TIMOTHY M. CAIN, District Judge.
The plaintiff, Kim Eugenia Sawyer ("Sawyer"), brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). (ECF No. 1.) In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), DSC, this matter was referred to a magistrate judge for pretrial handling. Now before this court is the magistrate judge's Report and Recommendation ("Report"), recommending that the court affirm the Commissioner's decision. (ECF No. 18.) Sawyer has filed timely objections to the Report (ECF No. 20) and the Commissioner has responded to those objections (ECF No. 22). Accordingly, the matter is now ripe for review.
The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). In making that determination, the court is charged with conducting a de novo review of those portions of the Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may accept, reject, or modify the Report, or recommit the matter to the magistrate judge. See id.
Sawyer filed applications for DIB and SSI on April 2, 2010, alleging disability since June 11, 2008,
The federal judiciary has a limited role in the administrative scheme established by the Social Security Act ("SSA" or the "Act"). Section 405(g) of the Act provides, "the 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). "Substantial evidence has been defined ... as more than a scintilla, but less than a preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
However, "[f]rom this it does not follow... that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, "the courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational." Vitek, 438 F.2d at 1157-58.
Sawyer has raised two specific objections: (1) the ALJ should have defined the term "status sacral fracture," and his failure to do so indicates that he did not properly consider all of Sawyer's impairments and (2) the ALJ should have affording Sawyer's treating psychiatrist's opinion more weight. As the Commissioner notes in her response to Sawyer's objections, these are the two issues on appeal and, as such, have been fully briefed by the parties and are the sole focus of the magistrate judge's twenty-seven page Report.
However, because Sawyer's objections are technically specific, the court has conducted a full de novo review of the record. Sawyer's objections do not present any additional information or argument not already addressed in briefing and the Report. The court is not unsympathetic to Ms. Sawyer, but, after a thorough review, the court does not find any reason to deviate from the Report's well-reasoned conclusion that the Commissioner's findings as to both of these issues are supported by substantial evidence and result from application of the proper legal standard.
Therefore, after a full review of the record in this case, the court adopts the Report and incorporates it herein. Accordingly, the Commissioner's decision is
Carolyn W. Colvin, Acting Commissioner of Social Security Administration,
SHIVA V. HODGES, United States Magistrate Judge.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
On April 2, 2010, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on June 11, 2008. Tr. at 111-13, 119-22. Her applications were denied initially and upon reconsideration. Tr. at 52-53, 55-56. On June 1, 2011, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Linda R. Haack. Tr. at 33-51 (Hr'g Tr.). At the hearing, Plaintiff amended her alleged onset date to January 9, 2010. Tr. at 18. The ALJ issued an unfavorable decision on June 24, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 18-32. Subsequently, the Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-3. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on August 17, 2012. [Entry #1].
Plaintiff was 54 years old at the time of the hearing. Tr. at 37. She completed high school and some college. Id. Her past relevant work ("PRW") was as a clerk, in data entry, and in tax resolution. Tr. at 47-48. She alleges she has been unable to work since January 9, 2010. Tr. at 36.
The record contains evidence dated prior to Plaintiffs January 2010 amended alleged onset date, including treatment notes showing that Plaintiff presented to Mary Little, M.D., for routine medical care (Tr. at 230-40), and saw her psychiatrist, Peter Sukin, M.D., although Dr. Sukin's notes are largely illegible (see Tr. at 264-74, 276-86, 344).
In January 2010 (the month of Plaintiffs amended alleged onset date), Plaintiff went to the Summerville Medical Center and complained of back pain stemming from a fall six weeks earlier. Tr. at 253-58. Doctors diagnosed a sacral fracture and acute back pain, prescribed her Lortab and a walker, and advised her to follow up with an orthopedist. Tr. at 254-55.
