JEFFRIES v. BERRYHILL
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 3/1/2019. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner (Docket Entry 12 ) be denied, Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and this action be dismissed with prejudice. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
COLLENE JEFFRIES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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1:18CV51
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Collene Jeffries, 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
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 12, 14; see also Docket Entry 13 (Plaintiff’s Memorandum);
Docket
Entry
15
(Defendant’s
(Plaintiff’s Reply)).
Memorandum);
Docket
Entry
16
For the reasons that follow, the Court
should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
November 12, 2013.
(Tr. 184-95.)
Upon denial of that application
initially (Tr. 59-67, 105-13) and on reconsideration (Tr. 68-100,
117-24),
Plaintiff
Administrative
requested
Law
Judge
a
(“ALJ”)
hearing
(Tr.
de
novo
125).
before
Plaintiff,
an
her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 34-58.)
Following the hearing, Plaintiff’s representative
filed a Post-Hearing Memorandum of Law and Objections to the
Vocational Witness’ Testimony (“Post-Hearing Objections”) with the
ALJ.
(Tr. 274-312.)
The ALJ subsequently overruled Plaintiff’s
objections to the VE’s testimony (see Tr. 16-17), and determined
that Plaintiff did not qualify as disabled under the Act (Tr. 1329). The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 179-81, 314-15), thereby making the ALJ’s ruling
the Commissioner’s final decision for purposes of judicial review.
In
rendering
that
decision,
the
ALJ
made
the
following
findings:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2018.
2.
[Plaintiff] has engaged in substantial gainful
activity during the following periods: from December 2013
through March 2014.
. . . [E]ven if [Plaintiff] had not engaged in
substantial gainful activity during this period, she
would still be found not disabled for the entire period
at issue . . . .
3.
[T]here has been a continuous 12-month period(s)
during which [Plaintiff] did not engage in substantial
gainful activity.
The remaining findings address the
period(s) [Plaintiff] did not engage in substantial
gainful activity.
2
4.
[Plaintiff] has the following severe impairments:
degenerative disc disease, migraine headaches, affective
disorder, and anxiety disorder.
. . .
5.
[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.
. . .
6.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except [she] can
occasionally climb ramps or stairs, but never climb
ladders, ropes, or scaffolds.
She can occasionally
balance, stoop, kneel, crouch, or crawl.
She can
tolerate no greater than occasional exposure to
unprotected
heights
or
moving
mechanical
parts.
[Plaintiff] is limited to simple, routine, repetitive
tasks, but not at a production rate pace (e.g., assembly
line work).
She is further limited to simple, workrelated decisions. She can have occasional contact with
supervisors, coworkers, but no contact with the general
public.
. . .
7.
[Plaintiff] is unable to perform any past relevant
work.
. . .
11. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
3
12. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from November 12, 2013, through
the date of this decision.
(Tr. 19-28 (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).
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has
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).
reviewing
court must
uphold
the
factual
findings
Instead, “a
of
the
ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
4
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the Court], therefore, is not whether [the claimant] is disabled,
but whether the ALJ’s finding that [the claimant] is not disabled
is supported by substantial evidence and was reached based upon a
correct application of the relevant law.” Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
5
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting
42
U.S.C.
423(d)(1)(A)).1
§
“To
regularize
the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account
a
claimant’s
age,
education,
and
work
experience
addition to [the claimant’s] medical condition.”
Id.
regulations
process’
establish
a
‘sequential
evaluation
in
“These
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.”
1
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . 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).
6
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
7
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 RFC] and [the claimant’s]
vocational capabilities (age, education, and past work experience)
to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this
step, the government cannot carry its “evidentiary burden of
proving that
[the
claimant]
remains
able
to
work
other
jobs
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred in relying on [VE] testimony to fulfill
[the ALJ’s] step 5 burden without properly addressing [Plaintiff’s]
[P]ost-[H]earing [O]bjections to the [VE’s] testimony”
Entry
13
at
3
(single-spacing,
underscoring,
and
(Docket
bold
font
omitted)); and
4
A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, 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
2) “[t]he ALJ erred by failing to analyze the opinion[s of
physical therapist Peggy Anglin (‘PT Anglin’)] in accordance with
the
regulations,
[SSA]
policy,
and
Fourth
Circuit
precedent”
(Docket Entry 11 at 11 (single-spacing, underscoring, and bold font
omitted)).
Defendant asserts otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 15 at 3-18.)
1. Post-Hearing Objections to the VE
In Plaintiff’s first issue on review, she argues that “[t]he
ALJ erred in relying on [VE] testimony to fulfill [the ALJ’s] step
5 burden without properly addressing [Plaintiff’s] [P]ost-[H]earing
[O]bjections to the [VE’s] testimony.”
(Docket Entry 13 at 3
(single-spacing, underscoring, and bold font omitted).)
According
to Plaintiff, “the ALJ did not even acknowledge or discuss the
rebuttal vocational evidence or the objections filed by Plaintiff
regarding the [VE’s] testimony.”
(Id. (emphasis in original).)
Plaintiff maintains that the ALJ’s failure to discuss Plaintiff’s
“rebuttal evidence” from vocational rehabilitation counselor Paula
Santagati that “‘the limitation of occasional interaction with
coworkers and supervisors precludes all work’” (id. at 6 (quoting
Tr. 311)) does not qualify as harmless error, because that evidence
“directly contradicts the [VE’s] opinion that Plaintiff can perform
the jobs [the VE] named” (id.).
Plaintiff further contends that
9
the ALJ’s failure to rule on Plaintiff’s objections does not
constitute harmless error (id. at 7), because those “objection[s]
demonstrated that up-to-date vocational information found at the
[Occupational
[VE’s]
Information
testimony
that
Network
two
of
(‘O*NET’)]
the
jobs
he
contradicted
[sic]
the
identified
(industrial sweeper/cleaner and laboratory equipment cleaner) could
be performed at the unskilled level required by the ALJ’s RFC” (id.
at 8 (citing Tr. 21-22, 53, 277)).
