Opinion
C/A 9:20-1403-DCN-MHC
09-03-2021
Jacqueline Mills, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Jacqueline Mills filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying her claim for Disability Insurance Benefits (DIB) under Title II and Supplemental Security Income Benefits (SSI) under Title XVI of the Social Security Act. This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Commissioner's decision be affirmed.
I. BACKGROUND
A. Procedural History
Plaintiff applied for DIB on June 27, 2016, and SSI on July 18, 2016, alleging disability since August 20, 2015. R.pp. 178-88, 203. Plaintiffs claims were denied initially on August 16, 2016, and upon reconsideration on January 12, 2017. R.pp. 63-82, 106-11, 117-22. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). R.pp. 124-25. A hearing, at which Plaintiff and a vocational expert (VE) testified, was held on December 11, 2018. R.pp. 32-62. The ALJ thereafter denied Plaintiffs claims in a decision issued on March 6, 2019, finding that Plaintiff was not disabled from the date of her application through the date of the decision. R.pp. 12-30.
The Appeals Council denied Plaintiff's timely request for review on February 20, 2020, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. R.pp. 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision.
B. Relevant Evidence and Hearing Testimony
Plaintiff's medical records were included as exhibits to the ALJ's opinion (1F - 7F) and are summarized below. R.pp. 262-459.
1. Medical Records
Plaintiff received treatment and diagnostic testing at Mary Black Hospital from June 12, 2015, through January 28, 2016. R.pp. 266-353. On June 12, 2015, Plaintiff presented at the emergency room with a history of swelling in both legs for a number of years; she was diagnosed to be suffering from lymphedema. R.pp. 278-82. Plaintiff was seen again at the emergency room on July 8, 2015, for foot pain and was diagnosed with tendonitis-plantar fasciitis. R.pp. 287-97.
Plaintiff was hospitalized in January of 2016, for treatment of a spiral oblique fracture involving the distal third of her right tibia which she sustained in a fall at home. R.pp. 298-353. Dr. Gregory Colbath, with Ortho Upstate, performed surgery on Plaintiff's right lower leg, inserting a rod and screws, and discharged Plaintiff on non-weight bearing status to the right extremity. Id. After her surgery, she was treated at Ortho Upstate from February 2, 2016, through May 27, 2016. R.pp. 357-82.
Dr. Gregory Colbath examined Plaintiff on February 2, 2016, noting no post-operative complications. R.pp. 366-68. On February 22, 2016, Plaintiff was again seen by Dr. Colbath for a post-surgical follow-up, at which time he noted she was making “good progress” and had “moderate post-operative swelling.” R.pp. 363-65. He discussed with Plaintiff remaining partial weight bearing and continuing to wear TED (Thrombo-Embolus Deterrent) hose for swelling control. R.p. 365. From March through May of 2016, Dr. Colbath noted at each visit that Plaintiff was making good progress, was weight bearing at times, and had her pain relatively well controlled. R.pp. 357-62. On May 27, 2016, Dr. Colbath instructed Plaintiff to continue weight bearing, as tolerated, indicating she could use a cane for ambulation, and counseled Plaintiff that it may take six months to a year to regain full capacity with gait and strength. R.pp. 392-93.
Dr. Colbath saw Plaintiff again on September 8, 2016, and on December 9, 2016, during which he observed that Plaintiff continued to make steady progress. R.pp. 394-99. He saw her on February 9, 2017, reiterating that he “would like for her to continue weight bearing as tolerated” and counseled her “that it may take six months to a year to regain full capacity with gait and strength.” R.p. 401.
Plaintiff was also treated by Dr. Alfred Ezman at Cherokee Internal Medicine from October 20, 2016, through December 13, 2016, for abdominal pain. R.pp. 372-82. Although Dr. Ezman's notes are largely illegible, the records show normal gait with adequate muscle strength, and full range of motion in the cervical and thoracic spine. Plaintiff saw Dr. Ezman a few more times to review lab work, including her last visit on April 26, 2018, to discuss a referral to a doctor “for her lymphedema that accepts her insurance.” R.pp. 406, 407-18.
