Opinion
CIVIL ACTION NO. 9:18-1608-CMC-BM
07-11-2019
CINDY MARIE NEWTON, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).
Plaintiff applied for Supplemental Security Income (SSI) on October 2, 2014 (protective filing date), alleging disability beginning December 13, 1991 due to closed spina bifida, arthritis, neurogenic syncope, spinal bifida, degenerative arthritis, neurogenic syncope, club foot, social anxiety disorder, polycystic ovarian syndrome, depression, self harm, asthma, and migraines. (R.pp. 69-70, 81, 151-152, 183). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on July 11, 2017. (R.pp. 42-68, 109-111). The ALJ thereafter denied Plaintiff's claim in a decision issued October 11, 2017. (R.pp. 15-36). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6).
An applicant may receive SSI benefits if she can establish that she is disabled and has limited means. Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
A prior application for benefits by Plaintiff was denied at the initial level in September 2008. (R.pp. 70, 84, 170-171).
Although Plaintiff has alleged disability due to conditions present since birth, under SSI the claimant's entitlement to benefits (assuming she establishes disability) would not begin until the month following the date of filing the application forward. See Werts v. Commissioner, No. 13-914, 2014 WL 6078434 at * 1 n. 2 (N.D.N.Y. Nov. 13, 2014) (citing 20 C.F.R. § 416.335); Pariseau v. Astrue, No. 07-268, 2008 WL 2414851, at * 13 (D.R.I. June 13, 2008); see 20 C.F.R. § § 416.202(g), 416.203(b), 416.335 (2009). 20 C.F.R. § 416.335. Thus, as noted by the ALJ, the relevant time period in this case begins on October 2, 2014, the protective filing date of the application. (R.pp. 15, 17).
Plaintiff then filed this action in United States District Court. Plaintiff asserts that the ALJ made numerous errors in her decision, and that this case should be reversed for an award of benefits, or remanded for further proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
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. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. 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." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[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).
Discussion
Plaintiff was twenty-two years old on when she filed her application, and twenty-five years old at the time of the ALJ's decision. Plaintiff did not graduate from high school and did not obtain her GED. She has no past relevant work. (R.pp. 34-35, 47, 49, 51). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her 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 (12) months.
The ALJ found for purposes of her decision that Plaintiff has a "limited education". (R.p. 35).
After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of obesity, degenerative disc disease, history of spina bifida, status post childhood cord release and club foot surgeries, seizures and syncope, migraine headaches, polycystic ovarian syndrome, depression, anxiety, and posttraumatic stress disorder (R.p. 17), she nevertheless retained the residual functional capacity (RFC) to perform sedentary work with the limitations that she can never climb ladders/ropes/scaffolds and can only occasionally climb ramp/stairs, balance, stoop, kneel, crouch, and crawl; that she can have frequent exposure to hazards; and that she is limited to simple, routine tasks performed for two (2) hours at a time and can only have occasional interaction with the public. (R.p. 22). Since the Plaintiff did not have any past relevant work, the ALJ obtained testimony from a vocational expert (VE) and found at step five that there were jobs existing in significant numbers in the national economy that Plaintiff could perform with these limitations, and that she was therefore not entitled to disability benefits. (R.pp. 35-36, 63-67). See Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980)[ALJ may rely on VE opinion based on training, experience and familiarity with skills necessary to function in various jobs].
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a).
Plaintiff argues that the ALJ erred in reaching her conclusions by failing to adequately explain how the limitations in Plaintiff's RFC account for her mental limitations; by making no findings as to the frequency or severity of Plaintiff's migraine headaches at the Listing level; by making no determination of the frequency or severity of Plaintiff's migraine headaches when formulating her RFC; by failing to conduct a function-by-function analysis; by cherry-picking evidence; by finding Plaintiff's symptoms of difficulty with sitting were inconsistent with the objective medical evidence; and by not complying with the Fourth Circuit's recent ruling in Woods v. Berryhill. However, after a careful review and consideration of the evidence and arguments presented, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that the decision should therefore be affirmed. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
888 F.3d 686 (4th Cir. 2018). In Woods, the Fourth Circuit held that in considering a claimant's activities, the ALJ should consider not just the type of daily activities performed, but also the extent to which the claimant can perform them in assessing credibility. Id., at 694-695.
I.
