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Case No. 8:17-cv-1760-AMQ-JDA (D.S.C. Jul. 25, 2018)

Case No. 8:17-cv-1760-AMQ-JDA


Felicia Ann Moten, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.


This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.

A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.

Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).


In July 2013, Plaintiff filed applications for DIB and SSI, alleging disability beginning September 28, 2012. [R. 396-408.] The claims were denied initially [R. 339-346] and upon reconsideration on [R. 350-353] by the Social Security Administration ("the Administration"). Plaintiff filed a request for hearing before an administrative law judge ("ALJ"), and on November 24, 2015, ALJ James R. McHenry, III, conducted a de novo hearing on Plaintiff's claims. [R. 218-266.]

On May 9, 2013, Plaintiff received an unfavorable decision from a previous Administrative Law Judge based on a prior application filed January 27, 2011, finding Plaintiff not disabled through May 9, 2013. [R. 322-338; see R. 14.]

On July 14, 2016, the ALJ issued a thorough and well-reasoned decision, finding Plaintiff not disabled. [R. 14-44.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act ("the Act") through June 30, 2016, and had not engaged in substantial gainful activity since September 28, 2012, the alleged onset date. [R. 18, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: lumbosacral degenerative disc disease; chronic post-traumatic bilateral sacroilitis; chronic pain syndrome and neuropathy; degenerative joint disease of the right first carpometacarpal joint; iliotibial band syndrome; plantar fasciitis; degenerative arthritis of first metatarsophalangeal joint; de Quervain's disease; and myopia, astigmatism, and presbyopia. [R. 18, Finding 3.] The ALJ also noted Plaintiff had the following non-severe impairments: gastroespophageal reflux disease (GERD), uterine fibroids, urinary tract infections, hypokalemia, left biceps tendonitis, and depression. [R. 19.]

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 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). [R. 22, Finding 4.] Before addressing Step 4, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):

the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations. The claimant can sit or stand at will consistent with the exertional level while remaining at the workstation, provided that each period of sitting or standing is at least thirty minutes. The claimant can occasionally climb ramps and stairs. The claimant can never climb ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, crouch, and crawl. She can have no exposure to unprotected heights or moving mechanical parts. The claimant cannot perform work requiring the operation of a motor vehicle. The claimant can have occasional exposure to cold temperature extremes, humidity, and wetness. The claimant can frequently handle, finger, and feel bilaterally. The claimant can perform work requiring frequent far acuity, near acuity, depth perception, accommodation, and field of vision. The claimant would be off task a maximum of five percent of the workday.

[R. 24, Finding 5.]

At Step 4, the ALJ determined that Plaintiff was not able to perform any of her past relevant work as a nurse aide. [R. 38-39, Finding 6.] However, considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ found that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. [R. 39, Finding 10.] Thus, on that basis, the ALJ determined that Plaintiff has not been under a disability, as defined in the Act, from September 28, 2012, through the date of the decision. [R. 41, Finding 11.]

Plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on July 6, 2017. [Doc. 1.]


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. 20.] Specifically, Plaintiff contends the ALJ did not properly consider all of the evidence in the record with respect to Plaintiff's mental impairments [id. at 9-12], failed to properly weigh Plaintiff's credibility regarding her pain complaints [id. at 12-14], provided the VE an inadequate hypothetical [id. at 14-15], and failed to provide a proper RFC supported by substantial evidence [id. at 15-17].

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. [See Doc. 23.] Specifically, the Commissioner contends that the ALJ properly considered Plaintiff's mental impairments [id. at 15-20]; the ALJ evaluated Plaintiff's credibility properly [id. at 21-23]; the ALJ's hypothetical to the VE was appropriate [id. at 23-26]; and the ALJ's RFC was supported by substantial evidence [id. at 26-27].


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 Consol. 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. 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, 1091-92 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See 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), rev'd on other grounds. With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).

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


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[.]

. § 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, she 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, 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).

