Chinn v. Commissioner of Social Security Administration

Filing 24

ORDER adopting and incorporating the 18 Report and Recommendation, overruling Plaintiff's objections, and affirming the Commissioner's final decision. Signed by Honorable Bruce Howe Hendricks on 8/26/2019. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
) Civil Action No.: 1:18-1294-BHH
)
Plaintiff, )
)
)
v.
ORDER
)
)
Andrew Saul,
Commissioner of Social Security,1
)
)
Defendant. )
______________________________ )

Shineida D. Chinn,

This is an action brought pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the Commissioner of Social Security’s (“Commissioner”) final decision, which denied
Plaintiff Shineida D. Chinn’s (“Plaintiff”) claim for disability insurance benefits (“DIB”). The
record includes the report and recommendation (“Report”) of United States Magistrate
Judge Shiva V. Hodges, which was made in accordance with 28 U.S.C. § 636 (b)(1)(B) and
Local Civil Rule 73.02(B)(2)(a) (D.S.C.).
In her Report, the Magistrate Judge recommends that the Court affirm the
Commissioner’s final decision.

Plaintiff filed objections to the Report, to which the

Commissioner filed a response. See 28 U.S.C. § 636(b)(1) (providing that a party may
object, in writing, to a Magistrate Judge’s Report within 14 days after being served a copy).
For the reasons stated below, the Court adopts the Magistrate Judge’s Report and
overrules Plaintiff’s objections.

Andrew Saul is now the Commissioner of Social Security and is automatically
substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also the Social Security Act,
42 USC § 405(g) (explaining action survives “notwithstanding any change in the person
occupying the office of Commissioner of Social Security”).
1

BACKGROUND
Plaintiff filed an application for DIB on July 18, 2014, alleging a disability onset date
of August 28, 2013. Her application was denied initially and upon reconsideration. Plaintiff
requested a hearing before an administrative law judge (“ALJ”), which was held via video
conference on May 25, 2017. A vocational expert (“VE”) appeared at the administrative
hearing and testified by telephone. On June 1, 2017, the ALJ issued a decision denying
Plaintiff’s claim.

The Appeals Council denied Plaintiff’s request for review, thereby

rendering the ALJ’s decision the Commissioner’s final decision for purposes of judicial
review. Plaintiff filed this action seeking judicial review on May 10, 2018.
STANDARDS OF REVIEW
I.

The Magistrate Judge’s Report
The Court conducts a de novo review to those portions of the Report to which a

specific objection is made, and this Court may accept, reject, or modify, in whole or in part,
the recommendations contained in the Report. 28 U.S.C. § 636(b)(1). Any written
objection must specifically identify the portion of the Report to which the objection is made
and the basis for the objection. Id.
II.

Judicial Review of a Final Decision
The federal judiciary plays a limited role in the administrative scheme as established

by the Social Security Act. Section 405(g) of the Act provides that “[t]he findings of the
Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall
be conclusive . . . .” 42 U.S.C. § 405(g). “Consequently, judicial review . . . of a final
decision regarding disability benefits is limited to determining whether the findings are

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supported by substantial evidence and whether the correct law was applied.” Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). “Substantial evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
“substantial evidence.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)). In assessing whether substantial evidence exists, the
reviewing court should not “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of” the agency. Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (alteration in original).
DISCUSSION
I.

The Commissioner’s Final Decision
The Commissioner is charged with determining the existence of a disability. The