(Moderate difficulties in concentration, persistence, or pace)
Plaintiff initially contends that the ALJ committed reversible error in accounting for her mental limitations in the RFC by failing to properly account for her moderate difficulties in concentration, persistence, or pace. Plaintiff argues that the ALJ's limitation to unskilled work in the RFC does not account for this difficulty, citing to Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), which held that "an ALJ does not account 'for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.' " Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). The Court determined in Marcio that the ability to perform simple, routine tasks is not the same as having the ability to stay "on task" during a workday, which is the limitation that would account for a claimant's impairment in concentration, persistence or pace. Mascio, 780 F.3d 638. However, contrary to Plaintiff's contention, the ALJ specifically discussed Plaintiff's mental limitations in her decision, including her moderate difficulties with regard to concentration, persistence, and pace, and made the following findings:
See (R.pp. 21, 23) [Finding that Plaintiff had moderate difficulties with regard to concentration, persistence or pace].
She can attend to and perform simple tasks without special supervision for at least two-hour periods. She is able to understand normal work-hour requirements and to be prompt within reasonable limits. She is able to work in coordination with or proximity to others without being unduly distracted as long as she has no more than occasional interaction with the public. She retains the ability to make simple, work-related decisions. Her symptoms would not interfere with satisfactory completion of a normal workday or workweek or require an unreasonable number of rest or cooling off periods [and] would not be off task during the workday other than during regular breaks.(R.pp. 23-24).
Therefore, the decision clearly reflects that the ALJ did account for Plaintiff's CPP limitation by restricting her not just to simple, routine tasks, but by limiting her time "on task" to two hour periods together with only occasional interaction with the public. (R.p. 22). She also found that Plaintiff's symptoms would not interfere with satisfactory completion of a normal workday. See Mascio, 780 F.3d at 638 [Proper for ALJ to find that limitation in CPP does not affect a claimant's ability to work]. The Winschel case, on which Mascio relies, recognized that "when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations." 631 F.3d at 1180 (citing Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir.2009); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-76 (9th Cir.2008); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001)). Here, of course, the ALJ went further, specifically addressing Plaintiff's ability to stay "on task" as part of the RFC, as required by Mascio. (R.pp. 22, 24).
The ALJ's decision is supported by the findings of the state agency psychologists. Dr. Craig Horn, Ph.D., found that Plaintiff was able to understand and remember both simple and detailed instructions; that she is able to carry out short and simple instructions, as well as more detailed instructions; that she was not significantly limited in her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; that she was able to sustain an ordinary routine without special supervision; that she was not significantly limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and that she was able to maintain concentration and attention for periods of at least two (2) hours. (R.pp. 93-94). Dr. Debra C. Price found that Plaintiff could perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; that she was not significantly limited in her ability to make simple work-related decisions; that Plaintiff was able to understand and remember simple and detailed instructions; that Plaintiff can carry out short and simple instructions but not detailed instructions; and that Plaintiff was able to maintain concentration and attention for periods of two (2) hours. (R.pp. 78-79). The opinions of these two psychologists provide substantial support for the ALJ's finding that, despite Plaintiff's overall moderate limitation in concentration, persistence, or pace, she would be able to perform simple, routine tasks for up to two (2) hours at a time, coupled with only occasional interaction with the public. Cf. Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017)[rejecting the plaintiff's argument under Mascio where the ALJ relied on the opinion of the state agency psychologist that, notwithstanding moderate limitations in concentration, persistence, and pace, the plaintiff could sustain attention sufficiently to perform simple, routine, repetitive tasks in a low stress setting defined as non-production jobs without fast-paced work and with no public contact].
The ALJ gave great weight to these mental assessments from the state agency consultants. (R.p. 31). See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) [opinions of non-examining physicians can constitute substantial evidence to support the decision of the Commissioner]; see also Marquez v. Astrue, No. 08-206, 2009 WL 3063106, at *4 (C.D.Cal. Sept. 21, 2006)[No error where ALJ's RFC finding was even more restrictive than the exertional levels suggested by the State Agency examiner]. The ALJ also gave great weight to the opinion of Dr. John C. Whitley, a consultative psychological examiner, who opined that Plaintiff is able to "follow simple repetitive and routine instructions fairly well with minimal demands" and would "function best in a work setting with minimal to no contact with the public." (R.pp. 31-32, 445-446). These records and opinions provide further substantial support for the ALJ's conclusions. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
While Dr. Horn found Plaintiff could understand and carry out detailed instructions, the ALJ limited Plaintiff to simple, routine tasks. (R.pp. 22, 94).
Plaintiff has not shown that the ALJ failed to comply with Marcio in reaching her decision, and the undersigned can discern no reversible error in the ALJ's treatment of the evidence or her findings with respect to Plaintiff's RFC in conjunction with Plaintiff's moderate limitation in concentration, persistence and pace. Clarke v. Bowen, 843 F.2d 271, 272-273 (8th Cir. 1988)["The substantial evidence standard presupposes . . . a zone of choice within which the decision makers can go either way without interference by the Courts"]. Therefore, this claim is without merit. Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990) [Courts should properly focus not on a claimant's diagnosis, but on the claimant's actual functional limitations].
