Opinion
No. 2:17-CV-00048-D
11-13-2018
Sandra Harris Griffin, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner for Operations, Defendant.
Memorandum & Recommendation
Plaintiff Sandra Harris Griffin instituted this action in October 2017 to challenge the denial of her application for social security income. Griffin claims that the Administrative Law Judge ("ALJ") Katherine D. Wisz erred in (1) weighing the medical evidence, (2) determining that Griffin had the residual functional capacity ("RFC") to perform a reduced range of light work, (3) failing to properly assess Griffin's statements about her symptoms, (4) failing to set forth all of Griffin's limitations the hypothetical questions posed to the Vocational Expert ("VE"), (5) finding that Griffin could perform her past work as a general office clerk, and (6) failing to apply the appropriate Medical Vocational Guideline ("Grid Rule"). Both Griffin and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 15, 21.
After reviewing the parties' arguments, the court has determined that ALJ Wisz reached the appropriate determination. Substantial evidence supports ALJ Wisz's evaluation of the medical opinion evidence and her finding that Griffin can perform light work with restrictions. Griffin has failed to demonstrate any error by ALJ Wisz in considering Griffin's statements about her impairments. ALJ Wisz's hypothetical questions to the VE set forth all of Griffin's well-supported limitations. And ALJ Wisz's step four finding that Griffin can perform her past relevant work is clear and supported by substantial evidence. Because ALJ Wisz decided this case at step four of the sequential evaluation process, she did not have to apply the relevant Grid Rule at step five. Therefore, the undersigned magistrate judge recommends that the court deny Griffin's motion, grant the Commissioner's motion, and affirm the Commissioner's determination.
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 August 2013, Griffin filed an application for disability insurance benefits, alleging a disability that began in April 2006. After her claim was denied at the initial level and upon reconsideration, Griffin appeared before ALJ Wisz for a hearing to determine whether she was entitled to benefits. ALJ Wisz determined Griffin was not entitled to benefits because she was not disabled. Tr. at 15-30.
ALJ Wisz noted that Griffin's date last insured ("DLI") was December 31, 2011. Thus, Griffin had to show she was disabled from her alleged onset date, April 16, 2006, through her the DLI to receive benefits. Tr. at 15.
ALJ Wisz found that Griffin had severe impairments: degenerative disc disease of the lumbar spine and scoliosis. Tr. at 17. ALJ Wisz also found that Griffin's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 18.
ALJ Wisz then determined that Griffin had the RFC to perform light work with limitations. Tr. at 20. Griffin can occasionally lift and carry 20 pounds and frequently lift and carry ten pounds. Id. She can sit and stand or walk six hours in an eight-hour workday. Id. And Griffin can occasionally climb, balance, stoop, and kneel. Id.
ALJ Wisz concluded that Griffin could perform her past relevant work as a general office clerk. Tr. at 29. Thus, ALJ Wisz found that Griffin was not disabled. Tr. at 30.
After unsuccessfully seeking review by the Appeals Council, Griffin began this action in October 2017. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the 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 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 conclusively 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 Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Griffin has a back condition that predates her alleged onset date. In 1997, after undergoing back surgery, Griffin filed a workers' compensation claim, which was settled. Tr. at 21. Griffin then worked as a bookkeeper in her husband's office. Id. As the business grew, she hired an assistant because she had trouble lifting. Id. She stopped working in April 2006. Id.
Denise Griggs, a family nurse practitioner, examined Griffin in June and again in July 2006. Griffin reported an improvement in her back pain at both visits. Tr. at 26. A July 2006 MRI revealed a recurrent disc protrusion at L4-5 with associated degenerative endplate disease and a small tear of the annulus at L3-4. Id. A second MRI seven months later showed no significant interval change. Id.
Griffin next sought treatment for her back pain in 2009 when urgent care providers assessed her with a lumbar strain. Tr. at 247. In August 2010, Griffin aggravated her back, but she could do yard work one month later. Tr. at 26. Two months later, Griffin reported that her back was slightly painful, but she was able to paint the exterior of her home. Id. In early 2011, Griffin stated she had completed painting the entire exterior of her home and she was able to increase her driving distance and frequency because she was better able to ride in a car. Id.
