JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a), D.S.C.
In April 2009, Plaintiff filed an application for DIB, alleging an onset of disability date of August 29, 2006. [R. 113-14.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 72-75, 78-81, 85-86.] On September 1, 2010, Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on May 17, 2011, ALJ Alice Jordan conducted a de novo hearing on Plaintiff's claims. [R. 48-71].
The ALJ issued a decision on July 20, 2011, finding Plaintiff not disabled within the meaning of the Social Security Act ("the Act"). [R. 15-23.] Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 2-5]. Upon judicial review, by Order dated September 12, 2013, this Court determined that the ALJ's decision was not supported by substantial evidence and that the ALJ `s decision should be remanded for proper consideration of the opinion of Plaintiff's treating physician Dr. DeSilva. [R. 598-06 (Opinion and Order, Stawaisz v. Colvin, C/A No. 8:11-3519-JMC).] On November 1, 2013, the Appeals Council vacated the ALJ's final decision and remanded the matter for a new decision. [R. 632.]
On March 28, 2014, Plaintiff appeared before the ALJ for a subsequent hearing during which she chose to appear and testify without the assistance of counsel or other representation. [R. 521-80.] On November 19, 2014, the ALJ issued a new and thoroughly crafted decision finding Plaintiff had not been under a disability as defined by the Act at any time from August 29, 2006, the alleged onset date, through December 31, 2010, the date last insured. [R. 470-500.]
At Step 1,
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
[R. 480, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was capable of performing her past relevant work as an accountant, payroll supervisor, tax preparer manager, and controller; and that, based on the second alternative RFC, Plaintiff was capable of performing her past relevant work as a tax preparer (non-manageral). [R. 498, Finding 6.] The vocational expert also testified that, based on the second or alternative RFC, there was also work available to Plaintiff in the national economy, including the jobs of billing clerk, telephone quotation clerk, charging account clerk, and finisher. [R. 499.] Thus, the ALJ concluded Plaintiff had not been under a disability as defined by the Act from the alleged onset date of August 29, 2006, through the date last insured of December 31, 2010. [R. 500, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 443-46]. Plaintiff filed this pro se action for judicial review on November 10, 2015. [Doc. 1.]
Plaintiff seeks to have this Court reverse the decision of the Commissioner and to remand this matter for an award of benefits because the ALJ failed to apply the requirements of the "Listing" to the medical record when the evidence, as a whole, compels the conclusion that she met the listing requirements for Sjögren's syndrome. [Doc. 27 at 4.] Plaintiff also contends that, in line with the ALJ's failure to properly consider the listing requirements for Sjögren's syndrome, the ALJ overlooked her symptoms of fatigue which are so severe that it is difficult for her to push through a day with non-work activities. [Id. at 8-10.] Lastly, Plaintiff argues that both Dr. Swanthri DeSilva and Dr. Thomas Austin have "certified" her disability [Doc. 29 at 2], and that, while she is not totally incapacitated by Sjögren's syndrome, she does not need to be incapacitated in order to meet the standards of disability [id. at 4-5].
The Commissioner, on the other hand, contends that, as the District Court found in its September 12, 2013, Opinion and Order, Plaintiff has failed to prove that she met the criteria of Listing 14.10 prior to the expiration of her insured status. [Doc. 28 at 10.] The Commissioner also contends the ALJ adequately considered Plaintiff's complaints of fatigue in determining that she was not disabled under the Act. [Id. at 11.] Consequently, the Commissioner requests that this Court affirm the ALJ's decision. [Id. at 14.]
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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
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 expressly challenges the ALJ's consideration of her impairments under Listing 14.10 and contends that proper consideration would have resulted in a finding of disability. [See Doc. 27.] Plaintiff argues that there is substantial evidence in her file to show that she (A) has the serologic evidence of Sjögren's syndrome,(B) that she has radiographic evidence via a brain MRI showing "`periventricular white matter lesions suggestive of vasculitis,'" and that (C) she has multiple system involvement — systemic arthritis, moderate peripheral neuropathy and Raynaud's Phenomenon. [Id. at 5.] Plaintiff also contends that the most relevant limitation of her Sjögren's syndrome is the level of fatigue she experiences. [Id. at 9.] The Court, however, finds the ALJ's decision is supported by substantial evidence.
In evaluating Plaintiff's impairment under Listing 14.10, the ALJ reasoned as follows:
Here, the longitudinal record shows the following objective evidence regarding the claimant's Sjögren's syndrome. August 2006 labs show elevated (212 U/mL) Sjögren's Anti-SS-A, elevated Thyroglobulin, Gn (133.0 ng/mL), and low Insulin-Like Growth Factor I (82 ng/mL)(4F/26, 27, 25). August 2006 treatment notes show that the claimant indicated that her energy was stable (2F/6). November 2006 notes show that the claimant admitted that she had "more energy than in 20 years" (2F/5). November 2006 ANA was positive; diagnoses included
[R. 475-76.]
To determine whether a claimant's impairments meet or equal a listed impairment, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Cook, 783 F.2d at 1173 (stating that without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, "it is simply impossible to tell whether there was substantial evidence to support the determination"). "In cases where there is `ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing." Beckman v. Apfel, No. WMN-99-3696, 2000 WL 1916316, at *9 (D. Md. Dec. 15, 2000) (quoting Cook, 783 F.2d at 1172). While the ALJ may rely on the opinion of a State agency medical consultant in conducting a listing analysis, 20 C.F.R. § 404.1527(f)(2)(iii), the ALJ ultimately bears the responsibility for deciding whether a claimant's impairments meet or equal a listing, id. § 404.1527(e)(2).
Listing 14.00, Immune System Disorders-Adult, provides that Sjögren's syndrome, as described in 1400.D7, is an immune-mediated disorder of the exocrine glands. Involvement of the lacrimal and salivary glands is the hallmark feature, resulting in symptoms of dry eyes and dry mouth, and possible complications, such as corneal damage, blepharitis (eyelid inflammation), dysphagia (difficulty in swallowing), dental caries, and the inability to speak for extended periods of time. Involvement of the exocrine glands of the upper airways may result in persistent dry cough. Listing 14.00D7. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.00D7. Many other organ systems may be involved, including musculoskeletal (arthritis, myositis), respiratory (interstitial fibrosis), gastrointestinal (dysmotility, dysphagia, involuntary weight loss), genitourinary (interstitial cystitis, renal tubular acidosis), skin (purpura, vasculitis), neurologic (central nervous system disorders, cranial and peripheral neuropathies), mental (cognitive dysfunction, poor memory), and neoplastic (lymphoma). Id. Severe fatigue and malaise are frequently reported. Id. Sjögren's syndrome may be associated with other autoimmune disorders (for example, rheumatoid arthritis or SLE); usually the clinical features of the associated disorder predominate.
In order to meet listing level severity for a finding of disability, a claimant must show the existence of Sjögren's syndrome, as described above in 14.00D7, with:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.10.
Upon review, this Court notes that the ALJ sufficiently identified and explained the relevant listing of Sjögren's syndrome. And, as an initial matter, while Plaintiff disagrees with the ALJ's evaluation of her impairments under Listing 14.10, Plaintiff failed to direct the Court to any evidence of record which the ALJ has failed to consider, and/or failed to explain his consideration of, in performing the listing analysis. Furthermore, Plaintiff failed to direct the Court to record evidence showing that she met all of the elements of either subpart A or B of Listing 14.10. For example, Plaintiff did not identify the organ or body system involved to at least a moderate level of severity; and she did not show marked limitations in activities of daily living, social functioning, or in concentration, persistence or pace. The ALJ, upon considering the record evidence, determined that Plaintiff's limitations in activities of daily living, social functioning, and concentration persistence and pace were all mild. [R. 473-74.] Plaintiff failed to challenge this finding. Additionally, the ALJ determined that Plaintiff's physical examinations from June 2006 through April 2009 typically showed symmetric musculature, full range of motion, strength within normal limits, and normal physical exam results. [See R. 494.]
Plaintiff suggests that her case should be remanded for an award of benefits because the ALJ failed to properly consider her "severe fatigue" in determining that she met Listing 14.10, or in determining that she could engage in gainful employment. However, the Court finds this argument unavailing for two reasons. First, the existence of "severe fatigue" is only one factor in determining listing level severity under Listing 14.10 which, from a clear reading of its required findings, is dependent on the presence of an organ or body system involved to at least a moderate level of severity in conjunction with the severe fatigue. The severe fatigue, in an of itself, is not determinative under Listing 14.10. Second, a reading of the ALJ's decision presents a clearly reasoned explanation of his consideration of Plaintiff's complaints of fatigue, which he found were not entirely credible, in determining Plaintiff's RFC. The ALJ noted that, in January 2007, Dr. Diana Pollack stated that, even with complaints of fatigue, Plaintiff had excellent cognitive function. [R. 476.] The ALJ also pointed out that August 2006 and November 2006 treatment notes indicated statements from Plaintiff indicating that her "energy was stable" and that she had "more energy than in 20 years." [R. 487.] Additionally, the ALJ considered Plaintiff's activities of daily living and found them to be inconsistent with her complaints of disabling symptoms and limitations. [R. 473-74, 489, 493.] Therefore, substantial evidence supports that the ALJ sufficiently provided a full analysis to determine whether Plaintiff's impairments met the Sjögren's syndrome listing, and substantial evidence supports the determination that Plaintiff did not meet the listing.
Plaintiff challenges the ALJ's findings in light of opinions by Dr. DeSilva and Dr. Austin which "certify [her] disability." [Doc. 29 at 2.] Again, the Court finds that the ALJ's decision is supported by substantial evidence.
The ALJ reviewed the opinion evidence provided by Dr. DeSilva and gave "great weight to the limitation of `occasionally lift/carry 20 pounds,' as it is greater than the corresponding RFC limitation I gave above, and controlling weight to the limitation of `occasionally reach above shoulder level,' as I have given the same limitation. However, I give the remaining limitations little weight." [R. 490.] The ALJ also noted that, with respect to Dr. DeSilva's March 2008 functional limitations, which the ALJ gave little weight, Dr. DeSilva failed to "indicate the basis on which his opinion was based: whether it was the claimant's report, measured capacity, or clinical experience." [Id.] Additionally, the ALJ explained that:
[R. 491.]
Without restating it here, the Court notes that the ALJ discussed the medical opinions given by Dr. Desilva and other doctors. [See R. 490-98.] The ALJ explained why some of the opinions were not supported by medical evidence of record nor by other evidence in the record, such as Plaintiff's activities of daily living. [Id.] And, the ALJ explained the reasons that he gave Dr. Korn's opinion great weight. [Id.]
The ALJ is obligated to evaluate and weigh medical opinions "pursuant to the following non-exclusive list: (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." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir.2005) (citing 20 C.F.R. § 404.1527). Courts typically "accord `greater weight to the testimony of a treating physician' because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant." Id. (quoting Mastro, 270 F.3d at 178). While the ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, Craig, 76 F.3d at 590, the ALJ must still weigh the medical opinion based on the factors listed in 20 C.F.R. § 404.1527(c). Id. Consequently, the opinion of a treating physician is given controlling weight only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2).
Additionally, Social Security Ruling ("SSR") 96-2p requires that an ALJ give specific reasons for the weight given to a treating physician's medical opinion:
1996 WL 374188, at *4 (July 2, 1996). However, not every opinion offered by a treating source is entitled to deference:
SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996); see also 20 C.F.R. §§ 404.1527(e), 416.927(e) (stating an ALJ does not have to "give any special significance to the source of an opinion on issues reserved to the Commissioner," such as an opinion that the claimant is disabled, the claimant's impairment or impairments meets or equals a listing, or the claimant has a certain residual functional capacity).
Upon review, Dr. DeSilva's treatment notes show as follows:
A review of Dr. Austin's noted indicate the following:
As such, these treatment notes do not present a certification of disability as suggested by Plaintiff. Furthermore, the Court finds the ALJ sufficiently explained his weighing of the treating physician opinions in this decision. Neither Dr. DeSilva nor Dr. Austin found Plaintiff permanently disabled, but merely unable to return to work for a specific period of time. In any instance, such a determination is reserved to the Commissioner, and Plaintiff failed to point to any evidence of record which would support a reversal of this finding by the ALJ.
The mere fact that Plaintiff has been diagnosed with Sjögren's syndrome does not equate to a finding of disability. See Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990) (courts should properly focus not on a claimant's diagnosis, but on the claimant's actual functional limitations). While the Plaintiff would have the Court adopt such a position, such is not supported by the law. Consequently, the Court finds the ALJ's decision is supported by substantial evidence.
Wherefore, based upon the foregoing, it is recommended that the decision of the Commissioner be AFFIRMED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
