Vandross v. Berryhill

Full title: Makisha H. Vandross, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner…

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

Date published: Jul 18, 2017

Civil Action No. 8:16-cv-01915-RBH-JDA (D.S.C. Jul. 18, 2017)

Opinion

Civil Action No. 8:16-cv-01915-RBH-JDA

07-18-2017

Makisha H. Vandross, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

Jacquelyn D. Austin United States Magistrate Judge

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28 U.S.C. § 636(b)(1)(B).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 claims for disability insurance benefits ("DIB") and 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

On March 4, 2013, Plaintiff filed applications for DIB [R. 289-90] and SSI [R. 291-99], alleging disability beginning February 1, 2013. The claims were denied initially on April 26, 2013 [R. 159-71, 172-84] and upon reconsideration on July 31, 2013 [R. 188-202, 203-17] by the Social Security Administration ("the Administration"). Plaintiff filed a request for hearing before an administrative law judge ("ALJ"), and on September 24, 2014, ALJ Peggy McFadden-Elmore conducted a hearing on Plaintiff's claims. [R. 124-58.]

On October 31, 2014, the ALJ issued her decision finding that Plaintiff had not been under a disability, as defined in the Social Security Act ("the Act"), from February 1, 2013, through the date of the decision. [R. 102-17.] At Step 1³, the ALJ found Plaintiff last met the insured status requirements of the Act on December 31, 2017, and had not engaged in substantial gainful activity since February 1, 2013, the alleged onset date. [R. 103, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine and lumbar spine; obesity; migraines; osteoarthritis of the right knee; and status post hernia repair. [R. 103, Finding 3.] She also found that Plaintiff had the following non-severe impairments: depression and anxiety. [R. 103-04.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. [R. 104, Finding 4.] The ALJ expressly considered Plaintiff's obesity and Listings 1.04, 1.02A, 3.0, 4.0, and 11.00, specifically 11.02-11.15, 11.04B(11.17A), 11.17B, 11.18, and 11.19. [R. 104-05.]

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

Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity ("RFC"):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; occasionally push and pull with the bilateral upper extremities and with the right lower extremity; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; frequently balance; occasionally stoop, kneel, crouch, and crawl; occasionally reach overhead with the bilateral upper extremities; and avoid concentrated exposure to noise and hazards.

[R. 105-06, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was able to perform her past relevant work as a dispatcher and an office manager. [R. 116, Finding 6.] According, the ALJ found that Plaintiff had not been under a disability, as defined in the Act, from February 1, 2013, through the date of the decision. [R. 117, Finding 7.]

Plaintiff filed a request for review of the ALJ's decision with the Appeals Council, which denied review. [R. 1-7.] Plaintiff commenced an action for judicial review in this Court on June 13, 2016. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [See Doc. 22.] Specifically, Plaintiff contends the ALJ erred in failing to assign a specific weight to the opinion of physician assistant Ashley Meyers [id. at 24-27]; failing to find that Plaintiff's migraines met listing level severity under Listing 11.03 [id. at 27-29]; failing to properly evaluate Plaintiff's credibility [id. at 29-31]; and ignoring the testimony of the vocational expert ("VE") upon properly considering all of Plaintiff's alleged limitations [id. at 31-32]. Plaintiff also contends the Appeals Council erred by failing to consider newly submitted evidence which contradicted the ALJ's decision. [Id. at 17-24.]

The Commissioner contends the ALJ's decision should be affirmed because there is substantial evidence of record that Plaintiff was not disabled within the meaning of the Act during the relevant time period. [See Doc. 23.] Specifically, the Commissioner contends substantial evidence supports the ALJ's assessment of the medical opinions timely submitted for her consideration [id. at 17-18]; the ALJ's listing analysis [id. at 18-19]; the ALJ's credibility determination [id. at 19-21]; and the ALJ's reliance on the VE's opinion that Plaintiff could perform her past relevant work [id. at 21-22]. The Commissioner further contends that the Appeals Council properly concluded that the evidence submitted after the ALJ's decision was not material to the case and, thus, did not support a remand of the decision. [Id. at 11-17.]

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); Brehem v. Harris, 621 F.2d 688, 690 (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).⁴ 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).

4 Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.

APPLICABLE LAW

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:

the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.

Id. § 423(d)(1)(A).

I. The Five Step Evaluation

To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 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. §§ 404.1520(a), 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. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 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. §§ 404.1574-.1575, 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. §§ 404.1521, 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. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience.⁵ 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).

5 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 capacity⁶ with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).

6 Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 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. §§ 404.1520(f)-(g), 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.⁷ 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. §§ 404.1569a, 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).

7 An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 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. 20 C.F.R. §§ 404.1569a(c)(1), 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. §§ 404.1527(c)(2), 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. §§ 404.1527(c), 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. §§ 404.1527(c)(2), 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. §§ 404.1527(d), 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. §§ 404.1517, 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. §§ 404.1517, 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). 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). 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 actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes her alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).

Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). 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. 20 C.F.R. §§ 404.1528, 416.928. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":

This Ruling supersedes, only in states within the Fourth Circuit (North Carolina, South Carolina, Maryland, Virginia and West Virginia), Social Security Ruling (SSR) 88-13, Titles II and XVI: Evaluation of Pain and Other Symptoms:

...

FOURTH CIRCUIT STANDARD: Once an underlying physical or [m]ental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity,

severity, degree or functional effect of pain is not determinative.

SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).

VI. Credibility

The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").

APPLICATION AND ANALYSIS

Brief Relevant Medical History

Plaintiff's brief appears to challenge the ALJ's consideration of limitations associated with her migraine headaches and back pain. Thus, the Court will summarize medical evidence relevant to Plaintiff's pain complaints associated with her migraines and back.

Plaintiff became an LPN in 1995 and worked as an LPN for 15 years. [R. 324.] Plaintiff also received her CDL licence in 1993, working as a driver for the Berkeley County School System. [Id.] On December 30, 2009, Plaintiff was in a car accident injuring her neck and lower back and causing headaches. [R. 312-13.] On July 28, 2010, a subsequent accident aggravated her previously reported neck and lower back injures reported on December 30, 2009. [Id.] Plaintiff filed for and, on July 18, 2011, was awarded Worker's Compensation benefits, and was released to work with a lifting restriction of 15 pounds, and restricted climbing, bending and stooping. [R. 315.] Plaintiff was assigned a 10% whole person rating using the AMA Guidelines. [Id.] Plaintiff was also found to have sustained a "30% permanent partial disability to her back," but was not found to be permanently and totally disabled. [R. 317.]

On August 2, 2012, an MRI of Plaintiff's cervical spine was ordered by Dr. Shailesh Patel ("Dr. Patel") with Lowcountry Orthopaedics & Sports Medicine. [R. 462.] The MRI, as read by Dr. Troy Marlow ("Dr. Marlow") showed diffuse mild spondylosis; and no severe stenosis or neural impingement. [Id.] Dr. Marlow indicated that the spondylosis showed mild progression with C3-4 new left exit crowding of C4 due to uncovertebral hypertrophy. [Id.] Dr. Marlow also noted that the C5-6 tiny central protrusion is slightly more prominent, and the C6-7 left paracentral protrusion was new. [Id.] There were no other significant interval changes noted. [Id.] An MRI of Plaintiff's lumbar spine was also conducted on August 2, 2012, resulting in normal findings at T12-L1, L1-2, L2-3 and L3-4. [R. 463.] At L4-5, Dr. Marlow noted a shallow central protrusion convert to disc-osteophyte complex right intra to extraforaminally; facet hypertrophy with small left effusion; mild exit narrowing with deflection of bilateral L4s; and mild central narrowing. [Id.] Dr. Marlow also noted moderate right and mild left facet hypertrophy and mild exit narrowing at L5-S1; as well as crowing at right L5. [Id.] Dr. Marlow noted that, since the prior exam, an L4-5 tiny right paracentral superior extrusion had intervally retracted. [Id.] Additionally, Dr. Marlow noted that facet hypertrophy was less conspicuous than on the previous study, and that there were no other significant interval changes. [Id.]

Plaintiff saw Dr. Patel on February 20, 2013, complaining of lumbar spine pain in her lower back, gluteal area and legs. [R. 509.] Plaintiff described the pain as an aching, burning, discomforting, shooting, stabbing and throbbing pain. [Id.] Plaintiff stated that her pain symptoms were aggravated by daily activities such as sitting and standing, but were relieved by pain medications, drugs, rest and changing positions. [Id.] An epidural injection was ordered (as her previously ordered injection was not covered) and a new back brace was ordered for Plaintiff. [Id.] Dr. Patel noted painful range of motion; normal bilateral lower extremity strength; and normal lower extremity neurovascular except for decreased sensory to light touch in the dorsal feet. [R. 511.]

On March 4, 2013, Plaintiff filed an application for disability insurance benefits alleging disability as of February 6, 2013, due to neck/back injury/pain, arthritis, herniated disc; high blood pressure; migraines; and anxiety. [R. 359.] Plaintiff alleged that she was in severe pain at all times from her back injury; her pain medications caused drowsiness; she was unable to sit, stand, bend, lift, stoop, crawl, or reach; and her severe migraines caused her to be unable to focus or tolerate any noise and light. [R. 367.] Plaintiff indicated that she uses a brace whenever she walks long distances or she will not be able to tolerate the pain [R. 374], and also alleged bilateral hand pain [R. 405].

On March 19, 2003, Plaintiff saw Certified Physician Assistant Colin H. Gage ("PA-C Gage"), also with Lowcountry Orthopaedics & Sports Medicine, complaining of lumbar pain with radicular symptoms in the bilateral lower extremities. [R. 512.] Plaintiff was unable to obtain interventional treatment due to insurance issues, but was given a bilateral sacroiliac joint injection in the office. [Id.] Plaintiff's active range of motion was noted to be limited by pain; her bilateral lower extremity strength was normal; and her lower extremity neurovascular was normal except for decreased sensory to light touch in the left lateral ankle, right medial and lateral calf. [R. 513.]

On April 17, 2013, Plaintiff was seen by Dr. Patel indicating that she was continuing to have lower back pain and had not had any recommended treatments due to her worker's compensation carrier. [R. 535.] Dr. Patel noted that Plaintiff was getting worse due to her inability to obtain treatment that he has recommended, namely, epidural steroid injections. [Id.] On May 16, 2013, Dr. Patel noted that Plaintiff was now unable to work and was on the verge of disability because she has been unable to get injections performed at any facility due to her legal turmoil and the unwillingness of the worker's compensation carrier to pay the facility fees where the epidural steroid injections are performed. [R. 539.]

On May 23, 2013, Plaintiff was seen by the nurse practitioner on follow up for anxiety, depression, fatigue, hypertension and migraine headaches. [R. 614.] Plaintiff's anxiety/depression was described as unstable due to her running out of her medication although it was relieved by Elavil and Xanax. [Id.] Likewise, Plaintiff's hypertension was described as unstable but was aggravated by her running out of medication although it is relieved by medication. [Id.] Nevertheless, Plaintiff denied blurred vision or change in visual acuity; vomiting or nausea; or joint or muscle pain or back pain. [Id.] Additionally, her gait was noted to be normal and her cranial nerves were intact. [R. 615.] Plaintiff ran out of medication because she lost her job and insurance. [R. 616.] All of Plaintiff's medications were refilled and she was to follow up in two weeks. [Id.]

On September 25, 2013, Plaintiff saw Dr. Tony Owens ("Dr. Owens") with Carolina Pain Physicians, LLC, on referral from nurse practitioner Tabatha Adams ("FNP Adams"). [R. 914.] Treatment notes indicated that Plaintiff complained of back pain in the lumbar region radiating to the posterior lower extremities along the L5 dermatome. [Id.] According to Plaintiff, this pain was partially alleviated by nothing and exacerbated by activity, standing and accompanied by weakness. [Id.] Dr. Owens also noted secondary pain in the cervical spine radiating into the bilateral shoulders along the C5 and C6 dermatomes. [Id.] Plaintiff contends this pain was partially alleviated by rest and exacerbated by activity. [Id.] On physical examination, Plaintiff was positive bilaterally on straight leg testing; her gait was non antalgic; she had generalized tenderness to palpation in the cervical and lumbar spine; and her range of motion was globally restricted in the cervical and lumbar spine. [R. 915.] On motor examination, Plaintiff had 5/5 strength bilaterally in shoulder abduction, adduction, flexion, extension, internal rotation, external rotation, elbow flexion and extension, hand grip, hip adduction, abduction, flexion, extension, internal rotation, external rotation, knee flexion and extension and ankle dorsiflexion and plantar flexion. [Id.] Plaintiff was also negative for impaired cognition, disorientation, pressured speech and abnormal affect. [Id.] Plaintiff was diagnosed with lumbago, cervicalgia, chronic pain syndrome, thoracic or lumbosacral neuritis or radiculitis, unspecified; and brachial neuritis or radiculitis. [Id.] Due to the pain distribution, Dr. Owens ordered a lumbar epidural steroid injection and initiated medications including Percocet, Lyrica and Mobic. [Id.]

On November 8, 2013, Plaintiff was seen by Dr. Owens with complaints of back and neck pain. [R. 651.] Plaintiff's back pain was in the lumbar spine and radiated to the bilateral lower extremities and described as aching, sharp and constant. [Id.] Plaintiff's neck pain radiated into her right and left shoulders and was described as constant and aching. [Id.] Treatment notes indicate Plaintiff had prior epidural steroid injections in October and November of 2013 which gave her a 50% benefit for between 2-4 days; and that she had participated in physical therapy and utilized a TENS unit with limited benefit. [Id.] On examination, Plaintiff tested positive bilaterally on straight leg raises; had non antalgic gait; had tenderness to palpation and restricted range of motion in the lumbar spine; and had normal cognition and orientation. [R. 652.] Plaintiff's current medication regimen was continued due to positive benefit. [Id.] Plaintiff was also ordered a LESI/SACRAL epidural steroid injection. [Id.]

On August 29, 2013, Plaintiff was seen on follow up at Palmetto Primary Care Physicians for fatigue and migraine headaches. [R. 1039.] Plaintiff complained of fatigue and back pain with no documented discussion of migraines. Plaintiff's migraines were noted to be new [R. 1040], and FNP Adams prescribed Tordal for Plaintiff's migraines [R. 1041].

On November 22, 2013, Plaintiff was seen at Palmetto Primary Care Physicians on follow up for fatigue and headache. [R. 1031.] Plaintiff indicated her migraine was located on the head, frontal and temporal, was non radiating and was characterized as sharp and knifelike pain with intermittent duration. [Id.] Plaintiff noted no pattern with her migraines and indicted they were relieved by Elavil. [Id.] On physical exam, Plaintiff denied blurred vision or change in visual acuity; denied nausea and vomiting; denied joint or muscle pain or back pain; denied localized numbness, weakness or tingling; and denied depression, anxiety or substance abuse. [Id.] No edema was noted in Plaintiff's extremities, she had normal gait, and was alert, oriented to time, place, and person, and had no difficulty with speech or language. [R. 1032.] Treatment notes indicate that Plaintiff was reporting worsening migraine symptoms. [Id.]

On December 12, 2013, Plaintiff was seen by Dr. Owens complaining of back pain in the lumbar spine area radiating to her groin and described as constant. [R. 647.] Treatment notes indicate Plaintiff had prior epidural steroid injections in October and November of 2013 which gave her a 50% benefit for between 2-4 days; and that she had participated in physical therapy and utilized a TENS unit with limited benefit. [Id.] On examination, Plaintiff showed no general weakness, no new neurological changes, no difficulty with gait and no injury. [R. 648.] Plaintiff did, however, show tenderness to palpation and restricted range of motion in the lumbar spine, non antalgic gait and normal cognition and orientation. [Id.] Dr. Owens adjusted Plaintiff's medication by increasing her Lyrica and Percocet dosing. [Id.]

On January 13, 2014, Plaintiff was seen by Dr. Owens with complaints of back pain radiating into the right lower extremity, the pain described as prickling, sharp and shooting. [R. 645.] Treatment notes indicate Plaintiff had prior epidural steroid injections in October and November of 2013 which gave her a 50% benefit for between 2-4 days; and that she had participated in physical therapy and utilized a TENS unit with limited benefit. [Id.] On exam, Plaintiff exhibited tenderness to palpation and restricted range of motion in the lumbar spine; non antalgic gait; and normal cognition and orientation. [R. 646.] Plaintiff was diagnosed with chronic pain syndrome, cervicalgia, cervical radiculitis, lumbosacral radiculopathy and low back pain; she was continued on her current medication regimen due to positive benefit. [Id.]

On February 10, 2014, Plaintiff was seen by Dr. Owens with complaints of back pain located in the lumbar spine and radiating to the bilateral lower extremities, further described as prickling, burning, aching, constant and sharp. [R. 643.] On evaluation, Plaintiff showed no gait difficulty and showed normal cognition and orientation. [R. 644.] Plaintiff was diagnosed with chronic pain syndrome, cervicalgia, cervical radiculitis, lumbosacral radiculopathy and low back pain; she was continued on her current medication regimen due to positive benefit. [Id.] The results of a urine test were found to be consistent with her prescribed regimen as well. [Id.]

On April 3, 2014, Plaintiff was seen at Palmetto Primary Care Physicians on follow up for obesity and fatigue, also complaining of a migraine headache which began a year prior and was located on the head, frontal and temporal, but was non-radiating. [R. 1024.] Plaintiff described the duration of her migraines as intermittent with no noted pattern, and relieved by Topomax and NSAIDS. [Id.] Plaintiff denied blurred vision or change in visual acuity; denied nausea, vomiting; denied joint or muscle pain or back pain; and denied localized numbness, weakness or tingling. [Id.] On physical exam, no edema was noted and Plaintiff had normal gait, was alert, oriented to time place and person, and had no difficulty with speech or language. [R. 1025.]

On April 17, 2014, Plaintiff was seen at Carolina Pain Physicians complaining of back pain radiating into her lower extremities that was burning, aching and sharp; and non-radiating knee pain that was described as aching and throbbing. [R. 639.] Plaintiff was positive for muscle cramps and joint swelling, but denied headaches or seizures. [Id.] Plaintiff also had tenderness to palpation in the lumbar spine and right knee; had restricted range of motion in the lumbar spine and right knee; normal cognition and orientation; and non antalgic gait. [Id.] Due to knee stiffness associated with documented osteoarthritis and the failure of simple analgesics and non-steroidal anti-inflammatory drugs, viscosupplementation to the knee was recommended. [Id.] A prescription for Opiods was written for her acute condition, and Plaintiff was told that this could not happen on a regular occurrence and that she would be monitored closely. [R. 640.]

On May 15, 2014, Plaintiff was seen at Carolina Pain Physicians with complaints of back pain radiating into her lower extremities described as constant, and non-radiating knee pain described as aching. [R. 637.] On examination, Plaintiff was found to have restricted range of motion in her right knee, and abnormal strength in her right knee and her lumbar spine. [Id.] A urinalysis confirmed compliance with the prescribed regimen. [R. 638.] Plaintiff's Euflexxa injections were also approved and were scheduled. [Id.]

On May 29, 2014 and June 6, 2014, Plaintiff underwent an intra-articular knee Euflexxa injection and fluoroscopy. [R. 635-36.]

On June 26, 2014, Plaintiff was seen at Carolina Pain Physicians with complaints of back pain radiating into her lower extremities and hip, described as aching and constant; and with right knee pain with no radiation, described as aching. [R. 633.] Plaintiff's range of motion was restricted in the lumbar spine and right knee; she had a non antalgic gait; and her cognition and orientation were normal. [Id.]

Plaintiff was seen on July 17, 2014, at Carolina Pain Physicians complaining of back pain radiation into her lower extremities and hips described as aching, constant and dull, as well as right knee pain that was not radiating but aching, constant and dull. [R. 631.] Plaintiff's gait was noted to be non antalgic, and her cognition and orientation were normal. [Id.] A urinalysis was conducted and Plaintiff's results were not consistent with the prescribed medication with a negative finding of morphine. [R. 632.] Treatment notes indicate that a urine drug test was ordered and considered medically necessary due to Plaintiff having previous inconsistent drug tests results. [Id.]

On August 14, 2014, Plaintiff was seen by Carolina Pain Physicians with complaints of back pain radiation into her lower extremities and hips described as aching, throbbing, stabbing, sharp, shooting and constant radiating pain making it difficult for her to walk outdoors on flat ground. [R. 629.] Plaintiff also complained of right knee pain which was not radiating but was aching, sharp and shooting making it unable for her to do chores such as vacuuming or yard work. [Id.] Plaintiff did not complain of headaches or seizures; had intact cranial nerves; a non antalgic gait; and normal cognition and orientation. [Id.] A urinalysis was conducted, however, the results were not consistent with the prescribed regimen with a negative finding of lyrica. [R. 630.] Plaintiff was advised that this was the second time her urinalysis results were not consistent with her regimen. [Id.] The provider did not feel that he had the right rapport with Plaintiff to help her and offered to find her another provided; Plaintiff decided to handle finding another provider on her own. [Id.]

On September 9, 2014, Plaintiff was seen by Ashley Meyers, a physician assistant at Palmetto Primary Care ("PA Meyers"), on follow up for complaints of fatigue. [R. 1087.] On general exam, Plaintiff denied blurred vision or change in visual acuity; denied nausea and vomiting; denied joint or muscle pain or back pain; and denied depression, anxiety or substance abuse. [Id.] Plaintiff was also noted to have normal gait. [R. 1088.] Treatment notes indicate that Plaintiff was previously referred to neurology in April 2014 for her migraines but never went. [R. 1089.] Plaintiff indicated that she was ready to go now; and, PA Meyers placed another neurology referral for Plaintiff. [Id.]

On September 11, 2014, Plaintiff saw Dr. Allyson Thatcher ("Dr. Thatcher") with Trident Pain Center with complaints of headache, upper back pain, lower back pain, mid back pain, and leg pain. [R. 1094.] On examination, Dr. Thatcher noted that Plaintiff showed decreased sensation in the right upper extremity to light touch, decreased sensation in the right lower extremity to light touch, normal motor coordination, muscle strength grossly intact bilaterally in the upper and lower extremities, and normal gait. [R. 1095.] Dr. Thatcher also noted that Plaintiff had moderate pain in the right cervical paraspinous musculature in the right trapezius muscle to the shoulder with palpation, flexion, rotation and range of motion; and also had moderate pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints. [Id.] Dr. Thatcher noted radiating symptoms to be moderate lumbar radiculitis pain with range of motion in the right L5 nerve distribution and S1 nerve distribution to the foot. [Id.] Plaintiff was provided a two week supply of MS Contin and Percocet until a urinary drug screen was performed to assess Plaintiff's compliance with prescribed medications. [Id.]

On September 14, 2014, PA Meyers completed a Headaches Residual Functional Capacity Questionarie on Plaintiff's behalf. [R. 1084.] PA Meyers characterized Plaintiff's headaches as frontal and temporal (changing locations); non-radiating; sharp/knife like pain; intermittent; and moderate in severity. [Id.] Associated symptoms were noted to be occasional nausea/vomiting; and the headaches could last days to weeks, with intermittent in duration. [Id.] PA Meyers noted that Plaintiff's headaches had no known pattern and were believed to be triggered by stress. [Id.] Medications, such as Topamax and NSAIDS make Plaintiff's headaches better. [Id.] PA Meyers noted that treatment included medication and a referral to neurology. [R. 1085.] PA Meyers indicated that Plaintiff suffered no medication side effects and that she needed to be evaluated by a neurologist for a more thorough evaluation. [Id.] PA Meyers opined that, during Plaintiff's headaches, she would be precluded from performing even basis work activities and would need a break from the workplace. [Id.]

Plaintiff's Testimony before the ALJ

Plaintiff testified that she stopped working in 2013 due to pain in her back and neck, and because her migraines started to increase on a regular basis. [R. 132.] Plaintiff also testified that she is able to do some of the cooking, laundry and dusting around the house, and that she goes to the grocery store once or twice a month when her son is able to take her. [R. 134.] Plaintiff testified that she can walk for two minutes; stand for two and a half minutes, lift less than 10 pounds, and sit for 10 minutes. [R. 135.] With her meds, her pain is usually a 6/7 out of 10. [Id.] Plaintiff reported that her pain was constant; that she had 2 or 3 good days a month (pain 6 out of 10) and 27 bad days a month (pain an 8 out of 10). [R. 136.] Plaintiff testified that she uses a TENS unit daily on her lower back and shoulders, as well as pain medications. [R. 140.] Plaintiff testified that, within the past month, she experiences migraine headaches daily. [R. 142-43.] Prior to this, she experienced migraines about 5-6 time a month lasting a day to a week. [R. 143.] Plaintiff testified that symptoms associated with her migraines include sensitivity to light and noise, nausea and vomiting. [Id.] Plaintiff explained that she sleeps about an hour at a time a night due to pain and that she naps almost all day due to fatigue. [R. 144.]

Weighing of Physician Assistant Meyers's Opinion

Plaintiff argues that the ALJ erred in assigning an unspecified "weight" to the opinion of Plaintiff's treating physician assistant Ashley Meyers. [Doc. 22 at 24.] Plaintiff argues that the opinion of a treating physician is entitled to controlling weight if it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case. [Id.] The Commissioner contends that PA Meyers is not an "acceptable medical source" and, as such, her opinion is categorically ineligible for "controlling weight." [Doc. 23 at 13.] The Court agrees with the Commissioner.

ALJ's Analysis

With respect to PA Meyers, the ALJ noted as follows:

Ashley Meyers completed a medical source statement on behalf of the claimant on September 19, 2014. Ms. Myers stated that the claimant suffered from migraine headaches that caused occasional nausea and vomiting, and that her headaches were intermittent, but could last for days or weeks. Ms. Meyers noted that the claimant had impaired sleep, and that she also suffered from anxiety and tension. Ms. Meyers noted that the claimant needed to be evaluated by a neurologist for a more thorough evaluation, but that during her migraines that she would be generally precluded from

performing even basic work activities and require a break from the workplace. (Exhibit 32F)

[R. 114.] The ALJ, while not determining motive, suggested that PA Meyer's opinion was a substantial departure from the rest of the evidence of record. [R. 115.] Specifically, the ALJ explained that she considered the opinion of Plaintiff's treating PA Meyers,

however, it should be noted that although Ms. Meyers stated that the claimant would be incapacitated when she had a headache, it was not clear how often the claimant experienced headaches. Ms. Meyer's opinion has been given weight and the claimant's migraines have been found to be a severe impairment, however, this opinion does not support a finding of disability.

[R. 115.]

