Opinion
Civil Action No. 5:19-1876-RMG-KDW
09-24-2020
Martha Perez, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed. I. Relevant Background
A. Procedural History
On October 6, 2015, Plaintiff protectively filed for DIB alleging she became disabled on May 19, 2014. Tr. 170-73. After being denied initially, Tr. 67, and upon reconsideration, Tr. 77, Plaintiff requested a hearing before an ALJ, Tr. 103-05. ALJ Katie H. Pierce, conducted a hearing on February 22, 2018, taking testimony from Plaintiff and Vocational Expert ("VE") Benjamin Johnson, Ph.D. Tr. 40-66. The ALJ denied Plaintiff's claim in a decision dated April 25, 2018. Tr. 23-34. Plaintiff requested review of this decision from the Appeals Council. Tr. 169. After granting Plaintiff two extensions, Tr. 7-8, 21-22, the Appeals Council denied her request on May 24, 2019, making the ALJ's April 25, 2018 decision the Commissioner's final decision for purposes of judicial review, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed July 1, 2019. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in May 1965 and was 49 years old as of her alleged onset date of May 19, 2014, and 51 years old as of her date last insured of September 30, 2016. Tr. 232-33. In her form Disability Report-Adult Plaintiff indicated that she completed the 11th grade and did not attend special education classes. Tr. 226. Plaintiff identified her past relevant work ("PRW") as textile company finisher (Jan. 2000-Dec. 2001); school janitor and interpreter (Jan. 2004-June 2006); and textile company weaver (June 2002-Dec. 2003, Oct. 2010-May 2014). Plaintiff indicated that she stopped working on May 19, 2014 because of her conditions which she listed as "back problems, knee problems, headaches, valve movement syndrome, acid reflux chronic, cholesterol, [hiatal] hernia, painful [bladder] syndrome, kidney problems, [and] vertigo." Tr. 225. Plaintiff indicated she was 5'2" tall, weighed 185 pounds, and her conditions caused her pain or other symptoms. Id.
Plaintiff filed a Disability Report-Appeal on April 22, 2016 indicating changes in her condition as of April 13, 2016, which she described as hiatal hernia and probable gastric bypass due to acid reflux and hernia. Tr. 236. Plaintiff noted that "there is not much that I can do with all my medical problems affecting me. Being in constant pain, discomfort and in a poor emotional state does not allow for me to continue working." Tr. 242. In a subsequent Disability Report-Appeal dated July 14, 2016, Plaintiff indicated a new physical condition of IBS. Tr. 256. Plaintiff indicated a change in her daily activities of being "very dizzy now." Tr. 260.
C. Administrative Proceedings
On February 22, 2018, Plaintiff appeared with counsel at an administrative hearing in Greenville, South Carolina and testified regarding her application for DIB. Tr. 40-66. VE Johnston and ALJ Pierce appeared via video conference from Chattanooga, Tennessee. Tr. 43.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that she was born in May 1965, went to school through the 11th grade, and did not obtain her GED. Tr. 46-47. Plaintiff testified that she last worked at Alice Manufacturing Company on May 19, 2014 and has not worked since that date. Tr. 47. Plaintiff stated that she worked as a weaver, and had worked there "for a couple of years." Id. Plaintiff noted that she had worked a long time as a weaver and had worked in other places before working at Alice Manufacturing. Id. Those locations included Central Textiles and Martin Mills. Tr. 48. Plaintiff also testified that she had worked in housekeeping at Oconee Memorial Hospital. Id.
