Opinion
2:20-CV-00046-FL
09-29-2021
Beverly Hutchings, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge.
Plaintiff Beverly Hutchings challenges Administrative Law Judge (“ALJ”) Wanda L. Wright's denial of her application for social security income. Hutchings claims that ALJ Wright erred in (1) determining her residual functional capacity, (2) disregarding her ability to afford treatment, (3) failing to fully credit her statements of symptoms, and (4) failing to include all of her limitations in questioning the Vocational Examiner (“VE”). Both Hutchings and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 20, 26.
Local Civil Rule 7.2(f) governs the length of memoranda submitted in support of a motion. It explains that “memoranda must confirm to either the page limits or word limits” set out in the Rule. See Eastern District North Carolina Local Civil Rule 7.2(f). For non discovery-related motions, the page limit for a memorandum in support is 30 pages or 8, 400 words. Id. Rule 7.2(f)(2)(A), 7.2(f)(3)(A). Discounting certain items like the case caption and the signature block that do not count towards these limits, see Rule 7.2(f)(1), Hutchings's supporting memorandum does not comply with the provisions set forth in the Local Civil Rules. This court has previously instructed counsel to bring his submissions into compliance. See White v. Saul, No. 2:19-CV-12-D, 2020 WL 5166607, at * 1 n.1 (E.D. N.C. July 24, 2020); Campbell v. Berryhill, No. 2:17-CV-10-D, 2018 WL 3719646, at *1 n.1 (E.D. N.C. July 18, 2018); Rette v. Berryhill, No. 2:17-CV-25-D, 2018 WL 2926274, at *1 n.1 (E.D. N.C. May 24, 2018); The court again reminds counsel for Hutchings that future submission must conform to the requirements of Local Civil.
After reviewing the parties' arguments, the court has determined that ALJ Wright reached the appropriate determination. The evidence supports her finding that Hutchings can perform work at all exertional levels with nonexertional restrictions. ALJ Wright did not need to examine Hutchings's financial circumstances. She offered reasons why she declined to fully adopt Hutchings's statements about the limiting effects of her symptoms. And ALJ Wright's hypothetical questions at step five included all of Hutchings's well-supported limitations. The undersigned thus recommends that the court deny Hutchings's motion, grant Kijakazi's motion, and affirm the Acting Commissioner's decision.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In October 2016, Hutchings applied for supplemental security income alleging a disability that began in April 1992. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Hutchings appeared before ALJ Wright for a hearing to determine whether she was entitled to benefits. ALJ Wright determined Hutchings had no right to benefits because she was not disabled. Tr. at 13-27.
ALJ Wright found that Hutchings had several severe impairments: social anxiety disorder with panic attacks, attention deficit hyperactivity disorder (“ADHD”), dependent personality disorder, and autism. Tr. at 15. ALJ Wright also found that Hutchings's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 16.
ALJ Wright then determined that Hutchings had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels with nonexertional restrictions. Tr. at 17- 18. Hutchings can understand, remember, and execute job tasks requiring a reasoning level of one or two as defined in the Dictionary of Occupational Titles (“DOT”). Id. She can sustain attention and pace to carry out instructions for eight hours, in two-hour intervals. Id.
Hutchings can work in proximity to, but not coordinate with, coworkers and supervisors. Id. She cannot have contact with the public. Id. Hutchings requires a low-stress environment, defined as no fast-paced production, only simple, work-related decisions, and few or no changes in the work routine. Id.
ALJ Wright concluded that Hutchings had no past relevant work. Tr. at 26. But considering her age, education, work experience, and RFC, ALJ Wright found that jobs existed in significant numbers in the national economy that Hutchings could perform. Id. These include hospital cleaner, salvage laborer, and hand packager. Id. Thus, ALJ Wright found that Hutchings was not disabled. Tr. at 27.
After unsuccessfully seeking review by the Appeals Council, Hutchings began this action in July 2020. D.E. 5.