Later that month, Plaintiff went to William Wilson, M.D., at an orthopedic center for her pain. Tr. at 228-29. Dr. Wilson noted some tenderness in her lower lumbar area and into her sacral area, as well as some weakness in her legs with movement. Tr. at 228. A CT scan of her lumbar spine showed evidence of bilateral sacral fractures, as well as evidence of inflammation (sclerosis), degenerative osteorthritis
After calling in for a refill of her pain medication, Plaintiff returned to Dr. Wilson the following month, complained of pain over her tailbone, and requested stronger pain medications. Tr. at 227. An x-ray of her pelvis and sacrum showed some abnormal shaping (angulation) and displaced bone fragments (rami). Id. Dr. Wilson diagnosed a healing pelvis fracture and discussed treatment options, but Plaintiff declined surgery. Id. Dr. Wilson prescribed Percocet. Id. Plaintiff saw Dr. Wilson again in March 2010 complaining of trouble walking due to pain in her sacral area. Tr. at 226. Dr. Wilson noted that a CT scan demonstrated a fracture through the S1-S2 region, but also noted that Plaintiff had no interest in surgery or in an evaluation by a trauma specialist. Id. The same month, Plaintiff saw Dr. Little, who noted that Plaintiff had swollen feet, had stopped eating and had lost weight, and had bed sores. Tr. at 241-42. Dr. Little started Plaintiff on an appetite stimulant and referred her for surgery for her bed sores. Id.
Plaintiff saw Dr. Sukin in April 2010 and discussed diet-related issues. Tr. at 387. She also saw Dr. Wilson that month, who noted that her pain seemed better, but that she had infected bed sores. Tr. at 225. Dr. Wilson again noted that Plaintiff's pelvis fracture was healing and encouraged her to walk with her walker despite her refusal to engage in physical therapy. Id. The next day, Plaintiff went to the Coastal Carolina Surgical Specialists ("CCSS") for decubitus ulcers (bed sores) on her sacrum and heels. Tr. at 298. Doctors there noted she had profound deconditioning due to depression, anorexia, immobility, and wasting (Tr. at 243-44), and performed an operation to debride the sores (Tr. at 259-62).
Plaintiff returned to CCSS for follow up on the surgery in May 2010 and stated that the sores were healing well. Tr. at 295. She returned again in June 2010 and doctors reported that the sores on her heels "look[ed] great." Tr. at 292.
On June 7, 2010, Dr. Sukin completed a questionnaire regarding Plaintiffs mental condition. Tr. at 275. He noted her diagnosis as depression and that she had just started depression medication (Cymbalta). Id. Dr. Sukin indicated that Plaintiff was fully oriented; had slowed thought processes; had appropriate thought content; exhibited a worried and depressed mood; and had poor attention and concentration, but adequate memory. Id. Dr. Sukin opined that Plaintiff had "very serious" work-related limitations due to her mental conditions, including that she was "extremely depressed" and was "too ill to work." Id.
On June 11, 2010, Plaintiff saw Dr. Wilson for follow up on her sacral fracture. Tr. at 287. He noted that she "seem[ed] to be doing better," was ambulatory without a walker or crutches, and should try to wean herself from the pain medication (Lortab). Id. He also indicated that Plaintiff reported that her pain was worse at night or when she would lie down for a nap. Id. The same day, Plaintiff presented to CCSS for follow up on her bed sore surgery, and the doctor noted that she "ambulated to exam room today!!" Tr. at 291. It was noted that while her right heel ulcer appeared smaller, the ulcer on her left heel had not changed much over the prior two weeks. Id.
In July 2010, Plaintiff saw Dr. Sukin and reported a better appetite, but that she was sleeping a lot. Tr. at 343. She also went in for follow up on her bed sores, at
On July 23, 2010, Francis Fishburne, Ph.D., performed a mental status examination of Plaintiff in connection with her disability application. Tr. at 304-07. Plaintiff reported to Dr. Fishburne that she spent a lot of time in bed watching television and reading, did not do any household chores, had problems leaving the house and did so only once per week, and was not bothered by crowds. Tr. at 305. She also reported problems with concentration and memory. Id. A mental status examination showed that Plaintiff was oriented; had a flat affect and depressed mood; was able to count by 3s without difficulty; had attention, concentration, and short-term memory that were within normal limits; exhibited clear and goaldirected thinking; was able to perform simple mental arithmetic and verbal abstractive tasks; was of low average range intelligence; and displayed appropriate judgment, but had poor insight and some impulse control issues as evidenced by her alcohol abuse. Tr. at 306-07. Plaintiff stated that she experienced panic attacks every few days that lasted about 10 minutes and that she could control them with breathing. Tr. at 307. Dr. Fishburne diagnosed panic disorder and a history of alcohol abuse, and assigned her a Global Assessment of Functioning ("GAF")
In late July 2010, Plaintiff returned to CCSS and doctors noted that her sores were "100% healed" on her right heel and sacrum, and that she still had a small open area on her left heel. Tr. at 347.
Also in late July, state-agency doctor Lisa Varner, M.D., reviewed Plaintiff's medical records and opined that Plaintiff had recurrent major depressive disorder, panic disorder, and a history of alcohol abuse. Tr. at 308-20. Dr. Varner opined that Plaintiff had moderate restriction of activities of daily living ("ADLs"); moderate difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and no episodes of decompensation. Tr. at 318. Dr. Varner opined that Plaintiff was able to understand, remember, and carry out simple (but not detailed) instructions; able to maintain concentration and attention for two-hour periods; that she may miss work occasionally due to psychological symptoms; that she would perform best in situations that did not require ongoing interaction with public; and that she was able to be aware of normal hazards and take appropriate precautions. Tr. at 322-24.
In August 2010, Adebola Rojugbokan, M.D., performed an orthopedic consultative examination of Plaintiff in connection with her disability application. Tr. at 326-33. Plaintiff reported that she was well until January 2010 when she fell in the bathroom. Tr. at 328. She stated that her pain progressively worsened and that she had ultimately seen Dr. Wilson, who informed her that she would not be a surgical candidate. Id. Since then, Plaintiff reported return visits every six to eight weeks for pain management. Id. She stated that her pain was constant at a level four out of ten, but was relieved with medications and did not seem to radiate. Tr. at 329. On examination, Plaintiff exhibited normal shoulders, elbows, wrists, knees, ankles, and hands; some tenderness, weakness, and limited range of motion in her hips and lumbar spine area;
On August 26, 2010, Plaintiff returned to CCSS for a checkup of her bed sores. Tr. at 346. Plaintiff denied any pain associated with the mostly-healed sores and reported that she was improving daily. Id.
In September 2010, Plaintiff saw Dr. Sukin again for medication management. Tr. at 343. Also that month, state-agency doctor Cleve Hutson, M.D., reviewed Plaintiff's medical records and opined that she could perform a range of light work, including that she could occasionally perform all postural movements, but should never climb ladders, ropes, or scaffolds and should avoid even moderate exposure to hazards. Tr. at 334-41. The next month, another state agency doctor, William Cain, M.D., also reviewed Plaintiff's medical records and also opined that she could perform a range of light work, including that she could frequently balance; occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; never climb ladders, ropes, or scaffolds, and had no other limitations. Tr. at 349-56.
In December 2010, R. Allen Lish, Psy. D., performed a mental evaluation of Plaintiff in connection with her disability application. Tr. at 357-60. Plaintiff reported that she could no longer work due to her depression and anxiety. Tr. at 357. Dr. Lish noted that Plaintiff's attention and concentration wandered at times, but that she displayed overall moderately good judgment and insight and had a generally flat affect. Id. He opined that she was of average intelligence, but that she struggled with her limited ADLs and had minimal social functioning skills. Tr. at 359. Dr. Lish diagnosed untreated alcohol abuse, depression disorder, dependent personality disorder, and assigned her a GAF score of 55. Id. Dr. Lish opined that it was highly unlikely that Plaintiff's functioning would improve, but added that if she attempted substance abuse treatment, psychotherapy, and vocational rehabilitation, her prognosis for improvement could change over time. Tr. at 360.
Later that month, state-agency psychologist Michael Neboschick, Ph.D., reviewed Plaintiff's medical records and opined that she had depression, anxiety (panic disorder), and alcohol abuse. Tr. at 361-73. Dr. Neboschick that Plaintiff had moderate restriction of ADLs; moderate difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and no episodes of decompensation. Tr. at 371. He further opined that Plaintiff could understand and remember simple instructions; sustain attention for simple, structured tasks for periods of two-hour segments; adapt to changes (ideally infrequent and gradually introduced); make simple work-related decisions; maintain appropriate appearance and hygiene; recognize and appropriately respond to hazards; work in the presence of others in an uncrowded environment; accept supervision; and would work best in a solitary, slow-paced, low-volume situation that did not involve much direct, ongoing interaction with the public. Tr. at 375-78.
Plaintiff returned to Dr. Sukin in January 2011. Tr. at 386. In April 2011, Dr. Sukin completed an opinion regarding Plaintiff's work-related limitations. Tr. at 379-84. In the opinion, Dr. Sukin noted that he had seen Plaintiff every two to three months since 2007; that she had a minimal response to medication, a depressed mood, an anxious affect, and no
At the hearing on June 1, 2011, Plaintiff testified that she lived with her parents. Tr. at 37. She stated that she had not driven since 2008 because of her panic disorder, and testified that she was incapable of working "simply because of [her] nerves." Tr. at 37, 43. She said she lost her job in 2008 because she was unable to meet increased production goals. Tr. at 38, 41. She stated that she would be unable to hold a clerical job because of her severe back pain, panic disorder, and inability to pay attention to details. Tr. at 43. She testified that she had ongoing back pain due to her sacrum fracture, and, when asked about medical records showing that her sacrum fractures were 100% healed, she said that her back still hurt. Tr. at 44-45. She also said she had problems walking due to residual soreness from her bed sores on her heels. Tr. at 45. Plaintiff estimated she could sit for an hour at a time before needing to change positions. Tr. at 44.
During the hearing, Plaintiff stated that she drank a couple of beers with her friend on the weekend. Tr. at 38. In response to follow-up questioning by the ALJ, however, she stated that she was not telling the truth and that she drank a couple of beers each night. Tr. at 38-39.
Vocational Expert ("VE") Art Schmitt reviewed the record and testified at the hearing. Tr. at 47. The VE categorized Plaintiff's PRW as a clerk as light, semiskilled work; in data entry as sedentary, semi-skilled work; and in tax resolution as light, semiskilled work. Tr. at 47-48. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could sit for six hours in an eight-hour day with normal breaks; stand and walk two to four hours in an eight-hour day for approximately 30 minutes at a time with the freedom to change positions; and lift, push, and pull 20 pounds occasionally and 10 pounds frequently. Tr. at 48. The hypothetical individual was further limited to avoiding climbing ropes, ladders, and scaffolds; performing all other postural activities occasionally; avoiding unprotected heights and dangerous, moving machinery; performing simple, routine, repetitive tasks with infrequent and gradual changes in a stable environment; avoiding interaction with the general public; avoiding working in close proximity to more than one or two co-workers; and performing at a slow pace with a low production volume. Id. When asked whether there were any other jobs that the hypothetical person could perform, the VE identified the jobs of tobacco sampler and coupon recycler. Tr. at 49. The VE stated that the freedom to change positions was not consistent with the Dictionary of Occupational Titles, but that, based on his experience, the jobs he identified could be performed with a sit/stand alternative. Id. Upon questioning by Plaintiff's counsel, the VE testified that all jobs in the national economy would be eliminated if the hypothetical individual missed more than four days of work per
In her decision dated June 24, 2011, the ALJ made the following findings of fact and conclusions of law:
Tr. at 20-32.
Plaintiff alleges the Commissioner erred for the following reasons:
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); § 416.920(a), (b), Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir.2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (regarding burdens of proof).
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir.1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401, 91 S.Ct. 1420; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.1972).
Plaintiff contends that the ALJ erred in assessing her severe impairments because the ALJ failed to address Plaintiffs osteoporosis, hip and pelvic fractures, and panic disorder. [Entry #12 at 5-6]. The Commissioner responds that the ALJ's finding
The parties dispute whether the ALJ's finding that Plaintiff had the severe impairment of status post sacral fracture adequately addresses Plaintiff's osteoporosis and hip and pelvis fractures. As the Commissioner notes, the sacrum is "the part of the vertebral column that is directly connected with or forms a part of the pelvis and in humans consists of five fused vertebrae." [Entry #13 at 11 (citing the Merriam-Webster dictionary)]. The records in this case, including a CT scan, repeatedly indicate that Plaintiff experienced a sacral fracture or "bilateral sacral fractures." Tr. at 228, 254, 287. Although Plaintiff contends that the ALJ did not "explain or in any way state what encompassed Plaintiffs `status post sacral fracture,' " the undersigned finds that such an explanation was unnecessary. The plain meaning of the ALJ's finding was that Plaintiff had previously suffered a sacral fracture and the records support this finding.
Plaintiff contends that the record also supports diagnoses of osteoporosis and hip fractures that the ALJ should have considered in her analysis at step two. With regard to osteoporosis, Plaintiff cites to a CT scan demonstrating bilateral sacral fractures with underlying osteoporosis. [Entry #12 at 6].
Plaintiff similarly relies on a single record to argue that the ALJ erroneously omitted discussion of Plaintiff's alleged hip fractures. [Entry #12 at 6]. She references the record of orthopedic consultant Dr. Rojugbokan, who assessed Plaintiff as "status post hip fracture." Tr. at 333.
Plaintiff also argues that the ALJ failed to consider the consulting psychiatrists and psychologists' opinions that Plaintiffs mental impairments included a panic disorder and a personality disorder.
A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). A non-severe impairment is defined as one that "does not significantly limit [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a). A severe impairment "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms[.]" 20 C.F.R. §§ 404.1508, 416.908. It is the claimant's burden to prove that she suffers from a medically-severe impairment. Bowen v. Yuckert, 482 U.S. 137, 145 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
Plaintiff has offered no evidence to prove that her panic disorder or personality disorder limit her ability to complete basic work functions. Thus, the undersigned recommends a finding that Plaintiff has failed to meet her burden of producing evidence demonstrating the severity of these alleged impairments. See 20 C.F.R. §§ 404.1512(c), 416.912(c).
Furthermore, to the extent that the ALJ may have erred in finding Plaintiff's panic disorder to be non-severe, Plaintiff has suffered no harm. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (affirming denial of benefits where the ALJ erred in evaluating a claimant's pain because "he would have reached the same result notwithstanding his initial error"). A finding of a single severe impairment at step two of the sequential evaluation is enough to ensure that the factfinder will progress to step three. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir.2008) ("[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence."). The undersigned agrees with other courts that find no reversible error where the ALJ does not find an impairment severe at step two provided that she considers that impairment in subsequent steps. See Washington v. Astrue, 698 F.Supp.2d 562, 580 (D.S.C.2010) (collecting cases); Singleton v. Astrue, No. 9:08-1892-CMC, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009). Here, the ALJ properly considered Plaintiffs alleged anxiety and panic disorder in determining her RFC. Tr. at 23-31.
As a corollary to her severe impairments argument, Plaintiff argues that the ALJ did not adequately consider the combined effect of her impairments. [Entry #12 at 7-8]. When, as here, a claimant has more than one impairment, the statutory and regulatory scheme for making disability determinations, as interpreted by the Fourth Circuit, requires that the ALJ consider the combined effect of these impairments in determining the claimant's disability status. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.1989); see also Saxon v. Astrue, 662 F.Supp.2d 471, 479 (D.S.C.2009) (collecting cases in which courts in this District have reiterated the importance of the ALJ's explaining how he evaluated the combined effects of a claimant's impairments).
Plaintiff also argues that the ALJ did not properly evaluate the opinions of Dr. Sukin. [Entry #12 at 8-11]. The Commissioner responds that the ALJ reasonably discounted Dr. Sukin's opinions because they were inconsistent with the record and with Dr. Sukin's own treatment notes. [Entry #13 at 15].
If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it will be given controlling weight. SSR 96-2p; see also 20 C.F.R. § § 404.1527(c)(2), 416.927(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically-acceptable clinical and laboratory diagnostic techniques and inconsistent with other substantial evidence in the record); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir.1996) (finding a physician's opinion should be accorded "significantly less weight" if it is not supported by the clinical evidence or if it is inconsistent with other substantial evidence). The Commissioner typically accords greater weight to the opinion of a claimant's treating medical sources because such sources are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992) (per curiam). Rather, "[c]ourts evaluate and weigh medical opinions pursuant to the following nonexclusive 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, 434 F.3d at 654. The ALJ has the discretion to give less weight to the opinion of a treating physician when there is "persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir.2001). In undertaking a review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence, because the court's role is not to "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589.
On June 7, 2010, Dr. Sukin completed a questionnaire regarding Plaintiffs mental condition. Tr. at 275. He noted her diagnosis as depression and that she had just started depression medication (Cymbalta). Id. Dr. Sukin indicated that
In April 2011, Dr. Sukin again opined regarding Plaintiff's work-related limitations. Tr. at 379-84. In the opinion, Dr. Sukin noted that he had seen Plaintiff every two to three months since 2007; that she had a minimal response to medication, a depressed mood, an anxious affect, and no motivation; and that her prognosis was guarded. Tr. at 380. He noted her diagnosis was depression and assigned her a current GAF score of 54, but added that her highest GAF score in the past year was a 45. Id. Dr. Sukin went on to check boxes indicating that Plaintiff was either "unable to meet competitive standards" or had "no useful ability to function" in all 25 areas of work-related functioning. Tr. at 382-83. Dr. Sukin added that it was "quite bad" for Plaintiff to leave her home and that she would likely miss more than four days of work per month. Tr. at 383-84.
With regard to Dr. Sukin's June 2010 opinion, the ALJ found that the opinion was vague and provided little insight into the claimant's specific functional limitations and abilities. Tr. at 27. Plaintiff contends the ALJ's vagueness finding was unreasonable because the questionnaire that Dr. Sukin completed was sent him by the Disability Determination Service ("DDS"). [Entry #12 at 9]. While the undersigned agrees that it makes little sense to discredit Dr. Sukin's opinion as vague when the questionnaire was provided by DDS, the ALJ provided numerous reasons for discounting Dr. Sukin's April 2011 that apply equally to the June 2010 opinion. Thus, to the extent the ALJ erred in concluding Dr. Sukin's June 2010 opinion was too vague, the undersigned recommends a finding that any error was harmless in light of the ALJ's evaluation of the April 2011 opinion. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (affirming denial of benefits where the ALJ erred in evaluating a claimant's pain because "he would have reached the same result notwithstanding his initial error").
With regard to Dr. Sukin's April 2011 opinion, the ALJ stated the following:
Tr. at 30.
Plaintiff argues that the ALJ's reliance on the GAF score was unreasonable because Dr. Sukin's report also noted a GAF score of 45 within the previous year. [Entry #12 at 10]. While it is true that the opinion referenced a GAF score of 45, a review of the language reveals another inconsistency in the report. The report provides that Plaintiff's GAF score at the time of the report was 54 and that her highest GAF score in the past year was 45. Tr. at 380. It appears that Dr. Sukin erred in completing the report as the highest GAF score in the previous year should have been 54 at a minimum. Furthermore, Dr. Sukin described severe functional limitations existing at the time of the report, simultaneous with the GAF score of 54. Thus, the undersigned concludes that the ALJ's comparison of the GAF score of 54 with the functional limitations described by Dr. Sukin was not in error.
Plaintiff further argues that the reasons articulated by the ALJ for discounting Dr. Sukin's April 2011 opinion "are not persuasive and are not supported by fact." [Entry #12 at 10]. However, Plaintiff fails to identify specific evidence contradicting the ALJ's findings. The ALJ articulated several valid reasons for discounting Dr. Sukin's opinions, and the undersigned's review of the record supports the ALJ's findings. Thus, the undersigned recommends finding that the ALJ reasonably discounted Dr. Sukin's opinions.
To the extent Plaintiff argues that the ALJ should have addressed each of the factors set forth in 20 C.F.R. §§ 404.1527(d) and 416.927(d), this argument also fails. Although the regulations provide factors that an ALJ must consider when evaluating a medical opinion, nothing in the regulation requires express discussion on a factor-by-factor basis.
For the foregoing reasons, the undersigned recommends a finding that the ALJ did not err in her treatment of Dr. Sukin's opinions.
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether her decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
December 5, 2013, Columbia, South Carolina.
