Hingleton v. Commissioner of Social Security

Filing 22

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V. Hodges on 02/04/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Troy Hingleton,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,1
Defendant.

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C/A No.: 1:12-2892-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 R. Bryan Harwell’s order dated January 31, 2013, referring this matter for
disposition.

[Entry #6].

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

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin is substituted for
Commissioner Michael J. Astrue as the defendant in this lawsuit.

she applied the proper legal standards. For the reasons that follow, the court affirms the
Commissioner’s decision.
I.

Relevant Background
A.

Procedural History

On June 9, 2008, Plaintiff filed applications for DIB and SSI in which he alleged
his disability began on February 4, 2006. Tr. at 56–57, 405–08. His applications were
denied initially and upon reconsideration. Tr. at 35–36, 403–04. On November 3, 2010,
Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Arthur Conover. Tr. at
421–43 (Hr’g Tr.). At the hearing, Plaintiff amended his alleged onset date to March 30,
2006. Tr. at 434. The ALJ issued an unfavorable decision on November 19, 2010,
finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 15–26.
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 7–9.

Thereafter, Plaintiff brought this action seeking judicial review of the

Commissioner’s decision in a complaint filed on October 8, 2012. [Entry #1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 48 years old at the time of the hearing. Tr. at 424. He received a
graduate equivalency diploma (“GED”). Tr. at 426. His past relevant work (“PRW”)
was as a kitchen helper. Tr. at 439. He alleges he has been unable to work since March
30, 2006. Tr. at 434.

2

2.

Medical History

Neither party summarized Plaintiff’s medical history, instead relying on the
summary provided by the ALJ. Thus, the undersigned incorporates herein the ALJ’s
summary of the medical evidence. Tr. at 18–22, 24.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on November 3, 2010, Plaintiff testified that he lived with his
mother and father, but stated that he had lived by himself in a rooming house in 2008
before moving back in with his parents for financial reasons. Tr. at 424–25. He reported
he last worked about six weeks after an on-the-job fall in February 2006. Tr. at 428. He
stated that even after his surgery in May 2007, he suffered from back pain, going into his
right leg and lower back. Tr. at 429–30. He said he could lift small items, but that a
gallon of milk was about the heaviest thing he would lift. Tr. at 430–431, 438. Plaintiff
reported that his right leg would become numb after he stood for more than 20–30
minutes, although he could sit down and stretch it out to try and get the feeling back. Tr.
at 436–37. Plaintiff reported that beginning in February 2010, he saw Stewart Darby,
Ph.D., P.A.-C, for back pain and a headache episode, but that he had not had headaches
since that time. Tr. at 431, 437. He said he took Vicodin and Celebrex. Tr. at 432. He
stated that he had developed depression due to an inability to take care of himself and his
daughter. Tr. at 430. Plaintiff reported helping with household duties, including making

3

his bed, washing dishes, and vacuuming, and he played chess with his brother. Tr. at
433–34, 436.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Robert Brabham reviewed the record and testified at the
hearing. Tr. at 439. The VE categorized Plaintiff’s PRW as a kitchen helper as medium,
unskilled work. Tr. at 439. In response to the hypothetical presented by the ALJ, the VE
testified that Plaintiff could not perform his PRW, but could perform the jobs of machine
tender, assembler, and surveillance monitor. Tr. at 440–41.
2.

The ALJ’s Findings

In his decision dated November 19, 2010, the ALJ made the following findings of
fact and conclusions of law:
1.
2.

3.

4.

5.

The claimant meets the insured status requirements of the Social Security
Act through September 30, 2010.
The claimant has not engaged in substantial gainful activity since March
30, 2006, the amended alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: degenerative disc
disease, depression, and pain disorder (20 CFR 404.1520(c) and
416.920(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, 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 work as defined in 20 CFR
404.1567(a) and 416.967(a) except no lifting and/or carrying over 20
pounds occasionally and 10 pounds frequently; no standing and/or walking
over 2 hours in an 8-hour workday; he can sit at least 6 hours in an 8 hour
day; no crawling or climbing of ladders, ropes, or scaffolds; only
occasional climbing of ramps or stairs, balance, stoop, kneel and crouch; he
would need to avoid exposure or vibrations and heights; he would require a
sit/stand option; and he would be limited to the performance of simple,
routine work with no interaction with the public as customers.
4

6.
7.

