Brown v. Commissioner of the Social Security Administration

Filing 25

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V Hodges on 02/15/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Benjamin Brown,
Plaintiff,
vs.
Michael J. Astrue, Commissioner,
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)

C/A No.: 1:11-2081-SVH

ORDER

This appeal from a denial of social security benefits is before the court for a final

order pursuant to 28 U.S.C. § 636(c), Local Civil Rule 73.01(B) (D.S.C.), and the
Honorable Richard M. Gergel’s November 14, 2011, order referring this matter for
disposition.

[Entry #16].

The parties consented to the undersigned United States

Magistrate Judge’s disposition of this case, with any appeal directly to the Fourth Circuit
Court of Appeals.
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”) to obtain judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”).
The two issues before the court are whether the Commissioner’s findings of fact are
supported by substantial evidence and whether he applied the proper legal standards. For
the reasons that follow, the court affirms the Commissioner’s decision.

1

I.

Relevant Background
A.

Procedural History

On March 10, 2009, Plaintiff filed an application for DIB in which he alleged his
disability began on November 3, 2003. Tr. at 115–16. His application was denied
initially and upon reconsideration. Tr. at 63–64. On July 22, 2010, Plaintiff had a
hearing before an Administrative Law Judge (“ALJ”). Tr. at 24–62 (Hr’g Tr.). The ALJ
issued an unfavorable decision on August 27, 2010, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 9–17. Subsequently, the Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner for purposes of judicial review. Tr. at 1–3. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner’s decision in a complaint filed on
August 8, 2011. [Entry #1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 43 years old at the time of the hearing. Tr. at 115. He completed
two years of college. Tr. at 167. His past relevant work (“PRW”) was as an artillery gear
logical crew member, a tax clerk, a material handler, a shipping and receiving clerk, a
forklift operator, a highway maintenance worker, a sales representative distributor of
vehicle supplies, a retail store manager, and a heavy equipment operator. Tr. at 56–57.
He alleges he has been unable to work since November 3, 2003. Tr. at 115.

2.

Medical History

Plaintiff has a long history of asthma. See, e.g., Tr. at 362. He injured his neck in
2003 and had cervical fusion surgery in May 2004. Tr. at 363. He served in the Army
until May 2005. Tr. at 362. His care was thereafter managed by treatment providers
from the Department of Veteran’s Affairs (VA). Various VA medical records stated
Plaintiff had 90% service connected disability, as follows:
•
•
•
•
•
•
•
•

hiatal hernia—10%
spinal stenosis—30%
paralysis of the upper radicular nerve group—40%
migraine headaches—10%
limited flexion of the knee—10%
flat foot condition—0%
asthma, bronchial—60%
limited flexion of the knee—10%

Tr. at 249, 251, 253, 257, 266.
Plaintiff received documented treatment beginning in 2005. After pulmonary
function testing in September 2005, a VA doctor noted severe persistent asthma and
possible restrictive disorder and increased Plaintiff’s asthma medication dosage. Tr. at
275–77. In November 2005, his complaints included neck pain radiating into shoulders
and arms, bilateral knee pain, and intermittent migraine headaches (2–3 a month), and
asthma. Tr. at 362. He said he could not do his prior job due to neck pain, but he was
exercising regularly and planned to apply for vocational rehabilitation. Tr. at 362–63.
On examination, Plaintiff had decreased range of motion of his neck, but had a normal
gait and balance, clear lungs, and no extremity edema. Tr. at 363.

3

As of December 2005, his headaches were controlled on medication. Tr. at 270–
71.
In February 2006, a VA treatment provider noted that Plaintiff’s asthma had
worsened over the past year. Tr. at 273. Plaintiff said he had daily and nocturnal
symptoms if he did not use his inhaler before bed time, but he never had to have
emergency treatment for asthma and was “using enough medicine to take care of the
symptoms at home.” Tr. at 273, 356–57. Later that month, he reported difficulty
sleeping due to neck pain and numbness in his upper extremities when sleeping, but said
his pain was overall controlled on medication. Tr. at 352. The VA treatment provider
noted that Plaintiff’s neurological examination was stable. Id.
The following month, a VA treatment provider noted that Plaintiff’s asthma
seemed to have responded positively to the recent changes in his medication dosage. Tr.
at 347–49. In May 2006, Plaintiff walked into the VA clinic without difficulty, had 97%
oxygen saturation on room air, and voiced no concerns. Tr. at 347. In June 2006,
pulmonary testing showed moderately severe obstruction with a positive bronchodilator
(medication) response. Tr. at 268.
As of July 2006, he was walking 2–3 miles every other day, was independent in
his activities of daily living (“ADLs”), and his asthma and neurological status were
stable. Tr. at 339–40. Later that month, he reported that he felt “much improved” and
that his functional capacity had “significantly improved” after his asthma medication was
increased. Tr. at 344, 346.