II.
(Listing 11.03)
Plaintiff also contends that the ALJ erred by failing to explain why the evidence identified by Plaintiff as supporting her claim did not meet Listing 11.03. However, the neurological Listings were revised effective September 29, 2016, and Listing 11.03 was removed and combined with Listing 11.02 in the revised version. See Hill v. Berryhill, No. 17-3198, 2019 WL 1232634 at * 3 (D.S.C. Mar. 18, 2019)(quoting 81 Fed.Reg. 43048-01, 2016 WL 3551949 (July 1, 2016)(emphasis added)[Applying revised rules to "new applications filed on or after the effective date of the rules, and to claims that are pending on or after the effective date."] (emphasis in original). Accordingly, the ALJ properly considered and discussed Plaintiff's seizure and syncope impairments under Listing 11.02, which although addressing epilepsy, is the most similar Listing to Plaintiff's seizures and syncope. (R.pp. 19-20).
In the Listings of Impairments, "[e]ach impairment is defined in terms of several specific medial signs, symptoms, or laboratory test results." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). A claimant is presumed to be disabled if their impairment meets the criteria of an impairment set forth in the Listings. See 20 C.F.R. §§ 416.925, 416.926 (2003).
Therefore, Plaintiff's argument that the ALJ committed reversible error by failing to separately discuss Plaintiff's claim under Listing 11.03 is without merit.
III.
(Headaches and Epilepsy)
Plaintiff argues that although the ALJ found that she suffers from the severe impairments of headaches and epilepsy, she did not make appropriate findings with regard to these severe limitations or account for the restrictions they place on the Plaintiff. However, the record does not contain an epilepsy diagnosis, Plaintiff did not allege epilepsy as an impairment, nor did the ALJ find epilepsy was a severe impairment. (R.pp. 17, 69). Rather, the ALJ found that Plaintiff's severe impairments include headaches, seizures and syncope. (R.p. 17). Plaintiff also asserts that the ALJ should have included in her RFC "days missed from work due to [her] migraines or her seizures" and "specific allowances for absences, breaks, or time off task as a result of [her] migraine headaches." See Plaintiff's Brief, p. 25. However, while Plaintiff contends that the ALJ erred by not making a finding as to how many migraine headaches and/or seizures she suffers in a month, as the Commissioner correctly points out, Plaintiff has cited to no authority that requires the ALJ to make those specific findings.
Even so, the ALJ considered and discussed the opinions of Nurse Practitioner Jill Gilchrist (R.pp. 32-34), who opined that on average Plaintiff would likely be absent from work approximately three (3) days per month as a result of her impairments or treatments. (R.p. 1071). NP Gilchrist also opined that Plaintiff would sometimes need to take unscheduled breaks an average of two (2) to three (3) times during an eight-hour workday. (R.p. 1069). However, at the time Plaintiff filed her claim, a nurse practitioner was not considered an acceptable medical source under the regulations, and the ALJ correctly noted that NP Gilchrist's opinion was therefore not entitled to controlling weight in this case. (R.p. 33); see 20 C.F.R. §§ 404.1502, 404.1513(a),(d)(1)[a physician assistant is not an acceptable medical source]; 20 C.F.R. § 404.1527; SSR 06-03p; see also Brewer v. Astrue, No. 11-105, 2011 WL 5553700, at * 4 (E.D.Ky. Nov. 15, 2011)[nurse practitioner is not an acceptable medical source under the regulations.]; Taylor v. Commissioner, No. 07-1023, 2008 WL 2776481 (M.D.Fla. July 15, 2008)[same]; Patton v. Astrue, No. 10-135, 2012 WL 645880, at * 7 (M.D.Ga. Feb. 6, 2012)[ALJ not required to give significant weight to "other source" opinions]. Nonetheless, the ALJ did consider NP Gilchrist's opinion that Plaintiff would need an average of two to three unscheduled breaks during the workday [R.pp. 32, 34], but found that Gilchrist cited little objective evidence and failed to explain how she arrived at this conclusion. (R.pp. 34, 1070). The ALJ also considered Gilchrist's opinion that Plaintiff would miss an estimated three (3) days from work per month, but assigned little weight to this portion of her opinion, noting that it was mere speculation and that Gilchrist had offered no adequate explanation for this limitation. (R.pp. 33, 1071). The undersigned can discern no reversible error in how the ALJ treated this evidence.
