Powers v. Commissioner of Social Security Administration

Filing 21

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V. Hodges on 07/20/2017. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Trenna E. Powers,
Plaintiff,
vs.
Nancy A. Berryhill,1 Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:16-3729-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 Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable David C. Norton, United States District Judge, dated March 6, 2017,
referring this matter for disposition. [ECF No. 11]. 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. 10].
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 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 Commissioner’s decision.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this lawsuit.

I.

Relevant Background
A.

Procedural History

On April 25, 2012, Plaintiff filed an application for SSI in which she alleged her
disability began on January 1, 2011. Tr. at 170–75. Her application was denied initially
and upon reconsideration. Tr. at 90–92 and 99–102. On May 1, 2015, Plaintiff had a
hearing before Administrative Law Judge (“ALJ”) Nicholas Walter. Tr. at 29–72 (Hr’g
Tr.). The ALJ issued an unfavorable decision on June 23, 2015, finding that Plaintiff was
not disabled within the meaning of the Act. Tr. at 6–28. 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 1–4. Thereafter,
Plaintiff brought this action seeking judicial review of the Commissioner’s decision in a
complaint filed on November 25, 2016. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 43 years old at the time of the hearing. Tr. at 22. She completed the
tenth grade. Tr. at 38. She had no past relevant work (“PRW”). Tr. at 66. She alleges she
has been unable to work since January 1, 2011. Tr. at 39.
2.

Medical History

Plaintiff presented to the emergency room (“ER”) at Stephens County Hospital on
September 21, 2011, with a complaint of left-sided chest pain. Tr. at 302. She was
diagnosed with a hiatal hernia and anxiety. Tr. at 305.

2

State agency consultant Glenda Scallorn, M.D. (“Dr. Scallorn”), reviewed the
record and completed a psychiatric review technique form (“PRTF”) on July 23, 2012.
Tr. at 276–89. She found that Plaintiff had mild restriction of activities of daily living
(“ADLs”), mild difficulties in maintaining social functioning, and mild difficulties in
maintaining concentration, persistence, or pace and that her anxiety-related impairment
was non-severe. Tr. at 286 and 288.
Plaintiff presented to Ashok K. Kancharla, M.D. (“Dr. Kancharla”), for a
disability examination on July 25, 2012 Tr. at 290. She reported panic attacks and
neuropathy and restlessness in her legs. Id. Range of motion testing was normal. Tr. at
293–96. Dr. Kancharla identified no abnormalities and indicated Plaintiff was able to
ambulate without an assistive device and to get on and off the examination table without
difficulty. Tr. at 291.
Plaintiff presented to Oconee Medical Center on August 15, 2012, with left arm
pain and numbness. Tr. at 340. The attending physician diagnosed cervical radiculopathy.
Tr. at 341.
On October 29, 2012, Plaintiff presented to the ER at Stephens County Hospital
with right-sided chest pain. Tr. at 319. The attending physician diagnosed atypical right
chest wall pain and chronic cholecystitis. Tr. at 322.
Plaintiff presented to Oconee Medical Center on November 2, 2012. Tr. at 347.
She complained of five-day history of intermittent chest pain, after having sustained a fall
and bruised her arm. Tr. at 348. X-rays of Plaintiff’s right wrist revealed mild
degenerative joint disease of the first metacarpal-carpal joint. Tr. at 367. A chest x-ray
3

showed streaky densities of the left mid-lung field that likely represented subsegmental
atelectasis or scarring. Id. Juan Cabanero, M.D. (“Dr. Cabanero”), diagnosed a non-STelevation myocardial infarction, hypertension, dyslipidemia, and tobacco abuse. Tr. at
371–72. He referred Plaintiff for a left heart catheterization based on an abnormal
troponin level and T-wave inversion. Tr. at 349. The heart catheterization revealed
unstable angina and severe native coronary artery disease consisting of 90% left anterior
descending (“LAD”) coronary artery stenosis. Tr. at 364. Plaintiff was transported to St.
Francis Hospital, where she underwent percutaneous coronary intervention and stenting
of the LAD artery. Tr. at 374. She was discharged on November 4, 2012, with
instructions to follow a diet low in saturated fat, salt, and cholesterol; to do no heavy
lifting, straining, stooping, or squatting for five days; to monitor her incision site for signs
of bleeding and infection; and to follow up with Dr. Cabanero in two weeks. Tr. at 377.
Plaintiff presented to nurse practitioner Shannon Robinson, CNP (“Ms.
Robinson”), on November 9, 2012, to establish treatment and to follow up from her
surgery. Tr. at 393. She denied chest pain and shortness of breath. Id. Ms. Robinson
indicated Plaintiff’s hypertension was controlled on medication. Id. She continued
Plaintiff on Viibryd for anxiety. Id.
Plaintiff followed up with Ms. Robinson on November 30, 2012. Tr. at 400. Ms.
Robinson indicated Plaintiff was doing well and that she should continue her current
medications. Tr. at 401.
On December 22, 2012, Plaintiff presented to the ER at Oconee Medical Center
with chest pain. Tr. at 444. She reported feeling “swimmy headed and dizzy.” Tr. at 447.
4

The attending physician indicated that Plaintiff’s hypertension medication dosage was
likely too high, and the cardiologist concluded that Plaintiff’s chest pain was not cardiacrelated. Tr. at 447–48.
Plaintiff reported she was doing well on January 7, 2013. Tr. at 398. Ms. Robinson
noted some sinus-related abnormalities and diagnosed a sinus infection and dysuria. Tr. at
399.
On March 7, 2013, Plaintiff complained of heartburn, burning, and a pulling
sensation in her chest that had persisted for several weeks. Tr. at 396. She reported left
arm pain, numbness, and tingling during the night. Id. She stated she had not been taking
Lipitor or Effient because she could not afford them. Id. Ms. Robinson authorized
prescription refills. Tr. at 397.
On May 3, 2013, state agency medical consultant Charles Jones, M.D. (“Dr.
Jones”), evaluated the evidence and determined Plaintiff had the physical residual
functional capacity (“RFC”) to occasionally lift and/or carry 20 pounds; frequently lift
and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour
workday; sit for a total of about six hours in an eight-hour workday; frequently reach and
handle; and must avoid concentrated exposure to humidity and hazards. Tr. at 82–84.
On June 3, 2013, Plaintiff reported occasional chest pressure. Tr. at 482. She
indicated it occurred at night and was relieved by rest and Flexeril. Id. Ms. Robinson
recommended Plaintiff use Nitroglycerin when she experienced symptoms. Id. She
replaced Lipitor with Pravastatin because Plaintiff was unable to afford Lipitor. Id. She

