Opinion
C/A No. 5:19-0214-BHH-KDW
03-31-2020
Adam Wayne Spradley, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pro se pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision the Commissioner of Social Security ("Commissioner"), denying his claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed. I. Relevant Background
A. Procedural History
Plaintiff protectively filed his application for DIB on May 13, 2015, alleging he became disabled on September 19, 2014. Tr. 191-92. His application was denied initially, Tr. 88, and upon reconsideration, Tr. 104, and Plaintiff requested a hearing before an administrative law judge ("ALJ"), Tr. 117-18. An administrative hearing was held on May 24, 2018 before ALJ Gregory Wilson, with Plaintiff represented by counsel. Tr. 42-77. ALJ Wilson issued an unfavorable decision on August 20, 2018. Tr. 15-35. Plaintiff requested review of the decision from the Appeals Council. Tr. 189-90. After granting Plaintiff additional time to file documents, the Appeals Council denied Plaintiff's request for review on December 19, 2018, making the ALJ's decision the final decision for purposes of judicial review. Tr. 1-6. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a pro se Complaint filed on January 24, 2019. ECF No. 1.
Although the Application Summary reflects a date of May 18, 2015, based on the Disability Determination and Transmittal Plaintiff's filing date is May 13, 2015. See Tr. 88.
B. Plaintiff's Background
Plaintiff was born in November 1978 and was 35 years old on his alleged onset date of September 19, 2014. Tr. 206. In his form Disability Report-Adult Plaintiff indicated that he completed three years of college. Tr. 210. He listed his past relevant work ("PRW") as home and garden sales associate, oil and energy regional operations manager, and oil and energy regional account manager. Tr. 211. Plaintiff stated that he stopped working on September 19, 2014 because his position "was terminated without prejudice." Tr. 210. Plaintiff indicated that his "condition keeps [him] from returning to the labor side of the construction." Id. Plaintiff noted that even though he stopped working for other reasons, his condition was severe enough to keep him from working on January 30, 2014, and his conditions caused him to make changes in his work activity on January 1, 2014. Id. Plaintiff identified his medical conditions as herniated disc, degenerative disc disease, osteoarthritis, sciatica, fractured talus (ankle inoperable), high blood pressure, chronic pain, ADHD, sleep disorder, and anxiety. Tr. 209. Plaintiff indicated he was 5'10" tall, weighed 195 pounds, and his conditions caused pain or other symptoms. Id.
In a November 9, 2015 Disability Report-Appeal, Plaintiff indicated a change in his condition that occurred September 22, 2015. Tr. 236. Plaintiff noted:
Regarding my ADHD/Depression/Mental Stability I was seen and have been seeing a Psychiatrist as appointed by my physician who has confirmed and he has given me ADHD Medication and seen that I am sick. His request to see me is 2 to 4 times [a] month which is really tough due to the financial situation I am in and I cannot get better without continuing treatment. My condition is compatible to that of PTSD from current events in my life and my inability to deal with such stress. He is more than willing to assist in your investigation. His name is James Wallace located in Augusta, GA.Id. Plaintiff also noted changes in his daily activities due to his physical and mental conditions. Tr. 242. He described the changes as follows:
I can barely get out of a seated position. Walking is a challenge and now I have to use a walking stick just to go to the restroom. Increased pain in all region of body where sciatic nerve press. I cannot get out to do social tasks any longer. Any movement agitated to the point of excruciating pain that never goes away. Have been diagnosed once again with having ADHD and told that my depressive state is comparable to that of someone that has been traumatized. I cannot sweep, vacuum, walk the yard or function daily. Taking a shower is a challenge and had to install bars to help keep from falling over when leg gives out.Id.
C. The Administrative Proceedings
Plaintiff appeared with counsel, Attorney Todd Johnson, at his administrative hearing on May 24, 2018. Tr. 42. Vocational Expert ("VE") William Stewart also appeared and testified. Id.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he was 39 years old, had a high school diploma, and had "some college." Tr. 46-47. Plaintiff testified that he was left-handed and lived alone, although his mother "stays there occasionally." Tr. 47. Plaintiff testified he last worked at Superheat FGH Services on September 19, 2014 and has not done any full- or part-time work since that time. Id. Plaintiff stated that when he stopped working he made a claim for unemployment benefits and collected 12 weeks of unemployment pay. Id. Plaintiff testified that he was not required to look for work because he had applied for disability; however, for the first few weeks until he had applied for disability he had to provide information on where he had applied for jobs. Tr. 47-48. Plaintiff stated that his family assisted him by providing money for living expenses. Tr. 48.
In response to questions from his attorney Plaintiff confirmed that he did not smoke, drink, or use illicit drugs. Tr. 48. Plaintiff confirmed that he received unemployment benefits until March 2015 and did not receive or apply for benefits after that date. Id. Plaintiff testified that his "main problem" for stopping work was because of pain in his lower back, and he stated that he had a herniated disk at L4, L5. Id. Plaintiff described his back pain as "uncomfortable, nagging pain that radiates into [his] legs and sometimes [his] arms but it's like a tingling and burning and it's just awful." Tr. 49. Plaintiff testified that he has pain every day and it was worse in his "right leg, [his] right upper quadrant in the front around to the back and then [his] lower left leg from the knee to [his] ankle." Id. Plaintiff described the pain in his right leg as "burning, stabbing and tingling all the time." Id. He stated that he has that pain every day. Plaintiff stated that his left leg had "more like a weakened sensation in [his] lower leg down and it could be from [his] ankle also being broke[n] still after 14 years . . . ." Id. Plaintiff stated he had that symptom in his left leg every day. Id. He also stated that the degree of pain depended on the activity and testified that the pain was greater in his right leg if he was sitting, and greater in his left leg if he was walking. Tr. 49-50. Plaintiff testified that he has fallen because "sometimes the left leg just gives out." Tr. 50. Plaintiff stated that he has an ankle brace and a "walking stick" that was not prescribed by a doctor. Id. Plaintiff stated that he used the cane to add support for his left leg and uses it if he has to walk 20-50 yards because his ankle will start to swell if he walks that much. Id. Plaintiff confirmed that Dr. Otting is the neurosurgeon who, three times, has recommended surgery. Tr. 51. Plaintiff stated that he has not had the surgery but wants it and, if it could be approved, he would have it. Id. Plaintiff also confirmed that he is being treated by Dr. Baker for pain management and is on a number of prescription narcotic medications that he takes on a daily basis. Id. Plaintiff stated that the medications sometimes cause nausea, and almost every day he gets tired, forgetful, and sometimes dizzy. Tr. 51-52. In addition to two narcotics, Plaintiff confirmed that he takes Lyrica and Gabapentin for nerve pain and they provide some relief. Tr. 52. Other than the medications, Plaintiff testified that he stays in a reclining position when he is trying to get relief from his back and leg problems. Id. Plaintiff testified that he is in the recliner "six to eight hours" during a normal day. Id. Plaintiff stated that was the most comfortable position he could get in to relieve the pain. Tr. 53. Plaintiff stated that his medications cause him to be drowsy, so he does not drive while on medication. Id. Plaintiff stated that he was not married and did not have any children. Id.
Plaintiff confirmed that his left ankle fracture occurred years ago, and his recent orthopedic treatment was for his right shoulder. Tr. 53. Plaintiff also confirmed that he had problems with his left foot and ankle while he was working, but since he has stopped working everything has gotten worse. Tr. 54. Plaintiff stated that he has swelling in his left ankle if walking a distance and that standing aggravates it. He testified that reclining helps with the pain and swelling, and his medications help with the pain. Tr. 55. Plaintiff stated that he has left ankle and foot pain every day. Id. Plaintiff testified that his right arm "goes to sleep and then it goes from a sleep position to a tingling position . . . ." Id. Plaintiff stated that doctors are not sure what is causing the problem but gave him an injection in his right shoulder. Id. Plaintiff testified that the injection relieved the sensation until he used the arm, then the problem returned. Tr. 55-56. Plaintiff testified that he has been diagnosed with carpal tunnel syndrome in both arms, but the left arm is worse. Tr. 56. Plaintiff testified he has numbness and tingling in his fingers every day. Id. Plaintiff stated his shoulder pain "feels like a toothache in your shoulders" and he said he has had that pain since December 2017. Id. Plaintiff testified that his shoulder pain is made worse by lifting above his head and behind his back, or if he is propped up with his elbow. Tr. 57. Plaintiff described his shoulder pain as a "constant nagging" pain and testified that his medications provide some relief. Id. Plaintiff testified that he has muscle spasms in his lower back almost every day for which he takes the muscle relaxer Robaxin. Tr. 57-58. When asked what movement causes muscle spasms Plaintiff testified: "Twisting, if I lay in one position too long, if I stand on my leg, if I stand too long in the right, mainly in the right lower back is where it spasms . . . ." Tr. 58. Plaintiff stated that he takes the muscle relaxers daily, but he tries to "keep it down to one or two a day, though." Id. Plaintiff stated the muscle relaxers make him drowsy and put him to sleep. Id.
Plaintiff testified that he can sit comfortably in a straight-back chair for only 15-20 minutes, and after that the pain gets worse in his lower back and starts radiating down his right leg. Tr. 58. Plaintiff stated that he can stand comfortably for maybe 15 minutes and after that his leg feels like it will "give out" and the pain gets worse. Tr. 59. Plaintiff testified that he has more back pain when standing. Id. Plaintiff testified that he could walk 50 yards and has the same symptoms when walking. Plaintiff stated that with walking he has more pain in his left ankle and he gets a burning sensation in his right back and right leg. Id. Plaintiff testified that he can lift three to five pounds. Tr. 60. With regard to the ankle brace, Plaintiff testified that whenever "any swelling appears" he puts on the brace. Plaintiff stated that Dr. Baker prescribed the brace "a while back." Id. Plaintiff confirmed that he has been taking narcotic medications for a while, he takes them responsibly, and all of his drug screens have been clear. Id.
Plaintiff testified that due to his physical injuries he has major depression and anxiety; however, his mental impairments have gotten better. Tr. 61. Plaintiff testified that he leaves the house "a couple of times a week" to go to the store. Id. He stated that he was diagnosed with ADHD ten years ago, but it never kept him from working and he could do his job. Tr. 61-62. Plaintiff testified that he does not cook major meals anymore, and just does microwavable meals or meals prepared by his family. Tr. 62. Plaintiff testified that he does not do household chores and his mother does his laundry. Id. He stated that he cannot stand long enough to wash a lot of dishes, but he can wash a few. Tr. 62-63. Plaintiff testified that he does not do any yard work, vacuuming, or mopping. Tr. 63. Plaintiff stated that on a typical day he gets up in the morning, takes his medicine, takes the dog out, feeds the dog, and then gets in his recliner and tries to get comfortable. He stated that now he tries to read instead of watching TV. Id. Plaintiff testified that his mother does the major grocery shopping and his family assists with bathing the dog or he uses a spray-on dry shampoo. Tr. 63-64. Plaintiff stated that he is not a member of any organizations or clubs, he does not have any hobbies that he can do, he does not attend church regularly because he is unable to sit long enough, and he does not have any recreational activities. Tr. 64.
In response to questions from the ALJ, Plaintiff testified that he has not had any surgery on his back and has not had any surgery for carpal tunnel. Tr. 64. Regarding breathing problems, Plaintiff testified that he has an inhaler and a nebulizer for occasional attacks. Id. Plaintiff stated that he last used his inhaler or nebulizer three months ago. Id. When asked if he has had to go to the emergency room in the past 12 months for any breathing problems Plaintiff testified that he was not sure if it was within 12 months, but he did have to go because of a bad case of bronchitis that turned into pneumonia. Tr. 64-65. Plaintiff confirmed that he has not had surgery on his right shoulder. Tr. 65. Plaintiff testified that he weighed 210 pounds and was 5'10" tall. Plaintiff stated that his weight did not cause him any problems or limitations. Id. Plaintiff testified that he did not have any problems with his neck. Id. Plaintiff stated that he has never been hospitalized for depression or anxiety. Id.
2. Vocational Expert Testimony
Vocational Expert ("VE") Stewart also testified at the administrative hearing. Tr. 66. With regard to Plaintiff's PRW at Superheat Services, the VE noted that it appeared Plaintiff started out as a welder/technician with construction services in the oil and energy field, and then progressed to project manager, regional operations manager, and regional accounts manager. Tr. 67-68. Plaintiff confirmed that progression but clarified that he did not do actual welding. Tr. 68. Plaintiff described that work as the "installation of ceramic heating elements around height and heating it up to a certain degree to slow the molecules down for welding." Id. The VE identified Plaintiff's PRW starting with project manager in 2003 and the closest description in the Dictionary of Occupational Titles ("DOT") was superintendent, construction, DOT number 182.167-026, light exertion, specific vocational preparation ("SVP") of 7 which is skilled work. Tr. 68-69. The VE noted that Plaintiff performed the job as heavy to very heavy work. Tr. 69. The VE identified Plaintiff's work as regional operations manager as program manager, DOT number 189.167-030, sedentary, SVP of 8, skilled, performed as light work; and the job of regional accounts manager would be account executive, DOT 164.167-10, sedentary, SVP of 8, skilled, performed as light. Tr. 69-70.
The ALJ asked the VE to assume a hypothetical individual with the same age, educational background, and past work experience as Plaintiff. Tr. 70. The ALJ asked the VE to
[f]urther assume that this individual retains capability of lifting 20 pounds occasionally, 10 pounds frequently, can stand six of eight hours, walk six of eight hours and sit six of eight hours. Pushing and pulling in the lower extremity would be frequent, ropes, ladders and scaffolds would be occasional, frequent climbing
ramps and stairs, frequent balancing, stooping, kneeling, crouching and crawling, frequent handling and fingering, overhead reaching right upper extremity frequent, fumes, odors, gas, dust, unventilated environments avoid concentrated exposure, hazards, avoid concentrated exposure . . . .Id. The ALJ asked if such an individual could perform any of Plaintiff's PRW as actually performed or as generally performed in the national economy. Id. The VE responded that the individual could perform the "regional operations manager or the program manager and the regional accounts manager or the account executive." Id. The VE ruled out the project manager job as performed but did not rule it out as generally performed. Id.
The VE also revisited the position of ceramic installation worker, noting that the record indicated that job ended in December 2003. Tr. 71. The VE identified the job as construction worker, DOT number 869.664-014, heavy exertion, SVP of 4 which is semiskilled. The VE noted that Plaintiff indicated he lifted 100 pounds or more. Id. The VE testified the job would be ruled out under the ALJ's proposed RFC. Tr. 72. The VE reiterated that the jobs that would fit the description would be the regional operations manager/program manager and the regional accounts manager/account executive. Id. The project manager/superintendent construction would be ruled out. Id.
The ALJ asked if there would be other work available and the VE affirmed that there would be and identified the following representative job: quality control tester, DOT 559.367-010, light, SVP of 4, semiskilled, nationally 118,000 jobs, cross-referenced in the DOT under inspector, general. Tr. 72. The VE confirmed that the individual would have transferable skills. Tr. 73. The ALJ asked the VE to identify available unskilled work and the VE provided the following representative jobs: office helper, DOT 239.567-010, light, SVP of 2, unskilled, nationally 165,000 jobs; and inspector and hand packager, DOT 559.687-074, light, SVP of 2, unskilled, nationally 110,000 jobs. Id. The ALJ asked the VE if his opinion was consistent with the DOT and Social Security Ruling 2000-4p, and the VE confirmed that it was consistent but that overhead reaching was not covered by the DOT. Id. The VE stated that his testimony was based on his "education, training and experience and [his] study of jobs in the world of work over the years." Id. The ALJ asked the VE to review the occupations he identified in response to the hypothetical and asked, with the exception of overhead reaching, were there any conflicts with the DOT requirements and limitations. Tr. 74. The VE responded there were no conflicts. Id.
For his second hypothetical the ALJ posed the same limitations as in the first hypothetical with the following modification:
[T]his individual would have absences from the work station on a daily basis the duration of which would be in the sole discretion of this hypothetical individual. By way of illustration this individual may experience pain. This individual may have episodes of numbness or tingling that would cause falls during the work day or this individual may have the need to elevate legs during the work day because of swelling or just not remember things that would cause this person to be off task. As I said it would be in the sole discretion as to the duration but by way of illustration it could be minutes one day. It could be multiple times for minutes. It could be hours another day and, again multiple times. It could be an entire day, as needed by this individual.Id. The VE responded that it would rule out all the representative jobs, all past work, and there would not be any other jobs. Tr. 74-75.
