“An impairment that manifests only some of th[e] criteria [in a Listing], no matter how severely, does not qualify.”
How later courts described this case
- “An impairment that manifests only some of th[e] criteria [in a Listing], no matter how severely, does not qualify.”
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHERRELL CARSON FOOTMAN, )
)
Plaintiff, )
)
v. ) 1:19CV1200
)
ANDREW M. SAUL, )
Commissioner of Social )
Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Cherrell Carson Footman, brought this action pro se
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Commissioner of Social
Security, denying Plaintiff’s claims for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.) Defendant has filed the certified administrative record
(Docket Entry 11 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entry 13 at 1-6; Docket Entry 14; see
also Docket Entry 13 at 7-19 (Plaintiff’s Brief); Docket Entry 15
(Defendant’s Memorandum); Docket Entry 17 (Plaintiff’s Reply)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging a disability onset
date of September 7, 2016. (Tr. 279-98.) Upon denial of those
applications initially (Tr. 100-41, 190-202) and on reconsideration
(Tr. 142-87, 205-23), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 224). Plaintiff, her non-
attorney representative, and a vocational expert (“VE”) attended
the hearing. (Tr. 34-76.) The ALJ subsequently ruled that
Plaintiff did not qualify as disabled under the Act. (Tr. 12-27).
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 278, 440-43), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In rendering that decision, the ALJ made the following
findings:
1. [Plaintiff] meets the insured status requirements of
the . . . Act through September 30, 2020.
2. [Plaintiff] has not engaged in substantial gainful
activity since September 7, 2016, the alleged onset date.
3. [Plaintiff] has the following severe impairments:
chronic venous insufficiency; peripheral neuropathy;
degenerative disc disease; bilateral carpal tunnel
syndrome; Sjogren’s syndrome; right Achilles tendinitis;
asthma; obesity; major depressive disorder; and anxiety.
. . .
4. [Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5. . . . [Plaintiff] has the residual functional
capacity to perform sedentary work . . . except that
[she] can stand/walk up to two hours in an eight hour
day; sit up to six hours in an eight hour day; only
occasionally push/pull with the bilateral lower
2
extremities; can only occasionally balance, stoop, kneel,
crouch, and crawl; can frequently climb ramps and stairs,
but never climb ladders, ropes, or scaffolds; can perform
frequent bilateral handling and fingering; must avoid
concentrated exposure to dust, odors, fumes, and other
pulmonary irritants; must avoid working at unprotected
heights; is limited to performing simple, routine tasks
and maintaining concentration, persistence, and pace for
two-hour periods during the workday; and requires a
stable work environment, which means few and infrequent
changes to the work routine.
. . .
6. [Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from September 7, 2016, through
the date of this decision.
(Tr. 17-27 (bold font and internal parenthetical citations
omitted).)
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.” Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Plaintiff has
3
not established entitlement to relief under the extremely limited
review standard.
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a
reviewing court must uphold the factual findings of the ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted). “If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.” Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
4
176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted). “The issue before
[the Court], therefore, is not whether [the claimant] is disabled,
but whether the ALJ’s finding that [the claimant] is not disabled
is supported by substantial evidence and was reached based upon a
correct application of the relevant law.” Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting 42 U.S.C. § 423(d)(1)(A)).1 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
1 The Act “comprises two disability benefits programs. [DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . provides benefits to indigent disabled persons. The
statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
5
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account a claimant’s age, education, and work experience in
addition to [the claimant’s] medical condition.” Id. “These
regulations establish a ‘sequential evaluation process’ to
determine whether a claimant is disabled.” Id. (internal citations
omitted).
This sequential evaluation process (“SEP”) has up to five
steps: “The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2 A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the
claimant is ‘severely’ disabled. If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
2 “Through the fourth step, the burden of production and proof is on the
claimant. If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).” Id. at 179.3 Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled. Id. at
179-80. However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the RFC] and [the claimant’s]
vocational capabilities (age, education, and past work experience)
to adjust to a new job.” Hall, 658 F.2d at 264-65. If, at this
step, the government cannot carry its “evidentiary burden of
proving that [the claimant] remains able to work other jobs
3 “RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
7
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.’
B. Assignments of Error
As a threshold matter, although Plaintiff’s instant Motion
lists 37 generalized grounds on which she seeks to challenge the
ALJ’s decision (see Docket Entry 13 at 1-5), Plaintiff’s Brief
narrows those 37 grounds down to 13 issues for review (see id. at
8-10). Three of those issues, however, lack applicability to this
case. In issue one, Plaintiff “[o]lbject[s] to the Commissioner’s
motion to dismiss on asserting the affirmative defense of res
judicata” (id. at 8); however, the Commissioner did not file a
motion to dismiss in this case (see Docket Entries dated Jan. 13,
2020, to present), and the ALJ in this matter did not find that res
judicata applied to the prior ALJ’s decision (see Tr. 12-27; see
also Tr. 77-94). Issue eight challenges the ALJ’s reliance on the
Medical-Vocational Guidelines (“Grids”) (see Docket Entry 13 at 9),
but the ALJ relied on the testimony of a VE, and not the Grids, in
deciding Plaintiff’s case at step five of the SEP (see Tr. 26-27).
In issue 13, Plaintiff objects to the ALJ “not considering
[Plaintiff]’s work activity to be an unsuccessful work attempt”
“A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, ¢.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
(Docket Entry 13 at 10), but Plaintiff indicated on a Disability
Report that she stopped working on her onset date (see Tr. 321-22),
and the ALJ did not find that Plaintiff had engaged in any
substantial gainful activity since her onset date (see Tr. 17).
Thus, the Court should deny as meritless issues one, eight, and 13
in Plaintiff’s Brief.
Moreover, in issues seven and 10, Plaintiff challenges a prior
ALJ’s determination that Plaintiff did not qualify as “disabled”
under the Act from June 24, 2013, to March 8, 2016. (See Docket
Entry 13 at 9, 10; see also Tr. 77-94.) However, as Plaintiff did
not seek review of the prior decision with the Appeals Council (see
Tr. 318), Plaintiff has lost any right to judicial review of the
prior ALJ’s decision in this Court, see 20 C.F.R. §§ 404.900 □□□ (5),
416.1400 (a) (5); see also 20 C.F.R. SS 404.900 (b), 416.1400 (“If
[a claimant is] dissatisfied with [the SSA’s] decision in the
review process, but doles] not take the next step within the stated
time period, [the claimant] will lose [his or her] right to...
judicial review.”).° Accordingly, the Court should deny issues
° Plaintiff’s Reply appears to argue that the ALJ “constructively” reopened
the prior ALJ’s decision (Docket Entry 17 at 14) because the ALJ “consider([ed]
the evidence from [Plaintiff’s] first application with regard to the merit of the
case” and/or “admit[ted] evidence from the prior period” and/or “ma[d]Je findings
of fact about that evidence” and/or “ask[ed] questions about the prior period”
(id. at 15). Although Plaintiff references a holding of the United States Court
of Appeals for the Tenth Circuit in support of her argument, Plaintiff provides
no citation to a specific case. (Id.) Plaintiff’s attempt to argue a
constructive (or “de facto”) reopening of her prior claims for benefits fails for
two reasons. First, the United States Court of Appeals for the Fourth Circuit
has recognized an exception to the “general rule” that “federal courts lack
(continued...)
seven and 10 in Plaintiff’s Brief, to the extent they raise grounds
related to the prior ALJ’s decision.
