Cornett v. Commissioner of Social Security Administration
ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V. Hodges on 01/17/2017. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Harriet Darlene Cornett,
Carolyn W. Colvin, Acting
Commissioner of Social Security
C/A No.: 1:16-1108-SVH
This pro se 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 Civ. Rule 73.01(B) (D.S.C.), and the
order of the Honorable Margaret B. Seymour dated April 12, 2016, referring this matter
for disposition. [ECF No. 12]. 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. [ECF No. 4].
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
she applied the proper legal standards. For the reasons that follow, the court affirms the
On January 15, 2013, Plaintiff protectively filed applications for DIB and SSI in
which she alleged her disability began on October 20, 2012. Tr. at 81, 82, 221–28, and
229–37. Her applications were denied initially and upon reconsideration. Tr. at 149–53,
157–58, and 159–60. On September 9, 2014, Plaintiff had a hearing before
Administrative Law Judge (“ALJ”) Carl B. Watson. Tr. at 32–56 (Hr’g Tr.). The ALJ
issued an unfavorable decision on October 29, 2014, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 9–31. 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 1–7. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner’s decision in a complaint filed on
April 8, 2016. [ECF No. 1].
Plaintiff’s Background and Medical History
Plaintiff was 53 years old at the time of the hearing. Tr. at 36. She obtained a
bachelor’s degree. Id. Her past relevant work (“PRW”) was as a security guard and a
personal banker. Tr. at 52–53. She alleges she has been unable to work since October 20,
2012. Tr. at 221 and 229.
Plaintiff was admitted to Marymount Medical Center on October 19, 2007, after
presenting to an urgent care facility with bilateral leg edema. Tr. at 377. She reported
chest pain and a two-week history of shortness of breath that was worsened by exertion.
Id. An echocardiogram (“echo”) showed Plaintiff to have normal left ventricular systolic
function; normal wall motion; an ejection fraction of 55%; no pericardial effusion; no
interatrial septum shunt; no mitral valve prolapse; a normal aorta; trace mitral
regurgitation; and mild tricuspid regurgitation. Tr. at 389. Cardiologist Rachna Garg,
M.D. (“Dr. Garg”), examined Plaintiff and reviewed diagnostic studies on October 20,
2007. Tr. at 380–82. He ruled out myocardial infarction, but recommended Plaintiff
undergo a Persantine stress test and venous duplex study. Tr. at 382.
Plaintiff presented to cardiologist Israel D. Garcia, M.D. (“Dr. Garcia”), on
January 6, 2011, with complaints of chest pain, shortness of breath, and leg edema. Tr. at
440. Dr. Garcia ordered an echo, a cardiolite stress test, a 24-hour Holter monitor, a
carotid ultrasound, and multiple blood tests. Tr. at 442. On January 10, 2011, the Holter
monitor report showed sinus rhythm and a few premature ventricular and premature atrial
contractions. Tr. at 438–39. On January 14, 2011, an echo showed Plaintiff to have an
ejection fraction of 69%; normal bilateral ventricular size and function; no significant
valve disease; and mild mitral and tricuspid regurgitation. Tr. at 435–37. On January 20,
2011, Plaintiff’s nuclear stress test was abnormal with myocardial ischemia. Tr. at 431–
32. On February 3, 2011, a cardiac catheterization showed normal coronary arteries and
normal left ventricular function. Tr. at 446–47. Plaintiff followed up with Dr. Garcia on
February 17, 2011. Tr. at 428–30. Dr. Garcia ruled out acute diastolic heart failure,
indicated Plaintiff’s essential hypertension and chest pain had improved, and assessed her
history of congestive heart failure as stable. Tr. at 430. On February 23, 2011, a carotid
ultrasound showed Plaintiff to have normal arteries with no stenosis. Tr. at 420–21.
Plaintiff presented for an initial physical therapy evaluation on March 16, 2011.
Tr. at 452. She complained of pain in her bilateral hips and lumbar spine and plantar
fasciitis in her left foot. Id. Physical therapist Dustin R. Barrett (“Mr. Barrett”), observed
Plaintiff to present with a limp and increased lordosis in her lumbar region. Id. Plaintiff
stated she felt better with movement and worse when she stood still. Id. She reported
being active and walking five miles on three days per week. Id. Mr. Barrett recommended
skilled rehabilitative therapy and a home exercise program. Tr. at 454.
Plaintiff received treatment in March and April 2011 for high myopia and
increased ocular pressure. Tr. at 470–76. On August 17, 2011, she indicated her visual
acuity was good, but continued to complain that she had difficulty reading fine print and
that objects at a distance appeared blurry. Tr. at 747.
Plaintiff was discharged from physical therapy on May 12, 2011, secondary to
noncompliance with attendance. Tr. at 967–68.
On August 18, 2011, Dr. Garcia indicated Plaintiff was stable from a
cardiovascular standpoint. Tr. at 517.
Plaintiff reported improved visual acuity on September 2, 2011. Tr. at 745.
On August 3, 2012, Plaintiff reported to Jimmie Ryals, APN (“Mr. Rials”), that
stress and anxiety were causing her heart rate to increase. Tr. at 626. She indicated she
had chronic stress and anxiety, but that it had increased over the prior two-week period.
Id. Mr. Rials observed Plaintiff to be alert; oriented to time, place, and person; and
anxious. Tr. at 627. He assessed palpitations and anxiety disorder, not otherwise specified
(“NOS”), prescribed Buspirone, and referred Plaintiff for an electrocardiogram (“EKG”).
On October 15, 2012, Plaintiff presented to Kayla Norman, APN (“Ms. Norman”),
with a one-week history of lower back pain that had begun after her employer kicked her
chair. Tr. at 550. Ms. Norman noted Plaintiff demonstrated tenderness to palpation and
spasm in her lower lumbar spine, but had full range of motion (“ROM”) and normal gait,
balance, motor strength, and sensation. Tr. at 551. She prescribed Flexeril, Naproxen, and
Prednisone and referred Plaintiff for x-rays. Id.
Plaintiff reported her pain had improved on October 17, 2012. Tr. at 548. Ms.
Norman indicated Plaintiff had full ROM in her spine, but muscle spasms and tenderness
to palpation in her lower lumbar spine. Tr. at 549.
On December 3, 2012, Plaintiff presented to Amanda Moorhouse, APN (“Ms.
Moorhouse”), with complaints of pain in her left knee, weakness in her hips, and popping
in her head, neck, and lower back. Tr. at 546. Ms. Moorhouse observed Plaintiff to have
full, but painful ROM of her spine; no edema; no deformities; intact pedal pulses;
decreased ROM on flexion and extension of the neck; bilateral sacroiliac joint tenderness;
full ROM of the bilateral lower extremities; and intact sensation and pedal pulses. Tr. at
On December 19, 2012, magnetic resonance imaging (“MRI”) of Plaintiff’s
cervical spine showed multilevel degenerative changes. Tr. at 534. It also indicated a
moderate disc protrusion associated with osteophyte formation at C5-6 that resulted in
moderate central canal stenosis and moderate-to-severe right-sided exit foraminal
narrowing. Id. An MRI of Plaintiff’s lumbar spine indicated mild facet joint degenerative
changes, but no evidence of any significant bulge or herniation. Tr. at 535. An MRI of
Plaintiff’s thoracic spine was negative. Tr. at 639.
Plaintiff followed up with Ms. Moorhouse to discuss the MRI results on December
28, 2012. Tr. at 544. Ms. Moorhouse observed Plaintiff to have full, but painful ROM of
her spine; no edema; decreased ROM on flexion and extension of her neck; bilateral
sacroiliac joint tenderness; full ROM of her bilateral lower extremities; and intact
sensation and pedal pulses. Id. She referred Plaintiff to a neurosurgeon. Id.
Plaintiff followed up with Ms. Norman on February 4, 2013, for allergic rhinitis.
Tr. at 540. She requested that her prescription for Lasix be refilled. Id. Ms. Norman
indicated Plaintiff had no sign of infection. Tr. at 541. She refilled Lasix for edema. Id.
Plaintiff presented to East Tennessee Brain and Spine Center for an assessment on
January 22, 2013. Tr. at 654. She reported that she had begun to experience neck stiffness
in August and had developed occasional fleeting pain into her right shoulder. Id. She
denied paresthesias in her hands and gait disturbance. Id. Will Beringer, D.O. (“Dr.
Beringer”), diagnosed cervical spondylosis. Tr. at 655. He indicated Plaintiff did not
show evidence of a fixed cervical radiculopathy. Id. He noted that she had low back pain,
but no sciatic symptoms and a normal thoracic MRI. Id. He informed Plaintiff that she
had “nothing dangerous in the cervical spine” and referred her to physical therapy for
traction and strengthening exercises. Id.
Plaintiff presented to Juduan Alison, M.D. (“Dr. Allison”), on February 5, 2013,
with complaints of pressure behind her eyes and blurred vision. Tr. at 523. Dr. Alison
indicated Plaintiff’s right acuity without glasses was 20/20 and her left acuity without
glasses was 20/25. Tr. at 525. He assessed glaucoma, pseudophakia, and posterior
vitreous detachment in both eyes and instructed Plaintiff to follow up in four months. Id.
On February 28, 2013, Plaintiff informed physical therapist Theresa Huff (“Ms.
Huff”), that she felt like physical therapy was aggravating her pain and visual
disturbances. Tr. at 675. Ms. Huff indicated Plaintiff “did not seem to give full effort”
during manual muscle testing. Tr. at 676. She referred Plaintiff back to Dr. Beringer for
further assessment of her pain complaints. Id.
On March 4, 2013, state agency medical consultant Thomas Thrush, M.D. (“Dr.
Thrush”), assessed Plaintiff’s physical residual functional capacity (“RFC”). Tr. at 65–67.
He indicated Plaintiff had the following limitations: occasionally lift and/or carry 50
pounds; frequently lift and/or carry 25 pounds; stand and/or walk for about six hours in
an eight-hour workday; sit for about six hours in an eight-hour workday; and reach
overhead with the bilateral upper extremities no more than frequently. Id. State agency
psychological consultant Andrew Phay, Ph. D. (“Dr. Phay”), indicated Plaintiff had failed
to establish any medically-determinable mental impairment. Tr. at 64.
On March 5, 2013, Dr. Beringer noted that Plaintiff had some spondylotic
problems at C5-6 and C6-7 that were “mild at best.” Tr. at 670. Plaintiff informed Dr.
Beringer that her neck pain had worsened since she had been injured in a car accident on
February 1, 2013,1 and that she was hardly able to move her neck. Id. Dr. Beringer
observed Plaintiff to have very limited ROM of her neck and to be tender over the
posterior cervical regional, but to have good strength in her arms. Tr. at 671. He placed
Plaintiff in a cervical collar and referred her for a computed tomography (“CT”) scan. Id.
The CT scan indicated minor cervical spondylosis at C5-6 and asymmetrical facet
arthropathy on the left at C4-5, but no acute injury. Tr. at 696.
On March 20, 2013, Plaintiff reported neck pain that “throbs like a toothache.” Tr.
at 944. Dr. Beringer indicated Plaintiff’s CT scan showed some minor spondylosis at C56, but no evidence of a fracture or subluxation. Tr. at 945. He ordered flexion and
extension x-rays of Plaintiff’s neck and indicated they did not show any significant
ligamentous injury. Tr. at 946. He stated Plaintiff did not require the cervical collar and
should resume physical therapy. Id. He indicated he would consider administering
injections if Plaintiff’s physical therapy was ineffective. Id.
On March 29, 2013, Plaintiff indicated she was using a cervical collar because the
vibration of walking aggravated her neck pain. Tr. at 663. She stated she was unable to
move her head to a neutral position. Id. She also complained that she had pressure in her
head and eyes, shooting pain into her right hip, and was unable to walk straight. Tr. at
663. Dr. Beringer observed Plaintiff to have decreased cervical and bilateral upper
extremity ROM and decreased strength. Tr. at 664. He noted that Plaintiff did not appear
to provide full effort. Tr. at 665.
Dr. Beringer noted that Plaintiff declined to visit the emergency room after the accident
and failed to inform Ms. Huff that she was injured in an accident during a physical
therapy session following the accident. Tr. at 670.
On April 18, 2013, Plaintiff sought treatment for neck pain and reported that Dr.
Beringer had discharged her from his practice. Tr. at 871. Steven Gardner, P.A. (“Mr.
Gardner”), observed Plaintiff to have decreased ROM and decreased effort when he
assessed the ROM of her neck. Tr. at 872.
Plaintiff presented to Johnson City Medical Center on April 27, 2013, for
abdominal pain and rectal bleeding. Tr. at 683. She was diagnosed with gastrointestinal
bleeding and a urinary tract infection. Tr. at 679.
Plaintiff presented to Jomar Roberts I, M.D. (“Dr. Roberts”), for a comprehensive
orthopedic examination on June 1, 2013. Tr. at 702. She reported constant cervical pain
that she rated as a nine on a 10-point scale. Id. She denied bowel and bladder
incontinence, but reported leg weakness that had caused her to fall roughly 20 times over
the past year. Id. She stated her neck pain was exacerbated by a car accident that occurred
in February 2013. Id. She indicated she had last worked in a call center in September
2012, but stated she did not leave the job because of her health. Id. Dr. Roberts observed
Plaintiff to ambulate with a normal gait; to have normal grip strength; to have normal
ROM of the lumbar spine, shoulders, elbows, forearms, wrists, hips, knees, and ankles; to
have lateral flexion and bilateral rotation of the cervical spine reduced to 10 degrees 2;
negative straight-leg raising test; normal abilities to walk on heels and toes, to squat, and
to perform heel-to-toe tandem gait.; normal mental status; 20/40 visual acuity on the right
and 20/70 visual acuity on the left, without glasses; 5/5 motor strength in all muscle
groups; intact sensation; and normal reflexes. Tr. at 704–05. He assessed cervicalgia, but
Dr. Roberts indicated normal lateral flexion was to 45 degrees and normal bilateral
rotation was to 80 degrees. Tr. at 704.
indicated Plaintiff gave “deliberate poor effort through ROM portion of cervical exam.”
Tr. at 705.
On June 24, 2013, state agency medical consultant Irene Richardson, M.D. (“Dr.
Richardson”), assessed Plaintiff’s RFC. Tr. at 111–14. She indicated the following
limitations: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25
pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six
hours in an eight-hour workday; no more than frequently lifting overhead with the
bilateral upper extremities; and restricted from work requiring full visual fields for
function and safety. Id.
On June 28, 2013, state agency psychological consultant Manhal Wieland, Ph. D.
(“Dr. Wieland”), noted that Plaintiff repeatedly denied depression and anxiety and did not
allege any mental impairments on her initial or reconsideration applications. Tr. at 110.
He concluded there was no evidence for any medically-determinable mental impairment.
Plaintiff presented to Richard Young, M.D. (“Dr. Young”), with urinary urgency
and leakage on July 24, 2013. Tr. at 900–04. She denied back pain and stated she did not
know the source of her incontinence. Tr. at 900. Plaintiff indicated she experienced
urinary frequency every two hours and needed to use the restroom two to three times
during the night. Id. Dr. Young prescribed Vesicare. Tr. at 903.
Plaintiff was admitted to McLeod Loris/Seacoast Hospital on August 6, 2013,
after presenting with chest pain. Tr. at 752. Plaintiff’s chest x-ray showed a mildly
enlarged cardiac silhouette, but no acute findings. Tr. at 754. Her EKG was normal, aside
from episodes of sinus bradycardia in the 50s. Id. Nathan Almeida, M.D. (“Dr.
Almeida”), recommended an exercise nuclear stress test and an echo. Id. Both the stress
test and the echo showed normal results. Tr. at 760. Plaintiff was discharged on August 8,
2013, with diagnoses of chest pain, hypertension, hypothyroidism, and bradycardia. Id.
On August 14, 2013, Plaintiff reported to Dr. Young that she had only taken one
dose of Vesicare. Tr. at 907. Dr. Young continued Plaintiff’s prescription and instructed
her to follow up in one month. Id.
Plaintiff followed up with Dr. Almeida on August 28, 2013. Tr. at 976. She
reported a couple of episodes of retrosternal chest pressure per week. Id. She complained
of excessive daytime sleepiness and fatigue and inadequate sleep quality. Id. Dr. Almeida
observed no abnormalities on examination. Tr. at 976–77. He noted Plaintiff had
symptoms of obstructive sleep apnea and referred her for a sleep study. Tr. at 977.
