Opinion
C. A. 0:21-1542-JD-PJG
07-22-2022
Dennis Hill, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration,[1] Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
[x] Affirm
[ ] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[ ] Supplemental Security Income (“SSI”): Plaintiff's age at filing:
[x] Disability Insurance Benefits (“DIB”): Date last insured: March 31, 2018
[ ] Other:
Application Dated: August 23, 2017
Plaintiff's Year of Birth: 1970
Plaintiff's alleged onset Dated: November 9, 2016
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: August 7, 2019
In applying the requisite five-step sequential process, the ALJ found:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes [x] No
Step 2: [x] Plaintiff has the following severe impairments:
bilateral flat feet; obesity; and depression.
[ ] Plaintiff does not have a severe impairment.
Step 3: [x] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
[T]hrough the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can occasionally operate foot controls with the bilateral lower extremities; occasionally stoop, kneel, crouch, crawl, balance; occasionally climb ramps and stairs, never climb ladders ropes or scaffolds; can occasionally be exposed to hazards such as unprotected heights and dangerous machinery. The claimant can be frequently exposed to extreme heat or cold. The claimant is further limited to simple routine tasks but is able to maintain concentration, persistence and pace for periods of at least 2 hours at a time, perform activities within a schedule, maintain regular attendance, and complete a normal workday and work week. The claimant can frequently interact with the general public.
[ ] Plaintiff could return to his/her past relevant work.
Step 5: [ ] Plaintiff could not return to his/her past relevant work, but using the Medical-Vocational Guidelines (“Grids”) as a framework supports a finding that Plaintiff is not disabled. 20 C.F.R. Pt. 404, Subpt. P, App'x 2.
[x] Plaintiff could not return to his/her past relevant work, but there are jobs in the national economy that Plaintiff can perform, as follows:
1. Marker, DOT number 209.587-034, with an SVP level of 2, a light exertional level, and 311,000 jobs in the national economy;
2. Cleaner, housekeeping, DOT number 323.687-014, with an SVP level of 2, a light exertional level, and 133,000 jobs in the national economy; and
3. Router, DOT number 222.587-038, with an SVP level of 2, a light exertional level, and 53,000 jobs in the national economy.
Date of Appeals Council decision: June 22, 2020
Part IV-Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “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, 139 S.Ct. at 1154 (citation omitted). In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issues for Judicial Review
Issue I Lay testimony. The ALJ is required to discuss all relevant evidence. Here the ALJ failed to assess the credibility of the lay statements, which supported Hill's testimony. Can a decision which fails to acknowledge relevant evidence be found to be based on substantial evidence?
Issue II Evaluation of the Subjective Complaints. In assessing a claimant's subjective complaints the ALJ's decision must contain specific reasons for his finding, supported by the evidence in the case record. When the ALJ fails to provide adequate reasons for his credibility determination, can his decision be based on substantial evidence?
(Pl.'s Br., ECF No. 15.)
Oral Argument:
[ ] Held on __________________.
[x] Not necessary for recommendation.
Summary of Reasons
Plaintiff challenges the ALJ's failure to specifically mention or weigh Plaintiff's wife's testimony. Additionally, Plaintiff argues that the ALJ erred in evaluating Plaintiff's subjective complaints by failing to adequately support the ALJ's findings.
An ALJ is “not required to articulate how we considered evidence from nonmedical sources using the requirements [for considering medical opinions and prior administrative findings].” 20 C.F.R. § 404.1520c(d). The regulations further define nonmedical sources as including family members, such as Plaintiff's wife. 20 C.F.R.§ 404.1502(e) (defining nonmedical sources as including family members).
With regard to subjective complaints, the United States Court of Appeals for the Fourth Circuit has stated that “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The first step requires there to “be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotation omitted). During the second step, the ALJ must expressly consider “the intensity and persistence of the claimant's [symptom] and the extent to which it affects her ability to work.” Id. In making these determinations, the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10. ALJs are further instructed to
limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities ....Id. at *11.
Further, “claims of disabling [symptoms] may not be rejected ‘solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her [symptoms].” Craig, 76 F.3d at 595 (citations omitted); see also Arakas v. Comm'r, 983 F.3d 83, 95-96 (4th Cir. 2020) (finding that the ALJ disregarded “longstanding precedent and the agency's own policy by improperly discounting Arakas's subjective complaints of pain and fatigue, based largely on the lack of objective evidence substantiating her statements”). “This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's [symptoms] and the extent to which it impairs [her] ability to work.” Craig, 76 F.3d at 595. A claimant's subjective complaints “need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges she suffers.” Id. The social security regulations inform claimants that in evaluating subjective complaints, the Commissioner will consider the following relevant factors:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c)(3). The regulations further provide that in evaluating a plaintiff's subjective complaints, ALJs will consider any description “nonmedical sources may provide about how the symptoms affect [the plaintiff's] activities of daily living and . . . ability to work.” 20 C.F.R. § 404.1529(a).