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 RFC with the physical and mental demands of the kind of work she has done in the past to determine whether the claimant has the RFC to do her past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).

Residual functional capacity is "the most [a claimant] can still do despite [her] 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. 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).

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 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)) (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 she furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." SSR 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).

In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. §§ 404.1528, 416.928 (noting that the ALJ must consider all of a claimant's statements about her symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).

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.").


As stated above, Plaintiff contends the ALJ did not properly consider all of the evidence in the record with respect to Plaintiff's mental impairments, failed to properly weigh her credibility regarding her pain complaints, provided the VE an inadequate hypothetical, and failed to provide a proper RFC supported by substantial evidence. [See Doc. 20.] Plaintiff's allegations of error all relate to whether substantial evidence supports the ALJ's RFC. Thus, the Court will review the ALJ's RFC determination to analyze whether it is supported by substantial evidence in light of the Plaintiff's complaints of error.

Evaluating the ALJ's RFC Analysis

Assessing an ALJ's RFC Determination

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

RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary

work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.

SSR 96-8p, 61 Fed. Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545, 416.945. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. Additionally, the Administration has determined that in assessing RFC, the ALJ
must consider only limitations and restrictions attributable to medically determinable impairments. It is incorrect to find that [a claimant] has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the [claimant] had ever engaged in certain activities in his or her past relevant work (e.g., lifting heavy weights.) Age and body habitus (i.e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the [claimant]'s medically determinable impairment(s) and related symptoms) are not factors in assessing RFC. . . .

. at 34,476.

To assess a claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477. SSR 96-8p specifically states, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id. at 34,478. Thus, an ALJ's RFC assessment will necessarily entail assessing the credibility of any alleged limitations, including assessing the credibility of testimony offered by the claimant. And, this Court recognizes that the ALJ is not required to specifically refer to every piece of evidence in his decision, but the ALJ must provide a statement of the case setting forth a discussion of the evidence and explaining reasons upon which the determination is based. See Reid v. Comm'r, 769 F.3d 861, 865 (4th Cir. 2014).

The ALJ's Decision

In determining Plaintiff's RFC, the ALJ followed a two-step process in which he first determined whether there was an underlying medically determinable physical or mental impairments that could reasonably be expected to produce Plaintiff's pain or other symptoms. [R. 25.] After determining the presence of an impairment or impairments at Step 1, the ALJ, at Step 2, evaluated the intensity, persistence, and limiting effects of Plaintiff's symptoms to determine the extent to which they limit her functioning. [Id.] Following this two-step process, the ALJ considered Plaintiff's underlying physical and mental impairments along with her medical records to determine her RFC. [R. 25-33.] The ALJ explained his consideration of the objective medical evidence directed to Plaintiff's mental impairments, pain complaints, use of an assistive device and credibility as follows:

Although the claimant asserted significant limitation in her daily activities, her actual testimony about her day-to-day activities and the evidence of record suggests a greater level of functioning than what the claimant alleged. For instance, the claimant occasionally shops (Exhibit B12E). Shortly after she filed for disability benefits, she indicated that she could do laundry and had no general difficulties with personal care activities (Exhibit B4E), though she later alleged considerabl[e] difficulty in performing most day-to-day activities (compare

Exhibit B4E with Exhibit B12E). She also shampooed a carpet and helped clean a trailer in 2014 (Exhibit B8F). To be sure, allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty. Furthermore, even if the claimant's daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant's medical condition, as opposed to other reasons. Nevertheless, the claimant's concerns have been considered in assessing limitations in her [RFC]. As discussed in more detail below, the claimant's treatment history and remaining considerations under SSR 16-3p and 20 CFR 404.1529(c) and 416.929(c) also do not support the full extent of her allegations.

. . . .

