Pickett v. Astrue

Filing 33

ORDER denying 24 Plaintiff's Motion for Judgment on the Pleadings and granting 29 Commissioner's Motion for Judgment on the Pleadings, and the final decision of the Commissioner is affirmed. Signed by District Judge James C. Dever, III on 9/22/11. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

7: lO-CV-190-D

CAROLYN PICKETT,
Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER

Carolyn Dixon Pickett ("plaintiff' or "claimant") appeals the final decision of the
Commissioner ofSocial Security ("Commissioner") denying her application for a period ofdisability
and disability benefits ("benefits"). Each party has filed a motion for judgment on the pleadings.
[D.E. 24, 29]. As explained below, the court grants the Commissioner's motion for judgment on the
pleadings, denies plaintiffs motion, and affmns the final decision of the Commissioner.
I.

Plaintiff applied for benefits on June 1,2006, alleging a disability onset date ofFebruary 28,
2005, due to a lower back injury. R. at 12, 105-15. Her application was denied initially and upon
reconsideration, and a request for a hearing was timely filed. Id. at 12, 38-55, 57-64, 66. On
September 18,2008, an Administrative Law Judge ("AU") held a video hearing regarding plaintiff s
application for benefits. Id. at 19-31.
On October 14, 2008, the AU issued a decision denying plaintiff s application. Id. at 12-18.
On December 12, 2008, plaintiff timely requested review. Id. at 7. On July 30, 2010, the Appeals
Council denied the request for review. Id. at 1-3. On September 24, 2010, plaintiff timely filed this
action for judicial review. See 42 U.S.C. § 405(g).
II.

The Social Security Act ("Act") defines disability as the "inability to engage in any
substantial gainful activity by reason ofany medically determinable physical or mental impainnent
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." 42 U.S.C. § 423(d)(l)(A); Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995). The regulations under the Act ("Regulations") provide a five-step
analysis that the AU must follow when detennining whether a claimant is disabled. Essentially, this
process requires the AU to consider whether a claimant (1) is engaged in substantial gainful
employment; (2) has a severe impairment; (3) has an impairment that meets or equals the
requirements ofa listed impairment; (4) possesses the residual functional capacity ("RFC") to return
to his past relevant work; and (5) if not, whether he can perform other work in light of his age,
education, work experience, and RFC. See 20 C.F.R. § 404.l520(a)(4). The claimant bears the
burden of proof at steps one through four, but the burden shifts to the Commissioner at step five.
See,~,

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Pass, 65 F.3d at 1203.

Applying the five-step analysis of20 C.F.R. § 404. 1520(a)(4), the ALJ made the finding at
step one that plaintiff had not engaged in substantial gainful activity since February 28, 2005, the
alleged disability onset date. R. at 14 , 2. At step two, the ALJ found that plaintiff had the
following medically determinable impairments which were severe within the meaning of 20 C.F.R.

§ 404.1520(c): degenerative disc disease and degenerative joint disease. Id. at 14,3. At step three,
however, the ALJ found that plaintiff's impairments did not meet or medically equal any of the
listings. Id. at 14,4.
The ALJ determined that plaintiff had the RFC "to perform the full range of light work.'"
Id. at 14, 5. Based on this RFC, the ALJ found at step four that plaintiff could not perform any past
relevant work. Id. at 17 , 6.

1

The Regulations define light work as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying ofobjects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most ofthe time with some pushing and pulling
of arm or leg controls. To be considered capable ofperforming a full or wide range
of light work, you must have the ability to do substantially all of these activities.

20 C.F.R. § 404.1 567(b).
2

At step five, the ALl detennined that the Medical-Vocational Guidelines are controlling. Id.
at 17,9. Based on plaintiff's RFC and the vocational factors of her age, education, and previous
work experience, the ALl found that there were a significant nwnber ofjobs in the national economy
that plaintiff could perfonn. Id. at 17, 10. Accordingly, the ALl found plaintiff not disabled during
the relevant period. Id. at 17 , 11.