Social Security Act, 42 U.S.C. §§ 301-1399, 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 a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A). This determination involves the following five-step inquiry:
[The first step is] whether the claimant engaged in substantial gainful
employment. 20 C.F.R. § 404.1520(b). If not, the analysis continues to
determine whether, based upon the medical evidence, the claimant has a
severe impairment. 20 C.F.R. § 404.1520(c) If the claimed impairment is
sufficiently severe, the third step considers whether the claimant has an
impairment that equals or exceeds in severity one or more of the impairments
listed in Appendix I of the regulations. 20 C.F.R. § 404.1520(d); 20 C.F.R.
Part 404, subpart P, App. I. If so, the claimant is disabled. If not, the next
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inquiry considers if the impairment prevents the claimant from returning to
past work. 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a). If the answer
is in the affirmative, the final consideration looks to whether the impairment
precludes that claimant from performing other work.
Mastro, 270 F.3d at 177 (citing 20 C.F.R. § 416.920).
If the claimant fails to establish any of the first four steps, review does not proceed
to the next step. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of
production and proof remains with the claimant through the fourth step. Then, if the
claimant successfully reaches step five, the burden shifts to the Commissioner to provide
evidence of a significant number of jobs in the national economy that the claimant could
perform, taking into account the claimant’s medical condition, functional limitations,
education, age, and work experience. Walls, 296 F.3d at 290.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since August 28, 2013, the alleged onset date. Next, the ALJ determined that
Plaintiff has severe impairments of lumbar degenerative disc disease and obesity. The ALJ
found, however, that Plaintiff does not have an impairment or combination of impairments
that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. With regard to residual functional capacity (“RFC”), the ALJ
found that Plaintiff could perform sedentary work as defined in 20 C.F.R. § 404.1567(a),
with the following limitations: Plaintiff can never climb ladders, ropes, or scaffolds; she can
frequently balance and occasionally kneel, stoop, crouch, crawl, and climb ramps or stairs;
and she must avoid all exposure to hazards. The ALJ found that Plaintiff was not capable
of performing her past relevant work as a preschool teacher but, considering her age,
education, work experience, and RFC, jobs exist in significant numbers in the national
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economy that Plaintiff can perform. Accordingly, the ALJ concluded that Plaintiff was not
under a disability as defined in the Social Security Act.
II.

The Court’s Review2
In her opening brief, Plaintiff argued that the ALJ did not explain her findings with

respect to the RFC. Plaintiff also argued that the ALJ failed to properly assess the opinion
of her physician, Tami Y. Massey, M.D., and failed to properly evaluate her subjective
symptomology. The Magistrate Judge evaluated each claim in a thorough, 64-page Report
and found all to be without merit. Plaintiff objects to the Magistrate Judge’s findings with
respect to the RFC and the opinion evidence. For the reasons that follow, the court adopts
the Magistrate Judge’s findings and affirms the Commissioner’s decision.
A.

RFC

In her objection, Plaintiff argues that the ALJ failed to address the medical evidence
regarding Plaintiff’s neck and arm pain, her mental functioning with respect to
concentration, pace, and persistence, and her use of a cane. She contends that the ALJ’s
failure to sufficiently discuss the evidence regarding these limitations prevents the court
from engaging in a meaningful review of the decision. ECF No. 19 at 2.
1.

Neck and Arm Pain

Plaintiff argues in her Opening Brief that her neck and arm pain affects her ability
to reach, handle, and lift and that the ALJ erred in failing to include such a limitation in her

2

As the Magistrate Judge noted, numerous Social Security regulations and Social Security
Rulings have changed effective March 27, 2017. However, these changes specifically state that
they apply to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527.
Because the instant claim was filed before March 27, 2017, all references are to the prior versions
of the regulations in effect when Plaintiff filed her application for benefits, unless otherwise
specified.

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RFC. (ECF No. 14 at 13–14). She notes the ALJ acknowledged her pain, but asserts that
in discussing the limitation the ALJ selectively chose the normal results of medical
assessments concerning her arm.
It appears from the record that Plaintiff briefly reported left arm pain and neck pain
in 2013. The ALJ noted this report and observed that “[i]n the month of her alleged onset
date, [Plaintiff had] complaints of arm pain and paresthesia . . . . [o]n exam, she had normal
findings, including normal sensation, normal strength, [and] normal tone with no atrophy.”
(Tr. at 20). See (Tr. at 385-87). Plaintiff thereafter did not complain of arm and neck pain
until March 2016, when she reported right arm pain and neck pain. (Tr. at 20). See (Tr.
at 443-44). At that time, her doctor noted that Plaintiff presented with complaints of pain
involving the arm that had persisted “for about a month,” which resulted in “some neck
discomfort . . . as well.” (Tr. at 443). The ALJ mentioned these reports of pain and noted
that “when [Plaintiff] complained of neck and arm pain in March 2016, [she] had normal arm
inspection with equal reflexes.” (Tr. at 20). The ALJ further noted that Plaintiff has “deficits
suggestive of a range of sedentary work, but the objective evidence [does] not support a
finding of greater limitations than those set forth above.” Id.
As the Magistrate Judge discussed, the record shows that the ALJ considered
Plaintiff’s complaints of arm and neck pain and found that the reduced range of sedentary
work sufficiently accommodated Plaintiff’s limitation. ECF No. 18 at 32-35. Plaintiff does
not cite parts of the record she contends the ALJ or the Magistrate Judge failed to consider.
The Court finds that the substantive evidence supports the ALJ’s findings with respect to
Plaintiff’s arm and neck pain and therefore overrules Plaintiff’s objection as to this issue.

