Brown v. Astrue

Filing 25

MEMORANDUM. Signed by Magistrate Judge Beth P. Gesner on 4/14/11. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CARLA LAVON BROWN

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Plaintiff,

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v.

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MICHAEL J. ASTRUE,
Commissioner of
Social Security,

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Defendant.
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Civil Action No. BPG-09-2327

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MEMORANDUM
Plaintiff, Carla Lavon Brown, brought this action pursuant
to 42 U.S.C. ' 405(g) for review of the final decision of the
Commissioner denying her claim for a period of disability and
disability insurance benefits (ADIB@) under Title II of the
Social Security Act, 42 U.S.C. ' 401, et seq. and supplemental
security income (“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. § 1382.

Currently pending are plaintiff=s Motion

for Summary Judgment and defendant=s Motion for Summary Judgment.
(ECF Nos. 16, 24.)

These motions have been referred to the

undersigned with the parties= consent, pursuant to 28 U.S.C. '
636 and Local Rule 301.
Rule 105.6.

No hearing is deemed necessary.

Local

For the reasons discussed below, the court denies

plaintiff=s motion for summary judgment and grants defendant=s
motion for summary judgment.

I.

Background
On May 18, 2005, plaintiff Carla Lavon Brown filed a claim

for a period of disability and disability insurance benefits
(“DIB”) and for Supplemental Security Income (“SSI”).
79, 93.)

(R. at 70-

Plaintiff alleged that she became disabled on May 1,

2005 due to severe lower back pain.

(R. at 97.)

After

plaintiff’s application was denied initially and upon
reconsideration (R. at 35-38, 42-45), plaintiff appeared for a
hearing before Administrative Law Judge (“ALJ”) Clay G. Guthridge
on May 2, 2006 (R. at 317-54).

In a decision dated August 12,

2006, ALJ Guthridge denied plaintiff’s application for benefits.
(R. at 18-25.)
On August 6, 2007, the Appeals Council held that there was
no basis for granting review of the ALJ’s decision.

(R. at 6-8.)

On June 5, 2007, plaintiff petitioned this court for judicial
review, and on August 12, 2008, Judge Gauvey issued an order
remanding the case to the Commissioner for further proceedings
consistent with her opinion.

(R. at 397-438.)

Judge Gauvey

found that ALJ Guthridge did not explain his decision to afford
little weight to the medical opinion of plaintiff’s treating
physician, Dr. Doshi, did not properly assess plaintiff’s
credibility as to the severity of her pain, and failed to
properly evaluate plaintiff’s obesity in determining the severity
of her impairments. (Id.)
2

Meanwhile, plaintiff had filed a second application for DIB
and SSI on October 4, 2006, alleging a disability onset date of
August 13, 2006.

(R. at 533-37, 540-43.)

After this application

was also denied initially and upon reconsideration (R. at 499502, 505-09, 511-15), plaintiff appeared for a hearing before ALJ
Melvin D. Benitz on May 8, 2008 (R. at 935-57).

ALJ Benitz

denied plaintiff’s application for benefits in a decision dated
June 9, 2008.

(R. at 387-95).

Plaintiff filed a third application for DIB and SSI on June
24, 2008 (R. at 792-99, 826), which was again denied initially
and upon reconsideration (R. at 764-74).

On October 20, 2008,

the Appeals Council vacated the August 12, 2006 and June 9, 2008
ALJ decisions and consolidated all three of plaintiff’s
applications.

(R. at 441-42.)

On March 19, 2009, plaintiff

appeared for a remand hearing before ALJ Benitz.

(R. at 958-76.)

Plaintiff was represented at the hearing by Monique Lee, Esq.
(Id.)

In a decision dated July 1, 2009, ALJ Benitz denied

plaintiff’s claim for benefits.1

(R. at 359-74.)

Plaintiff now petitions this court for summary judgment
reversing the ALJ’s July 1, 2009 decision and awarding plaintiff
the benefits she has requested.

(ECF No. 16.)