4

Pulmonary function testing in October 2006 showed severe obstruction without
bronchodilator response. Tr. at 264. The VA treatment provider noted that Plaintiff’s
asthma “[a]lways responds to [medication] and [he] has no limitations in physical
activity.” Tr. at 333–34.
Plaintiff had knee surgery for a ruptured tendon in December 2006. Tr. at 320.
Electrodiagnostic testing on May 10, 2007, revealed bilateral carpal tunnel
syndrome. Tr. at 225–26.
In July 2007, a VA treatment provider again noted that Plaintiff’s asthma
“symptoms at present do not limit his activity.” Tr. at 328. On examination, he had mild
wheezing, but was in no acute distress and had no extremity edema. Tr. at 330.
A chest x-ray in July 2007 showed no sign of active disease, some irregular
density of the right humeral head, and a cervical fusion plate (from Plaintiff’s prior
surgery). Tr. at 234, 330. Imaging of Plaintiff’s neck in July 2007 showed adenoidal soft
tissue hypertrophy (similar to that shown in 2005); an intact cervical fusion at C6–7; and
mild discogenic changes. Tr. at 237–38.
Plaintiff also had foot and knee x-rays taken in July 2007. Tr. at 235–37. The foot
x-rays showed bone spurs, worse on the right, and other minor findings. Tr. at 235. The
knee x-rays showed a new patella tendon rupture with continued soft tissue swelling of
the left knee; quadriceps atrophy in both thighs, worse on the left; and medial
compartment osteoarthritis of the right knee. Tr. at 236–37.

5

Plaintiff was treated for carpal tunnel syndrome on July 10, 2007. Tr. at 224. The
treating physician told him to wear his splints only at night and that the splints were not
an obstacle to work. Id.
In August 2007, a VA treatment provider noted Plaintiff was off work as a
mechanic, but that he planned to return to school for job retraining after his knee healed.
Tr. at 320. An examination showed slightly decreased extension of the knee, an antalgic
gait, normal balance, and clear lungs. Id. The provider noted that Plaintiff’s back and
neck pain were controlled, and that his asthma was stable. Id. Pulmonary testing in
August 2007 showed severe obstruction with significant bronchodilator responsiveness.
Tr. at 262–63.
In October 2007, Plaintiff reported he was working as a mechanic, which
aggravated his neck, back, and knee pain. Tr. at 318. He requested an orthopedic consult
for his knee pain and a neurological consult for his neck, back, and shoulder pain. Tr. at
317.
Plaintiff was seen in follow-up for carpal tunnel syndrome on October 23, 2007.
Tr. at 223.

Electrodiagnostic test results showed moderate bilateral carpal tunnel

syndrome with no progress in the past five months. Tr. 221–23. The treating physician
suggested possible surgical decompression. Tr. at 220–23. Later in October 2007,
Plaintiff was wearing splints for carpal tunnel syndrome, but said his pain (multiple
areas) was mostly controlled. Tr. at 323. He expressed concern that he could not be as
active as he wanted to because of neck and knee pain. Id.

6

On October 30, 2007, Plaintiff requested a neurology consult regarding his neck
and back pain. Tr. at 315.
An MRI of Plaintiff’s left knee in November 2007 showed changes consistent with
chronic disease of the patella tendon and, to a lesser extent, the distal quadriceps tendon;
a possible prior patella tendon tear; and meniscal changes. Tr. at 230–31. An MRI of the
right knee showed chronic changes of a quadriceps tendon with the tendon still appearing
intact and changes to the lateral meniscus, including cyst formation and an irregular
mass-like formation.

Tr. at 232–33.

The radiologist recommended an orthopedic

consultation. Tr. at 231.
When Plaintiff followed up for the MRI results, he reported neck pain that radiated
into his right arm when he turned his head and pain in both knees that limited his activity.
Tr. at 311–12. He told the treatment provider that he was satisfied with current pain
control. Tr. at 312. Plaintiff said he was unable to work due to pain and that he still
could not fully extend his left knee. Id. An examination of the left knee showed
evidence of the prior surgery, mild effusion, and slightly decreased extension. Id. He
had full range of motion and no effusion in his right knee. Id. He had an antalgic gait
and decreased muscle bulk in his right upper extremity, but moved all four of his
extremities equally and had normal balance. Id. The VA treatment provider noted that
Plaintiff’s neurological examination was stable and that his pain was controlled on
medication. Id. The provider recommended that Plaintiff avoid strenuous exercise,
running, jumping, and twisting due to his knee problems. Id.