5

noted that Plaintiff was oriented to time, place, person, and situation and demonstrated
the appropriate mood and affect. Id.
Plaintiff presented to Justin Huthwaite, Psy. D. (“Dr. Huthwaite”), for a
psychological consultative examination on June 28, 2013. Tr. at 405–10. She reported
that she had been enrolled in special education classes from kindergarten through fifth
grade, but had subsequently transferred to a private school that had no special education
department. Tr. at 406. She indicated she had done well with reading, but had struggled
with math, science, and social studies. Id. She stated she had repeated the first grade and
had typically earned Cs and Ds. Id. She indicated she had worked for a week at Arby’s,
but had quit because she could not learn how to operate the cash register. Id. She stated
she had worked for a year at a nursing home, but had been fired after her patient fell. Id.
Plaintiff denied a history of psychiatric treatment. Tr. at 407. She indicated that
Citalopram had effectively treated her symptoms. Id. She reported occasional bouts of
depression and indicated she felt hopeless and cried at times. Id. She endorsed decreased
sleep, variable appetite, and low energy. Tr. at 408. She reported symptoms of anxiety
that were triggered by being in crowded places and riding in vehicles, but denied having
experienced anxiety symptoms while in her home. Id. Dr. Huthwaite described Plaintiff
as having normal speech; showing no signs of delusions or hallucinations; demonstrating
a mildly anxious mood and affect; and having adequate insight and judgment. Id. He
indicated Plaintiff had some problems recalling objects after a delay. Id. He assessed
depressive disorder, not otherwise specified (“NOS”) and anxiety disorder, NOS. Tr. at
409. He indicated a provisional diagnosis of borderline intellectual functioning. Id. He
6

stated “[g]iven her reported learning difficulties in school as well as on the job, it is
recommended that she undergo cognitive testing.” Id.
On July 8, 2013, Plaintiff requested that Pravastatin and Flexeril be refilled. Tr. at
479. Ms. Robinson observed Plaintiff to have left shoulder tenderness. Tr. at 479. She
noted Plaintiff was oriented to time, place, person, and situation and demonstrated the
appropriate mood and affect. Tr. at 480. She refilled Plaintiff’s prescriptions for
Lisinopril and Pravastatin and prescribed Tramadol for left arm pain. Id.
Plaintiff presented to Oconee Medical Center on July 16, 2013, with abdominal
pain that radiated into her right jaw and was associated with dizziness, nausea, and pain
with inspiration. Tr. at 419. She was diagnosed with acute cholecystitis. Tr. at 423. She
indicated a desire to proceed with laparoscopic cholecystectomy. Tr. at 428. However,
after reviewing her medication list and discovering that she was on Effient and aspirin for
coronary artery disease, Michael Paluzzi, M.D., indicated it would be best to defer
surgery. Id.
On July 30, 2013, state agency consultant Fran Shahar, Ph. D. (“Dr. Shahar”),
reviewed the record and completed a PRTF. Tr. at 80–81. She considered Listings 12.02
for organic mental disorders, 12.04 for affective disorders, and 12.06 for anxiety-related
disorders and determined that Plaintiff had mild restriction of ADLs, mild difficulties in
maintaining social functioning, and moderate difficulties in maintaining concentration,
persistence, or pace. Id.
On September 3, 2013, Ms. Robinson noted that Plaintiff presented with
anxious/fearful thoughts, depressed mood, and diminished interest or pleasure, but denied
7

fatigue and suicidal thoughts. Tr. at 476. She noted that Plaintiff’s anxiety was triggered
by conflict or stress. Id. She observed that Plaintiff was oriented to time, place, person,
and situation and demonstrated the appropriate mood and affect. Tr. at 477.
Plaintiff reported that her impairments were controlled on October 7, 2013. Tr. at
473. She denied fatigue and suicidal thoughts and indicated her functioning was not
difficult. Id. She was oriented to time, place, person, and situation and demonstrated an
appropriate mood and affect. Tr. at 474.
On April 1, 2014, Plaintiff presented with concerns over elevated blood pressure.
Tr. at 470. She indicated that her depressive symptoms were controlled and that she was
functioning without difficulty. Id. She endorsed anxious and fearful thoughts, but denied
fatigue. Id. She indicated she was responding well to Citalopram. Id. Ms. Robinson
observed that Plaintiff was oriented to time, place, person, and situation and
demonstrated appropriate mood and affect. Tr. at 471. She increased Plaintiff’s dosage of
Lisinopril to 40 mg. Tr. at 472.
On July 17, 2014, Plaintiff reported worsening hypertension. Tr. at 490. Ms.
Robinson noted no abnormalities on examination and described Plaintiff as being
oriented to time, place, person, and situation and demonstrating the appropriate mood and
affect. Tr. at 491.
On July 23, 2014, Karen Frank, D.O. (“Dr. Frank”), and Ms. Robinson completed
a clinical assessment of pain form. Tr. at 488. In response to a question regarding the
significance of Plaintiff’s pain, they circled “[p]ain is present to such an extent as to be
distracting to adequate performance of daily activities or work.” Id. In response to a
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question regarding the extent to which physical activity would increase Plaintiff’s
experience of pain, they selected “[g]reatly increased pain is likely to occur, and to such a
degree as to cause distraction from the task or even total abandonment of the task.” Id. In
response to a question about the effects of prescribed medications, they indicated
“[s]ignificant side effects can be expected to limit the effectiveness of work duties or the
performance of such daily tasks such as driving an automobile, etc.” Id. They also
completed a medical opinion form regarding Plaintiff’s ability to perform work-related
physical tasks. Tr. at 489. They noted Plaintiff’s maximum ability to sit during an eighthour workday would be about two hours. Id. They indicated her maximum ability to
stand/walk during an eight hour workday would be about two hours. Id. They stated
Plaintiff needed the opportunity to shift at will from sitting to standing/walking. Id. They
noted that Plaintiff would sometimes need to elevate her feet at unpredictable intervals
during a work shift. Id. They denied that Plaintiff would need to lie down to relieve pain
during a normal workday and indicated she did not require a cane to ambulate. Id. They
estimated Plaintiff would be absent from work an average of three days per month. Id.
On May 14, 2015, Plaintiff’s attorney received a letter from Dr. Frank. Tr. at 496.
Dr. Frank indicated that Plaintiff’s continued tobacco use following the placement of a
cardiac stent in November 2012 had likely led to blockage of the stent. Id. She stated she
felt that Plaintiff had decreased exercise endurance and increased shortness of breath and
was in need of immediate cardiac attention. Id. She stated Plaintiff had been unable to
obtain the care she needed because of her lack of health coverage and inability to work.
Id.
9

C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on May 1, 2015, Plaintiff testified that she had dropped out of
school in the eleventh grade because she had to earn income to support her mother. Tr. at
38. She indicated she was able to read and write, but later noted that she could not read,
write, or perform mathematical calculations well. Tr. at 38 and 57. She stated she had
stopped working around 1990 to care for her diabetic parents. Tr. at 39.
Plaintiff testified she was unable to work because she had experienced a heart
attack, had pain and swelling in her legs, and always felt tired. Tr. at 40. She indicated
she needed to elevate her legs for five or ten minutes two to three times per day to reduce
the swelling. Tr. at 42 and 51. She endorsed pain in her left arm that had caused difficulty
with lifting and carrying items and reaching overhead. Tr. at 42 and 48. She indicated the
swelling in her legs and fatigue had begun after her heart attack, but noted that her fatigue
was worsened by her current medication regimen. Tr. at 42 and 43.
Plaintiff testified that she felt nervous when she was around a lot of people. Tr. at
44. She recalled incidents in which she had left Walmart and a restaurant because she felt
overwhelmed by the number of people around her. Tr. at 45. She endorsed some memory
problems. Tr. at 62–63. She stated she was able to follow a recipe, but would have to
reread it. Tr. at 63. She indicated her mental health problems were being treated by her
primary care physician. Tr. at 47. She stated her doctor had recommended she see a
counselor, but she had been unable to afford to do so. Id.
10

Plaintiff estimated that she could sit, stand, and walk for five to ten minutes each
before she would begin to feel pain in her legs and back. Tr. at 49–50. She denied having
dropped things from her left hand, but indicated her left arm would become weak after 10
minutes of use. Tr. at 61. She indicated she spent approximately half of a typical day
lying down or in a reclined position. Tr. at 62.
Plaintiff testified that she lived with her boyfriend and her 23-year-old son. Tr. at
35. She stated her son was receiving disability benefits because he was diagnosed with
autism and attention deficit hyperactivity disorder (“ADHD”). Tr. at 35–36. She indicated
she was her son’s primary caregiver and that she typically prepared his meals, washed his
clothes, and administered his medications. Tr. at 36 and 40. She testified that she engaged
in daily housework that included washing dishes, doing laundry, sweeping, and making
the beds. Tr. at 51. She indicated she cooked breakfast for her boyfriend, her son, and
herself each morning. Tr. at 53. She noted that she would perform a chore for 10 minutes,
would rest and elevate her feet for 10 minutes, and would return to the chore for another
10 minutes. Tr. at 55 and 60. She stated she had never obtained a driver’s license because
she had problems with her “nerves.” Tr. at 36. She indicated she attended church and
occasionally dined in restaurants. Tr. at 37. She stated she watched television and played
games on her phone during the day. Tr. at 54–55. She indicated she fed and cared for her
dog. Tr. at 55.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Benson Hecker, Ph. D., reviewed the record and
testified at the hearing. Tr. at 65–69. The ALJ described a hypothetical individual of
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Plaintiff’s vocational profile who could perform work at the light exertional level with
frequent reaching and handling with the left upper extremity; no concentrated exposure to
humidity; and no hazards. Tr. at 66. He further stated the individual would be limited to
simple, routine tasks; that her time off-task could be accommodated by normal breaks;
and that she would be subjected to few changes in the work setting. Id. The VE testified
that the hypothetical individual could perform jobs as a packer, Dictionary of
Occupational Titles (“DOT”) number 753.687-038, with 660,000 positions nationally; a
marker/pricer, DOT number 209.587-034, with 1,800,000 positions nationally; and an
assembler, DOT number 706.684-022, with 218,000 positions nationally. Id.
For a second hypothetical question, the ALJ asked the VE to consider an
individual of Plaintiff’s vocational profile who would be limited to work at the sedentary
exertional level and would be further limited by the other restrictions included in the first
question. Tr. at 67. The VE testified that the hypothetical individual could perform work
as a sorter, DOT number 521.687-086, with 410,000 positions nationally; an assembler,
DOT number 739.684-094, with 229,000 positions nationally; and a finisher, DOT
number 731.687-014, with 200,000 positions nationally. Id.
For a third hypothetical question, the ALJ asked the VE to consider an individual
of Plaintiff’s vocational profile who would be limited as described in the second question,
but who would be expected to be absent from work three times per month. Id. The VE
testified that no jobs would be available and that current research suggested that unskilled
jobs would typically allow for only five to six absences per year. Id.

