the ALJ's thorough evaluation of Burch's subjective complaints and record in this matter unsupported by substantial evidence. Moreover, the ALJ specifically addressed the May 2014 diagnostic imaging that Burch appears to allege supports her subjective complaints. The ALJ found that the imaging, along with other evidence, supported finding that Burch possessed functional limitations; however, the ALJ simply did not find they supported the degree of limitations alleged by Burch, and Burch has failed to demonstrate that this finding is unsupported.
Thus, the ALJ's decision reflects that he discounted Burch's complaints, in part, because they were inconsistent with, contradicted by, or otherwise undermined by the record. See Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006) (noting that a claimant's allegations "need not be accepted to the extent that they are inconsistent with available evidence"); Craig v. Chater, 76 F.3d 585, 589-90 (4th Cir. 1996) ("Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers . . . ."); cf. Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (finding "the ALJ's determination that objective medical evidence was required to support Lewis' evidence of pain intensity improperly increased her burden of proof"). Further, after carefully considering Burch's arguments and the record in this matter, the court finds that Burch has failed to demonstrate that the ALJ's evaluation of Burch's subjective complaints is unsupported by substantial evidence or controlled by a harmful error of law. See Craig, 76 F.3d at 589 (defining "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance" and stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"). The ALJ's decision reflects careful consideration of the medical evidence and the limitations stemming from Burch's impairments and provides reasons for discounting Burch's subjective complaints. As stated above, the court may not substitute its judgment for the Commissioner's and finds that the ALJ's conclusions are within the bounds of the substantial evidence standard. See Craig, 76 F.3d at 595 (stating that a claimant's subjective complaints of pain itself or its severity "need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges she suffers"); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (per curiam) (finding that the ALJ may properly consider inconsistencies between a plaintiff's testimony and the other evidence of record in evaluating the credibility of the plaintiff's subjective complaints); Blalock, 483 F.2d at 775 (indicating that even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence).
B. Opinion Evidence
Burch also appears to argue that the ALJ erred in discounting the opinion of Dr. Edward H. Booker, Jr., Burch's treating family physician. The law applicable to Burch's applications provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c), 416.927(c). Typically, the Social Security Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See id. However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Instead, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (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 v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "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." Id. (quoting Craig, 76 F.3d at 590).
After discussing Burch's subjective complaints and the general medical evidence, the ALJ evaluated the opinion evidence and found as follows with regard to Dr. Booker:
As for the opinion evidence, treating source, Edward H. Booker Jr., M.D., opined the claimant could lift and/or carry less than ten pounds, stand and/or walk less than two hours in an eight-hour workday, sit less than six hours in an eight-hour workday and engage in manipulative activities on a limited basis (Exhibit B20F/3-5). Dr. Booker also opined the claimant could not engage in postural activities and she should avoid even moderate exposure to extreme temperatures, humidity, noise, vibration, pulmonary irritants and hazards (Exhibit B20F/5-7). Dr. Booker further opined the claimant needed to periodically alternate between sitting and standing positions (Exhibit B20F/4). Dr. Booker concluded the claimant was unable to return to work due to her impairments (Exhibit B20F/2). Dr. Booker's opinions are inconsistent with the medical evidence of record. That is, Dr. Booker's own notes indicated the claimant's symptoms were well controlled with medication (Exhibit B9F; B13F). Indeed, Dr. Booker's treatment of the claimant was largely conservative and did not include any invasive surgical procedures. Additionally, physical examinations from other medical providers consistently noted normal gait, negative straight leg raise, and full range of motion of the extremities including the wrists and digits. Furthermore, an opinion that an individual is disabled is reserved to the Commissioner pursuant to Social Security Ruling 96-5p. While Dr. Booker is a treating source, having treated the claimant since 2014, he is not a specialist; he is a
family physician. Inconsistent with his opinion are reports routinely not[ing] no neurologic or psychological symptoms (Exhibit B13F). Contrary to his opinion are treatment notes, wherein the claimant reports doing strenuous exercising 3 times a week plus athletic conditioning (Exhibit B13F). Dr. Booker's treatment records often note musculoskeletal system normal. No musculoskeletal symptoms (Exhibits B9F and B13F). Again, at the sake of being redundant Dr. Booker's treatment records indicate that the claimant's symptoms are controlled on current medications, and the claimant is feeling fine (Exhibits B7F and B17F). Dr. Booker's physical examinations and other treating sources report no neurologic symptoms, no swelling of the knees, no tenderness on palpation at the joint line of the knees, and musculoskeletal system normal (Exhibits B17F, B8F and B5F). Other sources report no pain in legs, arms or neck, no fatigue, no tingling, no numbness, no headaches, no difficulty going from sitting to standing position and the claimant ambulates independently (Exhibits B8F and B5F). Records from Southeastern Neurosurgical reveal normal gait, motor in the lower extremities, normal straight leg raise and hips full range of motion without pain (Exhibit B3F). Treatment records from Oconee medical center reveal range of motion in upper and lower extremities within normal limits normal strength and independent gait (Exhibits B11F and B1F). Other treating sources reveal examinations inconsistent with the opinion. The claimant repeatedly has been noted to ambulate without antalgic gait, transitional movements were unencumbered, the claimant had intact motor and sensation, gait was normal, the claimant had good range of motion of the cervical spine, upper extremities and no impairment of fine or gross motor coordination, the claimant was able to toe and heel walk, had negative straight leg raise and no sensory deficits (Exhibits B18F, B16F and B15F). Activities of daily living set forth above are inconsistent with the extreme limitations imposed by Dr. Booker. Accordingly, the undersigned affords little weight to the opinions of Dr. Booker.(Tr. 44-45.)
