Truett v. Commissioner of Social Security Administration
ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V Hodges on 02/26/2013. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Tony Ray Truett,
Michael J. Astrue, Commissioner,
Social Security Administration,
C/A No.: 1:11-2530-SVH
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 Terry L. Wooten’s March 7, 2012, order referring this matter for disposition.
[Entry #13]. 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”)
and Supplemental Security Income (“SSI”). 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
On November 5, 2008, Plaintiff filed an application for DIB in which he alleged
his disability began on August 2, 2008. Tr. at 60–61. His application was denied initially
and upon reconsideration. Tr. at 34–35. In July 2009, Plaintiff also protectively filed an
application for SSI. Tr. at 262–71. This claim was denied initially and was subsequently
associated with Plaintiff’s DIB claim at the hearing level. Tr. at 12, 276. On November
30, 2010, Plaintiff had a hearing before an Administrative Law Judge (“ALJ”). Tr. at
280–310 (Hr’g Tr.). The ALJ issued an unfavorable decision on January 7, 2011, finding
that Plaintiff was not disabled within the meaning of the Act.
Tr. at 12–21.
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 5–7.
Thereafter, Plaintiff brought this action seeking judicial review of the
Commissioner’s decision in a complaint filed on December 28, 2011. [Entry #1].
Plaintiff’s Background and Medical History
Plaintiff was 59 years old at the time of the hearing. Tr. at 285. He obtained a
graduate equivalency diploma. Tr. at 287. His past relevant work (“PRW”) was as a
dump truck driver. Tr. at 289. He alleges he has been unable to work since August 2,
2008. Tr. at 60.
Records from McLeod Regional Medical Center dated October 1, 2007, indicate
that Plaintiff suffered from anemia and bloody stools. Tr. at 176. Lilly Parker, M.D., of
McLeod Family Medicine examined Plaintiff on October 3, 2007, for follow-up of his
type 2 diabetes. Tr. at 185. Plaintiff complained of back pain that was at times 10/10 on
the pain scale, occurring about once every three weeks and that seemed worse with
driving and changes in weather. Id. Dr. Parker reported an MRI in 2003 revealed
degenerative disc changes to Plaintiff’s lumbar spine. Id. She noted Plaintiff was having
some difficulty keeping his blood pressure under control and was cutting back on fried
and fatty foods. Id. She stated that Plaintiff reported that he had not taken Lotensin for
hypertension in six months and was not sure why he stopped it. Id. Dr. Parker diagnosed
type 2 diabetes, hypertension, coronary artery disease (status post bypass in 2002), and
degenerative disc disease. Id.
Plaintiff returned to Dr. Parker for a recheck on November 1, 2007. Tr. at 183.
Dr. Parker noted that Plaintiff’s stools were positive for blood and recommended a
She further noted that Plaintiff was not taking his hypertension
Plaintiff underwent a colonoscopy on December 6, 2007, which revealed colitis,
for which Dr. Parker prescribed Rowasa suppositories. Tr. at 168.
In early July 2008, Plaintiff went to the emergency room and reported abdominal
pain and cramping that was made worse with eating. Tr. at 123. Abdominal and pelvic
CT scans were unremarkable. Tr. at 158. He was diagnosed with pancreatitis, type 2
diabetes, and hypertension, and was treated with hydration and medication. Tr. at 123.
During his hospitalization, his blood sugars and blood pressure were noted to be under
good control. Id. Dr. Parker discharged Plaintiff two days later without limitations and
encouraged him to remain hydrated and monitor for changes. Id.
In November 2008, Plaintiff returned to Dr. Parker and reported back pain, which
he said he had for months and that sometimes radiated down his leg. Tr. at 181. Plaintiff
rated the pain at a 10/10, but said that over-the-counter ibuprofen and Tylenol relieved
Plaintiff also reported occasional diarrhea or constipation.
examination, he had a mildly positive straight leg raise test on the right, but full muscle
strength in his arms and legs, and a nontender abdomen. Id. In her assessment, Dr.
Parker noted Plaintiff’s reports of back pain, but did not diagnose an underlying medical
impairment. Id. She diagnosed Plaintiff with type 2 diabetes, coronary artery disease,
malignant hypertension, and irritable bowel syndrome. Id. She refilled his medications
and encouraged him to exercise. Id.
During a follow-up appointment in December 2008, Plaintiff reported nausea,
vomiting, and diarrhea. Tr. at 179. Dr. Parker noted that Plaintiff was doing well on his
diabetes medication. Id. On examination, he exhibited full strength in his upper and
lower extremities. Id.
Dr. Parker diagnosed Plaintiff with gastroenteritis, controlled
type 2 diabetes, and metabolic syndrome. Id.
On March 5, 2009, Plaintiff presented to Dr. Parker and reported that he had
discontinued his Glucophage secondary to abdominal pain and diarrhea. Tr. at 190. Dr.
Parker noted that Plaintiff had several bouts of pancreatitis and that he wanted to know
why. Id. Dr. Parker changed Plaintiff’s medication from Glucophage to Glucotrol and
explained to Plaintiff the relationship between elevated triglycerides and pancreatitis. Id.
Dr. Parker saw Plaintiff in follow-up on April 6, 2009. Tr. at 188. She noted that
his blood sugar levels were about 200 on Glucotrol and he was experiencing pain in his
right hand. Id. On examination, Plaintiff exhibited full strength in his extremities, but
had contracture of the flexor tendon with a knot on the fourth finger. Id. Dr. Parker
diagnosed type 2 Diabetes, metabolic syndrome, hand pain, and coronary artery disease.
In April 2009, a peripheral arterial flow study and EKG were normal. Tr. at 200–
06. X-rays of Plaintiff’s lower back showed disc space narrowing at the L5–S1 level, and
endplate and facet joint hypertrophy with narrowing of the neural foramina, but no
fractures or dislocations, and normal alignment and lordotic curvature. Tr. at 207.
Also in April 2009, Plaintiff presented to John Kirkland, M.D., for a consultative
examination. Tr. at 209. Plaintiff reported back pain, uncontrolled diabetes, uncontrolled
hypertension, sleep apnea, problems with circulation in his legs, coronary artery disease,
and a history of pancreatitis (most recently in July 2008). Id. On examination, Plaintiff
complained of tenderness in the midline of his back around L4–L5, but had full range of
motion in his back, normal heart rate and rhythm, normal strength in his arms and legs
with no muscle weakness or atrophy, intact sensation and reflexes, and a normal gait. Tr.
at 210. Dr. Kirkland’s impression was that Plaintiff had uncontrolled hypertension and
diabetes, stable coronary artery disease, low back pain, coronary artery bypass grafting in
2003, and sleep apnea by history. Id.
In May 2009, Plaintiff presented to Hope Health, Inc., for an initial appointment
with Cassie Liang, M.D. Tr. at 230. She noted that Plaintiff had four pancreatic attacks
that began in the 1990s, with the last attack having occurred in 2008. Id. Plaintiff
reported being self-employed, but stated that work was “pretty slow.”
Tr. at 231.
Plaintiff reported back pain and coronary artery disease, but denied chest pain or
palpations, or gastrointestinal issues. Id. Plaintiff had regular heart rate and rhythm. Id.
Examination of his extremities—including his shoulders—showed normal muscle tone
and range of motion.
Tr. at 232.
Dr. Liang recommended that Plaintiff exercise
continuously for at least 20 minutes at least three times a week, referred Plaintiff to a foot
specialist and an ophthalmologist, and advised him regarding a diabetic diet. Tr. at 233.
Lab results dated May 14, 2009, indicate that Plaintiff’s blood sugar remained elevated at
122. Tr. at 236.
On August 26, 2009, Dr. Liang saw Plaintiff in follow-up for his multiple health
conditions. Tr. at 227–29. On examination, Plaintiff appeared healthy, in no acute
distress, and with full range of motion and normal muscle tone. Tr. at 228. Dr. Liang
continued to treat Plaintiff in September and December of 2009, noting that his condition
remained relatively unchanged. Tr. at 220–26. At the September visit, Dr. Liang noted
Plaintiff’s report of “intermittent back pain for the past 3 yr.,” which he was “tolerating”
with nonsteroidal anti-inflammatory medication. Tr. at 224. Lab results in September of
2009 and January of 2010 confirmed that Plaintiff’s blood sugar remained high at 159
and 167. Tr. at 234, 239.
Dr. Kirkland evaluated Plaintiff again in January of 2010. Tr. at 241–42. Plaintiff
said that medication helped his back “pretty good.” Tr. at 241. Plaintiff reported right
shoulder pain, but said it responded to nonsteroidal anti-inflammatory medication. Id.
Dr. Kirkland noted Plaintiff had normal heart rate and rhythm; full range of motion in his
back, arms, and legs; a normal gait; an unremarkable musculoskeletal examination; and a
normal neurological examination. Tr. at 242. He did not diagnose a medical impairment
with regard to Plaintiff’s shoulder. Tr. at 241–42. Dr. Kirkland’s impression was that
Plaintiff had hypertension, uncontrolled diabetes, and coronary artery disease. Id.
State-agency doctors Todd Kolb, M.D., and James Weston, M.D., reviewed the
record and opined that Plaintiff retained the ability to do medium work. Tr. at 211–18,
243–50. Dr. Weston found that Plaintiff was further limited to frequent climbing of
ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; occasional
climbing of ladders, ropes, and scaffolds; and should avoid concentrated exposure to
extreme temperatures. Tr. at 245–47.
The Administrative Proceedings
The Administrative Hearing
At the November 30, 2010, hearing, Plaintiff testified that he worked as a selfemployed dump truck driver from 1990 until 2007. Tr. at 289–91. He stated that he
stopped working in 2007 because his back was hurting all the time. Tr. at 291. He
testified that he took care of his terminally-ill wife between June 2008 and October 2009.
Tr. at 286, 294, 302–03. He testified that a maid and his daughter helped him. Tr. at
294–95. He stated that he cooked, cleaned, and shopped for groceries. Tr. at 295. He
stated that he did not take insulin injections and tried to control his diabetes through diet.
Tr. at 284.
Plaintiff testified that his biggest problem was stress, but stated that when his
“back goes out, it goes out.” Tr. at 293. He estimated that he had back symptoms about
twice a week. Tr. at 298. He took Naproxen for his back “when I need it” (up to twice a
day). Tr. at 297. He stated he did not receive any other prescribed care for his back. Tr.
at 293–94. Plaintiff asserted that his right shoulder hurt “all the time” and said that he
had difficulty reaching with his right arm. Tr. at 301–02. Plaintiff stated that he was
right-handed. Tr. at 307. He stated that he had occasional chest pain related to his heart
problems and that he was hospitalized shortly before the hearing after having chest pain
while walking. Tr. at 292–93. He testified that he suffered from sleep apnea and became
very sleepy after sitting still for any length of time. Tr. at 296. He stated he had a CPAP
machine for his sleep apnea and that he used it sometimes. Tr. at 296–97. He testified
that changing his diet helped his diabetes and hypertension. Tr. at 299–300. Plaintiff
estimated that he could stand for 10 minutes at a time and sit for one hour at a time when
he was having back problems, and said he did not lift items heavier than a grocery bag.
Tr. at 296, 298. He stated that his doctor had not placed any limitations on his activities.
Tr. at 302.
Vocational Expert Testimony
Vocational Expert (“VE”) J. Adger Brown reviewed the record and testified at the
hearing. Tr. at 305–09. The VE categorized Plaintiff’s PRW as a dump truck driver as
medium, unskilled work. Tr. at 306. The ALJ described a hypothetical individual of
Plaintiff’s vocational profile who could perform medium work, but was limited to only
occasional climbing, stooping, kneeling, crouching, and crawling; to occasional overhead
reaching with the right arm; to avoiding concentrated exposure to vibration; and to
performing indoor work where the temperature can be controlled. Tr. at 306–07. The
VE testified that the hypothetical individual could not perform Plaintiff’s PRW. Tr. at
307. The ALJ asked whether there were any other jobs in the regional or national
economy that the hypothetical person could perform.
The VE identified the
following medium, unskilled positions: assembler and parts packer. Tr. at 308. Upon
questioning by Plaintiff’s counsel, the VE stated that these positions would be eliminated
if the hypothetical individual were limited to occasional use of his right upper extremity
for gripping, grasping, reaching, pushing, and pulling. Tr. at 309.
The ALJ’s Findings
In his January 7, 2011, decision, the ALJ made the following findings of fact and
conclusions of law:
The claimant meets the insured status requirements of the Social Security
Act through March 31, 2009.
The claimant has not engaged in substantial gainful activity since August 2,
2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
The claimant has the following severe impairments: diabetes mellitus,
degenerative changes in the low back, history of gastroenteritis and
pancreatitis, valvular heart disease with history of coronary artery bypass
grafting and right shoulder degeneration (20 CFR 404.1520(c) and
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, 404.1526,
416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform unskilled medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) with occasional climbing,
stooping, kneeling, crouching, crawling; occasional overhead reaching with
the right upper extremity; indoor work in a temperature controlled
environment; and the need to avoid concentrated exposure to vibration.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on March 1, 1951 and was 57 years old, which is
defined as an individual of advanced age, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined in the Social
Security Act, from August 2, 2008, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).
Tr. at 14–21.
Plaintiff alleges the Commissioner erred for the following reasons:
1) The ALJ erred by failing to complete a proper analysis at step three, including
failing to consider Plaintiff’s impairments in combination; and
2) The ALJ presented an incomplete hypothetical to the VE.
The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in his decision.
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
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
v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his
impairment is disabling at Step 3).
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. 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.
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).
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).
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
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).
The ALJ Did Not Err at Step Three
Plaintiff argues that the ALJ failed to conduct a combined-impairment analysis at
step three of the sequential evaluation process and “essentially bypassed” that step.
[Entry #17 at 7–8].3 The Commissioner responds that the ALJ specifically made a
finding regarding Plaintiff’s combined impairments at step three and notes that while the
combined-impairment analysis is located in the ALJ’s RFC determination, it applies
equally to the ALJ’s finding at step three. [Entry #18 at 8–10]. The Commissioner also
argues that the ALJ’s combined-impairment analysis is sufficient under the law of this
district. Id. at 10–11. In reply, Plaintiff contends that the analysis of his combined
impairments in the RFC determination was insufficient under the law.
Although seemingly unrelated to the combined impairments argument, Plaintiff also
contends under this argument heading that the ALJ improperly noted that the record did
not contain evidence of treatment “at the time of the alleged onset date.” Tr. at 15. He
argues that the ALJ’s finding incorrectly suggests that the law requires a treatment note
with the same date as the alleged onset date. [Entry #17 at 8]. The court agrees that the
law does not require that there be a treatment note contemporaneous with the alleged
onset date, but does not agree that the ALJ suggested such a note is required to establish
disability. Rather, the ALJ found the absence of a treatment note contemporaneous with
the alleged onset date relevant to his credibility determination. In making the
determination, the ALJ stated that while Plaintiff had been hospitalized for pancreatitis a
month prior to the alleged onset date, there was no evidence of ongoing treatment at the
time of the alleged onset date. Tr. at 17. Furthermore, the earliest available post-onset
treatment record was not until three months after the alleged onset date. Id. The court
finds that the ALJ reasonably relied on the lack of continuing medical treatment in
assessing Plaintiff’s credibility and concludes that he did not err in noting the absence of
a treatment record contemporaneous with the alleged onset date.
The court addresses Plaintiff’s allegation of error in two parts. First, the court
considers whether the ALJ’s RFC determination properly included an analysis of
Plaintiff’s combined impairments. Second, the court determines whether the ALJ was
required to complete a separate combined-impairment analysis at step three.
The ALJ Properly Considered Plaintiff’s Combined
Impairments in Determining His RFC
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.
“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
diabetes mellitus, degenerative changes in the low back, history of gastroenteritis and
pancreatitis, valvular heart disease with history of coronary artery bypass grafting and
right shoulder degeneration. Tr. at 14. 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 14–19. In his RFC analysis, he identified each of Plaintiff’s
impairments and summarized the related medical records. Tr. at 17–19. He then made
the following statement: “I have considered the entire record including clinical findings,
results of diagnostic studies, medical opinions, the claimant’s subjective allegations and
combined effect of all of the claimant’s impairments and find that the residual functional
capacity set forth above is an accurate reflection of the claimant’s residual functional
capacity.” Tr. at 19.
The court finds the ALJ’s decision sufficient to demonstrate that he considered
Plaintiff’s combined impairments.
Because the RFC analysis addressed each of
Plaintiff’s 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] 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 the ALJ’s RFC determination sufficiently addressed Plaintiff’s
combined impairments. 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).
The ALJ’s Step Three Finding Was Not in Error
Plaintiff’s allegation of error rests primarily on whether the ALJ’s analysis at step
three was sufficient. At step three, the ALJ found, without explanation or discussion, that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled a Listing. Tr. at 14.
Step three is when the ALJ must determine whether the claimant’s impairments
meet or medically equal the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. If they meet the criteria of the listed impairments, the claimant is disabled
and the sequential evaluation process ends. Plaintiff cites 20 C.F.R. § 404.1526(a)(3),
which explains how an adjudicator can find that a claimant’s combined impairments
medically equal a listed impairment, i.e., medical equivalence. The statute provides:
If you have a combination of impairments, no one of which meets a listing
described in the Listing of Impairments in appendix 1 of subpart P of part
404 of this chapter (see § 416.925(c)(3)), we will compare your findings
with those for closely analogous listed impairments. If the findings related
to your impairments are at least of equal medical significance to those of a
listed impairment, we will find that your combination of impairments is
medically equivalent to that listing.
20 C.F.R. § 404.1526(a)(3).
Plaintiff contends the ALJ erred in failing to make findings regarding the
combined effect of his impairments at step three. When considering whether the ALJ
properly considered the combined effect of impairments, however, the decision must be
read as a whole. See Brown v. Astrue, No. 10–1584, 2012 WL 3716792, *6 (D.S.C.
Aug.28, 2012) (“Accordingly, the adequacy requirement of Walker is met if it is clear
from the decision as a whole that the Commissioner considered the combined effect of a
claimant’s impairments.”) (citing Green v. Chater, 64 F.3d 657, 1995 WL 478032, at *3
(4th Cir. Aug. 14, 1995)).
Because the court previously determined that the ALJ
sufficiently addressed Plaintiff’s combined impairments in his RFC analysis, the court
finds that it was not error for the ALJ to omit that discussion at step three.
Even assuming the ALJ erred in his step three analysis, any error 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 has failed to identify any
potentially-applicable Listing, much less established how the medical evidence meets the
criteria of any Listing. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986) (finding
that it is plaintiff’s burden to present evidence that her condition meets or equals a listed
impairment); see also Simmons v. Astrue, No. 9:11–02729, 2013 WL 530471, at *5
(D.S.C. Feb. 11, 2013) (rejecting the plaintiff’s objection that it was improper for the
ALJ’s evaluation of the RFC to substitute for a proper analysis of the combined effect of
the plaintiff’s impairments at step three where the plaintiff failed to establish that her
combination of impairments equaled a listing). Thus, Plaintiff’s contention that the
ALJ’s analysis was deficient elevates form over substance and does not warrant remand.
The Hypothetical Question to the VE was Proper
Plaintiff next argues that the ALJ’s hypothetical to the VE was incomplete because
it did not take into account Plaintiff’s shoulder and back pain. [Entry #17 at 8–9]. The
Commissioner responds that the hypothetical was proper because the ALJ reasonably
discounted Plaintiff’s allegations of pain. [Entry #18 at 13–15].
“In order for a vocational expert’s opinion to be relevant or helpful, it must be
based upon a consideration of all other evidence in the record, and it must be in response
to proper hypothetical questions which fairly set out all of claimant’s impairments.”
Walker, 889 F.2d at 50. The hypothetical to the VE in this case included the same
limitations set forth in the RFC determination. Thus, Plaintiff’s allegation of error is a
challenge to the ALJ’s RFC determination, specifically his decision to discount Plaintiff’s
If an ALJ rejects a claimant’s testimony about his 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
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.
In his RFC determination, the ALJ addressed Plaintiff’s complaints of back and
shoulder pain and his testimony that he was unable to sit, stand, or walk for prolonged
periods due to his back pain. Tr. at 17. In finding these complaints less-than-credible,
the ALJ noted that while Plaintiff had been diagnosed with mild degenerative changes in
his lumbar spine, x-rays revealed normal alignment and no fractures, bulges, or
dislocation. Id. The ALJ further noted that the record did not contain documentation of
any specialized treatment, physical therapy, or other surgical intervention for his back or
The ALJ later stated that the record contained no
documentation of any treatment for Plaintiff’s arm complaints. Tr. at 18. The ALJ also
summarized the records of consulting examiner Dr. Kirkland, who observed Plaintiff
with a normal gait, normal strength in all extremities, and normal range of motion in his
back and all extremities. Tr. at 16, 18. Finally, in discounting Plaintiff’s credibility, the
ALJ referenced Plaintiff’s “fairly intact” ADLs and his testimony that he had no
significant side effects from any of his medications. Tr. at 18.
The ALJ’s decision to discount Plaintiff’s credibility as to his shoulder and back
addresses many of the factors identified in SSR 96-7p. The court finds that the ALJ
reasonably discounted Plaintiff’s complaints of pain. Consequently, the court concludes
that it was proper for the ALJ to omit functional limitations related to such complaints
from the hypothetical he posed to the VE.
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.
IT IS SO ORDERED.
February 26, 2013
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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