The Social Security Regulations were amended effective March 27, 2017, and under the new regulations, an advanced practice registered nurse or other licensed advanced practice nurse with another title is considered an acceptable medical source for claims filed after that date. See 20 C.F.R. §§ 404.1502(a), 416.902(a)(2017). As Plaintiff's claim was filed in 2014, references in this report and recommendation are to the prior versions of the regulations in effect at the time of the ALJ's decision, unless otherwise specified.
The ALJ also considered Plaintiff's own statements concerning the extent and frequency of her migraine headaches and seizures. An ALJ is to evaluate a claimant's subjective statements using a two-part test. Craig v. Chater, 76 F.3d 589, 594 (4th Cir. 1996); 20 C.F.R. § 404.1529 (effective June 13, 2011 to March 26, 2017). First, the ALJ must determine whether objective evidence shows the existence of a medical impairment that could reasonably be expected to produce the alleged symptoms. 20 C.F.R. § 404.1529(b). Once the claimant makes that threshold showing, the ALJ must then evaluate the extent to which the symptoms limit the claimant's capacity to work. 20 C.F.R. § 404.1529(c)(1). In doing so, the ALJ should not "evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled." SSR 16-3p, 2016 WL 1119029, at *5. Rather, "[b]ecause symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone," the ALJ is to "carefully consider any other information" about a claimant's symptoms. 20 C.F.R. § 404.1529(c)(3). At this second stage, the ALJ should consider all of the available evidence, including the claimant's medical history, objective medical evidence, and statements by the claimant. 20 C.F.R. § 404.1529(c). This requires assessment of all of the available evidence, including the claimant's treatment history; signs and laboratory findings; statements from the claimant; the claimant's treating and non-treating medical sources and other persons; and medical opinions of record. 20 C.F.R. § 404.1529(c)(1). Factors relevant to the claimant's symptoms can include the claimant's activities of daily living; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of any medications taken to alleviate pain or other symptoms; treatment, other than medication, that claimant receives for relief of pain or other symptoms; any other measures an individual uses to relieve pain or other symptoms; and any factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2016 WL 1119029, at *7.
SSR 16-3p became effective March 28, 2016 (well over a year before the decision in this case) and supercedes SSR 96-7p. See SSR 16-3p, 2016 WL 1119029, at *1. This new ruling "eliminat[es] the use of the term 'credibility' from ... sub-regulatory policy, as [the] regulations do not use this term." Id.. The ruling "clarif[ies] that subjective symptom evaluation is not an examination of the individual's character," id., and "offer[s] additional guidance to [ALJs] on regulatory implementation problems that have been identified since [the publishing of] SSR 96-7p," id. at *1 n.1. However, while SSR 16-3p eliminates the assessment of credibility, it still requires assessment of most of the same factors to be considered under SSR 96-7p.
In compliance with this requirement, the ALJ set forth in her decision the two-step process for evaluating subjective complaints. (R.pp. 22-28). She then found that although Plaintiff's medically determinable impairments could reasonably be expected to cause her alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence of record. (R.p. 28). In doing so, the ALJ set forth in great detail her consideration of Plaintiff's assertions as to the intensity, persistence, and limiting effects of her symptoms and evaluated this evidence in conjunction with the other evidence in the case. (R.pp. 28-31). This is exactly what this ALJ is supposed to have done. See Mickles v. Shalala, 29 F.3d 918, 925-926 (4th Cir. 1994) [In assessing the credibility of the severity of reported subjective complaints, consideration must be given to the entire record, including the objective and subjective evidence]. Plaintiff alleged that she had three (3) to four (4) migraines a month, each of which could last up to six (6) hours or more. Plaintiff testified that she takes Imitrex at the first sign of a migraine, and that when she has a migraine she takes an Excedrin and lies in complete darkness. (R.pp. 30, 57). The ALJ also considered Plaintiff's testimony that she had a seizure about once a month, and that her seizures leave her feeling very, very weak and tired with pain all over. (R.pp. 30, 60-61). Plaintiff treats this condition by taking medications. (R.pp. 27, 30, 60).
However, the ALJ noted that Plaintiff had only sought conservative treatment, which had been effective in controlling or alleviating the severity of her symptoms, and noted that there was scant evidence of Plaintiff being referred to specialists such as neurologists or neurosurgeons in the record since 2015. (R.p. 30). The ALJ specifically considered the effects of Plaintiff's pain and medication side effects in determining her RFC, considered all impairment related limitations created by Plaintiff's response to the demands of work, and concluded that with the limitations set forth in the RFC, her symptoms would not interfere with satisfactory completion of a normal workday or work week. (R.p. 23). The ALJ also found that Plaintiff's activities supported the RFC assigned; see also discussion (Section VII), infra; see Johnson v. Barnhart, 434 F.3d at 658 [Accepting ALJ's finding that claimant's activities were inconsistent with complaints of incapacitating pain where she engaged in a variety of activities]; Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); which were considered as part of the overall evaluation of each of Plaintiff's allegations in conjunction with the objective medical evidence and other evidence. (R.p. 28).