II. Analysis
A. Standard for Review of the 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 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
Hutchings has a history of mental health symptoms. In 2011, she underwent a consultative psychological examination. Tr. at 19. The psychologist found that Hutching tested in the average range of intellectual abilities. Id. But her processing speed was weak. Id. The psychologist found that Hutchings could perform repetitive tasks. Tr. at 20. And he noted her mother's comment that she did not handle stress well. Id.
Five years later, Dr. Dorothy Rosenke conducted a psychological interview. Id. She found Hutchings friendly and talkative, although somewhat tangential and off-task. Id. She was alert, oriented, and logical, with an unremarkable thought content. Id. Dr. Rosenke found Hutchings had good concentration and a good ability to make judgments. Id.
Based on testing she administered, Dr. Rosenke remarked that Hutchings had not developed normal life skills for successful living, socialization, or employment. Id. She noted level one autism spectrum, and concluded that Hutchings should work towards her GED. Tr. at 20-21. Dr. Rosenke also commented that Hutchings suffered from a psychiatric disturbance and should be considered for SSI. Tr. at 21.
In March 2017, Dr. Richard J. Bing performed a consultative psychological examination. Id. Hutchings appeared anxious at first, and she said she was easily distracted and uncomfortable around people. Id. Her daily activities included reading, playing video games, and chatting with friends. Id. Her mother reported that Hutchings could not handle multiple instructions or commit to decisions. Id.
A mental status examination found well-organized and goal-directed thinking. Id. Hutchings's speech displayed no lack of prosody or syntax oddities often found in individuals with autism spectrum disorder. Id. She could perform serial 3s and simple math calculations. Id. Hutchings interpreted proverbs correctly and responded reasonably to questions. Id. Dr. Bing's impressions were ADHD, predominantly inattentive presentation and mild, as well as dependent personality disorder. Id.
Dr. Bing determined that Hutchings would have trouble tolerating the stress and pressure of daily work without treatment. Tr. at 24. He noted her social issues. Id. Although her lack of employment made sustaining full-time employment “a bit difficult, ” Dr. Bing found that Hutchings “clearly demonstrated” that she could understand, retain, and follow instructions and sustain attention and concentration to perform simple, repetitive tasks. Id.
Dr. Sylvester Odeke performed a consultative examination of Hutchings two months later. Tr. at 21. He noted that her memory and concentration were normal. Id. Hutchings had a full range of motion in all her extremities. Tr. at 22. She presented with no musculoskeletal or neurological abnormalities. Id. So Dr. Odeke found no exertional, postural, or environmental limitations. Id. But he did note that Hutchings had decreased visual acuity. Tr. at 25.
Following her hearing before ALJ Wright, Hutchings underwent another consultative psychological examination. Tr. at 22. Dr. Janice L. McGilberry noted that Hutchings performed her daily activities without assistance. Id. Hutchings reported positive and productive interpersonal relationships. Id. She received food stamps and financial assistance from family. Id. And Hutchings remarked that she did not have a driver's license and could be impulsive. Id.
Dr. McGilberry's examination found no evidence of impaired mobility or abnormal motor movement. Id. But Hutchings sometimes broke eye contact and stood up because of back pain and dizziness. Id.
Dr. McGilberry described Hutchings as cooperative and able to follow directions. Id. She communicated effectively and showed no problems with alertness or impulse control. Id. Hutching had an unremarkable affect and adequate attention and concentration. Id. Her thoughts were mostly organized and goal-oriented, with no tangentiality. Id.
Hutchings completed serial 3s from 50 but could not answer simple math questions. Id. But she properly interpreted proverbs and demonstrated adequate insight and judgment in answering hypothetical questions. Id.
Dr. McGilberry noted that Hutchings was somewhat self-sufficient in her personal and social life, but minimally self-sufficient in the occupational context. Tr. at 23. But Hutchings appeared to exaggerate her problems. Tr. at 22.
Dr. McGilberry found that Hutchings could understand, retain, and follow instructions to perform simple, routine, repetitive tasks. Id. And she determined that therapy, medication, and vocational training would improve Hutching's functioning. Id. Dr. McGilberry noted no occupation evidence supporting a limitation in interacting with coworkers or responding appropriately to supervisors. Tr. at 25.
A state agency reviewer found that Hutchings suffered no severe physical impairments at the initial level. Id. On reconsideration, the state agency reviewer noted her visual acuity deficit, although it was not a severe impairment. Tr. at 23-24.
Dr. Darolyn Hilts, a state agency psychologist, found that Hutchings retained the mental residual functional capacity to carry out short and simple instructions and maintain attention and concentration to do so for two hours, as the completion of simple tasks required. Tr. at 24. She concluded that Hutchings could interact with others in a stable work environment with limited social demands. Id. And she could adapt to minor changes in the work setting with notice of the changes. Id.
At the reconsideration level, consultative psychologist Dr. Bruce Lipietz found that Hutchings was mildly limited in understanding, remembering, or applying information. Id. And she had moderate limitations in maintaining concentration, persistence, or pace, interacting with others, and adapting or managing herself. Id. And Dr. Lipietz assessed the same mental residual functional capacity as Dr. Hilts. Id.
Hutchings testified that she has trouble handling people, thinking they are judging her. Tr. at 18. She is impatient and “cracks” under pressure. Id. Hutchings experiences intrusive thoughts and panic attacks. Id.
Although she does chores, Hutchings must take breaks. Id. She experiences fatigue and pain in her back and legs. Id. She cannot drive. Id.
Hutchings withdrew from school in ninth grade. Id. She has given up on earning her GED. Tr. at 19. Hutchings has never held a job. Id. And she reported that she forgets things. Id.
Michelle Anderson, Hutchings's mother, testified that Hutchings cannot understand directions with more than one step. Id. She claimed Hutchings cannot tell time or handle money well. Id. Hutchings is shy, has anxiety attacks, and does not do well in public. Id. Providers assessed Hutchings with autism in 2016. Id.
D. Residual Functional Capacity
Hutchings contends that ALJ Wright erred in determining her RFC by finding that she could perform work at all exertional levels with only nonexertional limitations. The Commissioner asserts that the RFC sufficiently reflects all Hutchings's well-supported limitations. The court finds that substantial evidence supports ALJ Wright's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe, ” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford 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 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
ALJ Wright determined that Hutchings could perform work at all exertional levels. Tr. at 17-18. She has nonexertional restrictions on task complexity, social interactions, and workplace demands. Id. But the RFC included no exertional or physical limitations.
1. Exertional Demands
Hutchings contends that she cannot perform the physical demands of medium work-the exertional level of the three jobs identified at step five. She asserts that she has fatigue and back, leg, and chest pain. Coupled with her mental health symptoms, these preclude her from sitting, standing, or walking for six hours in an eight-hour workday and lifting and carrying 25 pounds frequently and 50 pounds occasionally.
As ALJ Wright observed, symptoms alone cannot establish a medical impairment. Tr. at 23-24. The Regulations require an ALJ to “consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain.” SSR 16-3p, 2017 WL 5180304, at *3. A claimant must provide “objective medical evidence from an acceptable medical source to establish the existence of a medically determinable impairment that could reasonably be expected to produce [the] alleged symptoms.” Id. Objective medical evidence consists of medical signs (“anatomical, physiological, or psychological abnormalities established by medically acceptable clinical diagnostic techniques”) and laboratory findings “shown by the use of medically acceptable laboratory diagnostic techniques.” Id.
The state agency medical consultants determined that Hutchings had no severe physical impairments, and only one-visual acuity disturbance-that was non-severe. Tr. at 23. No. medical source concluded that Hutchings had physical limitations. Id. Although a consultative examination noted her reports of back pain, fatigue, and shortness of breath, these reflect Hutchings's subjective complaints, as there were no corroborating clinical signs. Id.
Hutchings alleged only mental impairments when she filed her application. She has identified no physical impairment diagnosed by an acceptable medical source, nor does she point to any physical limitations such a source assessed. And Hutching's attorney conceded that she suffers from no severe physical impairment. Id. Hutchings's statements alone cannot establish an impairment. See 20 C.F.R. § 404.1525(c)(3); see also Nutt v. Comm'r of Soc. Sec. Admin., No. 20-CV-11674, 2021 WL 3828590, at *3 (E.D. Mich. Aug. 27, 2021) (holding that the plaintiff “[can]not rely solely on her subjective statements to make her argument” to establish limitations).
As ALJ Wright determined, the evidence does not show that Hutchings has a severe physical impairments or exertional limitations. Having produced no evidence to the contrary, Hutchings's claim that she cannot meet the exertional demands associated with medium work fails. So the court should reject her argument on this issue.
2. Full-Time Work
Hutchings also argues that ALJ Wright failed to determine whether she could sustain regular, full-time work. The undersigned disagrees.
The assessment of a claimant's RFC examines the individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. The Regulations define “regular and continuing basis” to mean eight hours a day, five days a week, or an equivalent work schedule. SSR 96-8p, at *1. And the Fourth Circuit has found “that RFC determinations may contain implicit findings.” Jackson v. Berryhill, No. 5:15-2994-FDW, 2017 WL 586648 (D.S.C. Feb. 14, 2017) (citing Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006) (“In light of SSR 96-8p, ... [the ALJ's] conclusion implicitly contained a finding that [plaintiff] physically is able to work an eight hour day.”)).
Hutchings argues that an ALJ must consider a claimant's statements about symptoms and limitations. But as discussed below, ALJ Wright did not fully endorse Hutching subjective statements. Tr. at 19.
Along with explicit findings about her exertional ability and nonexertional limitations, the RFC implicitly found that Hutchings can regularly perform full-time work. The court should thus reject her argument on this issue as it lacks merit.
E. Financial Considerations
Hutchings's argues that ALJ Wright failed to explore her inability to afford medical treatment. The undersigned finds no error on this issue.
The Fourth Circuit has held that “[a] claimant may not be penalized for failing to seek treatment she cannot afford.” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (holding that the ALJ erred in determining that the plaintiff's impairment was not severe based on her failure to seek treatment where the record reflected that she could not afford treatment); see also Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) (“It flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him”). So “an ALJ should not discount a claimant's subjective complaints on the basis of her failure to seek medical treatment when she has asserted-and the record does not contradict-that she could not afford such treatment.” Dozier v. Colvin, 2015 WL 4726949, *3 (D.S.C. Aug. 10, 2015) (citing Lovejoy, 790 F.2d at 1117).
The Regulations direct that
[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints . . . we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not . . . seek treatment consistent with the degree of his or her complaints. We may . . . ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints. When we consider the individual's treatment history, we may consider . . . [a]n individual may not be able to afford treatment and may not have access to free or low-cost medical services.SSR 16-3p, at *9-10.
There was some testimony on this issue. Hutchings stated that she had no health insurance and could not afford treatment or medication. Tr, at 46, 55. But she did not identify any treatment or medication she had to forgo for her conditions.
Hutchings's mother mentioned that she needed her wisdom teeth removed. Tr. at 55. But there is no evidence that this is disabling.
ALJ Wright made no finding about Hutchings's inability to obtain treatment or the resources available to her. But she did not determine that Hutchings failed to seek medical treatment. There is no evidence that Hutchings failed to pursue recommended treatment, or that ALJ Wright drew a negative inference from a lack of treatment.
So the undersigned cannot find that ALJ Wright erred in failing to examine Hutchings's financial circumstances. Although there is some evidence of financial constraints, there was no finding by ALJ Wright that Hutchings did not seek or follow treatment consistent with the degree of her complaints. Rather, the evidence shows that her physical complaints were minimal with few, if any, objective signs. Thus they were not disabling.
Because Hutchings's argument lacks merit, the undersigned recommends that the court deny her claim on this issue.
F. Subjective Statements
Next, Hutchings contends that ALJ Wright erred in discounting her statements about her symptoms and their limiting effects on her functioning. The Acting Commissioner argues, and the undersigned agrees, that ALJ Wright properly evaluated Hutchings's subjective statements and explained why she declined to fully endorse them.
Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms. SSR 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c). First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms, such as pain. Id. at *3, §§ 404.1529(b), 416.929(b). Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine how much they limit the claimant's ability to work. Id. §§ 404.1529(c), 416.929(c). In making that determination, the ALJ must “examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
“ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of [diseases] that do[] not produce such evidence.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020) (remanding where ALJ relied on a lack of objective medical evidence, such as normal range of motion and joint inflammation, to discredit the claimant). Nor may an ALJ “consider the type of activities a claimant can perform without also considering the extent to which she can perform them.” Id. at 99 (quoting Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)).
The ALJ has full discretion to weigh the subjective statements with the objective medical evidence and other matters of record. Craig v. Colvin, 76 F.3d 585, 595 (4th Cir. 1996) (holding that claimant's allegations of pain need not be accepted to extent that they conflict with the record). The ALJ may not discredit a claimant's subjective complaints just because the objective medical evidence does not confirm them. Id. at 595-96. But neither is the ALJ obligated to accept the claimant's statements at face value. Hawley v. Colvin, No. 5:12-CV-260-FL, 2013 WL 6184954, at *15 (E.D. N.C. Nov. 14, 2013). In a district court's review, the ALJ's findings are entitled to great weight because of the ALJ's ability to observe and evaluate testimony firsthand. Shively, 739 F.2d at 989-90.
ALJ Wright declined to fully endorse Hutchings's statements of functioning. Tr. at 19. She remarked that Hutching's allegations about her symptoms were not entirely consistent with the evidence. Id.
Hutchings argues that recent Fourth Circuit case law found that the ALJ may not discredit a claimant's statements about symptoms because there is no objective evidence. And, she maintains, pain itself may be disabling.
Hutchings claimed pain in her chest, back, and legs, panic attacks, and trouble with concentration and interacting with others. She posits that these symptoms “naturally” limit her ability to sit, stand, walk, think, and concentrate. And Hutchings submits that further diagnostic testing is reasonable.
But as the Acting Commissioner notes, Hutchings must have objective medical evidence of a condition that can produce the pain or other symptoms she claims. It is not enough for her to rely on her subjective statements alone. So while she alleges a history of chest, back, and leg pain, there is no objective medical evidence of a medical impairment that may cause these symptoms or their associated limitations. Given this lack of evidence, ALJ Wright properly ended her evaluation of Hutchings's statements about her physical symptoms at the first step of the two part inquiry.
Yet she still examined Hutchings's many mental health symptoms and limitations. ALJ Wright determined that, despite her mental health impairments, Hutchings could still perform work-related activity with restrictions on task complexity, attention and pace, interactions with others, work environment, and workplace changes. And the many consultative examinations support ALJ Wright's finding.
Hutchings has shown no error in ALJ Wright's assessment of her statements. So the undersigned recommends that the court deny Hutchings's claim on this issue.
G. Step Five
Hutchings contends that ALJ Wright posed hypothetical questions to the VE that did not include all of her limitations. The Commissioner asserts, and the undersigned agrees, that there is no error with ALJ Wright's step five analysis.
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 Fed.Appx. 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F.Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine “whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]” 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D. N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved.” SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). “Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT.” Id. “When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled.” Id. “At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.” Id.
Hutchings argues that ALJ Wright failed to include all of her limitations in the hypothetical questions to the VE. The VE testified that there was no competitive employment for an individual who were off-task for more than ten percent of the workday, absent more than one and a half days every month, needed to lie down outside normal breaks, or alternated sitting and standing every 30 minutes.
But the hypothetical questions to the VE included all the limitations set forth in Hutchings's RFC determination. Although the VE testified that there would be no work available to a claimant who required additional limitations proposed by Hutchings, ALJ Wright did not credit these limitations or include them in the RFC. As discussed above, substantial evidence supports ALJ Wright's RFC determination. While Hutchings contends that she has additional limitations, this claim lacks support in the record.
So ALJ Wright committed no error in omitting these added restrictions or adopting the VE's testimony in response to a hypothetical question that included them. Thus, the undersigned recommends that the court reject Hutchings's argument on this issue.
III. Conclusion
For all these reasons, the undersigned recommends that the court deny Hutchings's Motion for Judgment on the Pleadings (D.E. 20), grant Kijakazi's Motion for Judgment on the Pleadings (D.E. 26), and affirm the Acting Commissioner's decision.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.