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For a fourth hypothetical question, the ALJ asked the VE to consider the
restrictions in the second hypothetical question, but to further assume that the individual
would have to elevate her feet for half of the time that she was seated. Tr. at 67–68. The
VE testified that the individual would be unable to perform any work. Tr. at 68.
Plaintiff’s attorney asked the VE to consider an individual of Plaintiff’s vocational
profile who would be limited as described in the second hypothetical question, but who
would require cueing to learn and recall simple information; would have variable ability
to attend to information; and would work at a reduced pace. Tr. at 68–69. The VE
indicated that the individual would be unable to work. Id.
2.

The ALJ’s Findings

In his decision dated June 23, 2015, the ALJ made the following findings of fact
and conclusions of law:
1.
2.
3.

4.

5.
6.

The claimant has not engaged in substantial gainful activity since April 25,
2012, the application date (20 CFR 416.971 et seq.).
The claimant has the following severe impairments: Ischemic heart disease;
obesity; anxiety; and affective disorder (20 CFR 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 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 light work as
defined in 20 CFR 416.967(b) except she can frequently reach and handle
with her left upper extremity. The claimant must also avoid hazards and
concentrated exposure to humidity. In addition, the claimant is limited to
simple, routine tasks. Any “off task” periods would be accommodated by
regular breaks. Finally, the claimant can tolerate few changes in the routine
work setting.
The claimant has no past relevant work (20 CFR 416.965).
The claimant was born on August 9, 1971 and was 40 years old, which is
defined as a younger individual age 18–49, on the date the application was
filed (20 CFR 416.963).
13

7.
8.
9.

10.

The claimant has a limited education and is able to communicate in English
(20 CFR 416.964).
Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 CFR 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 416.969, and
416.969(a)).
The claimant has not been under a disability, as defined in the Social
Security Act, since April 25, 2012, the date the application was filed (20
CFR 416.920(g)).

Tr. at 11–23.
II.

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

the ALJ did not properly consider the medical opinions of record in
determining which mental limitations to include in the RFC assessment;

2)

the ALJ did not adequately develop the record; and

3)

the ALJ failed to present a proper hypothetical question to the VE and erred
in relying on the VE’s testimony to meet the Commissioner’s burden at step
five.

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

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;2 (4) whether such
impairment prevents claimant from performing PRW;3 and (5) whether the impairment
prevents her from doing substantial gainful employment. See 20 C.F.R. § 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

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. § 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. § 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. § 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).
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. § 416.920(h).
15

inquiry is necessary. 20 C.F.R. § 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, § 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).
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).
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
16

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).
B.

Analysis
1.

Evaluation of Medical Opinions in Assessing RFC

Plaintiff argues the RFC assessment was unsupported by substantial evidence to
the extent that the ALJ failed to properly account for the mental limitations that Drs.
Huthwaite and Shahar identified. [ECF No. 14 at 10–15]. The Commissioner argues that
17

the ALJ provided valid reasons for accepting and rejecting parts of Drs. Huthwaite’s and
Shahar’s opinions and accounted for the accepted limitations in the RFC assessment.
[ECF No. 18 at 8].
A claimant’s RFC represents the most she can still do despite her limitations. 20
C.F.R. § 416.945(a). It must be based on all the relevant evidence in the case record and
should account for all of the claimant’s medically-determinable impairments. Id.
In determining a claimant’s RFC, an ALJ must carefully consider medical source
opinions of record. SSR 96-5p; see also 20 C.F.R. § 416.927(b). He should evaluate and
weigh those opinions based on the factors in 20 C.F.R. § 416.927(c), which include (1)
the examining relationship between the claimant and the medical provider; (2) the
treatment relationship between the claimant and the medical provider, including the
length of the treatment relationship and frequency of treatment and the nature and extent
of the treatment relationship; (3) the supportability of the medical provider’s opinion in
his or her own treatment records; (4) the consistency of the medical opinion with other
evidence in the record; and (5) the specialization of the medical provider offering the
opinion. Johnson, 434 F.3d at 654.
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).” SSR 96-8p. The ALJ must explain how any material inconsistencies or
ambiguities in the record were resolved. Id. This court is generally prohibited from
disturbing the ALJ’s weighing of the medical opinion evidence “absent some indication
18

that the ALJ has dredged up ‘specious inconsistencies,’ Scivally v. Sullivan, 966 F.2d
1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a
particular opinion.” Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th
Cir. 1998) (per curiam). Nevertheless, “remand 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 v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki
v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
a.

Dr. Huthwaite’s Opinion

Dr. Huthwaite concluded that Plaintiff was capable of understanding and carrying
out simple instructions, but was likely to struggle with carrying out complex instructions.
Tr. at 409. He indicated Plaintiff had variable ability to attend to information, but would
be able to learn and recall simple information with cueing. Id. He further noted the
following:
If employed, she appears likely to work at a reduced pace, is at risk for not
persisting with tasks she struggles to understand, and would require at least
intermittent supervision. She is at moderate risk for experiencing difficulty
adapting to work-related stress given her psychiatric difficulties. Ms.
Powers would likely require assistance with managing disability funds, if
awarded.
Id.
Plaintiff argues that the ALJ gave invalid reasons for discounting some of the
limitations that Dr. Huthwaite indicated and failed to address others. Id. at 10–14. She
specifically maintains that the ALJ failed to adopt or to explain his rejection of Dr.
Huthwaite’s opinions that she would have difficulty with stress, would require additional
19

supervision, and would have variable ability to attend to information. Id. at 12. She
contends that it was insufficient for the ALJ to discount some of the restrictions Dr.
Huthwaite assessed without providing an explanation. [ECF No. 19 at 1].
The Commissioner maintains that the ALJ explained that he considered all of the
limitations Dr. Huthwaite assessed and implicitly rejected those limitations that would
preclude simple work. [ECF No. 18 at 8–9]. She contends the ALJ found that the cueing
and pace limitations were unsupported by Dr. Huthwaite’s examination findings; were
inconsistent with the longitudinal record; were inconsistent with Plaintiff’s conservative
treatment history; and were unsupported by her ADLs. Id. at 9–10.
The ALJ noted that Dr. Huthwaite had opined that Plaintiff was “capable of
understanding and carrying out simple instructions,” but was “likely to struggle with
complex instructions.” Tr. at 19. He indicated Dr. Huthwaite had stated Plaintiff had
variable ability to attend to information, but appeared “able to learn and recall simple
information with cueing” and “able to communicate adequately with others.” Id. He
further stated Dr. Huthwaite had found that “the claimant appears likely to work at a
reduced pace, is at risk of not persisting with tasks she struggles to understand, and would
require at least intermittent supervision.” Id. He noted that Dr. Huthwaite had provided a
provisional diagnosis of borderline intellectual functioning and had found Plaintiff to be
“at moderate risk for experiencing difficulty adapting to work-related stress” and to
“likely require assistance with managing disability funds.” Id.
The ALJ stated the following with respect to Dr. Huthwaite’s opinion:
To the extent Dr. Huthwaite found that the claimant is capable of
performing simple work, his opinion is consistent with the evidence of
20

