Harold L. M. v. Kijakazi

Full title: Harold L. M.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of…

Court: United States District Court, D. South Carolina

Date published: Jul 18, 2023

Civil Action 1:22-cv-3787-JD-SVH (D.S.C. Jul. 18, 2023)

Opinion

Civil Action 1:22-cv-3787-JD-SVH

07-18-2023

Harold L. M.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.

SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this pro se action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.

I. Relevant Background

A. Procedural History

On November 26, 2018, Plaintiff filed an application for DIB in which he alleged his disability began on November 8, 2008.² Tr. at 109, 166-69. His application was denied initially and upon reconsideration. Tr. at 110-13, 115-18. On November 5, 2019, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Arthur L. Conover. Tr. at 49-79 (Hr'g Tr.). The ALJ issued an unfavorable decision on December 18, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 30-48. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 11-18. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 1, 2022. [ECF No. 1].

2 Plaintiff filed a prior application for benefits that was denied in October 2010. Tr. at 52. During the hearing, the ALJ questioned Plaintiff's counsel about the prior application, and counsel stated she did not feel there was a basis for reopening it and that Plaintiff would be willing to amend his alleged onset date to October 2010. Id.

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 46 years old on his date last insured (“DLI”).³Tr. At 55. He has a college education. Tr. at 56. His past relevant work (“PRW”) was as a chef. Tr. at 57-58. He alleges he has been unable to work since November 8, 2008. Tr. at 58.

3 According to the Social Security Administration's Program Operations Manual Systems (“POMS”), the DLI is “the last day in the last quarter when disability insured status is met.” POMS RS 00301.148. Date Last Insured (DLI) (effective Jan. 13, 2006). Individuals over age 31 must have at least 20 quarters of coverage over a 40-quarter period, ending with the quarter in which the waiting period begins, to be insured for DIB. POMS RS 00301.120. DIB Insured Status (effective Aug. 18, 2004). The amount of earnings necessary to earn a quarter of coverage increases annually based on the average wage index, and an individual may earn between 0 and 4 credits for each year he works. POMS RS 00301.230 (effective Sept. 6, 2005). Thus, an individual whose earnings are significant enough for him to obtain four quarters of coverage in each year over a ten-year period would have 40 quarters of coverage, and his DLI would extend for five years after the year he last worked.

2. Medical History

a. Records Prior to Plaintiff's DLI

On July 6, 2010, Plaintiff presented to the emergency room (“ER”) at Newberry County Memorial Hospital for an injury to his right ankle and inability to bear weight. Tr. at 324. X-rays showed a displaced comminuted distal fibula, a displaced fracture of the tibial malleolus, and a comminuted fracture of the calcaneus. Id. The attending physician prescribed Percocet 10 650 mg and instructed Plaintiff to rest, keep his ankle splinted, use crutches, elevate his foot, use ice to decrease swelling, and follow up with Phillip Milner, M.D. Tr. at 325.

Plaintiff presented to John M. Hibbitts, M.D. (“Dr. Hibbitts”), on July 7, 2010, for worsening pain. Tr. at 329. Dr. Hibbitts performed a medial closed reduction and placed Plaintiff in a trilaminar splint. Id. He indicated Plaintiff would require open reduction and internal fixation (“ORIF”) of the fractures pending soft tissue stabilization. Id.

On July 9, 2010, Dr. Hibbitts noted intact blisters medially and laterally about the ankle. Tr. at 352. He continued Bactrim DS, re-splinted and dressed the foot, and instructed Plaintiff to follow up in one week for a splint change. Id.

On July 16, 2010, Dr. Hibbetts noted one of Plaintiff's blisters had decompressed on its own. Tr. at 351. He decompressed the other and found no surrounding cellulitis. Id. He placed Plaintiff back in the trilaminar splint, refilled his pain medication, and told him to continue antibiotics and follow up in a week. Tr. at 351-52. Dr. Hibbitts wrote a letter explaining that he was Plaintiff's treating orthopedic surgeon. Tr. at 323. He noted Plaintiff had sustained a comminuted calcaneus fracture and an ankle fracture on the right. Id. He stated Plaintiff would require surgery, extensive rehab, and a prolonged course of recovery to restore his independence with ambulation. Id. He wrote: “There is no way he would be able to resume any sort of job within the next calendar year from the date of this dictation to engage any type of employment requiring any degree of standing.” Id.

On July 21, 2010, Dr. Hibbitts noted Plaintiff's skin had begun to re-epithelialize and no necrosis was evident. Tr. at 351. He ordered a CT scan to better assess the fracture pattern and plan for ORIF. Id.

Dr. Hibbitts performed ORIF of Plaintiff's right calcaneus and bimalleolar ankle fractures on July 23, 2010. Tr. at 336. Plaintiff experienced no intraoperative complications and tolerated the procedure well. Tr. at 33637. He was released on July 26, 2010. Tr. at 338.

Plaintiff was demonstrating appropriate pain control and his swelling had diminished on July 30, 2010. Tr. at 351. Dr. Hibbitts re-dressed and resplinted Plaintiff's wound and instructed him to return in 10 days.⁴ Id.

4 The record includes no additional treatment notes from Dr. Hibbitts.

Plaintiff attended a consultative mental status exam with Robert D. Phillips, Ph.D. (“Dr. Phillips”), on September 28, 2010. Tr. at 355-58. Dr. Phillips observed Plaintiff to be “well-groomed, clean and casually dressed.” Tr. at 355. He noted Plaintiff's report of “daily pain” due to “bolts and rods [being] place[d] in his leg for support” after a recent fall. Id. He stated Plaintiff endorsed depression and anxiety, isolating himself on some days, and having difficulty getting through the day. Id. He indicated there was “no real cycling to [Plaintiff's] mood state.” Id. Plaintiff indicated he was not working, but had previously worked as a chef. Id. He denied a history of legal problems, arrests, drug abuse, alcohol abuse, and mental hospitalizations. Tr. at 355-56. He stated he shared meals and spoke with friends, used a computer, cooked, managed his medications, used the phone, and bathed, groomed, dressed, and used the bathroom without assistance. Id. He indicated he required assistance to transfer from a wheelchair, walk, climb stairs, and shop. Tr. at 366. He denied being able to perform light housework, manage his finances, drive, and do laundry at the time. Id. He endorsed good ability to follow directions, fair ability to focus on tasks, and poor ability to get along with others, work without pain, and manage his emotions. Id. He reported difficulty going to sleep and poor and restless sleep with frequent or early waking. Id.

Dr. Phillips observed Plaintiff to be “open and friendly,” have “a lot of anxiety and almost forced speech,” seem anxious, have some tangential thoughts, be oriented to time, place, and person, demonstrate some awareness of current events and situations, display some pain behavior, show “a good deal of psychomotor agitation,” have some insight into his problems, demonstrate fair long-term memory, have good abstract thinking ability and intact logical thinking, show no signs of hallucinations or paranoia, use age-appropriate vocabulary, have normal thought content, and demonstrate less- than-normal attention span due to anxiety and pain. Id. He noted Plaintiff's report of recent suicidal thoughts with no history of suicide attempts or hospitalization for suicide threats. Id. He wrote: “Overall, the claimant appeared to be angry, frustrated, under a lot of stress and emotionally reacting to his physical problems.” Id.

Dr. Phillips administered the Folstein Mini-Mental State Exam, and Plaintiff received a score of 29/30. Tr. at 357. He demonstrated abilities to correctly name the season, year, day, and date, complete serial sevens, spell “world” backwards, repeat words without difficulty, recall two of three words after five minutes, identify a watch and a pencil, follow simple directions, read and complete a simple written task, write a simple sentence, and copy a simple geometric shape. Id.

Dr. Phillips wrote:

Mr. M[] is a 45-year old male referred for a mental status to assist in determining his eligibility for social Security Disability benefits. The information and findings gathered from this evaluation indicate that Mr. M[] experiences moderate depression with some anxiety. Mr. M[] also demonstrated some cognitive interference with his focus and attention due to pain and anxiety. He is currently taking psychotropic medications. He reports some help from the medication. He clearly demonstrated the ability to maintain most of his basic [activities of daily living]. He was able to interact appropriately with this examiner. He did appear tense and somewhat depressed. He is more anxious than depressed at this time.

Based on the educational history, work history and functional level, Mr. M[] appears somewhat limited in his ability to perform

routine work in a normal work setting. The limits come from his chronic pain, his reactive depression to the pain and from anxiety about his medical condition and his financial future. He can understand and follow most directions. He can see and avoid most dangerous situations.

The observed ability of the claimant appears to be in line with those claimed by the claimant. His work-related ability appears to be about what he has reported. The stated impairment is likely to cause the level of impairment described by the claimant. The claimant is likely to need help managing finances.

Id.

Dr. Phillips's diagnostic impressions were mood disorder with depression and anxiety due to chronic pain and depressive disorder, not otherwise specified (“NOS”), and he indicated Plaintiff was experiencing stress from pain, frustration, and financial concerns. Tr. at 358. He assessed a global assessment of functioning (“GAF”) score⁵of 54.⁶ Id.