1

Alternatively,

While the Appeals Council’s denial of review of ALJ Benitz’s
July 1, 2009 decision does not appear in the record, “the
Commissioner has acknowledged that this Court has subject matter
jurisdiction to review the Commissioner’s final decision in this
case.” (Def.’s Mem., ECF No. 24-1 at 2.)
3

plaintiff requests that this court remand the matter to the
Social Security Administration for further proceedings.
II.

(Id.)

Standard of Review
The role of this court on review is to determine whether the

ALJ applied correct legal standards and whether substantial
evidence supports the ALJ=s decision.
1453, 1456 (4th Cir. 1990).

Hays v. Sullivan, 907 F.2d

Substantial evidence is that which

Aa reasoning mind would accept as sufficient to support a
particular conclusion.@

Laws v. Celebrezze, 368 F.2d 640, 642

(4th Cir. 1966); accord Shively v. Heckler, 739 F.2d 987, 989
(4th Cir. 1984).

It is more than a scintilla but less than a

preponderance of the evidence.

Id.

It is evidence sufficient to

justify a refusal to direct a verdict if the case were before a
jury.

Hays, 907 F.2d at 1456.

In reviewing for substantial

evidence, the court does not weigh conflicting evidence, make
credibility determinations, or substitute its judgment for that
of the ALJ.

Id.

In determining whether a claimant is disabled, the
Commissioner has promulgated regulations that set forth the
following five-step analysis.

20 C.F.R. '' 404.1520, 416.920;

Bowen v. Yuckert, 482 U.S. 137 (1987).
(1)

The ALJ determines whether the claimant is engaged in
substantial gainful activity as defined in 20 C.F.R. '
404.1571 and ' 416.971 et seq. If so, the claimant is

4

not disabled.
(2)

If not, the ALJ examines the physical and/or mental
impairments alleged by the claimant and determines
whether these impairments meet the durational and
severity requirements set forth in 20 C.F.R. ' 404.1520
and ' 416.920. If not, the claimant is not disabled.

(3)

If so, the ALJ considers whether the impairment or
impairments, either severally or in combination, meet
or equal an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, known as the Listing of
Impairments. If so, the claimant is disabled.

(4)

If not, the ALJ considers whether the claimant retains
the residual functional capacity (ARFC@) to do past
relevant work (APRW@). If so, the claimant is not
disabled.

(5)

If not, the ALJ determines whether the claimant is
capable of some other work based on the claimant=s RFC,
age, education, and past work experience. The
Commissioner bears the burden of proof at step five.
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If
the claimant is not capable of other work, the claimant
is disabled.

III. Discussion
In her memorandum in support of her motion for summary
judgment, plaintiff argues that the ALJ did not comply with Judge
Gauvey’s August 12, 2008 remand Order.

(ECF No. 16-1 at 5-9.)

Specifically, plaintiff claims that the ALJ:

(1) did not

properly evaluate the medical source opinions of Dr. Kurup, Dr.
Barrish, Dr. Doshi, and Dr. Parmar; (2) did not apply the correct
standard in assessing plaintiff’s credibility; and (3) did not
properly consider plaintiff’s obesity.

(Id.)

In addition,

plaintiff challenges the ALJ’s hypothetical question to the
vocational expert (“VE”) as “inconsistent with the impairments
5

found to be severe and inconsistent with Dr. Barrish’s pRFC.”
(Id. at 10-11.)
A. The ALJ’s Evaluation of the Medical Source Opinions
Plaintiff challenges the ALJ’s reliance on the medical
source opinion of Dr. Ajit Kurup, M.D., who conducted a
consultative physical examination of plaintiff on January 20,
2007 at the request of the Maryland Disability Determination
Services (“DDS”).

(R. at 705.)

Dr. Kurup observed that

plaintiff ambulated “with moderate difficulty” but did not
require an assistive device.

(R. at 706.)

Dr. Kurup also noted

that plaintiff “had some difficulty getting on and off the
examination table,” as well as moderate difficulty getting
dressed and undressed.

(R. at 706-07.)