When asked what her biggest problem would be with trying to work fulltime Plaintiff responded that she has knee problems, back problems, hurt hips, headaches, dizziness, and IBS. Id. Plaintiff testified that she could walk for about 20 minutes before needing to sit down, and she could stand for five minutes or less. Id. Plaintiff testified that she could sit for 30 minutes before needing to stand up. Tr. 49. Plaintiff stated that she would have stand up and walk for about five minutes before she could sit down again. Id. Plaintiff testified that she would "have to hold onto something" in order to bend down and pick up something dropped on the floor. Id. When asked about her bladder problems Plaintiff stated that "it feels like when you have a bladder infection" but it is not a bladder infection it is called painful bladder syndrome. Tr. 50. Plaintiff testified that if she drinks water she has to be close to the bathroom so that she can use the bathroom often or she would be in "horrible pain." Id. Plaintiff stated that if she goes shopping, she has to "not drink water as much." Id. Plaintiff testified that if she drinks a glass of water she will have to use the bathroom three times in less than ten minutes, but if she does not drink water she would go in about 20 minutes. Tr. 51. Plaintiff stated that over a two-hour period, even if she did not drink water, she would have to go to the bathroom six times. Id. Plaintiff testified that she has headaches "all the time" and has them almost every day. Tr. 52. She stated that the medicine does not help, and it puts her to sleep. Id.
In response to questions from her attorney Plaintiff testified that she can comfortably lift about ten pounds. Tr. 52. Plaintiff stated that she does not walk at the same speed as she used to and has to take medicine for the pain. Tr. 53. Plaintiff affirmed that she has problems going up and down steps. Id. She also affirmed that when she worked as a weaver she had to constantly go up and down a high step as she went from machine to machine and that caused her knees to hurt more over the long run. Id. Plaintiff testified that her knees hurt all the time. Id. Plaintiff stated that she lived in a one-story house with her husband and son who did most of the household chores. Tr. 53-54. Plaintiff stated that her son is 36 years old. Tr. 54. Plaintiff stated that she does light cooking, and her husband and son do the sweeping, vacuuming, and mopping. Id. Plaintiff testified that she spends most of her time during the day on her recliner and changes positions to get comfortable. Id. Plaintiff testified that she has problems with her right leg going numb. Tr. 55. She also testified that dizziness is a side effect of the medication for her painful bladder syndrome and her headaches also cause dizziness. Id. Plaintiff confirmed that she has a driver's license and drives only if she has to for a short period of time. Tr. 55-56. Plaintiff indicated that her husband drove her to the hearing. Tr. 56. Plaintiff confirmed that she is able to take care of her personal needs such as bathing and clothing herself. Id. Plaintiff testified that it was hoped that her bypass surgery would help with her acid reflux problems, but it did not. Id. Plaintiff confirmed that she had gastric bypass surgery in 2016 to try to lose weight to help with her back and knee pain, but it did not help. Id. Plaintiff stated that before the surgery she weighed about 200 pounds, but she now weighs about 159/160 and is 5'2" tall. Tr. 57. Plaintiff testified that it is hard for her to concentrate because she has "a lot of stress by not being able to do things that [she] used to because [she] was a person who liked to do working and . . . be busy all the time." Id. Plaintiff stated that she feels frustrated because she watches older people walking around the park and she cannot do those things anymore. Id.
After taking testimony from the VE, the ALJ asked Plaintiff some additional questions. Tr. 62. Plaintiff testified that she was taking medication for painful bladder syndrome and urinary frequency but it was not working and made her feel dizzy. Id. Plaintiff stated that a doctor from Good Samaritan prescribed the medication and, when she told him about the side effects, he recommended she see a pain specialist. Tr. 63. She testified that she cannot, however, be referred to a doctor because she does not have insurance. Id. Plaintiff testified that she cannot sleep at night for "two straight hours" because she is awakened by the pain from her back, hips, and headaches. Id. Plaintiff stated that she tries to nap during the day to make up for the lost sleep at night. Id. Plaintiff confirmed that she takes 20-minute naps throughout the day. Tr. 64.