5 The GAF scale was previously used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 (“DSM-IV-TR”). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.

6 A GAF score of 51-60 indicates “moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or coworkers).” DSM-IV-TR.

Plaintiff presented to Corey Hunt, M.D. (“Dr. Hunt”), as a new patient on June 22, 2011. Tr. at 399. He reported anxiety and symptoms of depression. Id. He denied joint or muscle pain and indicated he had no limitations in mobility, although he had undergone right leg and ankle surgery after his leg was crushed in July 2010. Id. Dr. Hunt recorded normal findings on physical exam, noting Plaintiff ambulated to the exam room without assistance and sat comfortably on the exam table without difficulty or evidence of pain. Tr. at 400. He diagnosed depression and late effect of complications of trauma and prescribed Amitriptyline Hcl 25 mg and Fluoxetine Hcl 20 mg. Id.

Plaintiff presented to Dr. Hunt to discuss depression and sinus problems and obtain medication refills on December 21, 2011. Tr. at 422. He reported his depression medication provided adequate relief. Id. He denied joint and muscle pain and indicated no limitations in mobility. Tr. at 423. Dr. Hunt recorded normal findings on physical exam, but noted a scar on Plaintiff's right ankle. Id. He stated Plaintiff had fatigue, weight gain, and decreased energy. Id. He changed Amitriptyline HCl 25 mg from one to two at bedtime, refilled Fluoxetine 20 mg, and planned to check Plaintiff's testosterone level. Id.

State agency psychological consultant Edward Waller, Ph.D., reviewed the record and completed a psychiatric review technique as to Plaintiff's functioning prior to his DLI. Tr. at 86-87. He considered listings 12.04 for depressive, bipolar, and related disorders and 12.06 for anxiety and obsessive-compulsive disorders and found the record contained insufficient evidence to assess Plaintiff's abilities to understand, remember, or apply information, interact with others, concentrate, persist, or maintain pace, and adapt or manage oneself during the relevant period. Id. A second state agency psychological consultant, Silvie Ward, Ph.D., reached the same conclusion. Tr. at 105-06.

b. Records Subsequent to Plaintiff's DLI

On June 21, 2012, Plaintiff requested medication refills and denied any complaints or problems. Tr. at 390. He reported his foot pain was much improved on Amitriptyline. Id. He indicated he had been on Fluoxetine for eight years and denied complaints, desire to discontinue the medication, and significant depressive symptoms. Id. The physician indicated the exam was within normal limits. Id. He continued Amitriptyline and Fluoxetine. Id.

Plaintiff presented to Dr. Hunt for medication refills and denied new problems on December 20, 2012. Tr. at 420. He denied joint and muscle pain and indicated he had no limitations in mobility. Tr. at 421. Dr. Hunt noted Plaintiff showed “no anxiety, depression, mood swings or psychotic features and had good insight and intact memory and judgment. Id. He refilled Fluoxetine Hcl 20 mg and Amitriptyline Hcl 25 mg. Id.

Plaintiff returned to Dr. Hunt for medication refills and denied complaints on June 20, 2013. Tr. at 397. He denied joint or muscle pain and indicated he had no limitations in mobility on a review of systems (“ROS”). Id. Dr. Hunt indicated Plaintiff “ambulate[d] to the exam room without assistance,” demonstrated “no anxiety, depression, mood swings or psychotic features,” had good insight, and had intact memory and judgment. Tr. at 398. He recommended Aleve 220 mg and refilled Fluoxetine Hcl 20 mg and Amitriptyline Hcl 25 mg. Id.

Plaintiff presented to Stephen Frederick Oehme, M.D. (“Dr. Oehme”), to establish care on January 7, 2014. Tr. at 369. Dr. Oehme noted Plaintiff was “here from Newberry,” was “doing well,” and had up-to-date shots and normal lipids. Id. He noted Plaintiff had sustained trauma to his foot “from a large branch falling on right leg several years ago and use[d] [Amitriptyline] with good success.” Id. He wrote: “PT with family hx of depression but does well with medication. Has not increased in dozens of years and has some stresses so we will give him more options.” Id. An ROS was negative for joint pain, swelling, and myalgias and Plaintiff had no significant depression or anxiety and indicated stable mood. Id. Dr. Oehme recorded mostly normal findings on physical exam. Tr. at 370. He noted Plaintiff's gait was “smooth with normal and symmetric stride” and he had “[n]o clubbing, cyanosis, or inflammation,” but did have scars on his right lower leg and “some pain in heel with repeated weight bearing.” Id. He indicated Plaintiff was oriented times three, had intact recent memory, had appropriate mood and affect, and understood everyday activities and consequences. Id. His impressions were neuropathic pain, depression, and allergic rhinitis. Id. He prescribed Amitriptyline 25 mg, two at bedtime, and Fluoxetine, 20 mg, two daily. Id. He indicated Plaintiff should “[t]ry a higher dose of [Fluoxetine].” Id.

On June 30, 2014, Dr. Oehme noted Plaintiff was on Amitriptyline to help with pain and did “pretty well” taking it at night. Tr. at 367. He said Plaintiff's depression was stable on Fluoxetine. Id. He indicated Plaintiff had “mild arthritis” and “copes as best he can just using over-the-counter.” Id. He recorded normal findings on physical exam. Tr. at 368. His impressions were depression, neuropathic pain, and arthritis. Id. He refilled Amitriptyline 25 mg and Fluoxetine 20 mg. Id.

Plaintiff presented to Dr. Oehme for his six-month depression recheck on December 2, 2014. Tr. at 364. He reported “doing well,” but being “baffled by why he tends to lose his temper.” Id. He indicated he had been working on removing himself from the situation when he felt angry and noted he was more likely to withdraw before the situation built up than to express himself. Id. Plaintiff questioned whether his reactions might be related to his testosterone level. Id. Dr. Oehme explained that testosterone was more related to energy level and that his low energy might be part of the problem. Id. He indicated he would make sure Plaintiff had “labs available.” Tr. at 364-65. He stated Plaintiff's depression was otherwise “doing well.” Tr. At 365. He assessed depression and male hypogonadism and refilled Amitriptyline 25 mg and Fluoxetine 20 mg. Tr. at 366.

On June 26, 2015, Dr. Oehme noted Plaintiff “ha[d] no labs as he has no insurance,” did not “get any shots,” and “ha[d] not had any health maintenance.” Tr. at 362. He stated Plaintiff “live[d] a great lifestyle” and further wrote: “Actually designs and refurbishes houses and then has Gardens that are productive of their own fruit and vegetables. He is looking to be moving out of this area and go up to Asheville as he is done with his current project.” Id. He stated Plaintiff was there “for refills as he has some depression.” Id. However, he indicated Plaintiff denied suicidal and homicidal thoughts and was “doing well.” Id. He acknowledged Plaintiff was experiencing “a little bit of constipation” due to his medications, but maintained him on the same medications. Id. He recorded normal findings on physical exam and specifically noted: “Psychologically patient is very pleasant and actually brings in some produce that is fixed up and jarred. Wish him all the best.” Tr. at 363. Dr. Oehme assessed depression and constipation and continued Amitriptyline 25 mg and Fluoxetine 20 mg. Id.

Plaintiff presented to Dr. Hunt for routine follow up on September 1, 2016. Tr. at 392. He indicated his prescription medications of Fluoxetine HCl 20 mg and Amitriptyline 25 mg and over-the-counter Aleve 220 mg were providing adequate relief. Id. An ROS was positive for depression. Tr. at 393. Dr. Hunt recorded normal findings on exam, including no anxiety, depression, mood swings, or psychotic features, good insight, and intact memory and judgment. Id. He assessed major depressive disorder (“MDD”) and chronic pain syndrome, refilled Amitriptyline HCl 25 mg, and changed Fluoxetine Hcl from 20 to 40 mg. Id.

Plaintiff presented to Dr. Hunt to review lab studies on October 3, 2016. Tr. at 391. Dr. Hunt recommended Plaintiff follow a low carbohydrate diet, engage in 30 to 45 minutes of activity three to four times a week, and lose 10 pounds. Id.

On April 3, 2017, Plaintiff reported medication for depression provided adequate relief. Tr. at 394. He endorsed depressive symptoms on an ROS. Tr. at 395. Dr. Hunt recorded normal observations on exam, including “no anxiety, depression, mood swings or psychotic features,” good insight, and intact memory and judgment. Id. He replaced Aleve 220 mg with Naproxen 500 mg and prescribed testosterone. Id. He refilled Amitriptyline Hcl 25 mg and Fluoxetine Hcl 40 mg. Id.

On June 19, 2017, a serum testosterone test showed Plaintiff to have low testosterone. Tr. at 383.

Plaintiff presented to Dr. Hunt for evaluation of abdominal pain and to discuss serum testosterone findings and symptoms of depression on June 27, 2017. Tr. at 401. Dr. Hunt recorded normal findings on exam. Tr. at 402. He changed Plaintiff's testosterone prescription. Id.

Plaintiff's testosterone level was in the normal range on October 26, 2017. Tr. at 387.