Here, the ALJ does not specifically mention Plaintiff's wife in summarizing and weighing the evidence. However, in considering Plaintiff's subjective complaints, the ALJ summarized the hearing testimony generally and Plaintiff's allegations as follows:
The claimant has alleged the following symptoms. He is overweight and has significant pain from his feet. He wears insoles for his feet, which are custom-made orthotics. The claimant stated that a surgeon wants to correct his feet, but that the recovery time would be 6-7 months, which he feels he cannot take. He has depression, but his antidepressants give him strange dreams. He has motivational issues. Physically, he could not walk a mile. When he walks into the Walmart, he is typically out of breath. When brushing his teeth, he has to lean against the sink and cannot tie his own shoes. He can lift 10-15 pounds. He does not perform chores due to the motivational issues. His wife and children assist. He can become angry and emotionally unstable at times due to the depression and frustration. See hearing testimony, B3E-Bl5E. Medications are listed in Bl3E.(Tr. 28.) The ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” (Tr. 28-29.) The ALJ found that Plaintiff's statements were “inconsistent because the medical record does not support the degree of severity alleged.” (Tr. 29.) The ALJ then proceeded to address Plaintiff's physical and mental impairments as follows:
The claimant has flat feet, which he notes need surgery. This is supported by the record at Exhibit B2F page 74 from August 2017. However, he deferred surgery in order to try the custom orthotics he is currently wearing. While he alleges difficulties, this surgery does not appear to have been discussed with him since this point. Therefore, there is some limitation, but it appears that the surgery has not been a significant topic of discussion. However, when considered in combination with the claimant's obesity (see, e.g., Exhibit BSF page 2 noting a BMI of 50), and the prior discussions of bariatric surgery, it is clear that the claimant cannot lift heavy objects at this point. It is not compatible with the flat feet. Therefore, a light or sedentary exertional limitation is assigned. Ultimately, I chose a light exertional level because while the claimant alleges significant issues with standing, the evidence does not support a greater limitation. For example, Exhibit B3F found that the claimant had no apparent sensory or motor deficits, had normal grip strength, and while he had a slight left-sided limp to his gait, he did not require aid
or an assistive device while walking or getting on and off the table. Therefore, a light exertional limitation is assigned.
However, the claimant is heavily obese, and even Exhibit B4F noted decreased range of motion in one knee. SSR 19-2 discusses the effects of obesity, and one of them is an increased difficulty with tasks. It could place significant additional loads on his musculoskeletal structure, and this is evidenced in the record (see, e.g., Exhibit B2F page 108.) by more limited physical findings at time[s]. While the preponderance of the evidence does not support a sedentary exertional level, it is certainly appropriate to limit the amount of physically taxing positions he can undertake, such as crouching, crawling, kneeling, and operating bilateral foot controls (these are detailed in the residual functional capacity). Further, he should not climb ladders ropes or scaffolds based on the risk for injury, and should only occasionally climb ramps and stairs. Finally, based on his feet and the risk of falling, he should only frequently be exposed to extreme temperatures.
This covers the physical impairments. Mentally, the claimant has depressive issues, and has been issued a handicapped veteran license plate based his Veteran's Administration (VA) records (see Exhibits B2F/57 and Bl4E for the handicapped veteran license plate, see hearing testimony concerning the findings). However, the claimant's objective mental health symptoms are not as severe as alleged. Before discussing the evidence, it is worth noting that some of the evidence comes from after the date last insured (“DLI”). While some of it shows improvement, it is not proper to consider in this Title 2 case, where the claimant must prove disability before the DLI, or provide evidence after the DLI indicating that their condition prior was worse than the evidence had suggested. For reference, the claimant's DLI is March, 2018.
The claimant has a history of mental health counselling, although he has never been hospitalized. He takes medication for it including venlafaxine. See, e.g., Exhibit B2F page 33. However, the claimant endorsed suicidal ideations in 2017 with no plan. The claimant noted that his depression was causing difficulties in his family life, as his mood had increased his frustration and anger. He appears to have improved with some therapy, as it appears to have reduced his depression and
suicidal ideations (see Exhibit B2F page 62). Exhibit B2F page 66 is typical of this time frame, showing the claimant being prescribed cognitive based therapy and consults twice per month. He continues to have some difficulty interacting with others throughout the remainder of the consults (see, e.g., B2F pages 72, 83.) The claimant also described issues with boredom and lack of positive stimulation and ambition. Exhibit B2F page 33.
Based on this evidence, it appears that the primary issues, as discussed in step 3, are in concentrating, persisting, and maintaining pace as well as interacting with others. His depression appears to sharply limit his interests and ideas, and the stimulation problem speaks to job complexity. Based on this evidence, the claimant should be limited to simple, routine tasks given his lack of motivation and limited hobbies as well as some evidence of responding directly with emotional attachments (see, e.g., Exhibit B2F page 72.) Further, this same depression would make concentrating on tasks for a long period of time somewhat difficult, but there is not as significant evidence of impairment in this area. Therefore, the claimant is able to maintain concentration persistence and pace for periods of at least 2 hours. Finally, the claimant does have interactive difficulties, and they appear to stem from two sources: degree of contact (most of his issues are with family members) and reacting emotionally. This second part is more relevant to the RFC analysis, although the first part is also worth considering. Overall, some limitation on interacting with coworkers is appropriate given the risk that he could respond emotionally to teasing, harassment, or disagreement. Further limitations are not appropriate as the evidence does not show significant evidence of isolation, or inpatient hospitalization.(Tr. 29-30.) The ALJ then proceeded to consider the opinion evidence.
A note on this point. I cannot provide articulation or consideration of certain opinion evidence. 20 CFR § 404.1513a and 404.1520c. However, the handicap license plate could be evidence supporting mental limitations on this record. SSA statutes requires consideration of all evidence, and this placard clearly qualifies. The impact on the residual functional capacity is not great, however, as there is little justification given in the record for why a handicap placard is required in these circumstances. I note certain state laws allow for issuance of a handicapped veteran plate merely based on the veteran's VA disability rating. If the handicapped plate was issued based on claimant's pes planus, it is not consistent with the evidence of record. See Exhibit B2F/57, 60 (exam concurrent with the order for a disability tag noting that the claimant ambulates without apparent difficulty).
With regard to the ALJ's evaluation of Plaintiff's subjective complaints, Plaintiff's arguments center on the ALJ's evaluation of Plaintiff's mental limitations. Specifically, Plaintiff contends that the ALJ erred in failing to specify any records that showed Plaintiff's complaints were unfounded and in failing to consider his wife's testimony. However, contrary to Plaintiff's contention, the ALJ's decision as quoted above provides specific justifications and citations to support each of his findings and further reflects consideration of the applicable factors in evaluating Plaintiff's subjective complaints.
With regard to Plaintiff's wife's testimony, the hearing transcript reflects that after hearing testimony from the Plaintiff, the ALJ heard testimony from Plaintiff's wife, which essentially duplicated and echoed some parts of Plaintiff's lengthy testimony. Specifically, Plaintiff's wife testified that Plaintiff had mental health issues including depression and mood swings, he has not been helping with the chores around the house, Plaintiff has mentioned having bad dreams or nightmares and has complained about his feet hurting, she normally does the driving, Plaintiff does not like to be around a lot of people or noise, mental health counseling had not provided any improvement, and Plaintiff has picked up their children when there is an emergency and takes them to the barbershop but that she is the parent who does most of the activities with the children. (Tr. 102-10.) Plaintiff acknowledges that the ALJ does not have to discuss every piece of evidence, but argues that he must consider and weigh all relevant evidence. Plaintiff asserts that the ALJ's failure to mention Plaintiff's wife's testimony requires remand.
Here, Plaintiff's wife's testimony was essentially duplicative to parts of Plaintiff's testimony and the majority of the issues she mentioned were specifically considered by the ALJ. The court finds the wife's testimony to be repetitive of Plaintiff's already discredited testimony and allegations. Therefore, any allegations of disabling limitations by Plaintiff's wife are similarly inconsistent with the evidence of record. Thus, under the facts and circumstance of this case, the court finds that any error in failing to explicitly address Plaintiff's wife's testimony here was harmless error. See Hancock v. Kijakazi, No. 1:20CV00046, 2021 WL 3507864, at *13 (W.D. Va. Aug. 10, 2021) (Report and Recommendation), approved by 2021 WL 3828548 (W.D. Va. Aug. 26, 2021) (finding no error by the ALJ in failing to discuss or weigh a sworn statement from the claimant's wife where it was repetitive of the claimant's discredited subjective complaints and inconsistent with other evidence in the record); Jenkins v. Saul, C/A No. 4:18-cv 2240-DCN-TER, 2020 WL 3848203 (D.S.C. Jan. 29, 2020) (Report and Recommendation), adopted by 2020 WL 1612442 (D.S.C. Apr. 1, 2020) (finding “the ALJ's failure to mention Plaintiff's wife's testimony was harmless error as Plaintiff made similar statements as those made by this individual” and observing “ ‘[w]here a lay witness's testimony merely repeats the allegations of a plaintiff's own testimony and is likewise contradicted by the same objective evidence discrediting the plaintiff's testimony, specific reasons are not necessary for dismissing the lay witness's testimony' ”) (citing Bazar v. Colvin, No. 9:14-537-TMC, 2015 WL 1268012, at *12 (D.S.C. Mar. 19, 2015)); Gray v. Colvin, No. 6:13-cv-00014, 2014 WL 4660792 (W.D. Va. Sept. 17, 2014) (observing that an ALJ is not required to mention every piece of evidence and finding no error by the ALJ in failing to reference the testimony of the claimant's mother and girlfriend because it was inconsistent with other evidence in the medical record); Plowden v. Colvin, No. 1:12-cv-2588-DCN, 2014 WL 37217, at *18 (D.S.C. Jan. 6, 2014) (“Where a lay witness's testimony merely repeats the allegations of a plaintiff's own testimony and is likewise contradicted by the same objective evidence discrediting the plaintiffs testimony, specific reasons are not necessary for dismissing the lay witness's testimony.”) (citing Lorenzen v. Chater, 71 F.3d 316, 319 (8th Cir. 1995); Carlson v. Shalala, 999 F.2d 180 (7th Cir. 1993); Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)); see also Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“While the Commissioner's decision must ‘contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based,' 42 U.S.C. § 405(b)(1), ‘there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.' ”) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). To the extent that Plaintiff relies on caselaw from the District of Oregon, the court finds the above caselaw from district courts within the Fourth Circuit more persuasive. Further, the court finds this case distinguishable from Jeri F. v. Kijakazi, C/A No. 1:20-4037-RMG-SVH, 2021 WL 3362227 (D.S.C. July 29, 2021), because, unlike here, the nonmedical statements provided additional insight and information on Plaintiff Jeri F.'s condition.
In summary, after carefully considering Plaintiff's arguments and the record in this matter, the court concludes that Plaintiff has failed to demonstrate that the ALJ's evaluation of Plaintiff's subjective complaints is unsupported by substantial evidence or controlled by an error of law. See Craig, 76 F.3d at 589 (defining “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” and stating that the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]”); Blalock, 483 F.2d at 775 (indicating that regardless of whether the court agrees or disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence). Contrary to Plaintiff's arguments, the ALJ's decision reflects careful consideration of the medical evidence and the limitations stemming from Plaintiff's impairments. Further, the decision addressed the applicable factors in evaluating Plaintiff's subjective complaints. The ALJ's discussion reflects not just consideration of objective medical evidence but also Plaintiff's subjective reports to his medical sources, his treatments, and the impact his impairments had on his activities of daily living. Moreover, the ALJ's evaluation of the evidence certainly built an accurate and logical bridge from the evidence to his conclusions, and adequately explained his reasoning to give less weight to evidence that conflicted with his conclusions. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (requiring an ALJ to “build an accurate and logical bridge from the evidence to his conclusions”).
Plaintiff has failed to demonstrate the ALJ's evaluation of his subjective complaints is unsupported by substantial evidence in light of all of the above factors and proper reasons offered by the ALJ to discount his allegations of disabling limitations. To reiterate, the court may not substitute its judgment for the Commissioner's and finds that the ALJ's conclusions are within the bounds of the substantial evidence standard. See Craig, 76 F.3d at 589-90 (“Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers . . . .”); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (per curiam) (finding that the ALJ may properly consider inconsistencies between a plaintiff's testimony and the other evidence of record in evaluating the credibility of the plaintiff's subjective complaints).
RECOMMENDATION
It is recommended that this matter be
[x] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[ ] Reversed and remanded pursuant to [ ] Sentence Four [ ] Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[ ] Reversed and remanded for an award of benefits.
The parties' attention is directed to the important notice on the next page.
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).