Burch argues that the ALJ misconstrued some of Dr. Booker's records in weighing his opinion. Burch does not detail in her brief exactly how the ALJ allegedly misconstrued the record; rather, she directs the court to an undated letter by Dr. Booker submitted in response to the ALJ's decision. (See Tr. 31.) It appears that this letter was submitted to the Appeals Council but not exhibited; however, the alleged errors by the ALJ were also raised in counsel's allegations of error attached to Burch's request for review by the Appeals Council, which was made part of the record and expressly considered. (See Tr. 1, 6, 223-24.) The Appeals Council found that the reasons raised by Burch in her request for review did not provide a basis for changing the Administrative Law Judge's decision. (Tr. 1.) Upon careful review of the record, the court agrees.
It appears that Burch previously alleged that the ALJ erred in finding that Burch reported "doing strenuous exercising 3 times a week plus athletic conditioning (Exhibit B13F)" as this report in the medical records referencing Burch's activity level prior to the onset of her current problems. Dr. Booker also essentially asserted that (1) indications that Burch's conditions were well controlled with medication does not mean that the problems do not exist or interfere with Burch's ability to work; (2) as a family doctor he does not perform surgical procedures and instead refers them to surgeons; (3) indications that Burch is feeling fine means she is feeling fine for a person with her conditions; and (4) Burch has fibromyalgia which can result in good and bad days. Burch also argues that findings of a full range of motion does not suggest that Burch is without pain and that the ALJ erred in discounting a long-term treating physician.
Upon review of the records, the arguments by the parties, and the ALJ's decision the court finds that the ALJ's findings are comfortably within the bounds of substantial evidence. Even accepting the arguments put forth by Burch as true, the record still clearly shows that the ALJ's decision is supported by substantial evidence. See, e.g., Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011) (recognizing that in some cases the record would clearly show that the additional evidence submitted to the Appeals Council did not cause the ALJ's decision to be unsupported by substantial evidence) (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)). Here, it is clear that the ALJ, as part of his duties in weighing the evidence, properly considered Dr. Booker's opinion in accordance with the applicable factors and legal authority. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (detailing the factors for consideration, including whether the source examined the applicant, the treatment relationship, the supportability of the opinion, the consistency of the opinion with the record, and whether the source is a specialist); Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Moreover, although Burch challenges some of the alleged inconsistencies found by the ALJ, they do not render the ALJ's findings as a whole unsupported by substantial evidence as the ALJ offered numerous, detailed reasons from various medical sources for determining that Dr. Booker's opinions were inconsistent with the record.
Thus, upon thorough review of the ALJ's decision and the record, the court concludes that it is clear that the ALJ applied the relevant factors in evaluating the opinion evidence, and finds that Burch has failed to demonstrate that the ALJ's evaluation of Dr. Booker's opinion is unsupported by substantial evidence or based on an incorrect application of the law. See 20 C.F.R. §§ 404.1527(c), 416.927(c); Mastro, 270 F.3d at 178 (stating that "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") (internal quotation marks and citation omitted); Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015) ("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,' . . . or has failed to give a sufficient reason for the weight afforded a particular opinion[.]") (internal citations omitted).
RECOMMENDATION
For the foregoing reasons, the court finds that Burch has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g); Coffman, 829 F.2d at 517. The court therefore recommends that the Commissioner's decision be affirmed. May 31, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).