Plaintiff endorsed depression on an ROS on November 6, 2017. Tr. at 413. Dr. Hunt stated Plaintiff had good insight, intact memory and judgment, and “no anxiety, depression, mood swings or psychotic features.” Id. He refilled Plaintiff's medications and discussed diet and exercise. Id.

On June 27, 2018, Plaintiff presented to Dr. Hunt to discuss his depressive symptoms. Tr. at 403. He indicated testosterone had caused him to have more severe mood swings. Id. He related a history of “episodes where he has just not been himsel[f] and he has been very generous with charities and gone through about $20,000 in a month.” Id. Dr. Hunt noted Plaintiff's partner was with him and that Plaintiff was “retired on a fixed income.” Id. He wrote: “Patient admits that his depression has been hard to treat, and he has episodes that he knows will make him very irritable that he can not explain.” Id. He indicated Plaintiff was not suicidal. Id. Dr. Hunt observed Plaintiff to be cooperative, make normal eye contact, be “mildly elated,” and to “ramble[] in history.” Tr. at 404. He assessed MDD, testicular dysfunction, chronic pain syndrome, oral dysphagia, and unspecified mood/affective disorder. Id. He refilled Amitriptyline Hcl 25 mg and Naproxen 500 mg, discontinued Testosterone Cyp 200 mg/mL, prescribed Fenofibrate 67 mg and Topirimate 25 mg, and replaced Fluoxetine Hcl 40 mg with Fluoxetine Hcl 20 mg. Id.

Plaintiff endorsed depression on an ROS on August 1, 2018. Tr. at 407. Dr. Hunt prescribed medication for an upper respiratory infection, but made no changes to Plaintiff's other medications. Id.

Plaintiff endorsed depression, insomnia, irritability and poor concentration on an ROS on September 6, 2018. Tr. at 410. Dr. Hunt observed Plaintiff to appear irritable and circuitous and to be “rather abrupt with his partner here.” Id. He indicated Plaintiff had no abnormal involuntary movements, obsessive thoughts, delusions, or suicidal ideations. Id. He diagnosed persistent mood/affective disorder, prescribed Risperdal 2 mg, and changed Topiramate 25 mg to Topiramate 50 mg. Id.

On November 7, 2018, Plaintiff endorsed depression, insomnia, irritability, and poor concentration on an ROS. Tr. at 415. Dr. Hunt observed Plaintiff to be “showing signs of mania” and noted he was “still hyperfluent.” Id. He refilled Plaintiff's other medications and increased Topiramate 50 mg to three times a day. Id.

On December 12, 2018, Plaintiff reported depression, insomnia, irritability, and poor concentration on an ROS. Tr. at 418. Dr. Hunt observed Plaintiff was “showing signs of mania,” as he was “a little pressured” and “slightly irritable.” Id. He increased Topiramate to 100 mg twice a day and refilled Fluoxetine Hcl 20 mg. Id. He indicated he “ha[d] signed a statement and application filled out by Harold's spouse which [he] totally agree[d] with.” Id. The statement indicated that in 2018, Dr. Hunt “intensely oversaw [Plaintiff's] behavioral health disorders.” Tr. at 378. He identified symptoms that included “at a minimum, cyclical, intense despair, depression, memory lapses and agitation.” Id. He stated Plaintiff's “clinical profile and diagnostic progression [were] very characteristic and typical of patients with bipolar disorder” and his “present medication regime [was] showing very promising results.” Id. He wrote:

I have no doubt's that Mr. M[]'s illness was present in 2010, if not earlier. My diagnostic impression is that he has not been able to function in any work setting since that time, nor will he be able to do so in the long term future. His condition (including but not limited [to] memory lapses, challenged concentration, mood swings, agitation) significantly limit[s] his ability to cope and compromise[s] his interaction skills with others.

Id. He said Plaintiff's “manifestation of ‘normal' behavior” was “not unusual” and was “consistent with the bipolar profile.” Id.

c. Evidence Submitted to Appeals Council

Dr. Hunt provided a summary of care dated March 5, 2020. Tr. at 2223. He stated Plaintiff's current medications included Amitriptyline Hcl 25 mg, Naproxen 500 mg, Fenofibrate 67 mg, Fluoxetine Hcl 20 mg, Aeroneb Go Nebulizer Handset, Albuterol Sul 2.5 mg/3mL Soln (0.083%), Comp-air Nebulizer System, Alaway 0.025% Eye Drops (0.035%), Topiramate 100 mg, and Depakote ER 500 mg. Tr. at 22. He stated Plaintiff had been unable to work over the nine-year period he treated him “due to his bipolar disorder.” Tr. at 23. He wrote:

He has demonstrated this disease by manic episodes with severe irritation, severe insomnia, weight loss and spending sprees that have caused severe financial hardships for him and his spouse.

He is not able to deal with interpersonal problems that would often turn up at work and his organizational skills are poor at times due to his illness. He is generally hypomanic.

Id. He noted he had been following Plaintiff because “no psychiatrist will follow a patient without insurance” and indicated Plaintiff had been “generally complaint with medications,” although he had “been intolerant of many of the medications” Dr. Hunt had prescribed. Id.

Dr. Hunt explained that he had gained a better understanding of Plaintiff's history when his husband had attended visits with him because Plaintiff had not shared many of his symptoms and difficulties on his own. Id. He said Plaintiff's “insight and judgment [were] normal at times, but [were] often very poor [s]o much that” he did “not believe any employer would tolerate it.” Id. He indicated the subject matter of Plaintiff's discussions was “often inappropriate to the point that it would be offensive to many, and intolerable to employers.” Id.

Dr. Hunt stated he was “fairly convinced” of Plaintiff's diagnosis of bipolar disorder, generally hypomanic based on “having observed him for almost a decade.” Id. He wrote Plaintiff “doubtlessly would have suffered a complete collapse from the added stress of being unable to work, take care of himself and pay his bills, if not for the support of his husband.” Id. He requested the judge consider his “recommendation that Mr. M[] be unemployable due to his mental illness.” Id.

3. Non-Medical Source Statements

a. Mr. B.'s Statement

On August 10, 2010, John C. B.⁷(“Mr. B.”), Plaintiff's current spouse, addressed a letter to the disability examiner reviewing the first application for benefits. Tr. at 200. Mr. B. indicated he had been Plaintiff's friend for over 12 years and had assisted him in completing his application for disability benefits. Id. He enclosed the draft documents Plaintiff had undertaken to complete on his own and noted that they demonstrated his “inability to concentrate on certain tasks and his tendency to lose focus.” Id. He indicated his opinion that Plaintiff's “lapses in concentration and inability to focus ha[d] been significant contributors to his two recent accidents.” Id. He stated he had encouraged Plaintiff to apply for benefits prior to his orthopedic injury based on “his inability to concentrate” and “his impaired job record.” Id. He noted he had contacted the Newberry Vocational Rehabilitation Office, but had been unsuccessful in convincing Plaintiff to follow up. Id.

7 The undersigned has referred to the individuals who provided non-medical source statements by first names and last initials to further preserve Plaintiff's privacy.

b. Mr. M.'s Statement

On August 15, 2010, Sam M., Jr. (“Mr. M.”), directed a letter to the disability examiner reviewing the first application. Tr. at 201. He explained he had reviewed Mr. B.'s letter and “fully concur[red] with [his] perceptions and conclusions.” Id. He stated he had known Plaintiff “for over ten years and ha[d] kept in touch with him on a personal and professional basis regularly.” Id. He indicated he was a “Registered Nurse with over 25 yrs of practice and a Chief Certified Registered Nurse Anesthetist.” Id. Although he admitted his specialty was not in behavioral health, he was “comfortable in stating” Plaintiff's “mental issues ha[d] contributed to both” ladder accidents, as “[h]is depression, panic attacks and probable bi polar disorder ha[d] certainly put him at risk.” Id. He wrote:

Consistent with [Mr. B.'s] evaluations, I have observed Harold to have a short attention span and difficulty maintaining focus on even simple tasks. [Mr. B.] and I have shared concerns over the past few years about Harold's sporadic employment history and the fact that it is indicative of various challenges imposing themselves upon Harold. Over the years, I have given various recommendations to Harold concerning possible treatment and medications.

Id.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing on November 5, 2019, Plaintiff testified he had last worked as the chef and food service director at the ATO fraternity house on the University of South Carolina's campus. Tr. at 57. He confirmed he had previously worked in food service and as a chef for Still Hopes, State of South Carolina, Summit, and Atria. Tr. at 57-58. He said he stopped working due to a mental breakdown and manic depression. Tr. at 58. He stated he experienced “[a] constant cycle of mania, of depression that would last from four to six weeks.” Id. He denied being fired from his last job, but indicated he had worked through the school year and had not been offered an opportunity to return in the summer or fall. Id. He said that if an opportunity for further employment had been extended at the time, he would not have accepted it. Tr. at 59.

Plaintiff confirmed he had already stopped working when he fractured his ankle in July 2010. Id. He stated he had crushed his ankle and leg when a tree limb broke and knocked him off a ladder while he was picking pecans. Id. He indicated he was no longer treating with Dr. Hibbitts. Id.