7

As of December 2007, Plaintiff was doing well on his asthma medications, had
clear lungs, and said he was “doing much better.” Tr. at 305. He reported that he could
walk up the stairs more easily and laugh without coughing and being short of breath. Tr.
at 307. He was wearing neck brace, which he said was due to pain from a “pin” in his
neck. Tr. at 305.
On January 9, 2008, Plaintiff saw Robert Bowles, M.D., an orthopedist at the VA,
for complaints of bilateral knee pain and left quadriceps weakness. Tr. at 258–59. Dr.
Bowles noted Plaintiff had done “fairly well” following surgical repair of his left knee.
Tr. at 259. On examination, Plaintiff’s left knee had some limitation of motion and
crepitus (popping sounds), a high knee cap, and no joint line tenderness, effusion, or
instability to stresses. Id. The right knee had full motion with crepitus and no effusion or
instability to stresses. Id. Dr. Bowles said imaging showed quadriceps weakness in both
thighs, worse on the left; patellofemoral disease, worse on the left; and medial
compartment osteoarthritis of the right knee. Id. He diagnosed status post patellar
tendon rupture and patellofemoral chondoromalacia. Id. He recommended physical
therapy for quadriceps strengthening, but not surgery. Id.; see also Tr. at 303–04.
In April 2008, Plaintiff followed up at the VA for neck and knee pain. Tr. at 299.
He said he was trying to stay active and that physical therapy had improved his balance
and pain. Id. On examination, he had an antalgic gait, but normal balance, stable joints,
and clear lungs.

Id.

The treatment provider noted that Plaintiff’s neurological

examination was stable, that his knees had improved stability with physical therapy, that
Plaintiff was satisfied with his current pain control, that his migraines were controlled on
8

medications, and that his asthma was stable. Tr. at 299–300. His asthma continued to be
“well controlled” as of July 2008. Tr. at 295–97.
A chest x-ray in August 2008 showed no sign of active disease and an unchanged
cervical fusion plate (from Plaintiff’s prior surgery). Tr. at 228. Foot x-rays showed
possible prior trauma and valgus angulation of both great toes.

Tr. at 229–30.

Pulmonary function tests in August 2008 showed “moderately severe airway obstruction”
with significant bronchodialator response. Tr. at 247–48.
In February 2009, Plaintiff complained of neck, back, and knee pain. Tr. at 286.
He reported that he was trying to stay active, was exercising a little more, and had
decreased right shoulder pain and increased range of motion. Id. He also said he was
having migraines less often and responded well to his current medications. Id. On
examination, he had an antalgic gait, but normal balance and clear lungs. Id. The
treatment provider’s diagnoses included degenerative disc disease of the cervical spine
and degenerative joint disease of the knees. Id. She concluded that Plaintiff “remain[ed]
satisfied with current pain control,” that his migraines were stable and controlled; and
that his asthma was stable. Id.
In a report of contact dated May 4, 2009, Plaintiff stated that he could not look
down for any length of time, could sit for only 30 minutes at a time, and could stand for
even less time. Tr. at 171.
On August 20, 2009, Plaintiff saw Blake Moore, M.D., for an evaluation in
connection with his application for benefits. Tr. at 386–89. Plaintiff said he last worked
in 2006 as a mechanic, but had to quit due to neck pain. Tr. at 387. He reported severe
9

difficulties dressing himself. Id. He said he could lift 20 pounds, stand 40 minutes at a
time, sit 40 minutes at a time, and walk on a level surface for about 25 minutes at a time
Id.

He said he could not do household chores such as sweeping, mopping, and

vacuuming, but could drive and do some limited cooking and shopping. Id. He said he
used an assistive walking device. Tr. at 388. On examination, he was in no acute distress
and had 96% oxygen saturation on room air. Tr. at 387. He had a widened stance (gait);
relatively poor balance; intact pulses; full grip strength; mild atrophy of right deltoid
muscle with full shoulder range of motion; some reduced range of motion of the left
shoulder, neck, and back; the ability to stand on his heels and toes briefly, and full motor
strength. Tr. at 388, see also Tr. at 385–86. Neck x-rays showed post-operative and
degenerative changes. Tr. at 381. Left knee x-rays showed an abnormal left knee with
upward positioning of the knee cap and evidence of old injury and some heterotopic
calcification and bone formation. Id. Right knee x-rays showed degenerative changes
with marginal spurring. Id.
On September 1, 2009, state-agency consultant George Keller III, M.D., opined
Plaintiff could occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10
pounds; stand or walk at least two hours in an eight-hour workday; sit about six hours in
an eight-hour workday; could occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl; never climb ladders, ropes, or scaffolds; was limited in reaching in all
directions; and should avoid even moderate exposure to fumes, odors, dusts, gases, and
poor ventilation. Tr. at 390–97.

10

On September 24, 2009, state-agency consultant Katrina Doig, M.D., reviewed the
record and concurred with Dr. Keller’s opinions except that Dr. Doig also opined that
Plaintiff was limited in pushing and/or pulling with his lower extremities. Tr. at 406–13.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the July 22, 2010, hearing, Plaintiff testified that he did not have any medical
records in addition to those that were already in the record. Tr. at 32. He also stated that
records from his most recent medical treatment were included in the record. Id.
He testified that he left the military in May 2005. Tr. at 35. He said that between
November 3, 2003, his alleged onset date, and May 22, 2005, when he got out of the
Army, he worked at a “tax place,” where he gave people papers and showed them where
to sit until they were called. Tr. at 36, 38. He testified that unless he had doctor
appointments, he worked from four to six hours a day with an additional two-hour lunch
break. Tr. at 37–38. He said he was able to do the job, and that the only medical
problem affecting his ability to perform the job was his neck pain (as he had not yet had
neck surgery). Id. Plaintiff testified his asthma did not affect his ability to perform the
job and that he did not yet have any knee problems. Id. He testified that the heaviest
thing he had to lift was a chair (weighing approximately 20 pounds) and that he only did
that occasionally. Tr. at 39. He said he tried to work for a short time rebuilding heating
and air conditioning units after he left the military. Tr. at 40. He testified that his VA
disability rating was “from 90% to 100% because [he was] not working.” Id.
11

Plaintiff said he could not work because of his medications, neck pain, severe
weakness in his right hand, and extreme knee pain. Tr. at 41–42. He said he had worn a
neck brace for part of each day since 2006. Tr. at 42. He said he never had surgery for
carpal tunnel syndrome. Tr. at 47. He said his hiatal hernia sometimes caused abdominal
pain and gas and that he had five or six migraine headaches a month. Tr. at 53. Plaintiff
also stated that he took daily medications for asthma. Tr. at 54.
Regarding his activities, Plaintiff testified that he drove occasionally, picked his
children up from school, and picked up food. Tr. at 42. He stated that he did not drive
every day because his neck would swell up. Tr. at 43. He said he had trouble walking
due to low back and knee pain, but could walk 50 yards. Id. He said he sometimes went
to the mall, but needed a “buggy” to ride on. Tr. at 44. Plaintiff testified that he had
eight children, and that he had been the primary caregiver for three of them since 2006.
Tr. at 44–45. He further stated that he ironed, sometimes cooked, and could do light
housework, and that he had no problem watching television or reading. Tr. at 45, 47. He
testified that his children helped him around the house with cooking and cleaning. Tr. at
45, 48. Finally, Plaintiff stated that he had not had any training or schooling since
leaving the military. Tr. at 49.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Mark Stefnicki reviewed the record and testified at the
hearing. Tr. at 55. The VE categorized Plaintiff’s PRW as follows: as an artillery gear
logical crew member as light, skilled work; as a tax clerk as sedentary, semi-skilled work;
as a material handler as heavy, semi-skilled work; as a shipping and receiving clerk as
12

medium, skilled work; as a forklift operator as medium, semi-skilled work; as a highway
maintenance worker as medium, semi-skilled work; as a sales representative distributor
of vehicle supplies as light, skilled work; as a retail store manager as light, skilled work;
and as a heavy equipment operator as medium, skilled work. Tr. at 56–57. The ALJ
described a hypothetical individual of Plaintiff’s vocational profile who could perform
sedentary work, but was further limited to occasional climbing of ramps and stairs,
balancing, stooping, kneeling, crouching, or crawling; never climbing ladders, ropes, or
scaffolding; never engaging in overhead reaching bilaterally; avoiding moderate exposure
to workplace hazards and to irritants such as fumes, odors, dusts, gases; and frequently
engaging in bilateral handling and fingering. Tr. at 58–59. The VE testified that the
hypothetical individual could perform Plaintiff’s PRW as a tax clerk, but none of his
other PRW. Tr. at 59. The ALJ asked whether there were any other jobs in the region or
national economy that the hypothetical person could perform. Id. The VE identified the
following sedentary positions: telemarketer, surveillance system monitor, and telephone
information clerk. Tr. at 59–60.
2.

The ALJ’s Findings

In his August 27, 2010, decision, the ALJ made the following findings of fact and
conclusions of law:
1.
2.
3.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2010.
The claimant has not engaged in substantial gainful activity since
November 3, 2003, the alleged onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe impairments: status post left patella
tendon repair; status post cervical fusion; degenerative disc disease;
13

4.

5.

6.

7.

degenerative joint disease; asthma; migraine headaches; bilateral foot
problems; and carpal tunnel syndrome (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and
404.1526).
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform sedentary workFN1 as defined in
20 CFR 404.1567(a) with only occasional climbing ramps/stairs, balancing,
stooping, kneeling, crouching and crawling and no climbing
ladders/ropes/scaffolds, or bilateral overhead reaching. The claimant is also
limited to frequent bilateral handling and fingering and should avoid more
than moderate exposure to respiratory irritants (such as fumes, gases, etc.)
and work place hazards.
The claimant is capable of performing past relevant work as a tax clerk.
This work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity (20 CFR
404.1565).
The claimant has not been under a disability, as defined in the Social
Security Act, from November 3, 2003, through the date of this decision (20
CFR 404.1520(f)).

FN 1: Sedentary work is described by the Commissioner of the Social
Security Administration as requiring lifting and carrying up to 10 pounds
occasionally and lesser amounts frequently, sitting for 6 hours in an 8-hour
day, and standing and walking occasionally (2 hours in an 8-hour day).
Tr. at 9–17.
II.

Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1)

The ALJ failed to evaluate the combined effect of Plaintiff’s impairments;

2)

The ALJ’s findings at steps four and five are not supported by substantial
evidence; and

3)

The ALJ performed a flawed credibility analysis.

The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in his decision.
14

A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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
at least 12 consecutive months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series
of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983)
(discussing considerations and noting “need for efficiency” in considering disability
claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;1 (4) whether such

1

The Commissioner’s regulations include an extensive list of impairments (“the
Listings” or “Listed impairments”) the Agency considers disabling without the need to
assess whether there are any jobs a claimant could do. The Agency considers the Listed
impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a
claimant meets or equals all criteria of any of the Listed impairments for at least one year,
he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii).
To meet or equal one of these Listings, the claimant must establish that his impairments
match several specific criteria or be “at least equal in severity and duration to [those]
criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen
15

impairment prevents claimant from performing PRW,2 and (5) whether the impairment
prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520.
These considerations are sometimes referred to as the “five steps” of the Commissioner’s
disability analysis. If a decision regarding disability may be made at any step, no further
inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes determination and
does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW
as it is customarily performed in the economy or as the claimant actually performed the
work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82–
62 (1982). The claimant bears the burden of establishing his inability to work within the
meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing
the inability to return to PRW, the burden shifts to the Commissioner to come forward
with evidence that claimant can perform alternative work and that such work exists in the
regional economy. To satisfy that burden, the Commissioner may obtain testimony from
a VE demonstrating the existence of jobs available in the national economy that claimant
can perform despite the existence of impairments that prevent the return to PRW. Walls

v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his
impairment is disabling at Step 3).
2
In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant’s past relevant work to make a finding at
the fourth step, he may proceed to the fifth step of the sequential evaluation process
pursuant to 20 C.F.R. § 404.1520(h).
16

v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that
burden, the claimant must then establish that he is unable to perform other work. Hall v.
Harris, 658 F.2d 260, 264–65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S.
137, 146. n.5 (1987) (regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g).
The scope of that federal court review is narrowly-tailored to determine whether the
findings of the Commissioner are supported by substantial evidence and whether the
Commissioner applied the proper legal standard in evaluating the claimant’s case. See
id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287,
290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere conflicts in
the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v.
Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345
(4th Cir. 1986)). Rather, the court must uphold the Commissioner’s decision if it is
supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the
court must carefully scrutinize the entire record to assure there is a sound foundation for
the Commissioner’s findings, and that his conclusion is rational. See Vitek, 438 F.2d at
1157–58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is
17

substantial evidence to support the decision of the Commissioner, that decision must be
affirmed “even should the court disagree with such decision.” Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