m.
In reviewing the parties' cross-motions for judgment on the pleadings, the court ''must uphold
the factual findings of the [ALl] if they are supported by substantial evidence and were reached
through application ofthe correct legal standard." Craigv. Chater, 76 F.3d 585, 589 (4th Cir. 1996);
see 42 U.S.C. § 405(g). "Substantial evidence" is "more than a mere scintilla of evidence but may
be somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Under the substantial evidence standard, the court may not "undertake to re-weigh conflicting
evidence, make credibility detenninations, or substitute [its] judgment for that ofthe [ALl]." Craig,
76 F.3d at 589. Before the court can detennine whether a decision is supported by substantial
evidence, it must ascertain whether the Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative evidence. See, e.g., Sterling Smokeless Coal
Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "ludicial review ofan administrative decision
is impossible without an adequate explanation ofthat decision by the administrator." DeLoatche v.
Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Plaintiff contends that the ALJ's decision should be reversed because: (1) the ALl did not
properly assess several medical opinions and plaintiff's credibility in detennining her RFC, and (2)
the ALl erroneously applied the Medical-Vocational Guidelines. PI. Mem. Supp. Mot. J. Plead.
10-26. She argues that a proper evaluation of the evidence establishes that she is precluded from
working due to her inability to stand, sit, or maintain any posture for prolonged periods oftime. She
also cites her need to change positions and move around for relief of her back pain and her need
otherwise to take unscheduled breaks away from the work station. Id.

3

A.

The principles governing plaintiff's challenges to the weight given the opinions at issue are
well defined. Opinions of physicians who have treated a claimant are generally accorded more
weight than the opinions ofphysicians lacking a treatment relationship. 20 C.F.R. § 404. I 527(d)(2).
After all, the treating sources are likely to be those "most able to provide a detailed, longitudinal
picture of . . . [a claimant's] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or from reports
ofindividual examinations, such as consultative examinations or briefhospitalizations." Id. Indeed,
the Regulations provide that opinions of treating physicians on the nature and severity of
impairments are to be accorded controlling weight ifthey are well supported by medically acceptable
clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial
evidence in the record. 20 C.F.R. § 404.1527(d)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924
F. Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. R. 96-2p, 1996 WL374188, at *2 (July 2, 1996). But
"[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating
source if it is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or if it is inconsistent with the other substantial evidence in the case record." Soc. Sec.
R. 96-2p, 1996 WL 374188, at *2. Indeed, "if a physician's opinion is not supported by clinical
evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly
less weight." Craig, 76 F.3d at 590; Gray v. Astrue, Civ. Act. No. CBD-I0-1304, 2011 WL
2912789, at *3 (D. Md. July 15, 2011).
When the medical opinions of the treating source are not given controlling weight, the
Regulations prescribe factors to consider in determining the weight to be ascribed, including the
length and nature of the treating relationship, the supportability of the opinions through relevant
evidence and explanation by the source, the consistency of the opinions with the record, and any
specialization of the provider. 20 C.F.R. § 404.1527(d)(2)-(6). An AU's decision "must contain
specific reasons for the weight given to the treating source's medical opinion, supported by the
evidence in the case record, and must be sufficiently specific to make clear to any subsequent

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reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons
for that weight." Soc. Sec. R. 96-2p, 1996 WL 374188, at ·5.
Similarly, the opinions ofphysicians who examine a claimant are generally entitled to more
weight than those of such providers who did not perform an examination. See 20 C.F.R. §
404.1527(d)(l), (2); Soc. Sec. R. 96-6p, 1996 WL 374180, at ·2 (July 2, 1996). The weight
ultimately attributed to medical opinions ofnonexamining sources depends on the same factors, to
the extent applicable, used to evaluate the medical opinions of treating sources. 20 C.F .R. §
404. 1527(f). In addition, ifapplicable, the status ofthe nonexamining source (such as a state agency
medical consultant or medical expert used by the Commissioner) is to be considered. 20 C.F.R. §
404.1527(f). Unless the treating source's medical opinions are given controlling weight, the ALJ
must explain in his decision the weight given to the opinions of nonexamining sources as he must
do for treating source opinions. 20 C.F .R. § 404.1527(f)(2)(ii).
The same factors used to determine the weight to be accorded the opinions of physicians,
who are so-called "acceptable medical sources," apply to the opinions ofproviders who are deemed
to be at a different professional level, so-called "other sources," such as physician assistants. See
Soc. Sec. R. 06-03p, 2006 WL 2329939, at ·4-5 (Aug. 9, 2006); see also 20 C.F.R. § 404. 1527(d).
As with opinions from physicians, the ALJ "generally should explain the weight given to opinions

from these 'other sources,' or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome ofthe case." Soc. Sec. R. 06-03p,
2006 WL 2329939, at ·6.

Primary care physician Naseem Nasrallah, M.D. treated plaintiff from March 14, 1999,
through August 7, 2008. R. at 218-20, 285-98, 325-27, 332-35. In a statement dated June 17,
2008, he found that plaintiff is "limited in her ability to stand, sit, or maintain any posture for
prolonged periods of time and any work she might be able to do will have to accommodate the
flexibility to change positions and move about as needed to help moderate her lower back pain." Id.
at 331. Dr. Nasrallah also found that plaintiff "will likely require unscheduled breaks away from

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her work station" and that, despite treatment, she ''will have better and worse days that will impact
her ability to maintain a forty hour a week work schedule due to increased pain and limitations." Id.
Plaintiff contends that Dr. Nasrallah's opinions should have been given controlling weight.
The AL] gave Dr. Nasrallah's opinions limited weight and provided five reasons. [d. at 16.
First, the ALJ noted that Dr. Nasrallah did not elaborate on the basis for his determination of
plaintiff's limitations. Id.; see 20 C.F.R. § 404.1527(d)(3) ("The better an explanation a source
provides for an opinion, the more weight we will give that opinion."). Second, the ALJ noted that
the opinions were not based on functional testing. R. at 16. Moreover, contrary to plaintiff's
contention, the court does not believe this finding shows that the AL] incorrectly believed that
functional testing was necessary to validate Dr. Nasrallah's opinions. Rather, theALJ indicated that
the absence of such testing made the opinions less convincing, a manifestly proper consideration.
See 20 C.F.R. § 404. 1527(d)(2)(ii) ("We will look at ... the kinds and extent of examinations and
testing the source has performed or ordered from specialists and independent laboratories."), (d)(3)
("The more a medical source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that opinion.").
Third, the ALJ cited the "long break in treatment records" before Dr. Nasrallah rendered his
opinions. R. at 16. The AL] found that "[t]here was essentially a cessation of treatment between
2006 and May 2008, with minimal treatment in 2008 consisting primarily oflimited physical therapy
and some x-rays ofthe claimant's knees." Id. at 15. This break in treatment relates not only to the
extent of Dr. Nasrallah's treatment relationship with plaintiff, but also the consistency of his
opinions with the record as whole since the break in treatment tends to belie the severity of her
condition. See 20 C.F.R. § 404. 1527(d)(2)(i) ("[T]he longer a treating source has treated you and
the more times you have been seen by a treating source, the more weight we will give to the source's
medical opinion."), (d)(4); see also id. § 404.1528(c)(3 )(iv), (v) (establishing medication and other
treatment receive,d as factors in evaluating a claimant's symptoms).
Fourth, the ALl found that Dr. Nasrallah's opinions were inconsistent with her "general
activities." R. at 16; see 20 C.F.R. § 404. 1527(d)(4). Although plaintiff contends the term "general
6

activities" does not adequately identifY the activities referenced, it is clear to the court that the AU
is referring to his earlier finding that plaintiff's "daily activities include cooking, housework, grocery
shopping, reading, and walking." Id. at 15; see also id. at 28-30 (plaintiffs hearing testimony
regarding such activities), 223 (statement in report of rehabilitation specialist Manning that "Ms.
Pickett is able to accomplish all activities of daily living.',)?
Fifth, the AU found that Dr. Nasrallah's opinions are inconsistent with objective medical
evidence, including his own notes. Id. at 16; see 20 C.F.R. § 404.1527(c)(2), (d)(3), (4). Although
plaintiff argues that the ALJ did not adequately identify supporting evidence, the ALJ referenced the
extended summary and analysis ofthe objective medical evidence he presented in his decision. See
R. at 15-16. This summary includes a reference to Dr. Nasrallah's finding in a note dated May 27,
2008, two months after the date of his opinions, that plaintiffs back pain was "stable." Id. at 15
(citing id. at 335) ("In 2008, the claimant's back pain was noted to be 'stable' (i.e., Exhibit 17F).").
Moreover, the AU's determination that plaintiff is limited to work at the light exertionallevel
shows that he did not reject entirely the general notion evinced in Dr. Nasrallah's opinions that
plaintiffs back condition places limitations on her. Instead, the ALJ's determination substantiates
that the AU gave Dr. Nasrallah's opinions limited weight.

In sum, the court concludes that the ALJ did not err in according Dr. Nasrallah's opinions
limited weight. Thus, plaintiff s first challenge to the AU's RFC determination fails.
Alan Tamadon, M.D., a physician at a rehabilitation clinic, saw plaintiff three times during
January and February 2008 for a worker's compensation disability rating ofher back condition and
ultimately prescribed a transcutaneous electrical nerve stimulation or TENS unit for pain. Id. at
206-16. In an office visit note dated February 24, 2006, Dr. Tamadon made, among other findings,
the determination that plaintiff has "[p]ermanent work restrictions ofwork at light physical demand
level of no lifting greater than 20 lbs. occasionally, no lifting greater than 10 lbs. frequently or

The AU's fmding regarding plaintiffs activities of daily living also reflects his determination,
that her statements regarding her symptoms are not fully credible. See R. at 16.
2

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constantly." Id. at 207. This finding is consistent with the definition of light work in 20 C.F.R. §
404.1567(b). TheALl alluded to Dr. Tamadon'sassessmentofplaintiff, obviously giving it weight.
Id. at 16 ("[A] clinical examination showed ...." (citing Exhibit 6F». Nowhere in his note does

Dr. Tamadon expressly address plaintiff's ability to sit, stand, or walk. Although plaintiff argues
that the absence of any such references shows that Dr. Tamadon found her to be limited in these
areas, the ALI did not interpret Dr. Tamadon's findings in this manner, and the ALI's interpretation
was lawful.
Notably, Dr. Tamadon's other findings tend to negate the argument that he determined
plaintiff to have any such limitations. In addition to his light work finding, Dr. Tamadon found that
plaintiff was entitled to only a five percent permanent partial disability rating ofher back. Id. at 207.
Further, Dr. Tamadon's physical examination of plaintiff was largely benign. Id. at 206. As to a
recent Functional Capacity Evaluation ("FCE") ofplaintiff, he noted "patient's submaximal effort"
during the evaluation, id. at 207-an apparent reference to the conclusion in the FCE report that
"[d]ue to the amount of statistically identified submaximal effort and self-limiting behavior,
[Plaintiff's] true abilities may be greater than those demonstrated during [the] evaluation," id. at 181.
Thus, the court rejects plaintiff's challenge to the ALI's treatment of Dr. Tamadon's opinions.
Plaintiff also challenges how the ALI analyzed the physical RFC assessment of a
nonexamining state agency medical consultant, not identified as a physician, dated August 2, 2006.
Id. at 254-61. The assessment found plaintiff limited to light work, id. at 255

~

1-4, limited to

only occasional pushing and pulling with her left lower extremity, id. at 255 " 5-6, and limited to
only occasional climbing and stooping, id. at 256 ~ 1,3. The ALI stated of this assessment that
"[t]o the extent it is consistent with the [RFC] articulated above, it is given moderate weight." Id.
at 16. Plaintiff contends that the ALI should have given the finding ofan exertionallimitation with
respect to her lower left extremity greater weight.

In explaining the weight that he accorded this assessment, the ALI noted that it is more
consistent with the record than another state agency assessment finding plaintiff capable ofmedium

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work, which he rejected. Id. at 16, 316-23.3 With respect to the limitations beyond the light weight
limitation, the AU explained that these "additional limitations [are] not otherwise suggested or
consistent with clinical testing." Id. at 16. This explanation comports with the ALI's summary and
analysis of the objective medical evidence, including the evidence concerning plaintiff's lower
extremities, the absence of acute findings from x-rays of plaintiff' s knees in 2006, and the benign
findings by Dr. Tamadon. Id. at 15-16. The ALI's rationale for the weight he accorded the state
agency consultant's assessment is supported by substantial evidence.
Finally plaintiff cites the records of Carolina Sports Medicine, where plaintiff received
treatment between March and Iune 2005. Id. at 231-53. Board-certified orthopedic surgeon
Douglass F. Messina, M.D. completed two evaluations, id. at 232,242, and a certified physician's
assistant completed three evaluations. Id. at 234, 236, 244. The evaluations all state that plaintiff
is limited to "light duty," but also recognize varying combinations of additional limitations,
including limitations on lifting weight (15 or 20 lbs.), prolonged sitting and standing (including a
need to alternate periodically between sitting and standing), forceful pushing or pulling, bending and
stooping, climbing, and reaching overhead. Id. at 232, 234, 236, 242, 244. The ALI cited the
records from Carolina Sports Medicine (i.e., Exhibit 9F) in support of his finding that
"[c]onsistently, the claimant was found to be capable oflight exertional work." Id. at 16. However,
plaintiff argues that this evidence compelled the determination that she could not perform light work.
The court has reviewed the records. The surgeon and physician'S assistant prepared the
records immediately following plaintiff's February 28,2005 back injury. Moreover, the limitations
tend to decrease in number and severity over the evaluation period. For example, on March 9,2005,
the limitations concerned lifting no more than 15 lbs. and no prolonged sitting. Id. at 244. On I une
21,2005, the weight limit was increased 20 lbs. and the prolonged sitting restriction was dropped.
Id. at 232. Further, the course oftreatment was relatively brief. Cf. 20 C.F.R. § 404. 1527(d)(2)(i).

Although the AU rejected the assessment that plaintiff can do medium work, the assessment
supports the finding that plaintiff can do light work. After all, "[i]fsomeone can do medium work,
we determine that he or she can also do sedentary and light work." 20 C.F.R. § 404.1567(c).

9

The ALJ applied the correct legal standard concerning this evidence, and the analysis is supported
by substantial evidence.

In sum, the ALJ's detennination regarding the opinion evidence in question was reached in
accordance with applicable legal standards and is supported by substantial evidence.

Thus,

plaintiff s challenge to the ALJ's RFC detennination on the basis of his handling of the opinion
evidence fails.

B.
Plaintiff s final challenge to the RFC detennination is her contention that the ALJ improperly
evaluated the credibility of her allegations of limitations arising from her back impairments. As
noted, this court is not permitted to make credibility assessments, but must detennine if the ALJ's
credibility assessment is supported by substantial evidence. Craig, 76 F.3d at 589. The ALJ's
assessment involves a two-step process. First, the ALJ must detennine whether plaintiffs medically
documented impairments could cause plaintiffs alleged symptoms. Id. at 594-95. Next, the ALJ
must evaluate plaintiffs statements concerning those symptoms. rd. at 595. If the ALJ does not
find plaintiff s statements to be credible, the ALJ must cite "specific reasons" for that finding that
are "grounded in the evidence." Dean v. Bamhm1, 421 F. Supp. 2d 898, 906 (D. S.C. 2006) (quoting
Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *4 (2 July 1996)); see also 20 C.F.R. § 404.1529
(setting out factors in evaluation of claimant's pain and other symptoms).
Here, plaintiff testified at the hearing that she injured her back on the job on February 28,
2005. R. at 23. She stated that she suffers from pain in her lower back, on the sides ofher back, and
in her legs. Id. at 24. For pain relief, she uses a TENS unit every day, takes pain medication, and
lays down for about an hour each day. Id. at 24-25, 27. Plaintiff also stated that she suffers from
drowsiness due to medication side effects, id. at 25, and experiences memory loss resulting in, for
example, her forgetting where she puts things, id. at 30. Plaintiff further testified that she prepares
her meals, goes grocery shopping, and does her laundry, but does not do any house cleaning or yard
work. Id. at 28-29. She also testified that she tries to walk every day and that she can walk about
one block on a good day. Id. at 28.
10

In evaluating plaintiff's credibility, the AU correctly followed the two-step process. Id. at

16-17. As to the first step, the ALJ found that plaintiff's medically determinable impainnents could
reasonably be expected to produce some ofthe symptoms she alleges. Id. at 16. At the second step,
the ALJ found that plaintiff's "statements concerning the intensity, persistence and limiting effects
of these symptoms are not credible to the extent they are inconsistent with the [RFC] assessment."
Id. In addition to this inconsistency, the AU further explained that plaintiff's "subjective complaints
are not consistent with the objective medical evidence, including the lack oftreatment and minimal
treatment." Id. at 17. The AU comprehensively discussed the medical records underlying this
finding. Id. at 15-16. The ALJ also explained that "[a]t the hearing, [plaintiff] alleged substantial

nonexertionallimitations that were not reported to treating sources, including memory difficulties."
Id. at 17. More specifically, the ALJ found that plaintiff "testified to medication side effects,
specifically drowsiness, but this was generally not noted within treatment records or unresolved by
a change in medication" and that "[t]reatment records also did not generally include reports of
memory difficulties." Id. at 15.
The ALJ did give some weight to plaintiff's complaints and found plaintiff's medical
condition to be severe. Id. at 15. However, the ALJ further concluded that the severity of her
condition warranted a limitation to light work, rather than work at a higher exertionallevel. Id. The
ALJ's credibility determination is based on the proper legal standards and supported by substantial
evidence. Accordingly, plaintiff's challenge fails.

C.
Finally, plaintiff contends that the AU erred by relying on the Medical-Vocational
Guidelines or so-called grids at step five to direct a determination of not disabled and instead was
required to use a vocational expert. The grids are a set of rules which direct a conclusion as to
whether or not a claimant is disabled. See generally 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(a).
They are grouped by RFC for sedentary, light, and medium work, respectively. Id. Within each
such RFC grouping, the criteria applied are the vocational factors-namely, age, education, and
previous work experience (e.g., none, unskilled, semiskilled, skilled, transferability of skills). ld.
11

The grids presume a claimant whose impainnents prevent him from doing past relevant work or
who has no past relevant work. Id. An ALI may not rely exclusively on the grids where a
nonexertional condition or impainnent "affects [a claimant's] residual functional capacity to
perfonn the work ofwhich he is exertionally capable." Walker v. Bowen, 889 F.2d 47,49 (4th Crr.
1989); see also 20 C.F.R. § 404.1569a(d). A nonexertionallimitation is one which affects a
claimant's ability to meet the demands of jobs other than strength demands and can include
"difficulty performing the ... postural functions of some work" and pain. See 20 C.F.R. §
404.1569a(c)(I)(vi) (recognizing postural limitations as nonexertional limitations); Wilson v.
Heckler, 743 F.2d 218,222 (4th Cir. 1984) (recognizing inability to sit for prolonged periods and
pain as nonexertionallimitations); Soc. Sec. R. 83-12, 1983 WL 31253, at *4 (1983) (discussing
need to alternate sitting and standing as nonexertionallimitation). In such cases, an ALI would be
permitted to use the grids as a guide but, generally, must also employ expert vocational testimony
to show that jobs exist in the national economy which the claimant can perfonn. Aistrop v.
Bamhm, 36 Fed. Appx. 145, 146-47 (4th Crr. 2002). On the other hand, if a claimant's
nonexertional impainnents do not prevent him from performing the full range of work at a given
exertionallevel, the ALJ may rely solely on the grids to satisfy the burden of proof at step five.
Coffman v. Bowen, 829 F.2d 514, 518 (4th Crr. 1987); Gory v. Schweiker, 712 F.2d 929, 930-31
(4th Crr. 1983).
Plaintiff argues that the AU's reliance on the grids was improper because of her alleged
nonexertional impainnents. Specifically, she asserts that her "need to alternate between positions
and to take unscheduled breaks constitute nonexertional impainnents or limitations" because ''they
show her to be unable to perfonn the full range ofeither light or sedentary work." PI.'s Resp. [D.E.
32] at 9-10. However, her argument is based solely on the contention that the ALJ's RFC
detennination was not supported by substantial evidence. The court already has upheld the AU's
RFC determination that plaintiff can perfonn the full range oflight work. Accordingly, plaintiffs
challenge to the AU's reliance on the grids based on her allegations of nonexertionallimitations
fails.
12

Plaintiff also challenges the ALJ's use ofthe grids in light of the opinions of rehabilitation
specialist Bob Manning, M.S., C.R.C. (Le., Certified Rehabilitation Counselor) expressed in an
initial report dated June 5, 2006, id. at 221-30, and a supplemental report dated September 4, 2008.
Id. at 337-39. In his initial report, Manning found that plaintiff "will experience difficulty in
returning to work within her abilities in the 10ca1labor market," but he did not rule out the
availability ofjobs to her. Id. at 230. In his supplemental report, he states more negatively that "it
is not realistic to expect [plaintiff] to return to work in any capacity in the 10ca1labor market." Id.
at 339.
The ALI gave Manning's opinions limited weight. Id. at 16. Plaintiff contends that the ALJ
erred in doing so. The ALJ justified the weight he accorded Manning's opinions in both reports on
the grounds that they are based at least in part on plaintiff's subjective complaints, are not supported
by any functional testing, and are not consistent with the record as a whole. Id. With respect to the
referenced opinion in the supplemental report, the ALI noted that it applies to jobs in the 10ca1labor
market, although the same point would arguably apply to the opinions in the initial report. Id. The
local job market has limited significance because at step five of the sequential analysis the test is
whether there are jobs in significant numbers "in the national economy (either in the region where
you live or in several regions in the country)." 20 C.F.R. § 404.1560(c)(I).
The ALJ's rationale for his treatment of Manning's opinions is sufficient and is supported
by substantial evidence. Thus, the ALI's use ofthe grids was proper in all respects.
IV.
The ALJ applied the proper legal standards and the decision is supported by substantial
evidence. Accordingly, the Commissioner's motion for judgment on the pleadings [D.E. 29] is
GRANTED, plaintiff's motion for judgment on the pleadings [D.E. 24] is DENIED, and the final
decision of the Commissioner is AFFIRMED.
SO ORDERED. This ~ day of September 2011.

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