DAVID C. KEESLER, Magistrate Judge.
Plaintiff Kay M. Briggs ("Plaintiff"), through counsel, seeks judicial review of an unfavorable administrative decision on her application for disability benefits. (Document No. 1). On November 5, 2007, Plaintiff filed an application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1383 et seq., alleging an inability to work due to a disabling condition beginning April 15, 2002. (Transcript of the Record of Proceedings ("Tr.") 21). The Commissioner of Social Security (the "Commissioner" or "Defendant") denied Plaintiff's application initially on July 3, 2008, and again after reconsideration on February 6, 2009. (Tr. 21, 76, 80). In its "Notice of Reconsideration," the Social Security Administration ("SSA") included the following explanation of its decision:
(Tr. 80).
Plaintiff filed a timely written request for a hearing on April 7, 2009. (Tr. 21, 88-90). On December 8, 2009, Administrative Law Judge John L. McFadyen (the "ALJ"), held a hearing in which Plaintiff appeared without counsel and confirmed that she wished to proceed without an attorney representative. (Tr.35-41). The ALJ continued the hearing to allow Plaintiff to undergo a psychological exam with testing. (Tr. 39). He also informed Plaintiff that she could obtain an attorney during the interim, but that the hearing would not be continued again. (Tr. 39). The second hearing was held on May 13, 2010. (Tr. 42-54). Plaintiff failed to appear at this hearing, but was represented by Holly Fairbairn, an attorney. (Tr. 21, 42-54). In addition, Dr. Thomas Schacht
The ALJ issued an unfavorable decision on October 1, 2010, denying Plaintiff's claim. (Tr. 18-29). Plaintiff filed a request for review of the ALJ's decision on November 30, 2010, which was denied by the Appeals Council on June 7, 2012. (Tr. 1-3). The October 1, 2010 ALJ decision thus became the final decision of the Commissioner when the Appeals Council denied Plaintiff's review request. (Tr. 1).
Plaintiff's "Complaint" seeking a reversal of the ALJ's determination was filed in this Court on August 1, 2012. (Document No. 1). The Court's "Pretrial Scheduling Order" (Document No. 9) was issued on November 7, 2012, and set deadlines for each party to file a "Motion for Summary Judgment and Supporting Memorandum of Law." Plaintiff's "Motion For Judgment On The Pleadings" (Document No. 12) and "Plaintiff's Memorandum In Support Of Motion For Judgment On The Pleadings" (Document No. 13) were filed February 6, 2013; and Defendant's "Motion For Order Affirming The Commissioner's Decision" (Document No. 17) and "Memorandum In Support Of The Commissioner's Decision" (Document No. 18) were filed April 24, 2013. On June 24, 2013, the undersigned was assigned to this case as the referral magistrate judge. The pending motions are ripe for disposition, and therefore, a memorandum and recommendation to the Honorable Graham C. Mullen is appropriate.
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner's decision; and (2) whether the Commissioner applied the correct legal standards.
The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the evidence or to substitute its judgment for that of the Commissioner — so long as that decision is supported by substantial evidence.
Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts in the evidence.
The question before the ALJ was whether Plaintiff was under a "disability" as that term of art is defined for Social Security purposes, at any time between November 5, 2007, the date the application was filed, and the date of the ALJ's decision, October 1, 2010.
The Social Security Administration has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:
Specifically, the ALJ first concluded that Plaintiff had not engaged in any substantial gainful activity since November 5, 2007, the alleged disability onset date. (Tr. 23). At the second step, the ALJ found that back pain, carpal tunnel syndrome, depression, anxiety, and high borderline IQ, were severe impairments. (Tr. 23).
Next, the ALJ assessed Plaintiff's RFC and found that she retained the capacity to perform "simple repetitive [tasks] with at least a high borderline IQ at the full range of light work." (Tr. 26). In making his finding, the ALJ specifically stated that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 416.929 and SSRs 96-4p and 96-7p."
At the fourth step, the ALJ found that Plaintiff could perform past relevant work as a cashier/stocker, thus finding Plaintiff was not disabled. (Tr. 27). The ALJ alternatively continued to the fifth and final step and further concluded, based on the testimony of a vocational expert and "considering the claimant's age, education, work experience, and residual functional capacity," that jobs existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 28). Specifically, the vocational expert testified that according to the factors given by the ALJ, occupations Plaintiff could perform included cashier, cafeteria attendant, and maid/housecleaning. (Tr. 28). Therefore, the ALJ concluded that Plaintiff was not under a "disability," as defined by the Social Security Act, at any time between November 5, 2007, and the date of his decision, October 1, 2010. (Tr. 28).
