King v. Berryhill
Filing
23
ORDER denying 19 Motion for Judgment on the Pleadings and granting 21 Motion for Judgment on the Pleadings. The final decision of the Commissioner is upheld. Signed by US Magistrate Judge Robert B. Jones, Jr. on 8/1/2018. (Grady, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-149-RJ
AVONDAKING,
Plaintiff/Claimant,
v.
ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
This matter is before the court on the parties' cross-motions for judgment on the
pleadings [DE-19, DE-21] pursuant to Fed. R. Civ. P. 12(c).
Claimant Avonda King
("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the denial of her applications for a period of disability, Disability Insurance Benefits
("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive
briefing has expired, and the pending motions are ripe for adjudication.
Having carefully
reviewed the administrative record and the motions and memoranda submitted by the parties,
Claimant's Motion for Judgment on the Pleadings is denied, Defendant's Motion for Judgment
on the Pleadings is allowed, and the final decision of the Commissioner is upheld.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability, DIB, and SSI on April
17, 2014, alleging disability beginning April 17, 2014. (R. 184--99). Her claims were denied
initially and upon reconsideration. (R. 50-88, 113-30). A hearing before the Administrative
Law Judge ("ALJ") was held on August 17, 2016, at which Claimant, represented by counsel,
and a vocational expert ("VE") appeared and testified. (R. 19-49). On November 8, 2016, the
ALJ issued a decision denying Claimant's request for benefits.
(R. 89-102).
The Appeals
Council denied Claimant's request for review on June 2, 2017. (R. 1-6). Claimant then filed a
complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scop~ of judicial review of a final agency decision regarding disability benefits under
the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether
substantial evidence supports the Commissioner's factual findings and whether the decision was
reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d
514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by
substantial evidence, shall be conclusive . . . . " 42 U.S.C. § 405(g). Substantial evidence is
"evidence which a reasoning mind would accept as sufficient to support a particular conclusion."
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large
or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is
"more than a mere scintilla ... and somewhat less than a preponderance." Laws, 368 F.2d at
642.
"In reviewing for substantial evidence, [the court should not] undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the
[Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chafer,
76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. §
416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is
limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her
findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 439-40 (4th Cir. 1997).
2
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set
forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
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 [in severity] 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 ... past work or (5) any other work.
Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim
fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted).
The burden of proof and
production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step,
the burden shifts to the ALJ to show that other work exists in the national economy which the
claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance
with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c).
This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree
of functional limitation resulting from a claimant's mental impairment(s): activities of daily
living; social functioning; concentration, persistence, or pace; and episodes of decompensation.
Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written
decision pertinent findings and conclusions based on the "special technique."
Id. §§
404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred by improperly weighing the opm10n
evidence, failing to properly consider Claimant's pain, and failing to resolve a conflict with the
VE's testimony and the DOT. Pl.'s Mem. [DE-20] at 1, 18-20.
3
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant
"not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in
substantial gainful employment since the alleged onset date. (R. 94). Next, the ALJ determined
Claimant had the following severe impairments: mild osteoarthritis bilaterally in the knees and
the right ankle; mild degenerative changes in the right hand with arthropathy; and minimal
lumbar scoliosis. (R. 94-95). However, at step three, the ALJ concluded these impairments
were not severe enough, either individually or in combination, to meet or medically equal one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. 95).
Prior to
proceeding to step four, the ALJ assessed Claimant's RFC, finding she had the ability to perform
medium work 1 with the following limitations: [T]he claimant can frequently climb ramps, stairs,
ladders, ropes, or scaffolds, balance, stoop, kneel, crouch, or crawl. She can perform frequent
manipulation with her dominant right hand. The claimant must avoid concentrated exposure to
hazardous machinery and unprotected heights. (R. 95-99). At step four, the ALJ concluded
Claimant did have the RFC to perform the requirements of her past relevant work as a cashier
and coffee maker.
(R. 100). Additionally, at step five, upon considering Claimant's age,
education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to
the demands of other employment opportunities that exist in significant numbers in the national
economy. (R. 100-01).
1
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying objects weighing
up to 25 pounds. If someone can do medium work, he can also do sedentary and light work. 20 C.F.R. §
404.1567(c).
4
V. DISCUSSION
A.
RFC Determination
An individual's RFC is the capacity an individual possesses despite the limitations caused
by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l); see also S.S.R.
96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity 'assessment
must first identify the individual's functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis, including the functions' listed in the
regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The
RFC is based on all relevant medical and other evidence in the record and may include a
claimant's own description of limitations arising from alleged symptoms.
20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant
has numerous impairments, including non-severe impairments, the ALJ must consider their
cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v.
Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments
are of sufficient severity to prohibit basic work related activities, an ALJ must consider the
combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently.
considered the combined effects of a claimant's impairments when each is separately discussed
by the ALJ and the ALJ also discusses a claimant's complaints and activities.
Baldwin v.
Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment
"must include a discussion of why reported symptom-related functional limitations and
restrictions can or cannot reasonably be accepted as consistent with the medical and other
evidence."
S.S.R. 96-8p, 1996 WL 374184, at *7.
The RFC "assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
5
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations)." Id.; see also Clifford v. Apfel,-227 F.3d 863, 872 (7th Cir. 2000) (observing that
the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
1.
Opinion Evidence
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20
C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every
medical opinion received. Id.§§ 404.1527(c), 416.927(c). In general, theALJ should give more
weight to the opinion of an examining medical source than to the opinion of a non-examining
source. Id. §§ 404.1527(c)(l), 416.927(c)(l). Additionally, more weight is generally given to
opinions of treating sources, who usually are most able to provide "a detailed, longitudinal
\
picture" of a claimant's alleged disability, than non-treating sources such as consultative
examiners. Id.§§ 404.1527(c)(2), 416.927(c)(2). Though the opinion of a treating physician is
generally entitled to "great weight," the ALJ is not required to give it "controlling weight."
Craig, 76 F.3d at 590 (quotations & citations omitted). In fact, "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." Id.; see Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)
(stating "[t]he ALJ may choose to give less weight to the testimony of a treating physician if
there is persuasive contrary evidence.").
If the ALJ determines that a treating physician's opm10n should not be considered
controlling, the ALJ must then analyze and weigh all of the medical opinions in the record,
taking into account the following non-exclusive list: (1) whether the physician has examined the
applicant, (2) the treatment relationship between the physician and the applicant, (3) the
supportability of the physician's opinion, (4) the consistency of the opinion with the record, and
6
(5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005)
(citing 20 C.F.R. § 404.1527). While an ALJ is under no obligation to accept any medical
opinion, see Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5,
2006), the weight afforded such opinions must nevertheless be explained. S.S.R. 96-2p, 1996
WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). 2 An ALJ
may not reject medical evidence for the wrong reason or no reason.
Wireman, 2006 WL
2565245, at *8. "In most cases, the ALJ's failure to consider a physician's opinion (particularly
a treating physician) or to discuss the weight given to that opinion will require remand." Love-
Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013)
(citations omitted).
i.
Dr. Kell's Opinion
Claimant contends the ALJ erred by affording "little weight" to the opinion of Robert
Kell, M.D., Claimant's treating primary care physician. Claimant contends the ALJ's treatment
of Dr. Kell's medical opinion is insufficient where he failed to analyze the following factors
contained in 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2): (1) the length and treatment
relationship and the frequency of examination; (2) the nature and extent of the treatment
relationship; (3) the supportability in the form of the quality of the explanation provided; (4) the
consistency of the medical opinion with the record as a whole; and (5) whether the source is a
specialist and offering a medical opinion relating to his or her area of specialty. PL 's Mem. [DE20] at 9-14.
Additionally, Claimant contends the ALJ failed to provide proper reasons to
discount the treating physician's opinion, pursuant to Radford. Id. at 13-14 (citing Radford v.
2
Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore still apply to this claim. 82 Fed.
Reg. 15263-01 & 15263-02 (Mar. 27, 2017).
7
Colvin, 734 F.3d 288, 295 (4th Cir. 2013) ("The record should include a discussion of which
evidence the ALJ found credible and why, and specific application of the pertinent legal
requirements to the record evidence.")). The Commissioner contends, based on the evidence
cited by the ALJ in the RFC discussion regarding Claimant's visits with Dr. Kell, that substantial
evidence supports the decision to assign "little weight" to Dr. Kell's opinion, particularly where
the opinion was largely based on Claimant's subjective reporting. Def.'s Mem. [DE-22] at 5-10
(citing Schaller v. Colvin, No. 5:13-CV-334-D, 2014 WL 4537184, at *14 (E.D.N.C. Sept. 11,
2014) (noting that the ALJ prop,erly assigned little weight to a medical opinion, "because it was
largely reliant on Claimant's subjective complaints")).
TheALJ stated the following in assessing Dr. Kell's opinion:
Dr. Kell first opined the claimant could not walk a city block. She could sit 60
minutes at one time for a total of 3 hours and stand or walk for 15 minute~ at one
time for a total of 2 hours in an 8-hour workday with unscheduled breaks daily for
10-15 minutes (20F/2). She could lift and carry less than 10 pounds frequently
and up to 20 pounds occasionally. She would be absent from work once or twice
a month. She is not physically capable of working an 8-hour day, 5 days a week
employment on a sustained basis (20F/3). Dr. Kell then opined the claimant could
walk half a city block. She could sit 60 minutes at a time for 8 hours and stand or
walk 30 minutes at a time during an 8-hour workday. She would need breaks
every 30 minutes for 10-15 minutes at a time (5F/2). She could lift and carry 10
pounds or less occasionally. She could grasp; perform fine manipulation, and
reach with her right hand for 10 percent of an 8-hour workday. She would be
absent from work more than four times a month. She is not physically capable of
working an 8-hour day, 5 days a week employment on a sustained basis (5F/3).
Dr. Kell finally opined the claimant could not sit, stand, or walk in an 8-hour
workday. She would need unscheduled breaks daily for 10-15 minutes. She
could lift and carry less than 10 pounds occasionally. She could use her right
ha[n]d only 75 percent of the time during an 8-hour workday for grasping, fine
manipulation, and reaching (17F/2). She would be absent from work more than
four times a month (17F/3). I give little weight to the opinion[s] of Dr. Kell, as
they are inconsistent with his objective findings of mild symptoms.
(R. 99). Prior to this assessment, the ALJ discussed treatment records from Dr. Kell that span
March 2014-July 2016. (R. 96-98). In March 2014, Claimant presented to Dr. Kell "asking
8
about disability for her knees and legs." (R. 96). Dr. Kell's examination revealed 90 degrees of
flexion without pain and 0 degrees of extension without pain, full range of motion in her ankles
and no pain. Id. Dr. Kell noted that, while Claimant reported taking Tramadol, she listed her
pain as 10/10 which "Dr. Kell doubted Tramadol would be
e~ective
[in] treating." Id. Dr. Kell
diagnosed Claimant with degenerative joint disease in the bilateral knees and ankles. Id. The
' ALJ noted Claimant "continued specifically to ask about disability in April 2014." Id. An x-ray
was taken in July 2014 of Claimant's right ankle, which showed mild soft tissue swelling,
without evidence of acute fracture or subluxation and degenerative changes in the tibiotalar joint
greatest medially. Id. Claimant returned to Dr. Kell in December 2014 "in order to complete
paperwork for her disability claim." Id. Dr. Kell noted normal function of her shoulder, her right
elbow was painful with movement, her spine was normal, and her right knee and ankle were
painful with movement with some tenderness. Id. In October 2015, Claimant returned to Dr.
Kell, who wrote a prescription for Voltaren gel, and ordered blood work. (R. 97). At a follow-up
visit, Claimant reported that her joints bother her periodically and she had some shoulder pain
that was resolved when her medication was switched. Id. In June 2015, Claimant underwent xrays of both hands, which showed mild osteopenia with minimal osteophyte formation from the
posterior aspect of the third distal phalanx and loss of the normal musculature of the right hand,
and osteopenia with mild degenerative changes in the first and fourth DIP joints with mild
osteophyte formation and loss of the normal musculature of the hand. Id. X-rays in December
2015 showed Claimant had minimal mid-lumbar scoliosis, and Dr. Kell noted in January 2016
that Claimant was doing fairly well on her medication.
Id.
X-rays in February 2016 of
Claimant's right hand showed moderate osteoporosis, and an MRI of Claimant's right hand in
May 2016 revealed no osseous or soft tissue edema was evident in the second digit and no
9
foreign body or mass was apparent to correspond with the site of Claimant's pain. (R. 97-98).
Lastly, Claimant presented to Dr. Kell in July 2016 "to fill out disability paperwork again as was
done in 2014," and she complained of decreased strength in her right hand, 25% weaker than the
left. (R. 98) (citing R. 512).
The court finds that substantial evidence supports the ALJ' s decision to afford "little
weight" to Dr. Kell's opinion. The ALJ thoroughly discussed Dr. Kell's treatment notes, noting
consistently mild or moderate findings regarding Claimant's ankle, knee, and shoulder, and then
concluded that Dr. Kell's opinions were inconsistent with his mild findings. It is apparent from
the decision what evidence the ALJ believed conflicted with Dr. Kell's opinion, distinguishing
this case from Lewis, where the Fourth Circuit found error in the ALJ's failure to explain the
weight afforded to a treating physician's opinion because the decision left "impermissible gaps"
when describing the opinions of the treating physician and the claimant's overarching medical
history. Lewis v. Berryhill, 858 F.3d 858, 867-68 (4th Cir. 2017); see also Dunn v. Colvin, 607
Fed. App'x 264, 276 (4th Cir. 2015) ("[T]he fact that the ALJ could have offered a more
thorough explanation for his decision does not change our conclusion that substantial evidence in
the record supports that decision."). Further, contrary to Claimant's position that the ALJ failed
to consider the factors listed in 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) in weighing the
treating physician's opinion, it is clear from the ALJ's discussion of the medical evidence that
these factors were considered. Specifically, the ALJ noted that Dr. Kell was Claimant's primary
care physician, he discussed the medical records which demonstrated the length, treatment
relationship, and frequency of examination, and cited Dr. Kell's consistently mild or moderate
findings, concluding that these findings were inconsistent with the restrictive limitations
contained in Dr. Kell's opinions. Accordingly, the ALJ's evaluation of this opinion provides no
10
basis for remand.
ii.
Dr. Scully's Opinion
Claimant makes parallel arguments with respect to the ALJ's decision to afford "little
weight" to Dr. Scully's medical opinion. The ALJ stated the following in assessing Dr. Scully's
op1mon:
Dr. Scully opined the claimant could walk half a city block. She could sit 60
minutes at one time for 8 hours and stand or walk 30 minutes at one time for 1
hour in an 8-hour workday. She would need unscheduled breaks every 2 hours
for 15 minutes at a time (7F/2). Sh~ could frequently lift and carry less than 10
pounds and occasionally lift and carry 10 pounds. She would be absent from
work once or twice a month. She is not physically capable of working an 8-hour
day, 5 days a week employment on a sustained basis (7F/3). I give little weight to
the opinion of Dr. Scully, as [it is] inconsistent with his findings and the medical
evidence of record.
(R. 99). Prior to this assessment, the ALJ discussed treatment records from Dr. Scully, as well as
from Allison Devechio, FNP, both of whom work at the Eastern Carolina Orthopaedic Clinic.
(R. 96-97).
In December 2013, Claimant presented to Ms. Devechio, where she reported
bilateral knee pain for the past 11 months and 5/5 pain, but stated that her knees were not hurting
at the time of the visit. (R. 96). She stated the pain was aggravated with movement, weight
bearing, and standing, and taking Tramadol helped her pain. Id. Upon examination, Claimant's
knees and legs appeared normal with full range of motion and no pain with movement, and xrays showed mild degenerative changes. Id. Claimant returned to Ms. Devechio complaining of
knee pain, and she was found to have mild effusion in her knees with tenderness and full range of
motion. Id. She was continued on Mobic and conservative treatment options were discussed,
wherein Claimant chose home exercise therapy. Id. Claimant presented to Dr. Scully in January
2015 "to discuss her paperwork." (R. 97). She complained that her lower extremity pain would
worsen after sitting and the pain limited her ability to ambulate. Id. Dr. Scully noted "no clear
11
I
antalgic component to her gait," and Claimant received injections in her knees at that time. Id.
Claimant returned to Dr. Scully in February 2015 reporting the relief from the injections lasted
one week, and an MRI was ordered. Id. The MRI revealed a degenerative tear of the posterior
•
horn of the medial meniscus of the right knee, which Claimant chose to treat conservatively. Id.
The court finds substantial evidence supports the ALJ's decision to afford "little weight"
to Dr. Scully's opinion. Dr. Scully's notes consistently showed mild findings, with the exception
of a degenerative tear of Claimant's posterior horn of medial meniscus of the right knee, which
Claimant chose to treat conservatively. As the court found with respect to Dr. Kell's opinion, it
is apparent from the decision what evidence the ALJ believed conflicted with Dr. Scully's
opinion, distinguishing this case from Lewis. 858 F.3d at 867-68; see also Dunn, 607 Fed.
App'x at 276. Further, the ALJ's decision makes clear that he considered the factors listed in 20
C.F.R. §§ 404._1527(c)(2) and 416.927(c)(2) in weighing the treating physician's opinion.
Specifically, the ALJ discussed Dr. Scully's medical records which demonstrated the length,
treatment relationship, and frequency of examination, and cited Dr. Scully's consistently mild or
moderate findings, concluding that these findings were inconsistent with the restrictive
limitations contained in his opinion. Accordingly, the ALJ's evaluation of this opinion provides
no basis for remand.
2.
Evaluation of Claimant's Subjective Symptoms
When assessing the RFC, an ALJ must consider a claimant's subjective symptoms,
including pain. 20 C.F.R. §§ 404.1529(a), 416.929(a); S.S.R. 16-3p, 2016 WL 1119029 (Mar.
16, 2016) (effective Mar. 28, 2016). Federal regulations 20 C.F.R. §§ 404.1529 and 416.929
provide the "authoritative standard" for the evaluation .of subjective complaints of pain and
symptomology, whereby "the determination of whether a person is disabled by pain or other
12
symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively
determine whether the claimant has medically documented impairments that could cause his or
her alleged symptoms. Id. at 594 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). If the ALJ
makes an affirmative finding at the first step, at the second step the ALJ must evaluate "the
intensity and persistence of the claimant's pain, and the extent to which it affects her ability to
work." Id. at 595 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). The ALJ must consider "not
only the claimant's statements about her pain, but also 'all the available evidence,' including the
claimant's medical history, medical signs, and laboratory findings; any objective medical
evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues,
redness, etc:); and any other evidence relevant to the severity of the impairment, such as
evidence of the claimant's daily activities, specific descriptions of the pain, and any medical
treatment taken to alleviate it." Id. (internal citations omitt,ed) (citing 20 C.F.R. §§ 404.1529(c),
416.929(c)). While objective medical evidence must be considered in evaluating pain and other
subjective symptoms, "because pain is subjective and cannot always be confirmed by objective
I
indicia, claims of disabling pain may not be rejected 'solely because the available objective
evidence does not substantiate [the claimant's] statements' as to the severity and persistence of
her pain." Craig, 76 F.3d at 595 (quoting 20 C.F.R. §§ 404.1529(c), 416.929(c)).
Claimant contends the ALJ failed to provide legally sufficient reasons based on
substantial evidence to reject Claimant's symptoms. Pl.'s Mem. [DE-20] at 14-17. Specifically,
Claimant argues that she has documented history of pain in her knees, ankle, right hand, and
shoulder, and the ALJ discounted her symptoms based on his opinion that she was seeking
treatment solely to support her disability claim. Id. The ALJ's decision summarized Claimant's
subjective complaints of pain and her testimony regarding how that pain affects her daily life.
13
(R. 96). The ALJ proceeded to discuss the objective medical evidence, and then concluded by
stating the following with respect to Claimant's pain:
I find that the claimant's medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant's statements
concerning the intensity, persistence and limiting effects of these symptoms are
not entirely consistent with the medical evi,dence and other evidence in the record
for the reasons explained in this decision.
In terms of the claimant's alleged impairments, the evidence generally does not
support the alleged loss of functioning.
The claimant testified that she has pain in her feet and ankles. She testified when
she sits for a long time her knees get stiff and it is difficult for her to get up. If
she stands to[ o] long she has pain as well. At other times, she will wake with pain
and stay in bed until it subsides. However, diagnostic imaging only showed the
claimant had mild degenerative changes in her knees. She continued to have full
range of motion in her knees. Moreover, her pain was treated conservatively with
medication and injections. Although, she would claim she was suffering from the
most excruciating pain, which was inconsistent with her examination findings.
Later, an MRI revealed a degenerative tear of her meniscus of the right knee,
which the claimant chose to treat conservatively (16F/13; 22F/5). Furthermore,
the claimant first inquired about disability with her provider on the same day as
the alleged onset date. This suggests that the claimant attempted to create the
conditions leading to the conclusion she was disabled as opposed to the medical
evidence leading to it in its normal course. Therefore, I find the claimant's foot
and ankle pain was inconsistent with the medical evidence of record. She
exaggerated her symptoms, as only conservative treatment was necessary.
The claimant testified to having pain in the elbow of her right arm. She testified
there is arthritis in her right hand, which is painful and makes it difficult to grab
objects and open things. However, X-rays of the right elbow appeared normal.
An MRI of the claimant's right hand in May 2016 revealed no osseous or soft
tissue edema was evident in the second digit and no foreign body or mass was
apparent to correspond with the site of the claimant's pain (21F/2). Moreover, it
appears th[at] since the claimant did not have more than mild symptoms in her
lower extremities she attempted to find an additional impairment to claim
disability. There appears to be no medical explanation for the pain in her right
elbow. Therefore, I find that the claimant's characterization of her right elbow
pain was exaggerated and inconsistent with the medical evidence of record.
(R. 98).
Consistent with the regulations, the ALJ discussed Claimant's testimony, her medical
14
history, including objective medical evidence, medication therapy, and injection therapy, as well
\
as other evidence such as opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); S.S.R.
16-3p, 2016 WL 1119029 (Mar. 16, 2016) (effective Mar. 28, 2016). Contrary to Claimant's
position that the ALJ erred by opining that Claimant was searching for medical opinions to
support disability, the ALJ'sreasons for discounting Claimant's testimony are clear, convincing,
and supported by substantial evidence. Further, it is the province of the ALJ, not the court, to
make determinations regarding a claimant's subjective symptoms. Mickles v. Shala/a, 29 F.3d
918, 929 (4th Cir. 1994). Accordingly, the court finds Claimant's argument is without merit.
B.
The VE's Testimony and the DOT
Claimant contends the ALJ erred by failing to resolve conflicts between the RFC and the
handling, fingering, and feeling requirements of one of the jobs identified by the VE. PL' s Mem.
[DE-20] at 18-20. The Commissioner argues any error here is harmless where the VE identified
two alternative jobs at step four and three alternative jobs at step five, each of which exists in
significant numbers. Def.'s Mem. [DE-22] at 23-24.
Pursuant to Ruling 00-4p, the ALJ must "inquire, on, the record, . . . whether the
vocational expert's testimony conflict[s] with the [DOT], and [the Ruling] also requires that the
ALJ elicit a reasonable explanation for and resolve conflicts between the expert's testimony and
the [DOT]." Pearson v. Colvin, 810 F.3d 204, 207-08 (4th Cir. 2015) (internal quotation marks
omitted) (citing S.S.R. 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). However, not "all
possible conflicts must be identified and resolved," but rather only "apparent conflicts," i.e.,
"where the expert's testimony seems to, but does not necessarily, conflict with the [DOT]." Id.
at 209. The ALJ must elicit from the VE "a reasonable explanation for the apparent conflict,"
S.S.R. 00-4p, at *4, and the ALJ has not fulfilled his duty to fully develop the record if it
15
"contains an unresolved conflict between the expert's testimony and the [DOT]" or if the ALJ
"ignores an apparent conflict because the expert testified that no conflict existed." Pearson, 810
F.3d at 210. "An expert's testimony that apparently conflicts with the [DOT] can only provide
substantial evidence if the ALJ has received this explanation from the expert and determined that
the explanation is reasonable and provides a basis for relying on the testimony rather than the
[DOT]." Id. at 209-10.
In the RFC, the ALJ limited Claimant to "frequent manipulation with her dominant right
hand." The VE testified, and the ALJ adopted the testimony, that Claimant was capable of
performing her prior work as a cashier. (R. 100). The Selected Characteristics of Occupations, a
companion title to the Dictionary of Occupational Titles, indicates that the job of cashier (DOT#
211.462-014) requires constant handling and fingering. App. C, U.S. Dep't of Labor, Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles 1993.
Claimant contends this is an apparent conflict that the ALJ failed to resolve and therefore remand
is required. Pl.'s Mem. [DE-20] at 18-20. However, the VE also identified two previous jobs,
stocker (DOT# 299.367-014) and coffee maker (DOT# 317.684-010), at step four, as well as
three additional jobs, dietary aid (DOT# 319.677-014), 3 order picker (DOT# 922.687-058), and
cleaner (DOT # 381.687-018), at step five that Claimant was capable of performing and
Claimant does not contest the ALJ's finding as to these jobs. (R. 100-101). Each of these
additional five jobs requires only frequent handling and fingering, which is within the purview of
the RFC. See Hardy v. Astrue, No. 5:10-CV-293-FL, 2011 WL 2899148, at *11 (E.D.N.C. June
27, 2011) (holding harmless error where the ALJ appropriately relied upon the VE's testimony to
3
Both the VE and ALJ list dietary aid as DOT# 219.677-014, which is not a recognizable DOT code. The court
assumes they are referring to food-service worker, hospital DOT# 319.677-014, and will analyze the decision based
on this assumption.
16
identify certain jobs that Claimant could perform irrespective of the VE's testimony regarding
another job that conflicted with the DOT) (citing Mickles v. Shala/a, 29 F.3d 918, 921 (4th Cir.
1994) (affirming denial of benefits where the ALJ erred in evaluating a claimant's pain because
"he would have reached the same result notwithstanding his initial error")), adopted by 2011 WL
2881544 (E.D.N.C. July 18, 2011).
As the VE identified five additional jobs existing in
significant numbers that Claimant can perform, the VE' s testimony thus provided substantial
ev,idence for the ALJ's decision that Claimant can perform alternate work. See Hicks v. Califano,
600 F.2d 1048, 1051, n.2 (4th Cir. 1979) (noting that as few as 110 jobs constitute a significant
number within the economy for purposes of satisfying step five under the sequential evaluation
analysis). Therefore, the testimony of the VE regarding the jobs of stocker, coffee maker, dietary
aid, order picker, and cleaner constitutes substantial evidence. to support the ALJ's finding that a
significant number of jobs exist in the regional economy which Claimant can perform. See
Prunty
v. Barnhart, No. 6:04-CV-38, 2005 WL 1926611, at *3 (W.D. Va. Aug. 9, 2005) (finding
VE's testimony that claimant could perform the job identified in a single DOT category as
sufficient to meet ALJ's step 5 burden); see also S.S.R. 00-4p, 2000 WL 1898704, at *2
(explaining occupations listed in the DOT are "collective" descriptions of occupations and
"[e]ach occupation represents numerous jobs").
Accordingly, the court finds the ALJ's
determinations at step four and five are supported by substantial evidence.
VI. CONCLUSION
For the reasons stated above, Claimant's Motion for Judgment on the Pleadings [DE-19]
is DENIED, Defendant's Motion for Judgment on the Pleadings [DE-21] is ALLOWED, and the
final decision of the Commissioner is upheld.
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SO ORDERED, this the 1st day of August 2018.
~u~
Jones,~
RobrtB.
United States Magistrate Judge
18
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