MOX O. COGBURN, Jr., District Judge.
Plaintiff filed an application for a period of disability and Disability Insurance Benefits, as well as a claim for Supplemental Security Income benefits in 2008, alleging the onset of disability in 2004. Plaintiff's claims were denied initially and plaintiff requested and was granted a hearing before an administrative law judge ("ALJ"). After conducting a hearing, the ALJ issued a decision which was unfavorable to plaintiff, from which plaintiff appealed to the Appeals Council. Plaintiff's request for review was denied and the ALJ's decision affirmed by the Appeals Council, making the ALJ's decision the final decision of the Commissioner of Social Security ("Commissioner"). Thereafter, plaintiff timely filed this action.
It appearing that the ALJ's findings of fact are supported by substantial evidence, the undersigned adopts and incorporates such findings herein as if fully set forth. Such findings are referenced in the substantive discussion which follows.
The only issues on review are whether the Commissioner applied the correct legal standards and whether the Commissioner's decision is supported by substantial evidence.
The court has read the transcript of plaintiff's administrative hearing, closely read the decision of the ALJ, and reviewed the extensive exhibits contained in the administrative record. The issue is not whether a court might have reached a different conclusion had it been presented with the same testimony and evidentiary materials, but whether the decision of the administrative law judge is supported by substantial evidence. The undersigned finds that it is.
A five-step process, known as "sequential" review, is used by the Commissioner in determining whether a Social Security claimant is disabled. The Commissioner evaluates a disability claim under Title II pursuant to the following five-step analysis:
20 C.F.R. § 404.1520(b)-(f). In this case, the Commissioner determined plaintiff's claim at the fifth step of the sequential evaluation process.
On October 6, 2010, the ALJ issued a decision denying plaintiff's claims for benefits. (Tr. 17-29). At step one, the ALJ determined that plaintiff had worked after his alleged disability onset date of April 1, 2004; despite such finding, the ALJ advanced the inquiry to the next step citing insufficient information to establish that such work constituted substantial gainful activity. (Tr. 19-20 at Finding 2). At step two, the ALJ found that plaintiff suffers from chronic lower back pain and hemochromatosis and that such constituted "severe impairments." The ALJ also concluded that plaintiff suffered from a number of non-severe impairments, including heart disease, hypertension, and right thumb pain. Finally, he determined that the record was insufficient to determine whether plaintiff also suffered from his other alleged impairments, including liver disease, anxiety, and depression. (Tr. 21-23). At step three, the ALJ found that plaintiff did not have an impairment or a combination of impairments that either met or equaled any impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1. (Tr. 23 at Finding 4).
Between the third and fourth steps of the Sequential Evaluation Process, the ALJ assessed plaintiff's residual functional capacity ("RFC"). He determined that plaintiff had the RFC to perform light work, as long as he had the option of sitting or standing and changing positions on an occasional basis; would only occasionally need to bend, stoop, or twist; and, did not engage in any "vigorous, fast-paced work." (Tr. 23-27 at Finding 5).
At the fourth step, the ALJ considered plaintiff's age, education, work background, and RFC, and determined that Plaintiff was unable to perform his past relevant work as a roofer. (Tr. 27 at Finding 6).
At the fifth step, the ALJ determined that plaintiff could perform other jobs that existed in significant numbers in the national economy. (Tr. 27-28 at Finding 10). In conducting such analysis, the ALJ considered the testimony of a vocational expert ("VE"), who was presented with two hypotheticals. Thereafter, the ALJ concluded that plaintiff was not disabled at any time through the date of his decision. (Tr. 28 at Finding 11).
Plaintiff has made the following assignments of error:
Plaintiff's assignments of error will be discussed seriatim.
In his first assignment of error, plaintiff contends that the ALJ should have applied the grids early to direct a finding of disabled as plaintiff was within a "few months" of his 55
Turning to the substantive argument, the regulations provide that the Commissioner must "not apply the age categories mechanically in borderline situations," and, where a claimant is "within a few days to a few months of reaching an older age category, and using the older age category would result in a determination [of disability]," to "consider whether to use the older age category after evaluating the overall impact of all the factors of [the claimant's] case." 20 C.F.R. §§ 404.1563(b), 416.963(b) (emphasis added).
At the time the written decision issued on October 6, 2010. (Tr. 29), plaintiff was eight-months shy of his 55
In his second assignment of error, plaintiff contends that the ALJ erred in considering his subjective complaints by failing to apply the regulatory factors set forth in SSR 96-7p and 20 C.F.R. § 404.1529 and by making a conclusory credibility finding in violation of SSR 96-7p.
Plaintiff's claim for benefits includes allegations of pain and other subjective complaints. The correct standard and method for evaluating claims of pain and other subjective symptoms in the Fourth Circuit has developed from the Court of Appeals' decision in
Step One requires an ALJ to determine whether there is "objective medical evidence showing the existence of a medical impairment which could reasonably be expected to produce the actual pain [or other subjective complaint], in the amount and degree, alleged by the claimant."
Step Two requires that the ALJ next evaluate the alleged symptoms' intensity and persistence along with the extent to they limit the claimant's ability to engage in work.
Here, plaintiff takes particular issue with the ALJ's consideration of plaintiff's own testimony. Plaintiff contends that the ALJ improperly concluded that his "`statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the . . . [RFC] assessment.'" (Pl. Br. 18 (quoting Tr. 24)). He points to a decision of the Court of Appeals for the Seventh Circuit that use of such boilerplate language is meaningless, as it gives the claimant and reviewing courts "no clue to what weight the trier of fact gave the testimony."
In
First, the ALJ determined that plaintiff's complaints of disabling back pain were not supported by record. (Tr. 24). While plaintiff testified to that he stopped working in 2004 due to back pain that prevented him from bending (Tr. 382), the ALJ found no record of plaintiff seeking treatment for back pain until 2008. (Tr. 24). Such explanation is supported by the Adminsitrative Record.
In not fully crediting plaintiff's testimony, the ALJ also noted plaintiff's failure to present at either the physical or psychological consultative examinations scheduled by Disability Determination Services ("DDS"). Apparently, plaintiff failed to attend based on advice of counsel. Plaintiff points to a letter his attorney wrote to DDS, explaining his objection to the physical consultative examination. (Tr. 374). In this letter, plaintiff's counsel objected on the grounds that a treating physician is the "preferred source" for providing information about a claimant's physical condition, pursuant to 20 C.F.R. §§ 404.1519h and 416.919h, and stated that he intended to seek the necessary information from plaintiff's treating physicians instead. (Tr. 374). This letter was not before the ALJ. (Tr. 371). While a treating physician is "ordinarily" the preferred source to perform an additional examination provided that he is "qualified, equipped, and willing" to do so for the prescribed fee, 20 C.F.R. §§ 404.1519h, 416.919h, this preference is not absolute, and the regulations provide a non-exhaustive list of situations where another source may be consulted, id. §§ 404.1519i, 416.919i. Plaintiff failed, however, to identify which of his treating physicians or mental health professionals were willing to conduct the examination (Tr. 374), and the record is devoid of any evidence that any of his treating doctors ever did conduct any further consultative examination for purposes of evaluating his abilities and limitations. Thus, plaintiff's failure to present at either the physical or psychological consultative examinations, absent plaintiff providing such through a preferred source, was an appropriate reason to call into question plaintiff's testimony, which would have been illuminated by such consultative examinations. It was not, therefore, error for the ALJ to rely on the opinion of state agency psychologist Dr. April Strobel-Nuss, who reviewed the record, and concluded that there was insufficient evidence to determine what, if any, mental impairments Plaintiff had. (Tr. 26, 110-21).
As to the impact caused on maintaining employment based on plaintiff's need for periodic phlebotomies as treatment for hemochromatosis, plaintiff testified that he was required to have phlebotomies "every three months and sometimes repeatedly for three weeks" following each appointment. (Tr. 387-89), The ALJ compared that testimony with the medical evidence, which indicated that such procedures were performed "two to three times per year." (Tr. 270). The ALJ also cited a medical office note indicating that plaintiff had more recently gone six months between such treatments in 2010. (Tr. 26 and 262). The ALJ concluded that even if he fully credited plaintiff's testimony as to several days being required to recovery from such procedures, they did "not occur consistently every month and therefore would not interfere with the ability to sustain a full-time job." (Tr. 25-26). Clearly, the ALJ fully credited plaintiff's claim that such disease and the treatments made him constantly fatigued, and limited him to light-work jobs that did not require "vigorous, fast-paced work." (Tr. 23, 26). The ALJ also did not fully credit plaintiff's contention that he ceased working in 2004 and cited to evidence in the medical record that suggested plaintiff continued to work in subsequent years. (Tr. 20). The Administrative Record contains substantial evidence that supports such conclusion. (Tr. 246, 336).
Clearly, the ALJ has satisfied his "duty of explanation," and such credibility determination is fully supported by substantial evidence in the record.
The undersigned has carefully reviewed the decision of the ALJ, the transcript of proceedings, plaintiff's motion and brief, the Commissioner's motion and brief, and plaintiff's assignments of error. Review of the entire record reveals that the decision of the ALJ is supported by substantial evidence.
L.Civ.R. 7.1(E). In this case, a Social Security Scheduling Order (#8) was entered providing for the filing cross motions for summary judgment, with no allowance for response or reply briefs. As leave was not granted to file a Response, the Response and Reply will be stricken.