After a thorough consideration and discussion, the ALJ did not find persuasive Plaintiff's claims of functional limitations beyond those set forth in the RFC. (R.pp. 28-31). Again, the undersigned can discern nothing improper or reversible in how the ALJ handled the evidence relating to Plaintiff's headaches and syncope. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) [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]; Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003)[Evidence that a claimant is exaggerating symptoms can be considered as part of the evaluation of Plaintiff's subjective complaints]; Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) [ALJ may properly consider inconsistencies between a plaintiff's testimony and the other evidence of record in evaluating a plaintiff's subjective complaints]; cf. Mastro v. Apfel, 270 F.3d at 178 [ALJ may consider whether claimant's activities are consistent with allegations]; see also Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) ["What we require is that the ALJ sufficiently articulate her assessment of the evidence to 'assure us that the ALJ considered the important evidence ... [and to enable] us to trace the path of the ALJ's reasoning.'"]. As such, Plaintiff has failed to establish that the ALJ's decision should be disturbed by this Court. See Poling v. Halter, No.00-40, 2001 WL 34630642, at * 7 (N.D.W.Va. Mar. 29, 2001)["It is the duty of the ALJ, rather than the reviewing court, to assess the evidence of record and draw inferences therefrom"]; see also Bowen, 482 U.S. at 146 [Plaintiff has the burden to show that he has a disabling impairment].
IV.
(RFC Function-By-Function Analysis)
RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. An RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations);" Id. at *7.
Plaintiff contends that the ALJ erred by failing to conduct a function-by-function analysis of her impairments in determining her RFC as required by Mascio and Monroe . However, the ALJ specifically notes in her decision that she did assess Plaintiff's RFC on a function-by-function basis. (R.p. 23). Moreover, to the extent the ALJ evaluated Plaintiff's RFC by including in her decision a narrative discussion of the medical and nonmedical evidence leading to her conclusion that Plaintiff had the RFC to perform the limited range of sedentary work set forth in the decision, Plaintiff has shown no error in the ALJ's analysis. (R.pp. 17-34). See Knox v. Astrue, 327 F. App'x 652, 657 (7th Cir. 2009) ["[T]he expression of a claimant's RFC need not be articulated function-by-function; a narrative discussion of a claimant's symptoms and medical source opinions is sufficient"], citing Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Webb v. Commissioner, No. 17-1912, 2018 WL 4575154 at * * 2-3 (D.S.C. Sept. 25, 2018) [Dismissing Plaintiff's complaints that the ALJ failed to explain certain alleged limitations and finding the ALJ's narrative discussion satisfied Fourth Circuit precedent where ALJ discussed medical and non-medical evidence and built an accurate and logical bridge from that evidence to the RFC assigned].
Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016).
Plaintiff challenges the ALJ's finding that her "symptoms would not interfere with satisfactory completion of a normal workday or workweek or require an unreasonable number of rest or cooling off periods." (R.p. 23). However, in formulating the RFC, the ALJ found that in light of Plaintiff's obesity and history of musculoskeletal problems, seizures and syncope, migraine headaches, and polycystic ovarian syndrome, Plaintiff should avoid climbing ladders, ropes, or scaffolds, only occasionally perform postural activities, and have only frequent exposure to hazards. In doing so, the ALJ specifically considered the effects of Plaintiff's pain, fatigue and medication side effects on her RFC. (R.p. 23). Additionally, based on her finding that Plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace, a moderate limitation in adapting or managing herself, and moderate limitation in understanding, remembering, or applying information, the ALJ found that Plaintiff could not understand, remember and carry out detailed or complex instructions. Rather, the ALJ found that Plaintiff's limitations restricted her to performing only simple tasks without special supervision for two-hour periods. However, the ALJ did also find that she is able to understand normal work-hour requirements and to be prompt within reasonable limits, that she could work in coordination with or proximity to others without being unduly distracted as long as she has no more than occasional interaction with the public, and that she retains the ability to make simple, work-related decisions. (R.p. 23). In making these determinations, the ALJ set forth an extensive review and analysis of Plaintiff's medical records and findings. (R.pp. 24-34). See Lyall v. Chater, No. 94-2395, 1995 WL 417654, at * 1 (4th Cir. 1995) [Finding no error where the ALJ's analysis "was sufficiently comprehensive as to permit appellate review"].