Plaintiff was treated at Cherokee Women's Care from November 1, 2017, through April 11, 2018. R.pp. 419-44. She was diagnosed to be suffering from, among other things, menorrhagia, chronic endometritis, and uterine fibroids. R.pp. 421, 424, 427.
2. Plaintiff's Testimony
Plaintiff testified at the hearing that she is 5'7” tall and weighs 240 pounds. R.p. 38. She has a driver's license but does not drive because she cannot bear down on the gas pedal after breaking her leg in January of 2016. R.pp. 38-39. Following the injury to her leg, her doctor prescribed a walker and then a cane, which she has been using since her leg fracture. R.pp. 39-40.
She worked at Little Caesar's Pizza preparing pizzas for a number of years. R.pp. 40-41. She stopped working at Little Caesar's Pizza because of the difficulty she was having with swelling in her legs from lymphedema. R.pp. 42-44. She explained that the swelling in her right leg, which occurs whether she is standing, walking, or sitting, is painful and requires her to elevate her leg for seven to eight hours per day. R.pp. 44-46. If she sits or stands for twenty to thirty minutes, her leg becomes very painful, such that she spends most of her days sitting in a recliner elevating her legs. R.pp. 47-48. According to Plaintiff, lymphedema and the residual effects of the fracture of her leg are the reasons she can no longer work. R.p. 46.
Her daughter does most of the household work and purchases most of the groceries. R.p. 48. She experiences muscle spasms across the top of her shoulders and in her low back which causes burning and pain. R.p. 49. She has difficulty bending over because of the back condition. R.p. 50. The back condition and the condition in her legs limit her ability to stand and walk for more than twenty to thirty minutes. R.p. 50. Plaintiff also testified that she suffers from low iron anemia, which causes blurry vision and weakness, and from abdominal pain caused by endometriosis and fibroids. R.p. 52-55.
3. Vocational Expert
At the hearing on March 21, 2019, the ALJ asked the VE the following hypothetical question:
I want you to assume a hypothetical individual the claimant's age and education with that past job [of cook helper] you just described. And further assume the individual is limited to the medium exertional level, frequent use of foot controls, occasional climbing of ramps and stairs, occasional climbing of ladders, ropes, or scaffolds, frequent balancing, frequent kneeling, and crouching, and occasional crawling. . . . Could the hypothetical individual perform the past job you described?
R.p. 57. The VE indicated that the hypothetical individual could do so. Id. The ALJ then asked if there was other work the individual could perform. Id. The VE indicated there was, and gave some examples: industrial cleaner, a bus person, and a machine feeder. R.pp. 57-58.
The ALJ then asked the following hypothetical question:
I want to build on a whole other hypothetical, and this one I want to limit the individual to the sedentary exertional level. And the individual would be required to elevate the foot above waist level 50% of the day, and would have three absences a month. If I gave either one of those two limitations, either the 50% above waist foot elevation or the absences, could the hypothetical individual perform past work or any other competitive employment?
R.p. 58. The VE indicated there would be no work this individual could perform. Id. Counsel for
Plaintiff asked the VE the same hypothetical but added the requirement that the individual elevate the leg two hours out of any eight-hour work period, excluding time for breaks. R.pp. 58-59. The
VE indicated there would be no work. R.p. 59.
C. ALJ's Decision
The ALJ found, in pertinent part:
1. The [Plaintiff] meets the insured status requirements of the Social Security Act through December 31, 2020.
2. The [Plaintiff] has not engaged in substantial gainful activity since August 20, 2015, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).
3. The [Plaintiff] has the following “severe” impairments: obesity and status post surgical repair of a lower extremity fracture (20 CFR 404.1520(c) and 416.920(c)).
4. The [Plaintiff] also has the following non-severe impairments: back pain, lymphedema, anemia and endometriosis (20 CFR 404.1522 and 416.922).
