Opinion
Civil Action 4:20-cv-04162-DCN-TER
04-26-2022
AMY REEDER, Plaintiff, v. KILOLO KIJAKAZI,[1] Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III., UNITED STATES MAGISTRATE JUDGE.
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits(DIB) and supplemental security income(SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB and SSI on November 6, 2018, alleging inability to work since April 17, 2016, amended to March 28, 2017. (Tr. 32). Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on December 18, 2019, at which time Plaintiff and a VE testified. (Tr. 32). The Administrative Law Judge (ALJ) issued an unfavorable decision on January 15, 2020, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 32-41). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on October 5, 2020, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff filed this action on December 1, 2020. (ECF No. 1).
B. Introductory Facts
Plaintiff was born on March 28, 1967 and was fifty years old on the amended alleged onset date. (Tr. 39). Plaintiff had past work of certified nursing assistant, houseparent, and warehouse worker. (Tr. 39). Plaintiff alleges disability initially due to high blood pressure and congestive heart failure. (Tr. 81). Pertinent records will be discussed under the relevant issue headings.
C. The ALJ's Decision
In the decision of January 15, 2020, the ALJ made the following findings of fact and conclusions of law (Tr. 32-41):
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
2. The claimant has not engaged in substantial gainful activity since March 28, 2017, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity, cardiomyopathy, hypertension, and congestive heart failure (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant 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).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently and sit 6 hours, stand 6 hours, and walk 6 hours each in 8 hour workday with usual breaks, but needs the ability to change position at least once an hour without leaving her
workstation or losing production. The claimant can occasionally climb ladders and steps and can frequently balance, stoop, crouch, kneel, and crawl. The claimant should avoid concentrated exposure to heat, cold, humidity, and hazards.
6. The claimant is capable of performing past relevant work as a dialysis technician. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from March 28, 2017, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
II. DISCUSSION
Plaintiff argues the ALJ erred in analyzing Dr. Hiremath's opinions. Secondly, Plaintiff argues the ALJ failed to consider Plaintiff's fatigue and need to elevate her legs in formulating the RFC. Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence. A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
Opinions: Dr. Hiremath
Plaintiff argues the ALJ erred in analyzing Dr. Hiremath's opinions.
For applications filed on or after March 27, 2017, such as this action, the regulatory framework for considering and articulating the value of medical opinions has been changed. See 20 C.F.R. § 404.1520c, § 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Importantly, the new regulations no longer require any special significance be given to opinions by a treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017),§ 416.920c. The ALJ is not required to defer to or give any specific weight to medical opinions. 20 C.F.R. § 404.1520c(a)§ 416.920c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant(length, frequency, purpose, extent, and examining); (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(b), (c); § 416.920c(b),(c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. 20 C.F.R. § 404.1520c(a), (b)(2), § 416.920c(a), (b)(2). An ALJ is not required to explain how the remaining factors were considered. 20 C.F.R. § 404.1520c(b)(2), § 416.920c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1), § 416.920c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2), § 416.920c(c)(2).
On December 4, 2019, Dr. Hiremath completed a form and opined that Plaintiff's impairments were “fatigue, walking 200 yards, difficulty completing all daily care needs due to fatigue and shortness of breath.” (Tr. 410). Plaintiff would miss 5+ days per month from work due to medical conditions. (Tr. 410). Plaintiff could walk, stoop, or climb very little if at all on some days. Plaintiff could occasionally sit and occasionally stand. (Tr. 410). Plaintiff's condition did not cause any pain. (Tr. 411). Plaintiff needed to elevate her legs above waist level due to swelling for four hours during the day and eight hours at night. (Tr. 411). Plaintiff did not need to lie down due to fatigue. Plaintiff would be off task 60% of the day due to condition. Plaintiff did not have any medication side effects that would interfere with ability to maintain focus and concentration. (Tr. 411). Plaintiff did not require an assistive device to ambulate. (Tr. 411). Plaintiff was occasionally precluded from maintaining attention and concentration for extended periods of time. Plaintiff had no problems with social interaction. (Tr. 411). Plaintiff's sleep was adversely affected due to obstructive sleep apnea. (Tr. 412). Plaintiff needed unscheduled breaks. (Tr. 412). Plaintiff had significant shortness of breath on exertion, significant peripheral edema, sleep apnea, and inability to ambulate effectively. Plaintiff could work no hours per day. (Tr. 413). Plaintiff could stand in a work day sixty minutes total and 15 minutes at one time. Plaintiff could sit 4 hours total in a work day and one hour at a time. Plaintiff could not lift anything on an occasional basis. (Tr. 413). Plaintiff needed to frequently elevate her legs during a workday. (Tr. 414).
The ALJ found Dr. Hiremath's opinions unpersuasive:
On December 4, 2019, Dr. Hiremath opined that the claimant would miss more than five days per month due to her medical condition; she can infrequently walk, stoop, and climb; she can occasionally sit and stand; she can occasionally lift and carry up to 10 pounds; she can frequently use her hands and reach overhead; she needs to elevate her legs four hours a day; she would be off task 60% of the day but her medications do not interfere with focus or concentration; she is occasionally precluded from performing activities within a schedule, from adapting to ordinary stress or changes in the workplace, and from maintaining attention and concentration for extended periods of time; she has no social interaction limitations; and she would need unscheduled break periods beyond normal breaks (Exhibit 4F). Dr. Hiremath then opined that the claimant has significant shortness of breath on exertion, significant peripheral edema, sleep apnea causing daytime drowsiness, and inability to ambulate effectively (Exhibit 4F). He opined that the claimant cannot work at all; she can stand 15 minutes at one time for 60 minutes in a workday; she can sit for 60 minutes at one time for 4 hours in a workday; she cannot lift, she can occasionally bend, stoop, balance, and raise her arms over shoulder level; she can frequently tolerate heat; and she needs to elevate her legs frequently (Exhibit 4F). The undersigned found Dr. Hiremath's opinions unpersuasive since they appear to overstate the claimant's symptoms when compared to the symptoms and physical findings reported in his treatment notes. For example, there is no evidence that the claimant is unable to ambulate effectively or that she has any mental limitations. In
addition, the claimant has failed to pursue a sleep study so obstructive sleep apnea has not been formally diagnosed. Finally, the claimant's course of treatment does not support such disabling limitations. The claimant attends routine follow up visits, during which it is documented that her cardiac condition is stable and her blood pressure is controlled with medication.(Tr. 38-39). Before finding this opinion unpersuasive, the ALJ had reviewed Dr. Hiremath's treatment notes and Plaintiff's other records. (Tr. 36-38). The following is a summary of pertinent records.
On May 19, 2017, Plaintiff was seen by Dr. Hiremath for the first time. (Tr. 324). Plaintiff had poorly controlled, long standing hypertension since she was sixteen years old. Plaintiff had morbid obesity. “She has no symptoms at all. She denied exertional shortness of breath or chest pain.” (Tr. 324). An April 2017 EF was less than 25%. (Tr. 324). Plaintiff was negative for fatigue. (Tr. 324). Diagnosis was congestive heart failure and hypertension. (Tr. 325). Exam was normal, except for obese. (Tr. 327). Medications were increased to try to bring down elevated blood pressures. (Tr. 328).
On June 9, 2017, Plaintiff was seen by Dr. Hiremath. (Tr. 329). Plaintiff was doing much better. Plaintiff had excellent blood pressure readings and no breathing problems. “She has no symptoms at all. She denies exertional shortness of breath or chest pain.” (Tr. 329). Plaintiff was negative for fatigue. (Tr. 329). Exam was normal in all categories including cardiovascular and pulmonary, except Plaintiff was obese. (Tr. 332).
On September 25, 2017, Plaintiff was seen by Dr. Hiremath. (Tr. 333). Plaintiff's blood pressures were excellent. “She has no symptoms at all. She denied exertional shortness of breath or chest pain.” “She is staying active; she is exercising.” (Tr. 333). Plaintiff was negative for fatigue. (Tr. 333). Exam was normal, except obese. (Tr. 336). EKG was normal. EF was 55-60%, which was a marked improvement and was normal. (Tr. 336). “She has good functional status.” Plaintiff's appointments were now to be six months apart instead of three. (Tr. 336).
On March 28, 2018, Plaintiff was seen by Dr. Hiremath. (Tr. 337). Plaintiff reported some fatigue related to taking her medication. Plaintiff denied exertional shortness of breath, chest pain, and edema. Plaintiff was exercising. (Tr. 337). Plaintiff was negative for fatigue. (Tr. 337). Exam was normal, except obese. (Tr. 340). Two medications were stopped to deal with some fatigue/tiredness related to medications. (Tr. 340).
On October 2, 2018, Plaintiff was seen by NP Snow of Dr. Hiremath's office. (Tr. 342). Plaintiff could walk half of a mile without exertional symptoms. Plaintiff did not have shortness of breath. Plaintiff complained of fatiguing easily. Plaintiff reported that she snores excessively. (Tr. 342). Exam was normal, except obese. (Tr. 345). Plaintiff was referred for a sleep study. (Tr. 345).
On November 2, 2018, Plaintiff was seen by NP Snow for an echo. (Tr. 358). EF was 5560%. (Tr. 359). Upon exam, Plaintiff had “JVP 3-4 cm above the sternal angle and 2+ pitting edema toes to midshin.” (Tr. 361). Plaintiff was “doing fair from a cardiac standpoint.” Plaintiff was to have a sleep study. (Tr. 362). There were no comments or medication changes related to the edema exam finding.
On February 4, 2019, Plaintiff was seen by Dr. Hiremath. (Tr. 363). Plaintiff complained of left upper quadrant pain in her abdomen. (Tr. 363). EF was 55-60%. (Tr. 363). Plaintiff was negative for fatigue. (Tr. 364). Upon exam, Plaintiff had “JVP 3-4 cm above the sternal angle and 2+ pitting edema toes to midshin.” (Tr. 367). Plan was the nitrates were causing heartburn and those were stopped. Plaintiff was stable and “on good medical therapy.” (Tr. 367).
On May 2, 2019, Plaintiff was seen by NP Snow. (Tr. 368). Plaintiff reported being able to walk slowly 200 yards without exertional symptoms. Plaintiff reported that she fatigues easily. “She has no lower extremity edema.” (Tr. 368). Upon exam, Plaintiff had “JVP 1-2 cm above the sternal angle and 1+ pitting edema toes to midshin.” (Tr. 372). Under plan, “she appears to be doing fairly well from a cardiac perspective.” Plaintiff never did the sleep study, it was reordered, and Plaintiff was informed of the benefits of treating sleep apnea. Plaintiff was to walk thirty minutes a day. (Tr. 373).
Plaintiff was seen by general practitioners other than specialist Hiremath and they generally noted “controlled” and/or “good control” of hypertension and congestive heart failure with some exams of trace or pitting edema, but no plans noted about such. (Tr. 388, 394).
The notes reflect what the ALJ purported them to note. The ALJ supported his finding of unpersuasive by reviewing the consistency and supportability factors of 20 C.F.R. § 404.1520c(b), (c); § 416.920c(b),(c), citing to Plaintiff's symptoms and findings in treatment notes. Plaintiff always had a normal gait and normal mental status. (Tr. 38-39). The ALJ noted Plaintiff was never diagnosed with sleep apnea and never received the sleep study that she often was given a referral. The ALJ appropriately noted Plaintiff was seen routinely- every three months and then twice a year- and not on an acute basis. (Tr. 38-39). The ALJ appropriately considered that Plaintiff's diagnosis were noted as stable and controlled with medication. (Tr. 39).
Under the deferential standard of review applicable here, substantial evidence is not a high threshold. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). The ALJ here performed the analysis under the applicable regulatory scheme and considered the factors most important to determining the persuasiveness of Dr. Hiremath's opinions. The ALJ cited to the record to support this finding. Such finding was supported by substantial evidence and followed the applicable regulatory law.
RFC
Plaintiff argues the ALJ failed to consider Plaintiff's fatigue and need to elevate her legs in formulating the RFC.
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “The 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).” SSR 96-8p, *7. “The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id. Additionally, “ ‘a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including ‘a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
The ALJ considered Plaintiff's complaints regarding fatigue and leg swelling, citing Exhibits 9E and 15E. (Tr. 36). The ALJ noted records of pitting edema in her left leg with no problems. (Tr. 37). The ALJ discussed notes regarding fatigue after taking medications and some medications were changed. (Tr. 37). The ALJ discussed notes from NP Snow about taking Lasix for edema and losing weight. The ALJ noted Plaintiff's reports at visits of walking half a mile without exertional symptoms but fatiguing easily. The ALJ noted Plaintiff never went for a sleep study despite numerous promptings. The ALJ noted that despite Plaintiff's reports of fatigue and edema, her specialist noted her condition was stable and later the timing of medications were changed due to fatigue complaints. (Tr. 37). The ALJ considered specifically that treatment notes reflected complaints of fatigue and edema, but doctors saw no need to make any changes. (Tr. 37). The ALJ found: “The claimant's obesity in combination with the claimant's cardiac impairments is reasonably related to the claimant's allegations of fatigue and limited mobility. In reviewing the claimant's allegations, the undersigned considered her weight as a contributing factor. As such, to address the claimant's impairments, the undersigned limited the claimant to the light exertional level with an option to change position once an hour, occasional climbing, frequent balancing, stooping, crouching, kneeling, and crawling, and limited exposure to heat, cold, humidity, and hazards.” (Tr. 37). The ALJ found further limitations were not supported by the record. (Tr. 37). The ALJ cited that Plaintiff had normal EF, denied symptoms, and conditions were controlled and stable with medication. (Tr. 37-38).
The ALJ supported the functional limitations found in the ALJ's RFC determination with discussion and citation to substantial evidence in the record. An RFC is “an administrative assessment made by the Commissioner based on all the relevant evidence in the case record.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230-31 (4th Cir. 2011) (citing 20 C.F.R. §§ 404.1546(c), 416.946(c)). The court does not reweigh the evidence. See Johnson v. Saul, No. 5:20-cv-47-KDW, 2021 WL 717250, at *10 (D.S.C. Feb. 24, 2021)(“Even if the evidence highlighted by Plaintiff could support a different result, the court's role is not to second-guess the ALJ's findings.”) Where there are two reasonable views of the conflicting evidence, the responsibility falls on the ALJ and it is not the court's duty to decide between them. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). The court cannot say that a reasonable mind would not reach this RFC in view of the totality of the evidence. Based upon the foregoing, substantial evidence supports the ALJ's RFC.
III. CONCLUSION
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, he has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be AFFIRMED.