The ALJ also found that Plaintiff's array of daily activities undermined Plaintiff's allegations of total disability (R.pp. 28-29), which supports her RFC determination. See SSR 96-8p, 1996 WL 374184 at *5 [listing reports of daily activities as evidence to be considered in the RFC assessment]; 20 C.F.R. § 404.1529(c)(3)(I). Notably, in crafting the RFC the ALJ gave little weight to the opinions of the state agency medical consultants, finding that the evidence at the hearing level showed the Plaintiff is more limited exertionally and more limited for postural activities than was determined by the state agency consultants. (R.p. 31). As such, it is readily apparent that the ALJ gave Plaintiff every benefit of the doubt in determining her RFC - finding that additional limitations were warranted in light of Plaintiff's exertional and postural limitations. (R.p. 29-32). See Marquez v. Astrue, 2009 WL 3063106, at *4 [No error where ALJ's RFC finding was even more restrictive than the exertional levels suggested by the State Agency examiner]; see also Siler v. Colvin, No. 11-303, 2014 WL 4160009, at * 5 (M.D.N.C. Aug. 19, 2014) [same]; cf. Muir v. Astrue, No. 07-727, 2009 WL 799459, at * 6 (M.D.Fla. Mar. 24, 2009)[No error where ALJ gave Plaintiff even a more restrictive RFC than the medical records provided].
Plaintiff's activities are discussed in detail in Section VII. See discussion, infra.
While Plaintiff argues that the evidence could support a different RFC finding, the duty to consider the evidence and resolve any conflicts in that evidence rests with the ALJ: not with the Plaintiff, and not with this Court. Hays, 907 F.2d at 1456 [It is the responsibility of the ALJ to weigh the evidence and resolve conflicts in that evidence]; see also Guthrie v. Astrue, No. 10-858, 2011 WL 7583572, at * 3 (S.D.Ohio Nov. 15, 2011), adopted by, 2012 WL 9991555 (S.D.Ohio Mar. 22, 2012). Plaintiff simply disagrees with the ALJ's RFC finding. However,
"the determination of a claimant's RFC is ultimately the province of the ALJ as the representative of the Commissioner." McPherson v. Astrue, 605 F. Supp. 2d 744, 755 (S.D.W.Va. 2009) (citing 20 C.F.R. § 404.1527(e)(2)); see also Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)." "The reviewing court's sole responsibility is to determine whether the ALJ's determination of the claimant's RFC is rational and based on substantial evidence." Id. (citing Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)).Smith-Williams v. Berryhill, No. 16-03556, 2017 WL 1284961, at *9 (S.D.W.Va. Mar. 6, 2017), adopted by, 2017 WL 1281147 (S.D.W.Va. Apr. 4, 2017). Here, the ALJ's findings are "rational," and this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. Smith, 99 F.3d at 638 ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; see also Hays, 907 F.2d at 1456 [If there is evidence to justify refusal to direct a verdict where the case before a jury, then there is 'substantial evidence']; Clarke, 843 F.2d at 272-273 ["The substantial evidence standard presupposes . . . a zone of choice within which the decision makers can go either way without interference by the Courts"].
Considered pursuant to this applicable standard for review by this Court, there is substantial evidence in the case record to support the ALJ's finding that Plaintiff was able to perform the level of sedentary work indicated with the restrictions noted, and Plaintiff's contention that the ALJ erred in making her RFC findings is therefore without merit. Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir. 1986)["If the Secretary's dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported."] (citation omitted); see also Bowen, 482 U.S. at 146 [Plaintiff has the burden to show that he has a disabling impairment].
V.
(Cherry Picked Evidence)
Plaintiff also complaints that the ALJ "cherry picked" the evidence and ignored certain opinions offered by Dr. Whitley and/or Physical Therapist Sloan Calvert.