Plaintiff thus argues that the
ALJ erred by issuing “an unfavorable decision . . . prior to
affording
[Plaintiff]
the
opportunity
to
inconsistencies directly with the [VE].”
address
(Id.)
th[ose]
Plaintiff’s
contentions fall short.
As an initial matter, despite cross-examination of the VE by
Plaintiff’s counsel on several matters at the hearing (see Tr. 5657), including the “sources of information [the VE] rel[ied] on in
reaching [her] conclusions regarding the job numbers” (Tr. 56),
Plaintiff’s
counsel
neither
questioned
the
VE
regarding
the
specific issues raised in the Post-Hearing Objections, nor objected
to the VE’s testimony on any subject (see Tr. 56-58).
As a result,
Plaintiff has forfeited those arguments and objections, both in
terms
of
the
ALJ’s
obligation
to
address
the
Post-Hearing
Objections, see Mitchell v. Berryhill, No. 17 C 6241, 2019 WL
426149, at *8 (N.D. Ill. Feb. 4, 2019) (ruling that ALJ had no
obligation to address the plaintiff’s post-hearing objections to
10
VE, “as none of [the c]laimant’s post-hearing objections were first
raised at the hearing”), and of Plaintiff’s right to judicial
review of those matters in this Court, see Brown v. Colvin, 845
F.3d 247, 254 (7th Cir. 2016) (deeming a claimant’s failure to
object
to
VE
testimony
at
the
hearing
a
forfeiture
of
such
arguments on judicial review); Howard v. Astrue, 330 F. App’x 128,
130 (9th Cir. 2009) (holding that the plaintiff “waived any claim
he may have had on th[e] issue[ in question because his] attorney
had two opportunities to pose his own hypothetical questions to the
VE, and he never mentioned [the issue]”); Bachand v. Colvin, No.
1:15CV00686, 2016 WL 4074148, at *10 (M.D.N.C. July 29, 2016) (“To
the extent Plaintiff now complains that the ALJ (and/or VE) did not
sufficiently explain the methodology used to arrive at the reduced
numbers of jobs, Plaintiff has waived such argument by failing to
press
the
VE
further
on
cross-examination
regarding
his
methodology.”), recommendation adopted, slip op. (M.D.N.C. Sept. 2,
2016) (Schroeder, J.); Coleman v. Colvin, Civ. No. 0:14–2697–RBH,
2015 WL 5474674, at *19 (D.S.C. Sept. 16, 2015) (unpublished)
(“[T]he court is unpersuaded by [the plaintiff’s] attempts to now
challenge the [VE’s] testimony and the ALJ’s findings and point out
possible conflicts when none was raised during the proceeding.”);
Helsper v. Colvin, Civ. No. 12–0708(SRN/SER), 2013 WL 3974174, at
*19 n.19 (D. Minn. July 30, 2013) (unpublished) (“The ALJ relied on
the VE’s testimony about [available] jobs in [the ALJ’s] findings
11
at Step Five. [The plaintiff] did not challenge the VE’s testimony
as to those jobs and, therefore, any argument related to them is
waived.” (internal citation omitted)); Campbell v. Commissioner of
Soc. Sec., Civ. No. 11–14559, 2013 WL 823377, at *7 (E.D. Mich.
Feb. 13, 2013) (unpublished) (“[D]espite expressly being given the
opportunity to question the VE at the conclusion of the ALJ’s
questioning, [the] plaintiff’s counsel failed to make any further
inquiries or challenges to [the VE’s] testimony and thus waived any
argument he may otherwise have had regarding the . . . occupations
the VE testified were available to [the] plaintiff.” (internal
citation omitted)), recommendation adopted, 2013 WL 822392 (E.D.
Mich. Mar. 6, 2013) (unpublished); Stepinski v. Astrue, No. CA
11–183 ML, 2012 WL 3866678, at * 9–10 (D.R.I. Aug. 6, 2012)
(unpublished) (“[The p]laintiff’s counsel questioned the VE . . .
and did not ask about th[e] matter [at issue] . . . .
The [c]ourt
views unfavorably the silence of [the p]laintiff’s counsel at the
hearing . . . .
Reversal and remand . . . would encourage other
counsel to remain silent in similar circumstances. This [c]ourt is
disinclined to provide such an incentive. Accordingly, the [c]ourt
finds that [the p]laintiff waived this issue by failing to raise it
before the ALJ.” (internal citations omitted)), recommendation
adopted, 2012 WL 3863812 (D.R.I. Sept. 5, 2012) (unpublished).
Plaintiff nevertheless contends that “it [wa]s impossible” to
address the matters raised in the Post-Hearing Objections during
12
the ALJ’s hearing, because “[t]he majority of the time set aside
for the hearing was dedicated to questioning [Plaintiff],” and the
VE’s “testimony comprised a small percentage of the hearing.”
(Docket
Entry
13
at
10
n.5.)
However,
despite
Plaintiff’s
assertion of hearing time constraints, “there is no indication that
the
ALJ
restricted
[P]laintiff’s
questioning the VE at the hearing.”
17-0401,
2018
WL
3719884,
at
*6
representative
from
further
Smith v. Berryhill, No. CV
(W.D.
La.
July
19,
2018)
(unpublished), recommendation adopted, 2018 WL 3715754 (W.D. La.
Aug. 3, 2018) (unpublished).
Moreover,
Plaintiff
asserts
that
“[i]t
is
simply
not
reasonable to expect that, in the waning moments of the hearing,
with no notice of what [the VE] might say, when the [VE] can rely
on any number of vocational sources but in this case relied on [the
Dictionary of Occupational Titles (‘DOT’),] a source with 12,000
complex descriptions
of
jobs
with
many
moving parts,
that
a
representative can effectively raise every possible issue without
first
consulting
the
source
materials.”
(Id.
at
11
n.5.)
Plaintiff further argues that “the [VE] in this case did not
provide a report prior to the hearing and therefore all of his
[sic] testimony was ‘surprise testimony.’
The [SSA] patently
acknowledges that such testimony can leave unanswered questions at
the close of the hearing.”
(Id. at 9 (citing Hearings, Appeals,
and Litigation Law Manual (“HALLEX”) § I-2-6-80 (“If testimony at
13
a hearing leaves unanswered questions, the ALJ may supplement the
hearing record with additional oral testimony, a deposition, or
additional documentary evidence.
A continuance or supplemental
hearing is appropriate when: certain testimony or a document
adduced at the hearing has taken the claimant by surprise, is
adverse to the claimant’s interest, and presents evidence that the
claimant could not reasonably have anticipated and to which the
claimant is not prepared to respond . . . .”)).)
Notwithstanding
Plaintiff’s
characterization
of
the
VE’s
statements as “surprise testimony” (id. at 9), the materials
attached to Plaintiff’s Post-Hearing Objections make clear that
Plaintiff’s representatives during the administrative proceedings5
possessed their “rebuttal evidence” and documents supporting their
“objections” long before the VE’s testimony in this case. (See Tr.
281-311 (containing letters from BLS employees dated Feb. 12, 2014,
and Nov. 19, 2007, and Santagati’s opinion dated Oct. 1, 2015).)
Thus, Plaintiff’s counsel “reasonably . . . anticipated” that this
issue would arise in connection with the VE’s testimony and had or
should have “prepared to respond” to testimony on that issue during
the ALJ’s hearing, HALLEX § I-2-6-80, as recently recognized by
another federal district court:
5
Plaintiff retained different counsel to represent her in the instant
petition for judicial review.
14
The Santagati Opinion is dated October 1, 2015. Thus, it
was “obtained” more than a year before the [VE’s]
testimony, offered on December 6, 2016[,] even came into
existence.
. . .
. . . [T]he Santagati Opinion appears to be a “form”
opinion used by disability claimants whenever a
restriction to occasional coworker or supervisor
interaction comes into play. See Treadaway v. Berryhill,
No. 4:17-cv-1093, 2018 WL 3862106, at *5 (S.D. Tex. Aug.
13, 2018). Claimants in several cases have offered the
same or similarly generic opinions from Ms. Santagati.
See, e.g., id.; Collins v. Berryhill, No. 3:17cv633
(MHL), 2018 WL 4232888, at *13 (E.D. Va. Aug. 20, 2018)
(addressing the same Santagati Opinion and noting “the
widespread use of the very same Report by plaintiffs in
other courts”); Looney v. Berryhill, No. 3:17cv450 (DJN),
2018 WL 3826778, at *11–12 (E.D. Va. Aug. 10, 2018)
(addressing the same Santagati Opinion and noting that
“[s]everal courts have received reports from Santagati
containing identical testimony regarding work-preclusive
social
limitations”);
Kidd
v.
Berryhill,
No.
5:17-CV-420-REW, 2018 WL 3040894, at *4 (E.D. Ky. June
19, 2018); Lara v. Berryhill, No. B-17–77, 2017 WL
7790109, at *7 (S.D. Tex. Dec. 4, 2017); Reeves v.
Berryhill, No. 3:16-CV-2510, 2017 WL 3433706, at *11
(M.D. Pa. Aug. 10, 2017). Like [the plaintiff’s] use of
the Santagati Opinion here, these claimants waited until
after
the
administrative
hearing
to
submit
Ms.
Santagati’s opinion and then, on appeal to the federal
district court, argued that the ALJ’s treatment of the
opinion required remand. Treadaway, 2018 WL 3862106, at
*5; Looney, 2018 WL 3826778, at *11–12; Kidd, 2018 WL
3040894, at *3–4; Lara, 2017 WL 7790109, at *7, *9–10;
Reeves, 2017 WL 3433706, at *11; see also Collins, 2018
WL 4232888, at *12–14 (arguing that the Appeals Council
erred in rejecting the Santagati Opinion). While the
[c]ourt does not know whether all the claimants in the
cases identified by the [c]ourt were represented by the
same representatives at the administrative level, they
were all represented at the district court level by [the
plaintiff’s] lead counsel here.
This pattern suggests a strategy by disability claimant
representatives to forego cross-examining a VE about the
15
issues raised by the Santagati Opinion, even though the
opinion is in hand (or at least known) before the
hearing. See, e.g., Kidd, 2018 WL 3040894, at *4 (noting
that because the Santagati report existed at the time of
the hearing, the claimant could have cross-examined the
VE on the issues raised on appeal, although he did not).
The representatives then submit the Santagati Opinion
after the hearing, and if the ALJ rules unfavorably
despite the submission, the Santagati Opinion serves as
a potential basis for remand on appeal.
If such a
strategy is in fact being implemented, it abuses the
process
by
which claimants
can properly
submit
post-hearing evidence for consideration in social
security disability cases.
The [c]ourt cannot say for sure whether this is what
occurred in this instance. But it notes that prior to
the December 6, 2016 hearing here, Ms. Santagati was an
employee of Citizens Disability, LLC, which represented
[the plaintiff] at this hearing and afterwards. Rosado
v. Berryhill, No. 4:16-cv-00173, 2018 WL 816578, at *2
(E.D. Va. Jan. 22, 2018). In March 2016, Ms. Santagati
testified on behalf of the claimant in Rosado, who was
also represented by Citizens Disability, LLC, and she
gave the same opinion reflected by the Santagati Opinion
here: that a limitation to occasional interaction with
coworkers and supervisors would preclude all work.
Rosado, 2018 WL 816578, at *2, *6. Thus, even if [the
plaintiff’s] representatives from Citizens Disability,
LLC were not aware of the Santagati Opinion in October
2015 (when Ms. Santagati offered it), they were almost
certainly aware of it well before they attended the
December 6, 2016 hearing or submitted the February 7,
2017
Post-Hearing
Memorandum.
And
while
[the
plaintiff’s] representative may not have known beforehand
precisely what [hypothetical] questions the VE would be
asked at the hearing, restrictions on coworker and
supervisor interaction are commonly incorporated into
[such] questions.
[The plaintiff’s] representative
should have expected that the ALJ’s questioning might
touch upon these restrictions and, as necessary, been
prepared
to
question
[the
VE]
based
on
the
already-existing Santagati Opinion.
Mitchell,
2019
WL
426149,
at
*9–10
(internal
citations
to
administrative record and some case citations omitted); see also
16
Smith, 2018 WL 3719884, at *6 (“[P]laintiff’s principal thrust was
that the Department of Labor’s Bureau of Labor Statistics (“BLS”)
does not publish job numbers by [DOT] code, but by Standard
Occupation Classification Codes (‘SOC’), and the two regimes are
not equivalent.
However, since at least 2014, [P]laintiff’s
representative’s firm, Citizens Disability, L.L.C., has known that
the BLS is unaware of any data source or methodology for reliably
translating the number of jobs from SOC codes to [DOT] codes.
Therefore, it was not necessary for Plaintiff’s representative to
familiarize herself with each of the 12,000 jobs of the DOT to
question the VE about his methodology.” (internal citations to
administrative transcript omitted)).
“Simply put, [Plaintiff] was
required to raise her objections at the hearing, notwithstanding
any alleged impracticalities in doing so.”
Mitchell, 2019 WL
426149, at *8.6
Despite the absence of any obligation to address Plaintiff’s
Post-Hearing Objections (and contrary to Plaintiff’s assertion that
“the
ALJ
did
not
even
acknowledge
or
discuss
the
rebuttal
vocational evidence or the objections filed by Plaintiff regarding
the
[VE’s]
testimony”
(Docket
6
Entry
13
at
3
(emphasis
in
For the same reasons, the Court should not find error with respect to the
ALJ’s denial, at the end of the hearing, of the request of Plaintiff’s counsel
“for 30 days to keep the record open to respond to vocational testimony.” (Tr.
58.)
17
original))), the ALJ did discuss (and overrule) Plaintiff’s PostHearing Objections as follows:
Subsequent to the hearing, [Plaintiff’s representative]
submitted
objections
to
[the
VE’s]
testimony.
[Plaintiff’s counsel], who did appear at the hearing and
cross-examine the [VE], offered no objections at that
time. Pursuant to 20 CFR 404.1566(d) . . ., when the
[SSA] determines that unskilled, sedentary, light, or
medium jobs exist in the national economy, the [SSA]
takes administrative notice of reliable job information
from various governmental and other publications.
Nothing in Social Security law, regulations, or the
[HALLEX] requires the [VE] to produce any of these
sources.
A non-exhaustive list of these sources
includes:
1.
[DOT], published by the Department of Labor;
2.
County Business Patterns, published by the Bureau
of the Census;
3.
Census Reports, also published by the Bureau of
the Census;
4.
Occupational Analyses, prepared for the [SSA] by
various [s]tate employment agencies; and
5.
Occupational Outlook Handbook, published by the
Bureau of Labor Statistics.
(20 CFR 404.1566(d)(1)-(5) . . .). In addition, this
regulation provides that the [SSA] may use the testimony
of a [VE] to determine whether work skills can be used in
other work and the specific occupations in which they can
be used.
(20 CFR 404.1566(e) . . .).
[Plaintiff’s
counsel] cross-examined the [VE] on a number of issues,
including the sources of job numbers. The [VE] responded
to [counsel’s] question in detail, noting the use of
sources outlined under the administrative notice
provision of 20 CFR 404.1566(d) . . . .
The [VE]
properly used the information contained in these sources
to render her opinion. As noted above, her recognized
expertise provides the foundation for her ability to rely
on these sources.
Therefore, the [ALJ] overrules
[Plaintiff’s] objections to the testimony of the [VE],
and finds the testimony of the [VE] reasonable and
acceptable.
18
(Tr. 16-17 (emphasis added) (internal citation to administrative
record omitted).)
Although the ALJ did not expressly discuss the substance of
Plaintiff’s objections, his remarks make clear that “he believed
that [the VE] identified her underlying sources and methodology in
a manner sufficient to find her testimony acceptable . . . [a]nd
although [Plaintiff] may not agree with th[at] resolution, she does
not cite any legal authority demonstrating that it was legally
insufficient.”
Mitchell, 2019 WL 426149, at *9; see also Kidd,
2018 WL 3040894, at *5 (rejecting the plaintiff’s argument that ALJ
did not adequately address post-hearing objections and holding that
“ALJ need not exhaustively catalog each argument to enter a proper
ruling”).7
Moreover, as discussed in more detail below, the ALJ
did not err in overruling Plaintiff’s Post-Hearing Objections as
meritless.
7
Plaintiff’s reliance on HALLEX §§ I-2-6-74(B) and I-2-5-30(B) (see Docket
Entry 13 at 5 n.2) does not aid her cause for two reasons. First, “because the
instructions in the HALLEX have not been formally promulgated as rules or
regulations, they are not legally enforceable by claimants against the
Commissioner” and, thus, “an ALJ’s failure to follow instructions in the HALLEX
does not show reversible error.” Jessee v. Berryhill, No. 1:16-cv-3188-SEB-MJD,
2018 WL 797393, at *4 (S.D. Ind. Feb. 9, 2018) (unpublished). Second, even if
enforceable, neither HALLEX section “compel[s] an ALJ to rule on objections to
VE testimony posed after a hearing has ended.” Horner v. Berryhill, No. 17 CV
4823, 2018 WL 1394038, at *2 (N.D. Ill. March 20, 2018) (unpublished).
Plaintiff’s citation of Social Security Ruling 00-4p, Policy Interpretation
Ruling: Titles II and XVI: Use of Vocational Expert and Vocational Specialist
Evidence, and Other Reliable Occupational Information in Disability Decisions,
2000 WL 1898704 (Dec. 4, 2000) (“SSR 00-4p”), fares no better. (See Docket Entry
13 at 6.) SSR 00-4p requires only that ALJs resolve apparent conflicts between
a VE’s testimony and the DOT, 2000 WL 1898704, at *2, and “does not govern
conflicts between dueling VEs” (Docket Entry 15 at 11).
19
Plaintiff first maintains that Ms. Santagati’s “opin[ion] that
‘the
limitation
of
occasional
interaction
with
coworkers
and
supervisors precludes all work’. . . directly contradicts the
[VE’s] opinion that Plaintiff can perform the jobs [the VE] named.”
(Docket Entry 13 at 6 (quoting Tr. 311, and referencing Tr. 5255).) However, Ms. Santagati’s opinion predates the VE’s testimony
in this case by more than ten months and contains no specific
references to the facts and circumstances of the instant case.
(Tr. 310-11.)
As a result, the ALJ did not err by rejecting Ms.
Santagati’s generic opinion in favor of the VE’s more specific
hearing testimony that an individual of Plaintiff’s age, with
Plaintiff’s education, work experience, and RFC, and limited to,
inter alia, occasional interaction with coworkers and supervisors
could nevertheless perform the jobs the VE cited.
WL
3040894,
at
*11
(finding
no
error
where
See Kidd, 2018
ALJ
“rationally
determined to credit [the VE’s] impartial, expert opinion (specific
to [the plaintiff’s] circumstances and largely reliant on the
[DOT])
over
Santagati’s
generalized,
non-specific
report,
expressing the extreme, outlier view (with no record or evidentiary
support)
that
an
‘occasional
interaction’
limitation
alone
‘precludes all work’”); Lara, 2017 WL 7790109, at *9-10 (“Santagati
identifies no factual basis beyond her own opinion as to why every
single job in America requires more than occasional interaction
20
with others. . . .
Santagati’s opinion is not sufficiently
supported by any evidence.”).
Plaintiff
next contends
that
her
Post-Hearing Objections
established “the well-known fact that the [DOT] is an obsolete and
static database that is no longer being developed or enhanced by
the United States Department of Labor (USDOL)[,] . . . and [that]
the type of information once provided via the [DOT] is not being
provided by the USDOL via ‘O*NET.’” (Docket Entry 13 at 7 (citing
Tr. 275, 281-82, 283-90).)
More specifically, Plaintiff alleges
that the Post-Hearing Objections “demonstrated that up-to-date
vocational information found at the O*NET contradicted the [VE’s]
testimony that two of the jobs he [sic] identified (industrial
sweeper/cleaner
and
laboratory
equipment
cleaner)
could
performed at the unskilled level required by the ALJ’s RFC.”
be
(Id.
at 8 (citing Tr. 21-22, 53, 277).) Plaintiff concedes that, “under
the regulations[,] the [DOT] is one of the administratively noticed
sources of vocational information[,]” but argues that “the [SSA’s]
rules also plainly require that any vocational evidence used to
deny benefits must be up-to-date and reliable.”
(Id. at 8-9 n.4.)
According to Plaintiff, “the fact that the [DOT] has not been
updated in 30 years, just as a matter of common sense, plainly
demonstrates that it, at a bare minimum, cannot be unquestionably
assumed that it is up-to-date.”
original).)
21
(Id. at 9 n.4 (emphasis in
Plaintiff’s contentions regarding the O*NET fail for two
reasons.
First,
“while
the
[DOT]
appears
on
the
list
of
governmental and other publications from which the [SSA] can take
‘administrative notice of reliable job information,’ the O*NET does
not.
Thus, even if the VE’s testimony was in conflict with O*NET,
there is no requirement that the VE’s testimony comply with that
database.”
Malfer v. Colvin, Civ. No. 12–169J, 2013 WL 5375775,
at *5 (W.D. Pa. Sept. 24, 2013) (unpublished) (internal citations
omitted).
Accordingly, the VE here labored under no obligation to
harmonize her testimony with the O*NET.
See Horner v. Berryhill,
No. 17 C 4823, 2018 WL 1394038, at *2 (N.D. Ill. Mar. 20, 2018)
(unpublished) (“[The p]laintiff argues that ‘common sense’ should
prevail over the explicit regulatory language and the [SSA’s]
continued reliance on the [DOT]. [The p]laintiff cites to no legal
authority for the wholesale abandonment of the [DOT], and we are
not willing to rely on ‘common sense’ as legal support for [the]
plaintiff’s position.”).
Second, as the Commissioner points out in her brief (see
Docket Entry 15 at 12), even assuming the VE had the obligation to
adopt the
O*NET’s
categorization
of
the
skill
levels
of
the
industrial sweeper/cleaner and laboratory equipment cleaner jobs,
Plaintiff does not contend that the O*NET rates the third job cited
by the VE, cook helper, at a level skill higher than the unskilled
work the ALJ found Plaintiff of performing (see Docket Entry 13 at
22
7-10). Furthermore, the VE testified that 248,000 cook helper jobs
existed in the national economy (see Tr. 54-55), which clearly
constitutes a significant number of jobs, see Hicks v. Califano,
600 F.2d 1048, 1051 (4th Cir. 1979) (“[The c]laimant contends that
the light and sedentary jobs described by the [VE] . . . do not
exist in significant numbers within the region.
We do not think
that the approximately 110 jobs testified to by the [VE] constitute
an insignificant number.”).
In sum, Plaintiff has failed to demonstrate that the ALJ erred
regarding
the
Post-Hearing
Objections
and,
thus,
her
first
assignment of error fails as a matter of law.8
2. Opinions of PT Anglin
Plaintiff’s second and final assignment of error contends that
“[t]he ALJ erred by failing to analyze the opinion[s of PT Anglin]
in accordance with the regulations, [SSA] policy, and Fourth
Circuit precedent.”
(Docket Entry 13 at 11 (single-spacing,
8
As the Commissioner observes (see Docket Entry 15 at 7-8 n.2), a large
portion of Plaintiff’s Post-Hearing Objections attacked the reliability of
SkillTRAN’s Job Browser Pro program (see Tr. 274-76), as used by the VE to
generate job numbers (see Tr. 56-57). Plaintiff, however, did not raise that
argument in her brief in support of her instant motion (see Docket Entry 13) and,
thus, has waived that argument. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (“[A] litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever hold its peace.” (internal quotation
marks omitted)); Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220,
at *1 n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should
not expect a court to do the work that it elected not to do.”); Nickelson v.
Astrue, No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July 27, 2009)
(unpublished) (Dixon, M.J.) (“[A]s [the plaintiff] failed to develop these
arguments in his [b]rief, the [C]ourt will not address them.”), recommendation
adopted, slip op. (M.D.N.C. Sept. 21, 2009) (Schroeder, J.).
23
underscoring,
Plaintiff
and
bold
asserts
font
that
‘good/specific/supported’
omitted).)
the
reasons
More
specifically,
ALJ
failed
to
provide
for
rejecting
PT
Anglin’s
opinions” (id. at 15 (single-spacing, underscoring, and bold font
omitted)), and neglected to evaluate PT Anglin’s opinions under the
factors listed in 20 C.F.R. § 404.1527(c) (see id. at 15-16).
According
to
Plaintiff,
those
errors
by
the
ALJ
qualify
as
prejudicial, as PT Anglin’s opinions, offered in the context of a
functional capacity evaluation (“FCE”), “(1) contain far greater,
and more detailed limitations than contained within the ALJ’s RFC
finding; and (2) met Plaintiff’s burden to come forward with
evidence establishing that she is ‘disabled’” (id. at 13), because
they limit Plaintiff “to less than sedentary work and [find her]
incapable of even part-time work” (id. at 14).
Those arguments
miss the mark.
Following an FCE conducted on April 8, 2015 (Tr. 483-507), PT
Anglin reported that Plaintiff “c[ould] lift 8 [pounds] within
middle body heights of knuckle to shoulder level but only 5
[pounds] in an overhead lift,” and that Plaintiff’s “walking
tolerance
[wa]s
also
limited
to
slightly
less
than
what
is
considered to be expected for functional community ambulation of
1000 feet in 5 minutes.” (Tr. 486.)
PT Anglin further noted that
Plaintiff’s “overall balance [wa]s impaired,” and opined that
Plaintiff “[wa]s functioning at a less than [s]edentary physical
24
work demand classification” and “d[id] not demonstrate the ability
to tolerate even part time work.”
(Id.)
“[o]verall
combination
test
findings,
in
PT Anglin stated that
with
clinical
observations, suggest[ed] the presence of near full levels of
physical
effort
on
[Plaintiff’s]
behalf,”
and
that
Plaintiff
“perceive[d] herself as functioning in a less than [s]edentary
level of work demands, which was consistent with observations of
her abilities during testing.”
(Tr. 485.)
The ALJ assessed PT Anglin’s opinions as follows:
In April 2015, [PT Anglin] evaluated [Plaintiff] and
wrote a statement regarding her functional abilities.
Because a physical therapist is not an acceptable medical
source who can provide medical opinions as defined by
[the SSA’s] [r]egulations, the [ALJ] has considered the
opinion evidence of [PT] Anglin as that of an “other
source.” . . . [Plaintiff’s] grip testing were [sic] in
the normative levels, her gait was slow but non-antalgic,
and her lifting tests were limited by her own subjective
statements.
Additionally, the bulk of her range of
motion testing notes that [Plaintiff] was within normal
limits, and those that were deemed “painful and limited
ability” or “unable to perform” failed to document any
measure of the degree of [Plaintiff’s] functional
limitations.
The evaluation relied quite heavily on
[Plaintiff’s] subjective complaints of pain and her
statements that she tried “really, really hard.”
The
exam noted the mild objective findings on medical imaging
but did not correlate any of these objective findings to
[Plaintiff’s] reported limitations. For these various
reasons, in addition to the lack of support from the
overall record, the [ALJ] gives [PT] Anglin’s opinion
little weight.
(Tr. 26 (internal citations omitted).)
analysis
of
PT
Anglin’s
opinions
regulations and policies.
25
The ALJ’s above-quoted
complies
with
the
SSA’s
As an initial matter, Plaintiff has conceded (see Docket Entry
13 at 15)9 and the ALJ correctly recognized (see Tr. 26), that PT
Anglin does not constitute an “acceptable medical source” under the
regulations, 20 C.F.R. § 404.1513(a) (defined to include, inter
alia, “[l]icensed physicians (medical and osteopathic doctors”),
but rather an “[o]ther source[],” 20 C.F.R. § 404.1513(d)(1).10
Social Security Ruling 06-03p, Titles II and XVI: Considering
Opinions and Other Evidence from Sources Who Are Not “Acceptable
Medical Sources” in Disability Claims; Considering Decisions on
Disability by Other Governmental and Nongovernmental Agencies, 2006
WL 2329939 (Aug. 9, 2006) (“SSR 06-03p”) addresses the significance
of the distinction between “acceptable medical sources” and “other
sources” as follows:
9
Notably, Plaintiff does not argue (see Docket Entry 13 at 11-21) that PT
Anglin worked so closely under a physician’s supervision that she offered her
opinions while acting as the agent of an acceptable medical source.
See
generally Taylor v. Commissioner of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th
Cir. 2011) (holding that nurse practitioner could qualify as “acceptable medical
source” where she worked under physician’s close supervision such that she acted
as physician’s agent); Padrta v. Colvin, No. 3:12–CV–01521–KI, 2014 WL 1236185,
at *6 (D. Or. Mar. 25, 2014) (unpublished) (holding where “[t]here is no evidence
that the nurse practitioner work[ed] closely with and [wa]s supervised by an
acceptable medical source[,] . . . the ALJ is only required to give a germane
reason to reject [the nurse practitioner’s] opinion”); see also Martin v. Colvin,
No. 1:14CV516, 2015 WL 5944455, at *10 (M.D.N.C. Oct. 13, 2015) (unpublished)
(instructing ALJ to reassess conclusion that counselor did not constitute
acceptable medical source where supervising psychologist signed off on
counselor’s opinions), recommendation adopted, slip op. (M.D.N.C. Nov. 3, 2015)
(Biggs, J.).
10
Effective March 27, 2017, the Commissioner enacted substantial revisions
to Section 404.1513. This Recommendation applies the version of Section 404.1513
in effect on the date of the ALJ’s decision.
26
The distinction between “acceptable medical sources” and
other health care providers who are not “acceptable
medical sources” is necessary for three reasons. First,
we need evidence from “acceptable medical sources” to
establish the existence of a medically determinable
impairment. Second, only “acceptable medical sources”
can give us medical opinions. Third, only “acceptable
medical sources” can be considered treating sources . . .
whose medical opinions may be entitled to controlling
weight.
SSR 06-03p, 2006 WL 2329939, at *2 (emphasis added) (internal
citations omitted). Thus, Plaintiff’s assertion that the ALJ erred
by not recognizing PT Anglin as “Plaintiff’s treating source”
(Docket Entry 13 at 16) lacks any merit.
Plaintiff
nevertheless
evaluate opinions from
contends
that
the
ALJ
must
still
“other sources” like PT Anglin under the
“factors set forth in 20 C.F.R. § 404.1527(c)” (Docket Entry 13 at
15), and argues that, “[d]espite the [SSA’s] clear preference for
examining sources, the ALJ’s [sic] fails to even acknowledge that
PT Anglin is the only source to have provided such an opinion” (id.
at 16 (quoting 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more
weight to the medical opinion of a source who has examined you than
to the medical opinion of a medical source who has not examined
you.”))).
However, the ALJ’s analysis of PT Anglin’s opinions
clearly acknowledged that she examined Plaintiff (see Tr. 26), and
Plaintiff cites no authority for her assertion that the ALJ must
expressly acknowledge in the decision that PT Anglin offered “the
27
only examining opinion regarding Plaintiff’s physical limitations”
(Docket Entry 13 at 16).
Plaintiff next asserts that, “to a certain extent[,] it is
only possible to respond to the [ALJ’s] reasoning that PT Anglin
based her opinion on Plaintiff’s subjective complaints that ‘of
course
she
did[,]’”
because
“[c]onsideration
of
a
patient’s
subjective reports is always a part of medical treatment and
evaluation.”
(Id. at 17 (emphasis in original).)
According to
Plaintiff, “the ALJ’s comment is purely speculative and supported
by no evidence whatsoever” (id.), and “it is improper to reject
[an] opinion where, as here, “‘[t]here is nothing in the record to
suggest that . . . [the medical provider] relied on [the patient’s
descriptions of her symptoms] more heavily than [the provider’s]
own clinical observations’” (id. (quoting Ryan v. Commissioner of
Soc. Sec., 528 F.3d 1194, 1200 (9th Cir. 2008)).
Plaintiff’s
argument glosses over the fact that the ALJ did not fault PT Anglin
for considering Plaintiff’s subjective complaints at all; rather,
the ALJ found that PT Anglin’s “evaluation relied quite heavily on
[Plaintiff’s] subjective complaints of pain and her statements that
she tried ‘[r]eally, [r]eally [h]ard.’” (Tr. 26 (quoting 506).)11
11
the
FCE
her
528
In that regard, Plaintiff’s chosen quotation from Ryan actually supports
ALJ’s decision-making, i.e., he discounted PT Anglin’s opinions because her
report “suggest[ed] that . . . [she] relied on [Plaintiff’s descriptions of
symptoms] more heavily than [PT Anglin’s] own clinical observations.’” Ryan,
F.3d at 1200.
28
The ALJ’s citation of a specific example from PT Anglin’s FCE
depicting
PT
Anglin’s
significant
reliance
on
Plaintiff’s
subjective complaints (id.) also belies Plaintiff’s claim that “the
ALJ’s comment is purely speculative and supported by no evidence
whatsoever” (Docket Entry 13 at 17).
Plaintiff additionally attacks “[t]he ALJ’s rejection of PT
Anglin’s opinion[s] due to purported inconsistency with her own
treatment notes [a]s simply an impermissible substitution of the
ALJ’s lay opinion for that of the expert,” because “PT Anglin was
obviously aware of the content of her own treatment notes when she
formulated
her
opinion.”
(Id.
(emphasis
in
original).)
A
fundamental flaw exists in this argument, in that PT Anglin, as a
one-time FCE evaluator does not have “treatment notes” to support
her opinions of Plaintiff’s functional limitations.
Without such
treatment notes to fall back on, the probative value of PT Anglin’s
opinions depends in large part on the FCE report’s support of those
opinions with objective findings.
The ALJ did not err by citing
the FCE report’s failure to support PT Anglin’s opinions as one
factor in his decision to discount her opinions.
Finally, Plaintiff maintains that, contrary to the ALJ’s
finding (see Tr. 26), PT Anglin’s opinions “[are] not inconsistent
with the evidence of record” (Docket Entry 13 at 18).
In that
regard, Plaintiff cites to her own subjective reports to medical
providers and a few clinical findings throughout the relevant
29
period
in
opinions.
this
case
which
she
contends
support
PT
Anglin’s
(Id. at 18-20 (citing Tr. 42-43, 317, 346, 364, 390,
401, 405, 414, 454, 549, 622, 666, 668, 670, 692, 734, 735, 741,
751, 754, 792, 799).)
However, Plaintiff misinterprets this
Court’s standard of review.
The Court must determine whether the
ALJ supported his decision to discount PT Anglin’s opinions with
substantial evidence, and not whether other record evidence weighs
against the ALJ’s analysis, Lanier, 2015 WL 3622619, at *1 (“The
fact that [the p]laintiff disagrees with the ALJ’s decision, or
that there is other evidence in the record that weighs against the
ALJ’s decision, does not mean that the decision is unsupported by
substantial evidence.”).
Here, although the ALJ did not specify the objective evidence
that failed to support PT Anglin’s opinions in the same paragraph
in which the ALJ weighed those opinions (see Tr. 26), elsewhere in
the ALJ’s decision, he detailed evidence that did not support PT
Anglin’s extreme limitations (see Tr. 22-24).
suffices.
That approach
See McCartney v. Apfel, 28 F. App’x 277, 279-80 (4th
Cir. 2002) (rejecting challenge to ALJ’s finding for lack of
sufficient detail where other discussion in decision adequately
supported finding and stating “that the ALJ need only review
medical evidence once in his decision”); Kiernan v. Astrue, No.
3:12CV459-HEH, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013)
(unpublished) (observing that, where an “ALJ analyzes a claimant’s
30
medical
evidence
in
one
part
of
his
decision,
there
is
no
requirement that he rehash that discussion” in other parts of his
analysis).
In particular, the ALJ noted:
•
Although in April 2015, Plaintiff reported ongoing
dizziness following a fall, and displayed pain with
eye movements, slow finger to nose testing, and an
unsteady gait, “she had no . . . disturbances in
coordination,
focal
weakness,
numbness
or
paresthesias[,] . . . [a]n MRI of her brain was
negative and the following month she reported that
her dizziness was better unless she st[ood] too
quickly” (Tr. 23 (internal citations omitted));
•
Despite Plaintiff’s complaint of “neuropathic pain
in her feet[, d]uring her physical examinations,
she occasionally demonstrated diminished sensation
in her ankles and feet . . . [but] evaluation of
her lower extremity sensation was generally
unremarkable[, ] she [] walked with a normal steady
gait with no assistive device[,] and reported that
gabapentin ha[d] been effective in reducing her
neuropathic
pain”
(id.
(internal
citations
omitted));
•
“[D]espite [Plaintiff’s] testimony, there [wa]s
little, if any[,] evidence of any neuropathic
changes in her hands and her grip strength testing
was in the normative group” (id.);
•
“Although [Plaintiff’s] diabetes has been poorly
controlled at times, [Plaintiff’s] A1c levels have
improved when she watches her diet and takes her
medication as directed” and Plaintiff’s “noncompliance demonstrates a possible unwillingness to
do that which is necessary to improve her condition
. . . [and] may also be an indication that her
symptoms are not as severe as she purports” (id.);
•
In December 2013, despite Plaintiff’s “complain[ts]
of
progressively
worsening
lower
back
pain
continuing for several days[, o]n examination, she
showed no tenderness over the spine and only mild
paraspinal muscle pain in the mid thoracic area”
(id. (internal citation omitted));
31
•
•
The
In January 2014, Plaintiff “continued to complain
of back pain . . . [but o]n examination she had
normal range of motion and strength throughout her
extremities with no edema and no tenderness, [] her
straight leg raise was negative[, h]er physician
observed that [Plaintiff] was able to ambulate into
the room with a steady gait[, h]er lumbar x-rays
showed preservation of the vertebral body height
and
disc
spaces
with
only
mild
scattered
degenerative changes” (Tr. 24 (internal citations
omitted)); and
“[D]espite [Plaintiff’s] impairments, she has
engaged in a somewhat normal level of daily
activity
and
interaction[,]”
such
as
light
household cleaning, washing dishes, picking up
clutter, sweeping the floor, driving a car,
shopping in stores, and continuing to apply for
jobs (id.).
ALJ’s
evidence
above-described
supports
his
analysis
finding
confirms
that
PT
“lack[ed ] support from the overall record.”
that
Anglin’s
substantial
opinion[s]
(Tr. 26.)12
12
Plaintiff also argues that, if the ALJ “ha[d] questions regarding . .
. the consistency of PT Anglin’s opinions with the underlying record, he had
numerous options, . . . [such as] obtain[ing] testimony from a medical expert
[(‘ME’)], sen[ding] the file back to the [SSA’s] non-examining consultant for
review of the entire file, arrang[ing] for a physical consultative examination,
or even recontact[ing] PT Anglin with questions or for clarification.” (Docket
Entry 13 at 20-21 (citing 20 C.F.R. § 404.1520b(c)(1), Social Security Ruling 122p, Titles II and XVI: Evaluation of Fibromyalgia, 2012 WL 3104869 (Jul. 25,
2012) (“SSR 12-2p”), HALLEX § I-2-5-34).) However, Section 404.1520b(c) and SSR
12-2p describe options available to an ALJ with insufficient evidence to
determine the issue of disability, see 20 C.F.R. § 404.1520b(c)(1); SSR 12-2p,
2012 WL 3104869, at *4-5, a circumstance not present here. Moreover, the HALLEX
section provides that an ALJ may obtain an opinion from an ME if the ALJ
“[b]elieves an ME may be able to clarify and explain the evidence or help resolve
a conflict because the medical evidence is contradictory, inconsistent, or
confusing.” HALLEX § I-2-5-34. That section clearly does not mandate that an
ALJ consult an ME each time he finds a medical opinion inconsistent with the
overall evidence of record.
32
Under such circumstances, Plaintiff has not shown prejudicial
error with respect to the ALJ’s evaluation of PT Anglin’s opinions.
III. CONCLUSION
Plaintiff has not established grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, Plaintiff’s Motion for Judgment
Reversing or Modifying the Decision of the Commissioner (Docket
Entry 12) be denied, and Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 14) be granted, and that this action be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 1, 2019
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