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2.

Mental Functioning

Plaintiff next argues that the ALJ failed to consider the effect her medications have
on her ability to maintain concentration, persistence, and pace. (ECF No. 14 at 14-16).
Plaintiff asserts that while the ALJ discussed her complaints of depression and determined
that no limitation results, the ALJ failed to consider the limitation caused by the side effects
of the medicine she takes for her back pain. Plaintiff contends the RFC should include a
limitation with respect to mental functioning.
In reaching a determination regarding a claimant’s RFC, the ALJ must base the
decision on “all of the relevant evidence in the case record,” including the side effects of
medication. Social Security Ruling (“SSR”) 96–8P, 1996 WL 374184, at *5 (July 2, 1996);
20 § C.F.R. 404.1529(c)(3)(iv). During the administrative hearing, Plaintiff testified that she
suffered from depression and that the condition had caused a significant problem with her
concentration, memory, and span of attention. (Tr. at 81-82). Plaintiff also testified that her
husband would administer medicine to her and she would thereafter fall asleep while
watching television, or her mind would wander. (Id. at 82). In her decision, the ALJ
considered the four broad areas of mental functioning set forth in the disability regulations
and determined that Plaintiff’s “medically determinable mental impairment of depression
does not cause more than minimal limitation in the claimant’s ability to perform basic mental
work activities.” (Tr. at 18). The ALJ did not, however, give any consideration as to
whether the medication Plaintiff requires for her back pain impairs her mental functioning.
“The ALJ is not required to accept unquestioningly all alleged side effects of
medications; complaints of side effects may properly be discredited by inconsistent
evidence.” Goodwater v. Barnhart, 579 F. Supp. 2d 746, 759 (D.S.C. 2007) (citing
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Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005)). However, without any mention
of the claimed side effects of drowsiness and impaired attention span, the Court cannot
determine whether the ALJ properly considered the side effects of the pain medication in
rendering her RFC assessment. Accordingly, the ALJ erred in neglecting to discuss the
impact of the pain medicine, if any, on Plaintiff’s mental functioning.

20 § C.F.R.

404.1529(c)(3)(iv). See, e.g., Loza v. Apfel, 219 F.3d 378, 397 (5th Cir. 2000); Figueroa
v. Secretary of HEW, 585 F.2d 551, 554 (1st Cir. 1978); Cowart v. Schweiker, 662 F.2d
731, 737 (11th Cir. 1981). The error requires remand only if Plaintiff was prejudiced as a
result of the procedural error. Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994)
(applying harmless error analysis in Social Security case). Accord Perdue v. Astrue, No.
3:10–cv–1318, 2011 WL 6415490, at *17 (S.D.W. Va. Dec. 21, 2011) (collecting cases).
The Magistrate Judge engaged in a thorough review of the medical evidence and
found that substantial evidence supports the conclusion that Plaintiff’s mental functioning
is not so impaired as to require a limitation in the RFC. (ECF No. 18 at 36-38). As the
Magistrate Judge noted, apart from Plaintiff’s testimony at the hearing, there is only one
instance in the entire record of a complaint regarding drowsiness. In April 2014, Plaintiff
informed her doctor that the medication Neurontin had caused her to feel drowsy and her
doctor noted that he would adjust the dosage prescribed to address that side effect. (Tr.
at 377-78). See (ECF No. 14 at 14-15 (Plaintiff’s Opening Brief)). In fact, the record
includes multiple entries of Plaintiff reporting that she experienced no side effects from her
medication. In October 2014, Plaintiff reported that her medications did not cause her
sleepiness (Tr. at 301), and she stated on various forms that she did not experience side
effects from medicine she was then taking. Indeed, she specifically stated that her pain
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medication Tramadol did not cause her drowsiness. (Tr. at 78, 325). Accordingly, the
Court agrees that the record does not support a limitation for mental functioning.
3.