2. VE's Testimony
The ALJ asked the VE to classify Plaintiff's PRW. Tr. 58. The VE classified the jobs as follows: hospital housekeeper, medium work, unskilled, SVP 2, Dictionary of Occupational Titles ("DOT") code 381.687-018; and weaver, medium work, skilled, SVP 5, DOT code 683.682-034. Id. The VE noted there were no transferrable skills from the weaver job. Id.
The ALJ asked the VE to assume a hypothetical individual of the same age, education, and work background as Plaintiff, with the ability to perform a reduced range of light work with the following limitations:
[T]he individual could only occasionally stoop, kneel, crouch, crawl, balance, and climb ramps and stairs. This individual would be precluded from climbing ropes, ladders, or high scaffolding, and from working at unprotected heights. This
individual could occasionally push and pull leg controls or operate foot pedals. This individual could perform simple routine repetitive tasks. This individual, during the workday, would need one or two five-minute breaks in addition to the regularly schedule[d] breaks which should be 15 minutes in the morning, and 15 minutes in the afternoon, and a meal period typically lasting 30 minutes to one hour.Tr. 59. The ALJ asked the VE if this individual could perform Plaintiff's past work. Id. The VE responded in the negative but identified other occupations in the national economy that the individual could perform including courier, light work, unskilled, SVP 2, DOT code 230.663-010, approximately 31,000 jobs; vending machine attendant, light work, unskilled, SVP 2, DOT code 319.464-014, approximately 35,000 jobs; and shipping and receiving weigher, light work, unskilled, SVP 2, DOT code 222.387-074, approximately 30,000 jobs. Tr. 59-60.
In her second hypothetical the ALJ asked the VE to assume the same individual as in the first hypothetical with the additional limitation that the person "would need to be able to change positions from sitting to standing and walking, or vice versa, every 60 minutes for at least five minutes before returning to the original position, work could continue through the position change, and the individual could remain in the work station." Tr. 60. The VE testified that the three jobs he identified would still be available. Id.
For her third hypothetical the ALJ asked the VE to consider the individual in the second hypothetical and add that the person "would need to be able to take a restroom break for five minutes at least four times per day, and this would be in addition to your regularly scheduled breaks of 15 minutes in the morning, 15 minutes in the afternoon, and your regularly scheduled meal period lasting for approximately 30 minutes to one hour in the workday." Id. The VE testified that he could not identify any available positions as it would result in "[t]oo much time away from work." Tr. 61. The VE noted that the DOT does not address issues such as extended or additional break times, sit/stand options, or positional changes "so all of those variances to the normal light work would be based on [his] training and experience." Tr. 61.
The ALJ posed a fourth hypothetical that eliminated the position change from the third hypothetical with everything else remaining the same. Tr. 61. The ALJ confirmed that it would still include four breaks per day in addition to the regularly scheduled breaks. Tr. 62. The VE opined that is still too much time away from the job so there would be no jobs available. Id.
Plaintiff's counsel asked the VE to consider the first hypothetical with the additional limitation that because of an inability to concentrate the individual would be off-task more than 20% throughout the day. Tr. 64. The VE testified that would eliminate competitive employment. Id. Counsel asked the VE how his answer would be affected if the individual in the first hypothetical would miss two or more days a month from work due to medical conditions. Id. The VE stated that if the absences went on for three consecutive months it would lead to termination for "too much absenteeism." Tr. 65. II. Discussion
A. The ALJ's Findings
In her April 25, 2018 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2016.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of May 19, 2014 through her date last insured of September 30, 2016 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the lumbar spine; foraminal stenosis of the lumbar spine; painful bladder syndrome; degenerative joint disease of the bilateral knees;
post-concussion syndrome; headaches; and obesity (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally stoop, kneel, crouch, crawl, balance and climb ramps and stairs; no climbing of ropes, ladders, and scaffolds and no work at unprotected heights; can occasionally push and pull leg controls or operate foot pedals; can perform simple, routine tasks; will require one to two extra restroom breaks per day lasting 5 minutes. These restroom breaks will be in addition to the 2 15-minute breaks typically occurring in the morning and afternoon and a meal period lasting 30 minutes to 1 hour.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on May 6, 1965 and was 51 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from May 19, 2014, the alleged
onset date, through September 30, 2016, the date last insured (20 CFR 404.1520(g)).Tr. 28-29, 32-34.