Dr. Whitley conducted a psychological evaluation of Plaintiff in March 2015. (R.pp. 441-446). The Plaintiff specifically refers to Dr. Whitley's opinion that Plaintiff's "current psychological factors would have a significant impact on her ability to sustain effort, focus and pace during a workday," as being evidence the ALJ made "no mention" of. See Plaintiff's Brief, p. 29. However, the ALJ discussed and considered Dr. Whitley's opinion in detail, including this exact language, when discussing Dr. Whitley's findings. (R.p. 31). Therefore, there is no merit to Plaintiff's contention that the ALJ "ignored" this evidence. In reliance on Dr. Whitley's 2015 consultative examination, the ALJ concluded that Plaintiff's limitations in concentration, persistence, and maintaining pace were moderate (R.p. 21), and in consideration of this limitation, the ALJ did not subject the Plaintiff to complex, detailed, or multi-step instructions; rather, the ALJ limited Plaintiff to sedentary, unskilled work in which she would engage in "simple routine tasks performed for two hours at a time with only occasional interaction with the public. (R.p. 22). In the performance of simple, routine tasks, concentration is not critical and the mental demands are minimal. See 20 C.F.R. § 416.968(a)[unskilled work requires little or no judgment and consists of simple duties that can be learned on the job in a short time period]. However, while the ALJ should consider all relevant evidence, the ALJ is not required to adopt an opinion in its entirety or include every degree of limitation in an RFC. See Wilkinson v. Comm'r Soc. Sec., 558 Fed.Appx. 254, 256 (3d Cir. 2014)["[N]o rule or regulation compels an ALJ to incorporate into an RFC every finding by a medical source simply because the ALJ gives the source's opinion as a whole 'significant' weight"]; Labanowski v. Colvin, No. 15-2250, 2016 WL 4523164, at * 4 (D.S.C. July 19, 2016)["[E]ven when an ALJ gives considerable weight to an opinion, he is not required to adopt an opinion wholesale and include every degree of limitation in the RFC."](citations omitted), report and recommendation adopted by, 2016 WL 4522663 (D.S.C. Aug. 16, 2016); see e.g. 20 C.F.R. § 416.913a(b)[ALJs "are responsible for reviewing the evidence and making administrative findings of fact and conclusions of law"]; Koonce v. Apfel, 166 F.3d 1209, at * 4 (4th Cir. 1999)(unpublished)["The determination of a claimant's RFC and the application of vocational factors are reserved to the ALJ, who is not bound by medical opinion on these subjects"].
With regard to PT Calvert's opinion, the ALJ correctly noted that Calvert is a physical therapist and did not render a medical opinion under the regulations because she is not an acceptable medical source. (R.p. 33).
The Social Security regulations applicable to plaintiff's claim distinguish between "acceptable medical sources" and "other sources." Acceptable medical sources include, for example, licensed physicians and psychologists, while other non-specified medical providers, including therapists, are considered "other sources." 20 C.F.R. §§ 404.1502, 404.1513, 416.902, 416.913 (effective Sept. 3, 2013-March 26, 2017), and Social Security Ruling (SSR) 06-03p rescinded effective March 27, 2017).See Terrell C. v. Berryhill, No. 18-5082, 2018 WL 5080627, at *2 (W.D. Wash. Oct. 18, 2018); see also McClaine v. Comm'r of Soc. Sec., No. 16-13950, 2018 WL 1309877, at *6 (E.D. Mich. Jan. 29, 2018)[same], report and recommendation adopted, No. 16-13950, 2018 WL 1291126 (E.D. Mich. Mar. 13, 2018). Accordingly, although such opinions may be considered by the ALJ under the same factors as an acceptable medical source, the ALJ was not required to assign PT Calvert's opinion any particular weight because a physical therapist is not an "acceptable medical source" under the regulations. Even so, the ALJ nonetheless considered her opinion and discussed the weight she assigned to different parts of her opinion. (R.p. 34). In doing so, she discussed the evidence and portions of PT Calvert's opinion which she gave great weight, and also the portions of her opinion which were entitled to only little weight because the objective evidence indicated that Plaintiff had less restrictions in those areas. (R.p. 34). While Plaintiff complains that the ALJ did not cite fully to all of PT Calvert's opinion, she has not shown that the ALJ committed reversible error in not doing so. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) [stating that "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision"].
These regulations apply only to cases, like this one, that were filed before March 27, 2017. New regulations for evaluating medical evidence apply to claims filed after March 27, 2017. 82 Fed. Reg. 5844 (Jan. 18, 2017).
Accordingly, Plaintiff has not shown the ALJ erred in her consideration of these opinions or in determining the weight which she assigned to them.
VI.
(Sitting Limitation)
The ALJ found that Plaintiff's limitations for standing, walking, lifting, bending and twisting were consistent with the medical evidence and considered them in fashioning her RFC. However, the ALJ found that Plaintiff's alleged limitations for sitting were "inconsistent with the objective findings." (R.p. 30). Specifically, the ALJ found that "[t]here have been minimal positive findings in the lower extremities to support a limitation for sitting. Exams have shown no lower extremity edema and normal motor strength, sensation and reflexes. The [Plaintiff] uses an orthotic device but there is no indication that it interferes with sitting." (R.p. 23). The ALJ also discussed the February 2016 physical therapy initial evaluation notes of physical therapist Adrienne Popplewell, which state that, with sitting, Plaintiff's thoracic spine had a noticeable kyphotic curve, but that when "cued to sit upright, [Plaintiff's] thoracic spine returned to within functional limits." (R.p. 26; see also R.p. 814). The ALJ also noted Nurse Practitioner Gilchrist's March 2016 observation that Plaintiff "sat upright in the chair in no apparent distress." (R.p. 27; see also R.p. 849).
In reaching this RFC finding, the ALJ also discussed Dr. Branham Tomarchio's January 2015 medical consultative examination. Dr. Tomarchio noted that although Plaintiff stated that her back pain was aggravated by sitting, among other things, she nevertheless (during her physical examination) was able to sit in the interview chair comfortably. (R.p. 25; see also R.p. 405). Dr. Tomarchio further found that Plaintiff's lower extremities evidenced no edema; and also evidenced normal motor strength, sensation, and reflexes. (R.pp. 405-406). Because Plaintiff had some reduced range of motion in the lumbar spine and difficulty with gait maneuvers, Dr. Tomarchio concluded that this might result in some difficulty in walking long distances or in lifting or carrying very heavy objects. (R.p. 406). However, he expressly opined that Plaintiff "should be able to sit without difficulty."
The ALJ gave this opinion great weight. (R.pp. 31-32; see also R.p. 406). The ALJ also gave great weight to PT Calvert's opinion that Plaintiff can sit frequently. (R.p. 34; see also R.p. 1062). Plaintiff has not shown that the ALJ erred by not properly assessing Plaintiff's reported difficulty with sitting. Therefore, this claim is without merit.
VII.
(Daily Activities)
Finally, Plaintiff contends that the ALJ erred by relying on specific activities to support her RFC determination, which Plaintiff contends was greater than suggested by the Plaintiff and the medical evidence.
In reaching her decision, the ALJ noted that Plaintiff reported to Dr. Thompson that she dressed and bathed herself; she required consistent assistance with dressing and bathing; she liked to do crafts; attended appointments; took medications; took care of her cats and dogs; she often provided assistance to her brother who is handicapped; she used the internet, texts, uses a cellphone and operates a DVD player; plays video games, watches television; listens to music, and reads; she helped care for the home by cooking meals on the stove, used a microwave, and fed her pet; and she took breaks throughout the day. (R.p. 29). The ALJ also considered a December 2014 Function Report where Plaintiff noted that her conditions affected dressing and bathing because she needed help when her spine was locked; that she denied having problems with caring for her hair and feeding herself; that she prepared mostly frozen or fast meals daily but sometimes could not cook and her dad had to cook; that she sometimes swept, but had to stop for breaks a lot; that she was able to drive a car for short amounts and only on good days; that she was able to go out alone depending on her level of pain; and that she shopped in stores once a month and sometimes used a wheelchair. (R.p. 29). The ALJ also discussed Plaintiff's testimony at the hearing, where she testified that she helped care for her handicapped brother and her father. She also stated that she handled all of the bills and resources, and she helps cook when she can, but that her dad cooks a lot. She testified that she basically keeps everything in order and makes sure they get to their doctor's appointments and have their medications. She noted that she can drive, but cannot drive for long distances like to Columbia, which is about 50-60 miles from her home. Plaintiff also testified that she went to stay with her sister while her sister's husband was deployed so she could help with her sister's children by watching them. (R.pp. 48-53).
The ALJ noted that this testimony was somewhat inconsistent and was further inconsistent with Plaintiff's previous statements that she spends at least 75% of the day lying down, usually in a recliner or bed. (R.pp. 29, 48-53). The ALJ also found it significant that Plaintiff is able to care for her sister's children and for her disabled brother and father, activities that are quite physical and emotionally demanding, and that she has done so without any particular assistance. The ALJ found these daily activities to be consistent with the RFC she assigned to the Plaintiff. (R.p. 29). As noted, the ALJ also limited Plaintiff to simple, routine tasks performed for two (2) hours at a time and limited her to only occasional interaction with the public., limitations consistent with Plaintiff's claims of having to take regular breaks. (R.p. 22). Although the ALJ discussed and found some of Plaintiff's testimony inconsistent, she adequately considered both the type of activities she can perform, as well as the extent to which she can perform those activities. Therefore, despite Plaintiff's arguments to the contrary, she has not shown that the ALJ's decision runs afoul of the Fourth Circuit's ruling in Woods v. Berryhill. See n. 7, supra. This issue is without merit.
Conclusion
Substantial evidence is defined as "... evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984). As previously noted, if the record contains substantial evidence to support the decision (i.e., if there is sufficient evidence to justify a refusal to direct a verdict were the case before a jury), this Court is required to uphold the decision, even should the Court disagree with the decision. Blalock, 483 F.2d at 775.
Under this standard, the record contains substantial evidence to support the conclusion of the Commissioner that the Plaintiff was not disabled within the meaning of the Social Security Act during the relevant time period. Therefore, it is recommended that the decision of the Commissioner be affirmed.
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge July 11, 2019
Charleston, South Carolina
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).