In August 2011, Dr. J. Abbott Byrd, III, an orthopedist, saw Griffin for back pain radiating into her right leg. Tr. at 24. Griffin stated she had fallen while carrying a 30-pound child. Id. She reported numbness and tingling in her toes and weakness in her lower extremities. Id. An examination revealed lumbosacral tenderness, negative straight leg raises, and intact reflexes, sensation, and motor function. Id. Dr. Byrd opined that her back condition was mainly mechanical. Id. He prescribed medications and he referred Griffin to physical therapy. Id.
Griffin began physical therapy the next month. Id. One week later, she reported improvement in her symptoms. Id. Within weeks, physical therapy notes reflect that Griffin condition had improved significantly. Tr. at 25. Physical therapist Amy Robinson opined that Griffin had no restrictions on lifting and that she had been self-limiting her activities. Tr. at 27.
Griffin reported to Dr. Byrd that she was 80% better with physical therapy. Tr. at 25. While her lumbosacral region was unpained, Griffin had numbness and tingling on the bottom of her foot, but she was not taking the medication prescribed. Id.
Dr. Byrd next examined Griffin two months later. Id. She stated that she experienced significant low back pain that radiated into the right lower extremity. Id. She reported that walking helped her symptoms. Tr. at 27. Dr. Byrd opined that Griffin's symptoms were attributable to advanced degenerative changes with foraminal stenosis at L4-5 following excision of the right L4-5 disc herniation. Tr. at 25. Her treatment options included surgery or medication management. Id. Because her pain was severe, not improving, and adversely affecting her lifestyle, Griffin opted for surgical decompression and fusion at L4-5. Id. But she underwent an epidural steroid injection in the interim. Id. Treatment records note that surgery Griffin would not have surgery if her pain improved. Id.
Griffin follow-up with Griggs the next month. Id. She had constant back pain radiating into her lower extremities, but it was better than it had been earlier. Id. Griffin also reported burning in her leg, an ache on her right side, and numbness in her toes. Id. She decided against surgery. Id.
Records from 2012 through 2014 reflect that Griffin continued to experience back pain but it did not prevent her from engaging in many activities. Id. Griffin did yard work and increased her work around the house. Tr. at 25-26.
In June 2014, state agency physician Dr. Dakota Cox found that, as of her date last insured, Griffin could perform light work with some postural limitations. Tr. at 28.
In October 2014, nurse practitioner Kristen Schaible opined that Griffin should not lift, twist, or bend, and that she needed to alternate between lying and standing or walking. Tr. at 27. She was, however, able to walk at her own pace as much as she could tolerate. Id.
After undergoing a right L4-5 discectomy in October 2014, Griffin reported a resolution of her preoperative back and right leg pain. Tr. at 26. One year later, an MRI revealed L4 nerve root displacement much like earlier studies, suggesting her prior condition had not changed. Id. Griffin continued to treat her condition conservatively with medication and physical therapy. Id.
Two months later, Griffin stated that surgery had successfully relieved her sciatic pain in her right leg but that her back pain had flared after mowing her lawn. Id. Griffin also reported that she was caring for her husband following his stroke. Id. Providers prescribed her medications. Id.
In May 2016, Griggs issued an assessment on Griffin's condition. Tr. at 27. It noted that Griggs had treated Griffin since 2006. Id. Griggs observed that Griffin had chronic lower back pain with radiculopathy to the pelvic region and bilateral legs. Id. Activities of daily living increased Griffin's pain symptoms. Id. Griggs pointed out that Griffin displayed a reduced range of motion in her lumbar spine and hips. Id.
Griggs opined that Griffin's pain was severe enough to interfere with her attention and concentration. Tr. at 28. She concluded that Griffin could sit for 15 minutes before alternating positions to standing or walking about. Id. Griggs also found that Griffin could stand or walk for 15 minutes, up to two hours per day, before returning to a seated position. Id. And Griggs opined that Griffin could stand or walk for 15 minutes before needing to lie down or recline in a supine position for 30 minutes. Id.
Griggs also determined that Griffin needed extra rest periods and an additional two-hour afternoon break to relieve her pain. Id. Griggs limited Griffin to frequently lifting or carrying one to five pounds and occasionally lifting or carrying 15 pounds. Id. Griggs opined that Griffin's symptoms would cause her to be absent from work more than three times per month. Id. Griggs stated that her assessment of Griffin's condition and her assessed restriction existed since August 2011. Id.