In addition to the remaining, listed issues on review in
Plaintiff’s Brief (see Docket Entry 13 at 8-10), Plaintiff also
raises additional issues in the argument portion of her Brief (see,
e.g., id. at 18 (arguing that ALJ erred in not allowing Plaintiff’s
witnesses to testify). After affording Plaintiff’s Motion and
Brief the liberal construction due such pro se filings, see Hill v.
Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)), the Court should construe
Plaintiff’s remaining assignments of error as the following:
1) “the ALJ failed to properly evaluate and determined [sic]
whether [Plaintiff]’s impairment met or medically equaled the
listing for several severe impairments singly or combined” (Docket
Entry 13 at 8);
°(...continued)
Jurisdiction to review a_decision by the [Commissioner] not to reopen a previous
claim for benefits” where “a claim that otherwise would be barred by res judicata
has been, in effect, reconsidered on the merits at the administrative level.”
Kasey v. Sullivan, 3 F.3d 75, 78 (4th Cir. 1993) (emphasis added) (citing McGowen
v. Harris, 666 F.2d 60, 65-66 (4th Cir. 1981)). Here, Plaintiff made no motion
at the hearing to reopen her prior claims for benefits (see Tr. 34-76) and thus
no “decision by the [Commissioner] not to reopen [Plaintiff’s] previous claim([s]
for benefits” exists for which an exception under McGowen could apply, Kasey, 3
F.3d at 78. Second, in the ALJ’s decision, she did not rely on evidence pre-
dating Plaintiff’s alleged onset date of September 7, 2016, except when necessary
to describe Plaintiff’s medical history. (See, e.g., Tr. 18 (noting that
Plaintiff “ha[d] a history of deep vein thrombosis and ha[d] previously undergone
multiple procedures to address blood clots” (emphasis added) (citing Tr. 1328 and
hearing testimony)), 22 (observing that Plaintiff “ha[d] a history of mild
multilevel degenerative changes of the spine that predate[d] the relevant period
herein (emphasis added) (citing Tr. 876)).) Accordingly, no basis exists for the
Court to find that the ALJ “constructively” reopened Plaintiff’s prior claims for
benefits.
10
2) “the ALJ fail[ed] to consider the combined effect of all
of [Plaintiff]’s impairments in determining severity by not
considering [Plaintiff]’s subjective symptoms in determining
severity” (id. at 9);
3) “the ALJ erred in determining [Plaintiff]’s RFC at steps
4 and 5 mental included ins [sic] step 5 in the [SEP]” and “in
failing to consider the effect of [Plaintiff]’s mental impairment
on her RFC” (id.);
4) the “ALJ err[ed] by not considering [primary care
physician (‘PCP’)] work restrictions” and “in ignoring, without
explanation, the opinions and findings of [Plaintiff]’s treating
physician as to [Plaintiff’s] functional limitations” (id.);
5) “the ALJ err[ed] in determining that [Plaintiff] could
perform the full range of limited sedentary work” (id.);
6) “the ALJ err[ed] in failing to consider [Plaintiff]’s
non-exertional impairment of i.e., pain involving the hands, the
upper extremity, depression, etc. and its effect on her ability to
perform the full range of sedentary . . . work . . . [a]ccording to
[F]ourth [C]ircuit law” (id. at 10);
7) “the ALJ err[ed] in assigning great weight to prior ALJ
decision and applying Albright” (id.);
8) the “ALJ err[ed] by not resolving conflict between past
work and other work” (id.);
11
9) the ALJ erred by failing to allow Plaintiff’s witnesses
to testify at the hearing (see id. at 18);
10) Plaintiff “seek[s] a remand on the basis of new evidence
under 42 U.S.C.A. § 405(g)” (id. at 11; see also id. at 8
(requesting remand “due to the existence of new and material
evidence and good cause for the failure to submit the evidence
previously”).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (Docket Entry 15 at 14-25.)
1. Listings 1.02, 11.14, and 14.10
Plaintiff first contends that “the ALJ failed to properly
evaluate and determined [sic] whether [Plaintiff]’s impairment met
or medically equaled the listing for several severe impairments
singly or combined” (Docket Entry 13 at 8; see also Docket Entry 17
at 6-9.) More specifically, Plaintiff argues that her “Sjögren’s
syndrome and Axonal Sensory Poly Peripheral Neuropathy and
dysfunction of bones and joints were not evaluated at step three of
the [SEP],” and that her “Sjögren’s syndrome severely affects
several body systems.” (Docket Entry 13 at 13.) That argument
does not entitle Plaintiff to relief.
“The [L]istings set out at 20 CFR [P]t. 404, [S]ubpt. P,
App[’x] 1, are descriptions of various physical and mental
illnesses and abnormalities, most of which are categorized by the
body system they affect. Each impairment is defined in terms of
12
several specific medical signs, symptoms, or laboratory test
results.” Sullivan v. Zebley, 493 U.S. 521, 529–30 (1990)
(internal footnote and parentheticals omitted). “In order to
satisfy a listing and qualify for benefits, a person must meet all
of the medical criteria in a particular [L]isting.” Bennett, 917
F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20 C.F.R.
§ 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment
that manifests only some of th[e] criteria [in a Listing], no
matter how severely, does not qualify.”).
Contrary to Plaintiff’s allegations, at step three of the SEP,
the ALJ here specifically considered Listings 1.02 (“Major
dysfunction of a joint(s) (due to any cause)”), 11.14 (“Peripheral
neuropathy”), and 14.10 (“Sjögren’s syndrome”), see 20 C.F.R. Pt.
404, Subpt. P, App’x 1, §§ 1.02, 11.14, 14.10. (See Tr. 18-19.)
The ALJ found that Plaintiff’s impairments did not meet or equal
the criteria of Listing 1.02, because Plaintiff’s evidence had
shown neither an inability to ambulate effectively nor an inability
to perform fine and gross movements effectively. (Tr. 18.)6 The
ALJ next found, with regard to Plaintiff’s peripheral neuropathy,
that “[t]he record d[id] not reflect disorganization of motor
6 “Inability to ambulate effectively means an extreme limitation of the
ability to walk . . . [and] is defined generally as having insufficient lower
extremity functioning to permit independent ambulation without the use of a hand-
held assistive device that limits the functioning of both upper extremities.”
