Opinion
Civil Action 5:23-3823-RMG-KDW
06-14-2024
Paul Abraham, Plaintiff, v. Martin O'Malley, Commissioner of Social Security,[1]Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES 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 pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of 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
On September 26, 2017, Plaintiff filed an application for DIB alleging a disability onset date of July 1, 2015. Tr. 154-55. His application was denied initially, Tr. 85, and upon reconsideration, Tr. 103. Plaintiff requested a hearing by an administrative law judge (“ALJ”), Tr. 115-16, and on November 6, 2018, a hearing was held before ALJ Tammy Georgian. Tr. 4169. On February 27, 2019, the ALJ issued an unfavorable decision finding Plaintiff was not disabled. Tr. 8-23, 682-97. On April 30, 2020, Plaintiff requested review of the decision by the Appeals Council noting that his attorney did not file an appeal. Tr. 152. On July 14, 2020, the Appeals Council acknowledged that Plaintiff's request for review was untimely but found there was good reason for the delay. Tr. 1, 703. However, the Appeals Council found no basis to change the ALJ's decision and denied his request for review. Tr. 1-5, 703-07. Plaintiff appealed the unfavorable decision to the United States District Court for the District of South Carolina and obtained an Order, dated October 13, 2021, reversing the Commissioner's decision and remanding the case for further proceedings. Tr. 728-29. Based on the court's order, on May 20, 2022, the Appeals Council vacated the final decision of the Commissioner and remanded the matter for “further proceedings consistent with the order of the court.” Tr. 735. The Appeals Council noted that Plaintiff had filed a subsequent claim for disability benefits on October 3, 2020 and its action on the current claim “render[ed] the subsequent claim duplicate.” Id. The Appeals Council instructed the ALJ to “consolidate the claims files, associate the evidence, and issue a new decision on the consolidated claims (20 CRF 404.952 and HALLEX I-1-10-10).” Id.
Although the Application Summary is dated November 27, 2017 and refers to an application date of September 27, 2017, Tr. 154, the protected filing date as shown on the Disability Determination and Transmittal is September 26, 2017, Tr. 85.
Plaintiff filed a new application for DIB alleging a disability onset date of February 28, 2019. Tr. 859-60. Plaintiff's October 2020 DIB claim was denied initially on April 27, 2021. Tr. 757.
ALJ Georgian conducted a second administrative hearing on April 27, 2023. Tr. 650-81.
On May 17, 2023, the ALJ issued an unfavorable decision denying Plaintiff's claim. Tr. 625-41. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on August 3, 2023. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in September 1963 and was 51 years old as of his alleged onset date of July 1, 2015. Tr. 165. In his form Disability Report-Adult dated September 28, 2017, Plaintiff indicated that he had four or more years of college and in April 2014 he had completed other specialized job training of ADIE first aid. Tr. 170. He listed his past relevant work (“PRW”) as nightclub general manager (April 1984 - June 2015). Id. Plaintiff indicated he stopped working on July 1, 2015, due to his medical conditions of back injury, type 2 diabetes, and COPD. Tr. 169. Plaintiff indicated that he was 6'1” tall, weighed 295 pounds, and his conditions caused him pain or other symptoms. Id.
In a Disability Report-Appeal dated December 11, 2017, Plaintiff's counsel reported a change in Plaintiff's medical condition that occurred in “Summer 2017” of degenerative disc disease from a lumbar injury. Tr. 202. Counsel noted that Plaintiff “is in pain, he moves very slowly and cautiously, trying not to cause his back to go into spasm. Recently went to ER for the pain.” Id.
In a November 18, 2020 Disability Report-Adult form completed at the time of Plaintiff's second application for DIB, Plaintiff listed medical conditions of lumbar radiculopathy, cervical and lumbar spondylosis, COPD, heart failure, hyperlipidemia counseling, adjustment disorder with anxiety, sleep apnea, diabetes mellitus type 2, and chronic pain. Tr. 876. Plaintiff listed his weight at 312 pounds. Id. In a July 2, 2021 Disability Report-Appeal, Plaintiff's counsel indicated a change in Plaintiff's medical condition that occurred in January 2021 of “Extreme edema in legs, very poor eyesight.” Tr. 905.
C. The 2023 Administrative Hearing
Plaintiff's second administrative hearing was held on April 27, 2023 in Charleston, South Carolina before ALJ Georgian. Tr. 650. Plaintiff appeared with his counsel and VE Chelsea Brown also appeared and testified. Id. The hearing was conducted telephonically with Plaintiff's consent. Tr. 655-56.
1. Plaintiff's Testimony In response to questions from the ALJ, Plaintiff testified that he lived in a trailer with his brother and his brother's wife. Tr. 656. Plaintiff stated that his brother worked as a security guard and also worked at the airport, and his sister-in-law worked as a pharmacy tech. Tr. 65657. Plaintiff confirmed there were no other sources of household income and he did not receive any type of benefits. Tr. 657. Plaintiff stated that he has a driver's license but he tries not to drive because he does not want to hurt anyone. Plaintiff explained that he had problems with his eyesight because of medication allergies when he was given steroids. Id. He also stated that he has pain getting into and out of the car. Tr. 658. When asked if he has vision issues when he has not been given steroids, Plaintiff responded that he sometimes has “[b]lurriness and drowsy [sic]. I can see sometimes, and sometimes I can't.” Tr. 658-59. The ALJ asked if he wears eyeglasses and Plaintiff stated that he has 20/20 vision. Tr. 659. He testified that he attended college four years and is 18 hours shy of getting a bachelor's degree in marketing. Id. Plaintiff confirmed his past work as general manager of a nightclub. Id. The ALJ confirmed with Plaintiff's counsel record of a 2015 EMG carpal tunnel study. Id.