D. Medical Opinion Evidence
Griffin first argues that ALJ Wisz erred in assigning little weight to Griggs's opinion since she was Griffin's treating family nurse practitioner. The Commissioner contends, and the undersigned agrees, that ALJ Wisz properly considered Griggs's opinion.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must 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 [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must offer an explanation of the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
ALJ Wisz gave little weight to Griggs's opinion. Tr. at 28. ALJ Wisz noted that Griggs had a treating relationship with Griffin, but found that her report appeared to be based on Griffin's statements instead of Griggs's own observations or examination findings. Id. ALJ Wisz remarked that the extreme limitations Griggs assessed were inconsistent with Griffin's reported activities such as cleaning her house, mowing her lawn, and caring for her husband after he suffered a stroke. Id.
Griffin argues that Griggs's assessment that she could perform only a reduced range of sedentary work deserved great weight. Despite ALJ Wisz's assessment, Griffin contends that the record supports Griggs's opinion and points out that she complained of constant pain. Griffin also asserts that ALJ Wisz failed to identify substantial inconsistencies to support her evaluation of Griggs's report.
Yet the Commissioner observes that Griggs's assessment was completed on a check-box form with no details, explanation, or examination findings noted. It is thus difficult to determine why she found Griffin so limited. So ALJ Wisz's conclusion that Griggs based her findings on Griffin's statements is reasonable.
And Griggs's report is inconsistent with Griffin's activities, as ALJ Wisz noted. Despite her statements of constant pain, Griffin cleaned her house, mowed her lawn, and cared for her husband after he suffered a stroke. Such activities discredit the severe restrictions on functioning that Griggs assessed.
The medical record also undermines Griggs's assessment. For instance, Griffin reported to providers that her condition improved with physical therapy, and medication and walking improved her pain and other symptoms.
In sum, the undersigned finds ALJ Wisz's consideration of Griggs's assessment sufficiently reasoned and well-supported by the evidence. So Griffin's argument on this issue lacks merit and should be denied.
E. Residual Functional Capacity
Griffin asserts next that she cannot meet the demands of a reduced range of light work on a regular and continuing basis. The Commissioner contends that the record supports ALJ Wisz's RFC finding. The undersigned finds that substantial evidence supports the 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; 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 [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 Social Security Ruling ("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 v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). 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 F. App'x 750, 755 (4th Cir. 2015).
As noted above, ALJ Wisz determined that Griffin could perform a reduced range of light work. Tr. at 20. Griffin contends, however, that the physical and mental demands of light work exceed her functional abilities. For example, Griffin states that she cannot sit, stand, or walk for six hours in an eight-hour workday because of her leg and back pain and she would often be absent from work because of her impairments.
But as ALJ Wisz observed, the evidence supported a finding that Griffin could meet the demands of light work, with limitations. The record establishes that Griffin did not receive extensive treatment for her back impairment during the relevant period. Tr. at 26. Griffin had back surgery in 1997, which improved her condition and brought her 90% relief of her symptoms. Tr. at 271. ALJ Wisz remarked that Griffin received treatment twice in 2006 and no treatment in 2007, except for an MRI, for her back. She received no treatment for her back pain in 2008 and only sought treatment once in 2009.
Although she claimed her back went out in August 2010, she reported doing yard work one month later. Tr. at 335. In October 2010, Griffin reported some pain but remarked that she was currently painting the outside of her home, tr. at 333, and she had completed painting the entire exterior of her home three months later, tr. at 331. And by May 2011, Griffin reported that she had increased her driving distances because her symptoms had improved. Tr. at 329.
Three months later, Griffin sought treatment after falling while holding a 30-pound child. Straight leg testing was positive upon examination, but testing produced negative results only a few weeks later. A course of physical therapy yielded an 80% improvement in Griffin's pain symptoms after only a few weeks. Although she experienced increased pain two months later, Griffin declined surgery and opted instead for an epidural steroid injection. She then sought no further orthopedic treatment.