Plaintiff testified he and Mr. B. had “bought five houses” over the prior 11-year period and he had “been the labor and restored them.” Tr. at 60. He said he had tried and failed to “figure out some way to make” the properties into “moneymaking establishment[s].” Id. He stated they would buy “[t]he worst house in the best neighborhood” and he would do the work to rehab it, hiring some of the work out and doing some of it on his own. Id. The ALJ asked Plaintiff if he was indicating that since 2010 he had been unable to work full-time and did not “consider the rehabbing to be a full-time work situation.” Tr. at 62. Plaintiff stated “it was full-time that I could do.” Id.

Plaintiff said he worked mostly by himself while rehabbing the houses, except for when he required work with plumbing, electrical, or major structural problems and Mr. B. would “get the money together” to hire a professional. Id. He indicated most of the time he could complete a task he started, but it would depend on whether he became so stressed that he gave up. Id. He said it took him five years to complete the first house. Tr. at 62-63.

Plaintiff testified his periods of depression were “misery.” Tr. at 63. He said he could not “see anything other than just there's no way out of it,” like he had “fallen down a rabbit hole and no matter what [he did] life [was] just horrible.” Id. He stated he did not want to drive or be around anyone and did not think he could complete his plans during these episodes. Id. He indicated the episodes lasted four to six weeks before a “light would start to come back in” slowly and he would have more energy and realize he could do things. Id.

Plaintiff stated the episodes worsened after he sustained the injury in 2010. Tr. at 64. He testified his desperation and anger became worse because he was wheelchair-bound for six months and could do nothing for a year while he was going through rehabilitation. Id. He said he had no insurance and had to beg people to help him meet his basic needs. Id. He indicated that after that year, he decided he had to complete and sell the house to allow himself to “start over” and “control the depression and the misery.” Tr. at 65. He explained the physical move did not change anything and he “found [himself] without a support system” and only able to stay in the house, go to the grocery store, and cut the grass for two years. Id. He said he had no insurance over that period, but would pay cash to visit Dr. Oehme once a month for prescription refills. Id. He indicated he would work in the yard on days when he felt better, but stayed in the house most days because of his fear. Tr. at 66.

Plaintiff confirmed that he had obtained health insurance after he and Mr. B. were married in 2015. Id. He testified Mr. B. committed to attending medical visits and figuring out what was wrong with him, and he was subsequently diagnosed with bipolar disorder. Id. He indicated he had tried different medications, and some had caused horrible side effects. Id. He stated he had finally found a combination of medications that had allowed him to live a better life by eliminating the massive depression, fear, and desire to die. Tr. at 67. He said he continued to have problems with driving, fear of being in large crowds, stuttering when under stress, and bursting into tears if surrounded by too many people. Id. He testified he had experienced short-term memory deficits since 2010 and had implemented strategies of writing things down and displaying the notes in prominent places as reminders. Tr. at 67-68. He stated increased stress continued to induce periods of depression. Tr. at 68. He said he had been unable to drive on the interstate for two years and felt very nervous if a car got too close to him while he was driving. Id. He noted he feared people touching him or asking him questions he could not answer. Id.

Plaintiff testified that when Dr. Hunt took over his treatment in 2010 or 2011, he had prescribed two, non-addictive pills per night for him to manage pain related to his ankle injury. Tr. at 68-69. He indicated he had to be careful when he walked, and his pain continued to be intense at times. Tr. at 69. He estimated he could walk for 45 minutes to an hour, depending on the terrain, and could stand for 45 minutes to an hour. Id. He said he could sit for 30 to 45 minutes before he would need to move his ankle. Tr. at 70. He stated he could not lift more than 25 pounds because his foot and ankle would give out if he needed to squat and lift any greater weight. Id.

b. Vocational Expert Testimony

Vocational Expert (“VE”) Kristin Panella reviewed the record and testified at the hearing. Tr. at 75-78. The VE categorized Plaintiff's PRW as chef, Dictionary of Occupational Titles (“DOT”) No. 313.131-026, requiring medium exertion and a specific vocational preparation (“SVP”) of 8. Tr. at 75. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the medium exertional level requiring no work on uneven terrain, occasional pushing and pulling with the right leg, and sitting and standing at 45-minute intervals in routine, unskilled work with a reasoning level of two or less, involving no work with the public as customers, avoidance of large crowds in the workplace, no high production standards, and no work dependent on other workers for output, such as conveyor belt or assembly line work. Tr. at 75-76. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW or other work at the medium exertional level. Tr. at 76. The ALJ asked whether there would be any other jobs the hypothetical person could perform. Id. The VE identified light jobs with an SVP of 2 as a laundry folder, DOT No. 369.687-018, an inspector and hand packager, DOT No. 559.687-074, and a cleaner and polisher, DOT No. 709.687-010, with 111,000, 315,000, and 18,000 positions in the national economy, respectively. Tr. at 76-77.

The ALJ asked the VE if her testimony had been consistent with the DOT and its companion publications. Tr. at 77. The VE testified it had been and was also supported by her professional education and training as to use of a crutch for the left leg, alternating a sitting and standing option, interacting with specific individuals, and use of a conveyor. Id.

In response to questioning by Plaintiff's attorney, the VE testified most employers would tolerate a maximum of 10% of time off-task and that any time off-task in addition to 10% would preclude even unskilled work. Tr. at 77-78. Plaintiff's counsel asked the VE to indicate the maximum number of absences an employer would allow per month. Tr. at 78. The VE testified only one absence per month would be permitted. Id.

2. The ALJ's Findings

The ALJ made the following findings of fact and conclusions of law in his decision:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2011.

2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date, as amended, of October 29, 2010, through his date last insured of December 31, 2011 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following severe impairments: osteoarthritis of the right ankle and heel due to fractures and bipolar disorder (20 CFR 404.1520(c)).

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b) in that he could lift and carry up to twenty pounds occasionally and ten pounds frequently; stand and walk for about six hours in a workday; and sit for about six hours in a workday. He required an option to alternate sitting and standing at intervals of about forty-five minutes. He could occasionally push and pull with the right leg. He could perform no work on uneven terrain. In spite of his mental impairment, he remained capable of routine, unskilled tasks consistent with a reasoning development level of 2 or less, as defined in the Dictionary of Occupational Titles. He could perform no work with the public as customers and had to avoid large crowds in the workplace. He could perform no work with high production standards or whose work output is dependent on co-workers, such as assembly line or conveyor belt work.

6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on July 11, 1965 and was 46 years old, which is defined as a younger individual age 45-49, on the date last insured (20 CFR 404.1563).

8. The claimant has more than a high school education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

11. The claimant was not under a disability, as defined in the Social Security Act, at any time from October 29, 2010, the alleged onset date, as amended, through December 31, 2011, the date last insured (20 CFR 404.1520(g)).

Tr. at 35-43.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ erred in concluding Plaintiff's impairments were not disabling under 42 U.S.C. § 423; and

2) the ALJ erred in qualifying the VE and accepting her testimony.

The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;⁸ (4) whether such impairment prevents claimant from performing PRW;⁹ and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

8 The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

9 In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence” is “more than a mere scintilla,” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consolidated Edison, 305 U.S. at 229). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

1. Evaluation of Disabling Effect of Impairments

In his brief, Plaintiff requests the court address the following “core questions”:

1. Did the Commissioner evaluate the Plaintiff's bipolar condition in accordance with clinical practice guidelines promulgated by respected/recognized clinical authorities?;

2. Did the Commissioner's experts utilize reference materials in accordance with user instructions set forth within the reference document(s)?;

3. What “intent” must be concluded by the Commissioner's actions and omissions?;

4. Does Plaintiff's life history conform to recognized and generally accepted symptoms and evolutionary pathways of bipolar disorder?; and

5. Has Defendant set forth reasonable, reliable evidence that Plaintiff does not meet legal requirements of 42 U.S.C. § 423?

[ECF No. 19 at 1-2]. Plaintiff presents additional questions he considers “core and pivotal to resolving the dispute” in his response to the Commissioner's brief, including several questions as to the Commissioner's processes for reviewing records, capturing and interpreting data, and following clinical guidelines. [ECF No. 29 at 3]. The undersigned considers the questions Plaintiff raises in his pleadings only to the extent permitted by the narrowly-tailored scope of review contemplated in 42 U.S.C. § 405(g). Except for Plaintiff's fifth question in his initial brief, his questions are not directly relevant to whether the findings of the Commissioner are supported by substantial evidence, as defined by the courts, and whether the Commissioner applied the proper legal standard in evaluating his case. Accordingly, the undersigned addresses Plaintiff's fifth question as it relates to his specific arguments below.