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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," defined as:
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 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if s/he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing an inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that s/he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff alleges that the ALJ's residual functional capacity ("RFC") assessment "failed to include significant limitations resulting from [Plaintiff's] painful bladder syndrome and failed to provide an adequate discussion rejecting those limitations." Pl.'s Br. 2, ECF No. 14. The Commissioner submits that substantial evidence supports the ALJ's finding that "Plaintiff was not disabled at any time from her alleged onset of disability on May 19, 2014, through the expiration of her insured states on September 30, 2016." Def.'s Br. 1, ECF No. 17.
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4).
Here, the ALJ determined that Plaintiff "had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)" with additional limitations including that Plaintiff "will require one to two extra restroom breaks per day lasting 5 minutes. These restroom breaks will be in addition to the 2 15-minute breaks typically occurring in the morning and afternoon and a meal period lasting 30 minutes to 1 hour." Tr. 29. Plaintiff asserts that remand is required because the ALJ failed "to adequately consider limitations from [her] severe, painful bladder syndrome." Pl.'s Br. 18. Plaintiff argues that "the ALJ failed to provide an explanation for why [s]he determined that [Plaintiff] required only 1-2 additional restroom breaks per day in addition to typical workday breaks." Id. at 18-19. Plaintiff contends this error is not harmless because "based on the VE testimony, uncontested limitations related to [Plaintiff's] severe painful bladder syndrome would certainly affect [her] ability to work." Id. at 19. The Commissioner submits that substantial evidence supports the ALJ's RFC assessment and in evaluating Plaintiff's RFC the ALJ "adequately considered Plaintiff's painful bladder syndrome and explained her findings in a manner that permits meaningful judicial review." Def.'s Br. 8.
The ALJ stated that in making her RFC finding she "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 16-3p." Tr. 29. She also noted that she considered the opinion evidence in accordance with the requirements of 20 CFR 404.1527. Id. The ALJ cited to Plaintiff's hearing testimony regarding her painful bladder syndrome and need to use the restroom multiple times in a two-hour period. Tr. 30. The ALJ found that "claimant alleges ongoing, debilitating symptoms; however, the medical evidence of record does not support the claimant's symptoms as alleged." Id. The ALJ discussed Plaintiff's medical records related to her knees, spine, and hips including x-ray and MRI results with normal findings. Tr. 30-31. The ALJ also addressed Plaintiff's facial injury and headaches and how she addressed it in her RFC. Tr. 31. As for Plaintiff's allegations of urinary frequency and painful bladder syndrome the ALJ made several observations based on the record evidence. Id. The first record cited by the ALJ is Exhibit 21F.
Exhibit 21F contains the records of Dr. Elizabeth W. Bozeman from the Urology Center of Spartanburg including an initial consultation on August 31, 2011, Tr. 738-39, bladder biopsy on April 16, 2012, Tr. 736, and follow-up office visit on May 9, 2012, Tr. 732-33. In the initial consultation with Dr. Bozeman, Plaintiff reported urinary frequency "about every 1-2 hours and if she drinks anything she goes as often as every thirty minutes." Tr. 738. She also reported that she was "getting up three and four times a night." Id. Dr. Bozeman suspected interstitial cystitis and planned to do a hydrodistention to determine if that was an intraluminal bladder injury. Tr. 739. Dr. Bozeman performed the procedure on April 16, 2012 and noted that Plaintiff had a bladder capacity of 500cc. Tr. 736. She noted "a great deal of petechiae along the bladder base. There were only a scattered few on the anterior wall and dome consistent with the diagnosis of mild interstitial cystitis." Id. Dr. Bozeman also took two biopsies from Plaintiff's bladder. Id. On May 9, 2012, Plaintiff followed up with Dr. Bozeman and complained that she was "'still hurting.'" Tr. 732. The doctor reviewed with Plaintiff medical records from a prior procedure done in 2009 at Greenville Memorial that resulted in a tear to her colon and an incision of her bladder that were repaired during the procedure. Id. Dr. Bozeman explained to Plaintiff that there can sometimes be "interstitial cystitis after bladder trauma but that there was noting done wrong by her surgeon, and the recognition of the injury and subsequent repair were the correct things to do." Id. Dr. Bozeman prescribed medication and provided Plaintiff with literature and instructions to visit a website for further information. Tr. 732-33.
The ALJ noted that Plaintiff "does not see a doctor for painful bladder syndrome and has medications prescribed to help with urinary frequency (Exhibit 21F)." Tr. 31. The Commissioner argues that here the ALJ was noting that Plaintiff "did not see a doctor for this condition during the relevant period, suggesting that it was not as severe as she claimed (Tr. 31, citing Exhibit 21F, showing that Plaintiff was last treated for painful bladder syndrome in 2012)." Def.'s Br. 8. It is unclear if the ALJ is citing Exhibit 21F for both statements as it is obvious that Plaintiff was seeing Dr. Bozeman for her painful bladder syndrome. However, the undersigned finds any error to be harmless as this was prior to Plaintiff's alleged onset date of May 19, 2014 and Plaintiff continued to work for two years after her interaction with Dr. Bozeman. See Tanner v. Comm'r of Soc. Sec., 602 F. App'x. 95, 101 (4th Cir. 2015) (concluding, in spite of ALJ's error, reversal not warranted where it was "highly unlikely, given the medical evidence of record, that a remand to the agency would change the Commissioner's finding of nondisability").
Next the ALJ noted that "[r]ecords from September 2015 reveal the claimant's reports of UTI-like symptoms and that the claimant was using AZO standard to relieve her symptoms (Exhibit 1F)." Tr. 31. Exhibit 1F contains Progress Notes from Dr. Lester Salwen of Greenville Health System Gastroenterology who was seeing Plaintiff for issues related to gastroesophageal reflux disease ("GERD"). Tr. 297-448. In an October 3, 2014 Progress Note Plaintiff denied incontinence, Tr. 308, and Dr. Salwen noted as part of his "Review of Systems" that Plaintiff had no urinary frequency, no painful urination, no blood in urine, no urine incontinence, and no recurrent UTIs, Tr. 309. On December 1, 2014 Plaintiff indicated that she was "frequently awakened between 2 and 3 AM with epigastric discomfort." Tr. 301. Dr. Salwen again indicated that Plaintiff had no urinary frequency, no painful urination, no blood in urine, no urine incontinence, and no recurrent UTIs. Tr. 302. At a September 18, 2015 office visit a physician's assistant noted: "Incidentally she also reports recurring UTIs type symptoms. She uses AZO standard, which tends to relieve her symptoms. She denies any current symptoms and has not followed up with her primary care about these." Tr. 331. These records reflect that Plaintiff was not having significant symptoms during the relevant period and over-the-counter medication was helping her. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (upholding ALJ's comparison between claimant's level of treatment and her claims of disabling pain in disability); Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) ("If a symptom can be reasonably controlled by medication or treatment, it is not disabling.").
The undersigned has reviewed records in Exhibit 1F and notes that they contain many duplicates of the same Progress Notes.
Finally, the ALJ cited to Plaintiff's testimony that she was "only able to sleep for 2 hours because of musculoskeletal pain." Tr. 31. The ALJ also noted that Plaintiff "did not allege inability to sleep secondary to urinary frequency (Exhibit 26F)." Id. Exhibit 26F contains office visit records from Samaritan Health Clinic of Pickens County. Tr. 867-73. The undersigned notes that these records are after Plaintiff's date last insured of September 30, 2016. Plaintiff was seen at the clinic on November 9, 2017 complaining of painful intercourse from her painful bladder syndrome. Tr. 872. Plaintiff indicated that she has "been on AZO but says it does not help. She has sensation of need to urinate a lot and urgency." Id. Plaintiff was told that she probably needed to see a urologist but the clinic did not have one to refer. She was prescribed Detrol LA 4mg. Id. Plaintiff also complained of acid reflux and problems with her knees, hips, lower back and headaches. Id. Plaintiff returned to the clinic on November 15, 2017 complaining of worsening problems with her bowels; lab results indicated that her liver enzymes were mildly elevated. Tr. 870. On December 20, 2017 Plaintiff was informed that the ultrasound of her liver was normal. Tr. 867. Plaintiff requested a referral to a pain management doctor but was told that they did not take referrals from the clinic. Id. As noted by the ALJ, Plaintiff did not inform doctors at the clinic that her sleep was disrupted due to the need to urinate.
After her citations to the record the ALJ concluded: "As such, I find the claimant will require 1 to 2 extra restroom breaks per day lasting 5 minutes as reflected in the residual functional capacity." Tr. 31. Plaintiff argues that, after finding her painful bladder syndrome to be a severe impairment and considering her testimony, the ALJ "failed to provide an explanation for why [s]he determined that [Plaintiff] required only 1-2 additional restroom breaks per day in addition to typical workday breaks. There was no evidence showing her frequency equaled only 1-2 additional restroom breaks per day." Pl.'s Br. 18-19. The Commissioner asserts that the ALJ "fully considered Plaintiff's painful bladder syndrome throughout the sequential evaluation process and explained how she factored it into her decision-making. The ALJ acknowledged Plaintiff's subjective complaints of disabling limitations due to this condition, but explained that she did not fully credit those complaints because they were inconsistent with the objective medical evidence demonstrating fewer limitations." Def.'s Br. 10. The undersigned agrees. The ALJ explained why she made her RFC determination in light of Plaintiff's impairments. While the evidence suggests that Plaintiff has dealt with bladder issues for years, it is not the role of the court to determine whether she has the RFC to perform light work. The role of the court is to determine whether substantial evidence supports the ALJ's findings. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984).
The ALJ also discussed the medical opinion evidence related to Plaintiff's painful bladder syndrome including the opinion of Dr. Nathan Eshenroder and the opinions of the State agency consultants. Tr. 31-32. Dr. Eshenroder conducted a Comprehensive Medical Exam of Plaintiff on December 21, 2015 to provide information to the State Disability Office for making a disability determination. Tr. 490. Dr. Eshenroder noted that Plaintiff had a history of painful bladder syndrome but that she did not have money to see a doctor. Id. Plaintiff reported "some urinary incontinence, some dysuria [painful urination], and nausea." Tr. 490-91. In his summary opinion Dr. Eshenroder addressed Plaintiff's back and knee problems, and noted that "[a]s far as her other medical problems, they appear at this time to be relatively stable and not inhibiting her functional capacity." Tr. 492. The ALJ determined that Plaintiff had "more limitations than opined based on the totality of the medical evidence." Tr. 32. The ALJ concluded that based on Plaintiff's need for frequent bathroom breaks she would require more breaks at work and limited her "as reflected in the residual functional capacity." Id. The ALJ considered the opinions of the State agency consultants who limited Plaintiff to light work with some limitations on postural activities. Id. The ALJ again found that the totality of the medical evidence supported greater restrictions including the need for "additional breaks due to her painful bladder syndrome." Id.