Use of Assistive Device

Plaintiff’s final contention with respect to the RFC is that the ALJ failed to sufficiently
address her use of a cane. (ECF No. 14 at 16).
Under the Guidelines for Evaluating the Ability to Do Less than a Full Range of
Sedentary Work, where the claimant requires the use of a hand-held assistive device, the
Commissioner shall consider whether that need for assistance impacts the claimant’s ability
to work in an unskilled, sedentary position. SSR 96-9p, 1996 WL 374185, at *7 (July 2,
1996).

SSR 96-9p explains that the record must contain medical documentation

“establishing the need for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed (i.e., whether all the time, periodically,
or only in certain situations; distance and terrain; and any other relevant information).” Id.
As the ALJ noted, the record reflects that Plaintiff began using a cane during her
rehabilitation from back surgery in March 2014. (Tr. at 20). By May 2014, Plaintiff had
stopped using the cane but reported some continued difficulty with walking. (Tr. at 376).
In July 2014, Dr. Massey noted that Plaintiff’s gait was normal. (Tr. at 400-02). As
summarized by the ALJ, the medical record thereafter reflects that Plaintiff was frequently
assessed as demonstrating a normal gait and normal posture. (Tr. at 403-05 (August
2014)); (Tr. at 431-33 (December 2014)); (Tr. at 434-36 (April 2015)); (Tr. at 418-20, 43739 (August 2015)); (Tr. at 440–42 (November 2015)); (Tr. at 443–44 (March 2016)); (Tr.
at 460–63 (February 2017)).
The Court agrees that the evidence of record does not reflect that Plaintiff required
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the use of a cane. Furthermore, the evidence of record does not establish, and Plaintiff in
her objection does not explain, how her use of a cane prevented her from performing
sedentary work as limited in the RFC. Indeed, Dr. Massey opined that in standing and/or
walking, Plaintiff would not require the use of a cane or any other assistive device. (Tr. at
408).
For these reasons, Plaintiff’s objections to the Report as they pertain to her RFC are
overruled.
B.

Opinion Evidence

In her objection, Plaintiff asserts two issues with the ALJ’s assessment of Dr.
Massey’s opinion. (ECF No. 19 at 2-5). First, Plaintiff contends, in light of Dr. Massey’s
opinion that Plaintiff is limited in her ability to reach, the ALJ failed to explain why she
omitted a reaching limitation in the RFC, particularly when she included a lifting limitation.
Plaintiff argues the Magistrate Judge improperly found support for the ALJ’s decision in
discussing evidence that the ALJ failed to address. Second, Plaintiff contends the ALJ
failed to explain her treatment of Dr. Massey’s opinion that Plaintiff must shift positions at
will from sitting, standing, and walking. Plaintiff argues the Magistrate Judge discussed the
VE’s testimony as it relates to sitting and standing, but not as to walking.
On December 5, 2014, Plaintiff presented to Dr. Massey complaining of lower back
pain and asked Dr. Massey to complete a physical capacity exam form. (Tr. at 431–33).
Following an exam, Dr. Massey completed the standardized form and reported that
Plaintiff’s posture, gait, strength, and tone were normal, she had no edema, and her
abdomen was nontender but she had “some bilateral low lumbar tenderness.” Id. Dr.
Massey assessed Plaintiff as experiencing back pain, prescribed her medication, and noted
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that she would refer Plaintiff to physical therapy. Id. Dr. Massey opined that Plaintiff would
be subject to the following various limitations during an eight-hour workday: lift, carry, push,
or pull up to 10 pounds, occasionally; shift positions from sitting, standing, or walking at will
every fifteen to thirty minutes; and reach above her shoulder or below her waist level
occasionally and reach at waist level frequently. (Tr. at 407–08). Dr. Massey noted no
limitations as to Plaintiff’s ability to handle, finger, and feel. Id. Dr. Massey opined that
these limitations or restrictions began in March 2014 and could be expected to last twelve
months. Id. Dr. Massey listed Plaintiff’s back surgery and degenerative disc disease as
the objective evidence supporting her opinion. (Tr. at 408).
Pursuant to 20 C.F.R. § 404.1527(c), the Commissioner will evaluate every medical
opinion received and will accord greater weight to the opinion of treating medical sources
because treating physicians are best able to provide “a detailed, longitudinal picture” of a
claimant’s alleged disability. However, the opinions of treating physicians are not
necessarily entitled to controlling weight. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.
1992). “[I]f a physician’s opinion is not supported by clinical evidence or if it is inconsistent
with other substantial evidence, it should be accorded significantly less weight.” Mastro,
270 F.3d at 178. As the Magistrate Judge correctly noted, where the opinion of a treating
physician is not accorded controlling weight, the Commissioner must weigh the opinion
pursuant to a broad range of factors, “including the examining relationship, the nature and
extent of the treatment relationship, supportability of the opinions in the medical record,
consistency, and whether the treating physician was a specialist.”

Johnson

v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). If the ALJ
issues a decision that is not fully favorable, her decision “must contain specific reasons for
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the weight given to the treating source’s medical opinion, supported by the evidence in the
case record, and must be sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical opinion and the reason for
that weight.” SSR 96-2p, 1996 WL 374188, at *5 (1996).
The ALJ addressed Dr. Massey’s opinion as follows:
The undersigned has given little weight to the opinion of Dr. Tami Massey,
who noted significant exertional and non-exertional limitations and noted that
[Plaintiff] was not employable if her significant limitations were not
accommodated. However, the undersigned gives this statement little weight.
Although [Plaintiff] had some deficits after back surgery, [Plaintiff] had many
normal findings, including normal gait findings, that did not support the extent
of these extreme limitations. Therefore, the undersigned gives this opinion
little weight. The undersigned has given some weight to the statement that
[Plaintiff] has a 10 pound lifting limit, as this limitation is consistent with the
claimant’s need for lumbar surgery.
(Tr. at 21). The Court addresses Plaintiff’s two objections in turn.
1.

Limitation as to Reaching

Plaintiff asserts the ALJ should have included a reaching limitation in the RFC,
consistent with Dr. Massey’s opinion.

The Magistrate Judge reviewed the medical

evidence and found that Plaintiff’s medical records do not support a limitation as to
reaching. (ECF No. 18 at 55-56). As the Magistrate Judge explained, and as discussed
above, Plaintiff did not complain of arm or neck pain between January 2014 and March
2016, nor did she complain of any such pain after March 2016. Plaintiff’s physical
examinations during that time were relatively normal, without evidence of an impairment
that would cause a limitation with regard to reaching. See, e.g., (Tr. at 379, 385-87, 39091, 443-46). On August 11, 2014, Plaintiff completed a function report that listed various
impairments. She reported that her condition caused her issues with lifting, squatting,
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bending, standing, walking, and climbing stairs, but she declined to select “reaching” as one
of her impairments. (Tr. at 296). In April 2015, Plaintiff returned to Dr. Massey to ask her
to complete an adoption form, as she wished “to adopt a young child.” (Tr. at 434). Dr.
Massey noted that Plaintiff “has a [history] of back surgery and has a 10 pound lifting limit”;
her “[hypertension is] well cont[rolled] w[ith] meds”; there are “no [side effects]”; and Plaintiff
“otherwise has no concerns.” (Tr. at 434). Based on this review of the record, the
Magistrate Judge concluded that the ALJ “appropriately assigned some weight to the lifting
restriction and not [to] the reaching restriction.” (ECF No. 18 at 57).
In her treatment of Dr. Massey’s opinion, the ALJ should have expounded on the
specific weight she attributed to the portion of the opinion restricting Plaintiff’s ability to
reach and the basis for her finding. However, as discussed above, the ALJ discussed
Plaintiff’s neck and arm pain in her RFC determination, and it is clear from the ALJ’s
decision that she found that the medical evidence does not establish that Plaintiff suffers
from limitations caused by arm and neck pain. See (Tr. at 20). Accordingly, to the extent
the ALJ erred in failing to address record evidence specific to Plaintiff’s arm and neck pain
in her assessment of Dr. Massey’s opinion, the Court finds that the error is harmless. The
Court agrees with the Magistrate Judge that substantial evidence supports the ALJ’s
assessment of Dr. Massey’s opinion as it pertains to Plaintiff’s ability to reach.
2.