Dr. Kurup noted that a

“straight leg raising test was strongly positive at 30 degrees
bilaterally.”

(R. at 707.)

Dr. Kurup found that plaintiff had

“significant difficulty lying flat on the examination table,”
moderate difficulty walking on her heels and toes, and “severe
difficulty squatting.”

(Id.)

Dr. Kurup concluded that plaintiff

“is not in a position to perform jobs that require mild to
moderate exertion of her lower back”

(Id.)

Plaintiff claims that the ALJ “tried to create a pRFC
[physical residual functional capacity] out of thin air” for Dr.
Kurup and that Dr. Kurup “expressed no discernible medical
opinion.”

(ECF No. 16-1 at 5, 7.)
6

The Commissioner responds

that “the ALJ never implied that Dr. Kurup issued an RFC” and
asserts that Dr. Kurup’s assessment constituted a medical
opinion, upon which the ALJ properly relied as consistent with
Dr. Kurup’s observations of plaintiff during her examination.
(ECF No. 24-1 at 13.)
Plaintiff’s argument that the ALJ “created a pRFC out of
thin air” for Dr. Kurup is unavailing.

The Agency regulations

define residual functional capacity as “the most [a claimant] can
do despite [his or her] limitations . . . based on all the
relevant evidence in [the] record.”

20 C.F.R. § 404.1545(a).

Medical opinions, on the other hand, “are statements from
physicians . . . that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including . . .
symptoms, diagnosis and prognosis, what [the claimant] can still
do despite impairment(s), . . . and [the claimant's] physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(2).

Dr. Kurup’s

conclusion that plaintiff “is not in a position to perform jobs
that require mild to moderate exertion of her lower back”
reflects Dr. Kurup’s judgment as to the nature and severity of
plaintiff’s back pain, specifically her physical restrictions as
a result of such pain and, accordingly, constitutes a “medical”
opinion within the meaning of 20 C.F.R. § 404.1527(a)(2).
In addition to challenging the ALJ’s reliance on the

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consultative examiners,2 plaintiff also argues that the ALJ did
not evaluate the medical opinions of her treating physicians in
accordance with this court’s August 12, 2008 remand Order.

A

treating physician’s medical opinion will be given controlling
weight if it is Awell-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] record.@

20 C.F.R. '

404.1527(d)(2); Craig v. Chater, 76 F.3d 585, 590 (4th Cir.
1996).

If the ALJ determines that a treating physician=s opinion

is not entitled to controlling weight, the ALJ must determine
what weight, if any, to give that opinion and give Agood reasons@
for that decision.

20 C.F.R. ' 404.1527(d)(2).

In determining

how much weight to give a medical opinion, the ALJ should
consider (1) the length of the treatment relationship and
frequency of examination, (2) the nature and extent of treatment,
(3) the evidence supporting the opinion, (4) the consistency of
the opinion with the record as a whole, and (5) the physician=s
specialization.

20 C.F.R. ' 404.1527(d)(1-6).

In her remand Order, Judge Gauvey held that the ALJ failed
to fully explain his decision to afford plaintiff’s treating

2

Plaintiff’s argument that the ALJ’s hypothetical question
to the VE was not consistent with consultative examiner Dr.
William Barrish’s medical opinion (ECF No. 16-1 at 5) is
discussed in § II.E, infra.
8

physician, Dr. Nehal Doshi, M.D., less than controlling weight.3
(R. at 414-24.)

Judge Gauvey found that the ALJ failed to

evaluate the consistency of Dr. Doshi’s opinion with the record,
did not address whether Dr. Doshi’s findings were supported by
the laboratory and medical evidence, and failed to consider the
nature and extent of Dr. Doshi’s treatment of plaintiff.
416.)

(R. at

Judge Gauvey instructed the ALJ to properly evaluate Dr.

Doshi’s opinion on remand according to the factors articulated in
the Agency regulations.
Plaintiff suggests that the ALJ did not comply with the
remand Order in evaluating Dr. Doshi’s medical opinion.4
No. 16-1 at 5-6.)