Plaintiff on appeal to this Court makes the following assignments of error: (1) that the ALJ erred in his evaluation of the psychological consultative evaluations; (2) that the ALJ did not account for Plaintiff's carpal tunnel syndrome in his RFC assessment; and (3) that the ALJ's credibility assessment is not supported by substantial evidence. (Document No. 13, p.1). The undersigned will discuss each of these contentions in turn.
In her first assignment of error, Plaintiff argues that the ALJ erred in his evaluation of the medical opinions of Dr. Zeisz and Dr. Pardoll and thus violated 20 C.F.R. § 404.1527. (Document No. 13, pp.13-14). Plaintiff argues that the ALJ was required to consider all medical opinions and explain any conflicts with his own opinions. (Document No. 13, p.13) (citing 20 C.F.R. § 404.1527, SSR 96-8p). According to Plaintiff, the ALJ did not mention Dr. Zeisz's opinions at all, nor did he properly weigh Dr. Pardoll's opinions. (Document No. 13, pp.13-14). Plaintiff further argues that although both of these opinions were inconsistent with the ALJ's findings, the ALJ failed to explain the inconsistencies. (Document No. 13, pp.13-14).
Defendant contends there was no error for several reasons, and the undersigned is persuaded by these arguments. (Document No. 18, pp.5-8). Regarding Dr. Pardoll, Defendant first argues that his opinions were considered because the ALJ discussed Dr. Schact's opinions, which addressed Dr. Pardoll's opinions. (Document No. 18, pp.6-7) (citing Tr. 23-24, 27). Defendant correctly points out that both Dr. Pardoll and Dr. Schact's opinions were referenced in the ALJ's opinion. (Document No. 18, p.6) (citing Tr. 24, 27). Specifically, Dr. Schacht stated that if Dr. Pardoll's examination findings were permanent, Plaintiff would be limited to simple tasks. (Tr. 24). The ALJ limited Plaintiff to simple tasks, and therefore, it appears that Dr. Pardoll's examination was considered, or is at least consistent with the ALJ's findings. Further, Dr. Pardoll's specific opinions cited in "Plaintiff's Memorandum . . ." do not conflict with the ALJ's RFC finding. (Document No. 13, p.14). Dr. Pardoll opined that Plaintiff's psychological and social functioning were impaired and that her "test scores suggest she is having a difficult time concentrating and exerting mental control." (Document No. 13, p.14) (citing Tr. 493-99). These findings are not incompatible with performance of simple, repetitive tasks and therefore the ALJ did not fail to explain any inconsistencies, as Plaintiff alleges.
Finally, Defendant contends that several of Dr. Pardoll's opinions cited by Plaintiff are actually "administrative findings reserved for the Commissioner" and therefore not entitled to any special significance. (Document No. 18, p.8) (quoting
The undersigned is likewise not persuaded that any error occurred in the ALJ's consideration of Dr. Zeisz's opinions. First, Defendant correctly notes that contrary to Plaintiff's assertions, the ALJ did cite to Dr. Zeisz in his opinion. (Document No. 18, p.6);
Defendant argues that Dr. Zeisz's opinions were given proper consideration because the ALJ relied on medical opinions that cited Dr. Zeisz. (Document No. 18, p.7) (citing Tr. 27). Dr. Zeisz's evaluations were referenced in the state agency evaluations, which the ALJ found consistent with his own findings. (Tr. 27, 398, 470). Further, it appears Dr. Zeisz's opinion itself was also consistent with the ALJ's findings. (Tr. 368-373). As Plaintiff points out, Dr. Zeisz opined that Plaintiff would likely suffer some cognitive challenges in remembering vital information and following directions, and that it was inconclusive whether she could keep up pace and persistence in past work settings. (Document No. 13, p.13);
Plaintiff also references Dr. Zeisz's opinions that Plaintiff would likely be viewed as a liability by future employers and that Plaintiff did not appear to have the resources to gain and maintain employment. (Document No. 13, pp.13-14) (Tr. 373). However, the undersigned agrees with Defendant that these opinions are not medical opinions, and therefore do not merit special significance or explanation.
Based on the foregoing, the undersigned is not persuaded that the ALJ erred in his consideration of the medical opinions of Dr. Pardoll or Dr. Zeisz.
Next, Plaintiff challenges the ALJ's RFC finding on the basis that, despite finding Plaintiff's Carpel Tunnel Syndrome ("CTS") was a severe impairment, the ALJ did not provide any limitations due to this impairment in Plaintiff's RFC. (Document No. 13, p.14). Plaintiff argues that she quit her job and applied for disability because of her CTS, which is well documented in the record. (Document No. 13, p.14). According to Plaintiff, the ALJ should have explicitly restricted Plaintiff's fingering and handling in her RFC and thus remand is required. (Document No. 13, p.15).
Defendant acknowledges that the ALJ did not include such a limitation in his RFC finding, but argues the omission is a harmless error. (Document No. 18, pp.8-9). Defendant points out that the VE specified jobs that a hypothetical individual with the restrictions given by Dr. Blickenstaff could perform. (Document No. 18, p.9). Dr. Blickenstaff stated that Plaintiff's CTS precluded "highly repetitive use of [her] hands" and therefore, according to Defendant, the VE's response included Plaintiff's CTS. (Document No. 18, p.9). Defendant further argues that because the ALJ's findings were based on the VE testimony, Plaintiff's CTS was included in the RFC finding. (Document No. 18, p.9). And, Defendant argues, Plaintiff cannot prove any harm resulted from not explicitly including such a limitation, as required for remand. (Document No.18, p.9).
The undersigned is satisfied that the ALJ sufficiently considered Plaintiff's CTS. Although he did not explicitly include CTS in his RFC determination, the ALJ's findings included limitations due to, or at least consistent with, this impairment. (Tr. 27-28);
As the ALJ explained within his step five analysis, the VE was asked to consider an individual with Plaintiff's IQ, limited to simple repetitive work, and under the restrictions given by Dr. Blickenstaff, which included avoidance of "strenuous and highly repetitive use of the hands." (Tr. 27-28, 47-48). The VE answered that such an individual could perform work as a cashier. (Tr. 28, 48-49). At step four of the analysis, the ALJ found Plaintiff could perform her past relevant work as a cashier, resulting in a finding of "not disabled." (Tr. 27). Because the ALJ's findings are consistent with the VE's opinions, the step four analysis appears to include a CTS limitation and would not be altered by requiring an explicit statement of such limitation.
Further, because the ALJ alternatively completed the step five analysis, the undersigned can conclude that Plaintiff would not be found disabled, even if the ALJ had not sufficiently considered Plaintiff's CTS at step four and needed to continue to step five. (Tr. 27-28). At step five, the ALJ would determine if Plaintiff could make an adjustment to perform other available work. The VE identified numerous jobs that could be performed by someone with Plaintiff's limitations, including the limited use of her hands. (Tr. 28, 48-49). If the ALJ were required to continue to step five of the analysis, the number of jobs available to Plaintiff would still result in a finding of "not disabled."
In summary, remanding for the ALJ to explicitly include avoidance of "strenuous and highly repetitive use of the hands" in Plaintiff's RFC would result in the same outcome at step four, or alternatively, step five of the analysis.
Finally, Plaintiff argues that the ALJ's credibility analysis is not supported by substantial evidence. (Document No. 13, p.15). Plaintiff challenges specific ALJ findings, such as Plaintiff being physically functional and that her medical treatment has been conservative and effective, on the basis that they are not supported by substantial evidence in the case record. (Document No. 13, pp.15-16). Plaintiff argues that the ALJ is required to "articulate explicit and adequate reasons" for discrediting subjective testimony but failed to do so. (Document No. 13, p.15) (citing
Defendant contends no error occurred because the ALJ completed the Fourth Circuit's two-step
The undersigned is persuaded that the ALJ's credibility analysis is sufficient for several reasons. First, many of Plaintiff's purported challenges reference evidence supporting the ALJ's findings. (Document No. 13, pp.15-16). For example, Plaintiff states, "[The ALJ] claims that Ms. Briggs was physically functional because she took care of her grandchildren." (Document No. 13, p.15) (citing Tr. 27). Although Plaintiff argues this evidence does not prove physical functioning (because "[she] receives help from 4 family members"), Plaintiff has simply pointed out the existence of conflicting evidence. (Document No. 13, p.15). Many of Plaintiff's other challenges are likewise based on conflicting evidence in the record. (Document No. 13, pp.15-16). The undersigned cannot reweigh evidence to resolve conflicts when the ALJ already did so and his findings are supported by substantial evidence.
Second, the undersigned finds Defendant's analysis and application of
The ALJ completed this evaluation and his findings are supported by substantial evidence. (Tr. 26-27). As the ALJ noted, Plaintiff reported activities, such as doing chores, shopping, and socializing, "that are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." (Tr. 27). The ALJ also referenced Plaintiff's daughter's statements about various activities, both mental and physical, that Plaintiff is capable of performing. (Tr. 27). Further, the ALJ found that Plaintiff's "treatment has been routine and/or conservative . . . [and] effective in controlling the claimant's symptoms." (Tr. 27). Although the ALJ does not cite the record to support this claim, substantial evidence for it exists. In fact, "Plaintiff's Memorandum . . ." references several tests that returned normal results or treatments that controlled symptoms.
The undersigned finds that there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and thus substantial evidence supports the Commissioner's decision.
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of the Federal Rules of Civil Procedure, written objections to the proposed findings of fact, conclusions of law, and recommendation contained herein may be filed