Plaintiff's counsel asked Plaintiff to provide an update of his medical conditions since the last hearing in November 2018. Tr. 660. Plaintiff testified that he has been having radiofrequency procedures done on his back and hip. Tr. 660-61. Plaintiff testified that the procedures leave him without pain “for a while” but then the pain returns. Tr. 661. Plaintiff confirmed that branch nerve rhizotomy was the same as radiofrequency ablation. Id. Plaintiff stated that if he overexerted himself, he would start hurting. Tr. 662. Plaintiff's counsel noted that in 2016 Dr. Giddens offered spinal surgery consisting of an “L-3 through S-1 lumbar laminectomy, a post-lumbar fusion at each level, and a lateral fusion at each level[.]” Tr. 663. Plaintiff testified that Dr. Johnson at the Spine Institute in Charleston disagreed with Dr. Giddens' recommendation because it would lead to more surgeries, so Plaintiff opted to start the radiofrequency ablation procedures. Id. Plaintiff testified that no surgery was proposed for his carpal tunnel syndrome because the doctor wanted to work on improving Plaintiff's back symptoms. Tr. 664. Plaintiff stated that he has problems with gripping and handling things, and he noted that he sometimes drops his medication and “it hurts to write.” Id. He also described difficulty opening mail, using a can opener, or opening a milk container. Id. Plaintiff testified that the issues with his hands have gotten worse since the November 2018 hearing. Tr. 665. Plaintiff testified that recently the issues that bother him the most are “the low back, the bending, and trying to sit, and it hurts to sit. It hurts to stand.” Id. Plaintiff stated that he “can never sit straight anymore” and he can sit for only five to ten minutes before needing to change positions. Tr. 666. When asked about records describing his gait as cautious, Plaintiff stated that it was because his “ankles are swollen from the congestive heart failure” and that causes him to walk with that gait. Id. Plaintiff testified that he wears compression socks but he has swelling above the sock. Tr. 667. He stated that “it all goes down at night, and then comes back once [he] stand[s] up in the morning, it starts coming back.” Id. Plaintiff stated that he spends most of the day with his legs up and that lying down also helps his back. Id. Plaintiff was unable to recall when he first started having issues with swelling in his lower extremities but agreed with counsel that it was going on longer than the last few years. Tr. 667-68. Plaintiff noted that he takes blood pressure medicine and a calcium blocker. Tr. 668. Plaintiff confirmed that he has COPD and he has “a hard time breathing” and “a hard time sleeping.” Tr. 669. Plaintiff testified that he carries an inhaler all the time but he does not always have to use it. Id. Plaintiff testified that he does not walk “too far” and he takes short rest breaks. Id. Plaintiff elaborated that he is able to walk “probably less than five minutes.” Tr. 670. Plaintiff described being dropped off at the store, sitting out front “for a while,” and then using a buggy to aid with walking. Id. Plaintiff testified that after standing for about ten minutes his back starts hurting and he “can stay up for about another five minutes, but that's about it.” Id. Plaintiff stated he could probably lift “about 15, or 10 pounds.” Tr. 671. Counsel noted that Plaintiff has been diagnosed with diabetes and Plaintiff testified that he has been able to keep his blood sugars in check and he follows the doctor's recommendations. Id. Plaintiff stated that he stopped taking insulin a week prior, and that he only took it because he had an incident where his blood sugar was elevated and he had to take insulin for three or four months until he could get his blood sugar under control and manage it. Tr. 671-72.
Plaintiff testified that his past work was as a nightclub manager at the Spanish Galleon. Tr. 672. Plaintiff stated that he worked there “30 some years” and left after he fell and injured his back in 2014. Id. Plaintiff stated that his doctor put him on light duty, but his employer refused to follow the doctor's orders and Plaintiff was “working 20 hours a day, like [he] always did, seven days a week.” Tr. 673. Plaintiff stated he would be unable to return to that job because he “wouldn't be able to carry the money bags. There was $120 in quarters in each money bag . . . and they weigh a lot.” Id. Plaintiff stated that he was on his feet most of the day, and if an employee did not show up to work then he would cover their job-including bartending or cooking. Id. Plaintiff testified that, as to any mental impairments, he had problems with his memory. Tr. 674. When asked about any other issues he wanted to cover, Plaintiff testified that he is having trouble with his hands. He stated that he does not have funds for carpal tunnel procedures and he would have to rely on hospital charity. Tr. 675.