5. The [Plaintiff] does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
6. After careful consideration of the entire record, I find that the [Plaintiff] has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c). The [Plaintiff] can lift or carry up to fifty pounds occasionally and twenty-five pounds frequently. She can sit, stand and walk for six hours each in an eight-hour day. The [Plaintiff] is limited to frequent use of foot controls, occasional climbing of ramps, stairs, ladders, ropes and scaffolds, frequent balancing, kneeling, and crouching and occasional crawling.
7. The [Plaintiff] is capable of performing past relevant work as a cook helper. This work does not require the performance of work-related activities precluded by the [Plaintiff]'s residual functional capacity (20 CFR 404.1565 and 416.965).
8. The [Plaintiff] was born on December 29, 1977 and was 37 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
9. The [Plaintiff] has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
10. Transferability of job skills is not an issue in this case because the [Plaintiff's] past relevant work is unskilled (20 CFR 404.1568 and 416.968).
11. Considering the [Plaintiff]'s age, education, work experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that the [Plaintiff] can also perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
12. The [Plaintiff] has not been under a disability, as defined in the Social Security Act, from August 20, 2015, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
“Medium work involves lifting no more than fifty pounds at a time with frequent lifting or carrying of objects weighing up to twenty-five pounds. If someone can do medium work . . . he or she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(c), 416.967(c).
R.pp. 17-26. The ALJ further made the following decision regarding Plaintiff's claim: “Based on the application for a period of disability and disability insurance benefits protectively filed on June 16, 2016, the [Plaintiff] is not disabled under section 1614(a)(3)(A) of the Social Security Act.” R.p. 26.
II. APPLICABLE LAW
A. Scope of Review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2007) (internal quotation marks omitted). Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.”Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” (internal quotation marks omitted)).
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Hays, 907 F.2d at 1456. Thus, in “assessing whether there is substantial evidence, the reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the agency.” Walls, 296 F.3d at 290 (internal quotation marks omitted). “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Sequential Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments that prevents him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. §§ 423(d), 1382c(a)(3)(H)(i); 20 C.F.R. § 416.905(a).
The Social Security Administration (SSA) has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). The five steps are: (1) whether the claimant is engaging in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment(s) meets or equals an impairment set forth in the Listings of Impairments, 20 C.F.R. Part 404, Subpt. P., App. 1; (4) whether the impairment(s) prevents the claimant from returning to his past relevant work; and, if so, (5) whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018).
With certain exceptions not applicable here, the SSA and implementing regulations regarding DIB (contained in Title II) and SSI (contained in Title XVI) are substantially identical. Accordingly, wherever only one Title's regulation is cited herein, the analysis is equally applicable to the Plaintiff's claims under the other Title. See, e.g., Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (“For simplicity's sake, we will refer only to the Title II provisions, but our analysis applies equally to Title XVI.”).
It is the claimant's duty both to produce evidence and prove he is disabled during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). To satisfy this burden at step five, the Commissioner must prove, “by a preponderance of the evidence, that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's residual functional capacity, age, education, and work experience.” Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016) (internal quotation marks omitted). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). The ALJ is to develop the record and where the ALJ “fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
III. DISCUSSION
Plaintiff makes three arguments of error that: (1) the ALJ erred at step two by finding that her lymphedema was a “non-severe” impairment; (2) the ALJ committed reversible error by failing to make specific findings regarding her physician's statements; and (3) the ALJ's RFC determination is not supported by substantial evidence.
A. Step Two Findings
At step two, the ALJ found Plaintiff had the following severe impairments: obesity and status postsurgical repair of a lower extremity fracture. R.p. 17. He found that the following impairments were non-severe: back pain, lymphedema, anemia and endometriosis. R.p. 18. Plaintiff alleges that the ALJ erred by failing to find that her lymphedema was a severe impairment. ECF No. 18 at 7-8. The Commissioner contends that whether the ALJ found the impairment severe is not legally relevant because the ALJ was required to consider both severe and non-severe impairments at subsequent steps of the sequential evaluation. ECF No. 19 at 7. The Commissioner further argues the ALJ reasonably found Plaintiff's lymphedema was a non-severe impairment. Id. at 7-9.