Discussion

Social Security Ruling SSR 96-2p, 1996 WL 374188, at *5, requires that an ALJ's decision "contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and [] be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Id. Moreover, ALJs are instructed to apply the factors provided in 20 CFR §404.1527 and §416.927—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions, including those from consultative examiners and medical sources who are not acceptable medical sources, such as physician's assistants. 20 C.F.R. § 404.1527(c), (f); cf. 20 C.F.R. § 404.1502 (a)(8) (including licensed physician's assistants as acceptable medical sources for impairments within their licensed scope of practice "only with respect to claims filed ... on or after March 27, 2017"). Importantly, more weight is generally given to the opinions of an examining source than a non-examining one. Id. Additionally, more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners. Id. In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590).

While the regulations suggest that evidence from "other sources" may be used to help evaluate a claimant's impairment, the regulations are silent as to how "other source" evidence should be evaluated. Social Security Ruling 06-03p provides guidance in this regard. The Ruling instructs that opinions from "other sources" are "important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file." 2006 WL 2329939, at *3. The Ruling further states that the factors listed in 20 C.F.R. §416.927(c)(2), which are used for evaluating "medical opinions," remain guiding principles for determining the weight that should be given to opinions from "other sources." Id. These factors include: the frequency of examination, the consistency of the opinion with other evidence, the amount of relevant evidence supporting the opinion, the source's area of expertise, and any other relevant factor that supports or refutes the opinion. Id. at 4-5. However, not every factor need be weighed; the particular facts of each case will dictate which factors are appropriate for consideration in order to properly evaluate the opinion at hand. Id. at 5. The Ruling also provides guidance in regard to how an ALJ should explain the ALJ's consideration of "other source" evidence. Id. at 6. Because the regulations instruct that all relevant evidence should be considered, the ALJ's opinion "should reflect the consideration of opinions from medical sources who are not 'acceptable medical sources.'" Id. at 6. Of particular significance, the Ruling carefully points out that "there is a distinction between what an adjudicator must consider and what the adjudicator must explain." Id. The ALJ "generally should explain the weight given to opinions from these 'other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." Id. (emphasis added).

As a threshold matter, the Court finds that PA Meyer's opinion is not subject to the treating physician rule at this time because she is a physician assistant. See Craig v. Chater, 76 F.3d 585, 589-90 (4th Cir. 1996) (noting that opinions of those other than trained medical doctors are not afforded same weight as opinions of physicians); Patton v. Astrue, No. 10-135, 2012 WL 645880 at * 7 (M.D.Ga. Feb.6, 2012) (ALJ is not required to give significant weight to "other source" opinions.), adopted by 2012 WL 645852; Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (physician assistants are defined as other sources). See also 20 C.F.R. §404.1513(d)(1), SSR 06-03p(discussing weight to be given to opinions of physician's assistants). "Acceptable medical sources" include licensed physicians, psychologists, or other medical providers; however, physician assistants are not considered "acceptable medical sources," but rather "other sources." 20 C.F.R. § 404.1513(a), (d).⁸ "Other sources" may provide evidence as to the severity of a claimant's impairment as well as the effects the impairment has on the claimant's ability to work, id., but they "cannot establish the existence of a disability," Engebrecht v. Comm'r, 572 F. A'ppx 392, 398 (6th Cir. 2014). See also 20 C .F.R. § 404.1527(e)(stating an ALJ does not have to "give any special significance to the source of an opinion on issues reserved to the Commissioner," such as an opinion that the claimant is disabled, the claimant's impairments meet or equal a listing, or the claimant has a certain RFC).

8 Recently, the Administration revised its rules such that a physician assistant is an acceptable medical source with regard to claims filed on or after March 27, 2017. 82 Fed.Reg. 5844-01, 2017 WL 168819.

The Court further finds that as an "other source," PA Meyers's opinion was not subject to any special degree of deference. See Meuzelaar v. Comm'r, 648 F. App'x 582, 584 (6th Cir. 2016) (holding that "the opinion of a nurse or a nurse practitioner—is entitled to less weight than a physician's opinion because a nurse is not an "acceptable medical source"); Noto v. Comm'r, 632 F. A'ppx 243, 248-49 (6th Cir. 2015) ("The opinion of a 'non-acceptable medical source' is not entitled to any particular weight or deference—the ALJ has discretion to assign it any weight he feels appropriate based on the evidence of record.") (citations omitted).

Plaintiff attempts to argue that 20 C.F.R. §416.927(c)(2) "mandates" that PA Meyers's opinion be given controlling weight because PA Meyers is a "treating source" whose opinion qualifies as a "medical opinion," is "well-supported," and is "not inconsistent" with other substantial evidence. [See Doc. 22 at 24-26.] Putting aside the lack of support accompanying Plaintiff's conclusory statements, her argument fails for a different reason. A "treating source," in addition to being one who provides, or has provided, medical treatment or evaluation to a claimant on an ongoing basis, must be a "physician, psychologist, or other acceptable medical source." 20 C.F.R. §416.902 (emphasis added). Similarly, "medical opinions," which reflect judgments about the nature and severity of a claimant's impairment, are "statements from physicians and psychologists or other acceptable medical sources." §416.915 (emphasis added). As an "other source," PA Meyers neither qualified as a "treating source," nor was her opinion a "medical opinion." See Jones v. Soc. Sec. Admin., No. CIV. 3:13-1204, 2015 WL 1235039, at *6 (M.D. Tenn. Mar. 17, 2015) (observing that nurse practitioners, and "other sources," are not "qualified to render medical opinions"); Hatfield v. Astrue, No. 3:07-CV-242, 2008 WL 2437673, at *2 (E.D. Tenn. June 13, 2008) ("Accordingly, a nurse practitioner's opinion, as 'other source' evidence, is not given the same controlling weight as a 'treating source.'"). Therefore, PA Meyers's opinion was not entitled to controlling weight.

Upon review, the Court notes Plaintiff only argues that the ALJ should have given PA Meyers's opinion either controlling weight or, at the very least, the greatest weight in accordance with 20 C.F.R. §§ 404.1527, 416.927. Plaintiff does not point to any evidence of record, before the ALJ at the time of the decision, which would require remand on this basis. The ALJ clearly articulated her reasoning for giving weight to PA Meyers's opinion that Plaintiff's migraines were a severe impairment and for rejecting PA Meyers's opinion that Plaintiff is incapacitated when she has a headache due to the lack of discussion regarding frequency of the migraines. Thus, the Court declines to remand on this allegation of error.

Listing 11.03 Analysis Regarding Migraine Headaches

Plaintiff contends that her documented migraine disorder meets the requirements of Listing 11.03 as described in Question & Answer No.:09-036. [Doc. 22 at 27.] The Commissioner argues that, while Plaintiff states her migraines meet a neurological listing, she failed to explain how the medical evidence meets any of the requirements. The Court agrees with the Commissioner.

ALJ's Analysis

The ALJ considered Plaintiff's migraines under Listing 11.00 and determined that the medical evidence of record failed to establish evidence of neurological defects. [R. 105.] The ALJ explained as follows:

The claimant's migraine headaches fail to meet or medically equal Listing 11.00 of Appendix 1 impairments. The medical record fails to establish evidence of any neurological deficits. Specifically, the record fails to demonstrate evidence of epilepsy or epileptic seizures (11.02 and 11.03), a central nervous system vascular accident (11.04), a benign brain tumor (11.05), Parkinsonian syndrome (11.06), cerebral palsy (11.07), spinal cord or nerve root lesions (11.08), multiple sclerosis (11.09), amyotrophic lateral sclerosis ( 11.10), anterior poliomyelitis (11.11 ), myasthenia gravis (11.12), muscular dystrophy (11.13), peripheral neuropathies (11.14), subacute combined cord degeneration (11.15), a degenerative disease not listed elsewhere with disorganization of motor functions as described in 11.04B (11.17 A), chronic brain syndrome (11.1 7B), cerebral trauma (11.18), or syringomyelia ( 11.19). Accordingly, the undersigned finds that the claimant's migraine headaches fail to meet or medically equal listing level severity.

[R. 105.] Upon reviewing the medical evidence, the ALJ determined that, while Plaintiff reported worsening headaches, most recently in November 2013 and April 2014, the record did not support a finding that Plaintiff's headaches were frequent or severe enough to result in disability. [R. 115.]

Discussion

To determine whether a claimant's impairments meet or equal a listed impairment, the ALJ identifies the relevant listed impairments and compares the listing criteria with the evidence of the claimant's symptoms. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir.1986) (stating that without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, "it is simply impossible to tell whether there was substantial evidence to support the determination"). "In cases where there is 'ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing." Beckman v. Apfel, No. WMN-99-3696, 2000 WL 1916316, at *9 (D.Md. Dec.15, 2000) (quoting Cook, 783 F.2d at 1172). While the ALJ may rely on the opinion of a State agency medical consultant in conducting a listing analysis, 20 C.F.R. § 404.1527(f)(2)(iii), the ALJ ultimately bears the responsibility for deciding whether a claimant's impairments meet or equal a listing, id. § 404.1527(e)(2). The claimant, however, has the burden of proving that his or her impairment meets or equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004). Remand is not required when an ALJ fails to explain why an impairment does not meet or equal a listed impairment "as long as the overall conclusion is supported by the record." Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).

