THOMAS M. DiGIROLAMO, Magistrate Judge.
Nicole Porter ("Plaintiff") seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Before the Court are Plaintiff's Motion and "Corrected" Motion for Summary Judgment (ECF Nos. 17, 19) and Defendant's Motion for Summary Judgment (ECF No. 21).
Plaintiff was born in 1985, completed the tenth grade, and previously worked as a part-time cashier. R. at 41, 156, 163. She stands five feet and five inches tall and weighs 220 pounds. R. at 159. On February 21, 2008, Plaintiff protectively applied for SSI, alleging disability beginning on November 15, 2007, due to deteriorating joint disease. R. at 39, 103-09, 160. The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 49-50, 61-69. On November 5, 2009, ALJ G.B. Arthur held a hearing at which Plaintiff and a vocational expert ("VE") testified. R. at 10-35. On November 19, 2009, the ALJ issued a decision finding Plaintiff not disabled since the application date of February 21, 2008. R. at 36-48. Plaintiff sought review of this decision by the Appeals Council and submitted additional evidence. R. at 8-9, 102, 205-13, 249-97. The Appeals Council denied Plaintiff's request for review on April 5, 2011, finding that the additional evidence was "inconsistent with [her] hearing testimony about what [she] could still do in spite of [her] impairments" and did "not provide a basis for changing the [ALJ's] decision." R. at 2. The ALJ's decision thus became the final decision of the Commissioner. 20 C.F.R. § 416.1481.
On June 6, 2011, Plaintiff filed a complaint in this Court seeking review of the ALJ's decision. Upon the parties' consent, Chief Judge Deborah K. Chasanow transferred this case to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.
On January 3, 2008, Patrick A. Noel, M.D., an orthopedic surgeon, examined Plaintiff, who was complaining of right hip pain. Dr. Noel's examination revealed the following:
R. at 238, 242.
R. at 238, 242.
On April 28, 2008, Plaintiff was examined by Rashid M. Khan, M.D. R. at 214-18. Dr. Khan's impressions were that Plaintiff "has pain in her right hip. She is status post right hip dislocation and underwent surgeries." R. at 216. Dr. Khan's assessment noted that, "[a]t this point, [Plaintiff's] gait is mildly antalgic but satisfactory. She does not require any assistive devices for ambulation. Generally, she will be limited to perform [sic] prolonged standing and walking." R. at 216.
On May 9, 2008, L. Robbins, M.D., a state agency medical consultant, assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 220-27. Dr. Robbins opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently;
(2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling with the upper and lower extremities. R. at 221. Further, Plaintiff could never balance, but she could occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 222. Finally, Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 223-24.
On July 1, 2008, W. Hakkarinen, M.D., another state agency medical consultant, expressed the same opinion about Plaintiff's physical RFC (R. at 229-36), except that she could occasionally balance and stand and/or walk for a total of at least two hours in an eight-hour workday because of hip pain and antalgic gait status post history of right hip fracture/dislocation. R. at 230-31.
On August 4, 2009, Andrew J. Siekanowicz, M.D., an orthopedic surgeon, examined Plaintiff after she was involved in a motor vehicle accident on July 25, 2009. R. at 245-48. Dr. Siekanowicz's impressions included "right knee contusion sprain with posttraumatic fusion"; "patellofemoral pain syndrome, posttraumatic, right knee"; and "possible internal derangement." R. at 247. Dr. Siekanowicz opined that Plaintiff "is considered disabled for any type of heavy or strenuous activities," and he prescribed Motrin. R. at 247.
In a follow-up examination on August 27, 2009, Plaintiff reported to Dr. Siekanowicz that "functioning is starting to improve in a progressive fashion without any significant increase of the symptoms." R. at 248. Dr. Siekanowicz found that Plaintiff's motion was "overall acceptable on this exam." R. at 248.
In his decision, the ALJ provided the following summary of Plaintiff's testimony:
R. at 43; see R. at 171-75.
R. at 43 (citations omitted); see R. at 185-93.
R. at 43.
R. at 44.
R. at 44.
The VE classified Plaintiff's past work as a cashier as unskilled and light.
After the conclusion of the administrative hearing, Plaintiff was examined on December 29, 2009, by Carlos A. Martinez, a physical therapist, who provided a functional capacities evaluation. R. at 207-13. Mr. Martinez found the following:
R. at 207. "The findings indicate [Plaintiff] tested into the LIGHT (unsustainable) physical demand category. The findings indicate she is below the (below 4 hours per day) [sic] part time workplace tolerance level" and "indicate [Plaintiff] is unable to return to work in her previous position or any other position." R. at 211.
On November 19, 2009, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the application date of February 21, 2008; and (2) had an impairment or a combination of impairments considered to be "severe" on the basis of the requirements in the Code of Federal Regulations; but (3) did not have an impairment or a combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) was unable to perform her past relevant work as a cashier; but (5) could perform other work in the national economy, such as a counter clerk, office helper, router, document preparer, order clerk, or addresser. R. at 41-48. The ALJ accordingly found that she was not disabled since February 21, 2008. R. at 48.
In so finding, the ALJ found that Plaintiff had the following RFC:
R. at 42 (footnotes omitted); see R. at 46. The ALJ found that Plaintiff "is obese, and therefore these considerations have been taken into account." R. at 43.
Regarding Plaintiff's credibility, the ALJ found that her "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the [ALJ's RFC] assessment." R. at 44. The ALJ found that Plaintiff's "activities of daily living, including visiting family members' homes once or twice a week, using the computer on a daily basis, and occasionally going shopping, for example, are inconsistent with her allegation of total disability." R. at 44. The ALJ also noted that, "in May 2008, [Plaintiff] cooked her own meals, washed dishes, frequently cleaned her room, and could walk about three blocks without needing to rest." R. at 44. "Although [Plaintiff] has alleged drowsiness from the use of medication, the evidence of record similarly does not corroborate that allegation. The assessed [RFC] for unskilled, low-stress work is, nevertheless, consistent with possible side effects of medication, including some fatigue." R. at 45. "However, the medical evidence clearly does not reveal any continuous, 12-month period of time during which [Plaintiff] was unable to engage in substantial gainful activity. Her activities of daily living similarly evidence an adequate ability to function." R. at 45. The ALJ also considered Plaintiff's demeanor at the hearing, finding that,
R. at 45-46.
The ALJ also weighed the opinion evidence in the record and "assigned significant evidentiary weight to the above-referenced consultative and State Agency assessments, all of which indicate that [Plaintiff] must avoid prolonged standing and walking. The opinions are consistent with the medical evidence of record, including diagnostic testing completed in January 2008." R. at 46 (citations omitted).
The Social Security Act defines a disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-380 (2003). "If 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, 124 S. Ct. at 379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a "severe" impairment, i.e., an impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of 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, 734 F.3d at 293.
Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's RFC to determine the claimant's "ability to meet the physical, mental, sensory, and other requirements" of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's "complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant's RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant's RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The Court reviews an ALJ's decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported by substantial evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the 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." Id. The Court's review 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). Under this standard, substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does "not conduct a de novo review of the evidence," Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986), or undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, "[t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court." Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling
Pl.'s Mem. Supp. Summ. J. 10-11, ECF No. 19-1.
"In making an RFC finding, the ALJ is under an obligation to `include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts and non-medical evidence.'" Lehman v. Astrue, 931 F.Supp.2d 682, 695 (D. Md. 2013) (alteration in original) (quoting SSR 96-8p). "While the precise medical evidence relied on for every specific limitation need not be discussed directly in the actual RFC finding, the Court must not be required to speculate as to the bases for the findings." Vandervort, 2013 WL 508987, at *2.
Here, the Court has reviewed the ALJ's opinion and finds it to be thorough and detailed. Contrary to Plaintiff's argument, the ALJ did provide a narrative discussion to support his RFC assessment and "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." R. at 42. The ALJ reviewed Plaintiff's reported activities of daily living (R. at 43) and her hearing testimony (R. at 43-44) to find her "statements concerning the intensity, persistence and limiting effects of [her] symptoms . . . not credible to the extent they are inconsistent with the [ALJ's RFC] assessment" (R. at 44) and "inconsistent with her allegation of total disability" (R. at 44). The ALJ also found that the medical evidence of record did "not substantiate [Plaintiff's] allegations of disabling limitations" (R. at 44), discussing Dr. Noel's examination in January 2008 (R. at 44, 238, 242), Dr. Khan's examination in April 2008 (R. at 45, 214-18), the opinions of the state agency medical consultants (R. at 45, 220-27, 229-36), and Dr. Siekanowicz's examination in August 2009 (R. at 45, 245-48) before assigning "significant evidentiary weight to the above-referenced consultative and State Agency assessments, all of which indicated that [Plaintiff] must avoid prolonged standing and walking" (R. at 46). As the Commissioner points out, Plaintiff does not argue that, in assessing her RFC, the ALJ erred in considering her credibility or the medical opinions in this case, and so she has waived these arguments. See United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002). Contrary to Plaintiff's contention, the Court need not guess at the basis for the ALJ's RFC assessment. See Finch ex rel. Finch, 2012 WL 748383, at *3 ("Plaintiff argues that the ALJ failed to set forth a narrative discussion setting forth how the evidence supports each finding within the RFC, failed to discuss the Plaintiff's ability to perform work-sustained activities in an ordinary work setting on a regular and continuing basis and failed to discuss the maximum amount of each work-related activity she was capable of performing. Plaintiff fails to set forth any specific argument and points to no medical evidence that would change the RFC.").
Plaintiff also argues that, in light of Dr. Noel's finding in July 2008 that she had a diminished range of motion in her left hip (R. at 238, 242), the ALJ failed to recognize that she "had problems with her left hip as well." Pl.'s Mem. Supp. Summ. J. 11, ECF No. 19-1. The ALJ noted, however, that Dr. Noel's examination revealed a "normal hip" (R. at 44, 238, 242), and Plaintiff does not explain how a contrary finding by the ALJ would change the RFC assessment.
Also to no avail does Plaintiff assert that the ALJ determined that she possessed the RFC to stand and/or walk for up to four hours in an eight-hour workday, but "failed to explain how he determined [her] ability to stand and/or walk." Pl.'s Mem. Supp. Summ. J. 11, ECF No. 19-1 (citation omitted). As noted above, the ALJ determined that Plaintiff could sit for six hours and stand or walk for four hours in an eight-hour workday, with a sit/stand option for no more than half an hour at a time. R. at 42. In doing so, the ALJ considered Plaintiff's credibility regarding the effects of her symptoms, as well as the medical evidence of record, and "assigned significant evidentiary weight" to the consultative and state agency assessments indicating that she must avoid prolonged standing and walking. R. at 46. Accordingly, Plaintiff's argument in this regard is without merit. In short, substantial evidence supports the assessment of Plaintiff's RFC by the ALJ, who applied the correct legal standards in this case.
Plaintiff also maintains that the Appeals Council, in denying Plaintiff's request for review, failed to review properly the "new and material evidence" of the December 2009 functional capacities evaluation by Plaintiff's physical therapist, Mr. Martinez. Pl.'s Mem. Supp. Summ. J. 5, ECF No. 19-1. According to Plaintiff, "[t]his evidence was new and material, and relates to the period prior to the [ALJ's] decision. Consequently, it was required to be reviewed by the Appeals Council." Id. Defendant asserts, however, that the Appeals Council explained its consideration of Mr. Martinez's functional capacity evaluation and found his report to be inconsistent with Plaintiff's hearing testimony about her limitations. Def.'s Mem. Supp. Summ. J. 22-23, ECF No. 21-1. Thus, even in light of this new evidence, Defendant contends that substantial evidence supports the Commissioner's decision. Id. at 19-20.
"In reviewing decisions based on an application for [Title XVI] benefits, if new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the [ALJ] hearing decision." 20 C.F.R. § 416.1470(b); cf. 20 C.F.R. § 404.970(b) (in Title II cases, "[i]f new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the [ALJ] hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the [ALJ] hearing decision. It will then review the case if it finds that the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record."). Evidence is new within the meaning of 20 C.F.R. §§ 404.970(b) and 416.1470(b) if it is not duplicative or cumulative. See Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en banc). "Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. When the Appeals Council denies review and incorporates new evidence into the administrative record, the Court reviews the record as a whole, including the new evidence, to determine whether substantial evidence supports the Commissioner's findings. Id. The Appeals Council is not required to articulate any findings when it considers new evidence and denies review, however. Meyer v. Astrue, 662 F.3d 700, 706 (4th Cir. 2011).
Here, the Court is not convinced that the evidence of Mr. Martinez's functional capacities evaluation is material in the first instance under 20 C.F.R. § 416.1470(b) because it is not reasonably possible that the evidence would have changed the administrative outcome of this case. As Defendant points out, the functional capacities evaluation is from a physical therapist, who is not an "acceptable medical source" who can provide evidence in the form of a medical opinion to establish an impairment. See 20 C.F.R. §§ 416.913(a), 416.927(a)(2) ("Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s). . . ."); SSR 06-03p, 2006 WL 2329939, at *2 ("[O]nly `acceptable medical sources' can be considered treating sources . . ., whose medical opinions may be entitled to controlling weight."). Thus, it is not reasonably likely that the ALJ would have weighed the opinion evidence differently had he reviewed Mr. Martinez's report. See Craig, 76 F.3d at 590 ("[A] physical therapist does not even qualify as an `acceptable medical source' under the regulations, but rather would qualify only as an `other source,' whose opinions are entitled to significantly less weight."). In any event, when it denied Plaintiff's request for review, the Appeals Council found the conclusions of Mr. Martinez's report to be inconsistent with Plaintiff's testimony at the hearing. R. at 2. Although Plaintiff maintains that "the conclusions reached by Mr. Martinez are consistent with [her] complaints" and support her allegations that her condition was worsening, Pl.'s Mem. Supp. Summ. J. 6, ECF No. 19-1, the ALJ found Plaintiff's complaints less than fully credible because, as discussed above, her reported daily living activities were inconsistent with her allegations of total disability, which she has not disputed. Accordingly, after considering the record as a whole, including Mr. Martinez's functional capacities evaluation, the Court finds that substantial evidence supports the Commissioner's decision in this case.
For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 19) is