At step two of the sequential evaluation process, Plaintiff must establish that she has a severe medically determinable impairment that “significantly limits” her ability to do “basic work activities.” See 20 C.F.R. §§ 404.1520(c) and 416.920(c). A severe impairment “must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms[.]” 20 C.F.R. § 404.1508. It is Plaintiff's burden to prove that she suffers from a medically-severe impairment. Bowen v. Yuckert, 482 U.S. 137, 145 n.5 (1987).
Section 404.1508 was removed and reserved effective March 27, 2017, which was after Plaintiff filed her applications for DIB and SSI. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819, at *5864 (Jan. 18, 2017).
In support of her argument, Plaintiff cites to medical records regarding two visits to the ER in June and July of 2015, during which she was diagnosed to be suffering from lymphedema and edema. ECF No. 18 at 7. However, these records also indicate she was discharged and given a return to work note each time. R.pp. 281, 291. And, Plaintiff acknowledges subsequent treatment records document normal gait, adequate muscle strength, and no significant abnormalities. ECF No. 18 at 6. An impairment or combination of impairments is not severe when medical evidence establishes only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to perform basic work activities. 20 C.F.R. § 404.1520(c); SSR 85-28, 1985 WL 56856, at *3 (S.S.A. January 1, 1985). Moreover, the diagnosis of a disease or impairment alone is insufficient to demonstrate functional limitations. See 20 C.F.R. § 404.1521; Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962) (“[T]he mere presence of a disease or medically determinable impairment does not automatically entitle a claimant to a disability period or disability insurance benefits under the Social Security Act.”); see also Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (“There must be a showing of related functional loss.”).
Social Security Rulings, or “SSRs, ” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration, ” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
In this case, the ALJ recognized that Plaintiff had experienced lymphedema. R.pp. 19-20. However, he also discussed that Plaintiff did not consistently report edema to support her allegation that she experienced it daily, and it was noted to be only “mild” in December 2016. R.pp. 19, 398. Additionally, the ALJ recognized that Plaintiff did not wear compression stockings or take any medications, as might be expected for someone experiencing daily symptoms. R.p. 19. The ALJ also observed that in December 2016, Plaintiff was instructed to continue weight bearing as tolerated. R.pp. 21, 398-99. In this context, the ALJ's finding that Plaintiff's lymphedema was not severe is supported by more than a mere scintilla of evidence.
Regardless, to the extent that the ALJ may have erred in finding Plaintiff's lymphedema a non-severe impairment, Plaintiff has suffered no harm. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming denial of benefits where the ALJ erred in evaluating a claimant's pain because “he would have reached the same result notwithstanding his initial error”). The ALJ found that Plaintiff suffered from two severe impairments (R.p. 17), resolving step two in Plaintiff's favor, and then proceeded with the remainder of the sequential evaluation process. See Wideman v. Colvin, No. 2:12-1928-TMC, 2014 WL 793053, at *2 (D.S.C. Feb. 14, 2014) (“A finding of a single severe impairment at step two of the sequential evaluation is enough to ensure that the fact finder will progress to step three.”).
The ALJ then considered all of Plaintiff's impairments, severe and non-severe, in making his determination, specifically addressing the swelling and edema in Plaintiff's right leg. See Sawyer v. Colvin, 995 F.Supp.2d 496, 509 (D.S.C. 2014) (finding no reversible step two error where the ALJ properly considered those impairments in determining claimant's RFC); see also Kinsey v. Berryhill, No. 8:16-CV-03682-BHH-JDA, 2018 WL 3133426, at *10 (D.S.C. Jan. 29, 2018) (“An inadequate step two analysis can be harmless and constitute non-reversible error when an impairment is discussed and analyzed elsewhere in a decision.” (emphasis in original) (collecting cases)), report and recommendation adopted, No. CV 8:16-3682-BHH, 2018 WL 1443952 (D.S.C. Mar. 22, 2018); Martinez v. Astrue, No. CA 1:11-850-CMC-SVH, 2012 WL 3580675, at *10 (D.S.C. July 30, 2012) (“The undersigned agrees with other courts that find no reversible error where the ALJ does not find an impairment severe at step two provided that he [or she] considers that impairment in subsequent steps.”), report and recommendation adopted, No. CA 1:11-850-CMC-SVH, 2012 WL 3582799 (D.S.C. Aug. 17, 2012); Simpson v. Comm'r of S.S.A., Civil Action No. 1:09-2731-HFF-SVH, 2011 WL 1261499, at *2 (D.S.C. March 31, 2011) (“[T]he ALJ's failure to label an impairment as severe at step two was harmless when the ALJ discussed its limitations at step four.” (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007))). Therefore, the ALJ properly considered all of Plaintiff's impairments in determining her RFC, and Plaintiff has failed to point to evidence that compels a different conclusion. See Hamm v. Colvin, No. 4:14-cv-3590-RBH, 2016 WL 536742, at *5 (D.S.C. Feb. 11, 2016) (finding that, although the ALJ could have discussed the claimant's combination of impairments, such error was harmless where the claimant failed to show that further consideration would have produced a different result).
Because the ALJ's decision regarding Plaintiff's lymphedema is supported by substantial evidence and the ALJ properly considered all of Plaintiff's impairments in his RFC determination, the ALJ's decision should be affirmed.
B. Statement from Dr. Colbath
Plaintiff next argues that the ALJ erred in not addressing the February 9, 2017, statement of her treating orthopedist, Dr. Gregory Colbath, that “it may take [six] months to a year to regain full capacity with gait and strength.” ECF No. 18 at 8-9. However, Plaintiff has failed to show how this alleged error caused harm or otherwise creates a reasonable possibility that the ALJ's decision would have been different otherwise. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an [alleged] error is harmful normally falls upon the party attacking the agency's determination.”).
Plaintiff contends that Dr. Colbath's statement constitutes a medical opinion from a treating physician that was entitled to be given “great weight” by the ALJ. ECF No. 20 at 3-4. The Social Security Regulations define “medical opinions” as “statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [his or her] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). Notably, the statement from Dr. Colbath is contained within his discussion notes with Plaintiff regarding the surgery on her right leg, not his assessment or treatment plan, and does not provide a specific explanation of Plaintiff's functional abilities, such that it is questionable, at best, whether the statement constitutes a medical opinion. Regardless, even if the statement is considered an opinion from a treating physician entitled to great weight, Plaintiff has failed to show how not according it great weight resulted in any error in this case.
For claims filed after March 27, 2017, new regulations provide that the SSA “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 416.920c(a). However, as the claims in the present case were filed before March 27, 2017, the operative regulations require ALJs give “controlling weight” to a treating physician's opinion on the nature and severity of the claimant's impairment if that opinion meets certain conditions. See Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106 (4th Cir. 2020); see also SSR 96-2p, 1996 WL 374188 (S.S.A. July 2, 1996).
First, the ALJ specifically discussed the objective findings from this visit to Dr. Colbath in February of 2017, at which Plaintiff was noted to be making slow but steady progress and had progressed to full “WBAT” (weight bearing as tolerated) with no distal edema, mild quad atrophy, weak straight leg raises 4/5, and mild bilateral lymphedema. R.pp. 21-22, 401. Further notations from this visit indicate that Plaintiff had relatively well-controlled pain, requiring only occasional use of Tylenol, and would follow up with Dr. Colbath as needed. R.p. 401. There are no other medical records from Dr. Colbath in the record.
Moreover, Dr. Colbath's note reflects that he told Plaintiff it “may” take an additional six months to a year for her to regain full capacity with her gait and strength; however, he did not establish an actual time frame. Rather, the evidence in the record showed that subsequently, in the same month that Dr. Colbath made this statement, Plaintiff was noted to have a normal gait without the need for an assistive device. R.pp. 22, 407, 409. Furthermore, the reviewing state agency physicians, whose opinions were given great weight by the ALJ (R.p. 23), had the medical records and considered Dr. Colbath's statement when opining that Plaintiff could perform a range of medium work. R.pp. 70, 79, 90, 101. State agency medical consultants are highly qualified physicians who are also experts in Social Security disability evaluation. See Smith v. Schweiker, 795 F.2d 343, 345-46 (4th Cir. 1986) (stating that the opinion of a non-examining physician can constitute substantial evidence to support the decision of the Commissioner). The ALJ specifically found that the State Agency consultant conclusions:
do not substantially contradict findings by [Plaintiff's] treating physicians. . . . I did limit foot controls [in Plaintiff's RFC] bilaterally, instead of only with regard to the right lower extremity, as this is more consistent with the way these limitations are addressed in the DOT. . . . This is consistent with the objective evidence . . . revealing that [Plaintiff's] conditions improved with medications and treatment and the lack of recent medical treatment indicating that [Plaintiff] still suffers from severe symptoms, as alleged, in relation to her prior lower extremity fracture. On April 26, 2018, [Plaintiff] was noted to have a normal gait with no noted assistive device, full range of motion in her spine, normal sensation and normal strength (Exhibit 5F, p. 1). The record does not support greater limitations than those set forth in the [Plaintiff's] residual functional capacity.
R.p. 23-24. Under the circumstances, the ALJ sufficiently addressed and considered Dr. Colbath's findings.
Plaintiff has failed to show how specifically addressing Dr. Colbath's statement about Plaintiff's possible recovery time for a normal gait and strength in her leg after surgery, and according it great weight, would have compelled a contrary conclusion by the ALJ on the issue of disability or Plaintiff's RFC. See Tanner v. Comm'r of Soc. Sec., 602 Fed.Appx. 95, 101 (4th Cir. 2015) (noting reversing the ALJ's decision solely because he failed to assign weight to a doctor's opinion “would be pointless” given that the RFC and the Doctor's opinion were “largely consistent” and that it would be “highly unlikely, given the medical evidence of the record, that a remand to the agency would change the [ALJ's] finding of non-disability”). Accordingly, remand on this basis would serve no purpose, and the ALJ's decision should be affirmed. See Shinseki, 556 U.S. at 409; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (stating “[n]o principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe the remand might lead to a different result”).
C. RFC Assessment
Plaintiff's final argument is that the ALJ's RFC assessment is not supported by substantial evidence. ECF No. 18 at 9-11. She again emphasizes Dr. Colbath's conclusion that it “may take ‘six months to a year for her to gain full capacity with gait and strength.'” Id. at 10 (quoting R.p. 401). Plaintiff argues that this evidence, in combination with her lymphedema that causes swelling and pain in both legs (necessitating that she elevate her legs most of the day), her tendonitis-plantar fasciitis, and her morbid obesity, confirms that she cannot meet the exertional demands as described in the RFC. Id.
A claimant's RFC represents “the most [she] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1); SSR 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2, 1996). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of his own limitations. 20 C.F.R. § 404.1545(a)(3). In making an RFC assessment, the ALJ conducts an independent analysis of the relevant evidence and develops an appropriate RFC based upon that evidence. 20 C.F.R. § 404.1545. SSR 96-8p instructs that the “RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945.” SSR 96-8p, 1996 WL 374184, at *1.