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.00B.2.b (emphasis added) (internal
citation omitted). Thus, Plaintiff’s use of a cane, even assuming its medical
necessity, would not demonstrate an “inability to ambulate effectively.”
13
function in two extremities resulting in an extreme limitation or
marked limitations in physical functioning so as to meet or
medically equal the criteria of [L]isting 11.14.” (Tr. 19.)7
Concerning Listing 14.10, the ALJ found that “the record does not
evidence involvement of two or more organs/body systems with one
organ/body system involved to a moderate level of severity and at
least two constitutional symptoms or signs; or repeated
manifestations of Sjogren’s syndrome with at least two
constitutional symptoms and a marked limitation in activities of
daily living, social functioning or the ability to complete tasks
in a timely manner.” (Id.) Plaintiff has not pointed to any
record evidence to contradict the ALJ’s findings in that regard.
(See Docket Entries 13, 17.)
Put simply, the ALJ did not err in the application of Listings
1.02, 11.14, and 14.10.
2. Subjective Symptoms
Plaintiff next asserts that “the ALJ fail[ed] to consider the
combined effect of all of [Plaintiff]’s impairments in determining
severity by not considering [Plaintiff]’s subjective symptoms in
determining severity.” (Docket Entry 13 at 9.) Plaintiff further
7 Under Listing 11.14, an “extreme limitation” in the abilities to stand
up from a seated position or to maintain balance in a standing position and while
walking means that an individual is “unable to stand and maintain an upright
position” or “unable to maintain an upright position while standing or walking
without the assistance of another person or . . . two canes.” 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 11.00D.2 (emphasis added).
14
observes that “[t]here is critical difference in daily activities
of life and full time work,” and notes that, with daily activities,
she “can structure [he]r pace[ and] get assistance from family,
friends and neighbors,” but that such accommodations and assistance
do not exist “in a work setting.” (Docket Entry 17 at 3.) Those
allegations fall short.
Social Security Ruling 16-3p, Titles II and XVI: Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,
2017) (“SSR 16-3p”) (consistent with the Commissioner’s
regulations) adopts a two-part test for evaluating a claimant’s
statements about symptoms. See SSR 16-3p, 2017 WL 5180304, at *3;
see also 20 C.F.R. § 404.1529. First, the ALJ “must consider
whether there is an underlying medically determinable physical or
mental impairment(s) that could reasonably be expected to produce
an individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL
5180304, at *3. A claimant must provide “objective medical
evidence from an acceptable medical source to establish the
existence of a medically determinable impairment that could
reasonably be expected to produce [the] alleged symptoms.” Id.
Objective medical evidence consists of medical signs (“anatomical,
physiological, or psychological abnormalities established by
medically acceptable clinical diagnostic techniques”) and
laboratory findings “shown by the use of medically acceptable
laboratory diagnostic techniques.” Id.
15
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work. See id.
at *4. In making that determination, the ALJ must “examine the
entire case record, including the objective medical evidence; an
individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.” Id. Where
relevant, the ALJ will also consider the following factors in
assessing the extent of the claimant’s symptoms at part two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
16
Id. at *7-8. The ALJ cannot “disregard an individual’s statements
about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
the degree of impairment-related symptoms alleged by the
individual.” Id. at *5 (emphasis added).
As an initial matter, and contrary to Plaintiff’s contentions,
the ALJ clearly considered the combined effect of Plaintiff’s
impairments. For example, the ALJ expressly found that Plaintiff
“d[id] not have an impairment or combination of impairments that
me[t] or medically equal[ed] the severity of one of the listed
impairments” (Tr. 18 (emphasis added)) and further determined that
“[t]he severity of [Plaintiff]’s mental impairments, considered
singly and in combination, d[id] not meet or medically equal the
criteria of [L]istings 12.04 and 12.06” (Tr. 19 (emphasis added)).
Similarly, in explaining the basis for the RFC, the ALJ noted that
Plaintiff’s “combined physical impairments support[ed] limiting
[her] to sedentary exertional work with reduced postural activity
and restricted exposure to hazards.” (Tr. 23.) Absent a concrete
showing that the ALJ did not in fact consider the combined effect
of Plaintiff’s impairments (which Plaintiff did not provide), the
Court may take the ALJ at her word, see Bell v. Berryhill, No. CV
9:17-1951, 2018 WL 4560719, at *11 (D.S.C. June 20, 2018)
(unpublished) (holding that court should take ALJ “at her word when
she states that she considered all of the claimant’s impairments in
17
combination” (citing Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th
Cir. 2008))), recommendation adopted, 2018 WL 3912952 (D.S.C. Aug.
16, 2018) (unpublished).
The ALJ also properly considered Plaintiff’s ability to engage
in activities of daily living as one component of the ALJ’s
evaluation of Plaintiff’s subjective symptom reporting. The ALJ
considered Plaintiff’s “statements concerning the intensity,
persistence, and limiting effects of [her] symptoms” (Tr. 23), but
found such statements “not entirely consistent with the medical
evidence and other evidence in the record” (Tr. 23). As further
explicated by the ALJ:
As for [Plaintiff]’s statements about the intensity,
persistence, and limiting effects of . . . her symptoms,
they are not wholly consistent with the evidence of
record. The most recent medical records show that
[Plaintiff] exhibited a normal gait with full strength
and a normal range of motion. [Plaintiff] has reported
that Cymbalta helps improve her mood and pain. Other
than medication, treatment has been conservative and
[Plaintiff] has not required surgical intervention or
physical therapy treatment. [Plaintiff] has reported
that she is independent in matters of personal care, has
been able to serve as the primary caretaker of her young
child, and can perform light housework, prepare meals,
and manage her own finances. She reported no history of
mental health counseling or inpatient psychiatric
hospitalization.
(Id. (emphasis added).) Significantly, Plaintiff makes no argument
that the ALJ’s above-emphasized description of Plaintiff’s ability
to engage in daily activities inaccurately describes or overstates
them. (See Docket Entries 13, 17.)
18
In short, Plaintiff has not shown that the ALJ erred with
respect to her evaluation of Plaintiff’s subjective symptoms.
3. Mental RFC
Next, Plaintiff maintains that “the ALJ erred in determining
[Plaintiff]’s RFC at steps 4 and 5 mental included ins [sic] step
5 in the [SEP]” and “in failing to consider the effect of
[Plaintiff]’s mental impairment on her RFC.” (Docket Entry 13 at
9.) In that regard, Plaintiff argues that her “medically
determinable impairments significantly limit the ability to perform
basic work activities as required by [Social Security Ruling 85-28,
Titles II and XVI: Medical Impairments That are Not Severe, 1985 WL
56856 (1985) (‘SSR 85-28’)] including the inability to adjust to
ordinary emotional stresses without significant difficulty.” (Id.
at 18-19.) Plaintiff additionally appears to argue that the ALJ
failed to perform the “special technique” required by the
regulations for evaluating mental impairments. (Docket Entry 17 at
10-13 (citing 20 C.F.R. § 404.1520a, and Patterson v. Commissioner
of Soc. Sec. Admin., 846 F.3d 656 (4th Cir. 2017)).) Plaintiff’s
arguments miss the mark.
