Opinion
2:20-CV-00015-M
08-12-2021
Courtney Wynn, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Plaintiff Courtney Wynn challenges Administrative Law Judge (“ALJ”) Kelly Davis's denial of her application for social security income. Wynn claims that ALJ Davis erred in (1) concluding her conditions did not meet the Listing of Impairments at step three, (2) determining her residual functional capacity, (3) failing to fully credit her statements of symptoms, and (4) failing to include all of her limitations in questioning the Vocational Examiner (“VE”). Both Wynn and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 32, 36.
After reviewing the parties' arguments, the court has determined that ALJ Davis reached the appropriate determination. ALJ Davis explained why Wynn's conditions were not disabling under the Listing of Impairments. The evidence supports a determination that Wynn could perform a reduced range of light work. ALJ Davis offered reasons why she declined to fully adopt Wynn's statements about the limiting effects of her symptoms. And ALJ Davis's hypothetical questions at step five included all of Wynn's well-supported limitations. The undersigned thus recommends that the court deny Wynn's motion, grant Kijakazi's motion, and affirm the Acting Commissioner's decision.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In March 2016, Wynn applied for disability insurance benefits and supplemental security income. In both applications, she alleged a disability that began in April 2015. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Wynn appeared before ALJ Davis for a hearing to determine whether she was entitled to benefits. ALJ Davis determined Wynn had no right to benefits because she was not disabled. Tr. at 13-21.
ALJ Davis found that Wynn had several severe impairments: congenital heart disease, chronic systolic heart failure, atrial flutter, rheumatic fever, hemolytic anemia, and obesity. Tr. at 16. ALJ Davis also found that Wynn's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Davis then determined that Wynn had the residual functional capacity (“RFC”) to perform a reduced range of light work. Tr. at 17. Wynn can stand and walk for four hours in an eight-hour workday. Id. She can sit for six hours in an eight-hour workday. Id. Wynn has an unlimited ability to push and pull within the expectations for light work. Id. She cannot climb ladders, ropes, or scaffolds, or have exposure to hazards such as dangerous machinery or unprotected heights. Id.
ALJ Davis concluded that Wynn could not perform her past relevant work as a certified nurse assistant. Tr. at 19. But considering her age, education, work experience, and RFC, ALJ Davis found that jobs existed in significant numbers in the national economy that Wynn could perform. Tr. at 20. These include merchandise marker, mail sorter, and routing clerk. Id. Thus, ALJ Davis found that Wynn was not disabled. Tr. at 21.
After unsuccessfully seeking review by the Appeals Council, Wynn began this action in March 2020. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Acting Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Acting Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). 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) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Acting Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Acting Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Wynn was diagnosed in infancy with a congenital heart defect. Tr. at 18. She experienced complications in 2016 with complaints of shortness of breath. Id. Providers assessed sepsis and performed mitral valve replacement surgery. Id.
Wynn remained in the hospital for almost two months. Id. Providers continued medication management for Wynn's endocarditis and atrial fibrillation. Id. And they advised Wynn to avoid lifting more than ten pounds for four weeks. Id.
Upon discharge, Wynn underwent one month of physical therapy. Id. She denied chest pain but complained of dyspnea and leg weakness. Id. An examination noted that she appeared well and had a normal range of motion. Id.
Wynn fell when not using her cane. Id. Later records showed a normal ventricular valve function with ejection fraction of 55%. Id. She continued medication management, including Coumadin. Id. In July 2016, Wynn reported nausea and vomiting with a red streak. Tr. at 2171.
State agency medical consultant Dr. Robert Pyle found that Wynn could perform light work, except she could stand or walk for only four hours in an eight-hour workday. Id.
Wynn testified that she could not work because of her heart condition. Tr. at 17. She could not lift more than ten pounds. Id. And she had to be careful due to the anti-clotting properties of Coumadin. Id.
Wynn cares for her two children, can climb stairs, and cleans her house. Id. But she takes breaks to rest. Id. Wynn relies on her parents for household and financial assistance. Tr. at 17, 40.