Plaintiff argues that the ALJ failed to include "significant limitations" in her RFC resulting from Plaintiff's painful bladder syndrome. Pl.'s Br. 17. It is a claimant's burden to present evidence of his or her disability. 42 U.S.C. § 423(d)(5)(A) ("An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require."); 20 C.F.R. § 404.1512(a) (generally setting forth a claimant's burden to produce evidence of a disabling impairment and the Agency's right to deny a claim for lack of evidence). Here, no physician opined that Plaintiff required limitations as a result of her painful bladder syndrome or that she would require a particular number of bathroom breaks. Plaintiff does not identify a physician that found Plaintiff to be disabled because of frequent urination or that she needed greater work-related limitations than those identified by the ALJ and the record does not include medical evidence that is consistent with totally disabling symptomatology prior to the expiration of Plaintiff's insured status.
Plaintiff cites to the VE's testimony that all jobs would be eliminated if she needed to take a restroom break for 5 minutes at least 4 times per day in addition to regularly scheduled breaks. Pl.'s Br. 19. At the administrative hearing the ALJ posed four different hypotheticals to the VE. Her first hypothetical included the limitation of one-to-two five-minute breaks in addition to regularly scheduled breaks. Tr. 59. The VE identified three jobs that the individual could perform. Tr. 59-60. In her second hypothetical the ALJ added a limitation that the individual would need to be able to change positions every hour, and the VE opined that the individual would be able to perform the previously cited jobs. Tr. 60. Under her third hypothetical the ALJ modified the hypothetical to include the limitation of a five-minute restroom break at least four times per day in addition to regularly scheduled breaks along with the need to change positions. Tr. 60-61. The fourth hypothetical eliminated the position change. Tr. 61. The VE testified that under both scenarios the limitations would result in too much time away from work and there would be no jobs the individual could perform. Tr. 61-62.
"The purpose of bringing in 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 v. Bowen, 889 F.2d at 50. "[R]equiring the testimony of a vocational expert is discretionary[,]" Hall v. Harris, 658 F.2d 260, 267 (4th Cir. 1981), and an ALJ is afforded "great latitude in posing hypothetical questions[,]" Koonce v. Apfel, 1999 WL 7864, at *5. While questions posed to the vocational expert must fairly set out all of the claimant's impairments, the questions need only reflect those impairments supported by the record. Russell v. Barnhart, 58 F. App'x 25, 30 (4th Cir. 2003) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). However, the ALJ is not obligated to accept or rely on the VE's testimony in response to limitations that are not supported by the record. Youkers v. Colvin, 2014 WL 906484, at *11 (S.D. W. Va. Mar. 7, 2014). Here, in making her RFC determination, the ALJ opted for the limitations outlined in her first hypothetical. Remand is not required based on the VE's testimony. Mickles v. Shalala, 29 F.3d at 929 n.7 (concluding that the hypothetical presented to the VE need only include the impairments and limitations that the ALJ finds credible).
The ALJ has the duty to weigh the evidence, resolve material conflicts in the record, and decide the case accordingly. See Richardson v. Perales, 402 U.S. at 399. The ALJ met her statutory and regulatory obligation to assess all of the evidence in the record. This court may not reweigh the evidence or substitute its own judgment for the Commissioner's, even if it finds the evidence is susceptible to more than one rational interpretation. See Hays, 907 F.2d at 1456. Here, the ALJ considered the entire record, and substantial evidence supports her RFC determination. The ALJ's analysis of the evidence provides a logical bridge between the evidence and her RFC findings. Bennett v. Astrue, No. 1:10-CV-1931-RMG, 2011 WL 2470070, at *3 (finding the ALJ's RFC assessment consistent with the regulations and "that the ALJ's opinion sufficiently explained how he determined Plaintiff's RFC . . . ."). Therefore, the undersigned recommends a finding that the ALJ did not fail to assess Plaintiff's RFC to such an extent that it would require remand. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the undersigned finds that the Commissioner performed an adequate review of the whole record evidence and that the decision is supported by substantial evidence.
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under the Act, it is recommended that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED. September 24, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge