Phillips v. Berryhill

Full title: Melissa Phillips, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social…

Court: DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

Date published: Dec 7, 2018

Civil Action No. 8:17-cv-02423-MGL-JDA (D.S.C. Dec. 7, 2018)

Opinion

Civil Action No. 8:17-cv-02423-MGL-JDA

12-07-2018

Melissa Phillips, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.

Jacquelyn D. Austin United States Magistrate Judge

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636.¹ Plaintiff 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 Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for supplemental security income ("SSI").² For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.

1 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.

2 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 June 2014, Plaintiff protectively filed an application for SSI, alleging an onset of disability beginning December 1, 2012. [R. 192-201.] Plaintiff later amended her alleged onset date to January 1, 2014. [R. 43, 210.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 78-93; 121-124.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on August 10, 2016, ALJ Thaddeus J. Hess conducted a de novo hearing on Plaintiff's claims. [R. 37-77.]

The ALJ issued a decision on October 13, 2016, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 17-29.] At Step 1,³ the ALJ found Plaintiff had not engaged in substantial gainful activity since June 17, 2014, the application date. [R. 19, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: diabetes mellitus with neuropathy; osteoarthritis, avascular necrosis, and other conditions of the bilateral knees (hereinafter "the bilateral knee impairment"); hypertension; and gout. [R. 19, Finding 2.] The ALJ also noted that Plaintiff had numerous non-severe impairments, including:

3 The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.

abscess and cellulitis; impetigo; skin lesions; psoriasis; gastroenteritis; a headache disorder; history of contusions; influenza; hypokalemia; hyperkalemia; thrush; arthritis save as noted above; osteochondroma; lumbar spondylosis; atherosclerotic calcifications; obstructive uropathy; MRSA bacteremia; hypomagnesia; ureteral calculi with hydronephrosis; renal calcifications, stones, and cysts; renal insufficiency; fatty infiltration of the liver; sigmoid diverticulosis; hepatomegaly; mitral valve regurgitation; aortosclerosis; leukocytosis; osteoporosis; tobacco use disorder; polysubstance abuse; history of syncope and collapse; history of transient ischemic attack; stenosis of the A 1 segment; sinus tachycardia; Bell's palsy; chronic pancreatitis; reflux esophagitis; gastritis; chronic carditis; peptic ulcer disease; acute kidney injury; candidiasis; urinary tract infection; hyponatremia; conjunctivitis; hypomagnesemia; hypophosphatemia; hypochloremia; chronic diarrhea/irritable

bowel syndrome; tobacco dependence; hemipelvic calcifications; nephrocalcinosis; UVJ calculus; hypertriglyceridemia; and hyperlipidemia.

[R. 20.] The ALJ also noted that Plaintiff complained of chronic pain syndrome, hepatitis, and temporomandibular joint dysfunction, but found that Plaintiff had never been diagnosed by an acceptable medical source based on acceptable objective evidence and concluded that these impairments were therefore not medically determinable. [Id.] The ALJ also found that Plaintiff's medically determinable mental impairment of anxiety did not cause more than minimal limitations in her ability to perform basic mental work activities and was, therefore, non-severe. [Id.]

At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R Part 404, Subpart P, Appendix 1. [R. 21, Finding 3.] Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):

[C]laimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a), and in particular can lift and carry 10 pounds occasionally and 5 pounds frequently, can stand and walk two hours of an 8-hour workday, and can sit 6 hours of an 8-hour workday, with the following additional limitations. She can occasionally operate foot controls. She can never climb a ladder, rope, or scaffold. She can occasionally climb a ramp or stairs, balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to workplace hazards such as unprotected heights and moving machinery, and to extreme cold and extreme heat. She is limited to occasional far visual acuity.

[R. 22, Finding 4.]

At Step 4, the ALJ determined that Plaintiff is capable of performing her past relevant work as a time keeper, noting that such work does not require the performance of work-related activities precluded by Plaintiff's RFC. [R. 27, Finding 5.] Alternatively, the ALJ determined that, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform such as front desk receptionist/appointment clerk, cashier, and a general office clerk. [R. 27-28.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Act, since June 17, 2014, the date the application was filed. [R. 29, Finding 6.]

Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-5.] Plaintiff filed this action for judicial review on September 11, 2017. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends that the ALJ's decision is not supported by substantial evidence and should be remanded for further administrative proceedings. [Doc. 19 at 22, 32.] Specifically, Plaintiff alleges the ALJ failed to properly weigh the opinion of Plaintiff's treating neurologist⁴ [id. at 22-27] and failed to properly assess Plaintiff's credibility [id. at 27-29]. Plaintiff also contends the Appeals Council failed to consider new and material evidence in declining to review the ALJ's decision. [Id. at 29-32.]

4 In her brief, Plaintiff identifies her treating neurologist interchangeably as "Dr. Dyer" and "Dr. Phillips." [Doc. 19 at 22.] The Court finds no opinion from Dr. Dyer in the record, and it appears that reference to Dr. Dryer is a misstatement. Therefore, the Court will direct its consideration to Dr. Phillips' opinion, which is contained in the record.

The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence in the record and should therefore be affirmed. [Doc. 21.] The Commissioner contends the ALJ provided clear and well-founded reasons for giving little weight to the medical opinions of Dr. Phillips [id. at 17-25] and followed the law and regulations when assessing Plaintiff's credibility [id. at 25-27]. The Commissioner also argues the Appeals Council properly found that the new evidence presented by Plaintiff did not support remand of this matter. [Id. at 27-32.]

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).⁵ 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).

5 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. § 416.920. 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. § 416.920(a)(4); 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. § 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 416.972(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. § 416.974-.975.

B. Severe Impairment

An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 416.921. 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), 1382c(a)(3)(G). 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), 1382c(a)(3)(G).

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. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience.⁶ 20 C.F.R. § 416.920(a)(4)(iii), (d).

6 The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.

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 capacity⁷ 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. § 416.960(b).

7 Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 416.945(a)(1).

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 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). 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.⁸ 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); 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. § 416.969a; 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).

8 An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(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. § 416.969a(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. § 416.927(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. § 416.927(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. § 416.927(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. § 416.927(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. § 416.917; 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. § 416.917. 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." 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).

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. § 416.928 (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

Residual Functional Capacity

Plaintiff argues the ALJ's decision failed to "show adequate consideration of Dr. Phillips' specialty as a treating specialist," improperly found that Dr. Phillips' opinion did not "'explain why a restriction to sedentary work would not suffice to accommodate [her] limitations,'" and improperly found that there was "'no support in the record for Dr. Phillips' statements as to problems with concentration and attention.'" [Doc. 19 at 25-26.] By arguing that the ALJ failed to properly weigh the medical opinions of her treating physician, Dr. Phillips, and failed to properly consider the credibility of her complaints, the Plaintiff is challenging the sufficiency of the ALJ's RFC determination. Buie v. Colvin, No. 1:15-cv-762, 2016 WL 5415757, at *3 (M.D.N.C. Sept. 28, 2016). Accordingly, the Court will analyze Plaintiff's challenge to the ALJ's decision by reviewing whether the RFC findings are supported by substantial evidence. Id.

Relevant Medical Evidence from the Record

Plaintiff's Testimony Regarding Limitations

Plaintiff testified that she can only walk comfortably for about fifteen to twenty minutes on level ground before she experiences pain and swelling in her knees. [R. 52.] Plaintiff testified the she puts ice on her knees and elevates her knees for about thirty minutes to help with the swelling. [Id.] Plaintiff testified that she visits Dr. Phillips about once every three months to get cortisone shots and to have fluid drawn from her knee. [R. 53.] Plaintiff testified that she cannot sleep because of her knee pain. [R. 55-56.] Plaintiff rated her knee pain during the hearing at a seven out of ten, with medication. [R. 56.] Plaintiff stated that she did not have any good days with regard to her pain and that her pain medications do not help because she has become immune to them. [Id.] Plaintiff testified that she does dishes and helps her mom with cooking, but that she does not do her own laundry or anything else. [R. 58.] Plaintiff testified that she surrendered her driver's license because she cannot see well, but stated that she has not had her eyes tested and cannot afford glasses or contacts. [R. 59.] Plaintiff testified that she either sits at home, or she sits at her brother's house for a couple days when she is tired of sitting at home. [R. 60.] Plaintiff testified that she could perform a sit-down job, like her previous timekeeping job, where she was seated most of the time and did not have to lift a lot, as long as the gout in her left hand was not acting up. [R. 62.] Plaintiff also indicated that her education prevented her from finding a job. [R. 63.] Plaintiff's counsel confirmed that Plaintiff did not need an assistive device to ambulate, except for after surgeries. [R. 66.]

Dr . Frank F. Phillips' Treatment Notes and Opinions

On July 8, 2014, Plaintiff was seen by Dr. Phillips of Novant Health Gaffney Bone and Joint with complaints of right knee pain which Plaintiff had been experiencing for a couple years with no injuries. [R. 1559.] Treatment notes indicate the presence of swelling, and Plaintiff noted her symptoms included crepitus sensation, giving out, locking, stiffness, and swelling. [Id.] Plaintiff's evaluations up to that date included plain films; abnormal bone infarcts and MRI; bone infarcts and meniscal tear. [Id.] On examination, Plaintiff's knee showed severe swelling, effusion, and diffuse and moderate tenderness. [R. 1560.] Plaintiff was assessed with effusion of the right knee, degenerative arthritis of the right knee, right knee pain, and mass of right knee. [Id.] Dr. Phillips discussed with Plaintiff the practicality and necessity of physical therapy and the intermittent use of ice after therapy. [Id.] Dr. Phillips recommended an intra-articular steroid injection, given the continued right knee pain with activity and rest. [Id.] Dr. Phillips noted that, if relief from the injection lasts less than three months, he would consider visco-supplementation injections if no swelling occurs and possible surgery if swelling persisted. [R. 1561.]

On August 6, 2014, Plaintiff was seen by Dr. Phillips to have fluid drawn from her knee, which was causing knee pain and swelling. [R. 1553.] Treatment notes indicate Plaintiff had a history of left knee pain secondary to degenerative joint disease ("DJD") with multiple bone infarcts. [Id.] Plaintiff was assessed with effusion of the right knee, degenerative arthritis of the right knee and internal derangement of the right knee. [R. 1554.] Plaintiff was scheduled for surgery on August 12, 2014. [R. 1556.]

On August 26, 2014, Plaintiff was seen for a recheck of her right knee, after having a knee scope on August 12, 2014, complaining that her knee was about the same. [R. 1591.] According to treatment notes, Plaintiff returned two weeks after her right knee arthroscopy with extensive debridement of arthritic changes and severe pain. [Id.] Plaintiff's gait was noted to be antalgic without assistive devices; tenderness which was moderate and maximal at MJL; and crepitus with motion. [Id.] Plaintiff was assessed with effusion of the right knee, degenerative arthritis of the right knee, and S/P right knee arthroscopy. [Id.] Fluid was aspirated from Plaintiff's knee and Dr. Phillips again discussed the need for physical therapy, intermittent use of ice wraps, and judicious use of pain medications. [Id.]

On December 16, 2014, Plaintiff was seen for a recheck on her left knee after her December 4, 2014, left knee anthroscopy with medial meniscus tear, chondroplasty MFC and MPT, and she reported that her knee did not feel any better and that her pain was severe on the right but moderate on the left. [R. 1710.] Plaintiff's gait was noted to be antalgic without assistive devices, and tenderness was noted to be mild. [Id.] Plaintiff was advised to intermittently use ice wraps and to judiciously use pain medications. [Id.]

On December 29, 2014, Plaintiff was seen for a recheck on her left knee after her December 4, 2014, surgery and reported that her knee was "extremely painful" and had gotten worse after her last visit. [R. 1708.] Plaintiff's gait was antalgic without assistive devices, and her tenderness was noted to be severe. [Id.] Dr. Phillips aspirated Plaintiff's knee through the superolateral portal, and Plaintiff was directed to use ice wraps and to judiciously use pain medications with activity as tolerated. [Id.]

On January 5, 2015, Plaintiff was seen for a recheck on her left knee after undergoing a scope with debridement on December 4, 2014, as she was still experiencing pain with moderate swelling and unable to bend her knee. [R. 1706.] Plaintiff's gait was noted to be antalgic with assistive devices, and she had moderate tenderness. [Id.] Plaintiff was continued on pain medications and told to ice and wrap her knee as much as possible. [R. 1707.]

On January 16, 2015, Plaintiff was seen for a followup on her left knee, and she complained that her knee was very painful and getting worse. [R. 1703.] Plaintiff returned to Dr. Phillips six weeks after her left knee arthroscopy with extensive chodroplasty and, while she had no complaints of numbness or tingling, her pain was still severe. [Id.] On examination, Plaintiff's gait was described as antalgic with assistive devices, and she had moderate tenderness in her left knee. [Id.] Dr. Phillips aspirated the left knee joint and gave Plaintiff an intra-articular steroid injection given the level of knee pain with activity and rest. [Id.]