8.
9.
10.

11.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on June 19, 1962 and was 43 years old, which is
defined as a younger individual age 18–44, on the alleged disability onset
date. The claimant subsequently changed age category to a younger
individual age 45–49 (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 404.1568 and 416.968).
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 March 30, 2006, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

Tr. at 17–26.

II.

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

the ALJ did not properly assess Plaintiff’s medically-determinable
impairments;

2)

the ALJ erred in finding that Plaintiff did not meet any listing;

3)

the ALJ improperly evaluated the opinion evidence;

4)

the ALJ failed to properly assess Plaintiff’s credibility; and

5)

the ALJ did not properly evaluate Plaintiff’s educational and vocational
factors.

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

5

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;2 (4) whether such

2

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).
6

impairment prevents claimant from performing PRW;3 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.

3

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).
7

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 her 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

8

affirmed “even should the court disagree with such decision.” Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

Consideration of Impairments

After first noting the impairments that the ALJ found to be severe, Plaintiff
generally argues that the ALJ “failed to properly assess” the effects of his stenosis,
chronic neck and back pain, status post spinal fusions, status post stroke, chronic
headaches, and anxiety. [Entry #9 at 2]. Plaintiff’s argument includes no citations or
substantive contentions. It is unclear at what stage he asserts these alleged impairments
should have been considered or how he believes proper consideration of the alleged
impairments would have altered the ALJ’s decision. Furthermore, the ALJ found that
Plaintiff suffered from the severe impairments of degenerative disc disease, depression,
and pain disorder. The severe impairments of degenerative disc disease and pain disorder
reasonably encompass the alleged impairments of stenosis, chronic neck and back pain,
and status post spinal fusions.

With regard to his alleged impairment of chronic

headaches, Plaintiff testified at the hearing that he no longer had headaches. Tr. at 21.
As to Plaintiff’s contention that he is “status post stroke,” the ALJ noted in his decision
that there is no documented medical evidence that Plaintiff experienced a stroke (Tr. at
21), and Plaintiff refers to no evidence to support this alleged impairment.

9

Plaintiff’s final alleged impairment is anxiety. The Commissioner contends that
the only evidence of anxiety in the record is in the reports of Robert Brabham, Ph.D., 4
and William Gore, Ph.D. [Entry #11 at 7]. Dr. Brabham noted that Plaintiff was
“anxious about his situation” and “anxious about the future.” Tr. at 251. Dr. Brabham
diagnosed Plaintiff with generalized anxiety disorder, but assessed no related functional
limitations. Tr. at 252. Dr. Gore likewise diagnosed generalized anxiety disorder, but
indicated that Plaintiff had “no cognitive or emotional limitations with respect to simple
or complex tasks, concentration, persistence, and pace.” Tr. at 290–91. Thus, there is no
record evidence demonstrating that Plaintiff’s alleged anxiety caused any functional
limitations. For this reason, even if the ALJ erred in failing to reference anxiety at step
two, the court finds the error to be harmless. See Mickles v. Shalala, 29 F.3d 918, 921
(4th Cir. 1994) (affirming denial of Social Security benefits where the ALJ erred in pain
evaluation because “he would have reached the same result notwithstanding his initial
error”); see also Plowden v. Colvin, C/A No. 1:12-2588, 2014 WL 37217, at *4 (D.S.C.
Jan. 6, 2014) (noting that the Fourth Circuit has applied the harmless error analysis in the
context of Social Security disability determinations).
For the foregoing reasons, the court finds that the ALJ performed an adequate
assessment of Plaintiff’s impairments.

4

Dr. Brabham is the father of the VE who testified at the hearing. In supplemental
briefing regarding this familial relationship, Plaintiff states that he was aware of the
relationship and does not believe that the relationship between the two men should
impact the court’s review of the ALJ’s decision. [Entry #21].
10

2.

Listing Analysis

Plaintiff next generally argues that he “has an impairment or combination of
impairments listed in or medically equal to one listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1.” [Entry #9 at 2]. He does not specify which listing he believes he meets.
Later in his brief, however, he references the opinion of Dr. Darby, who opined that
Plaintiff met Listings 1.04 (disorders of the spine) and 11.04 (central nervous system
vascular accident). [Entry #9 at 4]. Based on this reference, it appears that Plaintiff is
arguing that the ALJ erred in concluding that Plaintiff does not meet Listings 1.04 and
11.04.
At step three of the sequential evaluation, the Commissioner must determine
whether the claimant has an impairment that meets or equals the requirements of one of
the impairments listed in the regulations and is therefore presumptively disabled. “For a
claimant to show that his impairment matches a listing, it must meet all of the specified
medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis added). It is
not enough that the impairments have the diagnosis of a listed impairment; the claimant
must also meet the criteria found in the listing of that impairment.
404.1525(d), 416.925(d).

20 C.F.R. §§

The Commissioner compares the symptoms, signs, and

laboratory findings of the impairment, as shown in the medical evidence, with the
medical criteria for the listed impairment.

20 C.F.R. §§ 404.1508, 416.908.

The

Commissioner can also determine that the claimant’s impairments are medically
equivalent to a listing, which occurs when an impairment is at least equal in severity and
duration to the criteria of a listing. 20 C.F.R. §§ 404.1526(a), 416.926(a).
11

Listing 1.04 addresses specific disorders of the spine, including a herniated
nucleus pulposus, spinal stenosis, and degenerative disc disease, which result in a
compromise of the nerve root. 20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 1.04. A claimant
with such a spinal impairment may qualify under this Listing for disability if there is (a)
evidence of nerve root compression charaterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss accompanied by sensory or reflex loss, and,
if involvement of the lower back, positive straight leg raises; or (b) spinal arachnoiditis;
or (c) lumbar spine stenosis, resulting in pseudoclaudication, established by imaging,
manifested by chronic non-radicular pain and weakness that results in an inability to
ambulate effectively. Id. Listing 11.04 provides that the required level of severity for
central nervous system vascular accident is met when a claimant has one of the following
more than three months post-vascular accident: (a) sensory or motor aphasia resulting in
ineffective speech or communication; or (b) significant and persistent disorganization of
motor function in two extremities, resulting in sustained disturbance of gross and
dexterous movements, or gait and station. Id. at § 11.04.
Here, Plaintiff has failed to cite to any evidence, other than Dr. Darby’s opinion, to
demonstrate that he meets the requirements of Listings 1.04 or 11.04. With regard to Dr.
Darby’s opinion, the ALJ stated that because Dr. Darby is not a medical doctor, he was
not qualified to give an expert opinion on whether Plaintiff met these Listings, which are
related to Plaintiff’s physical impairments.

Tr. at 21.

The ALJ noted that the

longitudinal record of treatment does not support Dr. Darby’s opinion and stated that
there is no medical evidence that Plaintiff experienced a stroke, nerve root compression,
12

arachnoiditis, or lumbar spinal stenosis, or that he suffers from an inability to ambulate
effectively. Id. The court finds the ALJ reasonably discounted Dr. Darby’s opinion. The
court further finds that the ALJ adequately addressed Listings 1.04 and 11.04 and that his
conclusion that Plaintiff’s impairments did not meet any listing is supported by
substantial evidence.
3.

Evaluation of Opinion Evidence

Plaintiff also asserts that the ALJ erred in discounting the opinion of examining
consultant Dr. Brabham. [Entry #9 at 2–3]. On December 14, 2007, Dr. Brabham
performed an independent psychological and vocational evaluation of Plaintiff at the
request of Plaintiff’s attorney and related to Plaintiff’s workers’ compensation case. Tr.
at 246. Dr. Brabham noted that Plaintiff was injured after a fall at work in February 2006
and that he underwent back surgery in 2007. Id. Plaintiff reported severe back pain for
several days after doing yard work and stated that he spent 25% of a typical eight-hour
day resting, reclining, or lying in bed. Tr. at 247. He said that he can stand, walk, and sit
for 15 minutes before pain requires him to change positions and that he experiences
debilitating pain for hours each day. Tr. at 247, 250–51.
Dr. Brabham diagnosed Plaintiff with a pain disorder, generalized anxiety
disorder, and depressive disorder. Tr. at 252. However, Dr. Brabham opined that
Plaintiff’s academic skills are sufficient for possible use in settings in which such basic
skills are needed, but that, to use such skills, Plaintiff first had to be able to complete a
full eight-hour workday in an upright position. Id. Dr. Brabham further opined that
Plaintiff would have several positive factors in determining his vocational prognosis but
13

for the presence of his continued major restrictions to less than even the full range of
sedentary work. Tr. at 252. Dr. Brabham noted that Plaintiff’s severe levels of pain
rendered him unable to complete a full day of work, but, once able to sustain sedentary
work, he might benefit from additional formal training. Tr. at 252–53. The doctor also
noted Plaintiff indicated pain severe enough to interfere with his ability to report to a job
site at least one to two days per week. Tr. at 253. Dr. Brabham stated that Plaintiff had
not attained sufficient pain management results to permit him to return to full-time
employment and opined that Plaintiff was unable to engage in full-time employment in
his present medical condition. Id.
The ALJ afforded Dr. Brabham’s opinion little weight. The ALJ found that the
opinion seemed to be based on Plaintiff’s reported complaints and not on the overall
evidence of record. Tr. at 20. He noted that Dr. Brabham was not a treating physician
and that his opinion was not supported by the longitudinal treatment record of Dr. James
O’Leary, Plaintiff’s treating orthopedist who opined that Plaintiff could perform
sedentary work. Tr. at 19–20. Finally, the ALJ noted that giving Dr. Brabham’s opinion
controlling weight would, in effect, give him the authority to decide the issue of
disability, which is an issue reserved to the Commissioner. Tr. at 20.
Plaintiff contends that Dr. Brabham’s opinion relied both on the medical evidence
of record and Plaintiff’s self-assessment and that the ALJ erred in finding otherwise.
[Entry #12 at 1–2].

While Dr. Brabham referenced and summarized the medical

evidence, his findings regarding Plaintiff’s extreme physical limitations appear to be
based on Plaintiff’s reports because the medical records do not set forth such limitations.
14

In

fact,

Plaintiff’s

treating

orthopedist,

Dr.

O’Leary,

released

Plaintiff

to

“moderate/sedentary duty” in October 2007. Tr. at 273. Furthermore, a plain reading of
Dr. Brabham’s opinion reveals that his conclusions were premised on Plaintiff’s selfreported limitations. See, e.g., Tr. at 252 (“[Plaintiff’s] potential to learn other less
demanding duties is at present eliminated by his inability to sustain a full workday due to
his continued severe pain on a regular basis, and by the need to recline for hours each
day.”); Tr. at 253 (“[Plaintiff] indicated that he experiences pain, primarily in his back at
such levels of severity so as to interfere with is ability to report to any potential job site at
least 1–2 days a week. This would, of course, greatly exceed the average number of
personal/sick days provided by the average employer in SC.”). For these reasons, the
undersigned finds that the ALJ was justified in discounting Dr. Brabham’s opinion
because it was based on Plaintiff’s subjective complaints.
Plaintiff next asserts that the ALJ erred in discounting Dr. Brabham’s opinion on
the grounds that it is inconsistent with that of Dr. O’Leary. [Entry #9 at 3]. Plaintiff
contends that Dr. O’Leary did not address Plaintiff’s mental impairments in rendering his
opinion, whereas Dr. Brabham considered both Plaintiff’s mental and physical
impairments and found that Plaintiff’s mental impairments rendered him unable to work.
Id. Dr. Brabham’s opinion belies Plaintiff’s argument on this point. The opinion does
not state or suggest that Plaintiff’s mental impairments render him unable to work.
Rather, Dr. Brabham’s opinion that Plaintiff is unable to work is based solely on his
physical limitations. Thus, the ALJ’s comparison of the two opinions was an apples-toapples comparison, and the ALJ did not err in finding the opinions inconsistent.
15

To the extent Plaintiff generally argues that Dr. Brabham’s opinion was supported
by the overall medical evidence, that argument is unavailing because it is not within the
court’s province to reweigh the evidence. 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). As he is required to do, the ALJ
offered valid reasons for discounting the opinion of Dr. Brabham. Because the reasons
the ALJ provided were valid and supported by the record, the court finds that his decision
to discount the opinion is supported by substantial evidence.
4.

Credibility Assessment

Plaintiff next argues that the ALJ erred in discounting Plaintiff’s subjective
statements because those statements were “directly in line with the medical evidence and
opinions of several doctors.” [Entry #9 at 4–5]. The Commissioner responds that the
ALJ properly evaluated Plaintiff’s credibility. [Entry #11 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, 416.929; SSR 96-7p; Craig,
76 F.3d 585, 591–96 (4th Cir. 1996) (discussing the regulation-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
16

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 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
activities of daily living (“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
17

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 some of
the symptoms he alleged, but determined that Plaintiff’s statements “concerning the
intensity, persistence and limiting effects” of his symptoms were “not credible to the
extent” they were inconsistent with the ALJ’s determination of his RFC. Tr. at 23.
In discounting Plaintiff’s credibility, the ALJ first summarized Plaintiff’s
testimony regarding his ADLs and found that they were not indicative of a significant
restriction of activities or constriction of interests. Tr. at 24. Pursuant to SSR 96-7p, an
ALJ is instructed to consider a claimant’s ADLs, and the ALJ did not err in doing so in
this case. The ALJ also noted Plaintiff’s testimony that when he experienced numbness
in his leg, he would address it by sitting down and stretching, and that there is no record
support for his allegation that he can lift no more than a gallon of milk. Tr. at 23–24.
Finally, the ALJ observed that Plaintiff “betrayed no evidence of pain or discomfort
while testifying at the hearing.” Tr. at 24. The ALJ noted that the hearing was shortlived and could not be considered a conclusive indicator of Plaintiff’s overall level of
pain and functioning on a daily basis, but afforded Plaintiff’s appearance during the
hearing some slight weight in the credibility analysis. Id.

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Plaintiff fails to identify what he believes the ALJ specifically did wrong in
conducting the credibility analysis. Rather, his argument appears to be an invitation for
the court to reweigh the evidence, which the court is not permitted to do. See Hays, 907
F.2d at 1456. Because the ALJ articulated valid grounds for discounting Plaintiff’s
credibility and Plaintiff has failed to make any meaningful argument to the contrary, the
court finds that the ALJ did not err in his credibility determination.
5.

Evaluation of Plaintiff’s Educational and Vocational History

Finally, Plaintiff argues that the ALJ failed to properly take into consideration his
education and work experience. [Entry #9 at 4]. With regard to education, Plaintiff
disputes the ALJ’s finding that he has at least a high school education. Id. Plaintiff
argues that because he left school in eleventh grade and later earned his GED, he would
be considered to have a limited education. Id. A GED, however, is equivalent to a high
school education and Plaintiff cites to no authority suggesting that, in the Social Security
context, a GED should be considered a limited education. Moreover, even if Plaintiff’s
contention that he should be considered to have a limited education is accepted as true,
corresponding Medical-Vocational Rules 201.24 and 201.18 would still not direct a
disability finding, and, thus, would not change the applied framework. See 20 C.F.R.
Part 404 Subpart P, Appendix 2, Table 1.
Plaintiff’s conclusory argument regarding his work history is similarly unavailing.
The ALJ accurately stated that Plaintiff cannot perform his PRW and that his PRW is
unskilled. Tr. at 24–25. Plaintiff has failed to articulate any error by the ALJ with regard
to these findings.
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III.

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

Commissioner, but to determine whether her 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 4, 2014
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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