Opinion
Civil Action 4:22-cv-00509-RMG-TER
10-19-2022
CYNTHIA K. RICKMAN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits(DIB) and supplemental security income(SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB and SSI on December 2, 2019, alleging inability to work since November 16, 2019. (Tr. 10). Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. Plaintiff and a VE testified at a hearing in November 2021. (Tr. 10). The Administrative Law Judge (ALJ) issued an unfavorable decision on December 6, 2021, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 1020). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on January 18, 2022, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff had submitted additional evidence to the Appeals Council from Dr. Bonner dated ten days after the ALJ's opinion, which was a form and one visit note; the Appeals Council did not exhibit the evidence finding it did not show a reasonable probability that it would change the outcome of the decision. (Tr. 2). Plaintiff filed this action in February 2022. (ECF No. 1).
B. Introductory Facts
Plaintiff was born on March 7, 1976, and was forty-three years old on the alleged onset date. (Tr. 19). Plaintiff had past work as a radiological technician, medical office clerk, and office manager. (Tr. 18). Plaintiff alleges disability initially due to herniated discs, tear in C5 disc, anxiety, other thyroid disorders, high blood pressure, and muscle spasms/cramps. (Tr. 74-75). Pertinent records will be discussed under the relevant issue headings.
C. The ALJ's Decision
In the decision of December 6, 2021, the ALJ made the following findings of fact and conclusions of law (Tr. 10-20):
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.
2. The claimant has not engaged in substantial gainful activity since November 16, 2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity status-post gastric bypass, degenerative disc disease of the cervical and lumbar spine, anxiety, depression, degenerative joint disease/osteoarthritis of the left knee, and status-post Colles fracture of the right wrist (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have 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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she could frequently climb stairs and ramps; she could never climb ladders, ropes, or scaffolds; she could frequently stoop, kneel, and crouch; she could occasionally crawl; she could frequently reach overhead bilaterally; she could frequently handle and finger with the left nondominant hand; she is able to perform and sustain unskilled work, which is defined as no more than SVP 2 or RL2, for 2-hour increments followed by customary breaks; and she could occasionally interact with the general public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 7, 1976 and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from November 16, 2019, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
II. DISCUSSION
Plaintiff argues the ALJ erred in performing the subjective symptom evaluation. Plaintiff argues this case should be remanded for evaluation of additional evidence from Dr. Bonner submitted to the Appeals Council. Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
Subjective Symptom Evaluation
Plaintiff argues the ALJ erred in performing the subjective symptom evaluation.
Defendant initially frames this as an RFC issue, citing SSR 96-8p. (ECF No. 9 at 8). However, an “RFC assessment is a separate and distinct inquiry from a symptom evaluation.” Dowling v. Comm'r, 986 F.3d 377, 387 (4th Cir. 2021). Plaintiff puts at issue the evaluation of subjective complaints under SSR 16-3p(not SSR 96-8p). (ECF No. 8 at 22). The SSE does relate eventually to forming an RFC determination, when considering how symptoms limit work capacity, but the subjective symptom evaluation is a separate analysis. SSR 16-3p, at *11. Plaintiff's argument will be considered under the subjective symptom evaluation as argued.
SSR 16-3p sets out “the process ALJs use to evaluate the intensity and persistence of a claimant's symptoms and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the record.” Id.(internal citations and quotations omitted). Under Craig v. Chater, 76 F.3d 585, 591-96 (4th Cir. 1996), subjective complaints are evaluated in two steps. First, there must be documentation by objective medical evidence of the presence of an underlying impairment that would reasonably be expected to cause the subjective complaints of the severity and persistence alleged. Not until such underlying impairment is deemed established does the fact-finder proceed to the second step: consideration of the entire record, including objective and subjective evidence, to evaluate the intensity and persistence of symptoms to determine how symptoms limit capacity for work. See also 20 C.F.R. § 404.1529; SSR16-3p, *4.
The ALJ may choose to reject a claimant's testimony regarding his condition, but the ALJ must explain the basis for such rejection to ensure that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (quoting Smith v. Schweiker, 719 F.2d 723, 725 n.2 (4th Cir. 1984)). A claimant's allegations “need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers[.]” Craig, 76 F.3d at 595. The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See id.; see SSR 16-3p, at *4.
A claimant's statements about intensity, persistence, and limiting effects of symptoms, which are inconsistent with the objective medical evidence and other evidence, are less likely to reduce her capacity to perform work related activities. SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). An individual's symptoms are evaluated based on consideration of objective medical evidence, an individual's statements directly to the Administration, or to medical sources or other sources, and the following factors:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). The ALJ at step three is to “consider the individual's symptoms when determining his or her residual functional capacity and the extent to which the individual's impairment-related symptoms are consistent with the evidence in the record.” SSR 16-3p, at *11.
Here, the ALJ considered Plaintiff's testimony that she only drives once every two to three weeks and that she could not work for two reasons: not being able to focus and left arm problems. (Tr. 16). Plaintiff testified she occasionally elevated her legs to alleviate symptoms. Plaintiff testified crowds made her anxious and she isolated herself. (Tr. 16). Plaintiff testified she needs help showering, uses a cane in her home, can stand 15-20 minutes, and walk for fifteen minutes. Plaintiff also reported frequent headaches limited her ability to work. (Tr. 16).
The ALJ found Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were inconsistent because the objective evidence of record failed to support the degree of limitation alleged. (Tr. 16). As summarized above, the ALJ discussed Plaintiff's symptom allegations as she had testified, which is one factor of SSR 16-3p.
Defendant's brief makes several references and places reliance on Plaintiff driving 4,200 miles; however, the ALJ never relied on this in making his findings. (ECF No. 9);(Tr. 15-18). Defendant's post-hoc rationalization with respect to this issue cannot be considered by the Court. See Golembiewski v. Barnhart, 322 F.3d 912, 915-16 (7th Cir. 2003) (“[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.”); Steel v. Barnhart, 290 F.3d 936 (7th Cir. 2002) (“But regardless whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for her decision and confine our review to the reasons supplied by the ALJ.”).
The ALJ discussed treatment Plaintiff received, including surgery, medications, and injections, which involves the fourth and fifth factors in SSR 16-3p. At first, Dr. Cook discussed conservative treatment options in 2019, and in 2019, Plaintiff declined injections and surgery. (Tr. 16). The ALJ noted in January 2020, Plaintiff had surgery followed by physical therapy, citing 2020 records from Waccamaw Community Hospital(Ex. 6F) and 2020 physical therapy notes(Ex. 8F). (Tr. 16). The ALJ noted Plaintiff's reports to Dr. Ellison that she felt 80% better, citing treatment notes from doctors at Tideland Health Orthopedics (Ex. 10F). (Tr. 16). In August 2020, NP Harper recommended epidural injections and joint blocks. (Tr. 17). Plaintiff broke her wrist in 2021 and received a volar spline and later a short arm cast and pain medications. (Tr. 17). Plaintiff used Tylenol and ice for her knee pain. APRN Rottner recommended an injection. Plaintiff took Cymbalta for anxiety and depression and in July 2021 reported doing well on the medication. (Tr. 17). In August 2021, Plaintiff received Meloxicam for her knee and Dr. Rowley discussed nonoperative treatment options. (Tr. 17).
The ALJ discussed Plaintiff's complaints at exams, which goes to the second factor in SSR 16-3p. In June 2020, Plaintiff reported left neck pain, shoulder pain, clavicle pain, tingling down her left arm, and weakness. (Tr. 16). The ALJ noted Dr. Ellison stated none of Plaintiff's complaints were amenable to any type of cervical spine intervention. (Tr. 16). Plaintiff complained in August 2020 of neck and shoulder pain. (Tr. 16). In June 2021, Plaintiff complained of right arm pain at a level 6 with no numbness or tingling. In July 2021, Plaintiff complained of left knee pain. In July 2021, Plaintiff reported she was becoming more alert and aware as to her anxiety and depression with Cymbalta. Plaintiff had occasional depressed mood and episodes of feeling tired. (Tr. 17).
An individual's symptoms are evaluated based on consideration of objective medical evidence and an individual's statements. SSR 16-3p, *7. In addition to consideration of some of the SSR 16-3p factors as discussed above, the ALJ also considered objective evidence. The ALJ cited to Plaintiff's May 2019 MRI and exam where paracervicals were tender but neck strength was 5/5 and flexion, extension, and rotation were normal. (Tr. 16). The ALJ reviewed Plaintiff's completion of physical therapy with good range of motion. (Tr. 16). The ALJ considered NP Harper's exam of tenderness with palpation in the cervical paraspinal musculature and across the shoulders but with range of motion only slightly limited and normal muscle strength. (Tr. 17). The ALJ discussed tenderness, swelling, and limited range of motion after Plaintiff broke her right wrist. (Tr. 17). A month later, she was tender over the site but was able to give a thumbs up and x-rays showed healing. (Tr. 17). In July 2021, Plaintiff's knee had visible edema and pain with flexion/palpation and Plaintiff walked with a limp. (Tr. 17). The ALJ reviewed August 2021 x-rays showing moderate degenerative left knee arthritis and patellar tendinopathy. Plaintiff's gait was only minimally antalgic. (Tr. 17).
The ALJ concluded that the allegations of such significant limitations and pain were not fully consistent with the medical evidence of record. (Tr. 18).
A claimant's allegations alone can never establish that she is disabled. 20 C.F.R. § 404.1529. An ALJ can discount a Plaintiff's subjective complaints when they are unsupported by the record. 20 C.F.R. § 404.1529; Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). Plaintiff is not required to be without symptoms to be found not disabled by the ALJ. Even where there is conflicting evidence that might have resulted in a contrary decision, our review is limited to whether substantial evidence supports the ALJ's decision. Based on the evidence before the ALJ, the ALJ conducted a proper evaluation of subjective symptoms and cited substantial evidence to support the finding that Plaintiff's allegations of disabling symptoms were not fully consistent with the record. See also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1999)(“No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result”).
Additional Evidence submitted to Appeals Council
Plaintiff argues this case should be remanded for evaluation of additional evidence of Dr. Bonner's form statement and visit note submitted to the Appeals Council.
The form is dated December 16, 2021, exactly ten days after the ALJ's opinion. (Tr. 71). It had two questions: “What do you believe is your patient's work capability,” which Dr. Bonner answered “None.” (Tr. 71). The second question: “How do the patient's conditions/impairments (physical and/or mental) impact her ability to work?” Dr. Bonner answered: “Has osteoarthritis of both knees-demonstrated by x-ray in the left knee-right knee is also tender and slightly unstable, thumbs ache.” (Tr. 71). Then, there is a “comments” section, which states: “Has established degenerative disc disease.” (Tr. 71). The visit notes on the same day state complaints of hand pain level of eight and fallen twice since last visit. It states giveway caused one fall and the other fall was caused by dizziness. Right wrist had recovered well but had pain and tenderness probably due to osteoarthritis. (Tr. 72). Labs showed a positive result for rheumatoid factor and positive for an antibody; however, sed rate and CRP were normal, which indicated there was no active inflammatory disease. (Tr. 72). Assessment was osteoarthritis and no active rheumatoid arthritis. Plaintiff was to continue Tylenol and add ibuprofen as needed. (Tr. 73).
While the stated reason from the Appeals Council for not exhibiting the additional evidence was “this evidence does not show a reasonable probability that it would change the outcome of the decision,” the court can consider all the regulatory factors and not just the reason relied on by the Appeals Council on one factor. Lockaby v. Saul, No. 4:18-CV-02056-DCN, 2020 WL 1149725, at *4 (D.S.C. Mar. 10, 2020)(collecting cases)(finding it was “not improper for the magistrate judge to consider the other factors articulated in 20 C.F.R. § 404.970 beyond the one specifically mentioned by the Appeals Council”).
Pursuant to 20 C.F.R. § 404.970, the Appeals Council will review a case if the additional evidence submitted is “new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970. The Appeals Council is not required to state its reason for rejection. The Social Security Regulations do not require the Appeals Council to expressly weigh newly produced evidence and reconcile it with previously produced conflicting evidence before the ALJ. Instead, the regulations require the Appeals Council make a decision whether to review the case, and, if it chooses not to grant review, there is no express requirement that the Appeals Council weigh and reconcile the newly produced evidence. Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011).
If substantial evidence supports the ALJ's findings, introduction of new evidence after the decision does not necessitate remand. Id. at 707 (citing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996). “Conversely, when consideration of the record as a whole reveal[s] that new evidence from a treating physician was not controverted by other evidence in the record,” remand is appropriate. Id. (citing Wilkins v. Sec'y, Dept. of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). The Fourth Circuit “has recognized that a treating physician may properly offer a retrospective opinion on the past extent of an impairment.” Wilkins, 953 F.2d at 96.
The question the court is to consider here is whether the evidence from Dr. Bonner is new and material, and whether there is a reasonable probability that the additional evidence would change the outcome of the decision. Although remand is required in some circumstances, the Fourth Circuit noted, “the lack of such additional fact finding does not render judicial review ‘impossible'- as long as the record provides ‘an adequate explanation of [the Commissioner's] decision.” Meyer, 662 F.3d at 707(quoting DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983)).
There is not a reasonable probability that Dr. Bonner's statement and visit notes from December 2021 would change the outcome of the decision because Dr. Bonner did not opine any limitations or restrictions in abilities listed in 20 C.F.R. § 404.1513(a)(2). The regulation 20 C.F.R. § 404.1513(a)(2) provides:
(2) Medical opinion. A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: (For claims filed (see § 404.614) before March 27, 2017, see § 404.1527(a) for the definition of medical opinion.)
(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.20 C.F.R. § 404.1513(a)(2)(emphasis added).
Medical evidence that is not an opinion and is just “other medical evidence” includes: “judgments about the nature and severity of your impairments, your medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R. § 404.1513(a)(3).
Evidence that is inherently neither valuable nor persuasive are statements on issues reserved for the commissioner like statements that you are disabled or not able to work. 20 C.F.R. § 404.1520b(c). Dr. Bonner's answer to the form's first question is evidence that is not valuable or persuasive and it is evidence that is not required to be analyzed by regulation. 20 C.F.R. § 404.1520b(c). Dr. Bonner's answer to the form's second question and the visit note attached contains diagnosis, complaints, and exam findings, which under 20 C.F.R. § 404.1513(a)(3) is not an opinion and not a finding of specific limitations in functional abilities.
Additionally, 20 C.F.R. § 404.970 is likely unmet as there is no reason given by Plaintiff that Dr. Bonner was unavailable to give his opinion prior to the decision date and Plaintiff does not show that she “actively and diligently sought evidence from a source and the evidence was not received.”
Remand is not required here primarily because Plaintiff has not shown a reasonable probability that the additional evidence would change the outcome of the decision.
III. CONCLUSION
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, he has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be AFFIRMED.