Davis
v.
Comm'r of Soc. Sec. Admin.

This case is not covered by Casetext's citator
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISIONJul 31, 2018
Case No. 2:17-cv-1392-RBH-MGB (D.S.C. Jul. 31, 2018)

Case No. 2:17-cv-1392-RBH-MGB

07-31-2018

Shari Lynn Davis, Plaintiff, v. Commissioner of Social Security Admin., Defendant.


REPORT AND RECOMMENDATION

Plaintiff, through counsel, seeks judicial review of an unfavorable final administrative decision denying her applications for a period of disability and disability benefits ("DIB") and supplemental security income ("SSI") pursuant to the Social Security Act ("SSA"). See 42 U.S.C. § 405(g); Titles II and XVI of the SSA, 42 U.S.C. §§ 401-434. The matter was referred to the assigned United States Magistrate Judge for review pursuant to Local Civil Rule 73.02(B)(2)(a) and 28 U.S.C. § 636(b)(1)(B). Having carefully considered the parties' briefs (DE# 13, 14, 22), administrative record (DE#9), and applicable authority, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be affirmed , for following reasons:

I. Standard of Review

The Court's review of the Commissioner's final decision is limited to: (1) whether substantial evidence supports such decision; and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lewis v. Comm'r, 858 F.3d 858, 865 (4th Cir. 2017). "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Substantial evidence is defined as "more than a mere scintilla but less than a preponderance." Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996). The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). If the decision is supported by substantial evidence, the reviewing court must affirm, even if it would have decided the case differently. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) ("Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [administrative law judge].").

II. Relevant Statutory Law

The SSA provides that disability benefits are available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are disabled within the meaning of the statute. 42 U.S.C. § 423(a). The claimant must produce evidence and prove that she is disabled under the SSA, § 205(g), 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981) (the claimant "bears the burden of proving a disability"). Under the SSA, "disability" means 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 months." 42 U.S.C. § 423(d)(1)(A).

The Social Security regulations set forth a five-step sequential process that considers a plaintiff's age, education, work experience, and medical condition. 20 C.F.R. §§ 404.1520(a). To be entitled to benefits, a cliamant "(1) must not be engaged in substantial gainful activity, i.e., currently working; and (2) must have a severe impairment that (3) meets or exceeds the listings of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity ["RFC"] to (4) perform [the claimant's] past work or (5) any other work." Albright v. Comm'r, 174 F.3d 473, 475 n.2 (4th Cir. 1999); Lewis, 858 F.3d at 860-61. Plaintiff has the burden to show disability and bears the burden of production through the fourth step. Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). If Plaintiff reaches step 5, the burden of production shifts to the Commissioner to provide evidence that other work exists in significant numbers in the national economy that Plaintiff can do. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam).

III. Background

A. Procedural History

The relevant facts have been fully set forth in the ALJ's decision (AR 32-44) and in the parties' briefs (DE# 13, 14, 22), and need only be summarized here. Plaintiff was born July 30, 1967. (AR 43). She was age 42 ("younger") on her alleged disability onset date of April 12, 2010. See 20 C.F.R. § 404.1563. Plaintiff has a high school education, is literate, and communicates in English. (AR 43, 304, 306, 340). After graduating from high school, she took some college classes at Hunter Business School but did not finish the program. (AR 64). Plaintiff lives alone in a two-story townhome, and has six adult children who live on their own. (AR 63). Plaintiff indicates she worked as an inventory auditor specialist (2002-05) and was also self-employed doing part-time hair braiding. She testified she had worked part-time because of her children. (AR 67). Plaintiff testified that she worked at Sandy's Café as a barmaid and cook for several years, allegedly without pay. (AR 35, 37, 68-70). As Plaintiff had low reported earnings, the ALJ found that Plaintiff's documented work history did not amount to substantially gainful activity. (AR 65-67).

An ALJ may properly note that the claimant was not working for reasons other than alleged disability See, e.g., Guthrie v. Colvin, 2014 WL 2575318, *7 (E.D.N.C. June 9, 2014).

The ALJ appropriately noted that "a poor work history can lessen a claimant's credibility" and observed that Plaintiff's work history "raises a question as to whether the claimant's continuing unemployment is actually due to medical impairments." (AR 37, citing Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir.1993)). The ALJ pointed to inconsistencies in Plaintiff's testimony suggesting that she "has worked in the past without reporting her income' and that this "raises the possibility that the claimant is currently working and not reporting her income" which "damages the credibility of her allegations of disability." (AR 38). A claimant's work history, or lack thereof, may support an adverse credibility determination. See Evans v. Colvin, 2016 WL 7852485, *6 (E.D.N.C. Dec. 21, 2016) (upholding ALJ's determination where claimant had earned income "under the table" for years), adopted, 2017 WL 244817 (E.D.N.C. Jan. 19, 2017).

In her application, Plaintiff indicated she worked 2002-2005 in sales/loss prevention for a clothing store, as an inventory specialist in 2007-2008, and as a cashier at a grocery store in 2008. (AR 306, 313). Elsewhere, she indicates she worked 2002-2005 as a retail sales person, 2003-2008 as an inventory auditor specialist, and was self-employed doing hair-braiding in 2005. (AR 343). The ALJ observed other significant inconsistencies. For example, the ALJ noted that several years after Plaintiff's alleged disability date, she reported to her doctor in November 2012 that she had been working as a barmaid. (AR 37, 39). Although Plaintiff testified that she was self-employed in 2005 as a hair braider and had stopped doing this (AR 65), she told her doctor in 2015 that she continued to braid hair (AR 42, 640).

On July 17, 2013, Plaintiff (through counsel) filed applications for DIB and SSI benefits, alleging disability as of April 12, 2010, due to left knee/ankle injury, high cholesterol, osteoarthritis, osteopenia/osteoporosis, sciatica, depression, spinal injury, and acid reflux. (AR 105, 305, 341). Plaintiff's application indicated she had not worked since March 31, 2008 (AR 342), but she testified at the hearing that she stopped working on December 20, 2011, even though she alleges a disability onset date of April 12, 2010. (AR 68). For purposes of her DIB claim, her last insured date was December 31, 2010. (AR 358, 360). The applications were denied initially and on reconsideration. On April 1, 2014, Plaintiff's counsel (Rotstein & Shiffman, LLP) requested an administrative hearing. (AR 178-79). The hearing was scheduled for July 13, 2015 (AR 219-21, Hearing Notice, cautioning that failure to appear without a good reason would result in dismissal). Counsel filed a notice of withdrawal from representation on June 25, 2015 (AR 218).

The July 2015 hearing was re-scheduled for November 18, 2015. This gave Plaintiff nearly five months to obtain new counsel. (DE# 227, Notice of Hearing, including attached explanatory pages entitled "Your Right to Representation;" AR 245 "Notice of Hearing - Important Reminder"). Plaintiff failed to timely appear for the hearing and requested another hearing date (AR 53-54, 249). The hearing was re-scheduled for November 30, 2015. (Id.). On that date, Plaintiff showed up without counsel and asked for another continuance in order to obtain new counsel. (Id.). The Administrative Law Judge ("ALJ") Tammy Georgian granted Plaintiff's request and rescheduled another hearing date (fourth) for February 23, 2016. (AR 53-57, 250). The ALJ cautioned Plaintiff that no further continuances would be granted, absent extenuating circumstances. (AR 54). Plaintiff was sent a written notice and a reminder of the new hearing date. (AR 268).

On February 23, 2016, Plaintiff again appeared without counsel, despite having been given an additional three months to obtain counsel. When Plaintiff claimed that a law firm was "considering" representing her (AR 54, 57), the ALJ briefly delayed the hearing (AR 60) while Plaintiff contacted the law firm. However, contrary to Plaintiff's allegation, the law firm advised the ALJ that it had already told Plaintiff several weeks earlier on February 12, 2016 that it would not represent Plaintiff. (AR 60). When Plaintiff indicated she had a form to "withdraw her hearing request," the ALJ asked Plaintiff if she was going to file it. Plaintiff indicated she was not going to do so. Based on Plaintiff's statement, the ALJ proceeded with the hearing. (AR 57). Plaintiff produced some additional documents, which the ALJ admitted into evidence. (AR 61). Plaintiff and vocational expert Dr. Kerry A. Washington, Ph.D. ("VE") both testified (AR 51-80). The ALJ considered the opinion evidence, including the mental and physical assessments of the state agency experts Dr. Mark Gilson, Ph.D., Dr. Lina Caldwell, M.D., Dr. Lisa Clausen, Ph.D, and Dr. Hugh Wilson, M.D. (Exs. 4A, 5A, 10A, 11A, 1/28/2014). On March 14, 2016, the ALJ issued a decision, finding that Plaintiff was not disabled from the alleged onset date through the date of decision. (AR 32-44). The Appeals Council denied Plaintiff's request for review, and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.

B. Summary of Medical Evidence

The ALJ's decision (AR 32-44) and the parties' briefs (DE# 13, 14) have already set forth Plaintiff's medical history, and such evidence need only be summarized here. Plaintiff indicates that in 2005 (while living in New York), she would get "stressed out" and her heart would "start raising," but that medication and counseling resolved the symptoms. (AR 96). She indicated she has not needed a refill since then. After filing her applications, Plaintiff's then-counsel obtained and submitted over three hundred pages of medical records spanning 2011-2015.

On August 5, 2011, Plaintiff (while living in Georgia) injured her left leg. (AR 434, 445). She was seen at the emergency room by Dr. Brett Atchley, M.D. (AR 442). X-rays showed "nothing acute" (AR 440). She was diagnosed with dislocation of patella and sprain of cruciate ligament. (Id.). She was given ice, a splint, crutches, and pain medication. (Id.). The notes reflect that upon discharge, she described her pain as a "1/10." (AR 440). She was discharged as "stable and ambulatory," with the ability to flex and extend the knee (Id.). A lumbar x-ray on August 8, 2011 showed "mildly" narrowed disc space at L3-4. (AR 462-64). After Plaintiff was in a car accident in September 2011, Dr. Cleave Ham, M.D. examined Plaintiff's knee on 09/29/2011 and found no evidence of any acute fracture and indicated the "bony structures [were] grossly intact" (AR 476, but noting some soft tissue swelling).

As the Commissioner and ALJ have observed (DE# 14 at 6; AR 38), Plaintiff gave widely varying accounts of how she was injured. (AR 435, 440, 452, 458, 481, 544; Exs. 1F, 2F, 4F, 7F, reporting she hurt her knee "while running," while "standing in her yard," when she fell through a floor, or while taking care of her quadriplegic cousin).

