KENEDY v. BERRYHILL
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 5/9/2018; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TAMMY S. KENEDY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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1:17CV81
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tammy S. Kenedy, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Plaintiff’s
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
Defendant has filed the certified administrative record
(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 16; see also Docket Entry 13
(Plaintiff’s Brief), Docket Entry 17 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
August 3, 2011.
(Tr. 226-39.)1
Upon denial of those applications
initially (Tr. 133-54, 181-85) and on reconsideration (Tr. 155-80,
190-205),
Plaintiff
requested
a
hearing
de
Administrative Law Judge (“ALJ”) (Tr. 206-07).
novo
before
an
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 60-112.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 10-34.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
7-9, 305-06), making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 3, 2011, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
asthma, curvature of the spine; obesity; gastroesophageal
reflux disease (GERD); and anemia.
. . .
1
Plaintiff filed previous applications for DIB and SSI, alleging an onset date
of September 9, 2010. (See Tr. 116.) Following a hearing, an ALJ denied those
applications in a decision dated August 2, 2011 (see 113-23), and the Appeals
Council denied review (see Tr. 128-32).
Plaintiff did not pursue those
applications further and, thus, through operation of res judicata, August 3,
2011, the day after the prior ALJ’s decision, constituted the earliest possible
onset date for Plaintiff’s instant applications for DIB and SSI. (See Tr. 1718.)
2
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform sedentary work . . . . She can lift,
carry, push, and pull 10 pounds occasionally; stand and
walk two hours in an eight-hour workday; sit six hours in
an eight-hour workday; occasionally climb ramps and
stairs; never climb ladders and scaffolds; frequently
balance, stoop, kneel, crouch, and crawl. She can have
no concentrated exposure to unprotected heights, moving
mechanical parts, humidity and wetness, extreme cold or
extreme heat, and dust, odors, fumes, and pulmonary
irritants.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from August 3, 2011, through
the date of this decision.
(Tr.
15-33
(bold
font
and
internal
parenthetical
citations
omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
3
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported
by
substantial
evidence
and
were
reached
through
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
“Substantial
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is
substantial
evidence.”
Hunter,
993
F.2d at
34
(internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
4
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
2
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
5
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
(continued...)
7
B.
Assignment of Error
In Plaintiff’s sole assignment of error, she asserts that the
ALJ
failed
to
“properly
address
[Plaintiff’s]
(Docket Entry 13 at 3 (bold font omitted).)
credibility.”
More specifically,
Plaintiff maintains that “[t]he ALJ’s reasons for discrediting
[Plaintiff] do not comply with the requirements of 20 C.F.R.
§ 404.1529 or [Social Security Ruling 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements,
1996 WL 374186 (July 2, 1996) (‘SSR 96-7p’)] as encapsulated by
part two of the Craig test.”
(Id. at 11.)
According to Plaintiff,
the ALJ “mischaracterized [Plaintiff’s] testimony[,]” “improperly
focused on alleged discrepancies in dates of treatment[,] . . . and
never evaluated her testimony about the intensity, frequency and
limiting effects of her symptoms from asthma and GERD.”
(referencing Tr. 31).)
(Id.
Moreover, Plaintiff faults the ALJ for
discounting Plaintiff’s symptom reporting on the grounds “that she
did not report her symptoms of lupus to her doctors, and she was
not
treated
for
lupus
(referencing Tr. 31).)
by
a
rheumatologist.”
(Id.
at
14
In particular, Plaintiff points out that
5
(...continued)
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
8
she “never maintained that lupus disabled her[,]” (id. (citing Tr.
77)), as well as that she “lacked health insurance” and “could not
afford” to see a specialist for her lupus (id. at 15 (citing Tr.
249, 280, 337, 384, 397, 400, 403, 487, 519, 524, 529, 535)).
Plaintiff deems the ALJ’s errors in this regard prejudicial,
because the VE “testified that if an individual missed more than
one day [of] work per month or was off task 5% or more during the
workday, th[o]se limitations would be job preclusive” (id. at 16
(citing Tr. 111)), and Plaintiff testified that “she would be off
task 3-4 hours per day up to three days per week as a result of her
[asthma] attacks” (id. (referencing Tr. 80)).
Those contentions
warrant no relief.6
SSR 96-7p, as applied by the Fourth Circuit in Craig, 76 F.3d
at 594-95, provides a two-part test for evaluating a claimant’s
statements about symptoms. “First, there must be objective medical
evidence showing ‘the existence of a medical impairment(s) . . .
which could reasonably be expected to produce the pain or other
symptoms alleged.’”
Id. at 594 (quoting 20 C.F.R. § 404.1529(b)).
6
Applicable to ALJ decisions on or after March 28, 2016, the SSA superceded SSR
96-7p with Social Security Ruling 16–3p, Titles II and XVI: Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304 (Oct. 25, 2017) (“SSR 16–3p”).
The new ruling “eliminat[es] the use of the term ‘credibility’ from . . .
sub-regulatory policy, as [the] regulations do not use this term.” SSR 16-3p,
2017 WL 5180304, at *1.
The ruling “clarif[ies] that subjective symptom
evaluation is not an examination of the individual’s character,” id., and
“offer[s] additional guidance to [ALJs] on regulatory implementation problems
that have been identified since [the publishing of] SSR 96–7p,” id. at *1 n.1.
As the ALJ’s decision in this case pre-dates the effective date of SSR 16-3p (see
Tr. 34), this Recommendation will apply SSR 96-7p to the ALJ’s analysis of
Plaintiff’s subjective complaints.
9
Objective medical evidence consists of medical signs (“anatomical,
physiological, or psychological abnormalities . . . shown by
medically
acceptable
clinical
diagnostic
techniques”)
and
laboratory findings (“anatomical, physiological, or psychological
phenomena . . . shown by the use of medically acceptable laboratory
diagnostic techniques”).
20 C.F.R. §§ 404.1528, 416.928.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which they affect his or her ability to work.
595.
Craig, 76 F.3d at
In making that determination, the ALJ:
must take into account 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
and
quotation
marks
omitted).
“[A]llegations concerning the intensity and persistence of pain or
other symptoms may not be disregarded solely because they are not
substantiated by objective medical evidence.”
374186, at *6 (emphasis added).
SSR 96-7p, 1996 WL
In other words, “the absence of
objective medical evidence supporting an individual’s statements
about the intensity and persistence of pain or other symptoms . . .
must be considered in the context of all the evidence.”
10
(Id.)
In
this
case,
the
ALJ
discussed
Plaintiff’s
testimony
regarding her asthma and GERD symptoms in a fair amount of detail,
as follows:
[Plaintiff] testified she has asthma and uses an
albuterol nebulizer three times a day. She said it makes
her jittery. She stated she uses Symbicort twice a day,
since 2009. She said she also uses an asthma pump, takes
Nexium, and also takes medication for lupus and GERD.
[Plaintiff] testified that she never misses a day of her
medications. She stated she has good days and bad days
but about four good days. She said on a bad day, she has
an asthma attack and uses the nebulizer. [Plaintiff]
testified it makes her weak, and she lies down for three
to four hours. She stated anything can trigger an asthma
attack. She said she was hospitalized for 14 days in
July for asthma and other things. [Plaintiff] testified
she has been hospitalized seven times in 2015 for asthma.
She stated she tries to avoid stress and fragrances. She
said it takes time to get her strength back after an
attack.
. . .
[Plaintiff] stated she needs to clear her throat a lot
and coughs a lot. . . . [Plaintiff] testified her GERD
aggravates her asthma. She said with GERD, about an hour
after she eats, it comes back up at least two to three
times a week.
(Tr. 18-19 (emphasis added) (internal citation omitted).)
The ALJ then found for Plaintiff on part one of the symptom
reporting inquiry, but ruled, in connection with part two, that her
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely credible for the
reasons explained in th[e] decision.”
(Tr. 19.)
part
a
two
finding,
the
ALJ
provided
11
thorough
In making the
and
detailed
discussion of the medical evidence (see Tr. 19-30), and then found
as follows:
The [ALJ] finds [Plaintiff’s] asthma; curvature of the
spine; obesity; gastroesophageal reflux disease (GERD);
and anemia do not preclude all work activity.
[Plaintiff] has a diagnosis of severe persistent asthma,
aggravated by GERD.
She uses multiple medications to
control her asthma and GERD, and her treating physician
has frequently said that her asthma is poorly controlled
and [Plaintiff] is receiving maximum treatment. However,
[Plaintiff’s] asthma is controlled such that she does not
frequently need emergency treatment and can manage it
with her medications. [Plaintiff] testified she dusts,
vacuums, makes her bed, does laundry, grocery shops, and
takes care of her personal needs. The [ALJ] finds the
limitation
to
sedentary
work
with
postural
and
environmental restrictions account[s] for [Plaintiff’s]
asthma.
. . .
[Plaintiff] testified she was hospitalized for 14 days
due to asthma, and had been to the emergency department
due to her asthma seven times in 2015.
The medical
evidence of record does not support these claims.
[Plaintiff] was hospitalized for five days in July 2015
due to asthma and anemia. She visited the emergency room
twice more in 2015 due to asthma.
[Plaintiff] also
alleged her hands and feet lock up due to lupus, but the
medical evidence of record does not show any treatment by
a rheumatologist for [Plaintiff’s] lupus, nor that she
has made this complaint to any treating physician. For
these reasons, [Plaintiff] is found to be only partially
credible.
(Tr. 30-31 (emphasis added) (internal citations omitted).)
As an initial matter, Plaintiff’s allegation that the ALJ
“mischaracterized [Plaintiff’s] testimony” falls short.
Entry 13 at 11.)
(Docket
In that regard, Plaintiff faults the ALJ for
“erroneously stat[ing] that [Plaintiff] had ‘testified that she
ha[d] been hospitalized seven times in 2015 for asthma.’” (Id. at
12
12
n.79
(quoting
Tr.
19)
(emphasis
added).)
According
to
Plaintiff, she testified that she visited the emergency room (i.e.,
she did not undergo inpatient hospitalization) four to five times
in 2015 for asthma.
(Id. at 13-14 (citing Tr. 82, 100, 101).)
However, the hearing transcript reveals that Plaintiff testified
that she had visited the hospital “maybe four or five times . . .
or seven times for [her] asthma” in 2015.
added).)
Moreover,
although
the
ALJ
(Tr. 82 (emphasis
did
use
the
term
“hospitalized” in his initial summary of Plaintiff’s testimony (Tr.
19), the ALJ later stated, in the more pertinent evaluation of
Plaintiff’s symptom reporting, that Plaintiff testified that she
had visited “the emergency department due to her asthma seven times
in 2015” (Tr. 31 (emphasis added)), thus making clear that the ALJ
did not ultimately mischaracterize Plaintiff’s testimony.
Plaintiff next criticizes the ALJ’s statement that “[t]he
medical evidence of record d[id] not support [Plaintiff’s] claims”
that she “was hospitalized for 14 days due to asthma, and had been
to the emergency department due to her asthma seven times in 2015”
(Tr. 31) as “improperly focus[ing] on alleged discrepancies in
dates of treatment” (Docket Entry 13 at 11).
In support of that
argument, Plaintiff quoted portions of her testimony which she
contends show that “[a]ny discrepancies between her testimony and
the actual dates and locations of treatment are simply trivial and
13
inconsequential.” (Id.; see also id. at 12-13 (quoting Tr. 82, 9699).)
The Court should not find error with respect to the ALJ’s
determination
that
the
record
failed
to
support
Plaintiff’s
statements about the extent of her asthma treatment in 2015.
As
the ALJ recognized, Plaintiff “was hospitalized for five days in
July 2015 for asthma and anemia.”
(Tr. 31; see also Tr. 541-50
(reflecting hospitalization from July 17, 2015, to July 21, 2015).)
Although Plaintiff returned to the hospital with complaints of
shortness of breath the next day, July 22, 2105, and remained
hospitalized through July 31, 2015 (see Tr. 551-65), the records
reflect
that
Plaintiff
“was
noted
to
have
no
evidence
of
respiratory compromise despite her respiratory complaints . . .
[and]
pulmonary
emboli
w[ere]
diagnosed”
(Tr.
558
(emphasis
added)), as well as a non-occlusive thrombus in the right cephalic
vein (see Tr. 559).
Thus, despite Plaintiff’s complaints of
shortness of breath on admission, her second hospitalization in
July 2015 involved treatment for conditions other than asthma.
Moreover,
the
ALJ
correctly
found
that,
after
the
hospitalization on July 17, 2015, Plaintiff visited emergency rooms
two more times for asthma in 2015.
(See Tr. 31; see also Tr. 576-
78 (recording emergency room treatment for headache and asthma on
August 12, 2015), 592-94 (documenting visit to emergency department
with complaints of, inter alia, wheezing September 10, 2015).)
14
Thus,
the
record
demonstrates
that
Plaintiff
visited
the
hospital/emergency department a total of three times in 2015 for
her asthma, and not “four or five . . . or seven times” as
Plaintiff testified (Tr. 82 (emphasis added)).
Furthermore, in discounting Plaintiff’s subjective complaints,
the
ALJ
relied
on
more
than
just
his
observations
about
discrepancies in Plaintiff’s testimony regarding the extent of her
asthma treatment in 2015.
(See Tr. 31.)
Although Plaintiff
contends that “[t]he ALJ never evaluated [Plaintiff’s] testimony
about the intensity, frequency and limiting effects of her symptoms
from asthma and GERD” (Docket Entry 11 at 11), as quoted above, the
ALJ did discuss Plaintiff’s testimony about her asthma and GERD
symptoms (see Tr. 18-19), and then concluded that her statements
merited only partial credit (see Tr. 19). Furthermore, Plaintiff’s
argument improperly focuses on one paragraph of the ALJ’s symptom
reporting analysis, to the exclusion of the remainder of that
analysis. As the language quoted and emphasized above makes clear,
the
ALJ
considered
the
infrequency
of
Plaintiff’s
emergency
treatment for asthma, her engagement in a wide range of daily
activities, as well as the objective medical evidence, in finding
Plaintiff’s statements about her asthma and GERD symptoms not
entirely credible.
Plaintiff
additionally
maintains
that
the
ALJ
erred
by
discounting Plaintiff’s symptom reporting on the grounds “that she
15
did not report her symptoms of lupus to her doctors, and she was
not treated for lupus by a rheumatologist.”
(referencing Tr. 31).)
(Docket Entry 11 at 14
In particular, Plaintiff points out that
she “never maintained that lupus disabled her[,]” (id. (citing Tr.
77)), as well as that she “lacked health insurance” and “could not
afford” to see a specialist for her lupus (id. at 15 (citing Tr.
249, 280, 337, 384, 397, 400, 403, 487, 519, 524, 529, 535)).
However, the ALJ’s finding that Plaintiff “alleged her hands and
feet lock up due to lupus, but the medical evidence of record does
not show . . . that she has made this complaint to any treating
physician” (Tr. 31 (emphasis added)) finds support in the record,
and Plaintiff does not contend otherwise (see Docket Entry 11 at 14
(“While [Plaintiff] reported during an office visit on September
17, 2015 that she had lupus and severe pain all over her body,
[Plaintiff] never maintained that lupus disabled her.”).)
Moreover, although the ALJ did discount Plaintiff’s lupus
symptoms in part because “the medical evidence of record d[id] not
show any treatment by a rheumatologist” (Tr. 31), and the record
does support Plaintiff’s claim that she could not afford to see a
specialist (see Tr. 280, 337, 384, 397, 400, 403, 487, 519, 524,
529, 535), Plaintiff has not shown that the ALJ’s error in that
regard prejudiced her.
See generally Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of
administrative law or common sense requires us to remand a case in
16
quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result”).
First,
as
discussed
above,
the
ALJ
relied
on
other,
permissible bases amounting to substantial evidence to discount
Plaintiff’s subjective complaints.
See Johnson v. Commissioner of
Soc. Sec., 535 F. App’x 498, 507 (6th Cir. 2013) (“[E]ven if an
ALJ’s adverse credibility determination is based partially on
invalid
reasons,
harmless
error
analysis
applies
to
the
determination, and the ALJ’s decision will be upheld as long as
substantial
evidence
remains
to
support
it.”);
Carmickle
v.
Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)
(concluding
that
ALJ
improperly
discounted
the
claimant’s
credibility for inability to afford treatment but holding that, “so
long as there remains ‘substantial evidence supporting the ALJ’s
conclusions on . . . credibility’ and the error ‘does not negate
the validity of the ALJ’s ultimate [credibility] conclusion,’ such
is deemed harmless and does not warrant reversal” (quoting Batson
v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th
Cir. 2004))); Stinnett v. Colvin, No. CV-13-3115-FVS, 2014 WL
6879074, at *6 (E.D. Wash. Dec. 4, 2014) (unpublished) (deeming
ALJ’s failure to develop record regarding the claimant’s ability to
afford treatment “harmless because . . . the ALJ’s remaining
reasoning and ultimate credibility finding is adequately supported
by substantial evidence”); Baker ex rel. C.S.A. v. Astrue, No.
17
1:11-CV-00592-WTL, 2012 WL 3779213, at *6 (S.D. Ind. Aug. 31, 2012)
(unpublished) (finding that “the ALJ did not consider alternative
explanations for why [the claimant] did not take medication” which
“ran afoul of SSR 96–7p,” but that “the error was harmless”
because, “[g]iven the analysis the ALJ engaged in with respect to
the SSR 96–7p factors, . . . proper consideration of alternative
explanations with respect to this single factor would not have
changed the outcome”); Wells v. Astrue, No. CIVIL 09-78-GFVT, 2009
WL 3789006, at *4 n.2 (E.D. Ky. Nov. 12, 2009) (unpublished)
(ruling that “the ALJ[’s] failure to address [the claimant’s]
alleged inability to afford treatment amounted to harmless error
because [the ALJ] based his credibility determination on many
factors,
not
treatment”).
merely
on
[the
claimant’s]
lack
of
medical
Second, as Plaintiff concedes, she “never maintained
that lupus disabled her[,]” (id. (citing Tr. 77)) and, thus, any
error by the ALJ in discounting Plaintiff’s symptom reporting
regarding her lupus would not have affected the outcome of her
claims.
Accordingly, the ALJ supported his analysis of Plaintiff’s
subjective
complaints
with
substantial
evidence,
and
allegations of error fail as a matter of law.
III.
CONCLUSION
Plaintiff has not established an error warranting remand.
18
her
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment (Docket Entry 12) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 16) be granted, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 9, 2018
19
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