JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28 U.S.C. § 636(b)(1)(B).
On February 23, 2012, Plaintiff filed an application for DIB alleging disability beginning November 16, 2007. [R. 126-32.] Pursuant to the representative's brief, Plaintiff amended her alleged onset date to February 1, 2012. [R. 191.] However, at hearing, the representative asserted that he had made an error and had intended the amended alleged onset date to be February 1, 2011. [R. 38.] The Administrative Law Judge ("ALJ") adopted this amended onset date of February 1, 2011. [R. 20.] Plaintiff's claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 71-74, 62-66.] Plaintiff requested a hearing before an ALJ, and on April 17, 2013, ALJ Kelly Wilson held a video hearing on Plaintiff's claim. [R. 34-55.]
The ALJ issued a decision on May 24, 2013, finding Plaintiff not disabled. [R. 20-29.] At Step 1,
At Step 2, the ALJ found Plaintiff had the following severe combination of impairments: degenerative disc disease of the cervical, thoracic, and lumbar spine and high blood pressure. [R. 22, Finding 3.] The ALJ also noted that Plaintiff had a non-severe impairment of shortness of breath and vocal problems status post cyst removal. [R. 23, Finding 4.] The ALJ found nothing in the medical record to indicate residual functional limitation or that the acute symptoms related to breathing difficulties occurred prior the Plaintiff's DLI. [Id.]
At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. [R. 23, Finding 5.] The ALJ expressly considered Listing 1.04 with respect to Plaintiff's spinal impairments. [R. 23-24.]
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC")
[R. 24.]
At Step 4, the ALJ noted that, in light of her RFC, through the DLI, Plaintiff was capable of performing her past relevant work ("PRW") as a filing sorter and hauler, rowing machine operator, and spooler. [R. 28, Finding 7.] On this basis, the ALJ found Plaintiff was not under a disability, as defined in the Act, at any time from November 16, 2007
Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined. [R. 1-6. ] Plaintiff filed this action for judicial review on November 13, 2014. [Doc. 1.]
Plaintiff contends the ALJ's decision is not supported by substantial evidence and that remand is necessary because the ALJ improperly found Plaintiff's shortness of breath was a non-severe impairment, failed to account for Plaintiff's mental and physical limitations in the RFC, failed to perform a proper credibility analysis, and failed to make a proper Step 4 determination. [See Doc. 35.]
The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence and the ALJ properly determined that Plaintiff's shortness of breath and vocal problems were not severe, properly evaluated Plaintiff's RFC in light of the relevant record evidence, appropriately assessed Plaintiff's RFC, and properly found Plaintiff capable of PRW. [See Doc. 36.]
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is `substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision `with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).
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). "Disability" is defined as:
Id. § 423(d)(1)(A).
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors.
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion). First, "the ALJ must determine whether the claimant has produced medical evidence of a `medically determinable impairment which could reasonably be expected to produce . . . the actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes her alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
Plaintiff argues that the ALJ erred in failing to find Plaintiff's shortness of breath to be severe. [Doc. 35 at 9.] Plaintiff contends her shortness of breath has more than a minimal effect on her ability to do basic work-related activities and should have been found to be severe. [Id. at 11.] The Commissioner contends, however, that the ALJ correctly noted Plaintiff's symptoms did not occur until more than one year after her DLI and that there was nothing in the record to indicate residual functional limitations or that the acute symptoms occurred prior to Plaintiff's DLI. [Doc. 36 at 4-5.] The Court agrees with the Commissioner.
In considering Plaintiff's impairments, the ALJ explained as follows:
[R. 23.]
A claimant in a Social Security disability claim has the duty to furnish all relevant medical evidence and to carry the burden of proving that she is disabled. 20 C.F.R. § 404.1512(a). For a claimant to establish eligibility for DIB, she must demonstrate two essential elements: (1) a disability, which is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months," 42 U.S.C. § 423(d) (1)(A); and (2) a disability at the time the claimant has disability insurance status, Id. § 423(a)(1)(A); 20 C.F.R. § 404.131(a). Thus, a claimant must establish the presence of a disability prior to the last day of her disability insurance status. Johnson v. Barnhart, 434 F.3d 650, 655-56 (4th Cir.2005).
"[S]evere" is a term of art, which means the impairment at issue "significantly limits [the Plaintiff's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Social Security Ruling ("SSR") 96-8p contemplates that a "severe" impairment "has more than a minimal effect on the ability to do basic work activities." SSR 96-8p. Plaintiff bears the burden of proving an impairment is "severe." Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987).
Upon review of the record and the arguments of the parties, the Court finds that the ALJ's finding that Plaintiff's shortness of breath and vocal problems status post cyst removal are not a "severe" impairment is supported by substantial evidence. The ALJ considered all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements during the relevant time period and determined that Plaintiff's allegations due to recurrent bronchitis were acute prior to the DLI, but there was no evidence that these symptoms caused any substantial functional limitation between Plaintiff's amended onset date and her DLI. [R. 23.] The ALJ also noted that on December 6, 2012, Plaintiff presented to Self Regional Health for an evaluation of a mediastinal mass. [R. 25.] Plaintiff had surgery to remove a large cyst from her lung and several lymph nodes. [Id.] After the surgery, Plaintiff developed complications including problems swallowing, worsening voice, shortness of breath, and reflux. [Id.] And, while Plaintiff testified that she cannot work because she gets short of breath and her back goes out, Plaintiff admitted that her shortness of breath and speech difficulties started after her neck surgery in December 2012. [R. 26.] Regardless of whether or not Plaintiff's impairment is actually severe, the Court notes Plaintiff does not contest the Commissioner's position that this impairment did not occur until after September 30, 2011, Plaintiff's DLI. Thus, the ALJ properly determined that Plaintiff's limitations resulting from her December 2012 surgery arose after her DLI and unfortunately were not relevant to her disability status as it relates to this application for benefits. [R. 27.]
Further, the Court notes that, not only does Plaintiff fail to challenge the ALJ's finding that this impairment was post DLI, Plaintiff provided no medical opinion or reasonable basis on which the Court could determine that the severity of the impairment claimed by Plaintiff related back to the relevant time period. Thus, the ALJ did not err in failing to find Plaintiff's breathing problems severe during the relevant time period, and no further fact finding by the ALJ was necessary. See, e.g., Manning v. Colvin, C/A No. 8:12-1478-DCN-JDA, 2014 WL 1315228, at *19 n. 8 (D.S.C. March 30, 2014) (records dated a minimum of eight months after Plaintiff's DLI and the physician opinion letter dated 28 months after the DLI, with no specific statement that the opinion relates back to the relevant time period, is a sufficient basis to conclude no further fact finding is necessary).
Upon review, the Court finds the ALJ's decision is also sufficiently explained so as to allow the Court to track the ALJ's reasoning and be assured that all record evidence was considered and understand how the ALJ resolved conflicts in the evidence. See McElveen v. Colvin, C/A No. 8:12-1340-TLW-JDA, 2013 WL 4522899, at *11 (D.S.C. Aug. 26, 2013). Because the Plaintiff failed to show that her shortness of breath caused more than minimal limitations on her ability to work between February 1 and September 30, 2011, and the ALJ adequately explained his consideration of the evidence regarding this impairment as being outside the relevant time period, the Court finds the ALJ's decision is supported by substantial evidence.
Plaintiff challenges the ALJ's RFC determination because the ALJ failed to consider Plaintiff's shortness of breath a medically determinable impairment in rendering her RFC. [Doc. 35 at 11.] Plaintiff also argues the ALJ erred by finding Plaintiff not credible for receiving "minimal and conservative treatment for her neck and back pain" when this minimal treatment was due to her lack of ability to pay for more aggressive treatment. [Id. at 13.] Plaintiff also challenges the ALJ's characterization of her activities of daily living in assessing her credibility arguing that the ALJ does not explain how the performance of certain activities of daily living translates into an ability to work for a full workday. [Id. at 14.]
The Commissioner argues, however, that none of Plaintiff's treating physicians reported any functional limitations resulting from her symptoms or suggesting that her symptoms affected her ability to do sustained work, and substantial evidence supports the RFC determination. [Doc. 36 at 6.] The Court agrees with the Commissioner.
The ALJ found Plaintiff's RFC to be:
[R. 24.]
The ALJ explained that:
[R. 24-27.]
The Administration has provided a definition of RFC and explained what a RFC assessment accomplishes:
SSR 96-8p, 61 Fed.Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545 and 416.945. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id.
Additionally, the Administration has determined that in assessing RFC, the ALJ
Id. at 34,476. When "determining the claimant's residual functional capacity, the ALJ has a duty to establish, by competent medical evidence, the physical and mental capacity that the claimant can perform in a work setting, after giving appropriate consideration to all of her impairments." McGuire v. Astrue, C/A No. 5:07-254, 2008 WL 4446683, at *5 (S.D.W.Va. Sept. 26, 2008) (quoting Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir.1996)). An RFC assessment reflects an individual's "maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis." S.S.R. 96-8p, at *2.
The ALJ must also make a credibility determination in assessing whether Plaintiff is disabled by pain by following a two-step process involving a finding of the credibility of the individual's statements about symptoms. SSR 96-7p, 1996 WL 374186, at *1. First, "there must be objective medical evidence establishing some condition that could reasonably be expected to produce the pain alleged." Craig v. Chater, 76 F.3d 585, 592 (4th Cir.1996) (citing Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir.1986)). Second, and only after the threshold obligation has been met, "the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated." Craig, 76 F.3d at 595 (citing 20 C.F.R. §§ 416.929(b), 404.1529(b)).
At the first step, "the pain claimed is not directly at issue; the focus is instead on establishing a determinable underlying impairment . . . which could reasonably be expected to be the cause of the disabling pain asserted by the claimant." Craig, 76 F.3d at 594. After "an ALJ concludes that an impairment could reasonably be expected to produce the pain alleged, [at the second step of the credibility inquiry] she ought to view any inconsistency or defect in the plaintiff's subjective testimony through a more discriminating lens because the plaintiff's subjective allegations . . . are consistent with the objective expectations." Bragg v. Astrue, C/A No. 8:06-2132-MBS, 2008 WL 348030, at *5 (D.S.C. Feb. 5, 2008).
Upon reviewing the ALJ's decision regarding Plaintiff's RFC, the Court finds the ALJ's decision is supported by substantial evidence. While Plaintiff challenges the ALJ's consideration of her minimal treatment with respect to her neck and back, Plaintiff points to no evidence of record that she was unable to receive treatment required by her doctors due to a lack of funds. Regardless, Plaintiff's conservative treatment was merely one reason for discounting her claims of impairment due to her neck and back pain.
The ALJ noted Plaintiff was only seen for back and/or neck pain on three or four occasions between January 2010 and January 2012. [R. 26.] Further, the ALJ noted Plaintiff was treated with the pain medication Ultram but had no physical therapy or injections, and there was no evidence any surgery has been recommended or that any emergency room visits were needed prior to the date last insured. [Id.] The ALJ concluded that such moderate treatment for a condition alleged to be incapacitating served to lessen the credibility of the Plaintiff as to the severity of her impairments. [Id.] The ALJ further noted that, although Plaintiff reported symptoms of tingling and numbness in her arms and legs, as well as neck pain five months after her DLI, a review of the medical record shows that while Plaintiff received more regular treatment for her complaints of back and neck pain, her neurological examinations remained unremarkable. [R. 25.]
Furthermore, in addition to the conservative nature of her treatment, the ALJ also considered Plaintiff's activities of daily living ("ADL") in determining her RFC and credibility. In considering Plaintiff's ADL's, the ALJ found that:
[R. 27.] The law is clear that, whenever a claimant's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the claimant's statements based on a consideration of the entire case record. SSR 96-7p, 61 Fed.Reg. at 34,485. The credibility determination "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id.; see also Hammond, 765 F.2d at 426 (stating that the ALJ's credibility determination "must refer specifically to the evidence informing the ALJ's conclusions").
In this case, the ALJ expressly followed the two-step process outlined in Craig v. Chater, supra, in making findings related to the credibility of Plaintiff's statements about symptoms. [See R. 26-28.] The Court notes the ALJ sufficiently explained the basis for his credibility findings. And, other than disagreeing with the ALJ's findings, Plaintiff failed to direct the Court to any evidence the ALJ failed to consider. In addition to considering Plaintiff's ADL, the ALJ also considered Plaintiff's testimony which focused greatly on limitations that arose since her surgery in December 2012. [See R. 26-27.] The ALJ concluded that there was simply insufficient evidence to support a finding of disability prior to Plaintiff's DLI. [R. 27.] And, while Plaintiff now raises the argument regarding her inability to afford more aggressive treatment, there is nothing in the record to suggest that Plaintiff's alleged lack of funds impeded her medical care in a way that supports a finding of disability. Accordingly, the Court finds no error in the ALJ's credibility and RFC findings and declines to remand for reconsideration on this basis.
Plaintiff contends that the ALJ's Step 4 finding that Plaintiff could perform her PRW as it was actually and generally performed in the national economy is unsupported by substantial evidence. [Doc. 35 at 15-16.] Plaintiff challenges the ALJ's finding that she can perform PRW because the record indicates that Plaintiff did not meet the required level for the work to constitute substantial gainful activity ("SGA") during those years. [Id.] In other words, Plaintiff argues in essence that her prior work as a filing sorter and hauler, rowing machine operator, and spooler cannot constitute PRW. Plaintiff also claims the VE's testimony was based on an incomplete hypothetical as it did not fairly set out Plaintiff's impairments. [Id.]
The Commissioner argues, however, that Plaintiff incorrectly relies on the regulations' minimum earnings thresholds in arguing Plaintiff's PRW was not SGA. [Doc. 36 at 9.] The Commissioner contends the ALJ appropriately found that Plaintiff's past jobs as a filing sorter and hauler, rowing machine operator, and spooler constituted PRW, fell within the RFC determination, and Plaintiff could perform them as actually and generally performed in the national economy. [Id.] The Court agrees with the Commissioner.
PRW is work that a claimant has done within the past fifteen years, that was SGA, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1565(b)(1). SGA is defined as work activity, even if such work is done on a part-time basis for less pay or with less responsibility than previous work, that involves doing significant physical or mental activities. 20 C.F.R. § 404.1572. The social security regulations specifically state that work activity can be substantial, "even if it is done on a part-time basis." 20 C.F.R. § 404.1560(b)(1). Work is gainful when it is of a type that is "usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b). While the regulations state that "in evaluating your work activity for substantial gainful activity purposes, our primary consideration will be the earnings you derive from the work activity," the amount of earnings is not the sole deciding factor. See 20 C.F.R. § 404.1574(a); Melville v. Apfel, 198 F.3d 45, 52-54 (2nd Cir. 1999) (discussing PRW and finding that "a proper assessment of whether past work was substantial gainful activity requires evaluation of, inter alia, how well the claimant performed her duties, whether those duties were minimal and made little or no demand on her, what her work was worth to the employer, and whether her income was tied to her productivity"); Thornsberry v. Astrue, C/A No. 4:08-4075-HMH-TER, 2010 WL 146483, at *6 (Jan. 12, 2010) (showing consideration that Plaintiff "did not quit his job due to an inability to perform" during the analysis of SGA in addition to the earnings factor).
To be eligible for disability benefits, a person must be unable to engage in SGA. According to social security regulations, a person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in SGA, and the amount of monthly earnings considered as SGA depends on the nature of a person's disability. See Social Security, https://www.socialsecurity.gov/oact/cola/sga.html, (last visited January 21, 2016); 20 C.F.R. §§ 404.1574(a). For work performed between January 1990 and June 1999, monthly earnings averaging more than $500.00 per month for a non-blind person "will ordinarily show" SGA under the regulatory guidelines; between July 1999 and December 2000, monthly earnings averaging more than $700.00 per month ordinarily shows SGA; and finally between 2001-2004, $740 a month ordinarily shows SGA. 20 C.F.R. § 404.1574(b)(2) (Table 1).
The record shows that Plaintiff worked the following jobs in the 15 years before her alleged onset date of disability (originally November 16, 2007):
[R. 152.]
A summary of Plaintiff's FICA earnings is outlined below:
[See R. 149.]
The Vocational Expert ("VE") identified Plaintiff's past work as a final finisher/fringe binder operator (DOT#787.682-014, medium, SVP3), a filing sorter and hauler (DOT#689.687-086, light, SVP2), a rowing machine operator (DOT#619.685-082, light, SVP2), and a spooler(DOT#689.685-014, light, SVP2). [R. 28.] The VE determined that an individual of Plaintiff's age, with her level of education, and RFC would be able to perform Plaintiff's past work as a filing sorter and hauler, rowing machine operator and spooler positions because those are all light exertional level work and fall within the RFC. [Id.] In comparing Plaintiff's RFC with the physical and mental demands of a filing sorter and hauler, rowing machine operator, and spooler, the ALJ found that Plaintiff was able to perform these jobs as actually and generally performed in the national economy. [Id.]
Plaintiff "bears the burden of establishing that prior work qualifies as an unsuccessful work attempt at the fourth stage of the applicable analysis." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). Although it is not clear, the Court presumes that Plaintiff may be attempting to argue that her past work as a filing sorter and hauler, rowing machine operator, and spooler were only unsuccessful work attempts that cannot constitute SGA. [Doc. 35 at 15-16.]
20 C.F.R. § 404.1574(a)(1)(4) provides:
The Court notes that Plaintiff worked for four months in 1998 as a sorter/filer/hauler but provided no reasoning for her leaving this employment and did not allege leaving due to her impairments. Further, while Plaintiff worked from April-December 1999 as a spooler, she missed making the SGA income mark by only $2.54 with no explanation of why she did not work the first four months of the year. Lastly, Plaintiff testified she left her last job in 2007 as a rowing machiner operator because she missed too many work days from being sick and attending doctor's appointments. [R. 40.] She did not allege, however, that she was unable to do that job due to her impairments.
While Plaintiff is correct that her earnings do not meet SGA amounts indicating presumptive "substantial gainful activity" for the particular jobs the ALJ considered PRW, there is no evidence that Plaintiff's impairments were the deciding factor interfering with her ability to continue those jobs. And, certainly, there is no evidence or contention that Plaintiff left her jobs of sorter/filer/hauler and spooler in 1998 and 1999 because of her impairments that became severe on November 16, 2007 (the original alleged onset date). Thus, the ALJ was not required to consider those jobs to be unsuccessful work attempts. Plaintiff worked those jobs in the past 15 years, the jobs lasted long enough for Plaintiff to learn to do them, and profit was realized. See 20 C.F.R. § 404.1565(b)(1); 20 C.F.R. § 404.1574(c)(1)-(5). The Court finds that substantial evidence supports the ALJ's Step 4 finding that Plaintiff's past jobs of filing sorter and hauler, rowing machine operator, and spooler constituted PRW. And, substantial evidence supports the ALJ's finding that Plaintiff, who could perform the full range of light work, could thus perform those jobs. Thus, the ALJ properly ended the analysis at Step 4.
In the alternative, even if the ALJ erred in stopping the analysis at Step 4, the Court recommends that the error is harmless. With regard to Plaintiff's contention that the ALJ presented the VE with an incomplete hypothetical, the Court notes that the ALJ asked the VE to explain Plaintiff's prior work, which the VE did by listing occupations found in the DOT that Plaintiff had performed within the past 15 years. [R. 53-54.] From the hearing testimony, this Court cannot glean that the ALJ presented to the VE a question of whether a hypothetical individual of the same age, education, and RFC as Plaintiff would be able to perform any of Plaintiff's past work. [See id.] Thus, the ALJ's statement that "[t]he vocational expert testified that such an individual would be able to perform the claimant's past work" appears to be an error. [R. 28.]
However, because the ALJ properly determined that Plaintiff had the RFC to perform the full range of light work and had only exertional impairments, the Fourth Circuit has held that the Medical-Vocational Guidelines ("the grids") adequately encompass a claimant's ability to perform basic work activities and VE testimony is not necessary. See Hill v. Colvin, No. 1:14CV134, 2015 WL 4600526, at *5 (M.D.N.C. July 29, 2015) (citing Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985)). Thus, in accordance with the grids for light work, and using the ALJ's statement that Plaintiff was a 53 year old person, with tenth grade education, and could perform the full range of unskilled light work, the grids appear to direct a finding of "not disabled." See 20 C.F.R. Pt. 404, Subpt. P, App. 2 at Table No. 2, Rule 202.10. Therefore, the ALJ's finding that Plaintiff was not disabled is supported by the grids, and testimony of a VE was not needed. Accordingly, the Court declines to remand solely for the Commissioner to make a Step 5 finding of "not disabled" when it is apparent that such a determination is required based on this record. See Huddleston v. Astrue, 826 F.Supp.2d 942, 954-55 (S.D.W.Va. Nov. 23, 2011) (citing cases indicating remand is necessary only when the error results in harm to the claimant such that the Commissioner's decision might reasonably have been different).
Based upon the foregoing, the Court recommends the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