As Plaintiff's claim is one for DIB only, he was required to prove his impairments became disabling, as defined in 42 U.S.C. § 423(d), prior to his DLI of December 31, 2011. In assessing the severity of a claimant's pre-DLI condition, “[m]edical evaluations made after a claimant's insured status has expired are not automatically barred from consideration and may be relevant to prove a disability arising before the claimant's DLI.” Bird v. Commissionerof Social Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012) (citing Wooldridge v.Bowen, 816 F.2d 157, 160 (4th Cir. 1987)). “[P]ost-DLI medical evidence generally is admissible in an SSA disability determination in such instances in which that evidence permits an inference of linkage with the claimant's pre-DLI condition.” Id. (citing Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). In Bird, the court explained that under its decisions in Moore and Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005), “retrospective consideration of evidence is appropriate when ‘the record is not so persuasive as to rule out any linkage' of the final condition of the claimant with his earlier symptoms.” Id. at 341 (citing Moore, 418 F.2d at 1226).

Although the ALJ is required to assess whether the pre-DLI condition and post-DLI condition are linked, “[t]he weight and conclusions to be drawn therefrom are within the ALJ's purview.” Parker v. Berryhill, 733 Fed. App'x. 684, 687 (4th Cir. 2018); see also Brown v. Colvin, C/A No. 6:15-2539-DCN, 2016 WL 5539522, at *3 n.4 (D.S.C. Sept. 30, 2016) (providing “Bird does not require retrospective evidence be given any specific weight or require the ALJ to completely ignore the fact that such evidence was submitted after the date last insured”) (citing King v. Colvin, 2016 WL 4599902, at *8 (E.D. Va. Sept. 2, 2016)). In Parker, the court found “[b]ecause the ALJ employed the correct legal standard, his conclusion regarding the disability onset date [was] entitled to deference.” Parker, 733 Fed. App'x. at 687-88.

Plaintiff indicates the ALJ should have considered more recent evidence substantiating and further corroborating the existence of his earlier disability, as he was uninsured between 2010 and 2015. [ECF No. 19 at 6]. He claims the ALJ erred in relying on opinions of the non-treating, nonexamining consultants who neglected to consider the forms and communications he transmitted. Id. He claims he explained his reasons for declining to appeal the 2010 denial in his November 28, 2018 correspondence and indicated he considered the 2018 application to be a continuation of his 2010 application. Id. at 7; [ECF No. 29 at 10]. He points to specific notations in records following his DLI. [ECF No. 29 at 6-7].

Plaintiff further maintains the ALJ improperly relied on standards and tests of “cognitive functioning” in evaluating the functional effects of bipolar disorder, as the impairment is “manifested by mood swings unrelated to intelligence and problem solving.” Id. at 2; ECF No. 29 at 2. He claims Dr. Phillips was dismissive, failed to conduct a thorough consultative exam, misstated information as to his background and family history, and did not evaluate his bipolar disorder based on diagnostic and treatment guidelines for the impairment. [ECF Nos. 19 at 2-3 and 29 at 2]. He argues the ALJ could not capably assess the combined effect of his bipolar disorder and orthopedic challenges in the absence of a second opinion by an orthopedic expert. [ECF No. 19 at 4]. He asserts the ALJ did not adequately consider Dr. Hunt's opinion and the GAF scores he assessed or the statements from Mr. B. and Mr. M. Id. at 5. He submits his work history and frequent relocations served as substantial evidence to indicate “[s]omething [was] wrong.” [ECF No. 29 at 4]. He claims the ALJ did not adequately consider the extent and functional effects of his severe orthopedic injury and surgical repair. Id. at 45.

The Commissioner argues the ALJ reasonably relied on limited and unremarkable treatment records for the period prior to and after Plaintiffs DLI. [ECF No. 20 at 8]. She maintains the ALJ rationally concluded Plaintiff successfully underwent surgery to repair a broken ankle prior to the relevant period and received no treatment for orthopedic impairments during the period from August 2010 to June 2011. Id. at 3, 9. She points out Plaintiff denied musculoskeletal and neurological issues, and Dr. Hunt recorded normal physical observations during two visits prior to Plaintiffs DLI. Id. at 4. She maintains Plaintiffs visits with Dr. Hunt after his DLI were routine and unremarkable with respect to physical complaints. Id. She contends the evidence supported the ALJ's findings that Plaintiff had limited complaints of depression and a stable medication regimen for the period extending well after his DLI. Id. at 9. She notes Dr. Hunt refilled Fluoxetine and added Amitriptyline when Plaintiff initially presented to him with depression and anxiety in June 2011, but Plaintiff subsequently reported the medications provided adequate symptom relief and endorsed stable symptoms to Dr. Hunt and another provider in the years following his DLI. Id. at 5. She asserts the ALJ also considered Plaintiff's activities of daily living (“ADLs”) in concluding his impairments were not disabling during the relevant period. Id. at 9-10. She points out that the ALJ found Plaintiff had significant functional limitations during the relevant period, which precluded some, but not all, work. Id. at 10.

The Commissioner further argues the ALJ did not dismiss evidence of bipolar disorder and its diagnostic criteria, but instead found Dr. Phillips's report only “somewhat” persuasive and gave Plaintiff the benefit of the doubt in finding bipolar disorder to be a severe impairment. Id. at 12, 14. She notes Plaintiff did not object to Dr. Phillips's opinion during the hearing, and the record as of the time of Dr. Phillips's assessment did not suggest a need for testing specific to bipolar disorder. Id. She asserts the ALJ considered statements from Drs. Hunt and Hibbitts and Mr. B. and Mr. M. in accordance with the applicable regulations. Id. at 14-18.

Plaintiff's 2010 application for benefits is not subject to reopening. Plaintiff argues he was diligently seeking evidence to support his claim between 2010 and 2018 and references language in an October 28, 2010 denial letter indicating he must have a good reason for waiting more than 60 days to ask for an appeal. [ECF No. 29 at 10 (citing Tr. at 204)]. However, this language does not create an open-ended period of appeal, as the regulations provide guidelines for reopening prior applications. Pursuant to 20 C.F.R. § 404.988, “[a] determination, revised determination, decision, or revised decision may be reopened-(a) Within 12 months of the date of the notice of the initial determination, for any reason; (b) Within four years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to reopen the case; or (c) At any time” under limited circumstances. An initial determination was issued in Plaintiff's first claim for benefits in October 2010, more than eight years before he filed his second application. Tr. at 52. Thus, Plaintiff's first case could not be reopened under 20 C.F.R. § 404.988(a) or (b) because too much time had passed.

For SSA to reopen a case at any time, the decision must have been obtained by “fraud or similar fault” as defined by 20 C.F.R. § 416.1488(c) or involve specific circumstances that are not present in this case. 20 C.F.R. § 404.988(c). “In determining whether a determination or decision was obtained by fraud or similar fault, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have had at the time.” 20 C.F.R. § 416.1488(c). Courts have considered it appropriate to reopen a prior claim under 20 C.F.R. § 404.988(c) and on due process grounds where evidence shows the claimant lacked the ability to comprehend the implications of the decision and ability to appeal and did not have sufficient legal assistance. See Young v Bowen, 858 F.2d 951, 955 (4th Cir. 1988) (stating “[i]t offends fundamental fairness . . . to bind a claimant to an adverse ruling who lacks both the mental competency and the legal assistance necessary to contest the initial determination”); Steiberger v. Apfel, 134 F.3d 37, 40-41 (2d. Cir. 1997) (recognizing due process-based claims that a decision was obtained by fraud or similar fault based on mental impairment “only upon a particularized allegation of mental impairment plausibly of sufficient severity to impair comprehension” and noting the court must decline to exercise jurisdiction “merely upon a generalized allegation, long after the fact, that the claimant was too confused to understand available administrative remedies”).

The ALJ found “[t]here [was] no evidence of such fault to warrant reopening of the prior claim” and Plaintiffs “amendment of his alleged onset date further ma[de] the issue of reopening moot.” Tr. at 33. Although Plaintiff alleges his mental impairments impacted his decision not to appeal the October 2010 decision, he does not allege he was incompetent to do so and admits he followed legal advice not to appeal. Tr. at 72, 204-08; [ECF Nos. 19 at 7 and 29 at 10]. Given Plaintiffs representations, the undersigned cannot find the ALJ's decision not to reopen the prior claim violated his due process rights. The record supports the ALJ's indications during the hearing that Plaintiff was “certainly intelligent enough to know what the ramifications [of not appealing the decision] were [at the time].” Tr. at 52. Accordingly, the undersigned denies Plaintiff's request that the court reopen his prior claim and considers the law applicable to claims filed on or after November 26, 2018.

The undersigned finds the ALJ thoroughly considered evidence of Plaintiff's impairments both prior to and following his DLI. The ALJ specifically referenced Plaintiff's July 2010 ER visit following his fall from the ladder, his follow up visits with Dr. Hibbitts, and his surgery. Tr. at 39. He cited Plaintiff's June 2011, December 2011, and June 2012 visits to Dr. Hunt's clinic. Tr. at 39, 40. He discussed the September 2010 consultative exam with Dr. Phillips. Tr. at 39. He addressed 2014 and 2015 records from Dr. Oehme. Tr. at 40. The ALJ explained:

The clinical picture reflected in these treatment record shows quite limited objective findings to support the disabling limitations asserted by the claimant prior to his date last insured. The limited orthopedic findings after his right leg surgery show good results from that surgery and little further care. The primary care notes discussed above document good recovery of ambulation within a year after the injury and only minor complaints of pain. His mental health treatment notes describe limited complaints of depression and an essentially stable medication regimen for a period extending well after his date last insured. The notes of his physicians clearly do not show complaints of the severity he alleged in his testimony, nor do they demonstrate ongoing treatment for such severe complaints. There are no sustained clinical findings to substantiate disability. The findings of the consultative examination (Exhibit 4F) did not identify disabling limitations. The objective clinical findings from his treating and examining sources support the residual functional capacity described above for the period at issue.