Plaintiff's counsel confirmed that the ALJ included both absences and off task in the hypothetical. Tr. 75. Counsel asked the VE if the jobs listed in hypothetical one would be affected if the person was limited to occasional overhead reaching with the right upper extremity and the VE testified the jobs would not be affected. Id. Counsel asked if the jobs listed in hypothetical one would be affected if the person was limited to no overhead reaching with the right upper extremity. The VE testified that as far as the numbers he gave, he did not think it would be affected but stated "[m]aybe a small percentage but nothing significant." Id. Counsel had no further questions for the VE. Id.
D. The ALJ's Findings
In his August 20, 2018 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.Tr. 20, 26-27, 34-35. II. Discussion
2. The claimant has not engaged in substantial gainful activity since September 19, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: disorders of the lumbar spine, disorders of the left ankle, carpal tunnel syndrome, ulnar neuropathy, asthma, and disorders of the right shoulder (20 CFR 404.1520(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 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). He can lift 20 pounds occasionally and 10 pounds frequently. He can sit, stand and walk for six hours in an eight-hour workday. He can frequently push and pull with the left lower extremity. He can occasionally climb ladders, ropes and scaffolds. He can frequently climb ramps and stairs. He can frequently balance, stoop, kneel, crouch and crawl. He can frequently engage in bilateral handling and fingering, and he can frequently engage in overhead reaching with the right upper extremity. He should avoid concentrated exposure to fumes, odors, gases, dust and unventilated environments. He should avoid concentrated exposure to hazards.
6. The claimant is capable of performing past relevant work as a project manager/superintendent as generally performed; and regional operations/manager/program manager and regional accounts manager/account executive as actually performed. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from September 19, 2014, through the date of this decision (20 CFR 44.1520(f)).
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," defined as:
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 a continuous period of not less than 12 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant 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 past relevant work ("PRW"); and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. 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).
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, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
Plaintiff brought this action pro se. Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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 v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (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, 428 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 the conclusion is rational. See Vitek, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
In his Complaint, Plaintiff contends that the Commissioner's decision was based on legal error and refers to his "Attorney Brief." ECF No. 1 at 3. The Appeals Council considered the brief of Plaintiff's attorney when making its decision and "found that the reasons do not provide a basis for changing the Administrative Law Judge's decision." Tr. 1, 6. In his pro se Brief, Plaintiff argues that the opinions of his doctors and the opinions of the vocational expert at the administrative hearing support his inability to perform any work. Pl.'s Br. 1, ECF No. 26. Defendant contends that substantial evidence supports the ALJ's finding that Plaintiff was capable of performing his past work as generally performed at the light exertional level. Def.'s Br. 10, ECF No. 32.
1. The ALJ's Residual Functional Capacity ("RFC") Assessment
An RFC "is the most [a claimant] can still do despite [his] limitations" and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R. § 404.1545(a)(1). In assessing RFC, an ALJ should scrutinize "all of the relevant medical and other evidence" however, the claimant is "responsible for providing the evidence [the ALJ] will use to make a finding about [her] residual functional capacity." 20 C.F.R. § 404.1545(a)(3). SSR 96-7p requires that, prior to considering Plaintiff's subjective complaints, the ALJ must find there is an underlying impairment that has been established by objective medical evidence that would reasonably be expected to cause the subjective complaints of the severity and persistence alleged. Only then is the ALJ to move to the second step—consideration of the record as a whole, including both objective and subjective evidence, to assess the claimant's credibility regarding the severity of her subjective complaints, including pain. See SSR 96-7p, 1996 WL 374186; see also 20 C.F.R. § 416.929; Craig v. Chater, 76 F.3d 585, 591-96 (4th Cir. 1996).
The requirement of considering a claimant's subjective complaints does not mean the Commissioner must accept those complaints on their face. The ALJ may consider the claimant's credibility in light of his testimony and the record as a whole. If he rejects a claimant's testimony about his pain or physical condition, the ALJ must explain the basis for such rejection to ensure that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (quoting Smith v. Schweiker, 719 F.2d 723, 725 n.2 (4th Cir. 1984)). "The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186 at *2.
Here, the ALJ determined that Plaintiff had the severe impairments of disorders of the lumbar spine, disorders of the left ankle, carpal tunnel syndrome, ulnar neuropathy, asthma, and disorders of the right shoulder. Tr. 20. At Step Two of the sequential evaluation process the ALJ analyzed the medical evidence regarding Plaintiff's physical and mental impairments, including the results of physical examinations, and found that Plaintiff had the RFC to perform light work. Tr. 21-26. The ALJ's RFC included the following limitations:
He can lift 20 pounds occasionally and 10 pounds frequently. He can sit, stand and walk for six hours in an eight-hour workday. He can frequently push and pull with the left lower extremity. He can occasionally climb ladders, ropes and scaffolds. He can frequently climb ramps and stairs. He can frequently balance, stoop, kneel,
crouch and crawl. He can frequently engage in bilateral handling and fingering, and he can frequently engage in overhead reaching with the right upper extremity. He should avoid concentrated exposure to fumes, odors, gases, dust and unventilated environments. He should avoid concentrated exposure to hazards.Tr. 27. The ALJ stated that in making this finding he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" and he also considered the opinion evidence. Id. The ALJ outlined Plaintiff's allegations of back pain, back spasms, tingling and burning sensation in his arms, pain and weakness in his legs, pain and swelling in his left ankle, carpal tunnel syndrome, problems with his right shoulder, and medication side effects. Tr. 27-28. The ALJ also considered Plaintiff's testimony from the administrative hearing regarding his postural limitations and his mental impairments. Tr. 28. In response to Plaintiff's testimony regarding his limitations on lifting, the ALJ cited to an August 27, 2013 medical record from Evans Urgent Care. Id. In that record Plaintiff complained of left ankle pain and having trouble walking distances. Tr. 646. However, the ALJ also noted that Plaintiff relayed to provider that the day before "he carried 45lbs up stairs and now he can't move." Id. Regarding Plaintiff's cited sitting tolerances, the ALJ noted that Plaintiff "sat without apparent discomfort at the hearing from 11:35 AM until 12:25 PM." Tr. 28. The ALJ also cites to treatment records and examinations that do not support Plaintiff's testimony that he had continual daily pain, weakness, falling, and daily swelling. Id. The ALJ noted that he was not suggesting Plaintiff "is without significant impairments that are limiting but they are not to the degree reported at the hearing." Id.
The ALJ cites to Exhibit 26F to support an inconsistency in Plaintiff's testimony regarding his ability to sit, stand, and walk. Tr. 28. The ALJ states that Plaintiff reported going to Virginia; however, the undersigned was unable to find any reference of travel in the cited record.
The ALJ determined that, "after careful consideration of the evidence," Plaintiff's claims regarding the intensity, persistence and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. 28. The ALJ then considered Plaintiff's claims, as appropriate, during his discussion of Plaintiff's RFC.
a. Plaintiff's Back Pain
The ALJ cited to a September 2014 MRI that showed degenerative disc spacing narrowing, records showing Plaintiff experienced back pain with pain radiating into his lower extremities, and a surgical recommendation that was denied. Tr. 28-29. The ALJ stated that he accounted for Plaintiff's back impairment by limiting him to light work with postural limitations. Tr. 29. The ALJ found that diagnostic testing and a surgical recommendation "do not in and of themselves prove the claimant is and has been disabled since his alleged onset date." Id. The ALJ cited to records that noted Plaintiff's muscle strength "at 5/5 or near 5/5, and he has generally maintained good musculoskeletal range of motion." Id. The ALJ also noted that Plaintiff's back impairment was monitored at University Neuroscience ("UN") and was generally treated conservatively "mainly consisting of the administration of medications." Id. The ALJ noted that Plaintiff alleged he could lift only three to five pounds, but a February 2017 record indicated that he complained of increased back pain after breaking beaver dams. Id., see Tr. 759.
b. Plaintiff's Ankle Impairment
The ALJ noted that Plaintiff testified he could walk only about 50 yards, but that there was "no medical evidence establishing that he has experienced a significant disturbance in his gait." Tr. 30. The ALJ confirmed that objective evidence in the form of a 2013 x-ray showed degenerative arthritic changes in his left foot and ankle, and a 2017 x-ray showed "lateral soft tissue swelling with post-traumatic bone fragments and talar bone spur." Id. The ALJ noted that a 2015 physician examination found Plaintiff had normal range of motion in his ankles. Id. The ALJ indicated that he addressed Plaintiff's ankle impairment in the RFC assessment by limiting Plaintiff to only light work. "It specifically addresses the left ankle impairment by finding that he has only been able to frequently engage in pushing and pulling with the left lower extremities. It also restricts his ability to climb ladders, ropes and scaffolds." Id.
c. Plaintiff's Shoulder Impairment
The ALJ considered Plaintiff's right shoulder impairment noting that in March 2018 Plaintiff was "diagnosed with right shoulder impingement and pain, suspect possible superior labral disruption, for which he was offered an injection, physical therapy and anti-inflammatory medications." Tr. 30. The ALJ noted that there was "no diagnostic testing evidencing a disabling right shoulder impairment." Id. The ALJ also noted that Plaintiff testified he had not had surgery on his shoulder and, moreover, there was no evidence supporting Plaintiff's contention that he could lift only three-to-five pounds. Id. The ALJ stated that his RFC assessment considered Plaintiff's shoulder impairment by limiting him to light work and it "also restricts his ability [to] reach overhead with his right upper extremity." Id.
d. Plaintiff's Carpal Tunnel Syndrome
The ALJ noted the Plaintiff had been diagnosed with carpal tunnel syndrome in November 2017, and a nerve conduction study in January 2018 showed "mild bilateral ulnar neuropathy at the elbow and mild left carpal tunnel syndrome." Tr. 30. The ALJ noted that Plaintiff had not undergone surgical intervention for his carpal tunnel syndrome and that there was no evidence of record that found Plaintiff unable to engage in substantial gainful activity. Id. The ALJ stated that his RFC assessment included "specific limitations addressing the claimant's ability to use his hands by limiting him to frequent handling and fingering." Id.
e. Plaintiff's Asthma
The ALJ addressed Plaintiff's asthma impairment and noted that there was "not much evidence of record showing treatment for asthma." Tr. 30. The ALJ also cited to Plaintiff's testimony at the administrative hearing that he had last used his nebulizer three months before the hearing. Id. The ALJ stated that despite these findings he considered the impairment severe and "the RFC accounts for the condition by imposing environmental limitations." Id.
f. Plaintiff's Weight/Neck
The ALJ noted that at the administrative hearing Plaintiff testified that his weight does not cause him any limitations or problems, and his neck does not cause him any problems. Tr. 30. Accordingly, the ALJ deemed these impairments non-severe. Id.
g. Plaintiff's Mental Impairments
The ALJ considered Plaintiff's mental functioning at Step Two, using the special technique for evaluating mental impairments to find that Plaintiff's medically determinable mental impairments were non-severe. Tr. 25. As part of his reasoning for his RFC assessment the ALJ cited to Plaintiff's medical records from 2015 through 2018. Tr. 31. The ALJ noted that mental exams showed that despite diagnoses for anxiety and depression, Plaintiff was mentally alert, his memory and cognition were within normal limits, and with medication his attention, concentration and memory were intact. Id. The ALJ found:
The regulations provide steps that must be applied in evaluating mental impairments. See 20 C.F.R. § 404.1520a. The ALJ must follow a "special technique" to determine the severity of a claimant's mental impairments. 20 C.F.R. § 404.1520a(a). Under the special technique, the ALJ first evaluates the claimant's pertinent symptoms, signs, and laboratory findings to substantiate the presence of a medically determinable mental impairment. Id. § 404.1520a(b)(1). Then the ALJ rates the claimant's degree of functional limitation resulting from the impairment. Id. § 404.1520a(b)(2). The rating determines whether the claimant's impairment is severe or not severe. Id. § 404.1520a(d). The ALJ considers four broad functional areas in order to rate a claimant's degree of functional limitation: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. Id. § 404.1520a(c)(3); see id. Pt. 404, Subpt. P, App. 1, § 12.00C. The ALJ considers factors such as "the quality and level of [the claimant's] overall functional performance, any episodic limitations, the amount of supervision or assistance [the claimant] require[s], and the settings in which [the claimant is] able to function." Id. § 404.1520a(c)(2); see id. Pt. 404, Subpt. P, App. 1, § 12.00C-H. The ratings for the functional areas consist of a five-point scale: none, mild, moderate, marked, and extreme. Id. § 404.1520a(c)(4). Here the ALJ assessed Plaintiff with "mild" limitations in all four functional areas. Tr. 25.
There is no evidence that [Plaintiff] has experienced psychotic behavior during his course of treatment. He has not required hospitalization as a result of his mental impairments. From a mental standpoint, he has been able to drive a vehicle, prepare simple meals, handle his financial affairs, attend to his daily activities, shop in stores, watch TV, and occasionally drive or ride in the country, or go to the movies (3E/5).Tr. 31-32. The ALJ noted that due to "some situational and financial pressures" Plaintiff has experienced periods of worry, frustration and difficulty sleeping, but the ALJ stated that these symptoms appeared to be temporary. Tr. 32. The ALJ determined that there was "no evidence that the mental impairments have had more than a minimal impact on his ability to perform physical or mental work activities." Id.
h. Discussion
The undersigned finds the ALJ's review of the record as a whole, including his articulated reasons for discounting Plaintiff's claims, supports a finding that the ALJ's RFC assessment should be affirmed. See Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000) (noting ALJ may discount a claimant's complaints if inconsistencies are apparent in the evidence as a whole). Plaintiff has not established any error by the ALJ on this point. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (finding claimant bears the burden of proof and production through step four of the sequential evaluation). "Reviewing courts are restricted to the administrative record in performing their limited function of determining whether the [Commissioner's] decision is supported by substantial evidence." Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir. 1972); see also 42 U.S.C. § 405(g).
As noted by the Appeals Council, to the extent Plaintiff's conditions worsened after the ALJ's decision, his remedy is to file a new application for disability. Tr. 2; see also Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) ("Additional evidence showing a deterioration in a claimant's condition significantly after the date of the Commissioner's final decision is not a material basis for remand, although it may be grounds for a new application for benefits.").
2. ALJ's Consideration of Medical Opinions
If a treating source's medical opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant's] case record" it will be given controlling weight. 20 C.F.R. § 404.1527(c)(2) ; Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding a physician's opinion should be accorded "significantly less weight" if it is not supported by the clinical evidence or if it is inconsistent with other substantial evidence). The Commissioner typically accords greater weight to the opinion of a claimant's treating medical sources because such sources are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See 20 C.F.R. § 404.1527(c)(2). However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Rather, "[c]ourts evaluate and weigh medical opinions pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005); 20 C.F.R. § 404.1527(c). The rationale for the general rule affording opinions of treating physicians greater weight is "because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant." Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)).
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 404.1527 is applicable.
However, the ALJ has the discretion to give less weight to the opinion of a treating physician when there is "persuasive contrary evidence." Mastro, 270 F.3d at 176. SSR 96-2p requires that an unfavorable decision contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. In undertaking review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence.
Plaintiff asserts that the opinions of doctors would support his claim for disability. Pl.'s Br. 1. In his Decision the ALJ considered the opinions of the State agency physicians and psychologists, a consulting physician, and Plaintiff's treating physician. Tr. 32-33.
a. State Agency Physicians
On initial consideration of Plaintiff's claim, State agency physician Dr. Donna Stroud completed a Physical RFC Assessment of Plaintiff dated August 21, 2015. Tr. 83-85. She indicated that Plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk for a total of 6 hours in an 8-hour workday with normal breaks, sit for about 6 hours in an 8-hour workday with normal breaks, and push/pull an unlimited amount other than the amount shown for lifting and/or carrying. Tr. 83. Dr. Stroud based these limitations on Plaintiff's complaints of back pain, osteoarthritis, and ankle pain; 2013 x-rays of Plaintiff's spine and ankles; 2014 MRI of Plaintiff's spine; and a July 2015 examination. Tr. 83-84. Dr. Stroud indicated Plaintiff could frequently climb ramps/stairs; frequently climb ladders/ropes/scaffolds; and frequently balance, stoop, kneel, crouch, and crawl. Tr. 84. Dr. Stroud indicated Plaintiff had no manipulative, visual, or communicative limitations; however, she indicated Plaintiff should avoid concentrated exposure to hazards due to his pain prescriptions. Tr. 84-85. As part of her additional explanation, Dr. Stroud noted that Plaintiff's reported symptoms and statements were not entirely credible as the "objective evidence in the XR/MRIs [plus] recent exam does not support the alleged severity reported by [claimant]. Though MDI [medically determinable impairment] exists and can be expected to produce some limitation, work as described in the RFC not precluded." Tr. 85.
On reconsideration of Plaintiff's claim, Dr. Stephen Burge completed a Physical RFC Assessment of Plaintiff on April 5, 2016. Tr. 99-101. Dr. Burge's RFC was identical to Dr. Stroud's earlier RFC assessment.
The ALJ considered these opinions that limited Plaintiff to medium level work and gave the opinions "some weight." Tr. 32. The ALJ stated that he did not give the opinions more weight because he found that "the record as a whole shows the claimant is more limited from an exertional standpoint than is indicated in the aforementioned determinations." Id. The ALJ, however, gave great weight to the nonexertional limitations contained in the opinions. Id.
b. State Agency Psychologists
As part of the initial claim determination, on August 8, 2015, Michael Neboschick, PhD completed a Psychiatric Review Technique ("PRT") assessment of Plaintiff related to his impairment of ADD/ADHD. Tr. 81-82. Dr. Neboschick determined that based on his mental impairment Plaintiff had no restriction of his activities of daily living; no difficulties maintaining social functioning; mild difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation. Tr. 81. As part of his additional explanation, Dr. Neboschick noted that Plaintiff was not in any mental health treatment, was not prescribed any psychotropic drugs, and there was no indication of a diagnosis of anxiety or problems with memory, concentration or following directions as stated by Plaintiff. Tr. 82. Dr. Neboschick also noted that Plaintiff indicated his activities of daily living were compromised by his physical conditions and that he "manages his self care, prepares quick meals, performs light [household] tasks, drives, shops, manages his finances, and interacts. He indicates that he is able to deal w[ith] stress quite well." Id.
On reconsideration, Michael Hammonds, PhD, completed a PRT assessment of Plaintiff on April 4, 2016. Tr. 96-98. Dr. Hammonds' assessment included the medically determinable mental impairments of ADD/ADHD and anxiety disorders. Tr. 96. Dr. Hammonds also indicated that Plaintiff had no restriction of his activities of daily living; no difficulties maintaining social functioning; mild difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation. Tr. 97. Dr. Hammonds noted that Plaintiff's symptoms are consistent with ADHD and anxiety disorder. Tr. 98. He further commented as follows:
[Claimant's] reports are partially credible in that the [claimant's] impairments could reasonably be expected to produce the alleged symptoms; however, the intensity, persistence, and limiting effects do not impose marked functional restrictions. Primary restrictions arise from [claimant's] physical complaints. Mental symptoms do not impose additional severe restrictions. [Claimant] consistently reports a positive response to ADHD meds and a decrease in mental symptoms when meds are taken. Frequency of mental treatment is directly contradicted by Dr. Wallace's record. [Claimant] last saw the [treating provider] on 10-30-15. When Dr. Wallace submitted his records on 1-12-16, he had not subsequently seen the [claimant]. No MSO is in file. Impairment is not severe for mental purposes.Id.
The ALJ considered these opinions and gave them "great weight" finding that both determinations were well supported by the record. Tr. 32. To support his finding the ALJ cited to 2018 records from UN, Aiken Psychiatric and Psychotherapy, and Orthopaedic Associates, and a January 2014 exam record from Evans Urgent Care that showed Plaintiff had normal mood, thought content, and behavior and that he had stopped taking any psychiatric medications. Id.
c. Consulting Physician
On July 28, 2015, Dr. Stephen Smith evaluated Plaintiff to provide information for the State Disability Office. Tr. 370-72. Dr. Smith performed a physical examination of Plaintiff. As part of his examination of Plaintiff's spine and extremities, Dr. Smith found that Plaintiff had normal range of motion in his shoulders, elbows, wrists, and hands with 5/5 grip strength and good gross and fine manipulative skills. Tr. 372. Examination of Plaintiff's lumbar spine revealed "a mild decrease in flexion, 70 degrees, but normal lateral flexion and mild decrease in extension, 15 of 20 degrees." Id. Dr. Smith determined Plaintiff had normal range of motion in his hips, knees, and ankles, noting that Plaintiff was "able to squat down 100% of the way without much difficulty." Id. Dr. Smith noted that Plaintiff had 5/5 muscle strength in all his proximal muscle groups, straight leg tests were negative, and there was no swelling in the ankle. Id. Dr. Smith's neurologic examination was normal, and he found no sensory deficits. Id. In the "Impressions" section of the report, Dr. Smith determined: "Though, I do not discount the seriousness of a herniated disk as well as a fractured tibia, based on my exam findings today, I do not find enough evidence to support a functional limitation." Id.
The ALJ gave "great weight" to Dr. Smith's report "given his report was issued in July 2015 and he did not have the benefit of a full and complete record (Exhibit 4F)." Tr. 33. The ALJ noted that although Dr. Smith was unable to find enough evidence to support a functional limitation, he could not accord that opinion "any weight" because it was not consistent with the medical history and diagnostic tests. Id. The ALJ also noted that Dr. Smith examined Plaintiff only once and was not a treating source. Id.
d. Treating Physician
On November 1, 2017, Dr. David Baker completed a Medical Release/Physician's Statement regarding Plaintiff. Tr. 787-88. In the section labeled "Personal Disability" Dr. Baker indicated that Plaintiff's disability was permanent and that he is "unable to work, or participate in activities to prepare for work." Tr. 787. In the section labeled "Diagnosis" Dr. Baker noted that Plaintiff's primary disabling diagnosis was "Lumbar Herniated Disc", his secondary disabling diagnosis was "Low Back Pain", and Plaintiff's other disability was ADHD. Tr. 788.
The ALJ gave "little weight" to Dr. Baker's opinion that Plaintiff is permanently disabled and unable to work. Tr. 33. The ALJ recognized Dr. Baker as a treating source but found that his opinion was not well supported by the record and there were no diagnostic test results of record to support the opinion. Id. The ALJ also found that "Dr. Baker's own medical records, and the record as whole, do not support his opinion." Id. The ALJ cited to Dr. Smith's examination, Dr. Baker's records from 2016 and 2017, and March 2018 records from Orthopaedic Associates of Augusta. Id. The ALJ also stated that Dr. Baker's opinion was "conclusory, as it simply states an opinion without any medical evidence supporting the opinion." Id. The ALJ notes that Dr. Baker did not complete the portion of the Physician's Statement regarding Plaintiff's exertional and postural limitations contained in Part B labeled Activity Restrictions. Id. However, the undersigned notes that because Dr. Baker checked the box indicating Plaintiff is unable to work, he was instructed to skip Part B and complete Part C—which is what he did. See Tr. 787-88. As his final consideration of Dr. Baker's opinion, the ALJ noted that his opinion was "strictly reserved for the Commissioner." Tr. 33.
e. Discussion
While an ALJ is under no obligation to accept any medical opinion, he must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). "'[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ 'give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity." Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015). "When, as here, an ALJ denies a claimant's application, the ALJ must state 'specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision." Sharp v. Colvin, 660 F. App'x 251, 257 (4th Cir. 2016). In Sharp, the Fourth Circuit determined that the "ALJ did not summarily conclude that [the doctor's] opinion merited little weight" because the ALJ explained why he discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id.
Here, as required by SSR 96-2p, the ALJ's decision contained specific reasons for the weight given to each of the medical opinions. The responsibility for weighing the evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d at 589. The court is not to weigh evidence or substitute its judgment for that of the Commissioner but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied). Based on the foregoing, the undersigned recommends a finding that substantial evidence supports the ALJ's findings regarding the medical opinion evidence.
3. ALJ's Consideration of the VE's Testimony
Plaintiff argues that the ALJ ignored the testimony of the VE at the administrative hearing who, according to Plaintiff, stated that there were no duties or jobs that Plaintiff could do. Pl.'s Br. 1. The Commissioner contends that "the hearing transcript shows that the VE testified the Plaintiff could not return to his former heavy work as a construction worker given the residual functional capacity the ALJ found, but was capable of performing his past work at the light exertional level, as generally performed in the economy (Tr. 71-72)." Def.'s Br. 12.
"The purpose of bringing in a vocational expert is to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); see §§ 404.1560(b)-(c) and 404.1566(e). The ALJ may pose hypotheticals to the VE that "fairly set out all of [the] claimant's impairments." Walker, 889 F.2d at 50; see also Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005) (holding that hypotheticals must "adequately" describe the claimant's impairments). However, the hypotheticals posed by the ALJ need only reflect those impairments supported by the record. Russell v. Barnhart, 58 F. App'x 25, 30 (4th Cir. 2003) (unpublished) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). Furthermore, an ALJ is not required to accept the answers a VE gives to a hypothetical that contains limitations not ultimately adopted by the ALJ. See Hammond v. Apfel, 5 F. App'x 101, 105 (4th Cir. 2001) (unpublished).Smith v. Colvin, No. 4:12-CV-03588-DCN, 2014 WL 1159056, at *3 (D.S.C. Mar. 20, 2014). The Fourth Circuit has held that "[b]y presenting a hypothetical, the ALJ was not making findings of fact" and therefore could ask the VE contradictory hypotheticals and then decide which scenario "most closely fit the evidence of record." Davis v. Apfel, 162 F.3d 1154 (4th Cir. 1998).
At the May 2018 administrative hearing, the ALJ posed two different hypotheticals to the VE. The first hypothetical considered the full range of light work with some limitations, and the VE testified that the individual could perform Plaintiff's past work of regional operations manager/program manager and regional accounts manager/account executive as generally performed and other representative work of quality control tester, office helper, and inspector/hand packager. Tr. 70-72. The ALJ's second hypothetical was also for light work but included a limitation of absences from the workstation/off-task. Tr. 74. Under that scenario the VE testified the individual would be unable to perform Plaintiff's past work or any other work. Id.
The ALJ's ultimate RFC assessment was based on the first hypothetical to the VE—light work with some postural and environmental limitations. Tr. 27. As noted above, under that scenario the VE testified Plaintiff would be able to perform two of his three past jobs and could also perform other work available in the national economy. Tr. 72. The ALJ was not required to accept the VE's answer to the second hypothetical presented at the hearing, which included limitations that the ALJ found were not supported by the record. See, e.g, Lee v. Sullivan, 945 F.2d 687, 692 (4th Cir. 1991) (hypothetical posed to a vocational expert must accurately portray the claimant's individual physical and mental impairments, but it need reflect only those impairments that are supported by the record). Accordingly, the undersigned recommends a finding that the ALJ did not err in his treatment or use of the VE's testimony. III. Conclusion
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported by substantial evidence. Based on the foregoing, the undersigned finds that Plaintiff has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g). Therefore, it is hereby recommended that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED. March 31, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge