A. DAVID COPPERTHITE, Magistrate Judge.
On April 24, 2017, Eugenia Chavis ("Plaintiff") petitioned this court to review the Social Security Administration's ("SSA") final decision to deny her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). See ECF No. 1 (the "Complaint"). After consideration of the Complaint, the parties' cross-motions for summary judgment (ECF Nos. 15 and 18), and the response thereto (ECF No. 19), the Court finds that no hearing is necessary. See Loc.R. 105.6 (D.Md. 2016). In addition, for the reasons that follow, Plaintiff's Motion for Summary Judgment (ECF No. 15) is DENIED, Defendant's Motion for Summary Judgment (ECF No. 18) is GRANTED, and the decision of the SSA is AFFIRMED.
On December 21, 2012, Plaintiff filed a Title II application for a period of disability and DIB and a Title XVI application for SSI alleging disability beginning on May 16, 2011. Her claims were denied initially and upon reconsideration on April 30, 2013 and January 14, 2014, respectively. Subsequently, on February 12, 2014, Plaintiff filed a written request for a hearing and, on February 25, 2016, a video hearing was held whereby Plaintiff appeared in Baltimore, Maryland and an Administrative Law Judge ("ALJ") presided over the hearing from Baltimore, Maryland. On April 12, 2016, the ALJ rendered a decision ruling that Plaintiff "ha[d] not been under a disability within the meaning of the Social Security Act [("the Act")] from May 16, 2011, through the date of this decision." See ECF No. 6 at 30. Thereafter, Plaintiff filed an appeal of the ALJ's disability determination and, on March 2, 2017, the Appeals Council denied Plaintiff's request for review. Thus, the decision rendered by the ALJ became the final decision of the Commissioner. See 20 C.F.R. § 416.1481 (2017); see also Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On April 24, 2017, Plaintiff filed the Complaint in this Court seeking judicial review of the Commissioner's denial of Plaintiff's disability applications.
"This Court is authorized to review the Commissioner's denial of benefits under 42 U.S.C.A. § 405(g)." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (citation omitted). The Court, however, does not conduct a de novo review of the evidence. Instead, the Court's review of an SSA decision is deferential, as "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ("The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court."); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) ("We do not conduct a de novo review of the evidence, and the Secretary's finding of non-disability is to be upheld, even if the court disagrees, so long as it is supported by substantial evidence." (citations omitted)). Therefore, the issue before the reviewing court "is not whether [Plaintiff] is disabled, but whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) ("Under the [Act], [a reviewing court] must uphold the factual findings of the [ALJ] if they are supported by substantial evidence and were reached through application of the correct legal standard." (citations omitted)).
Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). It "consists of more than a mere scintilla of evidence but may be less than a preponderance." Smith, 99 F.3d at 638. "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. Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ." Johnson, 434 F.3d at 653 (internal citations omitted). Therefore, in conducting the "substantial evidence" inquiry, the court shall determine whether the ALJ has considered all relevant evidence and sufficiently explained the weight accorded to that evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
In order to be eligible for DIB or SSI, a claimant must establish that she is under disability within the meaning of the Act. The term "disability," for purposes of the Act, is defined 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 a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant shall be determined to be under disability where "[her] physical or mental impairment or impairments are of such a severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]" 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In determining whether a claimant has a disability within the meaning of the Act, the ALJ, acting on behalf of the Commissioner, follows the five-step evaluation process outlined in the Code of Federal Regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The evaluation process is sequential, meaning that "[i]f at any step a finding of disability or nondisability can be made, the [Commissioner] will not review the claim further." Thomas, 540 U.S. at 24; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
At step one, the ALJ considers the claimant's work activity to determine if the claimant is engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is engaged in "substantial gainful activity," then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b).
At step two, the ALJ considers whether the claimant has a "severe medically determinable physical or mental impairment [or combination of impairments] that meets the duration requirement[.]" 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination of impairments meeting the durational requirement of twelve months, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.909, 416.920(a)(4)(ii), 416.920(c).
At step three, the ALJ considers whether the claimant's impairments, either individually or in combination, meet or medically equal one of the presumptively disabling impairments listed in the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment meets or equals one of the listed impairments, then the claimant is considered disabled, regardless of the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford v. Colvin, 734 F.3d 288, 291 (4th Cir.2013).
Prior to advancing to step four of the sequential evaluation, the ALJ must assess the claimant's RFC, which is then used at the fourth and fifth steps of the analysis. 20 C.F.R. § 404.1520(e). RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. SSR 96-8p. 1996 WL 374184, at *1 (July 2, 1996). The ALJ must consider even those impairments that are not "severe." 20 C.F.R. § 404.1545(a)(2).
In determining RFC, the ALJ evaluates the claimant's subjective symptoms (e.g., allegations of pain) using a two-part test. Craig, 76 F.3d at 594; 20 C.F.R. § 404.1529. First, the ALJ must determine whether objective evidence shows the existence of a medical impairment that could reasonably be expected to produce the actual alleged symptoms. 20 C.F.R. § 404.1529(b). Once the claimant makes that threshold showing, the ALJ must evaluate the extent to which the symptoms limit the claimant's capacity to work. 20 C.F.R. § 404.1529(c)(1). At this second stage, the ALJ must consider all of the available evidence, including medical history, objective medical evidence, and statements by the claimant. 20 C.F.R. § 404.1529(c). The ALJ must assess the credibility of the claimant's statements, as symptoms can sometimes manifest at a greater level of severity of impairment than is shown by solely objective medical evidence. SSR 16-3p, 2017 WL 5180304, at *1-12 (Oct. 25, 2017). To assess credibility, the ALJ should consider factors such as the claimant's ability to perform daily activities, activities that precipitate or aggravate the symptoms, medications and treatments used, and other methods used to alleviate the symptoms. Id. at *6.
At step four, the ALJ considers whether the claimant has the ability to perform past relevant work based on the determined RFC. 20 C.F.R. §§ 404.1520(a)(4)(iv). 416.920(a)(4)(iv). If the claimant can still perform past relevant work, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(e), 416.920(a)(4)(iv), 416.920(e).
Where the claimant is unable to resume past relevant work, the ALJ proceeds to the fifth and final step of the sequential analysis. During steps one through four of the evaluation, the claimant has the burden of proof. 20 C.F.R. §§ 404.1520, 416.920; see Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Radford, 734 F.3d at 291. At step five, however, the burden of proof shifts to the ALJ to prove: (1) that there is other work that the claimant can do, given the claimant's age, education, work experience, and RFC (as determined at step four), and; (2) that such alternative work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); see Hancock, 667 F.3d at 472-73; Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the claimant can perform other work that exists in significant numbers in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g)(1), 404.1560(c), 416.920(a)(4)(v). If the claimant cannot perform other work, then the claimant is disabled. Id.
In the instant matter, the ALJ performed the sequential evaluation and found at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. ECF No. 6 at 31. At step two, the ALJ found that Plaintiff had the severe impairments of residuals of reconstructed feel, residuals of fractured hip, degenerative joint disease, dysfunction of major joints, psoriasis, psoriatic arthritis, chronic obstructive pulmonary disease, asthma, and migraine headaches. Id. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Id. at 32. At step four, the ALJ determined that Plaintiff had the RFC:
Id. at 34. Based on the resulting RFC, the ALJ then determined that Plaintiff was "unable to perform any past relevant work." Id. at 39. Finally, at step five, the ALJ found that "[c]onsidering [Plaintiff]'s age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform." Id. at 40. Accordingly, the ALJ concluded that Plaintiff "ha[d] not been under a disability, as defined in [the Act], from May 16, 2011, through the date of this decision." Id. at 41.
Plaintiff argues that the ALJ's decision is not supported by substantial evidence on the record as a whole and raises four specific allegations of error on appeal: (1) that the ALJ was not clear in his determination of Plaintiff's severe impairments; (2) that the ALJ did not properly consider Plaintiff's medical impairments under Listing 1.02; (3) that the ALJ's RFC determination was not supported by substantial evidence; and (4) that the ALJ improperly considered the vocational expert's ("VE") testimony. Each of Plaintiff's arguments lacks merit and is addressed below.
Plaintiff contends that the ALJ failed to conclude or clarify the presence of medically determinable and disabling severe impairments. ECF No. 15-1 at 8-9. Specifically. Plaintiff finds error because the ALJ failed to clarify his findings of "Dysfunction of Major Joints" and "Degenerative Joint Disease" and whether they included Plaintiff's shoulder and hand pain and related problems. Id. at 9. The Court disagrees.
Although his step two analysis does not expressly mention whether the ALJ considered Plaintiff's shoulder and hand pain in finding that Plaintiff suffered from "dysfunction of major joints, including [Plaintiff's] knee, hip, and ankle," and from degenerative joint disease, the ALJ did refer to "Finding Five" of his opinion. ECF No. 6 at 32. Within Finding Five, the ALJ discussed Plaintiff's shoulder pain, stating, "In March 2012, [Plaintiff] presented for treatment for neck and right shoulder pain following a motor vehicle collision, but there is no indication that [Plaintiff] obtained additional treatment for neck or shoulder pain (Exhibit 15F/15-16)." Id. at 36. Furthermore, while the ALJ does not specifically reference Plaintiff's hand pain, in particular, her alleged carpal tunnel syndrome, the ALJ stated that he carefully considered the entire record, and absent evidence to the contrary, this Court should take the ALJ at his word. See Jarvis v. Berryhill, No. TMD 15-2226, 2017 WL 467736, at *2 (D.Md. Feb. 3, 2017) ("[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." (quoting Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014))). Here, the ALJ discussed the findings of Dr. Paul Barbera, who mentioned in his report that Plaintiff "is able to use her hands for fine and dexterous movements."
At step three of the sequential evaluation, the ALJ must determine whether the claimant's impairments meet or equal one or more of the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Where a claimant can show that her condition "meets or equals the listed impairments," the claimant is entitled to a conclusive presumption that she is disabled within the meaning of the Act. Bowen v. City of New York, 476 U.S. 467, 471 (1986); see McNunis v. Califano, 605 F.2d 743, 744 (4th Cir. 1979) (stating that the listings, if met, are "conclusive on the issue of disability"). The burden of proof is on the claimant to show that she meets all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
"In evaluating a claimant's impairment, an ALJ must fully analyze whether a claimant's impairment meets or equals a `Listing' where there is factual support that a listing could be met." Huntington v. Apfel, 101 F.Supp.2d 384, 390 (D.Md. 2000) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). However, "[u]nder Cook, the duty of identification of relevant listed impairments and comparison of symptoms to Listing criteria is only triggered if there is ample evidence in the record to support a determination that the claimant's impairment meets or equals one of the listed impairments." Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D.Md. 1999). "Neither the Social Security law nor logic commands an ALJ to discuss all or any of the listed impairments without some significant indication in the record that the claimant suffers from that impairment." Id. On the other hand, "[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling. The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford, 734 F.3d at 295 (internal citations omitted).
Remand is appropriate where the "ALJ's opinion failed to apply the requirements of the listings to the medical record." Id. at 291-92; see Fox v. Colvin, 632 F.App'x. 750, 755-56 (4th Cir. 2015) (holding that the ALJ's conclusory and perfunctory analysis, at step three necessitated remand). In evaluating whether an ALJ's listing comparison was proper, however, the Court is not confined to the ALJ's analysis at step three and instead must consider the reasoning provided by the ALJ in the decision in its entirety. See Schoofield v. Barnhart, 220 F.Supp.2d 512, 522 (D.Md. 2002) (holding that remand is not warranted "where it is clear from the record which [L]isting . . . w[as] considered, and there is elsewhere in the ALJ's opinion an equivalent discussion of the medical evidence relevant to the [s]tep [t]hree analysis which allows [the reviewing c]ourt readily to determine whether there was substantial evidence to support the ALJ's [s]tep [t]hree conclusion").
Here, Plaintiff argues that the ALJ failed to properly evaluate her medical impairments under Listing 1.02. Id. at 9. Listing 1.02 states:
20 C.F.R. pt. 404, subpt. P, app. 1, 1.02. During his step three analysis, the ALJ explained why Plaintiff failed to meet the requirements of Listing 1.02:
ECF No. 6 at 32-33. The ALJ continues to discuss other Listings and states that "the record, consistent with the findings below, failed to demonstrate an inability to ambulate effectively, as defined in 1.00B2b" and "there is little evidence that [Plaintiff] did not return to effective ambulation." Id. at 33. The ALJ's reasoning therefore outlined the symptoms required by Listing 1.02 and identified the listed symptoms that were not supported by Plaintiff's medical record, specifically Plaintiff's ability to ambulate. Furthermore, the ALJ cited multiple exhibits in the record to support his findings and explained his reasoning, including support from the record, in his step three and step four discussions, noting:
Id. at 37.
Plaintiff insists that the record contains sufficient evidence to support a determination that she met or equaled Listing 1.02. ECF No. 15-1 at 9. Specifically, Plaintiff states that "if the ALJ had carefully reviewed and considered the totality of the medical evidence of record and [Plaintiff]'s own reports and testimony as described herein (which does show ambulation difficulties on a regular basis), he may very well have concluded differently regarding her ability to ambulate, particularly the specific notation in Listing 1.00B2b, that ability to walk independently without an assistive device around one's home does
Where a claimant's impairment is not sufficiently severe to equal or exceed a listed impairment, the ALJ must then assess the claimant's RFC. RFC assesses "the maximum degrees to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs." 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c).
In determining RFC specifically, an ALJ must take into account the entire record, opinion evidence, impairments that are not severe, and any limitations the ALJ finds. 20 C.F.R. § 404.1545(a) (ordering the ALJ to consider the entire record); SSR 96-8p, at *2 (defining RFC as an assessment of an individual's ability to perform vocational-related physical and mental activities). Thus, the ALJ must also consider, and may rely on, the opinions of non-treating sources. See SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources."). As is the case with the opinions of physicians and psychologists, the ALJ is required to weigh the opinions of non-treating sources and explain the reasons behind the weight given. See SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006).
Furthermore, it is the duty of the ALJ to make findings of fact and resolve conflicts in the evidence. Hays, 907 F.2d at 1456 (quoting King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)). If more than one impairment is present, the ALJ must consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. 20 C.F.R. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them." (citation omitted)).
Social Security Ruling 96-8p provides the proper framework for evaluating a claimant's RFC. Specifically, the Ruling provides:
SSR 96-8p, at *7 (footnote omitted). Furthermore, "[t]he Ruling instructs that the [RFC] `assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (footnote omitted) (quoting SSR 96-8p). "Only after that may [the RFC] be expressed in terms of the exertional levels of work[:] sedentary, light, medium, heavy, and very heavy." Id. (quoting SSR 96-8p).
During its step four evaluation, the ALJ determined that Plaintiff could "perform light work" with the following limitations:
ECF No. 6 at 34. Plaintiff challenges the ALJ's RFC determination, arguing that substantial evidence does not support the RFC determination because the ALJ (1) erroneously evaluated Plaintiff's credibility and (2) failed to give proper weight to the opinion of the examining physician and the State agency medical consultants. ECF No. 15-1 at 11-20. Plaintiff's arguments are unavailing.
Relying on Lewis v. Berryhill, 858 F.3d 858 (4th Cir. 2017), Plaintiff contends that the ALJ inappropriately determined her credibility by relying on objective medical findings or the lack thereof rather than her subjective statements and by failing to explain how Plaintiff's statements undercut her credibility. ECF No. 15-1 at 11-15. According to Plaintiff, the ALJ had more than ample objective medical findings to support the existence of Plaintiff's subjective symptoms and complaints, but the ALJ contradicts himself by noting various findings in the medical records to support a finding of ineffective ambulation and impermissibly "playing doctor" and "cherry picking" findings to undercut Plaintiff's medical records showing her disability. Id. at 14-16 (emphases omitted). Defendant argues that the ALJ provided three rationales for finding that Plaintiff's subjective statements were not entirely credible, namely that Plaintiff's statements were undermined by Plaintiff's daily activities, work history, and medical records which contained little objective evidence to support her allegations. ECF No. 18-1 at 13-15. The Court agrees with Defendant.
The Court of Appeals for the Fourth Circuit laid out the two-step process for evaluating whether a person is disabled by pain and other symptoms under 20 C.F.R. §§ 404.1529 and 416.929:
Lewis, 858 F.3d at 865-66 (internal citations omitted); see also Craig, 76 F.3d at 594 (describing the two-step process). At the second stage, the ALJ must consider all the available evidence, including the claimant's medical history, medical signs, statements by the claimant and her treating or examining physicians, objective medical evidence of pain, and any other information proffered by the claimant. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3).
In addition, the ALJ should consider inconsistencies in the evidence to determine whether a claimant's subjective claims regarding her pain symptoms can reasonably be accepted. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Subjective symptoms of pain, standing alone, cannot sustain a finding of disability and a claimant must substantiate her allegations of pain. 20 C.F.R. § 404.1529; see also Mickles v. Shalala, 29 F.3d 918, 923 (4th Cir. 1994) (stating that pain may render the claimant incapable of working independent of any physical limitation, but allegations of pain alone are insufficient to find a disability). "According to the regulations, the ALJ `will not reject [a claimant's] statements about the intensity and persistence of [her] pain or other symptoms or about the effect [the claimant's] symptoms have on [her] ability to work solely because the available objective medical evidence does not substantiate [the claimant's] statements.'" Lewis, 858 F.3d at 866 (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). The ALJ, therefore, is required to make a finding regarding a claimant's credibility and should specifically refer to the evidence supporting that finding, Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (per curiam), but the ALJ cannot discount Plaintiff's subjective evidence of pain solely based on objective medical findings, Lewis, 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)).
Regarding Plaintiff's pain, the ALJ found that, although Plaintiff's "medically determinable impairments could reasonably be expected to cause [her] alleged symptoms," her "statements concerning the intensity, persistence and limiting effects of these symptoms [are] not fully supported by the objective medical evidence and other relevant evidence considered herein." ECF No. 6 at 35. The ALJ explained his reasoning as follows:
Id. at 35-36 (internal record citations omitted). The ALJ continued to discuss several times when Plaintiff sought medical treatment as a result of pain in 2012 through 2015, determining that "[a]lthough the evidence indicates that [Plaintiff] suffered injuries from accidents occurring decades ago and that she has some residual effects from these injuries, including deformed toes, a review of the medical evidence as of the alleged onset date of disability is insufficient to show that [Plaintiff] would be more limited than indicated in the above [RFC]." Id. at 36-37. In sum, the ALJ stated that "[t]he medical evidence and other evidence of record suggest that [Plaintiff] can sustain a greater capacity than she described at the hearing" and concluded that Plaintiff's "subjective complaints and alleged limitations are not fully persuasive." Id. at 39.
While the ALJ improperly relied on some impermissible objective medical evidence under Lewis, he also relied on sufficient subjective evidence to find that Plaintiff was not credible. In particular, the ALJ acknowledged Plaintiff's testimony about the pain symptoms caused by her physical impairments and pointed to several facts which were inconsistent with Plaintiff's claims regarding her pain and limitations. First, the ALJ referenced Plaintiff's own testimony that she performs some daily living activities, including cleaning and cooking, driving, and living alone in a two-story house with twelve stairs. Id. at 35, 37. Therefore, by considering Plaintiff's own testimony, the ALJ properly determined that the evidence contradicted Plaintiff's subjective claims regarding her impairments and their impact on her ability to work. See Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (per curiam) (upholding a finding of no disability where the claimant managed his household, grocery shopped, cooked, washed dishes, and walked to town every day); Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009) ("[A]cts such as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are inconsistent with subjective complaints of disabling pain."); Rahe v. Astrue, 840 F.Supp.2d 1119, 1136 (N.D.Iowa 2011) (finding that substantial evidence in the record of claimant's reported activities supported the ALJ's adverse credibility determination where the claimant had "reported activities of daily living including preparing meals, completing household chores, laundry, and shopping, activities which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations").
In addition, the ALJ noted inconsistencies regarding Plaintiff's ability to ambulate, specifically that "[a]lthough [Plaintiff] alleged that she uses a cane to ambulate, there is little medical evidence showing that [Plaintiff] requires a cane to ambulate. Notably, [Plaintiff] did not bring a cane with her to the hearing but rather testified that her cane was in her car, which she drove to the hearing." ECF No. 6 at 37 (record citation omitted). Lastly, the ALJ considered that Plaintiff worked for several years before the alleged onset date and that she stopped working because she was laid off, not because of pain or other symptoms. Id. at 36; see Cauthen v. Finch, 426 F.2d 891, 892 (4th Cir. 1970) (per curiam) (finding that a claimant is not entitled to disability benefits where the claimant worked regularly for many years with longstanding impairments). Therefore, the ALJ's detailed evaluation of the record evidence against Plaintiff's statements regarding her symptoms amply supports the ALJ's conclusion that Plaintiff's alleged limitations were not entirely credible, and the ALJ properly evaluated Plaintiff's credibility, supporting his findings with substantial evidence.
Plaintiff contends that the ALJ erroneously afforded, without proper justification, some weight to the opinion of Dr. Barbera, an examining physician, and great weight to the State agency medical consultants' opinions which were based on a "mere cursory review of available medical evidence years prior to the hearing in February 2016, which did not include much more recent substantial medical evidence." ECF No. 15-1 at 19-20 (emphasis omitted). Plaintiff is incorrect.
As this Court previously noted, "an ALJ need not parrot a single medical opinion, or even assign `great weight' to any opinions, in determining an RFC assessment. Instead, an ALJ is required to consider `all of the relevant medical and other evidence.'" Jackson v. Comm'r, Soc. Sec., No. CCB-13-2086, 2014 WL 1669105, at *2 (D.Md. Apr. 24, 2014); see also 20 C.F.R. §§ 404.1545(a) (ordering that an ALJ consider the entire record). Thus, an ALJ must consider, and may rely on, the opinions of non-treating medical sources, such as an examining physician or State agency consultant. See SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources."). As is the case with the opinions of physicians and psychologists, the ALJ is required to weigh the opinions of non-treating sources and explain the reasons behind the weight given. See SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). Furthermore, it is the duty of the ALJ to make findings of fact and resolve conflicts in the evidence. Hays, 907 F.2d at 1456 (quoting King, 599 F.2d at 599).
When evaluating medical opinions, the ALJ should consider "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Dunn v. Colvin, 607 F.App'x 264, 267 (4th Cir. 2015) (quoting Johnson, 434 F.3d at 654). "[A] non-examining physician's opinion cannot, by itself, serve as substantial evidence supporting a denial of disability benefits when it is contradicted by all of the other evidence in the record." Smith, 795 F.2d at 345 (emphasis in original) (citation omitted). However, "the testimony of a non-examining physician can be relied upon when it is consistent with the record." Id. at 346 (citation omitted). "An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up `specious inconsistencies' or has failed to give a sufficient reason for the weight afforded a particular opinion." Dunn, 607 F.App'x at 267 (internal citations omitted).
In this case, the ALJ assigned some weight to Dr. Barbera's opinion and great weight to the State agency medical consultants' assessments, articulating his reasoning as follows:
ECF No. 6 at 38-39 (internal record citations omitted). Here, while the ALJ assigned "great weight" to the opinions of State agency consultants who never examined or treated Plaintiff, he did so because their opinions were supported by the medical evidence as a whole. Id. at 34, 39. Moreover, the ALJ assigned Dr. Barbera's opinion "some weight," not "no weight," because Dr. Barbera's opinions were vague and did not specify the meaning of "some difficulty" with respect to prolonged standing, walking, and traveling as well as lifting and carrying objects. Further, the ALJ relied upon the treatment notes from Plaintiff's medical appointments and Plaintiff's reports of her daily activities in determining the RFC assessment, which are consistent with the opinions of Dr. Barbera and the two State agency consultants. Id. at 36-39. Accordingly, the ALJ did not err in weighing the physicians' opinions, and thus, his RFC analysis is consistent with the medical evidence of record and rests on a sufficient evidentiary basis.
Lastly, Plaintiff disagrees with the ALJ's consideration of the VE's opinion, arguing that the ALJ erred when he (1) posed a hypothetical to the VE with limitations which were not supported by substantial evidence; and (2) accepted a response from the VE which was inconsistent with the Dictionary of Occupational Titles ("DOT"). The Court disagrees.
The Commissioner employs VEs to offer evidence as to whether a claimant possesses the RFC to meet the demands of past relevant work or adjust to other existing work. 20 C.F.R. §§ 404.1560(b)-(c), 416.960(b)-(c). The VE may respond to a hypothetical about a person "with the physical and mental limitations imposed by the claimant's medical impairment(s)." 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). "In order for a vocational expert's opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record, and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir. 2006) (quoting Walker, 889 F.2d at 50). "A hypothetical question is unimpeachable if it adequately reflects a [RFC] for which the ALJ had sufficient evidence." Fisher v. Barnhart, 181 F.App'x 359, 364 (4th Cir. 2006) (per curiam) (internal quotation marks omitted) (emphasis omitted) (quoting Johnson, 434 F.3d at 659).
In the present case, all of the limitations in Plaintiffs RFC were properly included in the ALJ's hypothetical to the VE. At step four of the sequential evaluation, the ALJ determined that:
ECF No. 6 at 34. Consistent with that conclusion, during the hearing, the ALJ posed the following hypothetical question to the VE:
Id. at 75-76. The VE testified that only about half of the jobs consistent with Plaintiff's prior cashiering work have a sit-stand option and she identified three jobs consistent with the ALJ's hypothetical, answering that all three included some level of sit-stand option. Id. at 76. The ALJ then asked a second hypothetical:
Id. at 77. The VE responded, "No[.]" Id.
Here, Plaintiff posits that the hypothetical with its limitations, as premised on the RFC assessment, was deficient because the RFC assessment was not supported by substantial evidence. ECF No. 15-1 at 23-24. Plaintiff also contends that the ALJ erred by failing to consider and accept the VE's response to the second hypothetical which Plaintiff contends was consistent with her testimony and functional report statements. Id. Both arguments fail because an ALJ is afforded "great latitude in posing hypothetical questions and is free to accept or reject suggested restrictions so long as there is substantial evidence to support the ultimate question." Koonce v. Apfel, No. 98-1144, 1999 WL 7864, at *5 (4th Cir. Jan. 11, 1999) (per curiam). Moreover, "based on his or her evaluation of the evidence, an ALJ is free to accept or reject restrictions included in hypothetical questions. . . ." France v. Apfel, 87 F.Supp.2d 484, 490 (D.Md. 2000). As discussed above, the ALJ provided substantial evidence to reject some of the more severe limitations suggested by Plaintiff and to support the restrictions included in the RFC assessment. Thus, the ALJ did not err in posing his hypothetical nor in considering the VE's testimony.
Plaintiff argues that the ALJ committed error when he accepted a response to a hypothetical question from the VE which was inconsistent with the DOT and not responsive to the hypothetical RFC posed. ECF No. 15-1 at 24. Specifically, Plaintiff opines that the RFC limitations were ambiguous and inconsistent and failed to account for time off task. Id. at 24-26.
Social Security Ruling 00-4p clarifies 20 C.F.R. § 404.1566, which states, without more, that ALJs will consider both the DOT and VE testimony to determine whether a Social Security claimant can find work suited to his RFC. SSR 00-4p explains that its purpose is to require the ALJ (not the VE) to "[i]dentify and obtain a reasonable explanation" for conflicts between the VE's testimony and the DOT, and to "[e]xplain in the determination or decision how any conflict that has been identified was resolved." 2000 WL 1898704, at *1 (Dec. 4, 2000). The Ruling then proceeds to require that the ALJ undertake exactly these responsibilities. First, the ALJ must "[a]sk the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT;" and second, "[i]f the VE's . . . evidence appears to conflict with the DOT," the ALJ must "obtain a reasonable explanation for the apparent conflict." Id. at *4. Notably, this second requirement is so independent of the first that it does not rest on the VE's identification of a conflict. Rather, SSR 00-4p directs the ALJ to "resolve the conflict by determining if the explanation given by the VE . . . is reasonable," id. at *2, and to "explain the resolution of the conflict irrespective of how the conflict was identified," id. at *4.
Here, during the hearing, the ALJ expressly asked the VE whether her testimony was consistent with the DOT, and if not, asked her to explain the conflict. ECF No. 6 at 77. The VE answered that her testimony was consistent with the DOT and that "the jobs that [she] offered, the sit/stand information, as well as the off task information from the second hypothetical, that's based on [her] experience in the field observing the jobs and speaking with employees." Id. Based on this testimony, at step five of his analysis, the ALJ determined that the VE's testimony was consistent with the information contained in the DOT. Id. at 41.
As the record shows, the ALJ directly questioned the VE about the consistency of her testimony and the DOT and the VE provided a sufficient explanation, referencing her prior relevant experience. See Fisher, 181 F.App'x at 365 (recognizing that an ALJ may rely on conflicting VE testimony if he finds that it is based on another reliable publication or the VE's own experience in job placement or career counseling (citing SSR 00-4p)). In this manner, the ALJ identified and addressed any possible conflict between Plaintiff's sit-stand and off task limitations and the DOT job descriptions, and the VE provided an explanation upon which the ALJ was entitled to rely.
In summation, the Court finds that the ALJ properly evaluated the evidence on record and provided substantial evidence in support of the finding that Plaintiff was "not disabled" within the meaning of the Act from May 16, 2011 through the date of the ALJ's decision. Pursuant to 42 U.S.C. § 405(g), "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Therefore, based on the foregoing, Plaintiff's Motion for Summary Judgment (ECF No. 15) is DENIED, Defendant's Motion for Summary Judgment (ECF No. 18) is GRANTED, and the decision of the Social Security Administration is AFFIRMED. The clerk is DIRECTED to close this case.