Id. The ALJ appropriately considered medical evidence for the period prior to and nearly four years after Plaintiff's DLI in reaching this conclusion. Therefore, the undersigned cannot find he failed to consider evidence that related back to Plaintiff's pre-DLI condition.

The ALJ considered Plaintiff's specific allegations of “a prolonged period when he could not do anything due to cycles of depression and mania,” but noted such periods were not reflected in his doctors' records. Id. The undersigned's review of the record supports this conclusion. The ALJ acknowledged Plaintiff's description of “numerous changes of medications, with severe side effects from some,” but found “the treatment notes do not report any such course of treatment, but instead prolonged periods on a stable regimen of medications and doses.” Id. The record supports the ALJ's assessment of this allegation, as Plaintiff's pain was consistently treated with Amitriptyline Hcl 25 mg and his mental symptoms were consistently treated with Fluoxetine Hcl 20-40 mg prior to and in the more than five years following his DLI. Tr. at 362-63, 364-64, 367-68, 369, 390, 392, 397-98, 399400, 420-21, 422-23. Dr. Hunt added an over-the-counter dose of Aleve on June 20, 2013, and Plaintiff continued to use it as needed until April 2017. Tr at 395, 398. During treatment visits prior to June 2018, Plaintiff denied side effects, aside from mild constipation, and reported his medications provided adequate relief. See Tr. at 362-63, 364-64, 367-68, 369, 390, 392, 394-95, 397-98, 399-400, 403, 420-21, 422-23.

The evidence does not support Plaintiff's argument that the ALJ relied on indications of “insufficient evidence” from the state agency psychological consultants, who never spoke with or examined him or read his forms and communications [ECF No. 19 at 6]. The ALJ considered the state agency consultants' opinions to be “of little benefit, as they merely found insufficient evidence to evaluate the claimant as of his date last insured (Exhibits 2A, 6A).” Tr. at 41. His finding of severe impairments and functional limitations was contrary to the state agency consultants' conclusions.

The ALJ appropriately considered Plaintiff's cognitive functioning as required by the applicable regulations, but did not conclude bipolar disorder was not disabling based on his normal cognitive functioning. The ALJ must evaluate the evidence using the special technique in 20 C.F.R. § 404.1520a in all cases involving mental impairments. This requires the ALJ to rate the degree of the claimant's functional limitation as none, mild, moderate, marked, or extreme based on “the extent to which [his] impairment(s) interfere with [his] ability to function independently, appropriately, effectively, and on a sustained basis” in the broad functional areas of understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. § 404.1520a(b), (c)(2), (3), (4). The ALJ must subsequently set forth specific functional limitations in the residual functional capacity (“RFC”) assessment to address evidence of impairment in any of the four areas of mental functioning where he assessed limitations. See 20 C.F.R. § 404.1520a(d)(3).

The ALJ applied the special technique in 20 C.F.R. § 404.1520a, and found Plaintiff had mild limitation in understanding, remembering, or applying information as of his DLI. Tr. at 36. He explained:

A consultative examination in September 2010 found the clamant to be well oriented, with good abstract thinking ability, intact logical thinking, and normal thought content (Exhibit 4F). His score on a mini-mental status exam was within the normal range. His first treatment note from Dr. Hunt, in June 2011, did not describe complaints or limitations in this area (Exhibit 7F, pages 19-20).

Id. He concluded the evidence supported a moderate degree of limitation in interacting with others as of Plaintiff's DLI. Tr. at 36-37. He wrote:

The claimant described a fear of being in crowds and reluctance to visit with anyone. He stated his mother went with him to doctor's appointments, and he participated in that treatment. The consultative examiner stated that he was able to maintain most of his basic activities of daily living and interact appropriately during that evaluation (Exhibit 4F).

Id. The ALJ found Plaintiff had a moderate degree of limitation in concentrating, persisting, or maintaining pace, noting:

The consultative examiner found his long-term memory to be fair, with an attention span less than normal, but also found that he

could understand and follow most directions (Exhibit 4F). Although he was not always clear in the times of events, the claimant described his plans and activity of buying houses to renovate and resell, in which he did most of the work. This project went on for several years and demonstrates a capacity for focus and attention consistent with no more than a moderate limitation.

Tr. at 37. The ALJ concluded Plaintiff had a moderate degree of limitation in adapting or managing himself, writing: “He described cycles of depression with difficulty functioning, but was able to engage in significant ongoing activities. As noted, the consultative examiner found him able to be only somewhat limited in his ability to perform routine work and maintain most of his activities of daily living (Exhibit 4F).” Id.

Despite his acknowledgment of conflicting evidence as to Plaintiff's diagnosis, the ALJ credited bipolar disorder as one of Plaintiff's severe impairments. Tr. at 35. He found Plaintiff's mild limitation in understanding, remembering, or applying information and his moderate limitations in interacting with others, concentrating, persisting, or maintaining pace, and adapting and managing himself reduced his RFC such that he could perform routine, unskilled tasks consistent with a reasoning development level of 2 or less, could perform no work with the public as customers, had to avoid large crowds in the workplace, and could perform no work with high production standards or whose work output was dependent on co-workers such as assembly line or conveyor belt work. Tr. at 37-38. The ALJ's evaluation reflects his appropriate application of the special technique in 20 C.F.R. § 404.1520a and his consideration of Plaintiff's functioning in all four areas of mental functioning, not just the cognitive domain.

Because the only application for benefits this court may review was filed on November 26, 2018, the rules in 20 C.F.R. § 404.1520c must be used to evaluate the ALJ's consideration of medical and other opinion evidence. Pursuant to 20 C.F.R. § 404.1520c, the ALJ may neither defer to nor give any specific weight to a medical opinion based on its source. Although he must consider how persuasive he found all the medical opinions based on (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict a medical opinion, the ALJ is only required to articulate in the decision how he evaluated the supportability and consistency factors. 20 C.F.R. § 404.1520c(b), (c). “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinion . . . will be.” 20 C.F.R. § 404.1520c(c)(1). “The more consistent a medical opinion . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion . . . will be.” 20 C.F.R. § 404.1520c(c)(2). Section 404.1520c does not require the ALJ to articulate how he considered evidence from nonmedical sources using the requirements in paragraphs (a) through (c). However, the ALJ must still “consider all of the available evidence from [the claimant's] medical sources and nonmedical sources about how [the claimant's] symptoms affect [him].” 20 C.F.R. § 404.1529(c).

The ALJ's evaluation reflects his appropriate consideration of the supportability and consistency of Dr. Hunt's opinion and supports his conclusion as to its persuasiveness. The ALJ wrote:

Dr. Hunt, who apparently continues to treat the claimant, prepared a statement dated December 12, 2018, concluding that the claimant's mental illness was “present in 2010, if not earlier” and that the claimant “has not been able to function in any work setting since that time, nor will he be able to do so in the long term future” (Exhibit 6F). That assessment is also not persuasive, as it is plainly inconsistent with the ongoing treatment notes written by Dr. Hunt, both before and after the claimant's date last insured, as discussed above. Although he wrote in his note that the claimant's “clinical profile and diagnostic progress are very characteristic and typical of patients with bipolar disorder,” he has never given that diagnosis for the claimant, even in a clinic note for the date of his statement (Exhibit 7F, pages 37-38). The opinion by Dr. Hunt is not consistent with his own treatment notes or the other evidence of record.

Tr. at 41.

The ALJ had previously summarized Plaintiff's visits with Dr. Hunt in 2011 and 2012, noting Plaintiff's report of “adequate relief of his depressive symptoms on his current medications” and Dr. Hunt's impressions that Plaintiff “had no anxiety, depression, mood swings, or psychotic features, with good insight and intact memory and judgment.” Tr. at 39-40. He noted Dr. Oehme “wrote that the claimant does well with medication for his depression and had not increased his dose in ‘dozens of years' (Exhibit 5F, page 10)” and Dr. Phillips “did not identify disabling limitations” in his consultative exam findings. Tr. at 40. As discussed above, the ALJ explained Plaintiff's “mental health treatment notes describe limited complaints of depression and an essentially stable medication regimen for a period extending well after his date last insured.” Tr. at 40. The ALJ's findings as to the supportability and consistency of Dr. Hunt's opinion are supported by the evidence he referenced, and substantial evidence supports his conclusion that Dr. Hunt's opinion was “not persuasive.”