As an initial matter, the ALJ did perform the “special
technique” required by Sections 404.1520a and 416.920a in
evaluating Plaintiff’s mental impairments. The ALJ found, at step
two of the SEP, that Plaintiff’s depression and anxiety qualified
as severe impairments (see Tr. 18) and, at step three, rated the
19
degree of limitation caused by Plaintiff’s depression and anxiety
in the four areas of mental functioning (see Tr. 19-20). In that
regard, the ALJ deemed Plaintiff mildly limited in her abilities to
understand, remember, and apply information (see Tr. 19), as well
as to interact with others (see Tr. 20). The ALJ also found
moderate limitations in Plaintiff’s abilities to concentrate,
persist, or maintain pace and to adapt or manage herself. (See
id.) As a result, the ALJ determined that Plaintiff’s mental
impairments did not meet or medically equal Listings 12.04 or 12.06
(see Tr. 19-20), and proceeded to formulate Plaintiff’s physical
and mental RFC (see Tr. 21-25). That course of analysis follows
the “special technique” dictated for mental impairments. See 20
C.F.R. §§ 404.1520a, 416.920a. The Patterson case, therefore,
lacks applicability to this matter, as the Fourth Circuit therein
addressed for the first time whether an ALJ’s failure to conduct
the special technique could qualify as harmless error. see
Patterson, 846 F.3d at 65/7.
Next, in formulating the mental RFC, the ALJ noted that
“[flindings relating to ([Plaintiff]’s depression and anxiety
support limiting [Plaintiff] to simple work in a controlled
environment.” (Tr. 23.) Consistent with that understanding, the
ALJ limited Plaintiff “to performing simple, routine tasks and
maintaining concentration, persistence, and pace for two-hour
periods during the workday . . . [as well as] a stable work
20
environment, which mean[t] few and infrequent changes to the work
routine.” (Tr. 21 (bold font omitted).) The ALJ further explained
the basis for the mental RFC in the evaluation of the opinion
evidence regarding Plaintiff’s mental impairments:
State agency psychological consultants indicated that
[Plaintiff] may have some difficulty adapting to changes
in the workplace, but should be able to adapt to routine
changes in a stable work environment, even involving some
complex tasks. While these consultants were able to
review available evidence of record, they did not
personally examine [Plaintiff] to support their
conclusions. Their conclusions are mostly supported by
the evidence of record, which indicates [Plaintiff] to
have no history of mental health treatment, but I find it
appropriate to add additional limitations to restrict
[Plaintiff] to simple work, based on [Plaintiff]’s
difficulty handling stress, cognitive deficits described
the consultative examiner, and the indication by a
treating source that [Plaintiff]’s pain causes attention
deficits. These opinions are partially persuasive.
I have considered the assessment of consultative
psychological examiner Gregory Villarosa, Ph.D. and find
it to be persuasive. Dr. Villarosa indicated that
[Plaintiff] is able to retain and follow simple
instructions and would likely have some difficulty
handling the stress and pressures associated with
day-to-day work activity. Dr. Villarosa was able to
personally examine [Plaintiff] and provided a detailed
report to support his conclusions. His assessment is
generally consistent with the evidence of record, which
indicates that, despite a lack of mental health
treatment, [Plaintiff] experiences a range of depressive
and anxious symptoms that have reduced [Plaintiff]’s
functioning and support a limitation to simple work.
(Tr. 24 (internal parenthetical citations omitted).) Plaintiff
simply has not shown that the record evidence compelled the ALJ to
adopt further limitations on Plaintiff’s ability to handle stress
(or any other mental limitations).
21
In light of the foregoing, Plaintiff has failed to demonstrate
entitlement to relief on the basis of the mental RFC.
4. Treating Source Opinions
Plaintiff next argues that the “ALJ err[ed] by not considering
PCP work restrictions” and “in ignoring, without explanation, the
opinions and findings of [Plaintiff]’s treating physician as to
[Plaintiff’s] functional limitations.” (Docket Entry 13 at 9.)
More specifically, Plaintiff maintains that “Dr. Jonathan Edwards
. . . was [P]laintiffs [sic] PCP” and that “[t]he ALJ erred in
failing to accord ‘controlling weight’” to Dr. Edwards’s opinions
“in the 2016 hearing” and by “[i]gnoring, without explanation, the
opinions and findings of [Dr. Edwards] as to [Plaintiff’s]
functional limitations [in] a second opinion [on] May 7, 2016.”
(Id. at 18 (emphasis added) (citing Tr. 357-66 (Dr. Edwards’s
opinions dated Feb. 24, 2014, and May 7, 2016)).)
As discussed above, Plaintiff cannot challenge the findings of
the prior ALJ’s decision in this action, as Plaintiff did not
exhaust her administrative remedies with respect to that prior
decision (see Tr. 318), and thus lost her right to judicial review
of that decision, see 20 C.F.R. §§ 404.900(a)(5), 416.1400(a)(5);
see also 20 C.F.R. §§ 404.900(b), 416.1400(b). Moreover, the
current ALJ expressly stated that she would not evaluate any
opinions that pre-dated Plaintiff’s alleged onset date:
22
I have not provided articulation about the evidence that
is inherently neither valuable nor persuasive in
accordance with 20 CFR 404.1520b(c) and 416.920b(c).
Assessments made prior to [Plaintiff]’s alleged onset
date are not valuable or persuasive, as they do not
reflect [Plaintiff]’s functioning during the relevant
period.
(Tr. 23 (emphasis added).)
Nevertheless, Plaintiff does allege that “[t]he ALJ erred in
determining [Plaintiff]’s RFC in the [SEP]” (Docket Entry 13 at 15
(citing Tr. 17-18)), and that “[i]mproper consideration of
limitations was given by the ALJ by failing to give adequate weight
to the opinion of the treating sources [sic] FCE stating
[P]laintiff has substantial work related limitations” (id.).
Plaintiff’s citation to the current ALJ’s opinion and reference to
a “treating source[’]s . . . work[-]related limitations” (id.)
suggests that the Court should review whether the current ALJ
properly evaluated the opinions of Lindsey Abrahamse, FNP-C,
Plaintiff’s treating Family Nurse Practitioner and the only
treating source who offered opinions as to Plaintiff’s functional
abilities during the relevant period.