Migraines are often evaluated under Listing Impairment 11.03. See Thomas v. Colvin, 69 F.Supp.3d 1174, 1178 (D.Colo. 2014)(remanding an ALJ's denial of benefits for improperly evaluating Plaintiff's migraines at step three, noting "[a]lthough there is no separate listing for migraines, the Commissioner has stated that the most analogous listing is section 11.03, which sets forth criteria for non-convulsive epilepsy."). Listing 11.03 covers non-convulsive seizures; however, the effects of a non-convulsive seizure can be very similar to a migraine. See Empire Justice Center, SSA National Q&A 09-036 Migraines ("listing 11.03 ... is still the most analogous listing for considering medical equivalence.") [hereinafter SSA National Q&A 09-036]. The criteria set forth in Listing 11.03 state:

Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.

20 C.F.R. Pt. 404, Subpt. P., App. 1 at § 11.03. In SSA National Q&A 09-036, the Agency clarified which "essential components of listing 11.03" may be most relevant when considering whether a claimant's migraine headaches meet or medically equal a listing. These include:

1. migraines "documented by detailed description of a typical headache event pattern, including all associated phenomena, [such as] premonitory symptoms, aura, duration, intensity, accompanying symptoms, and treatment;"

2. migraines "occurring more frequently than once weekly;"

3. migraines that "[alter] [ ] awareness;" however, "it is not necessary for a person with migraine headaches to have alteration of awareness as long as she has an effect...that significantly interferes with activity during the day," e.g., resting in a darkened room, or lying down without moving.

SSA National Q&A 09-036 at 3-4 (quoting Listing 11.03).

While Plaintiff contends the ALJ did not consider her migraines under Listing 11.03, the decision clearly states the ALJ did not find Plaintiff's migraines met Listing 11.03 because "the record fails to demonstrate evidence of epilepsy or epileptic seizures." [R. 105.] While the basis for the ALJ's conclusion does not appear to square with the considerations provided in SSA National Q&A 09-036 for considering application of Listing 11.03 to migraines, Plaintiff, who carries the burden at this point in the sequential evaluation, failed to explain how the medical evidence would support a finding that the requirements of Listing 11.03 were met. As stated above, Plaintiff has the burden of proving that her impairment meets or equals a listing, and remand is not required when an ALJ fails to explain why an impairment does not meet or equal a listed impairment "as long as the overall conclusion is supported by the record." Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); see also Johnson v. Barnhart, 390 F.3d at 1070. Here, the Court cannot find that the ALJ's overall conclusion, that Listing 11.03 is not met, is not supported by the record. For instance, at least with respect to the frequency of Plaintiff's headaches, the ALJ determined that the evidence was lacking. [See R. 115.] Further, Plaintiff failed to direct the Court to any evidence before the ALJ establishing the frequency of Plaintiff's migraines or evidence of an "associated phenomena" or "significant interference with activity during the day" prior to the ALJ's decision. Accordingly, the Court finds that remand for an additional Listing analysis under Listing 11.03 is not warranted on the basis of Plaintiff's challenge.

Credibility Determination

Plaintiff contends that, while the ALJ did not fail to specify reasons for her adverse credibility determination, the reasons upon which the ALJ relies pre-date the onset of Plaintiff's disability and, thus, requires remand for reconsideration. [Doc. 22 at 30.] Plaintiff contends the "medical records from the appropriate period, February 2013 until the present, fully support [Plaintiff's] testimony with regard to the severity of her headaches and the disabling impact this pain has on her ability to function in the workplace." [Id. at 31.] The Commissioner argues that substantial evidence supports the ALJ's credibility findings. [Doc. 23 at 19.] The Court agrees with the Commissioner.

ALJ's Determination

A review of the ALJ's decision shows the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the Plaintiff's statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely credible. [R. 107.] The ALJ discussed the medical evidence of record from 2009-September 2014 [R. 107-14] and explained her credibility determination as follows:

Although the claimant may have been credible in her complaints in 2010 and 2011, the record reveals that the claimant experienced marked improvement in her abilities. While she was reportedly unable to climb any stairs and required a cane for balance in March 2011, the undersigned notes that the claimant's workers compensation decision found at Exhibit 10D reports that the claimant was observed by a workers compensation coordinator at the local 8th grade graduation wearing two inch heels and walking up the bleachers in the gymnasium. (Exhibit 10D) This is consistent with the lack of treatment notes in 2011. The claimant received pain management treatment from Dr. Patel on February 1, 2011, and treatment notes indicate that she did not return to Dr. Patel until November 2, 2011, at which point the claimant reported that her back pain had returned, indicating that it had gone away. The claimant returned in December 2011 for a follow up, and then did not return until April 2012, when she reported neck pain, and not back pain. In October 2012, the claimant reported that she was walking 5 miles a day, and in June 2014 the claimant stated that she was exercising every day. Although the undersigned has found the claimant's impairments to be severe, the record indicates that her symptoms are intermittent in nature and that the limitations

placed on her in spring 2011 are clearly inconsistent with the improvement documented by her activities of daily living and by the frequency of her medical treatment.

Treatment notes simply fail to indicate the level of dysfunction alleged by the claimant. A review of the medical evidence of record fails to indicate physical findings consistent with the claimant's allegations. The claimant's testimony that she spends 75% of her day laying down is completely inconsistent with the physical evaluations in the record. There is no record of muscle atrophy, and the claimant reported to her physician as recently as June 2014 that she was exercising daily. Additionally, this is inconsistent with the claimant's activities of daily living that include cooking, laundry, dusting, and driving a car.

. . .

The claimant reported worsening headaches most recently in April 2014 and November 2013, however, the claimant did not report her headaches to Dr. Kennedy when she was being evaluated for her appetite suppression medication. The record does not support a finding that the claimant's headaches are frequent and severe enough to result in disability.

[R. 114-15.]

Discussion

The ALJ must make a credibility determination in assessing whether Plaintiff is disabled by pain by following a two-step process involving a finding of the credibility of the individual's statements about symptoms. SSR 96-7p, 1996 WL 374186, at *1. First, "there must be objective medical evidence establishing some condition that could reasonably be expected to produce the pain alleged." Craig v. Chater, 76 F.3d 585, 592 (4th Cir. 1996) (citing Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986)). Second, and only after the threshold obligation has been met, "the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated." Craig, 76 F.3d at 595 (citing 20 C.F.R. §§ 416.929(b), 404.1529(b)).

At the first step, "the pain claimed is not directly at issue; the focus is instead on establishing a determinable underlying impairment ... which could reasonably be expected to be the cause of the disabling pain asserted by the claimant." Craig, 76 F.3d at 594. After "an ALJ concludes that an impairment could reasonably be expected to produce the pain alleged, [at the second step of the credibility inquiry] she ought to view any inconsistency or defect in the plaintiff's subjective testimony through a more discriminating lens because the plaintiff's subjective allegations ... are consistent with the objective expectations." Bragg v. Astrue, C/A No. 8:06-2132-MBS, 2008 WL 348030, at *5 (D.S.C. Feb. 5, 2008). The law is clear that, 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 must 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. The credibility determination "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id.; see also Hammond, 765 F.2d at 426 (stating that the ALJ's credibility determination "must refer specifically to the evidence informing the ALJ's conclusions").

As an initial matter, the Court is reminded that its review is limited to determining whether the ALJ applied incorrect law or failed to provide 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). It is not within the purview of this Court to re-weigh evidence. See 42 U.S.C. § 405(g); Perales, 402 U.S. at 390, 401; Johnson, 434 F.3d at 653. If the ALJ's decision is supported by substantial evidence, the Court must affirm the decision.

Upon review, the Court finds the ALJ clearly considered the evidence of record, not just records limited to dates prior to Plaintiff's disability claim, and determined that her allegations of extreme limitations due to back pain and migraines were not credible. While Plaintiff attempts to characterize the ALJ's decision as being based on a subset of medical evidence prior to her filing for disability, the record clearly shows the ALJ's consideration of and reference to medical evidence both pre-dating and post-dating her disability application. The ALJ provided adequate reasoning for her determination and applied the correct law. Thus, the Court cannot find that the ALJ decision is not based on substantial evidence.

Vocational Expert Testimony

Plaintiff argues that the ALJ improperly ignored the VE's testimony that, if a hypothetical individual would miss two or three days of work a month due to pain, she would be unable to retain or maintain employment. [Doc. 22 at 31.] Plaintiff contends that, based on this testimony, Plaintiff should have been found to be disabled. The Commissioner contends that only limitations that are medically supported and otherwise uncontroverted in the record are required to be included in the hypothetical to the VE. [Doc. 23 at 21.] The Court agrees with the Commissioner.

ALJ's Hypothetical Questions to the VE

The ALJ provided a number of hypothetical questions for consideration by the VE. The first hypothetical assumed,

an individual with degenerative disc disease of the C spine and L spine, obesity and migraines with the following limitations: lifting or carry 20 pounds occasionally, 10 pounds frequently; stand and/or walk about six hours in an eight-hour work day; sit about six hours in an eight-hour work day; occasionally climbing ladders, ropes, scaffolds, ramps, stairs and stooping; frequently balancing, kneeling, crouching, crawl; bilateral overhead reaching limited to occasional, other directions unlimited; avoid concentrated exposure to noise and hazards.

[R. 152.] The VE determined this hypothetical person could perform Plaintiff's past work as an office manager or dispatcher as is generally performed. [R. 152-53.]

The second hypothetical assumed an individual with the same vocational factors and impairments as in the first hypothetical with the following limitations:

lifting or carry 10 pounds occasionally, less than 10 pounds frequently; stand and/or walk at least two hours in an eight-hour workday; sit about six hours in an eight-hour work day; ... never climbing ladders, ropes, scaffolds, frequent balancing, occasionally climbing ramps, stairs, stooping, kneeling, crouching, crawling, bilateral overhead reaching limited to occasional, other directions, unlimited; avoid concentrated exposure to noise and hazards.

[R. 153.] The VE indicated this person could perform Plaintiff's prior work as a dispatcher. [Id.]

The ALJ also posed a third hypothetical to the VE assuming an individual with the impairments of hypothetical number two, including:

degenerative disc disease of the C spine and L spine, obesity, migraines, osteoarthritis of the right knee, and status post hernia repair with the following limitations: lift and/or carry 10 pounds occasionally, 10 pounds frequently; stand an/or walk at least two hours in an eight-hour workday; sit about six hours in an eight-hour workday; pushing and/or puling, right lower

extremity limited to occasional; bilateral upper extremity pushing and/or pulling limited to occasional; never climbing ladders, ropes, scaffolds; frequent balancing; occasionally climbing ramps, stairs, stooping, kneeling, crouching, crawling; bilateral overhead reaching limited to occasional, other directions unlimited; avoid concentrated exposure to noise and hazards.

[R. 154.] The VE testified this person could perform the job of office manager as generally performed. [Id.]

In a fourth hypothetical, the ALJ posed an individual with the same vocational factors and impairments in hypothetical three, but with the following limitations:

lifting or carry 10 pounds occasionally, less thatn 10 pounds frequently; stand and/or walk at least two hours in an eight-hour workday; sit about six hours in an eight-hour workday; pushing and pulling bilateral upper extremity limited to occasional, right lower extremity limited to occasional; never climb ladders, ropes scaffolds; frequent balancing; occasionally climbing ramps, stairs, stooping, kneeling, crouching, crawling; reaching bilateral overhead limited to occasional, other directions unlimited; avoid concentrated exposure to noise and hazards.

[R. 155.] The VE testified that this person could perform Plaintiff's prior work as a truck company dispatcher. [Id.] In a fifth hypothetical, the ALJ asked the VE to considered a person limited as Plaintiff testified to her limitations, assuming her testimony to be credible. [Id.] The VE testified that a person limited as Plaintiff testified would be unable to perform her past relevant work and would be unable to retain or maintain employment. [R. 155-156.]

Counsel for Plaintiff asked the VE to consider a person that, due to pain, would miss two or more days per month of work, or would be off task beyond regular breaks more than 5% of the work day, and the VE testified that there would be no work for this individual. [R. 156-57.]

Discussion

At Step 5, the burden shifts to the Commissioner to "show that the claimant retains the capacity to perform an alternative work activity and that this specific type of job exists in the national economy." Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The Commissioner may carry this burden by obtaining testimony from a VE to assist the ALJ in making the determination. Id. at 192. The purpose of bringing in a VE is to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform. In order for a VE's opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record, and "in response to proper hypothetical questions which fairly set out all of the claimant's impairments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). The ALJ is afforded "great latitude in posing hypothetical questions," Koonce v. Apfel, 166 F.3d 1209, 1999 WL 7864, at *5 (4th Cir. Jan.11, 1999).

"In questioning a vocational expert in a social security disability insurance hearing, the ALJ must propound hypothetical questions to the expert that are based upon a consideration of all relevant evidence of record of the claimant's impairment." English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993). However, there is no requirement that a hypothetical question contain a "function-by-function" assessment, as required when formulating RFC; rather, the governing standard is only that the hypothetical include all of the claimant's credible impairments. Compare SSR 96-8p (explaining in its purpose that "[t]he RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis") with Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.2005) (noting that "the ALJ must accurately convey to the vocational expert all of a claimant's credibly established limitations") (emphasis in original); Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.1989) ("In order for a vocational expert's opinion to be relevant or helpful, 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 [the] claimant's impairments.") (internal citations omitted). Accordingly, if the record does not support the existence of a limitation, the ALJ need not include it in the hypothetical question. See Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006); Shepherd v. Apfel, 184 F.3d 1196, 1203 (10th Cir. 1999).

While Plaintiff contends she would miss 2-3 days of work per month due to migraine headaches, the evidence of record, and conclusions of the ALJ, find that the frequency of Plaintiff's migraines is not established by the medical evidence. As the ALJ concluded, while Plaintiff "reported worsening headaches most recently in April 2014 and November 2013, however, the claimant did not report her headaches to Dr. Kennedy when she was being evaluated for her appetite suppression medication. The record does not support a finding that the claimant's headaches are frequent and severe enough to result in disability." [R. 115.] Additionally, the Court notes a number of treatment records documenting a lack of complaints of headaches by Plaintiff [see R. 629, 639], and/or treatment notes documenting that meds made Plaintiff's headaches better [R. 1084]. Because the ALJ did not find the frequency of Plaintiff's migraines to be a credibly established limitation, the ALJ was not required to pose such limitation (i.e., being absent from work 2-3 times per month due to migraines) to the VE in her hypothetical. Accordingly, the Court finds no error in the ALJ's decision to exclude this limitation from consideration.

New Evidence to Appeals Council

Plaintiff argues that the new evidence provided to the Appeals Council refuted many false assumptions made by the ALJ and, thus, required remand of the decision. [Doc. 22 at 19.] Plaintiff contends the new evidence details the frequency and duration of Plaintiff's headaches and addresses physical findings consistent with Plaintiff's allegations of debilitating pain. [Id.] The Commissioner contends the evidence submitted is not related to the relevant time period and does not undermine the substantial evidence supporting the ALJ's decision. [Doc. 23 at 12.] The Court agrees with the Commissioner.

Appeals Council's Decision

Plaintiff submitted additional medical documentation to the Appeals Council for consideration. [R. 2.] The Appeals Council determined that the additional evidence did not affect the decision about whether Plaintiff was disabled beginning on or before October 31, 2014, as the information was about a later time. [Id.] And, the Appeals Council made it part of the record and denied Plaintiff's request for review. [R. 1, 6.]

Additional Medical Evidence to the Appeals Council

The Appeals Council noted that it reviewed records from Trident Pain Center dated December 2, 2014, to July 29, 2015; from Dr. Thatcher dated December 20, 2014; from PA Meyers dated December 10, 2014; and from Palmetto Primary and Specialty Care Physicians dated December 3, 2014, to July 7, 2015. [R. 2.] Because the ALJ decided the case through October 31, 2014, the Appeals Council concluded that the new information was about a later time and, thus, did not affect the decision. [Id.] These records, however, were placed into Plaintiff's electronic file for use if Plaintiff decided to file a new claim and were made part of this record for review at 33F and 34F. [Id.] The documents were also attached to Plaintiff's request for review. [See R. 12-57.] [See also R. 6, where the Appeals Counsel made Exhibits 18E and Exhibits 33F (Palmetto Primary and Specialty Care Physicians dated August 4, 2014, to October 8, 2014) and 34F (Trident Pain Center dated September 11, 2014, to October 30, 2014) a part of the record.] The relevant evidence is summarized as follows.

On September 25, 2014, Plaintiff was seen at Trident Pain Center by Dr. Thatcher with complaints of a headache, lower back pain and leg pain. [R. 1103.] Plaintiff's lumbar pain was described as moderate pain in the bilateral lumbar paraspinouis musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints. [Id.] Plaintiff reported moderate radiculitis pain with range of motion in the right L5 nerve distribution and S1 nerve distribution to the foot. [Id.] Treatment notes indicate that Plaintiff had not filled her previous prescriptions from her prior visit because she had been accused by Walgreens of "doctor shopping" for Phenergan and Percocet. [R. 1104.] Plaintiff had apparently obtained prescriptions from Dr. Owens for Percocet and had received prescriptions from her hernia surgeon, Dr. Lafond, for Percocet and Phenergan. [Id.] Dr. Thatcher pulled her DHEC and found no concerns when they agreed to take her as a patient, but stated they would monitor. [Id.] Dr. Thatcher noted that Plaintiff may benefit from cervical facets and lumbar TFESI injections, but Plaintiff was skeptical based on past experience. [Id.]

On October 8, 2014, Plaintiff was seen at Palmetto Primary Care Physicians by PA Meyers on follow up for her complaints of fatigue. [R. 1098.] Treatment notes indicate Plaintiff suffers from fatigue and weight gain which is relieved by Phenterimine and her weight loss program; as well as hypertension, which was described as stable. [Id.] Additionally, Plaintiff is noted to suffer migraine headaches which were described as unstable, of intermittent duration, lasting days to weeks, and relieved by Topamax, NSAIDs, Imitrex and Phenergan. [Id.] On examination, PA Meyers noted that Plaintiff denied blurred vision or change in visual acuity; denied nausea and vomiting; denied joint or muscle pain or back pain; denied localized numbness, weakness or tingling; denied depression, anxiety or substance abuse; and denied problems taking her medications. [R. 1098-99.] Plaintiff was alert, oriented to time, place, person; had no difficulty with speech or language; was also noted to have no edema in her extremities, as well as, normal gait, balance, and motor. [R. 1100.] Plaintiff described her headache as "worse," but not the worst headache she's had in her life. [Id.] Plaintiff was given Toradol and Phenergan in the office for her headache, and her prescriptions for Phenergan and Imitrex were refilled. [Id.]

On October 23, 3014, Plaintiff was seen by Dr. Thatcher complaining of headache and neck, lower back and leg pain which were aggravated by movement. [R. 1108.] On general examination, Dr. Thatcher found that, while sensory function was grossly intact in the left upper and lower extremities, Plaintiff had decreased sensation in the right upper and lower extremity to light touch. [Id.] Dr. Thatcher also noted that coordination was normal; muscle strength was grossly intact bilaterally in the upper and lower extremities; and Plaintiff's gait was normal. [Id.] On physical exam, Dr. Thatcher noted moderate pain bilaterally to palpation on the greater occipital nerve; moderate pain in the bilateral cervical paraspinous musculature in the bilateral trapezius muscles to the shoulder with palpation, vixion, rotation and range of motion; and moderate pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints. [R. 1108-09.] Moderate lumbar radiculitis pain with range of motion was also noted in the right L5 nerve distribution and S1 nerve distribution to the foot. [R. 1109.] Dr. Thatcher noted that Plaintiff would be continued on her current medications; that Plaintiff's low back pain, leg pain, neck and shoulder pain were the areas with the greatest pain and that she would be treated when she returned to the clinic. [Id.] Plaintiff's occipital head pain was treated with an occipital nerve block. [Id.] Dr. Thatcher noted that Plaintiff had a long history of headaches/migraines and had been seen by a neurologist but was not happy with her visit. [R. 1109-10.]

On October 30, 2014, Plaintiff was seen by Dr. J. Edward Nolan ("Dr. Nolan") with Trident Pain Center, with complaints of neck pain, lower back pain, hip and pelvic pain, and migraines. [R. 1106.] Plaintiff reportedly fell on October 22, 2014, and went to Trident Hospital on October 27, 2014, and was given Morphine IM while in the emergency room. X-rays of the lumbar spine, right hip and pelvis were taken while Plaintiff was at the emergency room. [Id.] Plaintiff described significant muscle spasms which Dr. Nolan treated with trigger point injections. [Id.] Plaintiff's lumbar spine X-ray showed grade 1 spondylolisthesis L4-L5 which appeared to be old healed spondylolysis; facet arthropathy at L5-S1; degenerative disc disease at L4-5; and no acute fractures elsewhere. [R. 1113.] Plaintiff's hip X-ray showed no fracture or bony destruction, as well as anatomic alignment. [R. 1114.]

On December 30, 2014, Plaintiff was seen by Dr. Nolan for complaints of low back and bilateral hip pain. [R. 46.] Plaintiff reported having a lumbar facet injection in December 15, 2014, which provided minimal initial relief and lasted only two weeks. [Id.] On general exam, Plaintiff's tendon reflexes were intact and symmetrical in her bilateral upper and lower extremities; sensory was grossly intact in the bilateral upper and lower extremities; coordination was normal; muscle strength was grossly intact in the bilateral upper and lower extremities. [Id.] On physical exam, Plaintiff had moderate pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints. [R. 47.] Plaintiff also had moderate lumbar radiculitis pain with range of motion in the right L5 distribution and S1 nerve distribution to the foot. [Id.] Plaintiff's low back pain was noted to be the area of greatest pain, and Dr. Nolan ordered a transforaminal steroid injection at the bilateral L5 nerve root and S1 nerve root level, as well as a facet lumbar injection at L3/L4, L4/L5, L5/S1. [Id.]

On February 3, 2015, Plaintiff was seen by Dr. Thatcher for lower back, hip and pelvis pain. [R. 42.] Plaintiff indicated that a lumbar facet injection on December 30, 2014, actually increased her pain level. [Id.] Plaintiff's reflexes were intact bilaterally in the upper and lower extremities; coordination was normal; muscle strength decreased 4/5 (good) in the right lower extremity; tone was normal; and gait was antalgic. [Id.] On physical exam, Plaintiff had mild pain in the bilateral cervical paraspinous musculature into the bilateral trapexius muscle to the shoulder with palpation, flexion, rotation, and range of motion. [R. 42-43.] Plaintiff had moderate cervical radiculitis pain with range of motion in the right C5-C6 nerve distribution to the hand. Additionally, Plaintiff had severe lumbar radiculitis pain with range of motion in the right L5 nerve distribution and S1 nerve distribution to the foot with associated weakness. [R. 43.] Dr. Thatcher noted that Plaintiff reported no relief with her lumbar facet injections and that her Lyrica had been increased. [Id.] Dr. Thatcher also continued Plaintiff on her current medications and noted that her insurance continued to deny her lumbar TFESI injections for treatment of her right lower extremity radiculopathy. [Id.] Dr. Thatcher referred Plaintiff to neurology for a lower extremity EMG/NCS study. [Id.]

On March 5, 2015, Plaintiff saw Dr. Thatcher for her hip, shouler back, leg and neck pain. [R. 37.] Her reflexes were intact and symmetrical; coordination was normal and gait antalgic. [Id.] On physical exam, Plaintiff had moderate pain in the bilateral cervical paraspinous musculature into the right trapezius muscle to the shoulder with palpation, flexion, rotation and range of motion. [Id.] Plaintiff also had moderate pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the fact joints. [Id.] Plaintiff also had moderate lumbar radiculitis pain with range of motion in the right L5 nerve distribution to the foot. [R. 38.] Dr. Thatcher increased Plaintiff's MS Contin due to inadequate pain control and refilled her pain cream. [Id.] Dr. Thatcher noted that she was awaiting EMG/NCS results for Plaintiff's upper and lower extremities. [Id.]

On April 3, 2015, Plaintiff was seen by Dr. Thatcher for lower back, hip, neck and shoulder pain. [R 33.] On physical exam, Plaintiff had moderate pain in the right cervical paraspinous musculature into the right trapezius muscle to the shoulder with palpation, flexion, rotation and range of motion. [Id.] Plaintiff also had moderate pain in the right lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints. [R. 34.] Dr. Thatcher noted that, due to reports of worsening symptoms, and no relief from the lumbar facet injections, a new MRI was ordered to analyze the progression of symptoms. [Id.] Plaintiff's low back and leg pain were the areas of greatest pain. [Id.] Dr. Thatcher planned to administer a right L5 nerve root and S1 nerve root transforaminal lumbar steroid injection upon Plaintiff's return to the clinic. [Id.]

On April 29, 2015, Plaintiff saw Dr. Thatcher for her right hip, right arm, shoulders and low back pain. [R. 29.] On physical exam, Plaintiff showed moderate pain in the bilateral cervical paraspinous musculature into the bilateral trapezius muscles to the shoulder with palpation, flexion, rotation and range of motion even to light touch with palpable paraspinous myospasms present with decreased cervical spine range of motion. [Id.] Plaintiff also had severe pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints with palpable paraspinous myospasms present. [R. 30.] Plaintiff also had moderate lumbar radiculitis pain with range of motion in the right L5 nerve distribution to the foot. [Id.] Plaintiff was counseled to continue her current medications a prescribed. [Id.] Dr. Thatcher also noted that Plaintiff was seen by a neurologist at MUSC, Dr. Walker, who feels like Plaintiff has fibromyalgia. [Id.] Plaintiff was scheduled for an MRI of the brain on May 8, 2015, and was given a prescription for Savella which she could not fill until May due to a lack of prescription slots available with her insurance. [Id.] Plaintiff also underwent EMG/NCS studies in Dr. Walker's office due to the lack of clear etiology for all of Plaintiff's symptoms. [Id.]

An MRI of Plaintiff's lumbar spine dated May 18, 2015, showed mild degenerative disc disease L4-L5 with slight progression of the degenerative change as expected over the interval. [R. 27.] The degenerative changes at both L4-L5 and L5-S1 were slightly worse. [Id.] The MRI also showed Grade 1 degenerative anterolisthesis of the L4 on L5; moderate to severe facet atropathy at L3-L4 through L5-S1 with edema in the facet joints suggesting active facet arthropathy; and contact and slight deflection of both neural foramen L4-L5 and both neural foramen L5-S1. [Id.] No severe central or exit stenosis was noted. [Id.]