Here, the ALJ thoroughly discussed all of the relevant evidence and considered Plaintiff's subjective complaints, treatment, objective findings, activities, and the medical opinions to formulate a well-supported RFC finding. R.pp. 19-20. This evidence supported Plaintiff's ability to perform medium exertion work with additional postural limitations. R.pp. 20-24. Specifically, as the ALJ discussed in detail as follows: that (1) Plaintiff presented for treatment of a spiral oblique fracture involving the distal third of her right tibia January 2016; she was admitted to the hospital and underwent surgical fixation with intramedullary nail of the right tibial shaft fracture (R.pp. 20, 299, 305); (2) her post-operative course was uneventful with well-controlled pain, and she was discharged with the use of a walker two days later (R.pp. 21, 301); (3) Plaintiff followed up the following month and was noted to be making good progress with well-controlled pain; she was neurovascularly intact with appropriate range of motion (R.pp. 21, 364, 367); (4) X-rays showed no postoperative complications (R.pp. 21, 365); (5) in May 2016, Plaintiff reported some ongoing pain and unsteady gait but had weaned off of Norco and was only taking Tylenol; she was noted to be making good progress, and, upon examination, was in no acute distress, had only mild edema and some quad atrophy but she was neurovascularly intact with no crepitus with range of motion, no tenderness over the facture sites; and she had improving weakness, no numbness/tingling, and was full weight-bearing (R.pp. 21, 358); (6) at a September 2016 follow up, Plaintiff reported leg weakness and decreased range of motion, but upon examination, she had mild quad atrophy and weak straight leg raising but no edema or crepitus with range of motion in the ankle or tenderness; she was noted to be making slow but steady progress and was advised to work on weaning off of her cane (R.pp. 21, 394-95); (7) in October 2016, Plaintiff reported abdominal pain, and exhibited full, normal range of motion with full strength in all extremities, intact sensation, and a normal gait (R.pp. 21, 457); (8) in December 2016, Plaintiff reported some increased pain, but was noted to have weaned off of her cane and was planning on investigating vocational rehabilitation options (R.pp. 21, 399); (9) on February 9, 2017, Plaintiff reported lower leg soreness and feeling weak; she had some mild quad atrophy and weak straight leg raising but no crepitus with range of motion in the ankle and no tenderness, and she was noted to have weaned off of her cane (R.pp. 21, 400-01); (10) on February 13 and 21, 2017, and April 26, 2018, Plaintiff was noted to have a normal gait and no assistive device; she exhibited full range of motion in her spine and normal sensation and strength (R.pp. 21, 405, 407, 409); (11) Plaintiff cared for herself independently, cared for her children and grandchildren, drove, shopped in stores, and went to medical appointments (R.pp. 22, 48, 211, 232-34); and (12) the reviewing state agency physicians opined that Plaintiff was capable of performing medium work with limited postural activities (R.pp. 23-24, 68-70, 78-80, 89-91, 99-101).
Plaintiff's arguments with regard to Dr. Colbath's statement in February of 2017 are addressed specifically in detail above in section B.
The ALJ found that, although Plaintiff was obese and had surgical repair of a right leg fracture, the record did not support her allegations of symptom severity, particularly where her functioning improved to the point she no longer needed to walk with a cane at medical visits and was observed to have a normal gait with normal strength. R.pp. 21-23. Although the evidence does show that Plaintiff had some impairments, her diagnoses alone do not force the conclusion that she is disabled; rather, the evidence that matters in making such a determination is the degree of any resulting functional limitations. See 20 C.F.R. §§ 404.1520, .1521, .1545; Gross, 785 F.2d at 1166 (“[A] psychological disorder is not necessarily disabling. There must be a showing of related functional loss.”); Gotshaw, 307 F.2d at 844 (“[T]he mere presence of a disease or medically determinable impairment does not automatically entitle a claimant to a disability period or disability insurance benefits under the Social Security Act.”).
Ultimately, Plaintiff is asking the Court to re-weigh the evidence relating to her impairments and decide the outcome of this case differently. However, that is not the proper role for this Court under the substantial evidence standard of review. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also 42 U.S.C. § 405(g). Substantial evidence supports the ALJ's weighing of the evidence in this case, and his decision should be affirmed. See Biestek, 139 S.Ct. at 1154 (explaining that substantial evidence “means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” (internal quotation marks omitted)).
IV. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this 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
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).