The ALJ Properly Considered Plaintiff’s Combined Impairments

Plaintiff argues that the ALJ failed to make particularized findings regarding the
combined effects of his impairments. [Entry #21 at 11–12]. The Commissioner contends
the ALJ’s decision is sufficient to show that he adequately considered the combined
effects of Plaintiff’s impairments in making his disability determination. [Entry #22 at
15–18].
When, as here, a claimant has more than one impairment, the statutory and
regulatory scheme for making disability determinations, as interpreted by the Fourth
Circuit, requires that the ALJ consider the combined effect of these impairments in
determining the claimant’s disability status. See Walker v. Bowen, 889 F.2d 47, 50 (4th
Cir. 1989); see also Saxon v. Astrue, 662 F. Supp. 2d 471, 479 (D.S.C. 2009) (collecting
cases in which courts in this District have reiterated importance of the ALJ’s explaining
how he evaluated the combined effects of a claimant’s impairments). The Commissioner
is required to “consider the combined effect of all of the individual’s impairments
without regard to whether any such impairment, if considered separately, would be of
such severity.” 42 U.S.C. § 423(d)(2)(B) (2004). The ALJ must “consider the combined
effect of a claimant’s impairments and not fragmentize them.” Walker, 889 F.2d at 50.

18

“As a corollary, the ALJ must adequately explain his or her evaluation of the combined
effects of the impairments.” Id.
In this case, the ALJ first determined Plaintiff suffered from severe impairments of
status post left patella tendon repair; status post cervical fusion; degenerative disc
disease; degenerative joint disease; asthma; migraine headaches; bilateral foot problems;
and carpal tunnel syndrome. Tr. at 11. After concluding Plaintiff did not have an
impairment or combination of impairments of listing-level severity, the ALJ completed a
detailed RFC analysis. Tr. at 12–15. In his RFC analysis, he identified each of Plaintiff’s
impairments and the corresponding functional limitations. Tr. at 15. He then made the
following statement: “I considered the combination of the claimant’s impairments as well
as any problems he might encounter as [a] result of his alleged pain by restricting him
from exposure to work place hazards.” Id.
The court finds the ALJ’s decision sufficient to demonstrate that he considered
Plaintiff’s combined impairments.

Although Plaintiff argues the link between his

impairments and the restriction from exposure to workplace hazards is not clear, this
argument is a red herring. The issue before the court is whether the ALJ adequately
considered Plaintiff’s impairments. Because Plaintiff’s RFC includes limitations tied to
numerous distinct impairments and the ALJ specifically stated in the RFC analysis that
he considered Plaintiff’s impairments in combination, the ALJ satisfied his obligation
under Walker. See Thornsberry v. Astrue, C/A No. 4:08-475-HMH-TER, 2010 WL
146483, at *5 (D.S.C. Jan. 12, 2010) (finding that “while the ALJ could have been more
explicit in stating that his discussion dealt with the combination of [the plaintiff’s]
19

impairments, his overall findings adequately evaluate the combined effect of [the
plaintiff’s] impairments”). Furthermore, Plaintiff has offered no explanation of how
more discussion of his combined impairments may have changed the outcome of this
case or identified any additional restrictions that would flow from his combined
impairments. For these reasons, the court finds remand on this issue unwarranted. See
Brown v. Astrue, C/A No. 0:10-1584-RBH, 2012 WL 3716792, at *6 (D.S.C. Aug. 28,
2012) (finding that Fourth Circuit precedent issued after Walker suggested that Walker
was not meant to be used as a trap for the Commissioner).
2.

Any Error in Finding Plaintiff Could Return to PRW Was Harmless

Plaintiff next argues that the ALJ’s conclusion that Plaintiff could return to PRW
as a tax clerk is not supported by substantial evidence. [Entry #21 at 13]. In support of
his argument, Plaintiff contends the ALJ erred in “failing to verify” his testimony that he
received a 90 percent impairment rating from the VA.3 Id. at 12. Plaintiff also argues
that the ALJ should have obtained records clarifying Plaintiff’s duties when he worked as
a tax clerk.

Id.

He further argues that the ALJ’s flawed conclusion at step four

necessarily resulted in legal error at step five. Id. at 13. The Commissioner responds that
the ALJ properly developed the record regarding Plaintiff’s PRW as a tax clerk. [Entry
#22 at 19]. The Commissioner further argues that even if the ALJ erred in finding
Plaintiff could perform PRW, the error was harmless because he also found there were

3

The court notes that the impairment rating was documented in the medical records. Tr.
at 249, 251, 253, 257, 266. As Plaintiff concedes, however, the ALJ was not bound by
the impairment rating. [Entry #21 at 12].
20

other jobs in the national economy that someone with Plaintiff’s RFC could perform. Id.
at 19–20.
At step four, the ALJ determines whether a claimant’s impairments prevent him
from performing PRW. See 20 C.F.R. § 404.1520. If a decision regarding disability
cannot be made at step four, the ALJ moves to step five and considers whether the
claimant’s impairments prevent him from engaging in substantial gainful employment.
Id.
Here, the ALJ determined at step four that Plaintiff could return to PRW as a tax
clerk. Tr. at 16. Plaintiff’s contends this finding was in error. The ALJ alternatively
found, however, that based on Plaintiff’s age, education, work experience, and RFC, he
could perform other jobs existing in significant numbers in the national economy. Id.
Specifically, the ALJ relied on the VE’s testimony that a hypothetical individual with
Plaintiff’s vocational profile and RFC could work as a telemarketer, surveillance system
monitor, and telephone information clerk. Tr. at 16–17. Thus, even if the ALJ had not
found Plaintiff capable of returning to PRW, the ALJ’s alternative findings support his
ultimate conclusion that Plaintiff is not disabled. Based on the foregoing, the court finds
that any error by the ALJ in concluding that Plaintiff could return to PRW was harmless.
See Mickles v. Shalala, 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”).
Plaintiff argues that the alternative finding is unsound because it is premised, in
part, on his PRW as a tax clerk. [Entry #23 at 3–4]. In posing the hypothetical to the VE,
21

the ALJ asked the VE to assume an individual of Plaintiff’s “age, education, and work
experience.” Tr. at 58. Plaintiff contends that the “work experience” portion of the
hypothetical was flawed because his description of his duties as a tax clerk does not
correspond with the DOT definition relied upon by the VE. [Entry #23 at 3; Entry #21 at
12–13]. While the court agrees that Plaintiff’s description of his work is significantly
different from the DOT definition, this discrepancy does not invalidate the VE’s
testimony or the ALJ’s alternative finding. The VE did not conclude Plaintiff had any
transferrable skills from his work as a tax clerk and his work, regardless of the duties, is
unrelated to the jobs advanced by the VE. Consequently, the court finds that any error in
classifying Plaintiff’s prior work as a tax clerk was also harmless.
3.

The ALJ’s Credibility Determination is Supported by Substantial
Evidence

Plaintiff also argues that the ALJ performed a flawed credibility analysis. [Entry
#21 at 13]. Specifically, Plaintiff argues the ALJ mischaracterized his ADLs and failed
to properly develop the record regarding his recent medical treatment. Id. at 14–15. The
Commissioner argues the ALJ’s decision is supported by substantial evidence and should
not be disturbed. [Entry #22 at 12–14].
Prior to considering a claimant’s subjective complaints, an ALJ must find a
claimant has an underlying impairment that has been established by objective medical
evidence that would reasonably be expected to cause subjective complaints of the
severity and persistence alleged. See 20 C.F.R. § 404.1529; 20 C.F.R. § 416.929; SSR
96-7p; Craig v. Chater, 76 F.3d 585, 591–96 (4th Cir. 1996) (discussing the regulation22

based two-part test for evaluating pain). The first part of the test “does not . . . entail a
determination of the intensity, persistence, or functionally limiting effect of the
claimant’s asserted pain.” 76 F.3d at 594 (internal quotation omitted). Second, and only
after claimant has satisfied the threshold inquiry, the ALJ is to evaluate “the intensity and
persistence of the claimant’s pain, and the extent to which it affects her ability to work.”
Id. at 595. This second step requires the ALJ to consider the record as a whole, including
both objective and subjective evidence, and SSR 96-7p cautions that a claimant’s
“statements about the intensity and persistence of pain or other symptoms or about the
effect the symptoms have on his or her ability to work may not be disregarded solely
because they are not substantiated by objective medical evidence.” SSR 96-7p, ¶ 4.
If an ALJ rejects a claimant’s testimony about her pain or physical condition, he
must explain the bases for such rejection to ensure that the decision is sufficiently
supported by substantial evidence. Hatcher v. Sec’y, Dep’t of Health & Human Servs.,
898 F.2d 21, 23 (4th Cir. 1989). “The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons
for that weight.” SSR 96-7p, ¶ 5. In evaluating the intensity, persistence, and limiting
effects of an individual’s symptoms and the extent to which they limit an individual’s
ability to perform basic work activities, adjudicators are to consider all record evidence,
which can include the following: the objective medical evidence; the individual’s ADLs;
the location, duration, frequency, and intensity of the individual’s pain or other
23

symptoms; factors that precipitate and aggravate the symptoms; the type, dosage,
effectiveness, and side effects of any medication the individual takes or has taken to
alleviate pain or other symptoms; treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; any measures other than
treatment the individual uses to relieve pain or other symptoms; and any other factors
concerning the individual’s functional limitations and restrictions due to pain or other
symptoms. SSR 96-7p.
Here, after setting forth the applicable regulations, the ALJ considered Plaintiff’s
subjective claims under the required two-step process. See Craig, 76 F.3d at 591–96.
The ALJ found Plaintiff’s impairments could reasonably be expected to cause the
symptoms he alleged, but determined that Plaintiff’s testimony “concerning the intensity,
persistence and limiting effects” of his symptoms was “not credible to the extent” the
testimony was inconsistent with the ALJ’s determination of his RFC. Tr. at 14.
The ALJ found that the record did not support Plaintiff’s claims of disabling
impairments. Plaintiff had received no significant recent treatment for his cervical spine
problems and reported in February 2009 that he was satisfied with his current pain
control. Tr. at 14. The record reflected that Plaintiff’s migraines were well controlled
with medication, including over-the-counter analgesics and that, as of February 2009,
they were occurring less often and responding well to medication. Id. The ALJ noted
Plaintiff had not complained of severe symptoms related to his hiatal hernia and had not
experienced any significant weight loss as would be expected. Id. With regard to
Plaintiff’s asthma, the ALJ noted that the condition was described as stable in the most
24

recent treatment note and Plaintiff had never sought emergency care or intubation for his
asthma. Id.
Plaintiff dismisses the foregoing findings as a “re-examination of the medical
evidence” and contends the ALJ failed to properly consider the factors set forth in SSR
96-7p. [Entry #23 at 1]. To the contrary, the evidence cited by the ALJ directly
addressed the effectiveness of Plaintiff’s medications, a factor listed in SSR 96-7p.
These records were highly probative of Plaintiff’s credibility because, “[i]f a symptom
can be reasonably controlled by medication or treatment, it is not disabling.” Gross v.
Heckler, 785 F.2d 1163, 1165–6 (4th Cir. 1986).
In discounting Plaintiff’s credibility, the ALJ further stated that Plaintiff had not
received any medical treatment since February 2009.

Id.

Plaintiff suggests that

additional records may have existed, but that the ALJ failed to properly develop the
record. [Entry #21 at 14]. This argument is perplexing because the ALJ asked Plaintiff
at the hearing whether his most recent medical treatment was contained in the record. Tr.
at 32. Plaintiff responded that it was. Id. Plaintiff fails to articulate what further steps
the ALJ should have taken to ensure the record was fully developed, and the court finds
that the ALJ did all that was required of him.
Finally, in finding Plaintiff less than credible, the ALJ cited to his ADLs. Tr. at
14. The ALJ referenced a May 2009 interview in which Plaintiff indicated that he
attended his children’s school activities, performed light housework, and shopped. Id.
The ALJ also noted that Plaintiff had been responsible for his children’s care since 2006

25

and that the activities required in parenting are not consistent with Plaintiff’s alleged
functional limitations. Id.
Plaintiff argues the ALJ’s characterization of his ADLs conflicts with other
evidence in the record. [Entry #21 at 14]. The court has reviewed the records cited by
Plaintiff in his brief in support of his credibility. Although some of these selective
records may support Plaintiff’s credibility, they do not render the ALJ’s decision
unsupported. Craig, 76 F.3d at 589 (stating that the court may not “undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment
for that of the [Commissioner]”); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)
(holding that it is the ALJ’s responsibility, not the court’s, to determine the weight of
evidence and resolve conflicts of evidence); Blalock, 483 F.2d at 775 (indicating that
even if the court disagrees with the Commissioner’s decision, the court must uphold it if
it is supported by substantial evidence).
Because the ALJ’s decision to discount Plaintiff’s credibility is supported by
substantial evidence, the court denies remand on this issue.
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the

Commissioner, but to determine whether his decision is supported as a matter of fact and
law. Based on the foregoing, the undersigned affirms the Commissioner’s decision.

26

IT IS SO ORDERED.

February 15, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

27