Opinion
C. A. 9:22-cv-04455-JD-MHC
01-10-2024
Natalie I.,[1] Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Natalie I. (Plaintiff) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying her claim for Disability Insurance Benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 11.
Plaintiff applied for DIB in December 2018, alleging disability beginning on November 30, 2017. R.pp. 385-88. Her claim was denied initially and on reconsideration. R.pp. 247, 257. Upon Plaintiff's request, an administrative hearing was held before an ALJ in May 2021. R.pp. 127-66. On July 28, 2021, the ALJ issued a decision finding Plaintiff not disabled through the date of the decision. R.pp. 221-35. Plaintiff requested review by the Appeals Council on September 21, 2021. R.pp. 310-12. On January 20, 2022, the Appeals Council vacated the ALJ's decision and remanded the claim for a de novo hearing. R.pp. 240-46.
On May 12, 2022, the ALJ held a second hearing. R.pp. 84-126. On June 29, 2022, the ALJ issued a partially favorable decision, finding that Plaintiff became disabled on March 17, 2021, instead of her alleged onset date of November 30, 2017. R.pp. 50-83. In other words, the ALJ found that Plaintiff became disabled during the relevant period, but she was not disabled for the entire period. Plaintiff appealed to the Appeals Council, asserting her disability began on November 30, 2017, and that she was entitled to additional accrued benefits from November 30, 2017, through March 17, 2021. R.pp. 42-43. On October 17, 2022, the Appeals Council affirmed the ALJ's decision, making it final. R.pp. 1-6. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled from the alleged onset date of November 30, 2017. R.pp. 53-74. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023.
2. The claimant has not engaged in substantial gainful activity since November 30, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
3. Since the alleged onset date of disability, November 30, 2017, the claimant has had the following severe impairments: decreased vision bilaterally secondary to diabetic retinopathy, macular edema bilaterally, bilateral cataract with surgery, history of vitreous hemorrhage of the right eye, diabetes mellitus with neuropathy, history of right orbital fracture, degenerative disc disease of the cervical spine, and lumbar spine disorders (20 CFR 404.1520(c)).
4. Since November 30, 2017, the claimant has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that prior to March 17, 2021, the date the claimant became disabled, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing and stooping; no kneeling, crouching, or crawling; no jobs requiring precise very fine visual work; no work requiring seeing small objects at a distance or good distance vision; would need to avoid even moderate exposure to dangerous machinery and heights; and will require a cane for ambulation.
6. Prior to March 17, 2021, the claimant was capable of performing past relevant work as a customer service representative. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. After careful consideration of the entire record, the undersigned finds that since March 17, 2021, the claimant has had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing and stooping; no kneeling, crouching, or crawling; no jobs requiring precise very fine visual work; no work requiring seeing small objects at a distance or good distance vision; would need to avoid even moderate exposure to dangerous machinery and heights; will require a cane for ambulation; will be off-task 20% of the workday; and will miss 3 days of work per month.
8. Beginning on March 17, 2021, the claimant's residual functional capacity has prevented her from being able to perform past relevant work (20 CFR 404.1565).
9. The claimant was an individual of advanced age on March 17, 2021, the established disability onset date (20 CFR 404.1563).
10. The claimant has at least a high school education (20 CFR 404.1564).
11. As of the established onset date of disability, considering the claimant's residual functional capacity and vocational factors, the issue of transferability of skills is not material in this decision.
12. Beginning on March 17, 2021, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c) and 404.1566).
13. The claimant was not disabled prior to March 17, 2021, (20 CFR 404.1520(f)) but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g)).R.pp. 56-74.
IV. DISCUSSION
Plaintiff argues the ALJ erred for four main reasons. First, she argues the ALJ failed to properly evaluate medical opinion evidence. ECF No. 12 at 34-40. Second, Plaintiff argues the ALJ failed to properly evaluate her impairments when formulating the RFC. ECF No. 12 at 4043, 49-51. Third, Plaintiff argues the ALJ did not properly evaluate her subjective complaints. ECF No. 12 at 43-47. Fourth, she maintains the ALJ did not adequately consider vocational expert testimony. ECF No. 12 at 47-49. For the reasons that follow, Plaintiff has not shown remand is warranted.
Plaintiff raises seven different “errors” with the ALJ's opinion, which the undersigned has addressed, though consolidating the alleged errors to four main issues.
A. Medical opinion evidence
Plaintiff argues the ALJ erred in considering the medical opinions of Dr. William Crosswell, Plaintiff's treating physician, and Dr. Benjamin Ondersma, an ophthalmologist who conducted a consultative exam at request of the state agency. ECF No. 12 at 34-40. Specifically, Plaintiff contends Dr. Crosswell's opinions from February 2018, July 2018, May 2019, April 2020, April 2021, and July 2021 warranted “great or controlling weight” under the Treating Physician Rule. ECF No. 12 at 36-38. Additionally, Plaintiff contends that Dr. Ondersma's May 2019 consultative exam warranted great weight. ECF No. 12 at 39-40. Plaintiff's entire argument is based on outdated regulations that do not apply to her case, and Plaintiff has failed to show reversible error.
Effective March 27, 2017, numerous social security regulations and social security rulings (SSRs) were amended or superseded, making the new regulations applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017), corrected by 82 Fed.Reg. 15132-01, 2017 WL 1105368 (Mar. 27, 2017). Because Plaintiff's claim for benefits was filed after March 27, 2017, the ALJ was required to evaluate the application under 20 C.F.R. §§ 404.1520c and 416.920c.
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Under the new regulations, the ALJ is not to defer to or give any specific weight to medical opinions based on their source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, ALJs are instructed to consider and evaluate the persuasiveness of the opinion evidence by considering the following factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Supportability and consistency are the most important factors to consider, and an ALJ must explain how these factors are considered in the determination or decision. See 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ may, but is not required to, explain how the other factors are considered. 20 C.F.R. §§ 404.1520c(b)(2), (c), 416.920c(b)(2), (c).
This effectively does away with the so called “Treating Physician Rule” under the provisions of 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), whereby an ALJ was directed to give controlling weight to the opinion of a treating physician if it was well supported by medically-acceptable clinical and laboratory diagnostic techniques and was not inconsistent with the other substantial evidence of record. In addition, 20 C.F.R. §§ 404.1527(c)(5) and 416.927(c)(5) provided that ALJ's should “generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a medical source who is not a specialist.”
