Opinion
Civil Action No. 8:19-cv-00441-RBH-JDA
12-19-2019
Trenica Rashell Smith Mingo, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. §§ 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In April 2015, Plaintiff protectively filed an application for DIB alleging an onset of disability date of April 13, 2015. [R. 157-58.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 90-93; R. 95-98.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on November 16, 2017, ALJ Thaddeus J. Hess conducted a de novo hearing on Plaintiff's claims. [R. 26-56.] Plaintiff was represented by counsel at the hearing before the ALJ.
The ALJ issued a decision on February 20, 2018, finding that Plaintiff was not disabled under the Social Security Act ("the Act") from April 13, 2015, through the date of this decision. [R. 13-21.] At Step 1, the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2020, and had not engaged in substantial gainful activity since April 13, 2015. [R. 15, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had medically determinable impairments of degenerative disc disease of the lumbar spine and obesity. [R. 15, Finding 3.] Plaintiff was also found to have a medically determinable mental impairment of anxiety, which was not severe. [R. 15.] At Step 3, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 17, Finding 4.] At Step 4, the ALJ found that Plaintiff was capable of performing her past relevant work as a desk support IT worker. [R. 19, Finding 6.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from April 13, 2015, through the date of the decision. [R. 21, Finding 5.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on February 14, 2019. [Doc. 1.] As noted, Plaintiff is proceeding pro se in seeking judicial review of the ALJ's decision.
THE PARTIES' POSITIONS
Plaintiff's initial brief does not allege any specific error by the ALJ with respect to the decision in this case. Plaintiff, instead, submitted a pro se brief in which she appears to respond, paragraph by paragraph, to the Commissioner's Answer. [Doc. 21.] Plaintiff's brief appears to challenge the Commissioner's conclusions stated in its Answer, and her arguments are provided, in relevant part, below verbatim:
5. . . . Plaintiff disagrees with the Defendant with respect that Plaintiff is entitled to judgment or relief sought due to nerve root disorder as stated in Listing 1.04A in which the Defendant failed to review.[Doc. 21 at 1-2.] For her relief, Plaintiff requests "judgement approving the Complaint that was presented to the United States District Court on February 14, 2019, disapproving the decision of the Commissioner of Social Security." [Id. at 2.] Further, in her reply brief, Plaintiff contends the five step evaluation was not completed properly and that her use of a cane and back brace shows there is nerve root damage and pain. [Doc. 23 at 3.] Plaintiff also claims that she had no opportunity to testify and that the ALJ did not discuss the RFC with her. [Id.]
6. . . . Plaintiff should be granted fully/partially favorable decision due to obesity which was not reviewed and is listed in records for review.
8. Plaintiff seeks favorable decision due to the inability to ambulate effectively in various circumstances.
The Court is unclear about what issue Plaintiff is arguing, as the Court notes that she did appear and testify before the ALJ on November 16, 2017. [See R. 26-56.]
The Commissioner, on the other hand, argues that the ALJ's decision is supported by substantial evidence. [Doc. 22.] The Commissioner contends the ALJ reasonably concluded, consistent with the opinion evidence of record, that Plaintiff could perform sedentary work. [Id. at 1.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in 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 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. § 404.1569a(c)(1). --------
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the Plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Substantial Evidence Evaluation
The role of the federal judiciary in the administrative scheme established by the Act is a limited one. Section 405(g) of the Act provides, "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). As the Supreme Court recently explained,
The phrase "substantial evidence" is a "term of art" used throughout administrative law to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains "sufficien[t] evidence" to support the agency's factual determinations. And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." It means—and means only—"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted).
This standard precludes a de novo review of the factual circumstances that substitutes the Court's findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The Court must uphold the Commissioner's decision as long as it is supported by substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). "From this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational." Vitek, 438 F.2d at 1157-58.
Here, upon review of the ALJ's decision, the Court notes the ALJ properly followed the five-step sequential evaluation process in evaluating Plaintiff's disability claim. The ALJ determined that Plaintiff had severe impairments of degenerative disc disease of the lumbar spine and obesity and a nonsevere impairment of anxiety. [R. 15.] The ALJ determined that Plaintiff was not under a disability during the relevant time frame from April 13, 2015, the alleged onset date, to the date of the decision. [R. 21.] The ALJ summarized Plaintiff's testimony and available medical history and determined that, based on the evidence of record, he could not find Plaintiff's allegations that she is incapable of all work activity to be credible because there was no supporting medical evidence. [R. 17-19.]