On January 7, 2013, the claimant was seen at the emergency department for complaints unrelated to her severe medically determinable impairments. Notably, the claimant denied any musculoskeletal complaints. Additionally, the records indicate that the claimant has no history of depression. The claimant was described as alert, oriented, comfortable, "well appearing" and as having a normal affect. Moreover, the claimant ambulated with a steady gait and without assistance. (Exhibit B1F/4-7).
On July 23, 2013, the claimant was seen at the emergency department for complaint of back and leg pain and swelling. She reported the nature of the pain as 10/10 "aching" pain but denied any paresthesias. She alleged that her symptoms were exacerbated by movement and walking. On examination, the claimant was described as alert, oriented, and well appearing. However, she appeared to be uncomfortable and in pain. (Exhibit BlF/14-15). Additionally, the claimant demonstrated paraspinal tenderness in the lower back. The claimant had normal range of motion of all extremities . . . . The claimant was prescribed flexeril, Lortab, and ibuprofen. (Exhibit B1F/17). The claimant reported feeling an improvement after receiving pain medications and was able to ambulate with a steady gait. (Exhibit B1F/17-18). The claimant was discharged to home with no noted activity restrictions or limitations imposed by the treating provider, approximately two weeks after she protectively filed her instant application for benefits on July 8, 2013, and two days before she perfected the filing on July 25, 2013 (Exhibits BID; B2D).

In October of 2013, the claimant still complained of leg pain but reported that it was improved since the previous visit. She reported that her main complaint was aching and tingling in her legs, which was worse at night and improved with movement. Notably, it was worse with rest. Additionally, the claimant reported that her upper extremity symptoms were improved with movement. She reported some relief with gabapentin. On examination, the claimant was described as well groomed, well nourished, and in no acute or chronic distress. The claimant was advised to limit caffeine and was instructed on daily stretching exercises.

. . . .

The claimant was seen on January 9, 2014, for follow up on her complaints of back pain and plantar fasciitis. (Exhibit B6F/1). She alleged that she had achieved no relief with her medications but had not undergone and stretching or strengthening. On examination, the claimant was described as well developed, well nourished, and in no acute or chronic distress. She demonstrated tenderness along the paraspinal muscles of the lumbar area and tightness with flexion. Additionally, although pain increased with rotation, the claimant demonstrated good range of motion. Straight leg raise, Stinchfield, and FADIR tests were negative. (Exhibit B6F/2). FABER was "mildly" positive. Additionally, the claimant had tenderness of the plantar fascia and tight heel cords. However, she had full range of motion in her ankle and intact sensation. Brian Daniels, M.D. indicated that physical therapy would be helpful but the claimant had reportedly not yet been able to schedule physical therapy. As such, she was provided instructions for home exercises for her back and feet and scheduled for follow up with Dr. Daniels in a month. Moreover, the claimant reported that she had been feeling unbalanced and that Dr. Musser was planning to order a brain CT scan.
On March 26, 2014, the claimant complained of hip popping. (Exhibit B7F/6). On examination, she was in no acute distress. However, range of motion in her left hi[p] was limited secondary to pain with range of motion. Additionally, there was no joint swelling or erythema. Straight leg raise tests were negative. However, her muscle strength was slightly decreased at 4+/5 compared to the right side. Accordingly, on

March 27, 2014, the claimant underwent X-rays of the pelvis and left hip, which were unremarkable. (Exhibit B7F/58).
Similarly, on April 1, 2014, the claimant was seen for hip and joint pain. Her treating provider noted that her complaints were "extensive and polyarticular" and that her "pain is out of proportion on exam and cannot be localized." (Exhibit B7F/55). On April 8, 2014, the claimant reported continued symptoms in her extremities. She alleged that heel pain was keeping her from walking and that it made her "stagger." She also reported using two canes to help her balance but alleged that it did not help. (Exhibit B7F/52).
. . . On April 1, 2014, the claimant was seen for a follow up examination to discuss the finding of the claimant's hip X-rays. (Exhibit B7F/55). The claimant continued to complain of pain in both hips when she walks with popping of the left hip. On examination, the claimant was described as well-nourished and in no acute or chronic distress. (Exhibit B7F/56). X-rays of the claimant's pelvis and left hip were unremarkable. (Exhibit B7F/58). Notably, the treatment records indicate that the claimant's "complaints are extensive and polyarticular, pain is out of proportion on examination and cannot be localized." (Exhibit B7F/55).
In May of 2014, the claimant was seen for great toe pain. (Exhibit B7F/49). On July 18, 2014, the claimant was seen by a mental health provider. The notes indicate that the claimant had normal muscle strength, muscle tone, gait, and station. (Exhibit B9F/14). On July 27, 2014, the claimant was seen for complaints of hip and thigh pain. (Exhibit B8F/63). She also reported lower back pain. She pointed to the top of the ilium, indicating that it was tender and had "knot." Notably, she reported that she never sought care for this or had any X-rays previously. She was using a cane despite having no motor loss. (Exhibit B8F/64). X-rays of the lumbar spine were unremarkable. (Exhibit B8F/69).

. . . .

Several days later, on September 3, 2014, the claimant was seen for follow up evaluation of her lumbar strain. (Exhibit B7F/44). She reported decreased range of motion and numbness in her upper extremities. On examination, the claimant was described as in no apparent acute or chronic

distress. Her lumbar range of motion was normal except for flexion of 70 degrees with "question[able] effort" and tenderness to "feathery" touch in the paraspinous muscles. (Exhibit B7F/45).
Similarly, in October of 2014, the claimant was seen in the emergency department for complaints unrelated to her severe impairments. Notably, the claimant reported that she had been helping to clean a trailer and was shampooing a carpet, which is activity inconsistent with her subjective complaints. (Exhibit B8F/51, 53).
In February of 2015, the claimant was treated for De Quervain's disease, affecting the tendons on the thumb side of her wrist and greater trochanteric bursitis. (Exhibit B7F/37). The claimant was provided an injection to her hip and splints for her wrist. On examination, the claimant demonstrated slightly decreased right hand grip strength of 4/5 and decreased sensation. Additionally, the claimant had some tenderness to palpation of the right hip. (Exhibit B7F/38).

. . . .

When the claimant was seen on June 3, 2015, the claimant reported no dizziness and not needing assistance to walk. (Exhibit B7F/28). However, she alleged that on that particular day her legs starting feeling weak, that she was unable to feel them, that she was unable to walk, and that her husband had to carry her. She also reported that she felt a "curve in her spine toward the left." (Exhibit B7F/29). On examination, the claimant had pain over the lumbar spine and some paraspinal spasms on the left lower back musculature. Her gait was antalgic. However, she had intact sensation in all four extremities.
When the claimant was seen on June 22, 2015, she reported lower extremity weakness, depression, and sciatica. (Exhibit B7F/25). Notes indicate that she was diagnosed with sciatica but was having "subjective" weakness without physical examination findings. . . . She alleged that she still had pain that started in her lower back and radiated down her lateral legs. She also still reported numbness over her lower legs entirely and numbness and tingling in her arms and hands, which was worse at night. However, the notes indicate that she sometimes did not wear her splints. (Exhibit B7F/26). On