This represents another significant departure from the requirements of 20 C.F.R. §§ 404.1527(c) and 416.927(c), whereby, if the ALJ declined to accord controlling weight to the treating physician's opinion, he was to weigh the medical opinions of record based on all of the following factors: (1) examining relationship; (2) treating relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors that tended to support or contradict the opinion.
The supportability factor looks inward-directing an ALJ to examine: (1) the extent to which the objective medical evidence presented by the medical source supports that medical source's opinion; and (2) whether the medical source supports the opinion with explanation.
In evaluating the supportability factor, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). “Supportability” denotes “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5853, 2017 WL 168819 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1).
Conversely, the consistency factor looks outward-directing an ALJ to evaluate a medical source's opinion in comparison to other evidence in the record. Put differently, the ALJ's analysis considers whether the medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
As for the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In other words, “consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(1).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas v. Comm 'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC 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).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe, 826 F.3d at 189 (citation omitted).
Here, in considering all of Dr. Crosswell's opinions, the ALJ found:
In February 2018, Dr. Crosswell completed a form for Family and Medical Leave Act. Dr. Crosswell indicated the claimant is unable to perform any of her job duties. He indicated the claimant's vision is not good at this time, and she cannot see her computer at this time to perform her duties (Exhibit 3F).
The undersigned finds Dr. Crosswell's statements are not persuasive. First of all, Dr. Crosswell does not provide a diagnosis or prognosis, or any clinical findings to support his statements. His statements are vague and without any supporting rationale. Dr. Crosswell's statements are not supported by his own treatment notes that show reduced left eye vision but right eye vision that has been either 20/40 or 20/50 at the visits prior to completion of this form, and limited complaints from the claimant. Dr. Crosswell's statements are not consistent with other evidence of record including treatment notes from Dr. Iverson and Dr. Chen (Exhibits 2F, 4F and 5F).R.pp. 59-60.
In July 2018, Dr. Crosswell completed a form on the claimant's behalf with her disability insurance carrier. Dr. Crosswell indicated the vitreous hemorrhage is the diagnosis impacting function, and the claimant has subjective symptoms of she cannot see to perform her duties. For current functional ability, Dr. Crosswell indicated “n/a” and did not complete this portion of the form. Dr. Crosswell indicated the claimant had not been released yet (Exhibit 10F/4-5, with duplicate at 24F). The undersigned finds this form is of limited persuasiveness. Dr. Crosswell merely reported the claimant's diagnosis and repeated her subjective statement of not being able to see to perform her duties. Dr. Crosswell did not provide any additional information or any rationale.R.p. 61.
Despite the claimant not receiving care from January 2019 until March 2021 with Dr. Crosswell, he completed a form on her behalf with the claimant's disability insurance carrier. In May 2019, Dr. Crosswell answered no as to whether the claimant can perform another occupation that would not require the use of a computer (Exhibit 10F/6). The undersigned finds this conclusion is not persuasive since Dr. Crosswell had not seen the claimant in four months when he completed
this form. He did not provide any rationale or supporting evidence for his statement regarding performance of another occupation. Dr. Crosswell[‘s] statement is not supported by his earlier treatment notes or the treatment notes from other providers, in which no specific work limitations have been indicated.R.p. 62.
It appears that Dr. Crosswell completed a form on the claimant's behalf with her disability insurance carrier in April 2020, and it appears that page 2 of Exhibit 10F that is signed by the claimant was accidentally inserted between the pages. It appears that Dr. Crosswell completed pages 1 and 3 in Exhibit 10F since the numbering of the sections are in order with one another. On page 1, there are five numbered sections of 1-5, and then on page 3 the numbering resumes with sections 6-10. Dr. Crosswell indicated he last saw the claimant on January 9, 2019, that the date of the next visit will be April 21, 2020, and current treatment plan and medications are “just monitoring at this time”. He indicated “n/a” for any surgeries or receiving treatment from any other health care provider. For extent of disability, Dr. Crosswell indicated the claimant is blind in both eyes (Exhibit 10F/1). Dr. Crosswell did not provide any responses on the sections of the form labeled “physical impairment” and “mental/nervous impairment.” Dr. Crosswell indicated the claimant's progress in unchanged, she is ambulatory, and he does not expect any significant improvement in the future. Dr. Crosswell indicated the claimant is not a suitable candidate for further rehabilitation services for her job or any other work, and vocational counseling and/or retraining is not recommended. Dr. Crosswell stated the “patient is legally blind in both eyes” (Exhibit 10F/3).
The undersigned finds Dr. Crosswell's conclusions are not persuasive. First of all, on the form, Dr. Crosswell admits he has not seen the claimant since January 2019, which is a period of over a year. Dr. Crosswell fails to provide any rationale or corroborating statements on this form. Dr. Crosswell's statement that the claimant is legally blind is not supported by his treatment notes, and is not consistent with treatment notes from other providers. While the claimant has had significantly reduced vision in her left eye, her corrected vision in her right eye does not meet the definition of legal blindness.R.pp. 64-65.
In April 2021, Dr. Croswell completed a form on the claimant's behalf with her disability insurance carrier. Dr. Croswell indicated that claimant's primary diagnosis is proliferative diabetic retinopathy. He noted that the claimant was not currently under treatment or taking any medications at this time. Dr. Crosswell did not indicate that the claimant had any work-related functional limitations in this assessment (Exhibit 14F).
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However, in July 2021, Dr. Crosswell completed a questionnaire and indicated that when he saw the claimant on March 17, 2021, her vision had worsened. It appears
that the date of March 17, 2021, may be a scrivener's error because the medical evidence shows the date of the claimant's exam was actually March 25, 2021. Dr. Crosswell indicated the claimant is diagnosed with proliferative diabetic retinopathy in both eyes. Dr. Crosswell reported the claimant's best corrected vision is 20/60 in her right eye and 20/300 in her left eye. This vision is not what is recorded in the treatment notes for the office visit on March 25, 2021. Dr. Crosswell stated her visual field has not narrowed as a result of her visual impairments. Dr. Crosswell reported the claimant is not able to see typical print on a computer screen, newspaper or magazine. Dr. Crosswell indicated that in the future, he expects the claimant's vision to worsen. Dr. Crosswell stated considering the nature, extent, and/or the severity of her visual impairment, the claimant cannot perform clerical work using a computer, reading documents, or work assembling small parts, etc. (Exhibit 19F).