record—including his own mental status examination, and the
unremarkable observations by the claimant’s primary care physician. This
finding is also consistent with the claimant’s conservative mental treatment,
which appears to have been effective. Indeed, the claimant informed the
consultative examiner that her mental health medication was effective.
However, to the extent Dr. Huthwaite concluded that the claimant would
need cueing and would work at a reduced pace even with respect to simple
tasks, his opinion is inconsistent with the above evidence. To this extent, it
is also inconsistent with the claimant’s activities of daily living, such as
performing simple household chores, being able to sustain concentration for
movies and puzzle games, caring for her son, and going shopping.
Therefore, the undersigned gives partial weight to Dr. Huthwaite’s opinion.
Tr. at 19–20.
Contrary to Plaintiff’s assertion, the ALJ explicitly noted Dr. Huthwaite’s opinion
that she would have difficulty with stress, would require additional supervision, and
would have variable ability to attend to information. See Tr. at 19 (acknowledging these
components of Dr. Huthwaite’s opinion). Although the ALJ did not explicitly state that
he rejected these particular restrictions, he specified that he was crediting that portion of
Dr. Huthwaite’s opinion that was consistent with a finding that Plaintiff could perform
“simple work” because it was supported by Dr. Huthwaite’s examination findings and the
other evidence of record. See Tr. at 19–20. As Plaintiff acknowledged in her brief (ECF
No. 14 at 12), the VE testified that these additional restrictions would not allow an
individual to engage in work activity. See Tr. at 68–69. The ALJ specifically stated that
he was rejecting Dr. Huthwaite’s opinion that Plaintiff could need cueing and would
work at a reduced pace even with respect to simple tasks, but did not specifically state
that he was rejecting Dr. Huthwaite’s opinion that Plaintiff would have difficulty with
stress, would require additional supervision, and would have variable ability to attend to
information. Nevertheless, it is clear from his decision that he was rejecting these
21

restrictions as inconsistent with the evidence that showed Plaintiff to be capable of
performing “simple work.” See Tr. at 19–20.
Although Plaintiff argues that the record does not support the ALJ’s rejection of
the restrictions in Dr. Huthwaite’s opinion that were inconsistent with an ability to
perform “simple work,” the ALJ cited substantial evidence to sustain his weighing of the
evidence, as he evaluated Dr. Huthwaite’s opinion based on the relevant factors in 20
C.F.R. § 416.927(c). He considered that Dr. Huthwaite was an examining physician, but
had no treating relationship with Plaintiff. See Tr. at 19 (noting that Plaintiff attended a
psychological consultative examination with Dr. Huthwaite on June 28, 2013). He
reflected on the supportability of Dr. Huthwaite’s opinion in his own record. See id.
(discussing findings on mental status examination, observations of “only mildly
fluctuating attention” and “only mildly anxious mood,” Plaintiff’s ability to spell “world”
forward on the first attempt and backward on the second attempt, her ability to count
backward from 100 by fives, and her inability to remember words after a 15-minute delay
with cues). He also considered the supportability factor in crediting Dr. Huthwaite’s
opinion that Plaintiff could perform “simple work” and in rejecting other elements of Dr.
Huthwaite’s opinion. See 19–20 (noting “unremarkable observations by the claimant’s
primary care physician,” Plaintiff’s history of “conservative mental treatment,” her
indications that her medication was effective, and her ADLs). The ALJ noted earlier in
the decision that Plaintiff was able to engage in a variety of ADLs. See Tr. at 13
(observing that Plaintiff indicated abilities to prepare meals on a daily basis; engage in
light housework; take care of her disabled son; administer her son’s medications; engage
22

in personal care; shop in stores; manage her finances; live with and maintain an excellent
relationship with her boyfriend and son; dine in restaurants once or twice a month; spend
time with friends once or twice a week; visit the movie theater with her boyfriend; get
along with authority figures and others; concentrate on two-hour movies; complete
puzzle books; follow recipes; care for a dog; watch the news; and play games on her
telephone).
In light of the foregoing, it appears the ALJ properly assessed Plaintiff’s ability to
perform relevant mental functions and gave good reasons for rejecting the portions of Dr.
Huthwaite’s opinion that were not supported by the record.
b.

Dr. Shahar’s Opinion

On July 30, 2013, Dr. Shahar indicated in a mental RFC assessment that Plaintiff
was moderately limited in her abilities to understand and remember detailed instructions;
to carry out detailed instructions; to maintain attention and concentration for extended
periods; to complete a normal workday and workweek without interruptions from
psychologically-based symptoms; to perform at a consistent pace without an
unreasonable number and length of rest periods; and to respond appropriately to changes
in work setting. Tr. at 84–86. Dr. Shahar specified that Plaintiff was likely to have
difficulty recalling some complex directions, doing complex tasks, and sustaining
concentration, attention, pace, and persistence for complex routines. Tr. at 85. She noted
Plaintiff was at some risk of decompensating under ordinary work stress, but was not
currently presenting with psychiatric symptoms that would preclude workplace

23

functioning. Tr. at 85–86. She stated Plaintiff could adapt to ordinary work transitions,
but may have difficulty adapting to frequent or major workplace changes. Tr. at 86.
Plaintiff argues that the ALJ substituted his own opinion for Dr. Shahar’s medical
opinion and that substantial evidence does not support his rejection of the opinion. Id. at
14–15. The Commissioner notes that the ALJ accepted most of Dr. Shahar’s opinion and
articulated valid reasons to discounting his opinion that Plaintiff was generally at risk for
decompensating under ordinary stress. [ECF No. 18 at 11–12].
The ALJ noted that Dr. Shahar had assessed Plaintiff to have mild restriction of
ADLs, mild limitations in social functioning, and moderate limitations in concentration,
persistence, or pace. Tr. at 20. He stated Dr. Shahar had indicated Plaintiff would “likely
have difficulty recalling some complex instructions, but did “not have significant
limitations in remembering locations and work-like procedures or understanding and
remembering very short and simple instructions.” Id. He indicated that Dr. Shahar had
observed that Plaintiff was “likely to have difficulty performing complex tasks, and
sustaining concentration, attention, pace and persistence for complex routines.” Id. He
stated Dr. Shahar had indicated Plaintiff was “at some risk for decompensating under
ordinary work stress,” but was “not currently presenting with symptoms that would
preclude workplace functioning” and was not “significantly limited” in her “ability to
carry out very short and simple instructions.” Id. He noted that Dr. Shahar had found that
Plaintiff could “adapt to ordinary work transitions, but may have difficulty adapting to
frequent or major workplace changes.” Id.

24

The ALJ accorded “great weight” to Dr. Shahar’s opinion, noting that it was
“generally consistent with the multiple unremarkable objective findings in the record, as
well as the claimant’s conservative mental treatment history” and with Plaintiff’s
“activities of daily living, which include playing puzzle games, performing multiple
household chores and caring for her son.” Id. However, he found that “to the extent Dr.
Shahar found that the claimant is at risk of decompensation under ordinary stress,” her
opinion was “inconsistent with the evidence.” Tr. at 20–21. He stated that Dr. Shahar had
not addressed “the actual likelihood of decompensation” and “there was no indication in
the record that Plaintiff had decompensated over the three-year period reflected in the
evidence or that she had “received more than conservative medication treatment.” Tr. at
21.
A review of the decision reveals that the ALJ weighed Dr. Shahar’s opinion based
on the relevant factors in 20 C.F.R. § 416.927(c). The ALJ noted that Dr. Shahar was a
“State agency psychological consultant,” as opposed to an examining or treating medical
provider. See 20 C.F.R. § 416.927(c)(1), (2). Thus, the examining, treating, and
supportability factors did not provide support for Dr. Shahar’s opinion. However, the
ALJ acknowledged that, as an agency psychological consultant, Dr. Shahar had “an
understanding of our rules and regulations.” See 20 C.F.R. § 416.927(c)(5); see also 20
C.F.R. § 416.927(e)(2) (providing that state agency consultants are “highly qualified
physicians, psychologists, and other medical specialists who are also experts in Social
Security disability evaluation”).

25

The ALJ primarily relied on the consistency factor in crediting most of Dr.
Shahar’s opinion, but discounting her indication that Plaintiff was at risk for
decompensation under normal work stress. See 20 C.F.R. § 416.927(c)(4). Contrary to
Plaintiff’s assertion, the ALJ did not substitute his own opinion for that of Dr. Shahar in
reaching this conclusion, but instead relied on evidence from Plaintiff’s treating physician
and her ADLs. See Tr. at 18–19 (noting that Plaintiff endorsed symptoms of anxiety and
depression in September 2013, but exhibited appropriate mood and affect and was
oriented times four; indicating “mental status examinations were similarly unremarkable”
in November 2012, January and October 2013, and April and July 2014; acknowledging
that Plaintiff endorsed symptoms of depression and anxiety in April 2014, but that her
symptoms were “apparently mild because she indicated that her depression-related
symptoms were controlled, and that she did not have any difficulty functioning” and
“reported a good response to medication”) and Tr. at 20–21 (citing “multiple
unremarkable objective findings in the record,” Plaintiff’s “conservative mental treatment
history,” ADLs that included “playing puzzle games, performing multiple household
chores and caring for her son,” and the absence of periods of decompensation over the
three-year period since her application was filed). Much of the evidence the ALJ cited
was not in the record when Dr. Shahar reviewed it in July 2013. Given Dr. Shahar’s
opinion that Plaintiff was not presenting with symptoms that would preclude her from
working at the time he reviewed the record and subsequent records that showed no
periods of decompensation, it was not unreasonable for the ALJ to discount the notion

26

that Plaintiff would be at some undefined risk of decompensating under ordinary work
stress in assessing her RFC.
In light of the foregoing, substantial evidence supported the ALJ’s decision to give
great weight to Dr. Shahar’s opinion, but to discount her indication that Plaintiff was at
risk of decompensation under ordinary stress.
2.

Development of the Record

Plaintiff argues the ALJ erred in failing to obtain cognitive testing and intelligence
quotient (“IQ”) scores. [ECF No. 14 at 15–16]. She maintains that a need for IQ testing
was indicated by her poor performance during the consultative examination with Dr.
Huthwaite and her history of limited education, special education instruction, poor
grades, poor academic performance, and difficulty sustaining work. Id. at 16. She
contends that IQ testing was necessary to determine if disability was established under
the Listings and to provide more information as to how her intellectual functioning
affected her RFC. Id. at 16–17.
The Commissioner argues that the ALJ was not obligated to order Plaintiff’s IQ be
tested. [ECF No. 18 at 12]. She maintains that the record did not allege intellectual
disability; that neither Plaintiff nor her counsel requested IQ testing; and that Dr.
Huthwaite’s suggestion for further testing was based solely on Plaintiff’s subjective
statements. Id. at 12.
It is the claimant’s burden to produce evidence of disability. See Hall v. Harris,
658 F.2d 260, 264–65 (4th Cir. 1981); 42 U.S.C. § 423(d)(5)(A) (“An individual shall not
be considered to be under a disability unless he furnishes such medical and other
27