(ECF

The Commissioner responds that the ALJ

explained his decision to accord Dr. Doshi’s opinion less than
controlling weight and properly applied the criteria in 20 C.F.R.
§ 404.1527(d).

(ECF No. 24-1 at 14-15.)

3

Dr. Doshi completed a Medical Assessment of Ability to do
Work-Related Activities (Physical) on April 18, 2006, in which he
found that plaintiff could lift three pounds, stand and/or walk
for 10-15 minutes, sit for a half hour without interruption and
one hour total, occasionally climb, balance, stoop, kneel, or
crawl but could never crouch, is limited in her ability to push
and pull, and has an environmental restriction of no vibration.
(R. at 309-11.) The VE who testified at plaintiff’s initial
hearing found that no jobs existed in the local or national
economy for an individual with functioning as limited as that
described by Dr. Doshi. (R. at 350-52.)
4

While plaintiff does not expressly argue that the ALJ
erred in assessing Dr. Doshi’s opinion on remand, the
Commissioner responded to this argument in his motion, so the
court will address it.
9

The ALJ adequately explained his decision to afford Dr.
Doshi’s decision less than controlling weight.

The ALJ stated

that, while he recognized that Dr. Doshi was a treating
physician, he declined to give Dr. Doshi’s opinion controlling
weight, “as it is not well supported by the medical signs and
laboratory findings” and “is inconsistent with other substantial
evidence of record.”

(R. at 370.)

The ALJ noted that Dr.

Doshi’s assessment of plaintiff’s limitations was based solely on
plaintiff’s pre-surgical May 2005 MRI.

(Id.)

The ALJ further

explained that Dr. Doshi’s opinion was inconsistent with the
contemporaneous treatment records of plaintiff’s other treating
physicians, Dr. Malik, Dr. Fox, and Dr. Nateson,5 “which
consistently revealed no neurological deficits.”6

(Id.)

While

5

The court notes that, while this misstatement is not a
basis for a remand, Dr. Nateson did not treat plaintiff
contemporaneously with Dr. Doshi. Dr. Nateson was plaintiff’s
primary care physician and last treated her in 2005, before her
surgery.
6

Dr. Malik reviewed plaintiff’s post-operative May 9, 2006
MRI, which “revealed minor degenerative disc disease and adequate
fusion.” (R. at 357.) Plaintiff saw Dr. Malik’s Nurse
Practitioner, Mary Ryan, on July 14, 2006, who reported that
plaintiff’s lumbar spine was “nontender to palpitation,” muscle
strength and range of motion were normal, and a “straight leg
raise test was negative bilaterally.” (R. at 657.)
On August
25, 2006, Ryan reported “trigger point tenderness” in the lumbar
spine, a straight leg raise test was positive on the left, but
muscle strength and range of motion remained within normal
limits. (R. at 653.)
Dr. Fox, who treated plaintiff for pain
management on March 30, 2007, reported that, while plaintiff
complained of increased pain and had some “diffuse tenderness” in
the lower back, her gait and strength were normal and her
neurologic examination revealed “no areas of decreased
10

the ALJ did not expressly address the nature and extent
plaintiff’s treatment relationship with Dr. Doshi, the ALJ noted
that Dr. Doshi had not seen plaintiff since April 13, 2006 and
earlier in his opinion, discussed the only two records of Dr.
Doshi’s treatment of plaintiff:

on February 23, 2006, Dr. Doshi

reported that plaintiff “feels well” and that her “physical
examination was within normal limits,” and on April 13, 2006, Dr.
Doshi reported that plaintiff’s “physical examination was
unremarkable.”

(R. at 367-68, 370.)

In short, the ALJ’s

decision to afford Dr. Doshi’s opinion less than controlling
weight was supported by substantial evidence.
Plaintiff also contends that the ALJ did not properly
evaluate the medical opinion of Dr. Mandip Parmar, M.D., a pain
management specialist who began treating plaintiff in May 2007.
(ECF No. 16-1 at 6-7.)