The undersigned finds Dr. Crosswell's findings that the claimant's vision has worsened, and she is not able to see typical print on a computer screen, newspaper or magazine are somewhat persuasive since they are generally reflected in his treatment notes. These conclusions are generally consistent with other evidence of record as of the established onset date of disability including the consultative examination in June 2021, as discussed below.R.p. 67 (paragraph break added for ease of reading).
As to Dr. Ondersma, the ALJ found:
As part of the claimant's application for disability, she underwent a consultative ophthalmological examination in May 2019 with Dr. Ondersma. The claimant reported to Dr. Ondersma that she last had an eye exam one to two years ago, which is inconsistent with treatment notes that show her last eye exam was only four months earlier. She reported a history of laser treatment in the right eye and cataract removal from both eyes. The claimant reported a history of diabetes with diabetic retinopathy, hypercholesterolemia, and hypertension. She indicated her glucose has been stable since she started insulin.
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During the review of systems, the claimant denied any complaints in areas of cardiovascular, musculoskeletal, and neurological. The claimant's uncorrected distant visual acuity was 20/200 bilaterally and her near visual acuity was 20/70 bilaterally. With correction, her right eye distance vision was 20/60 and her left eye distance vision was 20/400. With correction, her right eye near vision was 20/60 and her left eye near vision was 20/400. With correction and using both eyes, the claimant had distance vision of 20/60 and near vision of 20/60. On exam, the claimant's left eye macula appeared moderately elevated. Mild hemorrhaging was noted. Right eye color vision was normal and left eye color vision was abnormal.
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Dr. Ondersma diagnosed the claimant with bilateral status post emulsification with intraocular lens, clinically significant macular edema, mild nonproliferative
diabetic retinopathy with macular edema and Type 2 diabetes, status post retinal surgery, myopia, astigmatism, and presbyopia. The claimant was advised to monitor her cataracts, macular issues, and retinas, and to change her eyeglass prescription. Dr. Ondersma indicated the claimant has impairment due to complications with diabetes and that glasses would improve her vision slightly but no other improvement is expected. Dr. Ondersma stated the claimant has a reduction in vision acuity on the left worse than the right, and visual field constrictions due to treatment of diabetic retinopathy. Dr. Ondersma indicated that based on these findings, he would not expect the claimant to be able to perform basic work-related activities (Exhibit 8F).
The undersigned finds Dr. Ondersma's statement that he would not expect the claimant to be able to perform basic work-related activities is not persuasive. Rather than indicating specific visual limitations, Dr. Ondersma instead made a vocational conclusion. Issues of whether a claimant is able to work, is disabled, or assessments of residual functional capacity are reserved to the Commissioner. Dr. Ondersma's statement that he would not expect the claimant to be able to perform basic work-related activities is not consistent with the medical evidence of record as a whole including clinical notes from treating providers and vision testing.R.pp. 62-63 (paragraph breaks added for ease of reading).
Upon review, the ALJ properly adhered to the new regulations. As an initial matter, all of Plaintiff's arguments are based on outdated regulations or cases that are thirty to sixty years old, which also rely on the outdated regulations. See ECF No. 12 at 35. To the extent Plaintiff argues the ALJ owed any “weight” to these medical opinions, the new regulations have done away with the idea of deferring or giving specific weight to medical opinions. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, as noted above, ALJs are required to articulate their consideration of whether a medical source's opinion: (1) is supported by the source's own records and explanations; and (2) is consistent with the other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ clearly did so here.
Defendant Commissioner points out that Plaintiff's arguments regarding “great weight” or “controlling weight” are based on the outdated regulations. See ECF No. 13 at 9-14. Nevertheless, Plaintiff asserts in her Response Brief that the ALJ “committed reversible error when he failed to accord this evidence great weight and controlling weight.” ECF No. 14 at 2.
Consistent with the regulations-and contrary to what Plaintiff argues-the ALJ properly assessed the persuasiveness of the opinions and explained how the factors of supportability and consistency were considered, rather than assigning any “weight” to the opinions. See 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). For example, as to supportability, the ALJ noted that Dr. Crosswell did not provide a “rationale” or supporting evidence for his conclusions. R.pp. 60, 61, 62. The ALJ explained that Dr. Crosswell's opinions were “vague” and/or conclusory, and noted the opinions did not include any “support[ing]” explanation or “support[ing]” objective medical evidence to bolster his opinions. R.pp. 59-60, 61, 62, 63. The ALJ also considered Dr. Crosswell's treatment notes and found that they too did not support the opined restrictions. See, e.g., R.p. 60 (“Dr. Crosswell's statements are not supported by his own treatment notes that show reduced left eye vision but right eye vision that has been either 20/40 or 20/50 at the visits prior to the completion of this form”).
As to consistency, for example, the ALJ explained that “Dr. Crosswell's statements are not consistent with other evidence of record including treatment notes from Dr. Iverson and Dr. Chen” and “Dr. Crosswell['s] statement is not supported by his earlier treatment notes or [consistentwith] the treatment notes from other providers.” R.pp. 60, 62. As for Dr. Ondersma's opinion regarding basic work activities, the ALJ explained that it was “not consistent with the medical evidence of record as a whole including clinical notes from treating providers and vision testing.” R.p. 63.
Because the ALJ was looking outward at treatment notes from “other providers,” the ALJ was considering the consistency factor, notwithstanding the ALJ's failure to use the term “consistent.” See Hobbs v. Saul, No. 2:20cv00004, 2021 WL 1574421, at *10 (W.D. Va. April 22, 2021) (finding that the ALJ sufficiently addressed the consistency factor even though he did not use the term “consistency” in evaluating the expert's opinion).