The ALJ found Dr. Phillips's opinion only “somewhat persuasive, as he identified specific clinical findings that support some work limitations but not disabling limitations.”¹⁰Tr. at 41. He did not specifically explain how he considered the supportability and consistency of Dr. Phillips's impression that Plaintiff “appear[ed] somewhat limited in his ability to perform routine work in a normal work setting,” Tr. at 357. However, he was not required to do so. “[E]ven under § 404.1520c,” the ALJ is not required to “provide any analysis about how [he] considered” a “[s]tatement[] that [the claimant is] or [is] not disabled, blind, able to work, or able to perform regular and continuing work.” 20 C.F.R. § 404.1520b(c)(3)(i).

10 In discussing his evaluation of the opinion evidence, the ALJ committed a harmless scrivener's error in referring to Dr. Phillips as “Dr. Brown,” Tr. at 41. See generally Jenkins v. Commissioner of Social Security Administration, No. 1:16-1237-RMG-SVH, 2017 WL 1034623, at *11 (D.S.C. Mar. 2, 2017) (explaining that a harmless scrivener's error may be found if a review of the entire decision remedies the error), adopted by 2017 WL 1040365 (D.S.C. Mar. 16, 2017). The ALJ indicated in the same sentence that he was referring to the “consultative examiner.” Tr. at 41. Earlier in the decision, he noted Dr. Phillips had performed the consultative exam and discussed his findings. Tr. at 39.

A review of the ALJ's decision shows he adequately considered Dr. Phillips's observations and impressions. He wrote:

The claimant reported to him some anxiety and depression, with depression as a child. He was then taking Prozac. On mental status examination, the claimant was well oriented but had significant anxiety and some pain behavior. He had psychomotor agitation. He had good abstract thinking ability, intact logical thinking, and normal thought content, with fair memory. There was no evidence of hallucinations or paranoia. His attention span was less than normal. The claimant described some recent suicidal thoughts, but no attempts or plan. On a mini-mental status exam, the claimant's score was within the normal range. Dr. Phillips stated diagnostic impressions of mood disorder with depression and anxiety due to chronic pain and depressive disorder, not otherwise specified.

Tr. at 39. This summary is consistent with Dr. Phillips's evaluation report.

The undersigned finds no merit to Plaintiff's challenge of Dr. Phillips's assessment and diagnostic impressions. When Dr. Phillips conducted his exam in September 2010, Plaintiff had not been diagnosed with bipolar disorder. In fact, as the ALJ pointed out, Dr. Hunt had not diagnosed Plaintiff with bipolar disorder as of December 2018. Tr. at 41. Dr. Phillips was specifically tasked with conducting a “mental status” exam and, accordingly, provided impressions as to Plaintiff's mental status and diagnostic impressions based on his observations and Plaintiff's reports. Tr. at 355-58.

Information Plaintiff attaches to his brief from the National Institute of Mental Health website discussing signs and symptoms of bipolar disorder references “mood episodes” as “distinct periods” of “unusually intense emotion and changes in sleep patterns and activity levels” in which the individual “engages in behaviors that are out of character.” [ECF No. 19-1 at 6]. Dr. Phillips referenced Plaintiff's reports of depression and anxiety and his indication that “[t]here [was] no real cycling to his mood state.” Tr. at 355. He noted Plaintiff's report of “an employment history as a chef,” Tr. at 355, but his report does not indicate Plaintiff informed him of his unstable work history or frequent relocations. See generally Tr. at 355-57. Given the information as to mood episodes Plaintiff presents, Plaintiff's indication to Dr. Phillips that he did not have cycling to his mood state, and his failure to inform Dr. Phillips of his unstable employment history and frequent moves, it seems reasonable that Dr. Phillips would not have considered a diagnosis of bipolar disorder.

The ALJ did not err in declining to obtain an orthopedic consultative exam. By the time Plaintiff's case was before the ALJ, nearly eight years had passed since the DLI. The ALJ reasonably relied on the indications of Plaintiff's orthopedic functioning prior to and in the years soon after his DLI, as opposed to sending Plaintiff for an assessment of his then-current orthopedic functioning nearly eight years later. The ALJ acknowledged Dr. Hibbitts's July 16, 2010 statement “commenting that the claimant ‘will require very extensive rehab, not only with surgery but prolonged course of recovery' and would be unable to resume any job requiring standing ‘within the next calendar year' (Exhibit 1F),” but found it was “not persuasive,” as it was not supported by Dr. Hibbitts's records or consistent with the other evidence. Tr. at 41. He wrote:

The statement was dated before the claimant's surgery, so Dr. Hibbitts could not speak to the complexity or results of the procedure nor clinically assess the claimant's prognosis. There are no treatment notes from Dr. Hibbitts after July 30, 2010, supporting his pessimistic assessment, nor do the notes of Dr. Hunt, who did treat the claimant thereafter, confirm a prolonged incapacity for the claimant.

Id. He previously noted “the record contains no treatment records or clinical findings from Dr. Hibbitts or any other physician to support that prediction.” Tr. at 36. He explained:

On July 30, 2010, Dr. Hibbitts found that swelling in the claimant's right leg had decreased and x-rays showed good alignment of his surgical hardware (Exhibit 3F, page 1). Dr. Corey Hunt, who began treating the claimant as his primary care physician, wrote in his initial clinic note on June 22, 2011, that the claimant was then ambulating without assistance, had no

limitations in mobility, and was using only over-the-counter medication for pain (Exhibit 7F, pages 19-20).

Id.

The ALJ accommodated the osteoarthritis in Plaintiff's ankle and heel caused by his history of fractures by including in the RFC assessment provisions for lifting and carrying up to 20 pounds occasionally and 10 pounds frequently, alternating sitting and standing at intervals of about 45 minutes, occasionally pushing and pulling with the right leg, and no work on uneven terrain. Tr. at 37.

The ALJ's decision reflects his thorough consideration of letters from Mr. B. and Mr. M. He acknowledged the letters, but found they were not persuasive. Tr. at 41. He wrote: “The non-medical evaluation by his spouse is not persuasive other than for some factual observations concerning the claimant. The other one was by a certified registered nurse anesthetist, but does not suggest specific functional limitations or clinical findings to support them.” Id. The ALJ considered this evidence in accordance with 20 C.F.R. § 404.1529(c), and no more robust explanation was required to support his finding that the letters were not persuasive.

Contrary to Plaintiff's argument, the role of the court is not to examine the evidence and find an ALJ erred if there was any evidence on which he could have based a finding of disability, but, instead, to review the ALJ's decision and determine whether he cited sufficient evidence to support his conclusion. As in most cases, the record here contains some evidence to suggest Plaintiff's impairments were disabling prior to his DLI, but the presence of such evidence does not mean the ALJ erred in reaching a contrary conclusion. This is especially true where, as here, the ALJ cited to specific evidence and provided a well-reasoned explanation to support his conclusion that Plaintiff was not disabled during the relevant period.

2. VE's Qualifications

Plaintiff argues the VE's formal education as a special education teacher and life coach did not qualify her to serve as an expert in his claim. [ECF No. 19 at 4]. He asserts the VE did not conduct an interview and ask him the questions necessary to identify jobs he could perform in accordance with the DOT. Id. He maintains he did not have the opportunity to question the VE's qualifications at the administrative level because he was not aware of them until he received a copy of the electronic certified administrative record (“cedar”) in this case. [ECF No. 29 at 3].

The Commissioner maintains Plaintiff did not object to the VE's credentials during the hearing and has provided no legal basis to support his argument that her credentials were invalid. [ECF No. 20 at 13].

If the claimant is unable to perform his PRW, “the Commissioner bears the burden to prove that [he] is able to perform alternative work.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Bowen v. Yucera, 482 U.S. 137, 146 n.5 (1987)). The SSA relies primarily on the DOT for information about the requirements of work in the national economy, and ALJs are required to take administrative notice of information contained therein and consider it in assessing claimants' abilities to perform specific jobs. 20 C.F.R. § 404.1566(d). ALJs may obtain testimony from VEs to address more complex vocational issues, such as whether a claimant's work skills can be used in other work and specific occupations that allow for use of particular skills. 20 C.F.R. § 404.1566(e).

An ALJ has discretion in framing hypothetical questions to the VE as long as the hypothetical questions fairly set out all the functional limitations the record supports as being related to the claimant's impairments. Walker v. Bowen, 876 F.2d 1097, 1100 (4th Cir. 1989). After posing a hypothetical question to the VE that accounts for the Plaintiff's credibly-established abilities and limitations, the ALJ may rely on the VE's testimony to support a finding that the claimant can perform the specific jobs identified and to meet the burden at step five. See Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005).

HALLEX is the Social Security Administration's (“SSA's”) internal manual that “defines procedures for carrying out policy and provides guidance for processing and adjudicating claims at the Hearing, Appeals Council, and Civil Action levels.” HALLEX § I-1-0-1. In Schweiger v. Hansen, 450 U.S. 785, 789 (1981), the Supreme Court stated the SSA's “Claims Manual [was] not a regulation,” had “no legal force,” and “d[id] not bind the SSA.” However, the Supreme Court has also stated that “[w]hele these administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect.” Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385 (2003) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944); United States v. Mead Corp., 533 U.S. 218, 228, 234-34 (2001)).

Appellate courts often seek clarification of agency duties and procedures by examining provisions in HALLEX and have offered conflicting opinions as to when failure to follow provisions within the manual that relate back to applicable regulations require remand. See Mack v. Colvin, 2014 WL 1366030, at *4 (D.S.C. Mar. 20, 2014) (citing Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000); Bordes v. Comm'r, 235 Fed.Appx. 853, 859 (3d Cir. 2007); Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000); Calhoun v. Astrue, 2010 WL 297823 (W.D.V.A. Jan. 15, 2010)). The Fourth Circuit has not addressed whether an ALJ's failure to follow provisions in HALLEX constitutes reversible error, but district courts within the circuit have “generally adopted the position that, although [the manual does] not have the force of law, a failure to follow [its] procedures that results in prejudice to the claimant constitutes reversible error.” Donetta F. v. Kijakazi, C/A No. BPG-20-3072, 2021 WL 4824344, at *1 (D. Md. Oct. 15, 2021) (quoting Webb v. Colvin, C/A No. 1:16-267-PMD, 2016 WL 6806261, at *17 (D.S.C. Nov. 1, 2016)). In light of these cases, the undersigned has evaluated the record to determine whether the ALJ deviated from the procedures specified in HALLEX concerning VE qualification and testimony and, if so, whether Plaintiff was consequently prejudiced.

HALLEX I-2-1-31. Professional Qualifications of Vocational Sources (last updated June 16, 2016) indicates the following as to qualifying a VE:

Generally, the Office of Hearings Operations regional office (RO) determines whether a person meets the qualifications to perform the functions of a VE. The RO considers overall education and experience in determining whether a person requesting qualification as a VE has expertise and a current knowledge of:

• Working conditions and physical demands of various occupations;

• Transferability of skills;

• Knowledge of the existence and numbers of jobs at all exertional levels in the national economy; and

• Involvement in or knowledge of placing adult workers, including those with disabilities, into jobs.

Once a person submits appropriate documentation regarding his or her experience and ability to perform VE job functions, the RO contracting officer representative will review the qualifications and, if the qualifications are met, will enter into a Blanket Purchase Agreement (BPA) with the individual ....The RO will then add the VE to its roster and a hearing office (HO) may select the VE to provide opinion evidence as described in HALLEX I-2-5-52.

A copy of the VE's curriculum vitae (“CV”) appears in the record. Tr. at 302-03. It indicates the VE's educational background includes a Bachelor of Arts degree in interpersonal/organizational communication, a Master of Arts degree in exceptional student education with an English to speakers of another languages endorsement, and a post-graduate certificate in life care planning. Tr. at 302. Her professional qualifications include associate disability management specialist, VE through the SSA, and certifications as a teacher and a life care planner. Id. Her CV indicates she has worked as a vocational consultant and life care planner since June 2015, serving as a VE in legal matters, producing life care plans, providing expert witness testimony, evaluating potential employment opportunities and earning capacities for individuals, conducting job analyses, and completing vocational assessments, medical cost projections, and earning capacity assessments. Id. It specifies the VE's duties in prior jobs as an employment program consultant for the Florida Department of Education from March 2011 through June 2015 and a vocational services specialist from January 2009 to November 2010. Tr. at 303. Her CV reflects her professional affiliation with the International Association of Rehabilitative Professionals, her delivery of presentations related to employing individuals with disabilities, and her writing of two published articles. Id.

The RO and the ALJ did not err in qualifying the VE in this case. Although the VE's education alone did not qualify her to serve as a VE, her CV reflects her “expertise” and “current knowledge” of “[w]orking conditions and physical demands of various occupations,” “[t]ransferability of skills,” “[k]nowledge of the existence and numbers of jobs at all exertional levels in the national economy,” and “[i]nvolvement in or knowledge of placing adult workers, including those with disabilities, into jobs” as acquired through her current and prior job duties. See Tr. at 302-03. Therefore, the VE met the qualifications in HALLEX I-2-1-31 to be selected as a VE and to provide opinion evidence at SSA hearings.

The following general guidelines apply to an ALJ's use of a VE in the hearing proceedings:

• Before the hearing, the ALJ (or designee) will provide the VE with copies of all evidence relating to the claimant's vocational history. If additional vocational evidence is received at the hearing, the ALJ will provide it to the VE for review before the VE testifies.

• The ALJ may use a VE before, during, or after the hearing.

• The ALJ must avoid any off-the-record discussion with the VE. If such a discussion occurs, the ALJ must summarize the discussion on the record at the hearing or by entering a written summary into the record as an exhibit.

• All ALJ contact with a VE about a case must be in writing or on the record at a hearing, and all correspondence with the VE must be made part of the record.

• The ALJ may not use a VE who has had prior professional contact with the claimant.

• The ALJ may not ask a VE to provide testimony on psychological (i.e., medical) matters even if the VE is a certified mental health professional. See HALLEX I-2-5-61.

• The VE's testimony is not binding on the ALJ. The ALJ must consider the VE's testimony along with all other evidence.

HALLEX I-2-5-48. Vocational Experts-General (last updated June 16, 2016).

Although it is not clear from the record that the ALJ provided the VE with copies of all evidence relating to Plaintiff's vocational history, Plaintiff does not challenge the VE's classification of his PRW, and the VE's response to the ALJ's questions indicate she received evidence relating to Plaintiff's vocational history. See Tr. at 75-76. The record does not reflect, and Plaintiff does not allege, the ALJ engaged in any off-the-record discussion or communication with the VE or that the VE had prior professional contact with him. The ALJ's decision reflects his consideration of the VE's testimony along with all the other evidence. See generally Tr. at 35-43. Plaintiff's argument that the VE should have considered psychological matters in providing her testimony fails because it is contrary to the general guidelines. In light of the foregoing, the undersigned finds the VE's testimony complied with the general guidelines in HALLEX I-2-5-48.

SSA policy designates the following hearing procedures with respect to VE testimony:

C. Questioning the VE

The ALJ will ask the VE questions designed to elicit clear and complete information. The claimant and the representative have the right to question the VE fully on any pertinent matter within the VE's area of expertise. However, the ALJ will determine when they may exercise this right and whether questions asked or answers given are appropriate.

The ALJ will also ensure the following during questioning of the VE:

• If the VE's replies are ambiguous or overly technical, the ALJ will follow up with specific questions in order to obtain a response that is understandable to the average person.

• The ALJ will not permit the VE to respond to questions on medical matters or to draw conclusions not within the VE's area of expertise. For example, the VE may not provide testimony regarding the claimant's residual functional capacity or the resolution of ultimate issues of fact or law.

• The ALJ will not ask or allow the VE to conduct any type of vocational examination of the claimant during the hearing.

• If the VE bases certain testimony on an assumption, the ALJ will ask the VE to clearly describe the assumption on the record.

D. Hypothetical Questions

The ALJ may use hypothetical questions to elicit the VE's testimony about whether a person with the physical and mental limitations imposed by the claimant's medical impairment(s) can meet the demands of the claimant's previous work, either as the claimant actually performed it or as generally performed in the national economy, or any other work in the national economy (and the availability of such work).

HALLEX I-2-6-74. Testimony of a Vocational Expert (last updated June 16, 2016).

Plaintiff references and attaches to his brief the DOT's Appendix D:

How to Use the DOT for Job Placement. [ECF No. 19-1 at 8]. The VE did not comply with the procedures set forth in Appendix D, but she did not err in failing to follow those procedures because her role in testifying as a VE at the hearing was not “to locate qualified applicants and to match their qualifications with available job orders.” Id. Instead, the VE was required to respond to the ALJ's hypothetical questions in accordance with HALLEX I-2-6-74. She was explicitly prohibited from “conduct[ing] any type of vocational examination of the claimant during the hearing” and “respond[ing] to questions on medical matters.” HALLEX I-2-6-74. Accordingly, the undersigned finds the VE followed the provisions of HALLEX I-2-6-74 in declining to follow the procedure outlined in Appendix D of the DOT during the hearing.

The ALJ presented a hypothetical question to the VE that accounted for all of Plaintiff's physical and mental limitations that were supported by the record, and the VE identified jobs in response to that question. Tr. at 7577. Plaintiff does not allege any inconsistency between the ALJ's hypothetical question and the jobs the VE identified, but, instead, repeats his argument that his impairments were not adequately considered in reaching the conclusion that he was not disabled. See generally ECF Nos. 19, 29. The undersigned thoroughly considered and rejected that argument above. The hypothetical question the ALJ posed to the VE matched his finding as to Plaintiff's RFC. Compare Tr. at 37-38, with Tr. at 75-76. The ALJ concluded Plaintiff's RFC would allow him to perform the jobs the VE identified in response to the hypothetical question. Compare Tr. at 43, with Tr. at 76-77. Therefore, the undersigned finds the ALJ appropriately relied on the jobs the VE identified in concluding Plaintiff was capable of performing work in the national economy.

The record before the court shows the VE was qualified to serve as a VE, the ALJ undertook the appropriate procedure to obtain the VE's testimony, the VE followed the proper procedures in providing testimony, and the ALJ appropriately relied on the VE's testimony.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether her decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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

901 Richland Street

Columbia, South Carolina 29201

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).