So the evidence shows that, during the applicable period, Griffin had minimal treatment for back pain before suffering a fall in August 2011. At that time, she was holding a 30-pound child, suggesting her lifting and carrying ability is greater than she claimed. Griffin reported an improvement in her symptoms following physical therapy. She was also able to paint the entire exterior of her home. And Griffin sought no specialized treatment after receiving a steroid injection in December 2010.
After this time, Griffin's activities—cleaning her house, mowing her lawn, and caring for her husband following his stroke—also suggest she could perform the demands associated with light work. Thus, despite her allegations of pain, the evidence suggests that Griffin's functioning is not inconsistent with light work. Substantial evidence supports ALJ Wisz's RFC determination. For this reason, she undersigned recommends that the court deny her motion on this issue.
F. Griffin's Statements of Symptoms
Shortly before the ALJ's decision, the Social Security Administration issued SSR 16-3p, which addressed credibility. In superceding SSR 96-7p, the new Ruling eliminated the term "credibility," noting that "subjective symptom evaluation is not an examination of an individual's character[]" and directed that the determination "contain specific reasons for the weight given to the individual's symptoms[.]" SSR 16-3p. However, the methodology required by both SSR 16-3p and SSR 96-7p are quite similar. Both require the ALJ to consider a claimant's report of her own symptoms against the backdrop of the entire case record; in SSR 96-7p, this resulted in a "credibility" analysis, in SSR 16-3, this allows the adjudicator to evaluate "consistency." See Harwley v. Berryhill, Case No. 6:16-cv-32, 2017 WL 4276833, at *8 n.14 (W.D. Va. Sept. 26, 2017). --------
Griffin next argument is that ALJ Wisz erred in failing to fully credit her statements of symptoms. She maintains that the evidence supports her statements about the limiting effects of her impairments. The Commissioner submits that ALJ Wisz properly analyzed Griffin's statements. The undersigned concludes ALJ Wisz properly explained her evaluation of Griffin's symptoms and their limiting effects.
The Social Security Regulations provide the authoritative standard for the evaluating subjective complaints of pain and symptomology. See Craig, 76 F.3d at 593; 20 C.F.R. § 404.1529(a). Under the Regulations, "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Id. at 594. First, as an objective matter, the ALJ must determine whether the claimant has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged. Id.; see also SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). If this threshold question is satisfied, then the ALJ evaluates the actual intensity and persistence of the pain or other symptoms, and the extent to which each affects a claimant's ability to work. Id. at 595. The step two inquiry considers "all available evidence," including objective medical evidence (i.e., medical signs and laboratory findings), medical history, a claimant's daily activities, the location, duration, frequency and intensity of symptoms, precipitating and aggravating factors, type, dosage, effectiveness and adverse side effects of any pain medication, treatment, other than medication, for relief of pain or other symptoms and functional restrictions. Id.; see also 20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996 WL 374186, at *3. The ALJ may not discredit a claimant solely because his subjective complaints are not substantiated by objective medical evidence. See id. at 595-96. But neither is the ALJ obligated to accept the claimant's statements at face value; rather, the ALJ "must make a finding on the credibility of the individual's statements based on a consideration of the entire case record." SSR 96-7p, 1996 WL 374186, at *2.
The ALJ has full discretion to weigh the subjective statements with the objective medical evidence and other matters of record. Craig, 76 F.3d at 595 (holding that claimant's allegations of pain need not be accepted to extent that they are inconsistent with the record); see also Hawley v. Colvin, No. 5:12-cv-260-FL, 2013 WL 6184954, at *15 (E.D.N.C. Nov. 14, 2013) (ALJ need not accept claimant's claims at face value). 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 Wisz found that Griffin's statements of her symptoms were inconsistent with other evidence in the record. Tr. at 22. She noted that Griffin's symptoms did not preclude her from performing many physically-involved activities. Despite her complaints of constant and disabling back pain, Griffin's treatment had been intermittent, and her symptoms improved with conservative modalities such as physical therapy and pain medication. While Griffin claimed she could sit for 15 minutes, walk for 15 minutes, and lift only 15 pounds, she reported to providers that she walked for exercise, moved her lawn, painted her house, and carried a 30-pound child.
Because her own statements about her limitation were inconsistent, ALJ Wisz properly declined to fully credit them. Finding no error in ALJ Wisz's consideration of Griffin's statement, Griffin's argument on this issue lacks merit and should be rejected.