Relatedly, the ALJ explained that determinations about Plaintiff's ability to work generally-like Dr. Ondersma's statement that Plaintiff could not perform “basic work activities” or Dr. Crosswell's statement that Plaintiff could perform no work regardless of whether it involved a computer or not-are “reserved to the Commissioner.” R.p. 63. As the regulations make clear, statements that a claimant is disabled, blind, unable to perform regular or continuing work, or unable to perform past relevant work are “inherently neither valuable nor persuasive” because these are statements “on issues reserved to the Commissioner.” See 20 C.F.R. § 404.1520b(c)(3)(i) and (vi). Consequently, to the extent Plaintiff argues the ALJ erred in rejecting portions of the opinion evidence that touched on issues reserved for the ALJ to decide, such arguments are without merit. See, e.g., Jesse T. v. Kijakazi, No. 2:22-CV-101, 2022 WL 19561148, at *12 (E.D. Va. Nov. 21, 2022) (“Whether or not an individual can work is an issue left to the Commissioner, and Dr. Bonner's conclusory statement regarding Plaintiff's ability to work, without more, has little probative value.” (citing 20 C.F.R. § 404.1520b(c)(3)(i))), report and recommendation adopted, No. 2:22CV101, 2023 WL 2537283 (E.D. Va. Mar. 16, 2023).
Plaintiff also argues in a separate section of her brief that the ALJ erred by rejecting “statements of disability by [Doctors] Crosswell, Ondersma, and Schlueter.” ECF No. 12 at 53. Plaintiff maintains that the ALJ's rejection of various opinion evidence and vocational expert testimony amounts to “playing doctor.” See ECF No. 12 at 51-53. This argument fails for the same reason set forth above. See 20 C.F.R. § 404.1520b(c)(3)(i) and (vi). Moreover, the ALJ here did not “play doctor” by rejecting portions of the medical opinions during his persuasiveness evaluations, as he relied on other evidence in the record that conflicted with those opinions. In other words, the ALJ properly evaluated the medical opinions pursuant to the regulations and gave valid reasons for the level of persuasiveness assigned to those opinions. See Edwards v. Saul, No. 1:20-CV-2280-SVH, 2021 WL 210852, at *16 (D.S.C. Jan. 20, 2021) (finding an ALJ “did not impermissibly ‘play doctor' in rejecting a portion of [a medical] opinion” because the ALJ cited ample evidence in the record that conflicted with the opinion). Accordingly, remand on this basis is not warranted. See id. at *14 (“The ALJ considered the findings Dr. Early cited to support his opinion, but also considered other evidence from his exam and the other evidence of record that did not support his opinion . . . [this] was not ‘playing doctor[.]'”).
The undersigned finds that the ALJ explained what he did, why he did it, and supported his conclusions with evidence. To the extent Plaintiff argues other evidence in the record supports her position, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“We must sustain the ALJ's decision, even if we disagree with it, provided the determination is supported by substantial evidence . . . [t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). It is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” (citation omitted)).
Plaintiff merely presents a disagreement with the ALJ's findings and fails to show reversible error. Consequently, the undersigned finds that the ALJ's persuasiveness evaluations of these medical opinions pass muster under substantial evidence review. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
The undersigned agrees, for the reasons stated in the Commissioner's brief, that the ALJ's persuasiveness evaluations were supported by substantial evidence, and that the various “errors” and evidence that Plaintiff highlights fail to compel an alternative finding. See ECF No. 13 at 1215.
B. RFC determination
Plaintiff argues the ALJ erred in his RFC assessment. A claimant's RFC, which represents “the most [she] can still do despite [her] limitations,” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(1), (a)(3). As a result, an ALJ's “RFC 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).” SSR 968p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996). Moreover, the ALJ “must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record.” Id.
In evaluating an RFC, an ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [her] ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)). “[A]n ALJ's RFC assessment must include an evaluation of the claimant's ability to perform the physical functions listed in 20 C.F.R. §[§ 404.1545(b),] 416.945(b).” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (citing SSR 96-8p, 1996 WL 374184, at *1). “‘Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work' of which he believes the claimant to be capable.” Id. (quoting Monroe, 826 F.3d at 179) (emphasis added). Moreover, every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [] the evidence” that supports it. Id. (quoting Thomas, 916 F.3d at 311) (alteration in original). Consequently, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311. The ALJ's logical explanation is just as important as the ALJ's discussion of evidence and his conclusion. Id. Thus, in conducting an RFC analysis, an ALJ must identify both the evidence that backs his conclusion, and “build an accurate and logical bridge from [that] evidence to his conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (alteration in original) (quoting Monroe, 826 F.3d at 189).
These physical functions are “sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions [that] may reduce [a claimant's] ability to do past work and other work.” 20 C.F.R. §§ 404.1545(b), 416.945(b).
Here, Plaintiff maintains that the RFC is defective in two ways. Specifically, she argues (1) that the ALJ erred when considering evidence related to leg swelling and diabetic neuropathy, and (2) the ALJ erred by not considering the combined effects of her impairments. ECF No. 12 at 40-43, 49-51. For the reasons that follow, Plaintiff has failed to show remand is warranted.
1. Leg swelling and diabetic neuropathy
Plaintiff argues that her leg swelling and diabetic neuropathy are incompatible with the ALJ's finding of sedentary work. ECF No. 12 at 40-43. She maintains generally that the ALJ did not consider these impairments and/or did not properly assess them when making his RFC findings.
As to her leg swelling, Plaintiff highlights a treatment note of Dr. Huong Phan, wherein she reported leg swelling and Dr. Phan encouraged her to elevate her legs and wear support stockings. ECF No. 12 at 41. She maintains that the ALJ “failed to mention this significant evidence” and her testimony on this issue. ECF No. 12 at 41-42. However, contrary to Plaintiff's position, the ALJ expressly considered this specific treatment note in his decision. See R.p. 64 (discussing the November 2018 treatment note where Plaintiff noticed “some swelling in her legs” (citing R.pp. 656-59)). The ALJ also expressly considered Plaintiff's testimony-given during a time when the ALJ found Plaintiff disabled-that she had daily leg swelling. R.p. 71. Thus, the ALJ clearly considered both Dr. Phan's treatment note and Plaintiff's testimony when making his decision.