In challenging the outcome of this case, Plaintiff has failed to identify any specific error by the ALJ. Plaintiff, however, does appear to challenge the Commissioner's (1) decision that she did not meet Listing 1.04A [Docs. 21, ¶ 5; 23 at 3-4]; (2) failure to consider her obesity [Doc. 21 at ¶ 6], and (3) failure to consider her inability to ambulate effectively [Docs. 21 at ¶ 8; 23 at 4].
Listing 1.04A
When a claimant's impairment or combination of impairments meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is deemed disabled and no further analysis is required. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To determine whether a claimant's impairments meet or equal a listed impairment at Step 3 of the sequential analysis, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Peck v. Colvin, No. 8:12-cv-02594-DCN, 2014 WL 994925, at *12 (D.S.C. Mar. 13, 2014) (stating that, without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, it is simply impossible to tell whether there was substantial evidence to support the determination). "In cases where there is 'ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing." Id. (quoting Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). While the ALJ may rely on the opinion of a state agency medical consultant in conducting a listing analysis, the ALJ ultimately bears the responsibility for deciding whether a claimant's impairments meet or equal a listing. 20 C.F.R. §§ 404.1527(f)(2)(iii), 404.1527(e)(2).
Listing 1.04 of the Administration's Listing of Impairments addresses specific disorders of the spine, such as herniated nucleus pulposus, spinal stenosis, degenerative disc disease, facet arthritis, and others, resulting in a compromise of a nerve root or the spinal cord. 20 C.F.R. Pt. 404, Subpt. P, App'x. 1, § 1.04. A claimant with a spinal impairment may qualify as "disabled" under Listing 1.04 if there is
[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine) . . .Peck, 2014 WL 994925, at *3 (quoting 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 104).
Here, the ALJ expressly considered Listing 1.04A in evaluating the severity of Plaintiff's spine disorder and determined that the Listing was not met because "the claimant does not have evidence of nerve root compression evidenced by motor loss accompanied by sensory or reflex loss, necessary to meet 1.04A." [R. 17.] Plaintiff, who has the burden at this stage of the sequential evaluation, has failed to the direct the Court to any evidence of record showing nerve root compression evidenced by motor loss accompanied by sensory or reflex loss. While Plaintiff disagrees with the ALJ's finding, mere disagreement is not sufficient to warrant remand on this matter. The ALJ identified the appropriate Listing and compared Plaintiff's symptoms to the Listing criteria in finding that the Listing was not met. Thus, the Court finds that the ALJ's decision is supported by substantial evidence.
Obesity and Ability to Ambulate
In her brief, Plaintiff appears to suggest that her obesity and complaints about her inability to ambulate were not properly considered in the ALJ's decision finding her not disabled. Again, Plaintiff has failed to direct the Court to any evidence of record that the ALJ overlooked and has failed to explain how consideration of any such evidence would have changed the outcome of this matter.
The ALJ expressly considered Plaintiff's obesity and explained that her "obesity was considered, singly and in combination with all other severe medically determinable impairments, in formulating the residual functional capacity." [R. 17.] The ALJ also noted that, while Plaintiff was not receiving treatment for her obesity, her obesity did exacerbate her back impairments. [R. 19.] With respect to Plaintiff's ability to ambulate, the ALJ noted that Plaintiff testified to using a walker and/or cane to walk at home. [R. 18.] The ALJ also indicated that he included limitations regarding hazards in the RFC due to Plaintiff's use of a cane and antalgic gait. [R. 19.] Thus, the Court finds Plaintiff's suggestion that her obesity and use of a cane or walker were not taken into consideration to be without merit.
Further, the ALJ explained his consideration of the opinion evidence of record and noted that Plaintiff's treating physician, Dr. Todd Jarosz, opined in November 2015 that she was capable of sedentary work. [R. 19.] State agency doctor William Hopkins also found Plaintiff capable of sedentary work. [Id.] In light of the lack of evidence to the contrary, the Court is bound to find that the ALJ's decision is supported by substantial evidence.
Pain and Medication Side Effects
In her reply brief, Plaintiff appears to suggest that the ALJ failed to consider her pain complaints and her medication side effects. [Doc. 23 at 2.] Plaintiff, however, has failed to identify any evidence of record not considered by the ALJ related to her pain complaints or medication side effects. Additionally, Plaintiff failed to prove that she was incapable of sedentary work in light of her pain complaints and medication side effects.
Social Security Ruling 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling ("SSR") 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Further, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [she] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (internal quotation marks omitted). 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, 82 Fed. Reg. at 49, 467.
In evaluating Plaintiff's pain complaints, the ALJ reasoned as follows:
[Plaintiff] underwent a laminectomy and discectomy involving her lumbar spine in July 2014 (Exhibit 10F/1). Regarding the period at issue, April 2015 x-ray imaging of her lumbar spine revealed a scoliotic curve, severe loss of lumbar lordosis, loss of disc height, near bone-on-bone contact of L4/L5 and L5/Sl, limbic-type anterior vertebral apophyseal with injuries at L3 and L4, disc herniation producing anterior sac compression, severe disc degeneration, and disc bulges (Exhibit 5F/8, 13). In June 2015, she presented with low back and extremity pain (Exhibit 6F/1). She was noted to have a reduced left knee reflex and a positive straight leg raising test, but she was also noted to have normal strength (Exhibit 6F/3). The claimant was next seen in December 2015, when she was noted to have a full range of motion (Exhibit 11F/34). She was again noted to have a full range of motion in February 2016 (Exhibit 11F/30). There is then no record of continued treatment for her back impairment until March 2017 when she complained of back pain (Exhibit 11F/19). However, no back abnormalities were noted, but she was found to have intact range of motion, normal strength, normal reflexes, a normal sensory exam (Exhibit 11F/20). The following month, x-ray imaging of the lumbar spine revealed severe loss of intervertebral disc height, no decrease in lumbar lordosis and spondylosis (Exhibit 10F/28). She was also noted to have an antalgic gait, slightly reduced reflexes in her bilateral lower extremities (Exhibit 10F/3-5). However, she was found to have a negative straight leg raising test and maintained fine motor coordination, a full cervical range of motion, normal muscle strength (Exhibit 10F/3-5). Finally, in May 2017, she was noted to have a restricted range of motion (Exhibit 11F/4). Regarding current treatment, the claimant's back impairments are treated only by narcotic painkillers and muscle relaxants (Exhibit 13E).
Regarding the claimant's obesity, her body mass index ranged from 37.93 to 40.59 during the period at issue (Exhibits 6F/2;
11F/30). The claimant was instructed by her physicians to engage in diet and exercise, but in December 2015, she was noted to be in noncompliance with these instructions (Exhibit 11F/33). There is otherwise no treatment for the claimant's obesity. Regardless, I find that the claimant's obesity, which at times exceeded a BMI of 40, exacerbates her back impairments.[R. 18-19.]
The claimant's statements about the intensity, persistence, and limiting effects of her symptoms are inconsistent with objective evidence. There is a significant, unexplained gap in treatment. Specifically, claimant was treated in February 2016 and was not treated again until March 2017 (Exhibit 11F/19, 30). While the claimant may not have been able to afford regular treatment, the lack of emergent care during this time period indicates that there were no acute exacerbations during this time period. The findings that the claimant has normal strength are inconsistent with the claimant's allegation that she can lift only five pounds (HT; Exhibits 6F/3; 10F/3-5; 10F/20).
In addition to explaining his consideration of Plaintiff's pain complaints, as well as her conservative treatment, the ALJ cited to opinion evidence of record by state agency doctors and Plaintiff's own treating physician who found her capable of sedentary work. [R. 19.] The ALJ found that "limitations to the sedentary exertional level and postural limitations are supported by the claimant's numerous abnormal imaging results and restricted range of motion." [Id.] Further, the ALJ noted that "[o]ut of an abundance of caution and to give the claimant the benefit of the doubt, the temperature restrictions accommodate any exacerbations of symptoms that a change in temperature could cause. . . . The limitation regarding hazards is supported by the claimant's use of a cane and antalgic gait." [Id.]
Upon consideration of the ALJ's decision, in light of the regulations, the Court finds the ALJ's decision is supported by substantial evidence and adequately explains his consideration of the evidence in the record and the basis for his conclusions directed to the record. The ALJ provided a sound foundation for his findings, and his conclusions are rational and supported by substantial evidence. The Plaintiff failed to allege any error by the ALJ which would require the Court to remand for further proceeding.
CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, it is recommended that the decision of the Commissioner be AFFIRMED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 19, 2019
Greenville, South Carolina