Dr. Parmar completed a Medical Assessment

of Ability to do Work-Related Activities (Physical) for plaintiff
on April 16, 2008, and a second one on February 13, 2009.
734-36, 485-87.)

(R. at

According to the VEs who testified at

plaintiff’s May 8, 2008 and March 19, 2009 hearings, plaintiff’s
limitations as described by Dr. Parmar would have eliminated all
hypothetical work in the national economy.

(R. at 956, 975.)

The Commissioner responds that the ALJ explained his decision to
afford Dr. Parmar’s opinions little evidentiary weight.

sensation.”
11

(ECF No.

24-1 at 15-16.)
The ALJ adequately explained his decision not to give Dr.
Parmar’s assessments controlling weight, noting that Dr. Parmar’s
decision was not supported by the medical and laboratory evidence
and was inconsistent with the overall record, including his own
treatment notes.

(R. at 370-71.)

Specifically, the ALJ noted,

and the record reveals, that Dr. Parmar cited no medical evidence
to support his conclusions regarding plaintiff’s functional
limitations.

(Id.)

In addition, the ALJ cited to Dr. Parmar’s

progress notes from plaintiff’s monthly visits spanning the
period from July 13, 2007 through January 29, 2009, which the ALJ
concluded “consistently show that plaintiff’s back pain was
stable.”7

(R. at 371.)

Specifically, the ALJ pointed to

plaintiff’s statements to Dr. Parmar that her pain fluctuated,
that she experienced moderate relief with medication, that she
“was able to go some days without taking” her medication, and
that an onset of severe back pain corresponded with her not
taking her medication for two weeks.

(Id.)

In sum, the ALJ’s

decision not to accord Dr. Parmar’s assessment controlling weight
was supported by substantial evidence.
7

Dr. Parmar’s clinical impression of plaintiff’s lower back
pain was marked “stable” on all of the progress notes from her
visits during the period from July 13, 2007 to January 29, 2009
(with the exception of an April 16, 2008 progress note, which
indicated that plaintiff’s pain was “worsening” (R. at 738)).
(R. at 471-84, 722-33, 739-48. 921-26.) On August 10, 2007, Dr.
Parmar’s impression was that plaintiff’s pain was “stable” and
12

B. Evaluation of Plaintiff’s Credibility
Judge Gauvey’s remand Order directed the ALJ to properly
consider plaintiff’s credibility concerning her allegations of
pain according to the two-step process articulated by the Fourth
Circuit in Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996).
This test requires the ALJ to first determine whether there is
objective evidence showing the existence of a medical impairment
that could reasonably produce the pain alleged.

Id.

Second,

once the ALJ concludes that a claimant has a medical impairment
that can reasonably be expected to produce the pain claimed, the
ALJ must evaluate the intensity and persistence of claimant=s
alleged pain based on all the evidence in the record.
595.

Id. at

Factors to be considered at step two of the credibility

analysis include:

(1) the claimant=s daily activities; (2) the

location, duration, frequency, and intensity of the pain or other
symptoms; (3) precipitating or aggravating factors; (4) the type,
dosage, effectiveness, and side effects of medication; (5)
treatments and other measures taken for relief; and (6) other
factors concerning functional limitations and restrictions.

20

C.F.R. ' 404.1529(c)(3).
Plaintiff argues that the ALJ contravened the court’s remand
Order by using a different “truncated” standard to assess
plaintiff’s credibility.

“improving.”

(ECF No. 16-1 at 8-9.)

(R. at 723.)
13

Specifically,

plaintiff criticizes the following statement by the ALJ:
[O]nce an underlying physical or mental impairment(s)
that could reasonably be expected to produce the
claimant’s pain or other symptoms has been shown, the
undersigned must evaluate the intensity, persistence, and
limiting effects of the claimant’s ability to do basic
work activities. For this purpose, whenever statements
about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the
undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case
record.
The first sentence of this statement is an accurate
reflection of step two of the credibility analysis articulated in
Craig.

The second sentence is entirely consistent with the

Agency regulations at 20 C.F.R. §§ 404.1529 and 416.929, which
direct the ALJ to evaluate a claimant’s subjective complaints of
pain based on the entire case record.8
Plaintiff also criticizes the ALJ’s statement that “[i]n
resolving conflicts in the medical evidence, the undersigned
gives greater weight to the claimant’s statement made to treating
medical sources for the purposes of actual medical treatment than
to her self-serving statements at the hearing.”
8 (citing R. at 368).)

(ECF No. 16-1 at

Plaintiff asserts the ALJ’s decision to

8

“In determining whether you are disabled, we consider all
your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence. . . . In
evaluating the intensity and persistence of your symptoms,
including pain, we will consider all of the available evidence,
including your medical history, the medical signs and laboratory
findings and statements about how your symptoms affect you.” 20
14

give “greater deference to the excited utterances made to
treating and examining physicians” was not addressed in the
court’s remand Order.

(Id.)

As the Commissioner argues, it is

inaccurate to characterize statements made during non-emergent
visits to a doctor for treatment as “excited utterances.”
No. 24-1 at 18.)

(ECF

Moreover, it was logical for the ALJ to afford

“more weight to the contemporaneous statements [plaintiff] made
to her doctors for the purpose of treatment than to her selfserving statements at the hearing.”

(Id.)

A review of the ALJ’s opinion reveals that he properly
addressed each of the factors at step two of the credibility
analysis.

As to the first factor, the claimant’s daily

activities, the ALJ stated that on a typical day, plaintiff
“takes a shower, eats breakfast, and just lies in her bedroom,”
and that she “walks around” and “watches television or reads.”
(R. at 366.)

He also stated that she “goes out with a friend”

and “attends religious services once or twice a month” but is
“unable to sit throughout the two-hour service.”

(Id.)

The ALJ

also noted that plaintiff straightens up her room and cleans up
after herself, washes dishes, prepares light meals, and “drives
locally for errands” but “has trouble driving long distances or
taking a bus due to the shaking.”

(Id.)

The ALJ further noted

that during her post-operative physical therapy, plaintiff stood

C.F.R. §§ 404.1529(a) and 416.929(a).
15

at an auction and attended a party.

(R. at 369.)

The ALJ

determined that plaintiff’s ability to perform these activities
was “inconsistent with her complaints of severe and unrelenting
pain and significant functional limitations.”

(Id.)

As to the location, duration, frequency, and intensity of
plaintiff’s pain, the ALJ described how plaintiff’s lower back
pain “feels like a pressure or heaviness” and that "[i]f she sits
for too long, it feels like a ball of pain which travels down her
hips into her buttocks, legs, and thighs.”

(R. at 366.)

The ALJ

explained that plaintiff occasionally experiences a “stabbing
pain” in her hips that is “constant” and a “burning pain” in her
hips that “occurs a couple of times a week.”

(Id.)

The ALJ

further noted that plaintiff’s “pain level was 8/10” before her
last hearing “but is now off the meter.”

(Id.)

The ALJ also acknowledged precipitating or aggravating
factors of sitting, standing, and walking, as well as “lying flat
on her back too long” and lying on her right side.

(Id.)

As to

medications, the ALJ stated that plaintiff was taking Ultram and
Flexeril and noted that “[p]ain medications help her neck, but do
not help her back.”

(Id.)

The ALJ noted that while plaintiff

claims to experience drowsiness from her pain medications, there
is no evidence in the record that she reported any significant
side effects to her doctors.

(R. at 369).

The ALJ further noted

that plaintiff presented no evidence of impairment in cognitive

16

functioning as a result of her medications.

(Id.)

The ALJ

considered treatment and other measures plaintiff has taken for
relief when he observed that plaintiff “underwent back surgery in
October 2005” and “has received physical therapy and injections,
with no relief.”

The ALJ also stated that plaintiff has “tried

heating pads and ice backs” to alleviate her pain “but nothing
really helps.”

(R. at 366.)

In reviewing the ALJ’s decision, it should be noted that it
is not the court’s role in reviewing for substantial evidence to
re-weigh conflicting evidence, make credibility determinations,
or substitute its judgment for that of the ALJ.
76 F.3d 585, 589 (4th Cir. 1996).

Craig v. Chater,

Based on the above, the

undersigned finds that the ALJ considered and applied each of the
requisite step two factors and concluded that “the record does
not disclose significant or persistent findings consistent with
[plaintiff’s] subjective allegations of disabling pain or
significant functional limitations.”

(R. at 369.)

Plaintiff takes issue with the ALJ’s failure to mention her
good work record.

(Id. at 9 (citing 20 C.F.R. § 404.1529(c)(3);

Steffanick v. Heckler, 570 F. Supp 420 (D. Md. 1983) (claimant’s
statements concerning his pain “should not be disregarded
lightly” where he has a substantial record).)

CFR §

404.1529(c)(3) states that “[w]e will consider all of the
evidence presented, including information about your prior work

17

record, your statements about your symptoms, evidence submitted
by your treating or nontreating source, and observations by our
employees and other persons.”

Accordingly, while the ALJ did not

expressly note plaintiff’s work history in assessing her
credibility, the ALJ stated in his opinion that plaintiff had
past relevant work as a corrections officer, telemarketer, and
office clerk, which suggests that he was aware of plaintiff’s
work history.

(ECF No. 24-1 (citing R. at 373).)

Moreover, a

claimant’s work history is only one factor among many to be taken
into consideration.

As discussed above, the ALJ addressed each

of the other factors set forth in the regulations for assessing
plaintiff’s credibility.

In addition, the Steffanick case cited

by the plaintiff is readily distinguishable from the instant case
in that there, the plaintiff’s complaints of pain were supported
by direct, uncontradicted medical evidence and the need for major
surgical procedures, and the ALJ had based his credibility
determination in part on an improper “sit and squirm” test.
Steffanick, 570 F. Supp. at 426-27.

In sum, the ALJ’s conclusion

as to plaintiff’s credibility regarding her complaints of pain
was supported by substantial evidence and consistent with the
court’s remand Order.
C. The ALJ’s Evaluation of Plaintiff’s Obesity
Plaintiff also asserts that the ALJ’s evaluation of her
obesity contravened the court’s remand Order, which directed the
18

ALJ to consider the effects of plaintiff’s obesity on her
condition.

(ECF No. 16-1 at 9.)

Specifically, plaintiff claims

that, while the ALJ acknowledged that plaintiff’s obesity was
severe, he did not properly apply the criteria in SSR 02-1p,
which requires that more consideration be given to a claimant’s
weight where, as here, a weight-bearing joint is involved.

(Id.)

The Commissioner responds that plaintiff failed to discharge her
burden of proving any additional limitations that the ALJ failed
to identify that are attributable to plaintiff’s obesity.

(ECF

No. 24-1 at 20-21 (citing Pass v. Chater, 65 F.3d 1200, 1203 (4th
Cir. 1995) (plaintiff bears burden of production and proof at
first four steps of five-step disability analysis).)
The ALJ properly considered plaintiff’s obesity, including
its effects in combination with plaintiff’s other impairments.
The ALJ found that, while plaintiff’s obesity was a severe
impairment, “it does not prevent [plaintiff] from ambulating
effectively or breathing properly” and no evidence suggests that
it has limited plaintiff’s gross or fine motor movements.
369.)

(R. at

The ALJ found that there are “no medical conditions

associated with [plaintiff’s] obesity” and “[n]o physician has
indicated that weight loss would ameliorate her symptoms” or
otherwise advised her to lose weight.

(Id.)

In sum, the ALJ’s

conclusion that the cumulative effect of plaintiff’s obesity and
other impairments did not limit her ability to work was supported

19

by substantial evidence.
D.
The ALJ’s Inclusion of Nonexertional Limitations in
Plaintiff’s RFC
The ALJ found that plaintiff was limited to jobs that are
“simple, routine, and unskilled, with low stress, low memory, and
low concentration” and “are classified as SVP9 1 or 2.”
365.)

(R. at

Plaintiff argues that it is unclear which of her

impairments warranted the inclusion of these nonexertional
limitations in the ALJ’s RFC.

(ECF No. 16-1 at 10.)

As the Commissioner argues, the inclusion of these
limitations in plaintiff’s RFC is consistent with Dr. Barrish’s
finding that, while plaintiff’s “cognition was within normal
limits,” “taking narcotic pain medications might affect her
higher level of cognitive functioning.”
at 371.)

(ECF No. 24-1 at 21; R.

Moreover, these limitations flow naturally from

plaintiff’s complaints of disabling pain and, if anything,
“accrue to her benefit” because they limit her to less demanding
work.

(ECF No. 24-1 at 21.)

As the ALJ’s finding of these

limitations is supported by evidence in the record, and as
plaintiff has alleged no harm as a result of the ALJ’s purported
error, there is no basis for remand on this issue.

9

SVP refers to “Specific Vocational Preparation,” which is
defined as “the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific
job-worker situation.” Dictionary of Occupational Titles (DOT)
20

E. The ALJ’s Hypothetical Question
Plaintiff argues that the ALJ’s hypothetical question was
not consistent with the medical opinion of consultative examiner
Dr. William Barrish, M.D., which the ALJ afforded considerable
weight in determining plaintiff’s RFC.

(R. at 371.)

Dr. Barrish

found that plaintiff could “occasionally” crawl, crouch, and
stoop.

(R. at 910.)

Plaintiff argues that the ALJ’s

hypothetical question to the VE who testified at plaintiff’s
hearing did not include any postural limitations.
at 5.)

(ECF No. 16-1

As defendant argues, however, there is no error in the

ALJ’s omission because none of the occupations the VE identified
as suitable for an individual with plaintiff’s limitations
require a worker to perform any postural activities.

(ECF No.

24-1 at 22 (citing Dictionary of Occupational Titles (DOT) §§
209.587-010 (addresser); 209.567-014 (food and beverage order
clerk); 017.684-010 (taper, printed circuit layout) (4th rev. ed.
1991)).)
Plaintiff also complains that Dr. Barrish’s statement that
plaintiff needs “frequent rest periods” was not clear and was not
reflected in the ALJ’s hypothetical. (ECF No. 16-1 at 5, 10-11.)
Plaintiff is referring to Dr. Barrish’s statement in his medical
evaluation that plaintiff “could sit for 6 to 8 hours per day,
although frequent position changes will be necessary.

Appendix C (4th rev. ed. 1991).
21

Standing

and walking could be done 2 to 4 hours per day and, once again,
with frequent rest breaks and position changes.”

(R. at 910.)

Dr. Barrish was opining that plaintiff would need frequent rest
breaks from sitting, standing, and walking, which was reflected
in the statement in the ALJ’s hypothetical that plaintiff could
“stand for 30 minutes, sit for 30 minutes, on a consistent basis,
on an alternative basis five days a week.”10

(R. at 973.)

Accordingly, plaintiff’s argument that the ALJ’s hypothetical did
not comport with Dr. Barrish’s opinion as to her limitations is
unavailing.

In sum, the arguments advanced by plaintiff as to

the ALJ’s hypothetical question do not warrant a remand.
IV.

Conclusion
For the foregoing reasons, the court denies plaintiff’s Motion

for Summary Judgment (ECF No. 16) and grants defendant’s Motion for
Summary Judgment (ECF No. 24).

A separate order shall issue.

_____/s/______________________
Beth P. Gesner
United States Magistrate Judge

Date: 04/14/2011

10

Plaintiff contends that the word “‘frequent’ is a term of
art in SSA proceedings” that “generally means two thirds of the
working day.” (ECF No. 16-1 at 10 (citing R. at 915).)
Plaintiff cites for this proposition the standard SSA pRFC form,
in which the word “frequently” is an option, along with
“occasionally” and “never,” that a physician may select when
assessing a claimant’s postural limitations. It is obvious,
based on the context of Dr. Barrish’s statement, that he was not
using “frequent” in this technical manner.
22