Plaintiff's argument that this evidence somehow undoes the ALJ's RFC determination is unavailing for two reasons. First, Plaintiff asks the Court to give greater significance to the evidence she highlights. In essence, Plaintiff asks the Court to accept her characterization of the evidence over the ALJ's and read the evidence differently. That is not the role of this Court. See Hancock, 667 F.3d at 472 (noting a reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ); Walls, 296 F.3d at 290 (noting judicial review is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied).
Second, the Court is not left to guess at why this evidence was not at the forefront of the ALJ's RFC determination. Indeed, after this single incident of leg swelling, Plaintiff did not report leg swelling to treatment providers, treatment providers did not note leg swelling during physical examinations, and no treatment provider encouraged Plaintiff to continue elevating her legs.Indeed, Plaintiff denied pedal (ankle/foot) edema during a consultative examination (R.p. 865), and examinations which specifically addressed edema found none present. See R.pp. 910, 923. Given this treatment history, it is unsurprising that after her single incident of leg swelling, Plaintiff reported to the agency that her legs were not giving her any “significant problems.” R.pp. 169-70. Consequently, based on this record, the Court is not left to guess at why the ALJ determined that Plaintiff did not need to elevate her legs throughout the day. See R.pp. 59-66 (ALJ noting visits where Plaintiff denied joint swelling or edema, and no edema noted during physical examinations).
Plaintiff appears to suggest leg swelling was an on-going issue by citing to later records. See ECF No. 12 at 29-30, 41. However, as the Commissioner points out, during each of these visits, the only mention of leg swelling is from the list of previously diagnosed issues. See R.pp. 884, 942, 959. Significantly, Plaintiff did not report leg swelling, get treatment for leg swelling, or exhibit leg swelling during these cited visits. See R.pp. 886-87, 944, 960-61.
Regarding Plaintiff's diabetic neuropathy, she contends her diagnosis of neuropathy in 2020 shows she could not perform sedentary work as of November 2017. But again, the ALJ expressly considered Plaintiff's diagnosis of, and treatment for, neuropathy. See R.pp. 65-69. For example, the ALJ specifically found Plaintiff's neuropathy to be a severe impairment. R.p. 56. However, he found it “noteworthy” that Plaintiff did not initially complain of neuropathy and was not diagnosed with it for years after she allegedly became disabled. R.p. 63. In addition, the ALJ recognized that Plaintiff's only treatment for diabetic neuropathy was Gabapentin, which she was not always compliant with. R.p. 66. Thus, the ALJ considered Plaintiff's diabetic neuropathy. See Crystal S. v. Kijakazi, No. 5:20-CV-00051, 2022 WL 499846, at *13 (W.D. Va. Feb. 18, 2022) (noting the ALJ could properly cite to a claimant's noncompliance with recommended diabetes treatment as a basis to question her reports of disabling symptoms). The mere diagnosis of diabetic neuropathy did not compel the ALJ to find it disabling. See Rouse v. Colvin, No. CIV.A. 0:11-2636-MGL, 2013 WL 6050163, at *5 (D.S.C. Nov. 14, 2013) (noting “functional limitations-not diagnosis-are the focus in determining disability”); see also Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (“However, a psychological disorder is not necessarily disabling. There must be a showing of related functional loss.”).
To the extent the ALJ did not mention or omitted certain aspects of the record, the mere omission of some evidence does not require remand. See Jackson v. Astrue, No. C/A 8:08-2855-JFA-BHH, 2010 WL 500449, at *10 (D.S.C. Feb. 5, 2010) (“[A]n ALJ is not required to provide a written evaluation of every piece of evidence, but need only ‘minimally articulate' his reasoning so as to ‘make a bridge' between the evidence and his conclusions.” (citations omitted)). Quite simply, Plaintiff has not shown reversible error in the ALJ's RFC assessment of the evidence. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” (quotation marks and citation omitted)); Russell v. Chater, 60 F.3d 824, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished) (rejecting an argument that the ALJ's analysis was insufficiently specific and noting Fourth Circuit precedent “does not establish an inflexible rule requiring an exhaustive point-by-point discussion in all cases”); see also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (“[A]n ALJ is not required to discuss all the evidence submitted, and an ALJ's failure to cite specific evidence does not indicate that it was not considered.” (citation omitted)).
Ultimately, the ALJ's RFC determination passes the “not high” bar of substantial evidence review. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). The undersigned is able to follow the ALJ's reasoning and substantial evidence supports his conclusions. See Woods, 888 F.3d at 694 (noting in conducting an RFC analysis, an ALJ must identify both the evidence that backs his conclusion, and “build an accurate and logical bridge from [that] evidence to his conclusion” (alteration in original) (quoting Monroe, 826 F.3d at 189)). Consequently, remand on this basis is not warranted.
2. Combination of impairments
Plaintiff maintains that the ALJ did not properly assess the combined effects of her impairments when formulating the RFC. ECF No. 12 at 49-51. Plaintiff argues that the ALJ's “overriding focus was the visual acuity” of Plaintiff, and she appears to suggest that the ALJ did not consider her other physical limitations. ECF No. 12 at 49-50. Plaintiff lists various conditions that were diagnosed since November 30, 2017, and then summarily argues that the ALJ “failed to assess and making findings” regarding the conditions she lists when formulating the RFC. See ECF No. 12 at 50-51. Plaintiff has not shown remand is warranted.
The statutory and regulatory process for making disability determinations, as interpreted by the Fourth Circuit, requires an ALJ to consider and adequately explain his evaluation of the combined effects of a claimant's impairments in determining disability status. See Reid, 769 F.3d at 866; Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989); Rabon v. Astrue, No. 4:08-CV-03442-GRA, 2010 WL 923857, at *13-19 (D.S.C. Mar. 9, 2010) (requiring remand when ALJ did not consider severe and non-severe impairments in combination). Even if a claimant's impairment or impairments in and of themselves are not “listed impairments,” an ALJ must also “consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. § 423(d)(2)(B) (2004). An ALJ's duty to consider the combined effects of a claimant's impairments permeates through each step of the sequential evaluation process. See 20 C.F.R. § 404.1523; Fleming v. Barnhart, 284 F.Supp.2d 256, 270 (D. Md. 2003) (“The ALJ is required to assess the combined effect of a claimant's impairments throughout the five-step analytical process.” (citing 20 C.F.R. § 404.1523 and Walker, 889 F.2d at 49-50)).