On May 28, 2015, Plaintiff was seen by Dr. Thatcher for hip, knee and shoulder pain. [R. 22.] Plaintiff's reflexes were intact and symmetrical; gait was antalgic; muscle strength was decreased 4/5 (good) in the right lower extremity; and coordination as normal. [Id.] On physical exam, Dr. Thatcher noted that Plaintiff had moderate pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints with overreaction to light touch with palpable paraspinous myospasms present. [Id.] Plaintiff also had moderate lumbar radiculitis pain with range of motion in the right L5 nerve distribution to the foot. [R. 22-23.] Plaintiff was directed to continue to take medications as directed. Dr. Thatcher noted that Plaintiff's insurance continued to deny injections to treat her radicular symptoms. [R. 23.] Treatment notes indicate Plaintiff also started a Savella titration pack to treat her fibromyalgia. [Id.]

On June 25, 2015, Plaintiff was seen by Dr. Thatcher complaining of pain in the neck, lower back and leg that was constant and aggravated by movement and touch. [R. 17.] On general exam, Plaintiff's reflexes were intact and symmetrical; coordination as normal; her gait was antalgic, and Plaintiff used a cane/crutch for ambulation. [Id.] On physical exam, Dr. Thatcher noted moderate pain in the bilateral cervical paraspinous musculature into the bilateral trapezius muscles to the shoulder with palpation, flexion, rotation and range of motion. [Id.] Dr. Thatcher also noted moderate pain in the bilateral lumbar paraspinous musculature in a band-like distribution with extension and rotation of the spine with tenderness to palpation overlying the facet joints. [Id.] Lastly, Dr. Thatcher noted moderate lumbar radiculitis pain with range of motion in the right L5 nerve distribution to the foot. [R. 18.] Dr. Thatcher continued Plaintiff on her current medications as previously prescribed. [Id.]

Treatment notes dated July 29, 2015, from Dr. Thatcher show that Plaintiff was seen for complaints of low back, neck and upper extremity pain which she described as dull, sharp, aching, burning, throbbing, tingling, shooting, constant and aggravated by movement. [R. 13.] Plaintiff's reflexes were intact and symmetrical; her coordination was normal; but she was using a cane/crutch for ambulation. [Id.] On physical exam, Plaintiff had moderate pain in the bilateral cerivcal paraspinous musculature into the bilateral tapezius muscles to the shoulder with palpation, flexion, rotation and range of motion. [R. 13-14.] Plaintiff also had mild cervical radiculitis pain with range of motion the left C6 nerve distribution with associated numbness to the hand. [R. 14.] Plaintiff was advised to continue using current medications as previously described. [Id.]

Discussion

After the ALJ renders a decision, 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. §404.968; see also id. § 404.970(b) (stating that the Appeals Council will consider new and material evidence)⁹, and 20 C.F.R. § 404.973 ("The Appeals Council will consider all the evidence in the administrative law judge hearing record as well as any new and material evidence submitted to it which relates to the period on or before the date of the administrative law judge hearing decision.")

9 As a part of this mandate for the Appeals Council, district courts of the Fourth Circuit consistently have held that relevant evidence dated after the ALJ hearing decision can "relate[ ] to the period on or before the date of the administrative law judge hearing decision" under §404.970(b). See, e.g., Nance v. Astrue, No. 7:10-CV-218-FL, 2011 WL 4899754, at *7 (E.D.N.C. Sept. 20, 2011) report and recommendation adopted, No. 7:10-CV-218-FL, 2011 WL 4888868 (E.D.N.C. Oct. 13, 2011) (remanding the case to the ALJ after finding "relevant" a medical report of the claimant's medical condition that was dated close to six months after the ALJ's decision); Venters v. Astrue, No. CIV.A. TMD 08-1736, 2010 WL 481246, at *3 (D.Md. Feb. 4, 2010) (remanding the case to the ALJ and stating: "Although prepared after the ALJ's decision, Dr. Mathur's report pertains to Claimant's pre-decision period."). As for the other two requirements under §404.970(b), "[e]vidence ... 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." Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (citing Wilkins, 953 F.2d at 96). --------

In Meyer v. Astrue, the Fourth Circuit held that

the regulatory scheme does not require the Appeals Council to do anything more than ... "consider new and material evidence ... in deciding whether to grant review." Wilkins [v. Sec'y, Dep't of Health & Human Servs.], 953 F.2d [93,] 95 [ (4th Cir. 1991) ]; see also Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2006) (finding "nothing in the statutes or regulations" requires the Appeals Council to articulate its reasoning when "new evidence is submitted and the Appeals Council denies review"); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992) (rejecting contention that Appeals Council must "make its own finding" and "articulate its own assessment" as to new evidence when denying review); Damato v. Sullivan, 945 F.2d 982, 988-89 (7th Cir. 1992) (holding that "the Appeals Council may deny review without articulating its reasoning" even when new and material evidence is submitted to it).

Meyer v. Astrue, 662 F.3d 700, 706 (4th Cir. 2011) (footnote omitted). However, the Court went on to note,

Although the regulatory scheme does not require the Appeals Council to articulate any findings when it considers new evidence and denies review, we are certainly mindful that "an express analysis of the Appeals Council's determination would [be] helpful for purposes of judicial review." Martinez, 444 F.3d at 1207-08; see also Damato, 945 F.2d at 989 n.6 (noting that in "fairness to the party appealing the ALJ's decision, the Appeals Council should articulate its reasoning" when it rejects new material evidence and denies review).

Id.

As the Fourth Circuit addressed in Meyer, the difficulty arises under this regulatory scheme on review by the courts where the newly produced evidence is made part of the record for purposes of substantial evidence review but the evidence has not been weighed by the fact finder or reconciled with other relevant evidence. Meyer held that as long as the newly presented evidence is uncontroverted in the record or all the evidence is "one-sided," a reviewing court has no difficulty determining whether there is substantial evidence to support the Commissioner's decision. Id. at 707. However, where the "other record evidence credited by the ALJ conflicts with the new evidence," there is a need to remand the matter to the fact finder to "reconcile that [new] evidence with the conflicting and supporting evidence in the record." Id. Remand in the face of conflicting evidence is necessary because "[a]ssessing the probative value of the competing evidence is quintessentially the role of the fact finder." Id.

Here, because the Appeals Council made additional records part of the administrative record, this Court reviews the record as a whole including those additional records to determine whether the Commissioner's final decision is supported by substantial evidence and reached through application of correct legal standards. Meyer, 662 F.3d 700, 704. Upon review, the Court finds that the additional evidence made part of the record by the Appeals Council does not require reversal of the Commissioner's decision because substantial evidence supports the decision.

As an initial matter, considering the ALJ's decision in light of the new evidence, the Court has failed to discern a basis for remanding this case for further fact finding because the new evidence does not appear to have any bearing upon whether Plaintiff was disabled during the relevant time period addressed in the ALJ's hearing decision. See 20 C.F.R. §404.970(b); Reichard v. Barnhart, 285 F. Supp. 2d 728, 733 (S.D.W.Va.2003) (citations omitted) (The requirement that new evidence must relate to the period on or before the date of the ALJ's decision, "does not mean that the evidence had to have existed during that period. Rather, evidence must be considered if it has any bearing upon whether the Claimant was disabled during the relevant period of time."). Although Plaintiff attempts to describe the evidence as indicative of a condition that was present prior to the ALJ's decision, none of the physicians or medical experts made such a linkage to the relevant time period. The evidence with respect to Plaintiff's fibromyalgia diagnosis and worsening degenerative changes at both L4-L5 and L5-S1, at best, shows a worsening of her condition after the ALJ's decision and not a condition to that level of severity at the time of the ALJ's decision; thus, this new evidence is not material. Bishop v. Astrue, C/A No. 1:10-2714-TMC, 2012 WL 951775, at *4 (D.S.C. Mar. 20, 2012) (finding that new evidence was not material where physician's opinion did not address whether or not Plaintiff was disabled during the relevant time period, quoting Edwards v. Astrue, 2008 WL 474128, at *9 (W.D. Va. Feb. 20, 2008) ("The [new records] do not relate back to the relevant time period as they were both done over 6 months after the ALJ rendered his decision.")); see also Johnson v. Barnhart, 434 F.3d 650, 655-656 (4th Cir.2005) (holding that the opinion of a treating physician rendered nine months after the claimant's date last insured was irrelevant).

And, until February 3, 3015, it appears that Plaintiff's gait was consistently non antalgic, also suggesting a worsening of Plaintiff's condition after the ALJ's decision. Furthermore, the treatment notes from Drs. Thatcher and Nolan, as well as PA Meyers, outside of referencing worsening symptoms after the date of the ALJ's decision, do not appear to be inconsistent with the evidence before the ALJ prior to his decision; thus, this additional evidence is cumulative at best.

It appears that the Appeals Council considered the additional evidence in deciding whether to grant review, as required by Meyer. And, the Appeals Council articulated the reason it denied review—the information was about a later time—even though it was not required to articulate any findings. Upon review of the Appeals Council's denial of review, the additional evidence, and the ALJ's decision, this Court finds that the Commissioner's decision is supported by substantial evidence and the Commissioner applied correct legal standards.

CONCLUSION AND RECOMMENDATION

Based upon the foregoing, it is recommended that the decision of the Commissioner be AFFIRMED.

IT IS SO RECOMMENDED. July 18, 2017
Greenville, South Carolina

s/Jacquelyn D. Austin

United States Magistrate Judge