On October 31, 2011, Plaintiff had an MRI of her left knee. The medical notes indicate that Plaintiff's quadriceps, patellar tendons, and medial meniscus were all intact. (AR 474, "no convincing evidence of meniscal tear"). The MRI did reveal a "mild sprain" (but no tear) of the MCL, a "mild partial" tear of the ACL and PCL ligaments, and a partial tear of the biceps femoral tendon. (AR 474, notes by Donald Olofsson, D.O.). On December 20, 2011, Dr. Dennis Fisher, M.D. indicated on a pre-printed form that Plaintiff was "unable to work," but he stated no reasons, gave no diagnosis or prognosis, and provided no explanation for such conclusion. (AR 627, indicated date of care from September 20, 2011 to "indefinitely"). Plaintiff did not see this doctor again. (AR 68). Plaintiff was discharged from physical therapy on January 17, 2012, at which time she was able to slowly "walk about a mile" (AR 481).

Plaintiff had several doctor visits in 2012. On October 4, 2012 she had an x-ray that showed "very mild osteoarthritis" and some moderate soft tissue swelling around her ankle. (AR 68). On November 5, 2012, she went to Roper St. Francis for evaluation of her left knee. (AR 544). The notes indicate that Plaintiff's left knee had no significant swelling and normal alignment. (Id.). Plaintiff reported that she had been working, that her feet would sometimes swell after she had been standing for a long time, and that she had no previous history of problems with her left knee, other than the 2011 injury. (Id.). Plaintiff reported that she had undergone physical therapy, which had improved her walking. Medical notes indicate that Plaintiff was able to walk with "a smooth gait pattern" but was cautious. (Id.). The diagnosis was a "sprain." (AR 545).

Plaintiff testified that she did not visit any doctors in 2013 and attributed this to alleged transportation issues. (AR 70). However, the records show that she went to the Trident Hospital Emergency Room on 7/16/13 and 7/30/2013 for some "moderate" back pain that reportedly began two weeks earlier. (AR 102, 110, 604, 608). At the 7/16/13 visit, Dr. Charles Staples, M.D., observed "mild ttp lumbar" and diagnosed sciatica. He advised Plaintiff to not lift anything over 15 lbs. until the pain was gone, to "rest and relax" her back muscles, use an icepack for a few days, and take Tylenol for any pain. Dr. Staples also diagnosed Plaintiff as having a small kidney stone and advised her to drink plenty of fluids and "to stay as active as possible." (AR 602, 605). Two weeks later at the follow-up visit on 7/30/2013, Plaintiff's back pain was noted to be "stable and improved," straight leg raising was negative with no spasms, she was neurologically "intact," and "no ttp." (AR 102, 110). X-rays on 1/28/2013 revealed only minimal osteoarthritic changes. (AR 102). Plaintiff testified that she took Naproxen and over-the-counter ibuprofen for any back pain.

The notation "mild ttp" stands for "mild tenderness to palpation."

Plaintiff went to MUSC on October 17, 2014 complaining of left facial pain after eating crabs two months earlier (AR 637, examination reflected no mandible fracture, normal ROM neck/musculoskeletal, and normal mood and affect). She was diagnosed with "TMJ" of her jaw. The notes expressly indicate "conservative treatment" was discussed with patient. (AR 639). She also went to a doctor for a cold and/or sore throat and some transient gynecological symptoms. (AR 663, 09/08/2015). The examination notes indicate "normal motor in all extremities," neck supple, no lymphadenopathy, and normal mood and affect. (Id.). At a follow-up visit, the notes indicate that Plaintiff reported she had previously been told "she might" have rheumatoid arthritis, but she was well-appearing, in no distress, walked with a normal gait, had 5/5 proximal muscle strength, and intact sensation. (AR 647-48, 09/22/2015). Additional notes indicate "back; no spinous process tenderness," and that her left Achilles was her "most symptomatic" issue (AR 651). Plaintiff testified she had been walking for exercise and doing water aerobics, but had recently stopped due to soreness in her Achilles tendon. (AR 71-72). Although Plaintiff had only a few tender points, the doctor placed her on Plaquenil for possible lupus. (AR 634). Plaintiff then saw a rheumatologist, who determined that Plaintiff did not have lupus (AR 40, "rheumatoid factor and ESR returned within normal limits;" AR 647, 9/22/2015, Dr. Edwin Smith, M.D., "I do not think she has ALE at this time," observing normal gait, 5/5 muscle strength, intact sensation, neck supple, normal mood and affect, and only a "few" tender points). Although Plaintiff testified that the rheumatologist diagnosed her with rheumatoid arthritis, the ALJ accurately noted that the "testing was returned as normal." (AR 40, 72-73, 648, medical notes indicating "our labs revealed ...she has a negative ENA panel and normal complements;" see also AR 643, 09/01/2015, MUSC Dr. Edwin Smith, M.D., "her symptoms are not completely consistent with rheumatoid arthritis").

On October 5, 2015, Plaintiff returned to MUSC, where Dr. James Oates, M.D. saw Plaintiff for reported "urinary urgency." He noted that she had a "large fluid intake of 3+ liters per day," that any other "pain has decreased greatly," and that patient "states Achilles pain has resolved." (AR 653). The ALJ observed that both Dr. Oates and Dr. Smith had indicated that Plaintiff did not have a definitive diagnosis of lupus. (AR 41). Plaintiff had some lab tests done on November 1, 2015. (AR 642). At a visit with a nurse practitioner on 11/16/2015, Plaintiff reported some left ankle and shoulder pain. The notes indicate that Plaintiff acknowledged that the pain was "improved by medications, including over the counter" and that she had been told to wear supportive footwear for her Achilles tendon, but had been wearing "her normal flats" instead. (AR 656). Examination reflected that Plaintiff's back had normal range of motion ("ROM") without pain, and she had some "Achilles tendon tenderness but tendon intact with normal flexion." (AR 657). Another examination on December 15, 2015 revealed that Plaintiff had normal cervical, thoracic, and lumbosacral spine. (AR 41, citing Ex. 18F). Plaintiff testified that she went to Fetter Health Care for the first time the following year on 2/15/2016 for medication refill and some routine bloodwork (CBC, lipid panel). (AR 71, 681).

Although MUSC physicians had ruled out lupus and rheumatoid arthritis, the Fetter notes list "reasons for visit" as "lupus and rheumatoid arthritis" without indicating any objective basis for such notation. This suggests it was based on self-reported statements by Plaintiff. In any event, the note does not indicate it was prepared by a physician or based on any examination (or diagnostic testing) by a physician.

C. Activities of Daily Living

For her activities of daily living, Plaintiff indicates she lives alone in a two-story townhome, goes shopping for groceries, does all her own household chores, takes care of her dog, cooks meals, washes dishes, does 7 loads of laundry at the laundromat every month, vacuums for 30 minutes, mops for 30 minutes, climbs the stairs in her home at least twice a day, plays computer games on the computer, uses the internet and Facebook to keep up with her six adult children, attends church for three hours several times per month, manages her own funds, pays her bills, and uses a checking account. (AR 35, 63, 74-76, 95-96). She has a permit to drive and sometimes borrows a friend's car, which she drives without any limitations (AR 63, 95). She is able to dress herself, take care of her personal hygiene, and does not need reminders to take medication. She indicates she is can lift 30 pounds, and 10 pounds frequently. (AR 96). She testified that after her alleged onset date, she worked without pay, cooking and working behind the bar at a restaurant, which involved standing for up to four hours at a time. When Plaintiff was discharged from physical therapy on January 17, 2012, she was able to slowly walk about a mile (AR 481). Although Plaintiff had some occasional pain and other complaints (such as a fall and/or sprain from which she recovered), numerous medical records (2012-2015) indicate that she generally walks with a normal gait (AR 544, 550, 574, 577, 580, 583, 595, 642, 647, 653, 655-567, 678).

IV. Summary of the ALJ's Decision

After considering the evidence as a whole, the ALJ determined that Plaintiff's degenerative disc disease, osteoarthritis, and obesity were "severe" impairments for purposes of the SSA. (AR 34, Finding 3). See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. §§ 404.1520(d), 1525, 1526. The ALJ found that Plaintiff's alleged depression/anxiety was non-severe. (AR 34). The ALJ considered the "B" criteria and found that this caused no more than minimal limitations in her ability to perform basic mental work activities. (AR 35). Plaintiff had only mild limitation in daily activities and social functioning, no limitation in concentration, persistence and pace, and had experienced no episodes of decompensation. (Id.).

The ALJ determined that Plaintiff's impairments, singly or in combination, did not meet or medically equal the criteria for any Listings, including Listings 1.0, 3.0, and 4.0. (AR 35-36, Finding 4). The ALJ indicated she had specifically considered Plaintiff's obesity, and found that by itself, it was not medically equivalent to any Listing. The ALJ indicated she had specifically considered the cumulative effect of the impairments, including obesity, and that even in combination, they did not meet or medically equal any Listing. (Id.). The ALJ explained that she had considered the effects of obesity on the specific Listings 1.0, 3.0, and 4.0, including the "guidance contained in those listings about the effects of obesity." (AR 36). The ALJ discussed Listing 1.02A (knee problems), 1.04 (back problems), and observed that Plaintiff was able to walk normally at a reasonable pace, did not need a cane, and was able to travel without companion assistance. (AR 36).

The ALJ determined that Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (AR 36-37). The ALJ discussed various reasons for this finding, including Plaintiff's poor work history, the possibility that Plaintiff had been working but not reporting her earnings, her inconsistent testimony, her ability to engage in a wide range of daily activities that were inconsistent with symptoms of disabling severity, and the fact that Plaintiff's level of medical treatment was not consistent with her allegations of debilitating symptoms. (AR 37-38). Although Plaintiff reported some pain periodically, she indicated it was controlled with medication, including over-the-counter pain medication. Plaintiff acknowledged that she had not sought other treatment, and notes indicate she was often not compliant with medical recommendations. (AR 102, noting "poor compliance"). The ALJ observed that Plaintiff indicated she had worked part-time for reasons other than disability. (AR 38). The ALJ discussed the possibility that Plaintiff was working "under the table" without reporting her earnings. (Id.).

The ALJ's decision was issued March 14, 2016. Two days later, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029 (2016). The new ruling eliminates use of the term "credibility," but otherwise requires consideration of the same factors as SSR 96-7p. See e.g., Keefer v. Colvin, Case No. 1:15-4738-SVH, 2016 WL 5539516, *11 (D.S.C. Sept. 30, 2016); Savage v. Berryhill, Case No. 5:16-1138-KDW, 2017 WL 3124177, *10 n.2 (D.S.C. July 24, 2017).

Under SSA regulations, an "individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure." SSR 96-7p, 1996 WL 374186, *7 (S.S.A.1996); Abdus-Sabur v. Comm'r, 2009 WL 5178439, *5, n.1 (E.D.N.Y. Dec. 31, 2009). The ALJ noted that Plaintiff did not follow up with her knee doctor, and "did not seek or receive treatment for her knee pain until September 2015, which is inconsistent with disabling knee pain." (AR 39). The ALJ observed that the "treatment notes simply fail to indicate the level of dysfunction alleged by the claimant." (AR 41).

The Fourth Circuit Court of Appeals has explained that the standard for disability under the SSA does not require that a claimant be entirely pain free. Hays, 907 F.2d at 1458; Hutchinson v. Astrue, 2012 WL 1267887, *8 (M.D.N.C. April 16, 2012) ("the issue ... is not whether Plaintiff's pain exists; it undoubtedly does and the ALJ so acknowledged...[the issue is whether the ALJ considered the record as a whole and properly determined] that the extent and limiting effects of that pain were not as great as claimed.").

The ALJ then assessed Plaintiff's work-related abilities on a function-by-function basis. The ALJ determined that Plaintiff had the RFC to perform medium work with various restrictions, including: only "occasional operation of foot controls with left lower extremity; occasional climbing of ramps and stairs; never climbing ladders, ropes, or scaffolds; frequent stooping, kneeling, crouching, crawling; and the need to avoid hazards such as unprotected heights." (AR 36, Finding 5). Due to the low level of Plaintiff's reported earnings, the ALJ determined that Plaintiff had no past relevant work. (AR 43, Finding 6). See 20 C.F.R. §§ 404.1565, 416.965.

At step 5, the ALJ considered the testimony of the VE, who had testified that a person with such abilities could perform representative jobs such as linen room attendant (SVP 2, medium, approximately 125,000 jobs nationally), kitchen helper (SVP 2, medium, approximately 150,000 jobs nationally), and dining room attendant (SVP 2, medium, approximately 150,000 jobs nationally). (AR 43-44). The VE also identified representative jobs at the light exertional level (AR 79). The ALJ concluded that, in light of Plaintiff's age, education, work experience, RFC, and hearing testimony, Plaintiff was not disabled within the meaning of the SSA. The Appeals Council denied further review, and the ALJ's decision is the Commissioner's final decision.

V. Discussion

A. Relevant Time Period

The relevant time period for Plaintiff's DIB claim is from April 12, 2010 (alleged disability onset date) to December 31, 2010, when her insured status expired (AR 337-38). The Commissioner correctly points out that during such time period, "Plaintiff did not receive any treatment, making her DIB claim unsustainable." (DE# 14 at 5). In other words, Plaintiff did not carry her burden of proving disability. As for Plaintiff's SSI claim, Plaintiff bears the burden of proving that she became disabled during the time period from August 1, 2013 (the first day of the month after she filed her application) through March 14, 2016 (date of ALJ's decision). (DE# 14 at 5, citing AR 29, 337).

Plaintiff had counsel until June 25, 2015, and counsel submitted her medical records. The Commissioner points out that the ALJ also questioned Plaintiff and the VE at the hearing, thus further developing the record. (AR 51-80)

Plaintiff obtained new counsel (Mallory L. Scheer) who on May 12, 2016, submitted some documents, including some post-decision medical records dated March 17-21, 2016 (AR 20-27). The new records indicate Plaintiff was admitted to Trident Health on March 17, 2016 for anxiety and then released to Trident's intensive outpatient program. (AR 23). The Appeals Council denied further review. (AR 1-2, "This new information is about a later time. Therefore, it does not affect the decision ..."). The 2016 records would not be relevant to Plaintiff's DIB claim, as they are not evidence of Plaintiff's condition in 2010. For DIB, Plaintiff had the burden to show that she became disabled prior to December 31, 2010, when her insured status expired. (AR 338); 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a); and see Jenkins v. Astrue, 2012 WL 3776370 (E.D.Va.April 25, 2012) (explaining that a worsened condition or new impairment arising after the date last insured is not a basis for remand or an award of benefits), adopted, 2012 WL 3776371 (E.D.Va. Aug. 29, 2012). As for Plaintiff's SSI claim, the Appeals Council noted that the new records (AR 20-27) were from March 17-21, 2016, after the ALJ's decision. (AR 2). Plaintiff has not explained how such records relate to the relevant period for the SSI claim (i.e. August 1, 2013 through March 14, 2016). A claimant is not entitled to supplement the record or to a remand to consider new evidence where the evidence is not material to the disability determination. Such evidence would not change the result, as the B criteria for mental impairments requires "repeated episodes of decompensation, each of extended duration." Also, the ALJ properly considered the evidence of record, which indicated that Plaintiff functioned well when taking Wellbutrin medication and did not have any functional limitations from anxiety/depression during the relevant periods.

B. Whether the Plaintiff was given a "full and fair hearing"

Prior to the 2016 hearing, Plaintiff repeatedly was provided with written notice of her right to counsel. See 20 C.F.R. §§ 416.1500, 1505. The Fourth Circuit Court of Appeals has explained that although a claimant may obtain counsel to represent them, an ALJ has no duty to insist that a claimant must have counsel. Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980). Lack of counsel is not grounds for reversal or remand, so long as the claimant is given a full and fair hearing. Sims v. Harris, 631 F.2d 26, 27-28 (4th Cir. 1980). Plaintiff acknowledges this point of law. (DE# 13 at 15). Plaintiff contends that the ALJ should have given her another continuance to obtain counsel, and that the ALJ therefore denied her a full and fair hearing (DE#13 at 14-17). In support, Plaintiff cites Bush v. Colvin, Case No. 1:14-4917-RMG-SVH, 2016 WL 1238006 (D.S.C. March 22, 2016), adopted, 2016 WL 1273494 (D.S.C. March 29, 2016).

In response, the Commissioner points out that the ALJ rescheduled the hearing on numerous occasions and gave Plaintiff ample time to obtain replacement counsel. Plaintiff (through counsel) first requested an administrative hearing in 2014 (AR 178-79). Counsel withdrew in June 2015, shortly before the scheduled hearing. After various rescheduled dates and delays by Plaintiff, the hearing was finally held on February 23, 2016. (AR 53-57). The Commissioner accurately points out that Plaintiff misled the ALJ at the February hearing in an attempt to delay matters further. (DE# 14 at 2, citing AR 60). The Commissioner asserts that Plaintiff's "lack of candor and cooperation was significant and nothing in the record suggests that further development is merited." (Id.).

The Commissioner explains that the decision in Bush v. Colvin is factually quite different from the present case in significant ways, including: 1) the claimant in Bush was not seeking a fourth hearing date; 2) the claimant in Bush had an appointment that same afternoon to meet with an attorney for a consultation; 3) the claimant in Bush had been referred for a pending orthopedic evaluation; and 4) the claimant in Bush (unlike Plaintiff) did not mislead the ALJ about the status of his legal representation and his efforts to obtain counsel. Such case is readily distinguishable from the facts of the present case and does not help Plaintiff's argument.

The record suggests that Plaintiff may actually have been seeking a fifth scheduled hearing date.

Here, the record reflects that Plaintiff was initially represented by counsel, who submitted over three hundred pages of medical records. In other words, although counsel withdrew in 2015, most of Plaintiff's medical records had already been submitted. The ALJ repeatedly rescheduled the hearing in order to accommodate Plaintiff's efforts to obtain replacement counsel. Plaintiff had ample time in which to obtain replacement counsel, did not do so, and on February 23, 2016, chose to proceed without counsel. As already discussed, Plaintiff acknowledged on the record that she was not filing the form to withdraw her hearing request, and therefore, the ALJ proceeded with the hearing. Plaintiff brought some additional records to the hearing, which the ALJ introduced into evidence. The ALJ asked Plaintiff about those records and if there were any additional records. (AR 71, Q: Is there anything else ... that is related to your claim, paper-work wise, that I haven't seen? A: No, ma'am. This is just it, right here."). Given the record, the ALJ made a reasonable decision to proceed with the scheduled hearing, at which Plaintiff and the VE both testified. (AR 51-80). They were questioned at considerable length by the ALJ. In sum, Plaintiff had ample opportunity to obtain counsel and was given a full and fair administrative hearing.

C. Whether the ALJ failed to fully develop the record

The Fourth Circuit has held that "the ALJ has a duty to explore all relevant facts and inquire into the issues necessary for adequate development of the record." Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). If an ALJ fails "to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded." Marsh, 632 F.2d at 300. Prejudice can be established by showing that additional evidence would have been produced that might have led to a different decision. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). If a claimant fails to show prejudice, remand is not warranted. Bell v. Chater, 57 F.3d 1065, 1995 WL 347142, *5 (4th Cir. 1995) (finding no reversible error where claimant "failed to indicate how ... unidentified reports would have impacted the ALJ's assessment"). Remand is not warranted merely because a claimant alleges that the ALJ failed to fully develop the record. Nye v. Colvin, 2014 WL 2893199, *20 (S.D.W.Va. June 26, 2014).

The ALJ must ensure development of a claimant's medical history for at least the twelve months preceding the month of the plaintiff's application and make reasonable efforts to assist the plaintiff in obtaining medical reports from doctors. 20 C.F.R. § 404.1512(d), 416.912(d). While the ALJ has a duty to develop the record, the burden is always on Plaintiff to present evidence of disability. 42 U.S.C. § 423(d)(5)(A) ("An individual shall not be considered to be under a disability unless [s]he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require."); 20 C.F.R. §§ 404.1512(a), 416.912(a) ("[I]n general, you have to prove to us that you are . . . disabled. This means that you must furnish medical and other evidence that we can use to reach conclusions about your medical impairment(s).").

Although Plaintiff generally complains that the ALJ failed to "fully develop" the record (DE# 13 at 17-18), the record refutes such allegation. As already discussed, Plaintiff's former counsel had already submitted over three hundred pages of medical records for Plaintiff. At the hearing, the ALJ further developed the record by introducing additional documents and by questioning the Plaintiff about her past work, impairments, medical treatment, and ability to engage in daily activities (AR 61-76). The ALJ appropriately questioned the VE about the availability of other jobs that a person with Plaintiff's abilities could perform. (AR 77-80). In sum, the record reflects that the ALJ sufficiently developed the record. This was consistent with the regulations, which require that the medical evidence be "complete enough to make a determination regarding the nature and severity of the claimed disability, the duration of the disability and the claimant's [RFC]." Kersey v. Astrue, 614 F.Supp.2d 679, 693-94 (W.D.Va. 2009) (quoting 20 C.F.R. §§ 404.1513(e), 416.913(e)). The record in the present case was sufficiently developed to make such determination.

The Commissioner asserts that the ALJ adequately developed the record, and that the Plaintiff has not shown that she could or would have submitted any other relevant evidence that might have altered the result in this case. (DE# 14 at 12, citing Carey, 230 F.3d at 142). The Commissioner observes that the record contains "nearly 300 pages of medical record and opinion evidence alone, which spans over four years." (DE# 14 at 12). The medical records and opinion evidence considered by the ALJ adequately encompassed Plaintiff's allegations regarding her physical and mental impairments (AR 35-43). At the hearing, Plaintiff indicated there were no other records. (AR 71). Plaintiff has not identified any significant missing evidence from the relevant time periods for each claim, nor has she indicated what any additional evidence might have shown. See Scarberry v. Chater, 52 F.3d 322, 1995 WL 238558, *4 n.13 (4th Cir. Apr. 25, 1995) (rej ecting claimant's "failure to develop record" argument where claimant failed to "identify what the missing evidence would have shown"). Here, the record before the ALJ contained sufficient evidence to make a decision regarding disability.

To the extent Plaintiff suggests that consultative examinations should have been obtained, this is unnecessary unless an examination is needed to allow the ALJ to make the disability decision. 20 C.F.R. §§ 404.1517, .1519, .1519a; §§ 416.917, .919, .919a; Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002). The ALJ may refer a claimant for a consultative examination "when evidence as a whole, both medical and nonmedical, is not sufficient to support a decision," 20 C.F.R. § 404.1519a(b). As the Commissioner points out (DE# 14 at 12), "the decision whether to seek further examinations and consultations regarding a claimant's impairments is discretionary." Veite v. Astrue, 2011 WL 6780655, *10 (W.D.Pa. Dec. 27, 2011).

Here, the medical evidence was sufficient to allow the ALJ to make an informed decision on the claim, without ordering a consultative examination. Treatment notes routinely showed that Plaintiff walked with a normal gait (AR 544, 550, 574, 577, 580, 583, 595, 642, 647, 653, 655-57) and typically was fully oriented with normal mood, affect, and judgment (AR 550, 647, 651, 666-67, 669-70). Although Plaintiff had briefly complained of some anxiety and depression after her brother died on July 15, 2015, a nurse practitioner prescribed Wellbutrin, which admittedly helped Plaintiff's mood within a month (AR 39, 666, 669-70). The ALJ noted that Plaintiff "reported that she felt like her Wellbutrin was helping with her moods, and that her boyfriend agreed." (AR 39). Other records reflected transient matters, such as a cold, sore throat, gynecological matters, or other transient non-disabling complaints. Plaintiff has not pointed to any additional information during the relevant time period, nor explained how it would require a different result. See Bell v. Chater, 57 F.3d 1065, 1995 WL 347142, *5 (4th Cir. 1995) (observing that any failure "to ferret out additional information did not constitute reversible error"). Remand is not warranted.

D. Whether the ALJ's RFC finding is supported by substantial evidence

Plaintiff generally argues that the ALJ's RFC finding is not supported by substantial evidence (DE#13 at 18-22). The Commissioner disagrees, and asserts that the ALJ's decision is supported by substantial evidence and should be affirmed. (DE# 14).

Plaintiff criticizes the RFC finding in various ways and suggests that the ALJ "cherry-picked" the evidence. On the contrary, review of the ALJ's decision reflects that the ALJ fairly set forth the Plaintiff's medical history. For example, although Plaintiff suggests that the ALJ should have found that she required a cane (DE#13 at 20), the ALJ observed that numerous medical records showed that Plaintiff was able to walk at a reasonable pace with a normal gait without an assistive device (AR 544, 550, 574, 577, 580, 583, 595, 642, 647, 653, 655-567, 678). Plaintiff points out that she needed crutches on August 5, 2011 (DE# 13 at 20), however Plaintiff's argument does not demonstrate any "cherry-picking" by the ALJ. The evidence shows that Plaintiff recovered from that injury and several other "sprains," and was discharged from physical therapy with the ability to walk up to a mile, albeit slowly. (AR 37-38, 481). Subsequent evidence showed that Plaintiff admittedly was able to stand for hours without assistance. (AR 42, 84, 01/04/2013, noting that claimant got a cane "on her own ... not rx by a doctor. She does not use the cane while working at the restaurant....she does stand and cook at work for 2 hours at a time").

Although a nurse practitioner (NP) checked on a form that Plaintiff needed an assistive device (AR 679, Ex. 19F/2), the ALJ pointed out that the NP was not an "acceptable medical source," that the NP's own treatment notes conflicted with her opinion, and that there was no evidence that Plaintiff's orthopedist Dr. Keith Merrill, M.D. ever found such restrictive limitations. (AR 42, citing Exs. 17F, 18F, and 19F). Dr. Merrill's treatment notes indicated that although Plaintiff complained of some pain, her Achilles tendon was intact, with normal flexion and extension, normal strength and sensation, and intact ROM. (AR 657, 666, 670, 678). Plaintiff's argument that the ALJ should have included "use of a cane" in the RFC lacks merit.

Courts have recognized the "limited probative value" of such brief check-the-box forms, especially when they lack well-supported explanatory notes. See, e.g., Foushee v. Colvin, 2014 WL 6831766, *3 (M.D.N.C.) (describing such brief forms as "weak evidence'); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) ("check-the-box assessments without explanatory comments are not entitled to great weight"); McGlothlen v. Astrue, 2012 WL 3647411, *6 (E.D.N.C. 2012) (same); Shelton v. Colvin, 2015 WL 1276903, *13 fn.6 (W.D.Va. 2015) (same); Leonard v. Astrue, 2012 WL 4404508, *4 (W.D.Va. 2012) (same).

Such check-the-box form indicated that Plaintiff could stand/walk only one hour per day, required an assistive device to walk, and could only lift 1-5 pounds frequently (AR 679). Although Plaintiff suggests that such opinion was not considered (DE# 22 at 6), the ALJ discussed this undated form opinion for a full paragraph (see AR 42, citing Ex. 19F). Plaintiff herself acknowledged that she was able to do much more than such form suggested, i.e. she indicated she frequently stood more than two hours while working at the restaurant, could lift up to 30 pounds, and was able to engage in a wide variety of daily activities that were inconsistent with symptoms of disabling severity. Although the form does not refer to any clinical findings, various doctors repeatedly observed during 2012-2015 that Plaintiff could walk normally without an assistive device. --------

Plaintiff also suggests that she had fingering issues (DE# 13 at 20). Plaintiff had some osteoarthritis, but if Plaintiff is suggesting that she has any fingering limitations due to rheumatoid arthritis, medical records did not indicate that she had such condition (AR 40, 643, 647). She claimed she had stopped braiding in 2005, but admitted to her doctor that she was still doing this in 2015 and that it actually helped her fingers. (AR 41-42, 640). Plaintiff cites one note that reflects "tenderness of left thumb and hand" on 09/01/2015, but the ALJ noted that this tenderness resolved without treatment. (AR 39, 642). Such isolated reference in the medical notes does not suggest that Plaintiff had any "fingering limitations," much less that such complaint had any duration of significance. The ALJ noted that Plaintiff's work as a barmaid required the use of her hands for fine and gross manipulation (AR 41). When the ALJ asked Plaintiff at the hearing "Why do you feel that you're unable to work now?" (AR 67), Plaintiff did not mention her hands and instead, referred to leg pain that, according to Plaintiff, prevented her from standing for "long periods" of time, even though she had admittedly been working behind the bar and as a cook for up to four hours daily for several years after her alleged onset date, allegedly without pay. (AR 40, 67). The ALJ sufficiently explained good reasons for the weight assigned to the evidence and for the RFC determination. Plaintiff's argument essentially seeks to have the Court reweigh the evidence, which it may not do. Hancock, 667 F.3d at 472; Tanner v. Comm'r, 602 F.App'x 95, 100 (4th Cir. 2015) ("Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on ... the ALJ.") (quoting Craig, 76 F.3d at 589).

Plaintiff also generally argues that the ALJ did not properly evaluate her obesity in accordance with SSR 02-1p, which provides that the ALJ will consider such impairment at all steps of the sequential process. (DE# 13 at 21). The ALJ correctly cited SSR 02-1p and found at step two that Plaintiff's obesity was a severe impairment (AR 34-35). The ALJ considered the evidence as a whole and determined that Plaintiff's "multiple impairments, including obesity; do not have effects that in combination are equivalent in severity to a listed impairment." (AR 35-36). See Reid v. Comm'r, 769 F.3d 861, 865 (4th Cir. 2014); Walker v. Bowen, 889 F.2d 47 (1989); Saxon v. Astrue, 662 F.Supp.2d 471, 479 (D.S.C. 2009) (collecting cases emphasizing that a claimant's impairments must be considered separately and in combination). The ALJ specifically discussed Listing 1.02A (knee problems), 1.04 (back problems), and observed that Plaintiff was able to walk normally at a reasonable pace, did not need a cane, and was able to travel without companion assistance. (AR 36). The ALJ considered obesity in when determining Plaintiff's RFC (AR 35-36) and discussed any resulting functional limitations (AR 41, finding that "after a thorough review of the evidence of record, I find that the claimant's obesity has not had a negative effect upon the claimant's ability to perform routine movement..."). The ALJ did provide for some restrictions, such as only occasional climbing of ramps and stairs, never climbing ladders, ropes, or scaffolds, and avoiding hazards such as unprotected heights" to account for any combined effect of her physical impairments, including obesity. (AR 36, Finding 5).

Plaintiff also briefly complains (DE# 13 at 21) that the ALJ gave great weight to state agency expert Dr. Mark Gilson, who evaluated the medical records and indicated in 2014 that Plaintiff's mental impairment was non-severe (AR 139, Ex. 11A/6). The ALJ indicated that this was consistent with state agency expert Dr. Lisa Clausen's statement (10/08/2013) that the evidence did not establish any mental impairment (AR 42). The ALJ found that Plaintiff's alleged depression/anxiety caused no more than minimal limitations in her ability to perform basic mental work activities. (AR 34-35). The ALJ did not err at step two.

Plaintiff further contends that "the ALJ's failure to give any nonexertional limitations was in error" and cites two treatment notes without discussion (DE# 13 at 21, citing AR 634, 680). The first note indicates "follow-up on meds" and merely listed depression in Plaintiff's history. Neither note reflects any current symptoms or functional limitations. Other notes indicate that Plaintiff was fully oriented with normal mood, affect, and judgment (AR 550, 647, 651, 666-67, 669-70). Although Plaintiff had briefly complained of some depression/ anxiety after her brother died, the ALJ noted that the medication Wellbutrin admittedly helped Plaintiff's mood within a month (AR 39, 666, 669-70). Moreover, the premise of Plaintiff's argument is flawed because a finding of impairment at step two is not "proof that the same limitations have the greater significant and specific nature required to gain their inclusion in an RFC assessment at step four" Hughes v. Astrue, 2011 WL 4459097, *10 (W.D.N.C. Sept. 26, 2011); Miller v. Colvin, 2015 WL 917772, *11 (S.D.W.Va. March 3, 2015) (same, collecting cases). Plaintiff's argument lacks merit. The ALJ's findings are supported by substantial evidence.

Plaintiff also points to some post-decision evidence submitted to the Appeals Council (DE# 13 at 21), but these records were dated over six years after the relevant time-period expired for her DIB claim and also post-dated the ALJ's decision for purposes of her SSI claim (AR 20-27). The Appeals Council found that such post-decision records did not concern the relevant time period. The Commissioner succinctly asserts that "[s]imply put, the Appeals Council evidence is irrelevant." (DE# 14 at 15). Remand is not warranted.

VI. Recommendation

Accordingly, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be AFFIRMED.

IT IS SO RECOMMENDED.

/s/_________


MARY GORDON BAKER


UNITED STATES MAGISTRATE JUDGE July 31, 2018
Charleston, South Carolina
Plaintiff's attention is directed to the following important notice :

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72, Advisory Committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).