To show this consideration, an ALJ “must adequately explain his or her evaluation of the combined effects of the impairments.” Walker, 889 F.2d at 50. Courts in this district have found an ALJ's discussion and analysis are adequate when a reading of the decision as a whole makes clear that the ALJ considered the combination of impairments. See, e.g., Hewitt v. Colvin, No. CV 9:14-03790-MGL, 2015 WL 9216653, at *2 (D.S.C. Dec. 17, 2015); Brown v. Astrue, No. 0:10-CV-01584-RBH, 2012 WL 3716792, at *6-7 (D.S.C. Aug. 28, 2012) (holding the ALJ's decision as a whole made clear that the ALJ considered the combined effects of the claimant's impairments); Thornsberry v. Astrue, No. 4:08-4075-HMH-TER, 2010 WL 146483, at *5 (D.S.C. Jan. 12, 2010) (finding “while the ALJ could have been more explicit in stating that his discussion dealt with the combination of [the claimant's] impairments, his overall findings adequately evaluate the combined effect of [the claimant's] impairments”).
In other words, upon review of an ALJ's decision, this Court must be satisfied that the ALJ's disability decision is not founded on a “fragmentized” analysis of a claimant's impairments. Cox v. Colvin, No. 9:13-CV-2666-RBH, 2015 WL 1519763, at *6 (D.S.C. Mar. 31, 2015) (citing Walker, 889 F.2d at 50). If an ALJ's decision is “fragmentized,” the claimant is tasked with showing the Court that the ALJ's decision “could have a different outcome if he or she had done an adequate combined effect analysis.” Burton v. Acting Comm'r of Soc. Sec. Admin., No. 2:17-CV-01595-RBH, 2019 WL 258109, at *5 (D.S.C. Jan. 18, 2019).
Here, contrary to what Plaintiff appears to suggest, the ALJ considered Plaintiff's visual impairments and physical impairments when determining her RFC. See R.p. 70 (including physical limitations, postural limitations, visual limitations, and environmental limitations in the RFC). Plaintiff's arguments for remand are unpersuasive for three reasons. First, Plaintiff's listing of various conditions that were diagnosed since November 30, 2017, and her conclusory argument that the ALJ “failed to assess” these conditions is contradicted by a reading of the ALJ's decision as a whole.
Plaintiff again argues that the ALJ “did not mention” that Dr. Phan encouraged Plaintiff to elevate her legs because of swelling. ECF No. 12 at 50. However, as already noted above, the ALJ clearly mentioned this treatment note in his decision. See R.p. 64 (discussing the November 2018 treatment note where Plaintiff noticed “some swelling in her legs” (citing R.pp. 656-59)).
Second, Plaintiff highlights Dr. Eric Schlueter's consultative examination report from June 12, 2021-which was conducted after the March 17, 2021, date the ALJ found Plaintiff disabled- and notes that the ALJ found this opinion “generally persuasive.” ECF No. 12 at 50 (referring to treatment notes found in R.pp. 900-12). She argues the ALJ failed to mention that Dr. Schlueter opined Plaintiff's limitations “had been present for twelve (12) consecutive months or longer prior to the date of his examination.” ECF No. 12 at 50. However, Plaintiff misreads and/or misinterprets Dr. Schlueter's opinion; rather, Dr. Schlueter checked the “yes” box to the following question: “Have the limitations you found above lasted or will they last for 12 consecutive months?” R.p. 907 (emphasis added). In other words, Dr. Schlueter gave no opinion about how long the limitations had lasted, only that they were expected to meet the 12-month durational period. See R.p. 907; see also 20 C.F.R. § 404.1509 (noting, to satisfy the “duration requirement,” the impairment “must have lasted or must be expected to last for a continuous period of at least 12 months”). Significantly, Dr. Schlueter was not a treating physician, but a one-time examiner. Consequently, it is unclear how this one-time examination-given after the ALJ found Plaintiff disabled-would provide insight into exactly when certain limitations began.
Third, Plaintiff fails to offer any specific argument as to how the RFC assessment was faulty or how the RFC does not accommodate her impairments. Cf. Platt v. Colvin, No. CIV.A. 9:13-2435-BHH, 2014 WL 7192373, at *4 (D.S.C. Dec. 17, 2014) (“The plaintiff complains that the ALJ did not explain what limitations the depression caused. Apparently, the ALJ found none. And, the plaintiff has not recommended any, different than what the RFC already reflects. The ALJ specifically stated that he considered the combined effect of all of the plaintiff's impairments, both “severe and non-severe”[], and such consideration is sufficient.”). Indeed, it is unclear what combined effect the ALJ was supposedly missing. Consequently, even if the Court were to agree that the ALJ's decision was “fragmentized,” Plaintiff has nevertheless failed to show how this error changed the outcome. See Brown v. Astrue, No. 0:10-CV-01584-RBH, 2012 WL 3716792, at *6 (D.S.C. Aug. 28, 2012) (“If the Commissioner's analysis is fragmentized, it is, of course, the Plaintiff's task to adequately show the Court that the Commissioner's decision could have been different had he done an adequate combined effect analysis of his multiple impairments.”).
Ultimately, Plaintiff merely disagrees with the ALJ's conclusions, which is not a basis for remand. Perhaps more importantly, she has not shown, much less argued, how any of the alleged errors, if corrected, would change the outcome of the ALJ's ultimate conclusion-a conclusion which resulted in a partially favorable disability determination. See Tanner v. Comm'r of Soc. Sec., 602 Fed.Appx. 95, 101 (4th Cir. 2015) (concluding, in spite of the ALJ's error, remand “would be pointless” where it was “highly unlikely, given the medical evidence of record, that a remand to the agency would change the [ALJ's] finding of non-disability”); Hamm v. Colvin, No. 4:14-CV-03590-RBH, 2016 WL 536742, at *5 (D.S.C. Feb. 11, 2016) (“While the ALJ could have discussed more thoroughly the combined effect of Plaintiff's impairments, such error is harmless where, as here, Plaintiff has failed to show that further consideration would have produced a different result.”); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting Plaintiff has the burden to show that he has a disabling impairment); Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir. 1986) (“If the Secretary's dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported.”).
C. Subjective complaints
Plaintiff argues the ALJ did not properly evaluate her subjective complaints. See ECF No. 12 at 43-47. 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 (S.S.A. Oct. 25, 2017). In the second step 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.
The ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” Id. at *10. In evaluating the intensity, persistence, and limiting effects of the claimant's symptoms (including pain), the ALJ should consider the following non-exhaustive list of relevant factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms; and (6) any measures the claimant has used to relieve the symptoms. Id. at *7-8; 20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, in reaching his decision, the ALJ set out the proper two-step process for evaluating subjective complaints and discussed Plaintiff's testimony and the medical record in addressing both the objective and subjective evidence. See generally R.pp. 70-71, 57-69. Specifically, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not fully supported prior to March 17, 2021.” R.p. 71. The ALJ considered Plaintiff's testimony, including her decreased vision, reports of daily leg swelling, and her physical limitations. R.p. 71. The ALJ found:
The undersigned finds that the intensity and frequency of the claimant's limitations and symptoms reported in [her] testimony are not fully supported by the overall evidence prior to the established onset date of disability. While the claimant has made complaints at times to her treating providers prior to the established onset
date of disability, these complaints are less severe than those described in [her] testimony. Physical exams throughout the record have shown limited abnormal findings and do not support the severity alleged by the claimant prior to the established onset date of disability. Treatment for the claimant's conditions has been partially successful in managing her conditions. The claimant has reported a mixture of activities. In March 2021, which is the time of the established onset date of disability, the medical evidence shows the claimant's conditions, including her vision, has worsened.R.p. 71.
The undersigned does not find any reversible error in the ALJ's decision, as this was the proper analytical framework for the ALJ to follow. See 20 C.F.R. § 404.1529(b)-(c); Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (“What we require is that the ALJ sufficiently articulate his assessment of the evidence to ‘assure us that the ALJ considered the important evidence . . . [and to enable] us to trace the path of the ALJ's reasoning.'” (citation omitted)). Notably, both administrative hearings occurred after March 17, 2021, when the ALJ found Plaintiff disabled. See R.pp. 84, 127. In other words, to the extent that Plaintiff testified to disabling limitations at the time of the hearings, the ALJ agreed and found Plaintiff's testimony was supported by the record.
To the extent that Plaintiff intended to testify to disabling limitations prior to March 17, 2021, the ALJ identified substantial evidence undermining those assertions. As discussed above, the ALJ relied on actual testing of Plaintiff's vision to conclude that she could perform her past relevant desk work. He also relied on limited and conservative treatment for neuropathy, as well as physical examinations, to determine that Plaintiff had the exertional ability to perform her past sedentary work. When objective evidence conflicts with a claimant's subjective statements, an ALJ is allowed to give the statements less weight. See Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996) (“Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment[.]”); Jolley v. Weinberger, 537 F.2d 1179, 1181 (4th Cir. 1976) (finding that the objective medical evidence, as opposed to the claimant's subjective complaints, supported an inference that she was not disabled). Thus, the ALJ properly considered inconsistencies between Plaintiff's testimony and other evidence of record in evaluating Plaintiff's subjective complaints. See Johnson, 434 F.3d at 658 (“Although we cannot make credibility determinations, we are empowered to review the ALJ's decisions for substantial evidence, and we find that substantial evidence supports the ALJ's credibility assessment.”); Hunter v. Sullivan, 993 F.2d 31, 35-36 (4th Cir. 1993) (reasoning an ALJ may properly consider inconsistencies between a claimant's testimony and the other evidence of record in evaluating the credibility of a claimant's subjective complaints).
Nevertheless, Plaintiff argues that her work history supports her testimony as “fully credible” and suggests remand is warranted because the ALJ failed to mention this history. See ECF No. 12 at 46. The undersigned is unpersuaded for four reasons.
First, the cases Plaintiff cites as supporting her position are forty to seventy years old. See ECF No. 12 at 45. All of these cases were penned well before the Social Security Administration promulgated SSR 96-7p in 1996, which itself was superseded by SSR 16-3p on March 16, 2016. See SSR 16-3P, 2016 WL 1119029, at *1 (S.S.A. Mar. 16, 2016). To the extent Plaintiff appears to suggest the cases in her brief showcase the “proper legal standards” the ALJ was required to follow, such an assertion is without merit.
Second, to the extent Plaintiff is, perhaps, attempting to argue SSR 96-7p required the ALJ to include a discussion of Plaintiff's work history, such argument is without merit. As noted above, SSR 96-7p was superseded by SSR 16-3p on March 16, 2016. Thus, Plaintiff's reliance on SSR 96-7p is misplaced.
Plaintiff does not cite to any Social Security Rulings or regulations in this section of her brief. See ECF No. 12 at 44-47. However, she does repeatedly discuss “credibility” which was a term used in SSR 96-7p (and was subsequently phased out via SSR 16-3p). See SSR 16-3P, 2016 WL 1119029, at *2 (S.S.A. Mar. 16, 2016) (noting “we are eliminating the use of the term ‘credibility' from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character”).
Third, even under SSR 96-7, Plaintiff's work history does not trump the other factors the ALJ considered, nor would it have compelled the ALJ to find her testimony “fully credible.” See Thomas v. Saul, No. CV 4:18-1819-TMC, 2019 WL 4293740, at *4 (D.S.C. Sept. 11, 2019) (noting “a claimant's work history alone is not dispositive of the question of his credibility, and an ALJ is not required to equate a long work history with enhanced credibility” (citing SSR 96-7)). Indeed, even if the Court assumes that the ALJ here did not consider Plaintiff's work history under the outdated SSR 96-7, remand would still not be warranted in light of the other factors appropriately considered. See Anderson v. Colvin, No. CV 5:15-3110-JMC-KDW, 2016 WL 6684238, at *9 (D.S.C. Oct. 12, 2016) (“While a long work history is commendable, in and of itself it does not undermine the ALJ's credibility assessment. ‘[T]he ALJ's mere failure to mention [the claimant's] work history explicitly does not warrant remand or reversal in the face of his otherwise supported findings.'” (citation omitted)), report and recommendation adopted, No. 5:15-CV-03110-JMC, 2016 WL 6680034 (D.S.C. Nov. 14, 2016). Thus, to the extent the ALJ should have specifically discussed Plaintiff's work history, such error was harmless. See Nathans v. Colvin, No. 5:14-CV-03859-RBH, 2016 WL 403059, at *5 (D.S.C. Feb. 3, 2016) (“The Court declines to adopt an enhanced credibility doctrine that would require automatic remand any time an ALJ fails to discuss a claimant's good work record in determining credibility. To the extent the ALJ erred in failing to specifically discuss Plaintiff's work record in determining credibility, such error was harmless.”).
Finally, here, the ALJ stated that he considered all the evidenced based on the requirements of 20 C.F.R. § 4040.1529 and SSR 16-3p when assessing Plaintiff's allegations (R.p. 70), which necessarily included Plaintiff's work history. See 20 C.F.R. § 404.1529 (noting an ALJ “will consider all of the evidence presented, including information about your prior work record”); SSR 16-3, 2017 WL 5180304 at *7-8. In any event, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” See Reid, 769 F.3d at 865 (quotation marks and citation omitted); Russell v. Chater, 60 F.3d 824, 1995 WL 417576 at *3 (4th Cir. 1995) (unpublished) (rejecting an argument that the ALJ's analysis was insufficiently specific and noting Fourth Circuit precedent “does not establish an inflexible rule requiring an exhaustive point-by-point discussion in all cases”); see also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (“[A]n ALJ is not required to discuss all the evidence submitted, and an ALJ's failure to cite specific evidence does not indicate that it was not considered.” (citation omitted)).
Accordingly, based on the record and evidence, the undersigned does not find that the ALJ conducted an improper subjective complaint analysis in reaching his conclusions, nor does the undersigned find that the ALJ's decision otherwise reflects a failure to properly consider the record and evidence in this case. See Bowen, 482 U.S. at 146 n.5 (noting Plaintiff has the burden to show that he has a disabling impairment); Kellough, 785 F.2d at 1149 (“If the Secretary's dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported.”). Accordingly, remand on this basis is not warranted. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
D. Vocational expert testimony
Plaintiff argues that the ALJ erred by failing to consider testimony from the two vocational experts (VEs) at both evidentiary hearings. Specifically, Plaintiff argues that the VEs testified that there were no jobs available for an individual with the functional limitations suffered by Plaintiff. ECF No. 12 at 47. Plaintiff highlights various instances where the VEs responded that there would be “no jobs” if a hypothetical individual suffered from certain impairments, and argues-without any citation to case law-that the ALJ breached his duty and committed reversible error by not discussing all of this testimony. See ECF No. 12 at 47-49. The Court disagrees.
An ALJ may utilize a VE at steps four and five “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be “relevant or helpful,” it must be given in response to a proper hypothetical question. Id. A proper hypothetical question “fairly set[s] out all of claimant's impairments” that are supported by the record as found by the ALJ. Id.; Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question “adequately contemplated all of [claimant's] impairments and resulting limitations” as evidenced by the record). While an ALJ can use a VE to assist in determining whether there is available work that a claimant can perform, an ALJ is “not obligated to accept or rely on all of the VE's responses.” Cumbee v. Kijakazi, No. CV 5:20-3826-KDW, 2022 WL 1591055, at *10 (D.S.C. May 19, 2022).
Here, at both administrative hearings, the ALJ used two VEs to opine on jobs Plaintiff could perform given her vocational profile. R.pp. 115-126, 158-65. The ALJ posed several hypothetical questions to the VEs about an individual with certain restrictions and her ability to perform jobs in the national economy, given certain restrictions. Plaintiff's attorney also posed several hypothetical questions which addressed the same. Ultimately, the ALJ relied upon the VE's testimony from the most recent hearing regarding a hypothetical person with the restrictions the ALJ included in the RFC determination. Compare R.p. 70 with R.pp. 116-17. This was proper. See, e.g., Duncan v. Kijakazi, No. 7:21-CV-14-RJ, 2022 WL 4125144, at *10 (E.D. N.C. Sept. 9, 2022) (“The hypothetical to the VE included the limitations the ALJ found supported by the record that were ultimately imposed in the RFC. Accordingly, the ALJ appropriately relied on the VE's testimony.” (internal citations omitted)).
Plaintiff's argument to the contrary is unavailing. Plaintiff's argument is based upon testimony elicited from the VE by Plaintiff's attorney. Compare ECF No. 12 at 47-49 with R.pp. 117-25. Plaintiff maintains that the ALJ was required to discuss this testimony in determining the RFC. However, the highlighted testimony was the VE's response to hypothetical limitations suggested by Plaintiff's attorney-limitations that the ALJ rejected. See R.p. 70. Plaintiff points to no case law that supports her position that the ALJ must discuss a VE's testimony on limitations that the ALJ ultimately finds are not supported by the record. To the contrary, the Court's search of Fourth Circuit precedent rendered authority that squarely rejects Plaintiff's position. See, e.g., Cumbee, No. CV 5:20-3826-KDW, 2022 WL 1591055, at *10 (“While the ALJ could use the VE to assist in determining whether there is available work that Plaintiff can perform, the ALJ was not obligated to accept or rely on all of the VE's responses.”); Youkers v. Colvin, No. CIV.A. 3:129651, 2014 WL 906484, at *11 (S.D. W.Va. Mar. 7, 2014) (“Because the attorney's hypothetical questions assumed impairments that were not reflected in the ALJ's RFC determination, the vocational expert's responses to those questions were neither relevant nor useful and the ALJ properly ignored them.”); Brooks v. Colvin, No. 1:12-CV-189-MU, 2013 WL 5302566 (W.D. N.C. Sept. 19, 2013) (“[T]he ALJ is solely responsible for deciding the claimant's RFC and is not required to consider vocational expert testimony in response to counsel's unsupported, conclusory statements as to a hypothetical RFC.”) Parker v. Colvin, No. 1:13-cv-00011-MOC, 2013 WL 4748409 (W.D. N.C. Sept.4, 2013) (“[T]he fact that the Vocational Expert (‘VE') responded to a hypothetical posed by counsel for plaintiff, which counsel believed was consistent with [medical] opinions, but which was not consistent with the ALJ's RFC determination is of no consequence.”). Accordingly, Plaintiff has not shown remand is warranted on this basis.
V. CONCLUSION
It is recommended that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1) ; Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).