evidence of the existence thereof as the Secretary may require”). However, “the ALJ has
a duty to explore all relevant facts and inquire into the issues necessary for adequate
development of the record, and cannot rely on the evidence submitted by the claimant
when that evidence is inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986),
citing Walker v. Harris, 642 F.2d 712, 714 (4th Cir. 1981); Marsh v. Harris, 632 F.2d
296, 300 (4th Cir. 1980). If the evidence in the case record is insufficient4 or
inconsistent,5 the ALJ may need to take additional actions. Id.
“Where the ALJ fails in his duty to fully inquire into the issues necessary for
adequate development of the record, and such failure is prejudicial to the claimant, the
case should be remanded.” Marsh, 632 F.2d at 300, citing Cutler v. Weinberger, 516 F.2d
1282 (2nd Cir. 1975); Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837
(3rd Cir. 1974); Hicks v. Mathews, 424 F. Supp. 8 (D. Md. 1976). However, “[w]hile the
ALJ must make a reasonable inquiry into a claim of disability, he has no duty to ‘to go to
inordinate lengths to develop a claimant’s case.’” Craft v. Apfel, 164 F.3d 624, 1998 WL
702296, at *2 (4th Cir. 1998) (per curiam) (unpublished table decision), citing Thomas v.
Califano, 556 F.2d 616, 618 (1st Cir. 1977).

4

An ALJ should consider the evidence to be insufficient if it does not contain all the
information necessary to make a decision. 20 C.F.R. § 416.920b (effective March 26,
2012 to March 26, 2017).
5
An ALJ should consider the evidence to be inconsistent when it conflicts with other
evidence, contains an internal conflict, is ambiguous, or does not appear to be based on
medically-acceptable clinical or laboratory diagnostic techniques. 20 C.F.R. § 416.920b
(effective March 26, 2012 to March 26, 2017). If the ALJ determines that the evidence is
inconsistent, he should weigh the relevant evidence to determine if the record contains
sufficient evidence to decide the issue of disability. 20 C.F.R. § 416.920b(b) (effective
March 26, 2012 to March 26, 2017).
28

As an initial matter, the court notes that Plaintiff did not allege in her application
for benefits or hearing testimony that she had a cognitive disability. See Tr. at 40
(testifying that she was unable to work as a result of a heart attack, swelling in her legs,
fatigue, and “nerves”), Tr. at 195 (listing “panic attacks” and “neuropathy/restless leg
(not diagnosed)” as the physical or mental conditions that limited her ability to work),
and Tr. at 220 (indicating a history of heart attack and problems with shortness of breath,
restless legs, arm pain, and panic attacks). Plaintiff’s representative also declined to
allege a cognitive impairment or to request that she be referred for cognitive testing. See
Tr. at 264–65 (neglecting to include borderline intellectual functioning or cognitive
disorder among Plaintiff’s severe impairments and failing to request consideration under
Listing 12.05 in a pre-hearing memorandum). Cf. Mink v. Apfel, 215 F.3d 1320, 2000 WL
665664, at *1 (4th Cir. 2000) (unpublished table decision) (holding that an ALJ did not
fail to properly develop the medical record where the plaintiff “was represented at the
hearing by counsel, who could have easily submitted the disputed documents”).
Nevertheless, the ALJ had at least constructive notice that cognitive testing might
be needed based on Plaintiff’s reported history of academic deficits and Dr. Huthwaite’s
provisional diagnosis of borderline intellectual functioning and suggestion that she be
referred for cognitive testing. Despite this evidence, the ALJ was not required to further
develop the record if he had sufficient evidence before him to make a decision. See 20
C.F.R. § 416.920b(c) (providing that a consultative examination at the agency’s expense
is one of the options available to an ALJ if he determines the evidence of record is
insufficient to allow him to reach a conclusion about whether the claimant is disabled).
29

Plaintiff argues that an assessment of her IQ was necessary to determine whether
she met Listing 12.05. [ECF No. 14 at 16–17]. 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).
To establish disability under the version of Listing 12.05 that was applicable at the
time of the ALJ’s decision, an individual was required to show significantly subaverage
general intellectual functioning with deficits in adaptive functioning that initially
manifested before age 22 and meet the severity requirements in either paragraph A, B, C,
or D. 20 C.F.R., Pt. 404, Subpt. P, App’x. 1, § 12.05 (effective June 12, 2015 to July 19,
2015).6 “Deficits in adaptive functioning can include limitations in areas such as
communication, self-care, home living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work, leisure, health, and safety.”
Jackson v. Astrue, 467 F. App’x 214, 218 (4th Cir. 2012), citing Atkins v. Virginia, 536
U.S. 304, 309 n.3 (2002). The Supreme Court has held that intellectual disability is
characterized by “significant limitations” in at least two of the areas of adaptive
functioning in conjunction with significantly subaverage general intellectual functioning.

6

A change to Listing 12.05 provides different criteria to establish disability under the
Listing. 20 C.F.R., Pt. 404, Subpt. P, App’x. 1, § 12.05 (effective March 27, 2017).
30

Atkins, 536 U.S. at 309 n.3. “An essential element to meeting all but paragraph ‘A’7 of
Listing 12.05 is a ‘valid’ IQ score.” English v. Astrue, No. 3:08-2887-MBS-JRM, 2010
WL 1258025, at *5 (D.S.C. Feb. 23, 2010). Paragraph B requires “[a] valid verbal,
performance, or full scale IQ of 59 or less and paragraphs C and D require “[a] valid
verbal, performance, of full scale IQ of 60 through 70” and additional limitations. 20
C.F.R., Pt. 404, Subpt. P, App’x. 1, § 12.05(B), (C), and (D) (effective June 12, 2015 to
July 19, 2015).
Although Plaintiff points to the academic history she reported to Dr. Huthwaite
(Tr. at 406) and his provisional assessment of borderline intellectual functioning (Tr. at
409), the record contains no evidence to suggest she had significantly subaverage general
intellectual functioning, as required for a finding of disability under Listing 12.05. By
definition, Dr. Huthwaite’s provisional diagnosis of borderline intellectual functioning
suggested that Plaintiff’s IQ score was above 70 and would not trigger analysis under
Listing 12.05. See Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition,
Text Revision, Washington, DC, American Psychiatric Association, 2000 (“DSM-IVTR”) (defining mild mental retardation by an IQ score of 50–55 to approximately 70 and
borderline intellectual functioning by slightly higher IQ scores in the 71–84 range).
Plaintiff is essentially requesting that the court order the ALJ to refer her for cognitive
testing because it might show her IQ was in a lower range than that suggested by Dr.
Huthwaite. In the absence of any indication in the record that testing would yield an IQ
7

Paragraph A requires “dependence upon others for personal needs (e.g., toileting,
eating, dressing or bathing) and inability to follow directions, such that the use of
standardized measures of intellectual functioning is precluded. 20 C.F.R., Pt. 404, Subpt.
P, App’x. 1, § 12.05(A) (effective June 12, 2015 to July 19, 2015).
31

score below the borderline range, it appears that Plaintiff is requesting that the court order
the ALJ to go to inordinate lengths to develop the record. See Craft, 1998 WL 702296, at
*2.
In addition, the record does not support a finding that Plaintiff had deficits in
adaptive functioning. While the ALJ did not address Plaintiff’s adaptive functioning in
the context of an analysis under Listing 12.05, he cited substantial evidence that showed
Plaintiff to have no significant limitations in adaptive functioning. See Tr. at 13
(observing that Plaintiff prepared meals on a daily basis, did light housework, cared for
and administered medications to her disabled son, managed her personal care, shopped in
stores, was able to go out alone, indicated an ability to manage her finances
independently, ate in restaurants, spent time with family and friends once or twice a
week, visited the movie theater, reported getting along well with others, completed
puzzle books, followed recipes, and cared for a dog). Cf. Weedon v. Colvin, No. 0:112971-DCN-PJG, 2013 WL 1315206, at *4 (D.S.C. Mar. 28, 2013) (“Despite Weedon’s
educational records, which reflect her enrollment in special education classes due to
learning disabilities, the balance of the record provides substantial evidence to support
the ALJ’s conclusion that Weedon does not exhibit deficits in adaptive functioning. As
the ALJ discussed in her opinion, Weedon lives independently while serving as the main
caretaker for her three children, is able to manage her own finances, and has a significant
work history, including semi-skilled work as a certified nursing assistant.”). In light of
the foregoing, it does not appear that obtaining Plaintiff’s IQ scores would have directed
a different finding under Listing 12.05.
32

Plaintiff also maintains that cognitive testing was necessary “to determine the
extent of [her] limitations” that resulted from a potential diagnosis of borderline
intellectual functioning. [ECF No. 14 at 17]. Plaintiff’s claim that cognitive testing may
show her to have additional limitations is merely speculative, and she cannot show that
she was prejudiced by the ALJ’s decision not to refer her for cognitive testing. The ALJ
found that Plaintiff’s credibly-established mental impairments limited her to simple,
routine tasks that required her to tolerate few changes in the routine work setting, but that
her time off task could be accommodated by regular breaks. Tr. at 14. In assessing these
components of Plaintiff’s RFC, the ALJ analyzed the evidence of record, including Dr.
Huthwaite’s psychological consultative examination report and the treatment notes from
Plaintiff’s physician. See Tr. at 13 and 19–20. He provided a thorough explanation for the
mental limitations he assessed and valid reasons for finding Plaintiff was not further
limited. See id. In light of the foregoing, substantial evidence supports the ALJ’s
conclusion that the record was sufficient to allow him to make a decision without
obtaining an additional consultative examination.
3.

Improper VE Hypothetical and Step Five Determination

Plaintiff argues that the ALJ erred in relying on the jobs the VE identified to meet
the Commissioner’s burden at step five because his hypothetical question to the VE did
not properly account for all of her impairments. [ECF No. 14 at 17]. The Commissioner
maintains the ALJ was only required to question the VE regarding Plaintiff’s crediblyestablished limitations. [ECF No. 18 at 14–15]. She contends the ALJ reasonably relied

33

on the VE’s testimony that Plaintiff could perform a significant number of jobs in the
national economy. Id. at 15.
To support a finding that a claimant is “not disabled,” the ALJ must either find
that the claimant’s RFC allows her to perform her PRW or that she can make an
adjustment to other work. See 20 C.F.R. § 416.920(a)(4)(iv), (v). To produce specific
vocational evidence showing that the national economy provides employment
opportunities, it is often necessary for the ALJ to solicit the services of a VE. See Walker,
889 F.2d at 50; see also Aistrop, 36 F. App’x at 147 (providing that where a claimant has
both exertional and nonexertional impairments that prevent performance of a full range of
work at a given exertional level, “the Commissioner must prove through expert
vocational testimony that jobs exist in the national economy which the claimant can
perform”). The VE’s opinion, “must be based upon a consideration of all other evidence
in the record . . . and it must be in response to proper hypothetical questions which fairly
set out all of [a] claimant’s impairments.” Johnson, 434 F.3d at 659 (quoting Walker, 889
F.2d at 50); see also English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993). A VE’s
testimony cannot constitute substantial evidence in support of the Commissioner’s
decision if the VE identified jobs in response to a hypothetical question that did not
include all of the claimant’s restrictions. See id.
The ALJ’s RFC assessment mirrored the first hypothetical question he presented
to the VE during the hearing. Compare Tr. at 14, with Tr. at 66. In response to the
hypothetical question, the VE identified the jobs of packer, marker/pricer, and assembler.

34

Tr. at 66. The ALJ relied on the VE’s testimony and cited these jobs to satisfy the
Commissioner’s burden at step five. See Tr. at 22–23.
In light of the court’s prior findings and because Plaintiff presents no additional
challenges to the assessed RFC, the court finds the ALJ properly relied on the VE’s
testimony to meet the Commissioner’s burden to produce specific job information at step
five.
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.

July 20, 2017
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

35