Also, on January 16, 2015, Dr. Phillips wrote a letter to "To Whom It May Concern," opining that Plaintiff "has severe arthritis in each knee due to avascular necrosis in the knees." [R. 1680.] Dr. Phillips also opined that Plaintiff "is unable to ambulate without sever [sic] pain and her pain is distracting enough to prevent any gainful employment." [Id.]

Treatment notes from Dr. Phillips dated February 13, 2015, indicate that Plaintiff was seen at and admitted to Mary Black Hospital with complaints of severe bi-lateral knee pain and that she had taken more Percoset than was originally prescribed. [R. 1698.] Plaintiff was seen by Dr. Rollins while at Mary Black, and he agreed that she needed knee replacement. [Id.] X-rays and MRI reports from Mary Black demonstrated osteonecrosis, and the impression was bilateral knee pain secondary to DJD, secondary to osteonecrosis. [Id.] Dr. Phillips counseled Plaintiff on her use of pain medications and advised that taking pain pills more than prescribed will result in discontinuing the use of pain medications. [Id.]

On the same day, February 13, 2015, Dr. Phillips responded to a number of questions posed to him in a questionnaire as follows:

1. On an 8 hour day, 5 day per week basis, can Plaintiff engage in anything more than sedentary work [sedentary defined]?

• Dr. Phillips provided no response.

2. If Plaintiff attempted to work on an 8 hour day, 5 day per week basis, would she most probably have to rest away from the work station for significantly more than an hour during th working portion of the work day?

• Dr. Phillips responded "yes."

3. If Plaintiff attempted to work on an 8 hour day, 5 day per week basis, would she most probably have to elevate the legs above the waist for significantly more than an hour during the working portion of the day?

• Dr. Phillips responded "yes."

4 If Plaintiff attempted to work on an 8 hour day, 5 day per week basis, is it most probable that Plaintiff would have problems with attention to and concentration sufficiently to frequently interrupt tasks during the working portion of the work day?

• Dr. Phillips responded "yes."

5. What are the diagnoses that underlie the above impairments?

• Dr. Phillips responded "she has had MRI's and x-rays as well as arthroscopy showing disease. "

5. What was the earliest date that you are sure that [] was so disabled?

• Dr. Phillips responded "July 2014," based on his records.

[R. 1699.]

Treatment notes dated March 12, 2015, indicate that Plaintiff was seen for a recheck on her left knee stating that her knee was not any better, was still locking up, and that she had been trying to walk without her crutches. [R. 1700.] The notes indicate that Plaintiff complained of aching and moderate pain in her bilateral knees, with slight improvement in pain three months out from knee scope. [R. 1701.] On physical exam, Plaintiff had normal gait with no limp. [R. 1702.] Plaintiff had diffuse tenderness bilaterally; her active range of motion was normal with pain at extreme limits of range bilaterally; Apleys compression tests were positive and McMurray's tests were negative bilaterally; and Plaintiff exhibited weakness in the hamstrings and quadriceps bilaterally. [Id.]

On June 11, 2015, Plaintiff was seen with complaints of bilateral knee pain, worse on the left, and osteonecrosis due to previous trauma. [R. 1905.] Plaintiff also had a recent increase of swelling in her right knee, she described popping and catching in her knees, and she had to ambulate with a stiff knee on the left. [R. 1906.] Plaintiff had normal gait and no limp. [R. 1907.] On examination, Plaintiff had diffuse tenderness bilaterally; her active range of motion was normal with pain at extreme limits of range bilaterally; Apleys compression tests were positive bilaterally; and Plaintiff exhibited weakness in the hamstrings and quadriceps bilaterally. [Id.] Plaintiff's right knee was aspirated and she was given an injection of Xylocaine and Depo-Medrol. [Id.]

On August 18, 2015, counsel for Plaintiff sent Dr. Phillips a drafted a statement, intending to set out his opinion along with a basis, for his review and signature. [R. 1719.] Dr. Phillips signed the drafted statement on August 18, 2015, providing as follows:

I have treated [Plaintiff] for her knee pain since July 2014. I last time I saw her was on 6/11/15. Her knee is in terrible shape. She is in dire need of knee replacement in the left knee and eventually in the other knee as well. She would have constant pain that would cause her frequent interruptions to concentration. I am basing this conclusion on the fact that radiographic evidence shows she has osteonecrosis in both knees. She would be very limited in her ability to walk. She would have difficulty performing even the minimal amount of walking necessary to perform even a sedentary job without experiencing severe pain. It would be appropriate for her to use a walker. Due to the swelling in her knees, she would need to rest away from the work station with her legs elevated for most of the work day. We performed surgery on her knee, but that provided her with only minimal short term improvement. She cannot have a knee replacement at this time for financial reasons. I am basing my conclusions on the radiographic evidence of necrosis and primarily on my observations of her knee during surgery. I observed she has advanced articular damage. She has had the limitations I described at least throughout the time period I have treated her but probably at some point before that as well.

[R. 1720.]

On August 24, 2015, Plaintiff was seen for a recheck for her left knee, which she stated was no better, and she stated her right knee was also extremely painful. [R. 1909.] Plaintiff had more swelling on her right knee and her pain was moderate to severe even with minimal activity. [R. 1910.] Plaintiff had normal gait and no limp. [R. 1911.] On examination, Plaintiff had diffuse tenderness bilaterally; her active range of motion was normal with pain at extreme limits of range bilaterally; Apleys compression tests were positive bilaterally; and Plaintiff exhibited weakness in the hamstrings and quadriceps bilaterally. [Id.] Plaintiff was given a cortisone injection into the left knee. [R. 1912.] Plaintiff's right knee was aspirated and given an intra-articular steroid injection of Xylocaine and Depo-Medrol. [Id.] Plaintiff was assessed with osteonecrosis due to previous trauma, bilateral knee pain, and knee joint effusion on the right. [Id.]

On November 24, 2015, Plaintiff was seen for a recheck on her bilateral knee pain, with complaints of pain in both knees anteriorly and fluid on her right knee. [R. 1914.] Plaintiff reported that her left knee hurt more and that she had more swelling on the right side. [R. 1916.] Plaintiff also reported problems with feeling that her knee was giving away. [Id.] On examination, Plaintiff had moderate swelling on the right and mild swelling on the left; tenderness of the medial femoral condyle, the medial joint line and the medial tibial plateau on the right; tenderness of the medial joint line and diffuse tenderness on the left; normal range of active and passive motion with pain at extreme limits of range bilaterally; positive Apley's compression tests bilaterally, and weakness in the hamstrings and quadriceps bilaterally. [Id.] Plaintiff was given an intra-articular injection in the left knee and an intra-articular steroid aspiration/injection in the right knee. [R. 1917.]