2. VE's Testimony
The ALJ noted that at the previous hearing Plaintiff's prior work was identified as nightclub manager, Dictionary of Occupational Titles (“DOT”) 187.167-126, SVP 6, light. Tr. 676. The VE indicated that was consistent with her review but, based on Plaintiff's testimony, he had to occasionally perform the job at a higher exertional level of medium to heavy. Tr. 676-77. The VE confirmed transferable skills of hiring and firing, scheduling, training, effective communication with the public and staff, and planning and arranging programs and advertisements. Tr. 677. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age and education with the past work experience with the following limitations:
Further assume the individual can do light work, can occasionally climb ramps and stairs, but never ladders, ropes, and scaffolds. Can occasionally stoop, kneel, crouch, and crawl, and frequently push, pull, handle, and finger with both bilateral upper extremities. Must avoid concentrated exposure to matter such as unprotected heights, and . . . must avoid concentrated exposure to pulmonary irritants.Id. The VE testified that the individual would be unable to perform Plaintiff's past work as generally performed but could perform other jobs using the transferable skills and identified the following: information clerk, DOT 237.367-022, sedentary, SVP 4, approximately 201,000 jobs in the national economy; and order clerk, DOT 221.382-022, sedentary, SVP 3, approximately 167,000 jobs in the national economy. Tr. 677-78. The VE also noted that cashier/checker would be available at the light level, with DOT 211.462-014 and approximately 320,000 jobs available. Tr. 678-79. The VE stated that her testimony was consistent with the DOT but noted that the DOT references climbing but does not distinguish between climbing ramps and stairs, and ladders, ropes and scaffolds. Tr 679. The VE stated her opinion relied on her “experience in placing individuals in competitive employment, and looking at the Occupational Outlook Handbook, availability of these jobs, and how these jobs are performed in the national economy.” Id.
Plaintiff's counsel asked the VE if transferability of skills would be precluded if the hypothetical added that the individual “would be limited to one and two-step instructions, essentially unskilled work,” and the VE responded affirmatively. Tr. 679. Counsel asked what the impact on the cited jobs would be if use of the dominant hand was limited to occasional handling and fingering. Id. The VE testified that it “would have a significant impact, and those jobs would not be available.” Tr. 680. Counsel asked if the jobs would be impacted if the individual needed “to either recline or have legs elevated for at least a few hours a day” to waist level. Id. The VE testified “that person would not be able to engage in work.” Id. Counsel asked if “the jobs cited at the light level would presume the ability to stand and walk for at least several hours a day.” The VE stated that was correct. Id.
With no further questions, the hearing closed. Tr. 681.
II. Discussion
A. The ALJ's Decision
In her May 17, 2023, decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2020.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of July 1, 2015 through his date last insured of December 31, 2020 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease and obesity (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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,
through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally climb ramps and stairs, but can never climb ladders, ropes, or scaffolds; he can occasionally stoop, kneel, crouch, and crawl; he can frequently push/pull and handle/finger with the bilateral upper extremities. He must avoid concentrated exposure to hazards such as unprotected heights and he must avoid concentrated exposure to pulmonary irritants.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on September 18, 1963, and was 57 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from July 1, 2015, the alleged onset date, through December 31, 2020, the date last insured (20 CFR 404.1520(g)).Tr. 631, 633-34, 639-41.
B. 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 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 the claimant 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 the 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 the 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 the 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 the inability 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
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 at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff asserts that (1) the ALJ did not explain her findings regarding Plaintiff's residual functional capacity (“RFC”) as required by SSR 96-8p, and (2) the ALJ did not properly evaluate Plaintiff's subjective symptomology. Pl.'s Br. 21, 30; ECF No. 11. The Commissioner asserts that the ALJ adequately explained her RFC assessment pursuant to SSR 96-8p, and substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints. Def.'s Br. 14, 20; ECF No. 12.
1. The ALJ's RFC Assessment
The ALJ determined that Plaintiff had the RFC to perform light work with certain postural, manipulative, and environmental limitations. Tr. 634. Plaintiff argues the ALJ did not properly evaluate his obesity, or his carpal tunnel syndrome and obstructive sleep apnea. Pl.'s Br. 23, 25. The Commissioner argues that the “ALJ captured all of Plaintiff's credibly established limitations in the RFC determination and provided a narrative discussion to support the RFC determination that permits meaningful judicial review (Tr. 628-41).” Def.'s Br. 14.
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” Id. (emphasis in original). At the administrative hearing level, the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546. An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4). Social Security Ruling 96-8p requires that the RFC assessment “include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184 at *7. The ALJ must discuss the claimant's ability to “perform sustained work activities in an ordinary work setting” on a regular work schedule. Id. Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id.
a. Plaintiff's Obesity
The ALJ stated that she considered Plaintiff's obesity in accordance with SSR 19-2p, “considered the combined effects of the claimant's impairments, both severe and non-severe,” and she “specifically considered the cumulative effects of the impairments on the claimant's ability to work.” Tr. 634. The ALJ stated that in making her RFC finding she “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 163p.” Id. The ALJ noted that she also considered the opinion evidence and prior administrative medical findings in accordance with 20 CFR 404.1520c. Id. As part of her RFC determination, the ALJ considered Plaintiff's hearing testimony, the objective medical findings and treatment, Plaintiff's statements regarding his symptoms, and medical source opinions. Tr. 635-39.
Plaintiff argues that the ALJ should have assessed how his obesity limited his functional abilities and her “decision rationale failed to explain how the RFC findings address [his] obesity.” Pl.'s Br. 24. The Commissioner contends that there is “no indication in Plaintiff's medical records of any work-related limitations caused by obesity that are not already captured in the RFC.” Def.'s Br. 17.
SSR 19-2p “provides guidance on how [the SSA] establishes] that a person has a medically determinable impairment of obesity and how [it] evaluate[s] obesity in disability claims.” SSR 19-2p, 2019 WL 2374244, at *1. The SSR provides that “[o]besity in combination with another impairment(s) may or may not increase the severity or functional limitations of the other impairment(s).” Id. at *2. In assessing the RFC of a claimant with a severe impairment of obesity, the ALJ must consider “the effect obesity has upon the person's ability to perform routine movement and necessary physical activity within the work environment.” Id. at *4.
At Step Two the ALJ determined that Plaintiff's obesity was a severe impairment, Tr. 631, and as noted above, at Step Three the ALJ found that the combined effects of Plaintiff's severe and non-severe impairments did not equal Listings 1.15, 1.16, 3.02, 4.00, 9.00, or 12.02.5 Tr. 634. The ALJ found that Plaintiff had the RFC to perform light work, and imposed postural restrictions of no climbing ladders, ropes, or scaffolds, and only occasionally climbing ramps and stairs, stooping, kneeling, crouching or crawling. Id. The ALJ also included manipulative limitations of frequently pushing/pulling and handling/fingering with the bilateral upper extremities, and environmental limitations of avoiding concentrated exposure to hazards such as unprotected heights and pulmonary irritants. Id. Within her discussion of Plaintiff's RFC, the ALJ noted:
Listing 1.15 refers to disorders of the skeletal spine resulting in compromise of the nerve root, Listing 1.16 refers to lumbar spinal stenosis resulting in compromise of the cauda equina, Listing 3.02 refers to chronic respiratory disorders due to any cause except cystic fibrosis, Listing 4.00 refers to cardiovascular system, Listing 9.00 refers to endocrine disorders, and Listing 12.02 refers to neurocognitive disorders. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The claimant is 6'2” tall, with weights between 295 pounds and 319.4 pounds, representative of body mass indexes of 37.9 to 43.3 (Exhibits 10F/7 and 9F/17). Regarding claimant's obesity, [I] note that no specific weight or BMI establishes that obesity as a severe impairment within the disability program. Likewise, a medical source's descriptive terms for levels of obesity, such as “severe,” “extreme,” or “morbid,” do not establish that obesity is a severe impairment. In determining whether obesity is a severe impairment, the undersigned is to perform an individual assessment of the effect obesity has on claimant's functioning.Tr. 638. The ALJ then proceeded to discuss Plaintiff's functional abilities, noting:
Specifically, the claimant's records note that he walks daily for exercise, two miles a day (4E/4; 8F/3-4; 10F). He can lift 25 pounds (4E/1). He reported that he is still able to feed and take dogs out twice per day. He can still cook for up to 20 minutes (4E/3). He performs light cleaning and laundry for an hour at a time, twice per week (4E/3). He still drives and shops for food and household items on a regular basis (4E/3-4). He is also able to handle his personal finances and watch TV for several hours a day. These activities require significant physical and mental demands, which are not consistent with the level of limitation the claimant alleges. Accordingly, I find that limiting the claimant to light work with additional postural limitations as described above, fully accommodates his impairment, and nothing in the record suggests the claimant has further limitation.Id.
As an initial matter, the undersigned notes that in his form Disability Reports Plaintiff did not list obesity as one of his medical conditions that limited his ability to work. Tr. 169 (2017 report listing back injury, type 2 diabetes, and COPD), Tr. 876 (2020 report listing lumbar radiculopathy, cervical and lumbar spondylosis, COPD, heart failure, hyperlipidemia counseling, adjustment disorder with anxiety, sleep apnea, diabetes mellitus type 2, and chronic pain). At his first administrative hearing in 2018, when asked about his weight Plaintiff testified that he had “a lot of water weight” and had “a lot of fluid on [him.]” Tr. 50. At the 2023 administrative hearing, when asked about his impairments Plaintiff did not mention obesity. See Tr. 674. Plaintiff has not presented any evidence that indicates his weight limits him in any way. Plaintiff makes no reference to any evidence in the record concerning his obesity's impact on his ability to work or perform any functional activities.
The burden of proof and production rests on Plaintiff to show limitations. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (noting burden of proof and production is on claimant at steps one through four of the sequential evaluation); Russell v. Chater, No. 94-2371, 1995 WL 417576, at *3 (4th Cir. July 7, 1995) (noting a claimant must explain the basis of his theory as to how obesity limits his functional ability; speculation is not permitted). Plaintiff points to no medical evidence to support the existence of a functional limitation on the basis of her obesity. Any alleged error of the ALJ in failing to provide additional explanation of his consideration of Plaintiff's obesity is harmless in the absence of evidence that his RFC assessment would have been different. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming denial of benefits where the ALJ erred in evaluating claimant's pain because “he would have reached the same conclusion notwithstanding his initial error”). Substantial evidence supports the ALJ's consideration of Plaintiff's obesity. The ALJ did what SSR 19-2p requires. Accordingly, the undersigned recommends a finding that the ALJ did not err in her analysis of Plaintiff's obesity and functional limitations.
b. Plaintiff's Carpal Tunnel Syndrome and Obstructive Sleep Apnea Plaintiff argues that the ALJ fails to provide reasons for why she found his carpal tunnel syndrome (“CTS”) and sleep apnea to be non-severe impairments. Pl.'s Br. 26. The Commissioner argues that despite his diagnoses Plaintiff failed to prove a related functional loss due to his CTS or sleep apnea, the ALJ continued her evaluation of Plaintiff's claim beyond Step Two, and Plaintiff has not shown how the outcome of the case would be different if the ALJ found these impairments to be severe. Def.'s Br. 18-20.
Step Two is a threshold determination of whether a claimant has a severe impairment (or combination of impairments) that meets the twelve-month duration requirement and significantly limits the claimant's ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A severe impairment “must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a claimant's] statement of symptoms[.]” 20 C.F.R. § 404.1508. It is the claimant's burden to prove that he suffers from a medically severe impairment. Bowen v. Yuckert, 482 U.S. at 146 n.5. An ALJ must consider all of a claimant's medically determinable impairments, even those that are not severe, in the RFC assessment. 20 C.F.R. § 404.1545(a)(2). An inadequate analysis of impairments at Step Two may be rendered harmless if the ALJ later considers those impairments in subsequent steps. See Jenkins v. Colvin, No. 6:13-cv-02021-DCN, 2015 WL 1311694, at *4 (D.S.C. Mar. 24, 2015) (“Courts in this district have determined that an ALJ's failure to consider an impairment at step two is harmless when the ALJ considers the impairment in subsequent steps of its analysis.” (collecting cases)).
Here, the ALJ determined Plaintiff had the severe impairments of degenerative disc disease and obesity and further noted that he had been diagnosed with carpal tunnel syndrome, diabetes mellitus, hypertension, cardiomyopathy, congestive heart failure, COPD, hyperlipidemia, and sleep apnea. Tr. 631. The ALJ stated that she “considered all of the claimant's medically determinable impairments, including those that are not severe, when assessing the claimant's residual functional capacity.” Id.
At Step Two, in assessing Plaintiff's CTS, the ALJ cited to medical records documenting Plaintiff's CTS diagnosis including Exhibits 16F/3, 17F/9-18, and 18F. Tr. 631. Exhibit 16F/3 is Dr. George Sandoz's impression from a January 2015 nerve study that Plaintiff had “Moderate/severe right CTS, without denervation.” Tr. 598. Exhibit 17F/9-18 contains duplicate pages from the January 2015 nerve study, Tr. 611-18, and a report from a February 2015 office visit with Dr. Sandoz related to Plaintiff's back and neck pain that noted Plaintiff was assessed with CTS and he was instructed to continue using a wrist splint, Tr. 619-20. Exhibit 18F is a duplicate of the February 2015 report. Tr. 622-24.
In assessing Plaintiff's sleep apnea, the ALJ noted at Step Two that “claimant's symptoms improved with the use of a CPAP machine (Exhibits 22F/12, 93, 98, 101; 23F/5; 24F; 26F/7, 10, 15; 28F; 31F).” Tr. 631. Exhibit 22F/12 is an August 2019 medication check with Dr. Luis D. Insignares who noted in his review of symptoms that regarding Plaintiff's otolaryngeal system he had “No hearing loss, but sleep apnea.” Tr. 1132. In the remaining cited records from this exhibit Dr. Insignares again assessed Plaintiff with sleep apnea as one of his impairments in May, August, and December 2020. Tr. 1213 (22F/93), Tr. 1218 (22F/98), Tr. 1221 (22F/101). Exhibit 23F/5 is an October 16, 2019 neurology office clinic note from Dr. Sandoz wherein he indicated Plaintiff's headaches were associated with his obstructive sleep apnea but Plaintiff reported that he had “not tried any diclofenac he is [sic] been doing fair with sleep apnea continue to have significant issues with keeping himself awake and keep going.” Tr. 1236. Later in this note Dr. Sandoz stressed the need for compliance with CPAP use. Tr. 1238. Exhibit 24F contains records from Conway Medical Center from May, June, and August 2019 and February 2020. Tr. 1251-68. Plaintiff was referred for a sleep study and the results of the June 2019 sleep study from Dr. Hafez Hayek showed Plaintiff had “severe obstructive sleep apnea improved with CPAP.” Tr. 1259. Dr. Hayek advised Plaintiff to avoid bedtime alcohol and sedatives, avoid operating heavy equipment when feeling drowsy, and avoid driving while feeling drowsy. Id. At the February 2020 follow-up appointment Plaintiff reported that he was “using his CPAP every night and feels better with it.” Tr. 1251. Dr. Hayek advised Plaintiff “not to drive or involve in any activity that needs full attention if he is feeling drowsy or sleepy.”6 Id. Exhibit 26F contains progress notes from a nurse practitioner with Dr. Insignares' office from January, May and August 2020 that assessed Plaintiff with obstructive sleep apnea, among other impairments, and noted that he should continue on CPAP. Tr. 1288 (26F/7), Tr. 1291 (26F/10), Tr. 1296 (26F/15). Exhibit 28F contains progress notes and lab reports from Dr. Insignares from January, May, August, November and December 2020; February, March, June, July 2021; February 2022, and March 2023. In these notes Plaintiff's sleep apnea is identified as an impairment and Plaintiff reports that using the CPAP is helping his sleep apnea. Tr. 1376-1444. The documents in Exhibit 6
Plaintiff contends remand is required because the ALJ failed to consider this advice from Dr. Hayek. Pl.'s Br. 27. Dr. Hayek did not limit Plaintiff's ability to work, instead he advised Plaintiff not to operate equipment or drive if he was feeling drowsy. Plaintiff offers no evidence that shows he heeded this advice, was noncompliant with this advice, or the impact of this advice on his ability to work. Johnson v. Colvin, No. CV 6:14-3579-RBH-KFM, 2015 WL 13734218, at *14 (D.S.C. Aug. 28, 2015) (finding “there was no cogent contradictory evidence for the ALJ to address, and thus a remand would be futile.”); Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)(noting that remand would prove futile in cases where the ALJ does not discuss functions that are “irrelevant or uncontested”). Plaintiff did, however, report to Dr. Hayek that after using the CPAP machine he could “tell the difference and he is more awake and energetic during the daytime after he uses it.” Tr. 1254. The ALJ acknowledged Plaintiff's symptoms improved with use of the CPAP. Tr. 631. 31F are duplicates of Exhibit 28F. Tr. 1455-1506.
As indicated above, the ALJ noted that she “considered the combined effects of the claimant's impairments, both severe and non-severe, and has determined that the findings related to them were not at least equal in severity to those described Listings 1.15, 1.16, 3.02, 4.00, 900 and 12.02. In this consideration, the [ALJ] specifically considered the cumulative effects of the impairments on the claimant's ability to work.” Tr. 634. In her RFC assessment at Step Three the ALJ limited Plaintiff to frequent pushing/pulling and handling/fingering. Id. She noted that at the 2023 administrative hearing Plaintiff's counsel referred to the 2015 nerve study showing moderate to severe CTS and counsel stated that Plaintiff would testify that surgery was recommended but he did not have funds to proceed with surgery. Tr. 635. The ALJ went on to note that when Plaintiff testified, he “denied surgery had been recommended for his diagnosed carpal tunnel syndrome. He noted he had problems with pain in his hands as well as problems with strength, grip, writing, opening jars, and dropping objects in his upper extremities.” Id. The ALJ also noted that at the 2019 administrative hearing Plaintiff reported that, among other limitations, his impairments limited his ability to use his hands. Tr. 636.
The ALJ's RFC assessment also included environmental limitations. Tr. 634. In her discussion of Plaintiff's RFC she did not cite to any references regarding sleep apnea from the 2023 hearing, but she noted that at the 2018 hearing Plaintiff testified to symptoms of COPD including difficulty breathing and sleeping but he “described improvement with his CPAP machine[.]” Tr. 635. The ALJ determined that the medical record of evidence supported the limitations she outlined in the RFC assessment. Tr. 638. She noted that Plaintiff's “respiratory issues support limitations of no concentrated exposure to workplace hazards such as unprotected heights or pulmonary irritants.” Id.
“As long as a claim is not denied at step two, it is generally unnecessary for the ALJ to have specifically found any additional alleged impairment to be severe.” Bryant v. Comm'r, Soc. Sec. Admin., No. 2:15-CV-4786-RMG-MGB, 2017 WL 394500, at *9 (D.S.C. Jan. 10, 2017), report and recommendation adopted sub nom. Bryant v. Colvin, No. CV 2:15-4786-RMG, 2017 WL 384302 (D.S.C. Jan. 25, 2017)). See also Martinez v. Astrue, No. CA 1:11-850-CMC-SVH, 2012 WL 3580675, at *10 (D.S.C. July 30, 2012), report and recommendation adopted, No. CA 1:11-850-CMC-SVH, 2012 WL 3582799 (D.S.C. Aug. 17, 2012) (“A finding of a single severe impairment at step two of the sequential evaluation is enough to ensure that the factfinder will progress to step three.”). In other words, “[a]s long at the ALJ determines that the claimant has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific impairment as severe at step two is harmless.” McClain v. Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D. N.C. May 23, 2014) (citations omitted).
Plaintiff fails to explain how the outcome of his case would have been different had these impairments been deemed severe at Step Two. See Robinson v. Colvin, No. 4:13-CV-00823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (“However, Plaintiff must show that any alleged error in finding Plaintiff's depression to be non-severe harmed her.”). The ALJ found Plaintiff had severe impairments and continued through the sequential evaluation process, meaning any error she might have made in assessing the severity of Plaintiff's CTS and sleep apnea at Step Two was harmless. As reflected above, in assessing Plaintiff's RFC, the ALJ considered these impairments and other impairments in combination. “The regulations do not require specific articulation about how an ALJ is to have considered non-severe impairments in the RFC.” Shead v. Kijakazi, No. 4:22-CV-04649-TER, 2023 WL 7150893, at *4 (D.S.C. Oct. 31, 2023) (citing 20 C.F.R. § 404.1545; Britt v. Saul, 860 Fed.Appx. 256, 262 (4th Cir. 2021)(Case law and regulations do not explicitly require a specific analysis on non-severe impairments in the RFC; the ALJ's opinion must simply reflect the ALJ considered the non-severe impairment.)). “A non-severe impairment by its nature did not cause more than a minimal limitation in ability to perform basic mental work activities.” Id. (citing 20 C.F.R. § 404.1522(a)).
The issue is whether there is substantial evidence to support the ALJ's decision that Plaintiff retains the RFC to perform basic work activity. The ALJ's analysis of the evidence provides a logical bridge between the evidence and her RFC findings. Bennett v. Astrue, No. 1:10-CV-1931-RMG, 2011 WL 2470070, at *3. The court finds that the ALJ evaluated the medical evidence of record and, based on the evidence as a whole, she assessed Plaintiff's RFC. Accordingly, the ALJ's RFC assessment regarding Plaintiff's capabilities is supported by substantial evidence. Ladda v. Berryhill, 749 Fed.Appx. 166, 173 (4th Cir. 2018) (finding remand unnecessary when the ALJ assessed the plaintiff's capacity to perform relevant functions and when the record in the case was adequate).
1. Plaintiff's Subjective Symptoms
Plaintiff alleges the “ALJ did not properly evaluate [his] subjective symptomology.” Pl.'s Br. 30. The Commissioner contends that substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints. Def.'s Br. 20.
A claimant's subjective allegations of pain or other symptoms alone can never establish disability. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(a); SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017). Rather, the ALJ must consider “the extent to which [statements about subjective] symptoms can reasonably be accepted as consistent with objective medical evidence and other evidence” in the record. Id. SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3. Then the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities ....” Id. at *4. “In considering the intensity, persistence, and limiting effects of an individual's symptoms, [the ALJ] examine[s] 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. Here, the ALJ considered Plaintiff's subjective statements using the two-step process and determined “[a]fter careful consideration of the evidence,” that although Plaintiff's medically determinable impairments could reasonable be expected to cause the alleged symptoms, “the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” Tr. 636.
Regarding the ALJ's consideration of Plaintiff's statements about her symptoms, Plaintiff acknowledges that the “ALJ provided some insight into this conclusion, but [Plaintiff] submits her reasoning is not supported by substantial evidence.” Pl.'s Br. 31. The Commissioner counters that the ALJ's assessment of Plaintiff's subjective complaints “is legally correct, supported by substantial evidence, and susceptible to judicial review” noting that the ALJ completed the required two-step analysis. Def.'s Br. 21-22. The Commissioner also notes that after completing her analysis, the ALJ “proceeded to point to ample evidence in support of her conclusion that Plaintiff's statements were not entirely consistent with the evidence, including Plaintiff's treatment.” Id. at 22.
Plaintiff first contends that in noting he “elected to continue the conservative care under Dr. Willoughby” for his back pain the ALJ did not consider that the record shows Plaintiff's insurance would not pay for the surgery. Pl.'s Br. 31 (citing Tr. 251). However, the record cited by Plaintiff to support this assertion does not indicate that Plaintiff's insurance would not pay for surgery. This exhibit is a December 16, 2015 Progress Note from Dr. Eugene Giddens wherein he notes that a discogram “was not approved by [Plaintiff's] insurance company[.]” Tr. 251. However, a discogram-which is an imaging test-is not the recommended surgery. This same note indicates that Dr. Giddens suggested Plaintiff undergo a decompressive laminectomy with spinal fusion and screw fixation, and that Plaintiff “wishes to proceed.”7 Id. In later records cited by the ALJ, Dr. Willoughby noted that Plaintiff “has had a discogram procedure done by a local physician” and recommended that based on the results of the discogram, steroid injections would be the appropriate treatment. Tr. 448-49 (see ALJ's decision at Tr. 636 referencing Exhibit 10F/30). Accordingly, there is no evidence that Plaintiff declined surgery due to the lack of insurance.
Plaintiff argues that in writing that in September 2017 Plaintiff underwent a conservative course of treatment, the “ALJ omits the notation that despite conservative measures, [Plaintiff] had only modest improvement and he was a candidate for diagnostic blocks (Tr. 423).” Pl.'s Br. 31-32. The Commissioner contends that the “ALJ acknowledged that when Plaintiff's symptoms because less responsive” to conservative treatment “he ‘underwent rhizotomies/medial branch 7
The ALJ also noted that in his hearing testimony Plaintiff stated that although Dr. Giddens recommended surgery, “Dr. Johnson at Spinal Institute disagreed with surgery prior to trying several other procedures.” Tr. 635. blocks/radiofrequency ablations with significant, albeit temporary, relief of his pain symptoms' (Tr. 638).” Def.'s Br. 22. The record shows that the ALJ did not omit this information as Plaintiff argues.
Plaintiff alleges the “ALJ also fails to explain how the evidence that demonstrates [Plaintiff] had a slow and cautious gait was accounted for in the RFC” or how she considered statements that “supported [his] statements about edema that caused him to need to lie down and elevate his lower extremities (Tr. 549, 532, 1298-1299, 1342-1344, 1210-1213, 1407-1409, 1445-1449).”8 Pl.'s Br. 32. The ALJ noted Plaintiff's testimony that he “spent most of the day in a reclined position or lying down relieve the swelling in his ankles.” Tr. 635. The ALJ also noted that throughout the course of his treatment Plaintiff “was observed to have a slow and cautious, but normal gait, without an assistive device (Exhibits 6A/11;10F/13, 16, 22, 27, 36, 42)” but he also was “continually noted to have 5/5 strength, normal deep tendon reflexes, negative straight leg tests, intact coordination, and normal deep tendon reflexes, with no numbness or tingling (Exhibits 6A/11; 10F/6, 7, 16, 25, 36, 52).” Tr. 637. The ALJ determined that “the medical record of evidence supports the limitations as outlined in the above residual functional capacity assessment which include no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and stairs, stooping, kneeling, crouching, and crawling; frequent use of the upper extremities for pushing/pulling as well as handling/fingering.” Tr. 638.
Plaintiff also argues the ALJ, when relying on his activities of daily living, did not consider his reports of limiting pain or performing activities at his own pace. Pl.'s Br 32-34. The Commissioner argues that the ALJ was “entitled” to rely on evidence regarding Plaintiff's 8
While these exhibits reference “edema” in Plaintiff's ankles or lower extremities, no doctor indicated that Plaintiff needed to recline or elevate his legs. activities and her references to Plaintiff's activities “were not a misrepresentation, but rather taken from the record (Tr. 638, referring to, e.g., Tr. 190-95, 386).” Def.'s Br. 23. The Commissioner also noted that “the ALJ considered Plaintiff's reported limitations in completing these activities (Tr. 635).” Id. The ALJ described Plaintiff's testimony regarding his limitations on sitting for only 5-10 minutes, walking for less than five minutes before needing to rest, and standing for 10-15 minutes, and his ability to lift and carry 10-15 pounds. Tr. 635. Citing to Plaintiff's Function Report and the medical records, the ALJ found Plaintiff's statements were “not entirely consistent with the medical evidence.” Tr. 638. The ALJ noted:
Specifically, the claimant's records note that he walks daily for exercise, two miles a day (4E/4; 8F/3-4; 10F).9 He can lift 25 pounds (4E/1). He reported that he is still able to feed and take dogs out twice per day. He can still cook for up to 20 minutes (4E/3). He performs light cleaning and laundry for an hour at a time, twice per week (4E/3). He still drives and shops for food and household items on a regular basis (4E/3-4).Id. Here, the ALJ considered Plaintiff statements about his abilities and his reported limitations but determined his activities “are not consistent with the level of limitation the claimant alleges. Accordingly, I find that limiting the claimant to light work with additional postural limitations as described above, fully accommodates his impairment, and nothing in the record suggests the claimant has further limitation.” Id.
The ALJ did not materially overstate Plaintiff's activities. The record contains varying statements from Plaintiff regarding his abilities. The relevant inquiry is whether the ALJ's 9
Exhibit 4E is Plaintiff's self-reported Function Report-Adult. Tr. 190-97. Exhibit 8F/3-4 is an August 2017 Progress Note. In this note Plaintiff reported that he “walks 2 miles per day. He denies any chest pain or pressure at rest or with exertion. He denies shortness of breath, orthopnea, PND or pedal edema. He denies palpitations or syncope.” Tr. 385. As to his obesity, the physician's assistant noted that Plaintiff “states he walks 2 miles a day. States he has a good diet and does not need to make any modifications.” Tr. 386. Treatment notes in Exhibit 10F report that Plaintiff indicates he continues to engage in a home exercise program and daily walking. decision is supported by substantial evidence. Given the different statements made by Plaintiff regarding the level of activities he could perform, the ALJ fulfilled her duty to weigh the conflicting evidence and determine which of Plaintiff's statements was most consistent with the evidence of record. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on . . . the ALJ.”) (internal citation omitted). Here, the ALJ relied on other evidence besides Plaintiff's daily activities in formulating her RFC assessment including years of objective medical evidence such as nerve conduction studies, MRIs, and other diagnostic imaging, along with reports of Plaintiff's treating and examining physicians, and Plaintiff's statements and reports to these same physicians. Tr. 636-37. Like other district court cases, the ALJ's alleged omission of certain qualifying information here does nothing to diminish her discussion of Plaintiff's activities and does not require remand. May v. Kijakazi, No. CV 9:20-02197-MGL, 2022 WL 593957, at *4 (D.S.C. Feb. 25, 2022) (citing Henson v. Berryhill, C/A No. 1:15-cv-00123-RJC, 2017 WL 5195882, at *8 (W.D. N.C. Nov. 9, 2017) (noting “[a]lthough the ALJ did not accurately recount the limitations put forth on [p]laintiff's daily activities, he nonetheless recounted medical evidence to support his conclusion that [p]laintiff's testimony was not entirely credible.”) (footnote omitted); Harvey v. Saul, C/A No. 9:20-cv-00135-TMC, 2021 WL 3012641, at *5-6 (D.S.C. July 16, 2021) (noting although the ALJ omitted certain qualifying language when listing plaintiff's daily activities, this error failed to necessitate remand when the ALJ's decision was ultimately supported by substantial evidence)). The undersigned recommends a finding that the ALJ did not err in her consideration of Plaintiff's activities.
Plaintiff's citation to selective evidence does not render the ALJ's decision unsupported by substantial evidence because the ALJ's decision reflects careful consideration of the medical evidence as a whole and the limitations that stem from Plaintiff's impairments. The ALJ adequately explained the reasons supporting her determination that Plaintiff's statements of disabling symptoms were not entirely consistent with the record evidence. The ALJ followed the applicable regulations in considering and discounting some of Plaintiff's subjective complaints. Plaintiff's disagreement with the ALJ's decision is no reason to overturn it. Johnson v. Barnhart, 434 F.3d at 653 (quoting Craig, 76 F.3d at 589).
III. Conclusion and Recommendation
The court's function 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 v. Sullivan, 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 that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”