examination, the claimant had full range of motion of all joints with no swelling or deformity. Additionally, sensation was intact in all four extremities and her gait was "stable." She had normal deep tendon reflexes in her upper and lower extremities. She demonstrated tenderness to palpation from her mid back to sacrum and exhibited muscle tension over the left lumbar paraspinal muscle to her hip. (Exhibit B7F/26).
On August 17, 2015, the claimant was seen in the emergency department for complaints unrelated to her severe impairments. She was described as well appearing and comfortable. (Exhibit 8F/25). The claimant was treated on August 24, 2015, secondary to her complaints of pain in her hands and knees. She alleged that she lost all feeling in her hands and was experiencing pain in her lower back and hips. (Exhibit B7F/1). She requested an MRI of her brain to "look for reasons for the tingling." Amanda Palich, M.D. indicated that a brain MRI was not needed because her neurological examinations were benign. Instead, her main issue was chronic pain. She was started on amitriptyline and her gabapentin dose was increased. (Exhibit B7F/15). On examination, the claimant had both knees wrapped in ace bandages and was ambulating with two canes. However, there was no irregularity of the knees when the bandages were removed. The claimant had a normal mood and affect. The following day, the claimant was seen in the emergency department for complaints unrelated to her severe impairments. Notably, the claimant reported no musculoskeletal symptoms and was described as "well appearing" and "comfortable." (Exhibit B8F/3). Likewise, on examination, the claimant had a normal musculoskeletal examination with no back tenderness and normal range of motion in her extremities. Notably, her gait was normal and she ambulated without assistance. (Exhibit B8F/3, 10).
On balance, the medical evidence of record confirms that the claimant experiences a number of impairments, as discussed above. Objective imaging and testing, however, do not support the severity of the extent of the claimant's allegations, particularly regarding her pain complaints.

[R. 26-32 (emphasis added).]


Plaintiff argues that the ALJ's RFC determination was flawed because the record indicates Plaintiff is incapable of performing light work. [Doc. 20 at 15-17.] The Commissioner argues that the ALJ's assessment of Plaintiff's RFC is supported by substantial evidence because it includes postural, environmental, and mental limitations in accordance with Plaintiff's credibly-established impairments. [See Doc. 23.]

As noted above, 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); see also SSR 16-3p, 82 Fed. Reg. at 49,463-49,464 (indicating that "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about . . . symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record"). SSR 16-3p reiterates that the two-step process set forth in 20 C.F.R. §§ 404.1529, 416.929 should be used to evaluate impairment-related symptoms alleged by a claimant. SSR 16-3p, 82 Fed. Reg. at 49,465-49,466.

In the instant case, the ALJ expressly followed the two-step process outlined in Craig v. Chater, supra, in making findings related to the credibility of Plaintiff's statements about symptoms related to her mental health, her need for an assistive device, and limitations due to pain. [See R. 25-33]; Craig, 76 F.3d at 594-95. Plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ "fractionalized [her] numerous impairments and then selected isolated pieces of evidence in an attempt to justify his conclusion that [s]he could perform alternative work." [Doc. 20 at 10.] Plaintiff asserts that the ALJ ignored her mental health diagnoses of major depressive disorder and generalized anxiety disorder and ignored her Global Assessment of Functioning ("GAF") scores which indicate she would be off task 10%-15% of the work day. [Id.] Plaintiff also suggests that the ALJ failed to consider her severe physical impairments in combination [id. at 11], and failed to properly assess her credibility in relation to her pain complaints [id. at 12-14].

In evaluating the sufficiency of an ALJ's decision, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [he] relies on in evaluating the claimant's credibility." Manning v. Colvin, No. 6:12-2577-SB, 2014 WL 1232779, at *3 (D.S.C. Mar. 24, 2014) (citing White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001)). Here, a reading of the ALJ's thorough and well-reasoned decision clearly shows his consideration of all of Plaintiff's impairments in combination, and clearly articulates his reasoning for concluding Plaintiff's complaints were not fully credible. If the ALJ points to substantial evidence to support a credibility finding, the Court must uphold the ALJ's determination. See Mastro v. Apfel, 270 F.3d at 176 (holding that the court is not to "'undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of"' the agency (quoting Craig, 76 F.3d at 589)). In determining Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible, the ALJ discussed Plaintiff's activities of daily living ("ADLs"), including that she not only cared for herself, but also shampooed a carpet and helped clean a trailer, activities which the ALJ found to be inconsistent with her subjective complaints. [See R. 30]; see 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (stating a claimant's daily activities is one factor the ALJ will consider while evaluating a claimant's symptoms, including pain). The ALJ also summarized the medical evidence related to Plaintiff's impairments—as outlined in great detail above—and concluded that, although Plaintiff has received treatment for the allegedly disabling impairments, her treatment has been essentially routine and/or conservative in nature, and her allegations were not fully consistent with the substantial evidence of record. [R. 33; see supra pp. 19-24.] Declining to substitute its judgment for that of the ALJ in making credibility determinations, the Court finds that substantial evidence supports the ALJ's credibility assessment.