On September 18, 2013, Plaintiff reported that Vesicare provided some relief, but
that she continued to wear three to four thin pads per day. Tr. at 910. Dr. Young
continued her treatment and instructed her to follow up in six months. Tr. at 912.
On November 13, 2013, an esophagogastroduodenoscopy (“EGD”) showed
erosion and erythema in the antrum and was consistent with gastritis. Tr. at 881 and 887–
88. Although mucosa was consistent with Barrett’s esophagitis, a biopsy was negative.
Id. A colonoscopy indicated mild diverticulosis with several diverticula and non-bleeding
internal hemorrhoids. Id.
On November 21, 2013, Dr. Almeida observed Plaintiff to have mildly decreased
ROM in her upper and lower extremities, but no other abnormalities. Tr. at 973–74. He
stated Plaintiff had atypical chest pain that was likely related to gastroesophageal reflux
disease (“GERD”). Tr. at 974. He indicated Plaintiff’s blood pressure was well-controlled
on low-dose Lisinopril and that her lipids were at their goal. Id. He noted Plaintiff had
good aerobic functional capacity, as demonstrated by a recent stress study. Id. He stated a
recent sleep study was negative for sleep apnea. Id. Dr. Almeida encouraged Plaintiff to
continue regular aerobic exercise and weight loss. Id.
Plaintiff presented to Jessica Thasitis, FNP (“Ms. Thasitis”), for treatment of
GERD on December 3, 2013. Tr. at 881. She noted Plaintiff had been walking a mileand-a-half on most days, without reduced exercise tolerance, chest pain, or shortness of
breath. Id. Plaintiff reported one episode of right lower quadrant abdominal pain during
the prior week, but indicated it resolved on its own. Tr. at 882. Ms. Thasitis provided
samples of Dexilant to Plaintiff and instructed her on a reflux diet and the benefit of
small, frequent meals. Tr. at 884. She stressed to Plaintiff the need to be compliant with
her medication for hypothyroidism. Id.
On March 12, 2014, Plaintiff reported that Vesicare helped her incontinence, but
indicated she had to discontinue the medication for a month while she was in the process
of switching insurance plans. Tr. at 914.
Plaintiff complained of hemorrhoidal discomfort on March 24, 2014. Tr. at 877.
She indicated she had noticed incomplete defecatory emptying, bright red blood, a lump
around her rectum, and mild reflux with burping. Id. Ms. Thasitis indicated Plaintiff’s
rectal discomfort was likely caused by an external hemorrhoid. Tr. at 879. She
recommended Plaintiff start taking a daily fiber supplement with Miralax. Id. She noted
Plaintiff’s breakthrough GERD symptoms were likely the result of a medication change
and suggested Plaintiff should continue her reflux diet and restart Dexilant. Id.
Plaintiff presented to Coastal Eye Group for a glaucoma evaluation on March 27,
2014. Tr. at 988. She complained of decreased visual acuity at night. Id. She stated she
saw light flashes at night that looked like laser beams and that caused headaches. Id. Carl
F. Sloan, M.D. (“Dr. Sloan”), indicated Plaintiff had full motility, but restricted visual
field. Tr. at 988. His impression was open-angle glaucoma. Tr. at 989.
On April 25, 2014, Plaintiff complained of nose bleeds and increased blood
pressure associated with Vesicare and Flomax. Tr. at 920. Dr. Young discussed multiple
treatment options with Plaintiff, prescribed Toviaz, and encouraged her to perform Kegel
exercises and to follow up in one month. Tr. at 923.
Plaintiff presented to Thomas Anderson, M.D. (“Dr. Anderson”), on May 13,
2014, complaining of pain all over. Tr. at 931. She reported a history of two automobile
accidents that had caused pain in her neck and middle and lower back. Id. She
complained of constant numbness in her hands and feet. Id. She stated she had received
no treatment for her neck or back in the last six months. Id. Dr. Anderson observed
Plaintiff to have normal strength and reflexes in her bilateral upper and lower extremities.
Tr. at 932. He indicated he would review an MRI of Plaintiff’s cervical spine before
determining the best course of action.3 Id.
On May 22, 2014, Select Health of South Carolina sent a letter informing Dr. Anderson
that their medical director had reviewed the request for a cervical MRI and had found that
Plaintiff did not meet the criteria for medical necessity. Tr. at 960.
Plaintiff followed up with Dr. Almeida on May 15, 2014. Tr. at 969. She reported
occasional retrosternal chest discomfort when engaging in physical activity in the heat of
the day, and but indicated she was able to engage in aerobic exercise at the gym without
difficulty. Id. Dr. Almeida observed Plaintiff to have mildly decreased ROM in her upper
and lower extremities, but found no other abnormalities on physical examination. Tr. at
970. He assessed non-cardiac chest pain, stable bradycardia, well-controlled
hypertension, moderate GERD, and improved sleep apnea. Id. He recommended Plaintiff
use a proton-pump inhibitor for GERD, but indicated she did not require aspirin because
there was no evidence of coronary artery disease. Id.
Plaintiff reported improved symptoms with Toviaz on June 4, 2014, but indicated
she continued to have occasional trouble with urinary urge incontinence. Tr. at 926. Dr.
Young refilled Toviaz and indicated he would consider urodynamic testing if Plaintiff’s
symptoms worsened. Tr. at 928.
Plaintiff underwent an MRI of the brain on September 25, 2014, that revealed a
single nonspecific T2 white matter hyperintensity in the right frontal lobe. Tr. at 991–93.
The Administrative Proceedings
The Administrative Hearing
At the hearing on September 9, 2014, Plaintiff testified she last worked in
December 2012. Tr. at 36. She stated she worked for three or four days, but that she left
the job because her vision problems were causing her to mistake numbers. Id. She
indicated her last successful job was as a personal banker for Bank of America in 2009 or
2010. Tr. at 36–37. She testified she was fired from a job at Dairy Queen because she
made mistakes as a result of difficulty reading the order screen. Tr. at 37. She indicated
she worked for a couple of months as a data entry clerk, but was laid off from that job
because of a slow-down in work. Id. She testified her PRW also included jobs as a
customer care representative, a security guard, and a news reporter. Tr. at 37–38.
Plaintiff stated she had moved from Tennessee to the South Carolina coast because
she felt threatened by her ex-husband and desired to improve her son’s asthma symptoms.
Tr. at 42–43. She indicated she lived with her children in a third floor apartment. Tr. at
Plaintiff testified that she had a stroke in 2000 that resulted in problems with
memory, concentration, and mobility. Tr. at 39. She indicated she had residual weakness
on her left side. Id. She stated she continued to have short-term memory loss and
problems with concentration. Tr. at 40. She testified she sometimes was slow to respond
to questions and easily forgot things. Id. She stated she had to write notes and keep a
calendar as reminders. Id.
Plaintiff testified she had a heart attack in 2004. Tr. at 40. She indicated she visited
an urgent care center because she noticed her feet were swelling. Id. She stated the doctor
told her that she was having heart difficulties and admitted her to the hospital. Id. She
indicated her doctor recommended she undergo placement of three stents, but that she
declined the procedure because she was afraid of complications. Tr. at 40–41.
Plaintiff testified that she had begun to develop back pain four years earlier. Tr. at
41. She indicated she had been in several car accidents, but that her back pain had
increased significantly since her vehicle was rear-ended in 2013. Tr. at 41–42. She stated
her back injury had caused her to become incontinent. Tr. at 50.
Plaintiff testified she had recently been referred to a neurologist because of
bradycardia, vision problems, pain in her head and neck, numbness in her face and throat,
and difficulty swallowing. Tr. at 45. She stated the neurologist had referred her for an
MRI the prior week and had recommended she undergo neck surgery. Id. Plaintiff
indicated she had recently been diagnosed with glaucoma. Tr. at 46. She stated the
glaucoma specialist indicated her loss of peripheral vision was not a result of glaucoma
and referred her to another neurologist, who recommended a brain scan. Id.
Plaintiff testified she was unable to work because of dizziness and blurred vision.
Tr. at 47. She stated she walked with a cane and avoided walking, strenuous activity,
lifting, pushing, and pulling. Tr. at 47 and 48. She indicated she used a neck brace to
avoid moving her neck and increasing her pain. Tr. at 47. She estimated she could stand
for no more than five minutes. Tr. at 49. She stated she could sit for five or ten minutes
before she developed numbness in her legs. Tr. at 49–50.
Plaintiff testified she had recently begun to take Amitriptyline for nerve pain,
depression, and anxiety. Tr. at 48. She stated that some medications had exacerbated
symptoms of glaucoma in the past. Tr. at 48–49. She indicated she used a transcutaneous
electrical nerve stimulation (“TENS”) unit for back pain, but was unable to participate in
physical therapy for her back until her neck problems were resolved. Tr. at 49.
Plaintiff confirmed that she had a driver’s license and was able to drive short
distances. Tr. at 50. She testified she washed dishes, prepared meals, and did laundry. Tr.
at 50. She indicated she took breaks to sit down while cooking and that her children
helped her to move wet clothing from the washer to the dryer. Id. Plaintiff stated she did
some shopping. Tr. at 51. She indicated that a typical day involved waking her son for
school; preparing his breakfast; driving him to school; taking her medication; engaging in
housework or crocheting; rinsing the dishes and loading the dishwasher; picking up her
son from school; walking around; cooking dinner; and helping her son with his
homework. Tr. at 51–52.
Vocational Expert Testimony
Vocational Expert (“VE”) Arthur Schmitt, Ph. D., reviewed the record and
testified at the hearing. Tr. at 52–55. The VE categorized Plaintiff’s PRW as a security
guard, Dictionary of Occupational Titles (“DOT”) number 372.667-034, as light with a
specific vocational preparation (“SVP”) of three and a personal banker, DOT number
186.167-036, as sedentary with an SVP of eight. Tr. at 52–53. The ALJ described a
hypothetical individual of Plaintiff’s vocational profile who could perform medium work;
could occasionally reach overhead with the bilateral upper extremities; could not climb
ladders, ropes, or scaffolds; and should avoid working at unprotected heights or around
dangerous machinery. Tr. at 53. The VE testified that the hypothetical individual could
perform unskilled, medium jobs as an egg packer, DOT number 920.687-134, with 1,982
positions in South Carolina and 306,000 positions nationally; a janitor, DOT number
381.687-018, with 27,600 positions in South Carolina and 2,090,000 positions nationally;
and a laundry operator, DOT number 362.686-014, with 3,190 positions in South
Carolina and 211,000 positions nationally. Tr. at 53–54. He stated the individual would
be unable to perform any of Plaintiff’s PRW. Tr. at 54.
The ALJ next asked the VE to consider a hypothetical individual of Plaintiff’s
vocational profile who could perform light work with the additional limitations indicated
in the first hypothetical question. Id. The VE identified unskilled, light jobs as a storage
facility rental clerk, DOT number 295.367-026, with 4,400 positions in South Carolina
and 416,000 positions nationally; a garment packer/machine tender, DOT number
920.665-018, with 9,800 positions in South Carolina and 706,000 positions nationally;
and a ticket taker, DOT number 344.667-010, with 1,260 positions in South Carolina and
104,000 positions nationally. Id.
The ALJ asked the VE to assume the individual would be absent three times per
month on a consistent basis and asked if there would be any jobs she could perform. Tr.
at 54–55. The VE stated there would be no jobs. Tr. at 55.
The ALJ’s Findings
In his decision dated October 29, 2014, 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 December 31, 2013.
The claimant has not engaged in substantial gainful activity since October
20, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
The claimant has the following severe impairments: degenerative disc
disease of the cervical and lumbar spine, diverticulitis, hypertension,
hypothyroidism, gastroesophageal reflux disease, and coronary artery
disease with status-post myocardial infarction (20 CFR 404.1520(c) and
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform less than the
full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b).
Light exertional work is described by the Commissioner of the Social
Security Administration as requiring lifting and carrying of up to 20 pounds
occasionally and 10 pounds frequently and standing, walking, and sitting
for 6 hours in an 8-hour workday. The claimant can occasionally reach
overhead bilaterally; but she can never climb ladders, ropes, or scaffolds.
She must avoid working at unprotected heights or around dangerous
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on May 3, 1961 and was 51 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date (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 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 October 20, 2012, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).
Tr. at 14–24.
Plaintiff alleges the Commissioner erred for the following reasons:
the ALJ did not adequately assess Plaintiff’s severe impairments at step
the ALJ erred in finding Plaintiff’s impairments did not meet or equal the
requirements for a finding of disability under Listing 1.04;
the ALJ did not adequately consider the evidence that supported a finding
of disability under Listing 12.02;
the ALJ failed to properly evaluate her treating physician’s opinion; the
the ALJ improperly assessed her credibility; and
ALJ did not adequately assess her RFC.
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 she has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;4 (4) whether such
impairment prevents claimant from performing PRW;5 and (5) whether the impairment
prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520 and
416.920. 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) and 416.920(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 she 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) and 416.920(a), (b); Social Security
Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability
to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
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 and 416.925. If the medical evidence
shows a claimant meets or equals all criteria of any of the Listed impairments for at least
one year, she will be found disabled without further assessment. 20 C.F.R. §§
404.1520(a)(4)(iii) and 416.920(a)(4)(iii). To meet or equal one of these Listings, the
claimant must establish that her impairments match several specific criteria or are “at
least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526 and
416.926; 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).
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) and 416.920(h).
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 she 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).
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
Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (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
affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972).
Because Plaintiff is proceeding pro se, the court has liberally construed her brief to
allow for the development of potentially meritorious claims. See Boag v. MacDougall,
454 U.S. 364, 365 (1982); see also Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999) (stating that the mandated liberal construction of pro se pleadings means only that
if the court can reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so).
Evaluation of Severe Impairments at Step Two
Plaintiff argues she had the following severe impairments: degenerative disc
disease of the cervical spine; degenerative disc disease of the lumbar spine; GERD;
diverticulosis; history of coronary artery disease; history of sinus bradycardia; history of
congestive heart failure; headaches; visual disturbances that included blurred vision, loss
of color, vision graying, and visual changes based on position; frequent nosebleeds;
extreme neck and back pain; severe fatigue; trembling throughout her body; history of
stroke and brain injury with frontal lobe lesion, resulting in cognitive difficulties and
memory loss; and lumbar spinal stenosis and spinal arachnoiditis. [ECF No. 23 at 2–3].
The Commissioner argues the ALJ adequately accounted for Plaintiff’s cervical
and lumbar impairments and heart condition in the assessed RFC. [ECF No. 24 at 6]. She
claims that any error in assessing the severity of Plaintiff’s impairments at step two was
remedied in the RFC assessment. Id. at 8–9. She maintains the medical evidence
generally showed normal cardiac functioning or benign results from cardiac testing. Id. at
6–7. She contends the record does not suggest that Plaintiff’s cognitive and visual
problems were severe. Id. at 7 n.1. She maintains the record reflected a history of
treatment for glaucoma, cataracts, and blurred vision, but showed Plaintiff to have vision
that was correctable with glasses. Id. at 7 n.1. She also argues the record lacks objective
evidence to indicate Plaintiff suffered a stroke. Id. at 7 n.1.
A severe impairment “significantly limits [a claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see also SSR 96-3p.
A nonsevere impairment “must be a slight abnormality (or a combination of slight
abnormalities) that has no more than a minimal effect on the ability to do basic work
activities.” SSR 96-3p, citing SSR 85-28; see also 20 C.F.R. §§ 404.1521(a), 416.921(a)
(“An impairment or combination of impairments is not severe if it does not significantly
limit your physical or mental ability to do basic work activities.6”).
Basic work activities include physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing,
and speaking; understanding, carrying out, and remembering simple instructions; use of
The ALJ’s recognition of a single severe impairment at step two ensures that he
will progress to step three. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)
(“[A]ny error here became harmless when the ALJ reached the proper conclusion that
[claimant] could not be denied benefits conclusively at step two and proceeded to the
next step of the evaluation sequence.”). Therefore, this court has found no reversible error
where the ALJ neglected to find an impairment to be severe at step two provided that he
considered that impairment in subsequent steps. See Washington v. Astrue, 698 F. Supp.
2d 562, 580 (D.S.C. 2010) (collecting cases); Singleton v. Astrue, No. 9:08-1982-CMC,
2009 WL 1942191, at *3 (D.S.C. July 2, 2009).
The ALJ found that Plaintiff’s severe impairments included degenerative disc
disease of the cervical and lumbar spine, diverticulitis, hypertension, hypothyroidism,
GERD, and coronary artery disease with a history of myocardial infarction. Tr. at 14. He
noted that Plaintiff had been diagnosed with glaucoma, cataracts, gastritis, and plantar
calcaneal spur, but determined that the impairments were not severe because “they are
not supported by objective signs, symptoms or laboratory findings or no more than
minimally affect her ability to perform basic work activities as outlined by 20 CFR
416.908.” Tr. at 15. He found that anxiety did not “cause more than minimal limitation to
the claimant’s ability to perform basic mental work activities” and was “therefore
judgment; responding appropriately to supervision, coworkers, and usual work situations;
and dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) and
Because the ALJ found that Plaintiff had severe impairments at step two and
proceeded to subsequent steps, any error in assessing her impairments at step two was
harmless. See Washington, 698 F. Supp. 2d at 580; Singleton, 2009 WL 1942191, at *3.
Nevertheless, the court has considered and addressed below whether the ALJ adequately
considered Plaintiff’s credibly-established severe impairments at subsequent steps in the
Plaintiff argues she has lumbar spinal stenosis with pain and weakness that impairs
her ability to ambulate. [ECF No. 23 at 3]. She contends she has pseudoclaudication with
symptoms in her lower back and bilateral hips and legs. Id. She further maintains that she
has spinal arachnoiditis and spinal stenosis that cause bladder incontinence. Id.
“In evaluating a claimant’s impairment, an ALJ must fully analyze whether a
claimant’s impairment meets or equals a ‘Listing’ where there is factual support that a
listing could be met.” Huntington v. Apfel, 101 F. Supp. 2d 384, 390 (D. Md. 2000),
citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986) (remanded, in part, because
of ALJ’s failure to specifically identify relevant Listing and compare each of the Listed
criteria to the evidence of the claimant’s symptoms). “The ALJ’s analysis must reflect a
comparison of the symptoms, signs, and laboratory findings concerning the impairment,
including any resulting functional limitations, with the corresponding criteria set forth in
the relevant listing.” Id. “In order to meet a Listing, every element of the listing must be
satisfied.” Id., citing Sullivan v. Zebley, 493 U.S 521, 531 (1990).
“A claimant is entitled to a conclusive presumption that he is disabled if he can
show that his disorder results in compromise of a nerve root or the spinal cord.”
Henderson v. Colvin, 643 F. App’x 273, 276 (4th Cir. 2016). However, the claimant
bears the burden of demonstrating that the impairment meets or equals the Listing. Id.,
citing Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986).
To meet the requirements of Listing 1.04, the claimant must have “[d]isorders of
the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda equina) or the spinal cord” and must
meet the requirements in either paragraph A, B, or C. 20 C.F.R. Pt. 404, Subpt. P, App’x
1 § 1.04. Paragraph A requires “[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive straight-leg raising test
(sitting and supine).” 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 1.04(A). Paragraph B
requires “[s]pinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for changes in position or posture
more than once every 2 hours.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 1.04(B).
Paragraph C requires “[l]umbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to ambulate
effectively, as defined in 1.00B2b.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 1.04(C).
The ALJ considered Listing 1.04, but found that Plaintiff’s impairment did not
meet or equal the Listing because MRI examinations showed no significant herniation,
stenosis, or nerve-root impingement. Tr. at 16–17.
The December 19, 2012 MRI report suggests that Plaintiff had degenerative disc
disease and a herniated nucleus pulposus that resulted in moderate central canal stenosis
and moderate-to-severe right-sided exit foraminal narrowing. Tr. at 534. This suggests
that Plaintiff’s impairment met the criteria in the introductory paragraph to Listing 1.04.
However, even accepting Plaintiff’s reports of neuro-anatomic distribution of pain, a
need for frequent changes of position, and chronic pain and weakness, a comparison of
the evidence of record and the requirements in paragraphs A, B, and C does not show that
she met the Listing. Paragraph A requires motor loss, accompanied by sensory or reflex
loss, but the record consistently indicates Plaintiff had normal motor strength7, sensation,
and reflexes. See Tr. at 544, 547, 551, 671, 704–05, and 932. Plaintiff’s impairment did
not meet the criteria in paragraph B because she did not undergo surgery and the imaging
reports are not consistent with spinal arachnoiditis. See Tr. at 534, 535, 639, 696, and
946. Finally, Plaintiff’s impairment did not meet the requirements in paragraph C because
she cannot show that she was unable to ambulate effectively. While Plaintiff testified that
she ambulated with a cane (Tr. at 47), her alleged use of a single cane is insufficient to
meet the Listing’s requirement. Pursuant to Listing 1.00B2b,
Dr. Beringer observed Plaintiff to have decreased strength on March 29, 2013, but noted
that “[s]he did not appear to provide full effort to [manual muscle testing].” Tr. at 665.
Inability to ambulate effectively means an extreme limitation of the ability
to walk: i.e., an impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower
extremity functioning (see 1.00J) to permit independent ambulation without
the use of a hand-held assistive device(s) that limits the functioning of both
upper extremities. (Listing 1.05C is an exception to this general definition
because the individual has the use of only one upper extremity due to
amputation of a hand.)
Plaintiff has pointed to no evidence to suggest that she required the use of a hand-held
assistive device that limited the functioning of both upper extremities. Furthermore, the
undersigned notes that Plaintiff failed to demonstrate that her cane was prescribed by a
physician and treatment notes generally suggested Plaintiff had a normal gait and did not
reference use of a cane. See Tr. at 551, 654, and 704.
In light of the foregoing, the ALJ did not err in concluding that Plaintiff failed to
prove that her impairment met or equaled Listing 1.04.
Plaintiff argues she had a lesion on the frontal lobe of her brain and a history of
stroke and traumatic brain injury. [ECF No. 23 at 3]. She maintains she experienced
cognitive difficulties and memory loss. Id. She contends she had lost past educational
knowledge, including foreign language abilities, and exhibited slowed physical, mental,
and verbal responses. Id.
Listing 12.02 pertains to organic mental disorders and requires “[p]sychological or
behavioral abnormalities associated with a dysfunction of the brain.” 20 C.F.R. Pt. 404,
Subpt. P, App’x 1 § 12.02. The claimant’s “[h]istory and physical examination or
laboratory tests” must “demonstrate the presence of a specific organic factor judged to be
etiologically related to the abnormal mental state and loss of previously acquired
functional abilities.” Id. To prove disability under Listing 12.02, the individual’s
impairment(s) must satisfy the diagnostic criteria in the introductory paragraph and the
criteria of both paragraphs A and B or A and C. Id.
Paragraph A requires “demonstration of a loss of specific cognitive or affective
changes and the medically documented persistence” of one or more of the following:
Disorientation to time and place; or
Memory impairment, either short-term (inability to learn new
information), intermediate, or long-term (inability to remember
information that was known sometime in the past); or
Perceptual or thinking disturbances (e.g., hallucinations, delusions);
Change in personality; or
Disturbance in mood; or
Emotional lability (e.g., explosive temper outbursts, sudden crying,
etc.) and impairment in impulse control; or
Loss of measured intellectual ability of at least 15 I.Q. points from
premorbid levels or overall impairment index clearly within the
severely impaired range on neuropsychological testing, e.g., the
Luria-Nebraska, Halstead-Reitan, etc.
20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.02(A).
To satisfy the requirements of paragraph B, the individual’s impairment must
result in at least two of the following: (1) marked restriction of activities of daily living;
(2) marked difficulties in maintaining social functioning; (3) marked difficulties in
maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App’x 1 §
Paragraph C requires a “[m]edically documented history of a chronic organic
mental disorder of at least 2 years’ duration that has caused more than a minimal
limitation of ability to do basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support” and one or more of the following:
Repeated episodes of decompensation, each of extended duration; or
A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or
Current history or 1 or more years’ inability to function outside a
highly supportive living arrangement, with an indication of
continued need for such arrangement.
20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.02(C).
The ALJ did not specifically consider Listing 12.02, but found that none of
Plaintiff’s impairments met or was equal in severity to a Listed impairment. Tr. at 17. He
found that the evidence did not substantiate Plaintiff’s reported history of stroke. Tr. at
The record before the court fails to establish the presence of an organic mental
disorder. As an initial matter, the record lacks evidence that Plaintiff suffered
psychological or behavioral abnormalities. The ALJ noted that Plaintiff had not alleged
severe mental impairments. Tr. at 16. This was consistent with the state agency
consultants’ assessments. See Tr. at 64 and 110. Although Plaintiff occasionally endorsed
depression, anxiety, and memory problems (Tr. at 901, 906, 911, 912, 916, 921, 971, 975,
and 978), her physicians generally described her psychiatric examinations as normal and
did not document objective evidence of psychological or behavioral abnormalities. See
Tr. at 539, 547, 556, 611, 658, 685, 753, 870, 902, 922, 945, 956, 959, et al. The
consultative physician observed Plaintiff to be alert and oriented to time, person, place,
and condition and to have normal mental status, including general understanding, fund of
knowledge, insight, attention, concentration, recent and remote memory, speech, hygiene,
affect, and calculative ability. Tr. at 704.
The record is also devoid of history and physical examination or laboratory tests
that demonstrate the presence of a specific organic factor judged to be etiologically
related to an abnormal mental state or loss of previously-acquired abilities. Although
Plaintiff testified that she suffered a stroke in 2000 (Tr. at 39), the records from
Marymount Medical Center dated October 2007 state that Plaintiff had “no significant
past medical history” and noted only that her past medical history was “[p]ositive for
panic attack” and “LE edema.” Tr. at 377, 380, 482, 484, and 486. Plaintiff also reported
in 2010 that she had no significant medical history. See Tr. at 391 and 394 (“PAST
HISTORY: Illnesses – none; Surgeries – no prior surgeries”). Later records indicate a
questionable history of stroke or mini-stroke (Tr. at 428, 440, 489, 515, 546, et al.) or a
reported history of stroke or mini-stroke (Tr. at 448, 452, 473, 538, 657, 683, et al.).
However, as the ALJ noted (Tr. at 19), none of the physical examinations or laboratory
tests in the record before the ALJ established that Plaintiff had a stroke. While Plaintiff
submitted an MRI of her brain to the Appeals Council that showed a single nonspecific
T2 white matter hyperintensity in the right frontal lobe (Tr. at 991–93), the MRI report
contains no clinical correlation to establish a diagnosis or to indicate the findings
suggested a history of stroke.
In addition, the only suggestion in the record that Plaintiff might meet the
paragraph A criteria was her self-reported memory impairment, which was not verified
through any objective means and was refuted by the consultative examination. See Tr. at
704; see also 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.02(A).
The ALJ generally considered the paragraph B criteria and found that Plaintiff had
no limitation of activities of daily living, social functioning, or concentration, persistence,
or pace and had experienced no periods of decompensation of extended duration. Tr. at
16. He based this determination on a history of normal psychological examinations and
Plaintiff’s reports that she performed household chores, prepared meals, drove, and went
outside multiple times each day. Tr. at 16. Plaintiff has cited and a review of the record
has yielded no substantial evidence to refute the ALJ’s conclusion that Plaintiff did not
meet the paragraph B criteria under Listing 12.02.
Finally, Plaintiff has failed to reference and a review of the record has not revealed
substantial evidence that she had repeated episodes of decompensation, a residual disease
process that had resulted in marginal adjustment, or an inability to function outside a
highly supportive living arrangement. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1 §
In light of the forgoing, Plaintiff has failed to carry the burden to prove that she
met the requirements for a finding of disability under Listing 12.02.
Treating Physician’s Opinion
Plaintiff submitted to the Appeals Council a physician’s statement signed by
Preeth A. Menon, M.D. (“Dr. Menon”). Tr. at 994–95. Dr. Menon indicated Plaintiff had
a permanent disability and was “not able to work.” Tr. at 994. He stated Plaintiff could
engage in the following activities for less than two hours each during a workday: sitting,
standing, walking, climbing ladders and stairs, kneeling/squatting, bending/stooping,
pushing/pulling, keyboarding, lifting, and carrying. Id. He indicated Plaintiff could not
carry more than five pounds for more than 20 minutes per day. Id. He stated Plaintiff’s
primary disabling diagnosis was cervicalgia and her secondary disabling diagnosis was
pain. Tr. at 995. He indicated Plaintiff “needs surgery.” Id.
Plaintiff argues that Dr. Menon was her “primary care physician” and that the ALJ
failed to consider his opinion that she be approved for permanent disability. [ECF No. 23
at 6]. The Commissioner maintains that none of Plaintiff’s treating physicians indicated
Plaintiff had restrictions that would preclude work activity. [ECF No. 24 at 9].
The court notes that Dr. Menon’s opinion was not in the record before the ALJ and
was submitted to the Appeals Council for review. See Tr. at 6. Claimants may submit
additional evidence to the Appeals Council that was not before the ALJ at the time of the
decision. Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011). If the evidence is new,
material, and relates to the period on or before the date of the ALJ’s hearing decision, the
Appeals Council should evaluate it as part of the entire record. Id. Here, the Appeals
Council conceded that Dr. Menon’s opinion was new and material by admitting it into the
record. See Tr. at 6.
“Confronted with such new and material evidence, the Appeals Council then
‘evaluate[s] the entire record including the new and material evidence.’” Meyer, 662 F.3d
at 705, citing Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.
1991). If the Appeals Council finds that the ALJ’s “action, findings, or conclusion is
contrary to the weight” of all evidence, including the new and material evidence, the
Appeals Council will grant the request for review and either issue its own decision on the
merits or remand the case to the ALJ. Id., citing 20 C.F.R. §§ 404.970(b) and
416.1470(b). On the other hand, if after considering all evidence, the Appeals Council
decides that the ALJ’s actions, findings, and conclusions were not contrary to the weight
of the evidence, the Appeals Council can deny review with or without explaining its
rationale. Id. at 705–06.
Although the Social Security Administration’s rules and regulations require that
ALJ’s carefully evaluate and specify the weight they accord to medical opinions and the
reasons for that weight (See 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p and 965p), the Appeals Council is not held to the same standard unless it grants the request for
review. See id. at 706 (“Only if the Appeals Council grants a request for review and
issues its own decision on the merits is the Appeals Council required to make findings of
fact and explain its reasoning.”), citing 20 C.F.R. §§ 404.967, 404.979, and
404.1527(f)(3). Here, the Appeals Council concluded that the additional evidence
provided no basis for changing the ALJ’s decision (Tr. at 2) and denied the request for
review (Tr. at 1). Thus, the Appeals Council was not required to provide a detailed
explanation as to how it weighed Dr. Menon’s opinion.
Despite the Appeals Council’s determination that the new and material evidence
provided no basis for changing the ALJ’s decision, the court retains the authority to
consider that evidence as part of the entire record in determining whether the ALJ’s
decision was supported by substantial evidence. “In reviewing the Appeals Council’s
evaluation of new and material evidence, the touchstone of the Fourth Circuit’s analysis
has been whether the record, combined with the new evidence, ‘provides an ‘adequate
explanation of [the Commissioner’s] decision.’” Turner v. Colvin, C/A No. 0:14-228DCN, 2015 WL 751522, at *5 (D.S.C. Feb. 23, 2015), citing Meyer, 662 F.3d at 707
(quoting DeLoatche v. Heckler, 715 F.3d 148, 150 (4th Cir. 1983)). After reviewing new
evidence submitted to the Appeals Council, the court should affirm the ALJ’s decision to
deny benefits where “substantial evidence support[ed] the ALJ’s findings.” Id. at 707,
citing Smith v. Chater, 99 F.3d 635, 638–39 (4th Cir. 1996). However, if a review of the
record as a whole shows “that new evidence from a treating physician was not
controverted by other evidence in the record,” the court should reverse the ALJ’s decision
and find it to be unsupported by substantial evidence. Id., citing Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 953 F.3d 93, 96 (4th Cir. 1991). If the evidence is not so onesided as to allow the court to determine, upon consideration of the record as a whole,
whether substantial evidence supported the ALJ’s denial of benefits, the appropriate
course of action is for the court to remand the case for further fact finding. Id.
The court has carefully considered Plaintiff’s argument in view of language in
Meyer, 662 F.3d at 706, that “analysis from the Appeals Council or remand to the ALJ
for analysis would be particularly helpful when the new evidence constitutes the only
record evidence as to the opinion of the treating physician.” Here, as in Meyer, the ALJ
specifically noted that “[n]one of the claimant’s treating physicians placed restrictions on
her that would preclude work activity within the above established residual functional
capacity.” Tr. at 22. However, this case may be distinguished from Meyer in that the
record is devoid of evidence to support Dr. Menon’s opinion or the alleged treatment
Plaintiff has failed to cite any records that confirm an examining or treating
relationship with Dr. Menon. The undersigned’s review of the record yields no evidence
from or reference to Dr. Menon and indicates other medical providers to be Plaintiff’s
primary care provider on or around the date indicated on the opinion form. On July 24,
2013, Dr. Young indicated Plaintiff had been referred by Linda Buster (“Ms. Buster”)
and that her primary provider was Dr. Kenneth Crutcher. Tr. at 900. Records from
Cardiology/Gastroenterology Associates of Myrtle Beach, P.A. dated October and
November 2013 indicate Plaintiff was referred by Karen McCutcheon, M.D. and Ms.
Buster, a nurse practitioner. Tr. at 892 and 896. Dr. Sloan indicated Plaintiff’s primary
care physician was “Crutcher” on March 27, 2014. Tr. at 988. Plaintiff indicated “Dr.
Kenneth Crutcher” to be her primary doctor on a patient information form she completed
on May 5, 2014. Tr. at 937.
A medical provider’s opinion is not entitled to deference and is entitled to
significantly less weight if there is no examining or treating relationship. Cf. Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (explaining that ALJs should not rely on
opinions from non-treating, non-examining physicians that are contradicted by other
evidence of record); 20 C.F.R. §§ 404.1527 and 416.927 (explaining generally the factors
that should be considered in weighing medical opinions and providing that the
adjudicator should consider the examining relationship, the treatment relationship, the
supportability of the opinion in the medical source’s records, the consistency of the
opinion with the record as a whole, the medical source’s specialization, and any other
factors that may be relevant to the evaluation of the opinion); SSR 96-2p (providing that
“a case cannot be decided in reliance on a medical opinion without some reasonable
support for the opinion” and that controlling weight may only be accorded to a treating
source’s opinion if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in the
case record”); 96-5p (clarifying how the adjudicator should consider medical source
Furthermore, Dr. Menon’s opinion does not explain how Plaintiff’s impairments
supported the specified restrictions. See Tr. at 994–95; see also 20 C.F.R. §§
404.1527(c)(3) and 416.927(c)(3).
In the absence of clinical findings to support the opinion and medical records to
confirm an examining or treatment relationship between Plaintiff and Dr. Menon, the
Appeals Council did not err in finding that Dr. Menon’s opinion provided no basis for
changing the ALJ’s decision. Thus, the ALJ’s decision continued to be supported by
substantial evidence with the addition of Dr. Menon’s opinion.
Plaintiff argues the ALJ erred in discounting her credibility based on the effort she
provided during testing and her cessation of physical therapy. [ECF No. 23 at 6]. She
contends the ALJ minimized the severity of her spinal injuries. Id. She maintains the ALJ
failed to consider that her past efforts to work had exacerbated her heart problems and
that she had been fired from positions because of her visual and cognitive problems. Id.
The Commissioner argues the ALJ adequately considered multiple notations in the
record that suggested Plaintiff was not giving full effort during physical therapy and
examinations. [ECF No. 24 at 5–6]. She maintains the ALJ could not find Plaintiff
disabled merely based on her subjective allegations and rejected the alleged impairments
that were not supported by the record. Id. at 9. She contends the ALJ considered the
whole record in concluding that Plaintiff’s allegations were not entirely credible. Id. at 9.
She maintains the ALJ considered Plaintiff’s reports to her physicians and her testimony
in finding that her allegations were not entirely credible. Id. at 10.
After finding that a claimant has a medically-determinable impairment that could
reasonably be expected to produce her alleged symptoms, the ALJ should evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the
limitations they impose on her ability to do basic work activities. SSR 96-7p.8 If the
The Social Security Administration recently published SSR 16-3p, 2016 WL 1119029
(2016), which supersedes SSR 96-7p, eliminates use of the term “credibility,” and
clarifies that subjective symptom evaluation is not an examination of an individual’s
character. Because the ALJ decided this case prior to March 16, 2016, the effective date
of SSR 16-3p, the court analyzes the ALJ’s decision based on the provisions of SSR 967p, which required assessment of the claimant’s credibility. Although SSR 16-3p
claimant’s statements about the intensity, persistence, or limiting effects of her symptoms
are not substantiated by the objective medical evidence, the ALJ is required to consider
the claimant’s credibility in light of the entire case record. Id. The ALJ must consider
“the medical signs and laboratory findings, the individual’s own statements about the
symptoms, any statements and other information provided by treating or examining
physicians or psychologists and other persons about the symptoms and how they affect
the individual, and any other relevant evidence in the case record.” Id. In addition to the
objective medical evidence, the ALJ should also consider the claimant’s ADLs; the
location, duration, frequency, and intensity of her pain or other symptoms; factors that
precipitate and aggravate her symptoms; the type, dosage, effectiveness, and side effects
of her medications; treatment, other than medication, the claimant receives or has
received; any measures other than treatment and medications the claimant uses or has
used to relieve her pain or other symptoms; and any other relevant factors concerning the
claimant’s limitations and restrictions. Id.
The ALJ must cite specific reasons to support his finding on credibility, and his
reasons must be consistent with the evidence in the case record. Id. His decision must
clearly indicate the weight he accorded to the claimant’s statements and the reasons for
that weight. Id. In Mascio v. Colvin, 780 F.3d 632, 639–40 (4th Cir. 2015), the court
emphasized the need to compare the claimant’s alleged functional limitations from pain
to the other evidence of record and indicated an ALJ should explain how he decided
which of a claimant’s statements to believe and which to discredit. The court
eliminates the assessment of credibility, it requires assessment of most of the same
factors to be considered under SSR 96-7p.
subsequently stressed that an ALJ’s decision must “build an accurate and logical bridge
from the evidence” to the conclusion regarding the claimant’s credibility. Monroe v.
Colvin, 826 F.3d 176, 189 (4th Cir. 2016), citing Clifford v. Apfel, 227 F.3d 872 (7th Cir.
The ALJ found that Plaintiff’s medically-determinable impairments could
reasonably be expected to cause the alleged symptoms, but that her statements
concerning the intensity, persistence, and limiting effect of her symptoms were not
entirely credible. Tr. at 18. He cited inconsistencies between Plaintiff’s testimony, her
reports, and the medical evidence of record. Id. He indicated that the medical evidence
did not substantiate Plaintiff’s reported history of myocardial infarction and stroke. Tr. at
19 and 20–21. He observed that records from imaging of Plaintiff’s lumbar spine were
unremarkable in March 2011. Tr. at 19. He noted that Plaintiff reported that she was
walking five miles at a time on three days per week at that time. Id. He indicated Plaintiff
was discharged from physical therapy for failing to attend in May 2011. Id. He noted that
MRIs of Plaintiff’s cervical and lumbar spine showed degenerative disc disease and
moderate central canal stenosis and right-sided exit foraminal narrowing at C5-6. Id. He
observed that Plaintiff participated in physical therapy again in 2013, but that the physical
therapist indicated she was not giving full effort. Id. He indicated Dr. Beringer noted that
Plaintiff had not provided full effort in April 2013. Id. He stated Dr. Anderson observed
that Plaintiff had received no treatment in the six months before she presented to him in
May 2014 and had normal strength and reflexes. Id. He stated Plaintiff had not been
compliant with taking her prescribed thyroid medications. Tr. at 20. He recognized that
Plaintiff had told Dr. Roberts that her termination of work in September 2012 was
unrelated to health problems and that she reported performing a variety of household
chores, shopping, and driving. Tr. at 21. He noted that Dr. Roberts’s exam yielded mostly
normal findings and that he specified that Plaintiff deliberately gave poor effort. Id. He
indicated Dr. Wieland had noted that Plaintiff did not allege any mental health
impairments in her initial or reconsideration applications. Tr. at 21–22.
The court finds the ALJ adequately assessed Plaintiff’s credibility as required by
SSR 96-7p and provided a logical explanation for his finding that her allegations were not
entirely credible. In reaching his conclusion, the ALJ relied on the objective medical
evidence, Plaintiff’s statements and self-reported activities and limitations, and the
examination reports from Plaintiff’s physicians and other medical providers. See
generally Tr. at 18–22.
Although Plaintiff argues the ALJ erred in reducing her credibility based on an
erroneous conclusion that she discontinued physical therapy and did not provide adequate
effort on testing, the ALJ’s characterization of Plaintiff’s compliance and effort was
supported by the record. See Tr. at 665 (noting that Plaintiff did not appear to provide full
effort on manual muscle testing), 676 (indicating Plaintiff “did not seem to give full
effort” during manual muscle testing), 705 (characterizing Plaintiff as giving “deliberate
poor effort through ROM portion of cervical exam”), 872 (observing that Plaintiff had
decreased effort on ROM testing of her neck), and 969 (stating the reason for Plaintiff’s
discharge from physical therapy to be “Non-compliance: Attendance”).
While Plaintiff maintains that her spinal injuries were more serious than the ALJ
acknowledged because she underwent cervical fusion and surgery to repair herniated
discs [ECF No. 23 at 6], the ALJ properly considered the evidence before him. See Tr. at
19 (noting the cervical MRI findings from December 2012; indicating records from
February through April 2013 suggested Plaintiff was not providing full effort; indicating
CT findings from March 2013; noting that Dr. Anderson stated Plaintiff had not sought
treatment over the past six months and observed that she demonstrated normal strength
and reflexes in her bilateral upper and lower extremities). The court further notes that in
January 2013, Dr. Beringer indicated Plaintiff did not require surgery. Tr. at 655.
Although it is possible that Plaintiff underwent surgery at a later date, the record before
the court is devoid of evidence of spinal surgery.
As for Plaintiff’s allegation that the ALJ failed to consider that she had difficulty
performing PRW because of her heart condition, visual problems, and cognitive
impairments, the court defers to the ALJ’s explanation as to why he did not find these
impairments to be more severe. See Tr. at 15 (discussing the medical evidence that
pertained to Plaintiff’s diagnoses of glaucoma, cataracts, and blurred vision and finding
that they no more than minimally affected her ability to perform basic work-related
activity9), 19 (stating the medical evidence failed to objectively identify a history of
Although the ALJ found that Plaintiff’s glaucoma, cataracts, and blurred vision were
nonsevere impairments (Tr. at 15), he accorded significant weight to Dr. Richardson’s
opinion, which included a restriction “from work requiring full visual fields for function
and safety,” among other limitations. Compare Tr. at 22, with Tr. at 112–13. He did not
explain whether he was accepting or rejecting the visual limitation in Dr. Richardson’s
opinion, but incorporated no visual limitation in the assessed RFC. To the extent that the
ALJ erred in failing to include in the RFC assessment a restriction from work requiring
myocardial infarction or stroke), and 20–21 (discussing relatively normal cardiac
Plaintiff argues the ALJ did not adequately assess the evidence in accordance with
the provisions of SSR 96-8p. [ECF No. 23 at 4]. She maintains her sitting, standing, and
walking restrictions precluded her from engaging in sustained work at the sedentary
exertional level. Id. She contends she was unable to perform work-related activities on a
regular and continuing basis. Id. at 5. She maintains she would have required excessive
breaks; would have been absent from work frequently; and would have been unable to
sustain concentration and pace to perform unskilled work. Id. at 5.
The Commissioner argues that substantial evidence supports the ALJ’s RFC
assessment. [ECF No. 24 at 5]. She maintains the ALJ accounted for all of Plaintiff’s
credibly-established functional limitations. Id. She contends the assessed RFC was
supported by the objective medical evidence, the medical opinions of record, and
Plaintiff’s self-reported abilities and activities. Id.
To adequately assess an individual’s RFC, the ALJ must determine the limitations
imposed by her impairments and how those limitations affect her ability to perform workfull visual fields, such error was harmless. The DOT’s descriptions of the jobs of storage
facility rental clerk and ticket taker show “field of vision” as “Not Present—Activity or
condition does not exist.” DICOT 295.367-026 (G.P.O), 1991 WL 672594; DICOT
344.667-010 (G.P.O.), 1991 WL 672863. This court has traditionally excused errors as
harmless in cases where the ALJ “would have reached the same result notwithstanding”
the error. See Mickles v. Shalala, 29 F. 3d 918, 921 (4th Cir. 1994). Because a restriction
on field of vision would not have precluded Plaintiff from performing the identified jobs,
the ALJ would have concluded she was “not disabled” if he had included the additional
limitation in the RFC assessment.
related physical and mental abilities on a regular and continuing basis. SSR 96-8p. The
ALJ should consider all the claimant’s allegations of physical and mental limitations and
restrictions, including those that result from severe and nonsevere impairments. Id. “The
RFC assessment must include a narrative discussion describing how all the relevant
evidence in the case record supports each conclusion and must cite specific medical facts
(e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).”
Id. The ALJ must also consider and explain how any material inconsistencies or
ambiguities in the record were resolved. Id. “The RFC assessment must include a
discussion of why reported symptom-related functional limitations and restrictions can or
cannot reasonably be accepted as consistent with the medical and other evidence.” Id.
“[R]emand may be appropriate . . . where an ALJ fails to assess a claimant’s capacity to
perform relevant functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ’s analysis frustrate meaningful review.” Mascio, 780 F.3d at
636, citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
The ALJ stated his RFC assessment was supported by the weight of the evidence
of record and noted the following:
There are no medical findings of such severity that suggest that the
claimant is completely incapable of all work activity. There are positive
findings that somewhat support some of the claimant’s subjective
symptoms and reported limitations. While the medical evidence of record
establishes the existence of the above-mentioned impairments, the objective
findings do not confirm that these impairments are of such a severity that
they could reasonably be expected to produce the degree of pain and
functional limitations alleged. The medical evidence of record repeatedly
indicated that the claimant’s severe or nonsevere impairments were
adequately controlled or did not pose significant functional limitations.
Tr. at 22.
Although Plaintiff argues the ALJ incorrectly assessed her RFC, she fails to cite
evidence of record that supports her claim that she was unable to meet the sitting,
standing, walking, lifting, concentration, and attendance requirements necessary to
perform work with the assessed limitations. As discussed above, the ALJ considered
Plaintiff’s allegations regarding the limitations that her impairments imposed, but
provided sufficient reasons for finding them to be partially credible. See Tr. at 18–22. He
cited specific medical and non-medical evidence that supported his findings regarding
Plaintiff’s credibility and her RFC. See id.
While the ALJ did not accept all of Plaintiff’s allegations, he acknowledged that
her impairments imposed some limitations and determined her RFC accordingly. He
found that Plaintiff had the RFC to perform less than a full range of light work that
required lifting and carrying up to 20 pounds occasionally and 10 pounds frequently and
standing, walking, and sitting for six hours in an eight-hour workday. Tr. at 17. He stated
Plaintiff was further limited to occasional overhead reaching with the bilateral upper
extremities; could never climb ladders, ropes, or scaffolds; and must avoid working at
unprotected heights or around dangerous machinery. Id. He acknowledged a letter
Plaintiff had sent to Dr. Anderson “that indicated she had previously been advised to
avoid activities that would cause compression of her cervical spine including no pushing,
pulling, lifting, or lifting her arms over her head,” but noted that “[a] thorough review of
the medical record fails to identify these restrictions.” Tr. at 19. He indicated he limited
Plaintiff to “light exertional work with no climbing of ladders, ropes, or scaffolds” based
on her musculoskeletal functional limitations. Tr. at 20. He recognized that Plaintiff had
been diagnosed with diverticulosis, but indicated the condition “appeared to be of mild
severity.” Id. He stated that Plaintiff’s hypertension was stable and well-controlled and
that she had been instructed to be compliant with her thyroid medications to reduce
symptoms of hypothyroidism. Id. He noted that Dr. Almeida had instructed Plaintiff to
continue aerobic exercises as part of her treatment for gastritis and GERD. Id.
The ALJ acknowledged conflicting evidence in the record regarding Plaintiff’s
alleged history of myocardial infarction and stroke and provided a reasoned explanation
for his finding that they were not supported. He noted that the medical evidence of record
did not objectively show that Plaintiff had suffered a myocardial infarction and that
diagnostic testing had not shown significant ongoing cardiac-related functional
limitations. Nevertheless, he included a restriction in the assessed RFC for avoidance of
workplace hazards to accommodate Plaintiff’s complaints of numbness and dizziness. Tr.
In light of the ALJ’s explanation for his RFC assessment, the court finds that he
complied with the provisions of SSR 96-8p and that substantial evidence supports his
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.
January 17, 2017
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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