For benefits applications filed on or after March 27, 2017
(such as Plaintiff’s (see Tr. 278-98)), the SSA has enacted
substantial revisions to the regulations governing the evaluation
of opinion evidence. See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL
168819 (Jan. 18, 2017). Under the new regulations, ALJs are no
23
longer required to assign an evidentiary weight to medical opinions
or to accord special deference to treating source opinions. See 20
C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not
defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [a
claimant’s] medical sources”).8 Instead, an ALJ must determine and
“articulate in [the] . . . decision how persuasive [he or she]
find[s] all of the medical opinions and all of the prior
administrative medical findings in [a claimant’s] case record.” 20
C.F.R. §§ 404.1520c(b), 416.920c(b) (emphasis added). Moreover,
when a medical source provides more than one opinion or finding,
the ALJ will evaluate the persuasiveness of such opinions or
findings “together in a single analysis” and need not articulate
how he or she considered those opinions or findings “individually.”
20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1).
In evaluating the persuasiveness of an opinion or finding, the
SSA deems supportability and consistency “the most important
factors” and thus the ALJ must address those two factors in
8 The new regulations define a “medical opinion” as “a statement from a
medical source about what you can still do despite your impairment(s) and whether
you have one or more impairment-related limitations or restrictions” in the
abilities to perform the physical, mental, or other demands of work activity or
to adapt to environmental conditions. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2)
(2017). Those regulations also define a “prior administrative medical finding”
as a “finding, other than the ultimate determination about whether [a claimant
is] disabled, about a medical issue made by [the SSA’s] Federal and State agency
medical and psychological consultants at a prior level of review.” 20 C.F.R.
§§ 404.1513(a)(5), 416.913(a)(5) (2017).
24
evaluating the persuasiveness of an opinion or a finding. 20
C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).9 The ALJ must only
address the three other persuasiveness factors — the nature and
extent of the medical source’s relationship with the claimant and
area of specialization, as well as the catch-all “other factors
that tend to support or contradict” the opinion/finding, 20 C.F.R.
§§ 404.1520c(c)(3)-(5), 416.920c(c)(3)-(5) — when the ALJ finds two
or more opinions or findings about the same issue “[e]qually
persuasive” in terms of supportability and consistency, 20 C.F.R.
§§ 404.1520c(b)(3), 416.920c(b)3). The new regulations further
deem “inherently neither valuable nor persuasive,” 20 C.F.R.
§§ 404.1520b(c), 416.920b(c), “[s]tatements on issues reserved to
the Commissioner,” 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3),
such as statements that a claimant does not qualify as disabled or
remains unable to work, 20 C.F.R. §§ 404.1520b(c)(3)(i),
416.920b(c)(3)(i).
The ALJ here evaluated the persuasiveness of Nurse Abrahamse’s
opinions as follows:
I have considered the medical source statements of
Lindsey Abrahamse, FNP-C. In June 2017, [Nurse]
Abrahamse found [Plaintiff] to be capable of light
9 “Supportability” means “[t]he extent to which a medical source’s opinion
is supported by relevant objective medical evidence and the source’s supporting
explanation.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.
§§ 404.1520c(c)(1), 416.920c(c)(1). “Consistency” denotes “the extent to which
the opinion is consistent with the evidence from other medical sources and
nonmedical sources in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853; see
also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
25
exertional work with occasional postural activity except
for never crawling, and additional manipulative and
environmental restrictions. [Nurse] Abrahamse has a
treating relationship with [Plaintiff] and was able to
rely on her history with [Plaintiff] to support her
findings with an explanation of [Plaintiff]’s symptoms.
The postural, manipulative, and environmental limitations
are generally persuasive; however, the evidence of record
suggests that [Plaintiff]’s condition has somewhat
worsened since the time of this assessment, which
suggests a reduction to sedentary exertional work,
supported by assessments of Achilles tendinitis and
bilateral carpal tunnel syndrome. In July 2018, [Nurse]
Abrahamse indicated that [Plaintiff] could only
occasionally lift up to five pounds and could only
stand/walk less than one hour in a normal day. She
indicated that [Plaintiff] would need the ability to lie
down throughout the day and would require extensive
unscheduled breaks. She stated that [Plaintiff] would
have greatly reduced ability to perform postural and
manipulative activities and that she would need the use
of a cane for ambulation. [Nurse] Abrahamse indicated
that [Plaintiff] would be absent from work more than
three times per month due to her impairments. She
further indicated [Plaintiff] to have deficits to her
concentration, attention, and ability to handle stress
due to depression. The extent of these limitations are
not consistent with the evidence or record. On recent
exam, [Plaintiff] exhibited a normal gait with full
strength and range of motion. [Plaintiff]’s carpal
tunnel syndrome has been noted to impact only her sensory
nerves with all other nerves within normal limits.
Furthermore, [Nurse] Abrahamse, as _a_FNP-C, does not
appear _ to be a mental health expert for purposes of
qualifying her mental limitations. [Nurse] Abrahamse’s
July 2018 assessment is found to be unpersuasive. In
November 2018, [Nurse] Abrahamse indicated that
[Plaintiff] was unable to work due to her combined
impairments. It is noted that determinations of a
claimant’s ability to work are an issue reserved to the
Commissioner. In this instance, [Nurse] Abrahamse did
not assess specific vocational limitations
assessment is not persuasive. However, the medical
record does not evidence a precipitating event or reduced
functioning to a degree that would justify the stark
contrast in [Nurse] Abrahamse’s statements regarding
26
[Plaintiff]’s functional capacity from June 2017 to
November 2018. [Plaintiff] reported that she has
maintained her independence in matters of personal care.
(Tr. 24-25 (emphasis added).) As the above-emphasized language
makes clear, the ALJ’s analysis comports with the new regulations,
as she properly considered the supportability and consistency of
Nurse Abrahamse’s opinions, as well as disregarded Nurse
Abrahamse’s opinion that Plaintiff lacked the ability to work as a
matter reserved to the Commissioner. (Id.) Although not required
by the regulations, the ALJ also considered the nature of Nurse
Abrahamse’s treatment relationship with Plaintiff and Nurse
Abrahamse’s area of specialization. (Id.)
In sum, Plaintiff has not demonstrated entitlement to reversal
or remand arising out of the ALJ’s evaluation of treating source
opinions.
5. Physical RFC
Plaintiff additionally argues that “the ALJ err[ed] in
determining that [Plaintiff] could perform the full range of
limited sedentary work.” (Docket Entry 13 at 9.) In that regard,
Plaintiff contends that, in her applications for benefits, she
“stated that [she] was disabled because of poly-neuropathy both
feet up to knee on right leg; post venal thrombosis and edema;
anxiety; depression; hypertension; high cholesterol; arthritis;
further Ehlers Danlos syndrome and joint laxity, Marfan
syndrome/joint laxity, asthma and allergy; chronic body pain; back
27
pain; right hand; intestines; colitis; and blurred vision however
all of Plaintiff’s medical conditions and effects were not
considered in the RFC.” (Id. at 17 (internal citation and stray
comma omitted).) In addition, Plaintiff appears to argue that the
ALJ should have included a sit/stand option in the RFC. (Id. at
14-15.) Those contentions fail as a matter of law.
In contrast to Plaintiff’s arguments, the ALJ’s decision
demonstrates that she discussed and considered nearly all of the
impairments that Plaintiff contends disabled her. (See Tr. 18-25.)
At step two of the SEP, the ALJ found that Plaintiff’s “chronic
venous insufficiency[,] peripheral neuropathy[,] degenerative disc
disease[,] bilateral carpal tunnel syndrome[,] Sjogren’s
syndrome[,] right Achilles tendinitis[,] asthma[,] obesity[,] major
depressive disorder[,] and anxiety” constituted severe impairments
that “significantly limit[ed Plaintiff’s] ability to perform basic
work activities.” (Tr. 18 (bold font omitted).) In addition, the
ALJ evaluated Plaintiff’s colitis, irritable bowel syndrome,
hyperlipidemia, glaucoma/blurred vision, and deep vein thrombosis,
but found that such impairments caused Plaintiff no more than a
minimal limitation on her ability to perform work-related abilities
and thus qualified as non-severe. (Id.)
In the ALJ’s discussion of the RFC, she expressly acknowledged
Plaintiff’s testimony “that she experience[d] chronic pain
throughout her body” (Tr. 21 (emphasis added)) but, as discussed
28
above, found Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms [] not entirely
consistent with the medical evidence” (Tr. 23). As for Plaintiff’s
allergies, the ALJ noted that Plaintiff “underwent sinus surgery
after complaining of worsening sinus issues in May 2018,” but noted
that she “reported feeling better with improved breathing
thereafter.” (Tr. 22.)
Plaintiff correctly observes that the ALJ did not discuss
Plaintiff’s “hypertension,” “Ehlers Danlos syndrome and joint
laxity,” or “Marfan syndrome/joint laxity” (Docket Entry 13 at 17)
in the decision. (See Tr. 18-25.) However, the ALJ’s omissions in
that regard do not amount to error, much less reversible error, for
two reasons. First, no diagnosis of Ehlers-Danlos Syndrome or
Marfan Syndrome exists in the record. The transcript page
Plaintiff cites as reflecting a diagnosis of Ehlers-Danlos Syndrome
actually reflects that Plaintiff “was seen by genetics for
[E]hlers[-D]anlos” but that the providers deemed the “workup”
“inconclusive.” (Tr. 1943 (emphasis added).) Moreover, although
Plaintiff’s treating neurologist, Dr. Nikhil Balakrishnan, observed
that Plaintiff displayed a tall, “Marfanoid” body habitus (Tr. 459)
and noted “hyperextensibility” of the interphalangeal joints of
Plaintiff’s long fingers (Tr. 460), Dr. Balakrishnan did not
diagnose Plaintiff with Marfan Syndrome (see Tr. 460).
29
Second, Plaintiff does not explain how a discussion of
Plaintiff’s “joint laxity” and/or hypertension by the ALJ would
have led to greater restrictions in the RFC. (See Docket Entries
13, 17.) The ALJ explained his decision-making process with
respect to the physical RFC as follows:
[Plaintiff]’s combined physical impairments support
limiting [Plaintiff] to sedentary exertional work with
reduced postural activity and restricted exposure to
hazards. [Plaintiff]’s neuropathy, venous insufficiency
and carpal tunnel syndrome suggest limiting [Plaintiff]’s
manipulative activities. [Plaintiff]’s history of asthma
supports reduced exposure to pulmonary irritants.
(Tr. 23.) In formulating a physical RFC in accordance with that
analysis, the ALJ restricted Plaintiff to sedentary work involving
standing and walking up to two hours and sitting up to six hours in
an eight-hour workday, occasional pushing and pulling with the
bilateral lower extremities, occasional postural movements,
frequent climbing of ramps and stairs, no climbing of ladders,
ropes, or scaffolds, frequent bilateral handling and fingering, no
concentrated exposure to pulmonary irritants, and no working at
unprotected heights. (Tr. 21.) Plaintiff simply has not shown
that an express discussion of joint laxity and/or hypertension by
the ALJ would have resulted in a more favorable outcome in her
case.
Plaintiff’s apparent assertion that the ALJ erred by failing
to include a sit/stand option in the RFC (see Docket Entry 13 at
14-15) fares no better. Although Nurse Abrahamse opined in a
30
Medical Source Statement dated July 20, 2018 (see Tr. 2004-10),
that Plaintiff could sit for less than 15 minutes at a time and
could stand or walk for less than 15 minutes at a time (see Tr.
2006), as discussed above, the ALJ found such extreme sitting and
standing limitations “unpersuasive” (Tr. 24) and did not err in so
finding. Plaintiff does not provide any other evidentiary basis
for including a sit/stand option in the RFC. (See Docket Entries
13, 17.)
As a result of the foregoing analysis, the Court should find
that the ALJ did not reversibly err in evaluating Plaintiff’s RFC.
6. Non-Exertional Limitations
Plaintiff also contends that “the ALJ err[ed] in failing to
consider [Plaintiff]’s non-exertional impairment of i.e., pain
involving the hands, the upper extremity, depression, etc. and its
effect on her ability to perform the full range of sedentary . . .
work . . . [a]ccording to [F]ourth [C]ircuit law.” (Docket Entry
13 at 10.) In addition, Plaintiff appears to argue that the ALJ
improperly relied on the Grids in deciding that Plaintiff did not
qualify as disabled at step five of the SEP, because Plaintiff’s
non-exertional limitations precluded the ALJ from relying on the
Grids. (See id. at 16.) Those contentions fall short.
At step five of the SEP, the Commissioner bears the burden of
providing evidence of a significant number of jobs in the national
economy that a claimant could perform considering his or her age,
31
education, work experience, and RFC. See Walls v. Barnhart, 296
F.3d 287, 290 (4th Cir. 2002). “The Commissioner may meet this
burden by relying on the [Grids] or by calling a [VE] to testify.”
Aistrop v. Barnhart, 36 F. App’x 145, 146 (4th Cir. 2002) (citing
20 C.F.R. § 404.1566). As to the former:
The Grids categorize jobs by their physical-exertion
requirements, namely, sedentary, light, medium, heavy,
and very heavy. There are numbered tables for the
sedentary, light, and medium level (tables 1, 2, and 3,
respectively), and a specific rule for the heavy and very
heavy levels. Based on the claimant’s RFC, the ALJ must
first determine which table to apply, i.e., if the
claimant’s RFC limits him to a sedentary exertional
level, then Table No. 1 is the appropriate table. Next,
based on the claimant’s age, education, and previous work
experience, the [table or] rule directs a finding of
‘disabled’ or ‘not disabled.’
Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D. Va.
Apr. 26, 2010) (unpublished) (internal citations and footnotes
omitted), recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3,
2010) (unpublished).
As discussed above, the ALJ properly discussed Plaintiff’s
impairments and sufficiently accounted for the exertional and non-
exertional limitations caused by those impairments in the RFC.
(See Tr. 18-25.) Moreover, the ALJ did not use the Grids at step
five to direct a conclusion of disability; rather, the ALJ used
Grid Rules 201.21 and 201.28 as a framework for decision, and
relied on the testimony of a VE regarding other jobs available in
significant numbers in the national economy that Plaintiff could
32
perform. (See Tr. 26-27, 70-71.) Notably, the dispositive
hypothetical question to the VE contained the same non-exertional
limitations as the ALJ included in the RFC. (Compare Tr. 21, with
Tr. 70-71.)10
Accordingly, Plaintiff’s challenge based on the ALJ’s
assessment of Plaintiff’s non-exertional limitations lacks merit.
7. Prior ALJ Decision
Additionally, Plaintiff asserts that “the ALJ err[ed] in
assigning great weight to prior ALJ decision and applying
Albright.” (Docket Entry 13 at 10.) The ALJ, however, did not
assign great weight to the prior ALJ’s decision; rather, the
current ALJ accorded the prior ALJ’s decision only “some weight,”
because the current ALJ found that “new and material” evidence
caused greater restrictions on Plaintiff’s RFC than those found by
the prior ALJ:
[Plaintiff] was found not disabled in a final decision by
an . . . ALJ[] dated March 8, 2016, based on a prior
application for disability benefits. I find there is new
and material evidence relating [Plaintiff]’s condition.
10 Plaintiff maintains that “a finding of ‘disabled’ is warranted for
individuals age 45-49 who . . . [a]re restricted to sedentary work, [ a]re
unskilled or have no transferable skills, [and h]ave no past relevant work or can
no longer perform past relevant work.” (Docket Entry 13 at 14.) Plaintiff
misinterprets Table 1 of the Grids governing sedentary RFCs. As Plaintiff’s age
during the relevant period spanned two different age categories (“younger
individual aged 18-44” and “younger individual aged 45-49,” (Tr. 25)), the ALJ
used both Rule 201.28 (18-44) and 201.21 (45-49) as a framework for decision (see
Tr. 26). Those Rules apply to an individual (like Plaintiff) with at least a
high school education (see Tr. 25), and with skilled or semi-skilled previous
work experience, but no transferable skills. See 20 C.F.R. Pt. 404, Subpt. P,
App’x 2, §§ 201.21, 201.28. Contrary to Plaintiff’s allegations, both Rules
direct a conclusion of “[n]ot disabled.” Id.
33
The prior ALJ decision determined that [Plaintiff]
retained the [RFC] to perform a reduced range of light
exertional work. I find the medical evidence of record
establishes that [Plaintiff]’s medical condition
deteriorated. Among other issues, the medical evidence
reveals that [Plaintiff]’s neuropathy has worsened since
the time of the previous decision and new impairments
have been diagnosed, as discussed in detail in the
[decision]. Accordingly, I do not adopt the [RFC] and
findings of the prior ALJ and afford the prior ALJ
decision only some weight pursuant to Acquiescence Ruling
(AR) 00-1(4).
(Tr. 15 (internal parenthetical citations omitted) (emphasis
added).) The ALJ’s decision to discount the prior ALJ’s decision
thus benefitted Plaintiff by reducing her RFC from light to
sedentary exertion, increasing the restriction of postural
movements, and adding manipulative and mental restrictions.
(Compare Tr. 21, with Tr. 86.) Because Plaintiff cannot
demonstrate that the ALJ’s decision to discount the prior ALJ’s
decision prejudiced her, this issue on review fails."
| Plaintiff’s argument that “the ALJ err[ed] in .. . applying Albright”
regarding her analysis of the prior ALJ’s decision (Docket Entry 13 at 10) misses
the mark. In the Albright decision, the United States Court of Appeals for the
Fourth Circuit rebuffed the manner in which an ALJ treated a prior ALJ’s denial
of the claimant’s previous application for benefits. Albright, 174 F.3d at
474-78, In that case, the new ALJ did not analyze whether the claimant’s
condition had worsened since the prior ALJ’s decision, but rather simply adopted
the prior ALJ’s denial of benefits as res judicata based upon the SSA’s
Acquiescence Ruling 94-2(4) (“AR 94-2(4)”). Id. at 474, 475. AR 94-2 □□□
required ALJs to adopt findings from prior ALJ decisions unless the claimant
produced new and material evidence relating to those findings. Id. The Fourth
Circuit found the ALJ’s application of AR 94-2(4) to the claimant’s subsequent
DIB and SSI claims “imprudent,” id. at 477, and contrary to the SSA’s
long-standing “treatment of later-filed applications as separate claims,” id. at
476. In response to Albright, the SSA issued Acquiescence Ruling 00-1(4),
(Interpreting Lively v. Secretary of Health and Human Services) - Effect of Prior
Disability Findings on Adjudication of a Subsequent Disability Claim - Titles II
and XVI of the Social Security Act, 2000 WL 43774 (Jan. 12, 2000) (“AR 00-1(4)%),
which requires ALJs “adjudicating a subsequent disability claim” to “consider
(continued...)
34
8. Conflict Between Past Work and Other Work
Plaintiff further contends that the “ALJ err[ed] by not
resolving conflict between past work and other work.” (Docket
Entry 13 at 10.) No further discussion of this issue appears in
either Plaintiff’s Brief or Reply (see Docket Entries 13, 17) and
thus the undersigned cannot clearly ascertain what Plaintiff means
to allege in this issue on review. In any event, the ALJ labored
under no obligation to resolve “conflicts” between Plaintiff’s past
relevant work (“PRW”) and the three “other” occupations the VE
cited (and the ALJ subsequently adopted) as within Plaintiff’s RFC.
The determinations of whether a claimant retains the RFC to perform
his or her PRW at step four of the SEP and of whether that claimant
can perform other jobs existing in significant numbers in the
national economy at step five constitute entirely distinct steps in
SEP. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Here, the
ALJ found that Plaintiff could no longer perform her PRW (see Tr.
11(...continued)
. . . a prior finding [of a claimant’s RFC or other finding required at a step
in the SEP] as evidence and give it appropriate weight in light of . . . such
factors as: (1) whether the fact on which the prior finding was based is subject
to change with the passage of time, such as a fact relating to the severity of
a claimant’s medical condition; (2) the likelihood of such a change, considering
the length of time that has elapsed between the period previously adjudicated and
the period being adjudicated in the subsequent claim; and (3) the extent that
evidence not considered in the final decision on the prior claim provides a basis
for making a different finding with respect to the period being adjudicated in
the subsequent claim.” AR 00-1(4), 2000 WL 43774, at *4. Here, as quoted above,
the ALJ’s evaluation of the prior ALJ’s decision complies with AR 00-1(4), as the
ALJ properly considered “the extent that evidence not considered in the final
decision on the prior claim provides a basis for making a different finding,” AR
00-1(4), 2000 WL 43774, at *4. (See Tr. 15.)
35
25) but adopted the VE’s testimony that Plaintiff could perform
other jobs available in significant numbers in the national economy
(see Tr. 26-27, 70-71). Plaintiff has not established any
reversible error in those determinations.’
9. Witnesses
Plaintiff next challenges the ALJ’s refusal to allow
Plaintiff’s witnesses to testify at the hearing. (See Docket Entry
13 at 18.) According to Plaintiff, those witnesses’ “testimony
would have supported the structured settings and assistance given
by sister that is CNA and friends to the daily activities of life
and help with son.” (Id.) That contention does not entitle
Plaintiff to relief.
The Commissioner’s regulations clearly accord claimants the
right to present witnesses at administrative hearings. see 20
C.F.R. §§ 404.950 (e), 416.1450(e) (permitting claimants to present
witnesses at hearings); 20 C.F.R. §§ 404.929, 416.1429 (same).
However, “[t]he ALJ determines the subject and scope of testimony
from a claimant and any witness(es)”, Hearings, Appeals, and
Litigation Law Manual (“HALLEX”’), § I-2-6-60(A), 1993 WL 751900,
and “the ALJ is not required to permit testimony that is repetitive
Plaintiff asserts in her Reply that one of the jobs cited by the VE (see
Tr. 71) and adopted by the ALJ (see Tr. 26), Call Out Operator, “no longer
exists.” (Docket Entry 17 at 5.) However, Plaintiff provides no citation to
authority to support that assertion. (See id.) Moreover, the VE testified that
6,000 Call Out Operator jobs existed in the national economy, and Plaintiff did
not challenge that testimony. (See Tr. 71, 73-74.)
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or cumulative,” HALLEX, § I–2–6–6o(B), 1993 WL 751900 (emphasis
added).
In this case, at the close of the hearing, the following
exchange took place between Plaintiff’s non-attorney representative
and the ALJ:
REP: I thought they had informed you there was two
witnesses but --
ALJ: I don’t need any witnesses.
. . .
REP: Okay.
ALJ: I mean what are they going to tell me that she
hasn’t already told me?
REP: Just basic confirm how much they have to help her
out on a daily --
ALJ: Well, I mean I believe her when she --
REP: Okay.
ALJ: -- says that, you know.
REP: Well, I just want to make sure.
ALJ: I don’t need [sic] to just tell me the same thing
she’s going to tell me.
REP: Okay. That’s --
ALJ: We normally have witnesses when people have like
intellectual disabilities, they’re not able to speak for
themselves, and that kind of situation. But [Plaintiff]
did fine. Okay?
REP: Okay. Thank you.
(Tr. 74-75 (emphasis added).)
37
The ALJ did not err in disallowing Plaintiff’s witnesses, as
Plaintiff’s non-attorney representative made clear that their
testimony would “basic[ally] confirm how much they have to help
[Plaintiff] out on a daily [basis]” (Tr. 75 (emphasis added)), and
Plaintiff indicated in her Brief that the witnesses’ “testimony
would have supported the structured settings and assistance given
by sister that is CNA and friends to the daily activities of life
and help with son” (Docket Entry 13 at 18). Earlier in the
hearing, Plaintiff testified that a friend would take her son to
school when Plaintiff did not feel well enough to drive (see Tr.
57), that she usually rode with someone else to church and the
grocery store (see Tr. 58), that her sister and a friend help her
with cooking, cleaning, and folding clothes (see Tr. 59-60), and
that her son’s father engages in physical activities with her son
(see Tr. 60). Thus, the witnesses’ testimony qualifies as
“repetitive [and] cumulative,” HALLEX, § I–2–6–6o(B), 1993 WL
751900, and the ALJ did not err in disallowing it.
Plaintiff further faults the ALJ for “stat[ing that
Plaintiff’s] testimony was credible” in the above-quoted colloquy
but then ultimately finding Plaintiff’s statements about the
“intensity, persistence, and . . . limiting effects” of her
symptoms “not consistent” with the record evidence. (Docket Entry
13 at 18 (referencing Tr. 23, 74-75).) The ALJ, however, did not
find all of Plaintiff’s testimony “credible,” but rather stated
38
that the ALJ “believe[d]” Plaintiff’s testimony, discussed above,
regarding the help she receives from her sister and her friend.
(See Tr. 75; see also Tr. 57-60.) The ALJ’s crediting of
Plaintiff’s testimony regarding the help she receives from others
clearly did not bind the ALJ to find the entirety of Plaintiff’s
statements about the intensity, persistence, and limiting effects
of her symptoms consistent with the record.
In light of that analysis, Plaintiff’s challenge to the ALJ’s
disallowance of Plaintiff’s witnesses fails.
10. New Evidence
Lastly, Plaintiff “seek[s] a remand on the basis of new
evidence under 42 U.S.C.A. § 405(g).” (Docket Entry 13 at 11; see
also id. at 8 (requesting remand “due to the existence of new and
material evidence and good cause for the failure to submit the
evidence previously”).) In support of that argument, Plaintiff has
attached new evidence to both her Motion/Brief and to her Reply.
(See Docket Entry 13 at 20-136; see also Docket Entry 17 at 17-40.)
As discussed below, Plaintiff’s proffered evidence does not meet
the standard for remand.
Under sentence six of Section 405(g), “a federal district
court] may at any time order additional evidence to be taken before
the Commissioner [ ], but only upon a showing that there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
39
proceeding.” 42 U.S.C. § 405(g) (emphasis added). “Evidence is
new within the meaning of [the Commissioner’s regulations] if it is
not duplicative or cumulative.” Wilkins v. Secretary of Dep’t of
Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991).
“Evidence . . . is material if there is ‘a reasonable probability
that the new evidence would have changed the outcome.’” Meyer v.
Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (quoting Wilkins, 953
F.2d at 96)).
The great majority of Plaintiff’s proffered evidence lacks
materiality, because it reflects treatment Plaintiff received in
the fall of 2019 and the first half of 2020 (see Docket Entry 13 at
20-41, 46-134; see also Docket Entry 17 at 17-40), which post-dates
the period adjudicated by the ALJ, i.e., September 7, 2016, to June
11, 2019 (see Tr. 27). Two records reflect treatment of Plaintiff
during the relevant period (see Docket Entry 13 at 42-25, 135-36);
however, Plaintiff has neither made any showing of materiality
regarding those documents nor provided the Court with any basis for
a finding of good cause for Plaintiff’s failure to incorporate such
evidence into the record while her case remained pending before the
ALJ (see Docket Entries 13, 17).
In short, Plaintiff’s new evidence does not entitle her to a
remand under sentence six of Section 405(g).
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III. CONCLUSION
Plaintiff has not established grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgement to Reverse, Revise or Remand Commissioner Decision
(Docket Entry 13 at 1-6) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 14) be granted, and that
judgment be entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 16, 2020
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