With respect to Plaintiff's mental impairments, the ALJ discussed evidence related to Plaintiff's mental health treatment and noted that the record reflects only minimal treatment for Plaintiff's mental health issues and found that these issues resulted in no-to-mild limitations in ADLs; no-to-mild limitations in social functioning; mild limitations in concentration, persistence, or pace; and no episodes of decompensation. [R. 20-21.] The ALJ also noted that Plaintiff did not "dwell upon any mental health issues in her testimony at the hearing, and her Function Reports (Exhibits B4E & B12E) reflect only modest, at most, mental functioning concerns." [R. 20.] With respect to Plaintiff's GAF scores, the ALJ explained that Plaintiff's

final GAF score of 50 is an unexplained outlier that is not consistent with the overall longitudinal record; moreover, the specific factors upon which that assessment is based are not clear because the claimant had stopped treatment at the time it was rendered. The GAF scores of 65, however, are broadly consistent with the overall evidence of record and appear to represent a more accurate picture of the claimant's day-to-day baseline level of functioning.

[R. 35.] The ALJ, in evaluating Plaintiff's mental limitations, also relied on the fact that Plaintiff "has had no inpatient hospitalizations and minimal mental health treatment. She was described frequently as having a normal mood and affect and pleasant demeanor." [Id.(citing R. 543, 578, 586, 594, 618, 621-22, 632, 635).]

Further, the ALJ's decision indicated that—in crafting Plaintiff's RFC—the ALJ considered evidence in the medical records that Plaintiff's "provider questioned whether the claimant put forth less than maximal effort during examinations." [R. 33 (citing R. 617).] Indeed, the ALJ found it compelling that "there [was] no medical source statement from an examining or treating physician or other acceptable medical source that endorse[d] the extent of the claimant's alleged functional limitations." [R. 35-36.] Accordingly, the ALJ concluded that,

the evidence of the claimant's daily activities along with the objective medical evidence discussed above establishes the claimant has a greater sustained capacity than she alleges. The undersigned thereby concludes the claimant's subjective complaints and alleged limitations are not fully persuasive and that she retains the capacity to perform work activities with the limitations as set forth above.

[R. 36.]

Additionally, the ALJ noted that—in the prior decision denying Plaintiff's DIB benefits—the prior ALJ found that Plaintiff did not need an assistive device included in her RFC and that the evidence did not support a need for the use of a handheld assistive device for balance. [R. 37.] In the instant matter, after analyzing Plaintiff's medical records, the ALJ determined that Plaintiff's RFC did not need to include a limitation regarding an assistive device, as his review of the record revealed that Plaintiff was observed to have "normal musculoskeletal examination with no back tenderness and normal range of motion in her extremities . . . , her gait was normal and she ambulated without assistance." [See, e.g., R. 32 (citing R. 640, 647).]

In light of the above, the Court finds that the ALJ's RFC determination is supported by substantial evidence. Because the RFC is properly concluded, the Court, likewise, finds no error in the hypothetical provided to the VE—because the ALJ is only required to include impairments that have been medically established. See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (noting that "the ALJ must accurately convey to the [VE] all of a claimant's credibly established limitations"). The ALJ's decision is sufficiently explained so as to allow the Court to track the ALJ's reasoning and be assured that all record evidence was considered. See McElveen v. Colvin, No. 8:12-1340-TLW-JDA, 2013 WL 4522899, at *11 (D.S.C. Aug. 26, 2013). Consequently, the Court finds no basis for remanding the present matter for further consideration.


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


s/ Jacquelyn D. Austin

United States Magistrate Judge July 25, 2018
Greenville, South Carolina