On February 24, 2016, Plaintiff was seen with complaints of right knee pain stating that she slipped a couple of months ago and twisted her leg and ending up in the Spartanburg emergency room. [R. 1918.] Plaintiff was having difficulty ambulating because of the pain and had significant swelling in her right knee as well. [R 1920.] Plaintiff was noted to have a limp and antalgic gait. [Id.] Plaintiff had severe swelling on the right knee and mild swelling on the left. [Id.] On the right, Plaintiff exhibited tenderness of the medial femoral condyle, the medial joint line, and the medial tibial plateau. [Id.] On the left, Plaintiff exhibited tenderness of the medial joint line. [Id.] Plaintiff's active range of motion was normal with pain at extreme limits of range bilaterally. [Id.] Her passive range of motion was normal with pain elicited by motion bilaterally. [Id.] Apley's compression tests were positive bilaterally and Plaintiff had weakness in her hamstring and quadriceps bilaterally. [Id.] Plaintiff's right knee was aspirated and injected with Xylocaine and Depo-Medrol. [Id.]

ALJ's RFC Consideration

The Administration has provided a definition of RFC and explained what an RFC assessment accomplishes:

RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. . . .

SSR 96-8p, 61 Fed.Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. § 416.945. See id. Only after this identification and assessment may the RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. Additionally, the Administration has determined that, in assessing RFC, the ALJ

must consider only limitations and restrictions attributable to medically determinable impairments. It is incorrect to find that [a claimant] has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the [claimant] had ever engaged in certain activities in his or her past relevant work (e.g., lifting heavy weights.) Age and body habitus (i .e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the [claimant's] medically determinable impairment(s) and related symptoms) are not factors in assessing RFC. . . .

Id. at 34,476.

To assess a claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477. SSR 96-8p specifically states, "The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id. at 34,478. Thus, an ALJ's RFC assessment will necessarily entail assessing the credibility of any alleged limitations, including assessing the credibility of testimony offered by the claimant. And, this Court recognizes that the ALJ is not required to specifically refer to every piece of evidence in his decision, but the ALJ must provide a statement of the case setting forth a discussion of the evidence and explaining reasons upon which the determination is based. See Reid v. Comm'r, 769 F.3d 861, 865 (4th Cir. 2014); Bergdoll v. Berryhill, No. 5:16-cv-00069, 2018 WL 356206, at *6 (W.D. Va. Jan. 10, 2018).

Under the regulations of the Social Security Administration, when evaluating the opinion of a treating physician, special consideration is to be given to these opinions based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(c)(2). Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Id. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh all medical opinions (treating physicians, consulting examiners, and non-examining chart reviewers) in light of a broad range of factors, including the examining relationship, the treatment relationship, length of treatment, nature and extent of the treatment relationship, support for the opinions in the medical record, consistency, and whether the treating physician was a specialist. Id. § 404.1527(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5 (S.S.A. July 2, 1996). Further, "if the RFC assessment conflicts with an opinion of any medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8P, 1996 WL 374184, at *7 (S.S.A. July 2, 1996).

Discussion

Here, the ALJ found that Plaintiff suffered from severe impairments, including diabetes mellitus with neuropathy; osteoarthritis, avascular necrosis, and other conditions of the bilateral knees; hypertension; and gout, as well as numerous non-severe impairments. [R. 19-20.] One such non-severe impairment was anxiety ,which the ALJ found was non-severe because it caused no limitations in Plaintiff's activities of daily living, no limitations in her social functioning, mild limitations in concentration, persistence, and pace, and no episodes of decompensation. [R. 21.] Consequently, the ALJ determined that Plaintiff's mental impairments caused not more than mild limitations and were, therefore, non-severe. [Id.] Upon review of the medical evidence of record, the ALJ concluded that Plaintiff retained the functional capacity to perform sedentary work with additional limitations to include occasional operation of foot controls, climbing ramps or stairs, balancing, stooping, kneeling, crouching or crawling; and never climbing ropes, scaffold or ladders; avoiding concentrated exposure to workplace hazards and to extreme heat or cold; and limiting her to occasional far visual acuity. [R. 22.]

Opinion Evidence

Plaintiff contends the ALJ failed to properly weigh the opinions of Dr. Phillips because he failed to show adequate consideration for his position as a treating specialist, failed to find that Dr. Phillips adequately explained Plaintiff's inability to perform sedentary work, and failed to find Dr. Phillips' opinion regarding Plaintiff's problems with concentration and attention to be supported by the record. [Doc. 19 at 25, 26.] The Commissioner contends Plaintiff's argument does not cite to the underlying medical evidence whatsoever. [Doc. 21 at 18.] The Commissioner points out that "the ALJ noted that '[t]he treatment history discussed above in assessing Dr. Phillips['s] opinion does not support his opinion that the claimant is not capable of sedentary work on a full-time basis, but it does support a limitation to sedentary work' (Tr. 26)." [Id. at 22.] The Commissioner concludes that the "ALJ's thorough discussion of the medical evidence related to Plaintiff's bilateral knee impairment allows this Court to perform its reviewing function; complies with the mandate of Social Security Ruling (SSR) 96-8p; and satisfies the dictates of Mascio and Monroe v. Colvin, 826 F.3d 176 (4th Cir. 2016)." [Id.]

The ALJ's Weighing of Dr. Phillips' Opinion

The ALJ weighed the medical evidence, including Dr. Phillips opinion, as follows:

In January 2015, Frank F. Phillips, M.D., a treating source, opined that the claimant was unable to ambulate without severe pain, and that her pain was distracting enough to prevent any gainful employment. In February 2015, he stated that, if the claimant were to attempt full-time work, she would have to rest away from her workstation for significantly more than an hour a day, have to elevate her legs above her waist for significantly more than an hour a day, and have attention and concentration problems such as to frequently interrupt work tasks. In August 2015, he opined consistently with the foregoing, and added that her ability to walk would be less than even that needed for sedentary work. He stated it would be "appropriate" for her to use a walker. He clarified his earlier statements, stating that she would need to rest away from her workstation with her knees elevated for most of the workday. Dr. Phillips is a treating source, and it is true that the treatment history described above supports significant exertional limitations. However, Dr. Phillips does not explain why a restriction to sedentary work would not suffice to accommodate the claimant's limitations based on that treatment history, without a need to be away from her workstation, elevate her legs, use a walker, etc. There is also no support in the record for Dr. Phillip's statements as to problems with concentration and attention. On balance, I give these opinions little weight. (Exs. 17F; 20F; 23F.)

[R. 26.]

Discussion

As noted, the legal standard which applies to the weighing of medical opinions is contained in 20 C.F.R. § 404.1527. The ALJ is obligated to evaluate and weigh medical opinions "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). Courts typically "accord 'greater weight to the testimony of a treating physician' because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant." Id. (quoting Mastro, 270 F.3d at 178). While the ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, Craig, 76 F.3d at 590, the ALJ must still weigh the medical opinion based on the factors listed in 20 C.F.R. § 404.1527(c). Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).

In the decision, the ALJ adequately summarized Plaintiff's treatment history with Dr. Phillips at Novant Health from August 2013 through December 2015; summarized Dr. Phillips opinions from January, February, and August 2015; and concluded that there was no support in the record for Dr. Phillips findings that Plaintiff had problems with concentration and attention, or that she would be unable to perform sedentary work. [R. 24-26.] Other than stating her disagreement with the ALJ's conclusion, Plaintiff has made no effort to direct the Court to any evidence in the record to support a finding of difficulties in concentration and attention, or a need to elevate her leg for most of the day. To the contrary, Plaintiff testified that she elevates her leg 1-3 times a day for about 30 minutes. [R. 66.] Plaintiff did not testify at all to any difficulty in concentration or attention, and a review of treatment notes does indicate any such difficulties. Indeed, Dr. Phillips' opinion appears to contradict Plaintiff's own testimony before the ALJ. Plaintiff testified that she was capable of performing her prior time-keeping job as long as her gout did not flare up. [R. 62.] She also testified that her education was keeping her from getting a job. [R. 63.] Based on the above, the Court cannot find that the ALJ's assignment of weight to Dr. Phillips' opinion is not supported by substantial evidence.

Evaluation of Symptoms and Subjective Complaints of Pain

The determination of whether a person is disabled by pain or other symptoms is a two-step process.⁹ First, the ALJ must determine whether objective medical evidence shows the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. Craig, 76 F.3d at 593, 595. Only after a claimant makes this threshold showing is the ALJ obligated to evaluate the intensity and persistence of the claimant's pain, and the extent to which it affects his ability to work. Id.

9 Both parties reference this issue as "credibility." [Doc. 19 at 27; Doc. 21 at 25.] Under SSR 96-7p, whenever a claimant's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ was to make a finding on the credibility of the claimant's statements based on a consideration of the entire case record. SSR 96-7p, 61 Fed. Reg. at 34,485. However, in March 2016, the Social Security Administration superseded its policy on assessing the credibility of a claimant's statements, and ruled that "credibility" is not appropriate terminology to be used in determining benefits. See SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016). Here, SSR 16-3p was issued before the ALJ's consideration of Plaintiff's claim. While the parties' briefs acknowledge the new regulation, they nevertheless speak in terms of a "credibility" evaluation. However, the Court will rely on the new regulation found at SSR 16-3p and will evaluate the appropriate factors using the appropriate terminology.

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. § 416.929(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [he] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). 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 5180304.¹⁰

10 In March 2016, the Social Security Administration superseded its policy on assessing the credibility of a claimant's statements, and ruled that "credibility" is not appropriate terminology to be used in determining benefits. See SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016). "[W]e are eliminating the use of the term 'credibility' from our sub-regulatory policy, as our regulations do not use this term." SSR 16-3p at *1. "In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character." Id. "Thus, under SSR 16-3p, the ALJ is no longer tasked with making an overarching credibility determination and instead must assess whether the claimant's subjective symptom statements are consistent with the record as a whole." William M. v. Berryhill, No. 7:17-cv-296, 2018 WL 4659252, at *7 (W.D. Va. Aug. 20, 2018), Report and Recommendation adopted by 2018 WL 4655755 (W.D. Va. Sept. 27, 2018). "Although SSR 16-3p eliminates the assessment of credibility, it requires assessment of most of the same factors to be considered under SSR 96-7p." Keefer v. Colvin, No. 1:15-cv-4738-SVH, 2016 WL 5539516, at n.5 (D.S.C. Sept. 30, 2016). Here, the Court will analyze the ALJ's decision based on the provisions of SSR 16-3p, but the Court notes "that the methodology required by both SSR 16-3P and SSR 96-7P, are quite similar. Under either, the ALJ is required to consider [Plaintiff's] report of her own symptoms against the backdrop of the entire case record; in SSR 16-3, this resulted in a 'credibility' analysis, in SSR 16-3, this allows the adjudicator to evaluate 'consistency.'" Vass v. Berryhill, No. 7:17-cv-87, 2018 WL 4737236, at *6, n.4 (W.D. Va. June 12, 2018), Report and Recommendation adopted by 2018 WL 4704058 (W.D. Va. Sept. 30, 2018). --------

The following is a nonexhaustive list of relevant factors the ALJ should consider in evaluating a claimant's symptoms, including pain: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms; and (6) any measures the claimant has used to relieve the symptoms. 20 C.F.R. § 416.929(c).

The ALJ's Analysis

At step one of the two-step process, the ALJ confirmed the presence of objective medical evidence showing the existence of medical impairments which could reasonably be expected to produce the pain or other symptoms alleged by Plaintiff. [R. 23.] Next, at step two analysis, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of the alleged symptoms during the relevant time period were not entirely credible. [Id.] The ALJ explained as follows:

The claimant's allegations are not entirely consistent with her treatment history and resultant objective medical evidence. From June 2013 to January 2014, and again from February 2015 to July 2015, the claimant was seen at Mary Black Memorial Hospital. During the earlier course of treatment, speaking generally, she exhibited tenderness in the right lower extremity. However, she had normal joint range of motion (ROM) throughout and no edema, no motor or sensory deficits, and normal strength. At one visit, following a fall, she was moderately tender at the right distal femur. At that visit, the anterior drawer maneuver elicited mild to moderate laxity. Lateral and medial stress testing was normal. (Exs. 4F/168, 181, 191, 204, 224, 246, 260; 24F/22, 29, 25.) July 2013 left knee X-rays showed moderate medial osteoarthritis, knee effusion, and old bone infarcts. (Ex. 4F/196.) September 2013 right knee X-rays, following her fall, showed calcification, bone infarcts, arthritic change, and a joint effusion. (Ex. 4F/251.) Of

note, her glucose levels were measured at, e.g., 279 mg/dL, 366 mg/dL, and 439 mg/dL (after the last of these, her glucose was quickly brought down to 191 mg/dL). Her blood pressure was at, e.g., 148/79. (Ex. 4F/214, 256, 270, 286, 288.) Turning to the later course of treatment, in February 2015, the claimant was seen for left knee pain. (Ex. 18F/2.) She exhibited tenderness in the left knee, but no decreased ROM. (Ex. 18F/8.) A left knee MRI showed avascular necrosis with two large bony defects due to displaced loose and bony fragments. (Ex. 18F/2, 16.) Left knee X-rays showed degenerative joint disease, a bone infarct, and joint effusion. (Ex. 18F/2, 11.) Except for her left leg, she had good muscle strength and tone, and equal and symmetric reflexes. (Ex. 18F/5.) Her blood pressure was at one point 161/116. (Ex. 18F/8.) Two days after admission, the claimant was feeling well and was cleared for discharge, albeit that her left knee was still "a little" swollen and had "some limited" ROM. (Ex. 18F/3.) (Exs. 4F; 18F; 24F.)


* * *

. . . Speaking generally, she exhibited no sensory deficits, and no edema; she exhibited very occasional left-side weakness, and no other motor deficits. She had pain with movement of her right knee in August 2013, but no effusion and no instability. At that time, it was noted that her pain was out of proportion to her physical examination. Later, she did exhibit tenderness and moderate crepitation in both knees, and moderate synovial thickening of the right knee without redness or warmth. There was no effusion of either knee. She had no foot ulcers. Still later (December 2013), it was noted that her right knee ROM was reduced secondary to pain. (Exs. 6F/1; 8F/23, 49, 66, 84.) August 2013 right knee X-rays showed sclerotic changes at the distal femur and proximal tibia. (Ex. 4F/752.) December 2013 right knee X-rays did show degenerative changes, moderate joint effusion, and again sclerotic changes at the distal femur and proximal tibia. (Ex. 8F/63.) By March 2014, although there was still moderate effusion, as well as moderate tissue swelling, ROM was normal without pain. (Ex. 8F/128.) By April 2014, there was normal ROM, without swelling or edema. There were no motor or sensory deficits. (Ex. 8F/145.) However, there was worsening by May 2014: an examination that month saw the return of right knee tenderness (severe about the patella and medial joint space), a small effusion, moderate tissue swelling, and

decreased ROM secondary to pain and effusion; moreover, May 2014 right knee X-rays were generally consistent with those of December 2013. (Ex. 8F/148, 153.) Furthermore, a May 2014 right knee MRI showed multifocal bone infarctions; a large, degenerative meniscal tear; full thickness degenerative chondral loss throughout the medial compartment; a horizontal tear through the anterior horn of the lateral meniscus, and small joint effusion. (Ex. 8F/158.) Another examination that month found no edema and no motor dysfunction. (Ex. 12F/15.) (Exs. 4F; 6F; 8F; lOF; llF; 12F; 13F; 15F; 16F; 19F; 25F.)

At Novant, in August 2014, the claimant underwent right knee arthroscopy, chondroplasty, synovectomy, and medial meniscectomy. (Ex. l lF/1-3.) In September 2014, she exhibited 1 + swelling and improving though still limited ROM in the right knee. Her gait remained antalgic. She was mildly to moderately tender, and her strength was fair to poor. By October 2014, though some of these abnormalities remained, she had full ROM in the right knee and had good, bilaterally equal, strength. (Ex. 16F/1, 5.) Physical therapy was recommended, but there is no evidence the claimant ever pursued such treatment. (Ex. 13F/1.) On a related note, she was noted to be noncompliant with medication. (Ex. 15F/67.) (Exs. 4F; 6F; 8F; 10F; 11F; 12F; 13F; 15F; 16F; 19F; 25F.)

At Novant, in December 2014, the claimant underwent left knee arthroscopy and chondroplasty, and major synovectomy and arthrocentesis of the right knee. (Ex. 25F/9.) In January 2015, she complained of left knee pain only, of mild severity and moderate intensity. (Ex. 25F/13.) The left knee was noted to be mildly tender and to have normal distal function. (Ex. 25F/14.) In February 2015, she exhibited no edema, minimal effusion in the right knee and 1 + effusion in the left, diffuse tenderness, and "fair" ROM. She reported pain, and exhibited crepitus. (Ex. 19F/1.) On visits beginning March 15, she had normal ROM, without swelling or edema, and had no motor or sensory deficits. She was able to fully bear weight, and had a steady gait. (Ex. 25F/28, 51, 71, 82-83.) (Exs. 4F; 6F; 8F; lOF; llF; 12F; 13F; 15F; 16F; 19F; 25F.)

From December 2013 to November 2014, the claimant was seen at Regenesis. In June 2014, she was noted to limp and to be using a right knee immobilizer. (Ex. 9F/5.) However, by August 2014, musculoskeletal and neurological clinical observations were normal: she had full, symmetric muscle strength, normal gait and station, and intact sensation. (Exs. 14F/2, 7; 22F/2.) (Exs. 9F; 14F; 22F.)

From December 2014 to July 2016, the claimant was seen at Gaffney Clinics. Prior to her December 2014 knee surgery at Novant, she had an antalgic gait, and an effusion and limited ROM in her left knee. Motor function and sensation were normal, however. (Ex. 21F/14.) Upon follow-up from her surgery, she exhibited an antalgic gait, used an assistive device, and had tenderness, limited ROM, and swelling. (Ex. 21F/4, 7, 9, 11.) By March 2015, she exhibited tenderness, and pain (in large part but not entirely located at the extreme limits of ROM), in both knees. She had hamstring and quadriceps weakness in both legs. Sensation was normal in the lower extremities. (Exs. 21F/3; 27F/4, 8; 28F/19, 23, 37.) In September and October 2015, she exhibited no edema, and had normal gait and station. (Ex. 28F/28, 33.) Over the course of 2016, she exhibited diminished or absent sensation in her feet with monofilament testing. However, edema was largely absent. She exhibited normal gait and stance. (Ex. 28F/5, 10, 15.) (Exs. 21F; 27F; 28F.)

[R. 23-25.]

Discussion

Upon review, the undersigned finds that the ALJ conducted a proper analysis of Plaintiff's symptoms, including complaints of pain, and cited substantial evidence to support his finding that Plaintiff's subjective complaints were not consistent with the objective medical and other evidence in the record. Contrary to Plaintiff's allegations of error, the ALJ specifically conducted the two-step analysis required under the regulations. The Court notes that Plaintiff's allegations of error with respect to the ALJ's credibility analysis are merely disagreements with the ALJ's conclusion rather than valid objections to the ALJ's analysis. Such disagreements are not a basis for the Court to overturn the ALJ's well-reasoned findings.

Specifically, Plaintiff has failed to demonstrate that the ALJ's analysis of Plaintiff's complaints of pain as a whole is unsupported by substantial evidence or is controlled by an error of law. 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"); Mickle v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (noting that the absence of ongoing medical treatment can discredit a claimant's allegations); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (per curiam) (finding an 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 v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (indicating that, even if the court disagrees with the Commissioner's decision, the court must uphold the decision if it is supported by substantial evidence).

Although Plaintiff challenges the ALJ's alleged failure to specifically explain which of Plaintiff's statements he believed or rejected, the Court finds that the ALJ's decision is specific enough that the Court is not left to guess about how the ALJ arrived at his conclusion. The ALJ expressly considered Plaintiff's testimony regarding her limitations due to pain in her left hand, hips and groin; vision problems; limitations in her ability to stand or walk; her need to elevate her legs when they hurt for 30 minutes, 1 to 3 times a day; and her activities of daily living. [R. 23.] However, the ALJ also considered inconsistencies between her testimony and the record, as well as the lack of objective medical evidence to support the alleged severity of her impairments. [See, e.g., R. 24 (noting that, while Plaintiff had pain with movement, it was noted that her pain was out of proportion with her physical examination and that her range of motion was normal without pain); R. 25 (noting that, while physical therapy was recommended, the record contains no evidence that the claimant ever pursued such treatment); id. (noting that, after surgery, in September and October 2015, she exhibited no edema and had normal gait and station).] The ALJ also found that Plaintiff had no limitations in her activities of daily living, social functioning, and only mild limitations in concentration, persistence, and pace. [R. 21.] Plaintiff made no objection to these findings. Additionally, the Court notes that Plaintiff testified that she was capable of performing sedentary work as long as her gout did not flare up. [R. 62.]

Plaintiff contends that the ALJ did not consider the factors outlined in SSR 96-7p, which are the same factors delineated in SSR 16-3p, and that he failed to specifically explain his consideration of each. [Doc. 19 at 28.] To the contrary, however, the ALJ explained his conclusion and provided support for his conclusion with substantial evidence. See 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]"). When an ALJ has given specific, legitimate reasons for disbelieving a plaintiff's testimony, the reviewing court should "generally treat credibility determinations made by an ALJ as binding upon review." Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988).

Based on the above, the Court finds that the ALJ's decision is supported by substantial evidence. The ALJ explained the basis for his findings regarding Plaintiff's symptoms and subjective complaints of pain in accordance with the regulations, and the Plaintiff failed to show that the ALJ's findings were contrary to the record evidence or the law. Accordingly, the decision of the Commissioner should not be reversed on this ground.

Appeals Council's Consideration of New Evidence

Plaintiff argues that remand is necessary in light of new evidence submitted to the Appeals Council for consideration. [Doc. 19 at 29-31.] Specifically, Plaintiff argues the Appeals Council erred in failing to consider the new evidence, comprised of a single-page, one-paragraph statement from Dr. Phillips, dated January 3, 2017. [Id. at 30; R. 2, 9.] The Commissioner contends that the statement from Dr. Phillips does not constitute "new" or "material" evidence and that the Appeals Council properly found the statement did not create a reasonable probability that it would change the outcome of the decision. [Doc. 21 at 27-32.]

New Evidence Submitted

The Appeals Council received the following additional evidence:

Correspondence from Frank Phillips, M.D. clarifying/explaining prior opinions (Dated: January 3, 2017; 1 page).

[R. 2.] Upon consideration, the Appeals Council concluded that it found no reason under the rules to change the ALJ's decision, thus making the ALJ's decision the final decision of the Commissioner. [R. 1.] With regard to Plaintiff's new evidence, the Appeals Council acknowledged receipt of the evidence, but noted:

We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence.

[R. 2.] The evidence in question, a statement signed by Dr. Frank Phillips, and dated January 3, 2017, opined as follows, in verbatim:

I was asked to provide further explanation regarding the opinions I have already provided regarding the limitations of my patient, Melissa Phillips. I am basing my conclusions regarding her limitations primarily on her imaging but also her consistent

clinical examination. Ms. Phillips does not have insurance so I do not see her that frequently, but when I see her her knees are swollen. Based on her imaging, it is consistent with the condition of her knees that she would have frequent swelling. Her x-rays show erosion of the femoral condyles bilaterally consistent with osteonecrosis. Anyone with this degree of problem would have swelling and pain if they did any amount of walking. This lady is in absolute dire straights due to her medical conditions. She cannot get around. She would not be able to do the minimal amount of walking necessary to perform sedentary work based on her imaging. 10/16 x-rays shows bone infarcts, which is basically dead bone throughout the distal femur and proximal tibius, as well as loss of joint space consistent with advanced arthritis. Her condition has been severe throughout the time period I have treated her and it has worsened. She has also had toe amputation related to her diabetes. She presents as anxious. It is shocking to me that a person who is this limited would not be approved for disability benefits.

[R. 9. ("January 2017 Statement").]

Discussion

If a claimant is dissatisfied with an ALJ's decision regarding her entitlement to disability benefits, the claimant may request that the Appeals Council review the ALJ's decision. See Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); 20 C.F.R. § 416.1467. The Appeals Council will grant the request for review if there is an apparent abuse of discretion by the ALJ; if there is an error of law; if the ALJ's action, findings, or conclusions were not supported by substantial evidence; or if the case concerns a broad policy or procedural issue that may affect the general public interest. 20 C.F.R. § 416.1470. A claimant who has sought review from the Appeals Council may submit evidence to the Appeals Council as part of the process for requesting review of an adverse ALJ decision. 20 C.F.R. § 416.1468; see also Meyer, 662 F.3d at 705 ("The regulations also specifically permit claimants to submit additional evidence, not before the ALJ, when requesting review by the Appeals Council."). The Act's administrative scheme, found in 20 C.F.R. § 416.1470(b), governs the circumstances under which the Appeals Council is to review an ALJ's decision and, with regard to new evidence, provides: "[T]he Appeals Council shall evaluate the entire record including any new and material evidence submitted." 20 C.F.R. § 416.1470(b). Considering these regulations, the Court of Appeals for the Fourth Circuit has stated: "[T]he regulation sets forth a mandatory rule that the Appeals Council must consider new and material evidence relating to the period prior to the ALJ decision in determining whether to grant review, even though it may ultimately decline review." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95 (4th Cir. 1991) (citing case law from sister circuits). "The Appeals Council must consider evidence submitted with the request for review in deciding whether to grant review if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Id. at 95-96 (citation omitted). In order to be "new" evidence, the evidence must not be "duplicative or cumulative;" and in order to be "material," there must be a "reasonable possibility that it would have changed the outcome." Id. at 96; see also Meyer, 662 F.3d at 705 ("Evidence is new 'if it is not duplicative or cumulative' and is material if there is 'a reasonable possibility that the new evidence would have changed the outcome.'") (citation omitted). If the new and material evidence relates to the period on or before the date of the ALJ's hearing decision, the Appeals Council should evaluate it as part of the entire record. 20 C.F.R. § 416.1470(b).

The proper manner and procedure for the handling of new evidence submitted to an Appeals Council was discussed extensively by the Fourth Circuit in Meyer. When a claimant requests review of an ALJ decision, the Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to the ALJ. Where a claimant submits additional evidence that was not before the ALJ when requesting review by the Appeals Council, and if the evidence is new and material, the Appeals Council is to evaluate the entire record, including the new and material evidence, to see if it warrants any change in the ALJ's decision. If, after this evaluation, the Appeals Council finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record, it will grant the request for review and either issue its own decision on the merits or remand the case to the ALJ. Conversely, if upon consideration of the evidence, including any new and material evidence, the Appeals Council finds that the ALJ's action, findings or conclusions are not contrary to the weight of the evidence as a whole, the Appeals Council can simply deny the request for review. See generally, Meyer, 662 F.3d at 704-705.

Thus, in determining whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard, the Court must "'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.'" Meyer, 662 F.3d at 704 (alterations in original) (internal citation omitted). If the court cannot determine whether, in light of the additional evidence submitted, the Commissioner's decision is supported by substantial evidence, remand is warranted. Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because, upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits). The Meyer Court recognized, however, that in some cases the record would clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence. See id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir.1996)). Thus, courts should affirm an ALJ's denial of benefits after reviewing new evidence presented to the Appeals Council where, even with this new evidence, substantial evidence support the ALJ's findings. Id. However, reversal is required if, on consideration of the record as a whole, the court "simply cannot determine whether substantial evidence supports the ALJ's denial of benefits . . . ." Id. at 707.

In this case, Plaintiff filed her application for disability in June 2014, the ALJ held a hearing on August 10, 2016, and the ALJ issued his decision on October 13, 2016. Plaintiff then requested Appeals Council review on December 2, 2016 [R. 191], and submitted new evidence to the Appeals Council [R. 9]. The new evidence consisted of a single-page, one-paragraph statement, dated January 3, 2017, from Plaintiff's treating physician, Dr. Phillips. [R. 9.] Upon review, the Appeals Council concluded that the January 2017 statement was not material, explaining that the "evidence does not show a reasonable probability that it would change the outcome of the decision," and, accordingly, declined to consider and exhibit the evidence. [R. 2.] This Court finds, in agreement with the decision of the Appeals Council, that the evidence does not require remand.

The Court finds the additional evidence is duplicative of the evidence that was before the ALJ at the time of the hearing and is not material evidence that would have changed the outcome of Plaintiff's case. The ALJ conducted a detailed evaluation of Dr. Phillips' treatment notes and records and provided an in-depth analysis of Dr. Phillips' opinions concerning Plaintiff, as explained in detail above. Importantly, after extensively considering the medical records and treatment notes from Dr. Phillips, the ALJ noted as follows:

Dr. Phillips is a treating source, and it is true that the treatment history described above supports significant exertional limitations. However, Dr. Phillips does not explain why a restriction to sedentary work would not suffice to accommodate the claimant's limitations based on that treatment history, without a need to be away from her workstation, elevate her legs, use a walker, etc. There is also no support in the record for Dr. Phillip's statements as to problems with concentration and attention. On balance, I give these opinions little weight. (Exs. 17F; 20F; 23F.)

[R. 26.] Plaintiff has failed to articulate any reason why the January 2017 statement from Dr. Phillips would evince a different result, particularly in light of the ALJ's consideration of Dr. Phillips' opinions presented in the record before the ALJ. Plaintiff contends "[t]he new, more detailed opinion of treating surgeon [Dr. Phillips], spelling out objective signs and specific limitations would certainly matter to an impartial fact-finder." [Doc. 19 at 31.] Nevertheless, the Court finds Plaintiff's argument unavailing. Dr. Phillips' January 2017 statement is similar to the August 2015 opinion of Dr. Phillips, which the ALJ considered and discounted, and, as such, the new statement fails to provide any new or material evidence in any form to supplement the opinion and treatment notes of Dr. Phillips already contained in the record. [R. 26, 348, 1720.] Further, and significantly, the ALJ considered and rejected Dr. Phillips' opinions that Plaintiff was "unable to ambulate without severe pain, and that her pain was distracting enough to prevent any gainful employment" and "her ability to walk would be less than even that needed for sedentary work." [R. 26.] Upon consideration of the record as a whole, including other medical evidence and opinions, the ALJ found that the "treatment history discussed . . . in assessing Dr. Phillips opinion does not support his opinion that the claimant is not even capable of sedentary work on a full-time basis, but it does support a limitation to sedentary work, a somewhat greater limitation than the consultants provide for." [Id.] The January 2017 statement simply reiterates Dr. Phillips' treatment notes and opinions already contained in the record, which the ALJ considered but accorded only limited weight. [Id.] Simply put, the January 2017 statement is not material because it would not have changed the outcome. As such, remand is not required because the Appeals Council properly declined to consider the evidence.

In sum, Plaintiff's new evidence submitted to the Appeals Council with her request for review was not new or material. See Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (en banc) (noting evidence is new "if it is not duplicative or cumulative" and evidence is material "if there is a reasonable possibility that the new evidence would have changed the outcome"). As noted, the duty of the Appeals Council to review additional evidence is conditioned on such evidence being "new and material," which means that it is "not duplicative or cumulative" and "there is a reasonable possibility that the new evidence would have changed the outcome." Wilkins, 953 F.2d at 95-96. Meyer does not require an automatic remand for unreviewed material evidence, but instead finds that remand is appropriate when the Court cannot determine, from review of the record as a whole, if substantial evidence supports the denial of Plaintiff's application for benefits. Meyer, 662 F.3d. at 702. Here, substantial evidence supports the denial of Plaintiff's application for SSI, and the ALJ's decision should therefore be affirmed.

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be AFFIRMED.

IT IS SO RECOMMENDED.

s/ Jacquelyn D. Austin

United States Magistrate Judge December 7, 2018
Greenville, South Carolina