Limitation as to Shifting Positions

The Court similarly finds no reversible error with respect to the ALJ’s treatment of
Plaintiff’s need to shift positions at will. The ALJ appears to have adopted Dr. Massey’s
opinion that Plaintiff must alternate positions. Less clear, however, is the extent to which
Dr. Massey believed Plaintiff must alternate positions so as to accommodate her medically
13

determinable back pain. This opinion, and the evidence supporting it, play a role in step
four of the Commissioner’s determination of disability. The burden of production and proof
remains with the claimant through step four of the determination. Accordingly, Plaintiff had
the burden of supporting her interpretation of Dr. Massey’s opinion. To the extent Plaintiff
now contends that the ALJ misapplied or misinterpreted Dr. Massey’s opinion during the
colloquy with the VE, the Court finds no error.
In her Opening Brief, Plaintiff asserts that “Dr. Massey indicated that [Plaintiff] would
need to shift positions from sitting, standing, and walking every 15 to 30 minutes,” and that
“[w]hile a shift from sitting to standing would likely allow for an individual to keep working,
a need to walk around would prevent the individual from staying on task and performing
any job in the national economy.” (ECF No. 14 at 19). As an initial matter, the Court
disagrees with Plaintiff’s characterization of Dr. Massey’s opinion. Dr. Massey expressed
her opinion as to Plaintiff’s limitations on a standardized form that listed activities and the
frequency with which the claimant can perform those activities. (Tr. at 407-08). The
question regarding the need to alternate positions reads, “[d]oes your patient need a job
which permits shifting positions at will from sitting, standing or walking?” Id. at 407 (italics
in original). Dr. Massey selected, “[y]es.” In response to the single, follow-up question,
“how often do you think your patient will need to shift positions,” Dr. Massey wrote, “15-30
min[utes].” Id. The form Dr. Massey completed lists “sitting,” “standing,” and “walking” in
the alternative. The plain language of the form does not suggest that Plaintiff’s condition
requires her to shift from all three positions, i.e., sitting to standing to walking, and Dr.
Massey did not specify that Plaintiff requires the flexibility to alternate between sitting,
standing, and walking, as opposed to shifting between sitting and standing.
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Plaintiff objects that the ALJ “failed to explain why she did not accord some weight
to the statement that [Plaintiff] would need to shift positions at will from sitting, standing,
and walking every 15 to 30 minutes.” (ECF No. 19 at 4). However, during the colloquy with
the VE, the ALJ asked the VE to consider an individual who, among other things, “would
require a change of positions at will from sitting, or standing, or walking . . . ever [sic] 15 to
30 minutes.” (Tr. at 90). The ALJ thus incorporated the express language of Dr. Massey’s
limitation into her hypothetical posed to the VE. Plaintiff objects that “[w]hile a shift from
sitting to standing could allow for an individual to keep working, a need to walk around
would prevent the individual from staying on task and performing any job in the national
economy.” (ECF No. 19 at 4). However, Plaintiff has not established that her medical
condition requires that she be permitted to “walk around.” Dr. Massey’s opinion does not
assert as much, and the Court is not aware of record evidence, nor has Plaintiff cited to
any, that supports imposing any such limitation. Watson v. Colvin, 615 F. App’x 158, 159
(4th Cir. 2015) (citing Johnson, 434 F.3d at 659 (recognizing hypothetical must include only
impairments supported by substantial evidence)).

Indeed, in describing during the

administrative hearing Plaintiff’s need to shift positions, her attorney referenced sit and
stand, but not walk. (Tr. at 67). Accordingly, the Court finds no error in the ALJ’s treatment
of Dr. Massey’s opinion or in the ALJ’s use of hypothetical scenarios as posed to the VE.
CONCLUSION
The Court finds that the Magistrate Judge properly summarized the facts and
applied the correct principles of law.

Accordingly, it is hereby ORDERED that the

Magistrate Judge’s Report (ECF No. 18) is adopted and specifically incorporated herein;

15

Plaintiff’s objections (ECF No. 19) are overruled; and the Commissioner’s final decision is
hereby affirmed.
IT IS SO ORDERED.
s/ Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
August 26, 2019
Charleston, South Carolina

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