Wynn wears a leg brace for numbness. Tr. at 37. It takes longer for her to catch her breath. Tr. at 38. She experiences tightness and pain in her chest. Id. And she gets breathless walking up and down stairs. Tr. at 41.
Wynn's father stated that she walks slowly and has weakness climbing stairs. Tr. at 250. He noted that Wynn was concerned she may get a scratch and bleed to death. Tr. at 57. Because of limitations in her arms and legs, Wynn needed assistance with bathing, dressing, and grooming. Tr. at 254. She could not drive or do yard work. Tr. at 255-56. Her parents took care of “practically everything.” Tr. at 59.
D. Listing of Impairments
Wynn contends that ALJ Davis erred by finding that her impairments did not meet or medically equal the requirements of Listings 7.05 or 7.08. The Acting Commissioner maintains that the evidentiary record supports ALJ Davis's finding. The court finds that ALJ Davis did not err in analyzing Wynn's impairments at step three because the record does not show the presence of all the Listing criteria.
1.Overview of Listing of Impairments
The Listing of Impairments details impairments that are “severe enough to prevent an individual from doing any gainful activity.” 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). “The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants “whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background”).
The claimant has the burden of proving that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, cannot establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D. N.C. Dec. 10, 2010) (“Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.”).
An ALJ need not explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must provide a coherent basis for his step three determination, particularly where the “medical record includes a fair amount of evidence” that a claimant's impairment meets a disability listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). When the evidence exists but is rejected without discussion, the “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In reviewing the ALJ's analysis, it is possible that even “[a] cursory explanation” at step three may prove “satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion.” Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (citing Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011)). Still, the ALJ's decision must include “a sufficient discussion of the evidence and explanation of its reasoning such that meaningful judicial review is possible.” Id.
2.Listings 7.05 and 7.08
Although she considered 4.00 Listings related to the cardiovascular system, ALJ Davis did evaluate Wynn's impairments under Section 7.00 (Hematological Disorders). Tr. at 16-17. Wynn contends that this constitutes error, as her conditions potentially meet or equal Listing 7.05 (hemolytic anemias) or 7.08 (disorders of thrombosis or hemostasis).
Under both Listing 7.05B and 7.08, a claimant must show complications from their condition that require:
[A]t least three hospitalizations within a 12 month period and occurring at least 30 days apart prior to adjudication. Each hospitalization must last at least 48 hours, which can include hours in the hospital emergency department or comprehensive hemophilia treatment center immediately before the hospitalization.20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 7.05B, 7.08.
Wynn does not argue that her conditions meet the criteria of the other paragraphs-A, C, or D- of Listing 7.05.
Wynn asserts that she had the requisite number of hospitalizations: January 11, 2016, January 25, 2016, February 11, 2016, March 11, 2016, and July 29, 2016.
Although she did not address the 7.00 Listings, ALJ Davis's discussion of the medical evidence forecloses Wynn's ability to meet or equal the criteria for the Listings 7.05 or 7.08.
ALJ Davis found that Wynn's hemolytic anemia was a severe impairment at step two. Tr. at 16. And she noted Wynn's inpatient care in 2016. Tr. at 18.
Wynn's hospitalization from January 25, 2016 through March 11, 2016 was continuous. On March 11, Wynn transferred to a rehabilitation facility for four weeks of conditioning and physical therapy. Because it was uninterrupted and lacks a 30-day interval out of the hospital, this counts as one hospitalization under Listings 7.05 and 7.08.
Similarly, Wynn's January 11 hospital visit cannot qualify as one of the three required hospitalizations since it too lacks the necessary 30-day interval before her hospitalization later that month.
Even if her March 2016 transfer to rehabilitation could constitute a separate hospitalization, it also lacks the required 30-day separation from her previous hospitalization because Wynn transferred directly from the hospital to the rehabilitation facility. And this March 2016 inpatient course entailed four weeks of physical therapy. Because it did not involve complications from hemolytic anemia, thrombosis, or hemostasis, it too fails to meet the criteria of Listings 7.05 or 7.08.
Although Wynn had severe heart impairments, the Acting Commissioner points out that hospital records referred to her hemolytic anemia as “postoperative anemia.” Tr. at 313, 321, 345, 360. Providers monitored Wynn's hemoglobin and hematocrit levels, which were stable following surgery. In early March, these measurements trended downward but improved with transfusions. Tr. at 876, 885, 928. The next month, providers classified Wynn's anemia as “mild” Tr. at 1781. Later records show that hemoglobin and hematocrit levels fell below normal concentrations. Tr. at 2484. Yet the evidence notes no corresponding issues or complications, and Wynn has identified none.
An ALJ need not discuss each piece of evidence. See Brewer v. Astrue, No. 7:07-CV-00024, 2008 WL 4682185, at *3 (E.D. N.C. Oct. 21, 2008). And “in-depth step three analysis is unnecessary in some instances, particularly when there is not ample evidence supporting a step three listing.” Turley v. Berryhill, No. 2:17-CV-01915, 2018 WL 1314589, at *3 (S.D. W.Va. Mar. 14, 2018).
As noted above, a claimant bears the burden at step three to establish that her impairments meet or equal a Listing impairment. While Wynn has a diagnosis of a condition under the 7.00 Listings, she does not meet the criteria for either Listing 7.05 or 7.08.
Wynn has not identified, nor does the record disclose, “a fair amount of evidence” that her her conditions meet or equal Listings 7.05 or 7.08. And ALJ Davis's decision as a whole shows that the record lacked sufficient evidence that Wynn's hemolytic anemias or heart conditions met or equaled a Listing impairment.
For these reasons, the undersigned recommends that the court reject Wynn's argument on this issue.
E. Residual Functional Capacity
Wynn contends that ALJ Davis erred in determining her RFC by determining that she could stand or walk for four hours and lift or carry consistent with the requirements of light work. The Acting Commissioner asserts that the RFC sufficiently reflects all Wynn's well-supported limitations. The court finds that substantial evidence supports ALJ Davis's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe, ” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Acting Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “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).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford, 734 F.3d at 295. Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “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.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
ALJ Davis determined that Wynn could perform a reduced range of light work. Tr. at 17. She can stand or walk for four hours in an eight-hour workday. Id. And Wynn can frequently lift or carry ten pounds and occasionally lift or carry 20 pounds. Id.
Wynn asserts that she can stand or walk for only 15 minutes. She wears a leg brace and experiences weakness. Wynn claims that her shortness of breath combined with her chest pain and tightness preclude a reduced range of light work as the RFC determined. But her claim lacks corroboration.
The evidence does not support a conclusion that Wynn is more limited than the RFC determined. ALJ Davis observed that within three months of surgery, Wynn recovered well and resumed activities. Tr. at 19. Physical therapy improved her condition significantly and her chronic conditions were well managed. Id.
After her 2016 surgery and recovery, none of Wynn's treating physicians restricted her standing, walking, lifting, or carrying activities. And state agency physician Dr. Robert Pyle found that she could perform light work activity. Tr. at 18. His assessment constitutes substantial evidence supporting ALJ Davis's assessment.
Wynn has failed to show error in ALJ Davis's RFC determination. So the court should reject Wynn's argument on this claim.
F. Subjective Statements
Next, Wynn contends that ALJ Davis erred in discounting her statements about her symptoms and their limiting effects on her functioning. The Acting Commissioner argues, and the undersigned agrees, that ALJ Davis properly evaluated Wynn's subjective statements and explained why she declined to fully endorse them.
Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms. SSR 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c). First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms, such as pain. Id. at *3, §§ 404.1529(b), 416.929(b). Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine how much they limit the claimant's ability to work. Id. §§ 404.1529(c), 416.929(c). In making that determination, the ALJ must “examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
“ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of [diseases] that do[] not produce such evidence.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020) (remanding where ALJ relied on a lack of objective medical evidence, such as normal range of motion and joint inflammation, to discredit the claimant). Nor may an ALJ “consider the type of activities a claimant can perform without also considering the extent to which she can perform them.” Id. at 99 (quoting Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)).
The ALJ has full discretion to weigh the subjective statements with the objective medical evidence and other matters of record. Craig v. Colvin, 76 F.3d 585, 595 (4th Cir. 1996) (holding that claimant's allegations of pain need not be accepted to extent that they conflict with the record). The ALJ may not discredit a claimant's subjective complaints just because the objective medical evidence does not confirm them. Id. at 595-96. But neither is the ALJ obligated to accept the claimant's statements at face value. Hawley v. Colvin, No. 5:12-CV-260-FL, 2013 WL 6184954, at *15 (E.D. N.C. Nov. 14, 2013). In a district court's review, the ALJ's findings are entitled to great weight because of the ALJ's ability to observe and evaluate testimony firsthand. Shively, 739 F.2d at 989-90.
ALJ Davis declined to fully endorse Wynn's statements of functioning. Tr. at 17-18. ALJ Davis found that Wynn's statements about her symptoms conflicted with other evidence. Id. And substantial evidence supports ALJ Davis's assessment.
While she had significant medical treatment in 2016, Wynn made a good recovery and her conditions were well managed. Tr. at 19. As noted above, Dr. Pyle determined that she could perform light work. And no provider assessed significant limitations on Wynn's functional abilities, including any related to medication side effects. ALJ Davis accounted for the anti-clotting effects of Coumadin by limiting Wynn's climbing and exposure to hazards. Tr. at 18.
Wynn inaccurately frames this issue as ALJ Davis requiring her to produce objective medical evidence to support her allegations. ALJ Davis, however, acknowledged Wynn's conditions could cause the symptoms she claimed. Tr. at 17-18.
But the evidence contradicted the functional loss Wynn alleged. ALJ Davis remarked that Wynn improved following an exacerbation of her condition that required surgery. Tr. at 19. And Wynn's condition was controlled with medication and laboratory re-checks. Id.
Thus, ALJ Davis required no objective medical evidence to confirm Wynn's statements, but she declined to endorse them where they conflicted with other evidence. Wynn has shown no error in ALJ Davis's assessment of her statements. So the undersigned recommends that the court deny Wynn's claim on this issue.
G. Step Five
Wynn contends that ALJ Davis posed a hypothetical question to the VE that did not include all of her limitations. The Acting Commissioner asserts, and the undersigned agrees, that there is no error with ALJ Davis's step five analysis.
As noted above, while a claimant has the burden at steps one through four, it is the Acting Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). “The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [(“VE”)] to testify.” Aistrop v. Barnhart, 36 Fed.Appx. 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Acting Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F.Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine “whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]” 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D. N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved.” SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). “Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT.” Id. “When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled.” Id. “At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.” Id.
Wynn asserts that she can stand or walk for 15 to 20 minutes and lift or carry no more than ten pounds. While Wynn contends that she has these other limitations, this claim lacks support in the record. As discussed above, substantial evidence supports ALJ Davis's RFC limitation. And ALJ Davis declined to endorse Wynn's statements of her symptoms and limitations, a determination that the record supports.
Wynn also contends that she has medical appointments about three times a month. The VE testified that the customary tolerance for work absences is no more than one and a half days per month. Based on this information, Wynn argues that her medical conditions require more absences than competitive employment would allow.
But the Acting Commissioner points out that several of Wynn's medical appointments in 2017 and 2018 were for routine laboratory work. Because these visits are generally brief and can be accommodated before or after work, they should not require a full day's absence. So Wynn has not shown that her conditions require work absences more than is generally allowed. Thus ALJ Davis did not err in omitting several absences per month from the RFC determination.
The hypothetical questions included all the limitations set forth in Wynn's RFC determination. Wynn has failed to establish that she has additional limitations. Thus the court should reject Wynn's argument on this issue.
III. Conclusion
For all these reasons, the undersigned recommends that the court deny Wynn's Motion for Judgment on the Pleadings (D.E. 32), grant Kijakazi's Motion for Judgment on the Pleadings (D.E. 36), and affirm the Acting Commissioner's decision.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.