G. Hypothetical Questions
Griffin next maintains that ALJ Wisz erred in her hypothetical questions to the VE. The Commissioner contends that the hypothetical questions to the VE reflected all of Griffin's well-supported limitations. Griffin's argument on this issue is unpersuasive.
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).
Griffin claims that the hypothetical questions to the VE failed to set forth all of her physical and mental limitations. She asserts she cannot meet the exertional requirements associated with light work, must lie down throughout the day to relieve her symptoms, and would often be absent from work.
Although Griffin contends that she has these additional restrictions, the RFC does not incorporate these limitations. As discussed more fully above, substantial evidence supports ALJ Wisz's RFC limitation. While Griffin contends she is further limited in his abilities to sit, stand, walk, lift, and carry; she must lie down throughout the day; and she would have frequent absences, these restrictions lacked support in the record. As a result, ALJ Wisz did not err in omitting these further limitations in either her RFC determination or in the hypothetical questions to the VE. Consequently, the court should reject Griffin's argument on this issue
H. Past Relevant Work
Griffin contends she cannot perform her past relevant work because it exceeds her exertional capabilities. The VE categorized her past relevant work as a general office clerk, which is categorized as light work. Because ALJ Wisz determined Griffin's RFC was consistent with the demands of a general office clerk as it is generally performed and as she actually performed it, she concluded that Griffin could perform this past work. Tr. at 29.
After assessing a claimant's RFC, at step four the ALJ compares the RFC with the physical and mental demands of the claimant's past relevant work and then determines whether the claimant's impairments prevent him or her from performing such work. 20 C.F.R. § 404.1520(e), (f). "The claimant is the primary source for vocational documentation." SSR 82-62, 1982 WL 31386, at *3 (Jan. 1, 1982). In determining a claimant's ability to do past relevant work, the ALJ must consider the following:
1. the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements;Id.
2. medical evidence establishing how the impairment[s] limit[] [his or her] ability to meet the physical demands and mental requirements of such work; and
3. in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles ["DOT"], etc., on the requirements of the work as generally performed in the economy.
"[A] claimant will be found 'not disabled' if he is capable of performing his past relevant work either as he performed it in the past or as it is generally required by employers in the national economy." Pass, 65 F.3d at 1207 (citing SSR 82-61, 1982 WL 31387, at *2). More specifically, a claimant must show "an inability to return to [his] previous work (i.e., occupation), and not simply to [his] specific prior job." DeLoatche, 715 F.2d at 151.
Griffin's arguments centers on a misstatement or typographical error in ALJ Wisz's decision. Her step four finding states that "the claimant was capable of performing past relevant work as a general office clerk." Tr. at 29. In explaining this finding, ALJ Wisz states that "the undersigned finds that the claimant is unable to perform the job as it is actually and generally performed." Id. However, the next paragraph reiterates her step four finding that "the undersigned finds that the claimant is able to perform it as actually and generally performed." Id.
While Griffin contends this inconsistency warrant remand, the undersigned disagrees. Instead, ALJ Wisz's explanation of her step four finding contains a misstatement that the totality of the determination makes clear—Griffin was not disabled because she could perform her past work. As the intent of ALJ Wisz's conclusion is unambiguous, this discrepancy amounts harmless error. The undersigned thus recommends that the court reject Griffin's argument on this issue.
I. Grid Rules
Griffin argues that ALJ Wisz erred by failing to identify the applicable Grid Rule which would direct of finding of "disabled." The Commissioner contends, and the undersigned agrees, that because she decided this case at step four, ALJ Wisz was not required cite the Grid Rules at step five.
As noted above, while a claimant has the burden at steps one through four, it is the 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 F. App'x 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 Commissioner's burden of coming forward with evidence about 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).
Griffin premises her argument on her previous contention that she cannot perform her past relevant work as a general office clerk. As discussed above, however, substantial evidence supports ALJ Harper's determination that Griffin retained the RFC to perform her past work. So ALJ Wisz was not required to apply the Grid Rules at step five. Thus, the court should reject this argument as it, too, lacks merit.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court deny Griffin's Motion for Judgment on the Pleadings (D.E. 15), grant Berryhill's Motion for Judgment on the Pleadings (D.E. 21), and affirm the Commissioner's determination.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: November 13, 2018.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE