Robinson v. Commissioner of Social Security

Filing 27

ORDER adopting Report and Recommendations re 20 Report and Recommendations. Signed by Chief Judge David C Norton on 9/19/11.(jsch, ) (Main Document 27 replaced on 9/19/2011) (jbry, ). Modified on 9/19/2011 to correct case number on document as verified by filing user(jbry, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
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ANGELA JENICE ROBINSON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

No. 2:10-185-DCN

ORDER

This matter is before the court on Magistrate Judge Bruce Howe Hendricks’
Report and Recommendation (R&R) that this court affirm the decision of the
Commissioner denying plaintiff’s application for disability insurance benefits (DIB)
and supplemental security income (SSI) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 410-33, 1381-83. Plaintiff has filed specific written
objections. For the reasons set forth below, the court adopts the magistrate judge’s
R&R and affirms the administrative law judge’s (ALJ) denial of benefits.
I. BACKGROUND
Plaintiff filed an application for DIB and SSI on November 6, 2006, alleging
disability as of February 21, 2005, due to rheumatoid arthritis (RA), asthma,
depression, migraines, hypertension, gastroesophageal reflux disease, a rotator cuff
tear, and ovarian cysts. Tr. 14-17, 92-100. Her application was denied initially and
upon reconsideration. Tr. 46, 53. Plaintiff requested an administrative hearing,
which was held on January 12, 2009. Tr. 20-39. On March 23, 2009, the ALJ found
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that plaintiff was not disabled because she could perform jobs existing in significant
numbers in the national economy based on her ability to perform a range of light
work. Tr. 9-19. On November 23, 2009, the Appeals Council rendered the
Commissioner’s determination final by denying plaintiff’s request for a review of the
ALJ’s decision. Tr. 1-3.
Plaintiff filed this action in federal court on January 25, 2010. After
reviewing the record and law, the magistrate judge recommended that the ALJ’s
decision denying plaintiff benefits be affirmed. On March 3, 2010, plaintiff filed
objections to the magistrate judge’s findings. Plaintiff objected to the magistrate
judge’s conclusion that the ALJ properly: (1) denied giving controlling weight to the
treating physician’s opinion, (2) conducted a listing analysis for RA, (3) evaluated
plaintiff’s combined impairments, and (4) conducted a RFC assessment. Pl.’s Obj. 13.
Plaintiff did not object to the factual findings of the magistrate judge, and this
court, therefore, adopts those findings. See Thomas v. Arn, 474 U.S. 140, 149-50
(1985). Additionally, the court notes that it has considered the specific portions of the
record addressed in plaintiff’s objections, which are discussed below.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions
of the magistrate judge. See Arn, 474 U.S. at 149-50. This court is not required to

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review, under a de novo standard, or any other standard, the factual findings and legal
conclusions of the magistrate judge to which the parties have not objected. See id. A
party’s general objections are not sufficient to challenge a magistrate judge’s
findings. See Opriano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) ; Howard v. Sec’y
of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination remains with this court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). This court may accept, reject, or modify the
report of the magistrate judge, in whole or in part, or may recommit the matter to her
with instructions for further consideration. 28 U.S.C. § 636(b)(1).
Although this court may review the magistrate judge’s recommendation de
novo, judicial review of the Commissioner’s final decision regarding disability
benefits “is limited to determining whether the findings of the [Commissioner] are
supported by substantial evidence and whether the correct law was applied.” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “Substantial evidence” has been
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 eviden ce but m ay be som ewhat less than a
preponderance. If there is evidence to justify a refusal to direct
a verdict were the cas e before a jur y, then there is “substan tial
evidence.”

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Id. (internal citations omitted). “[I]t is not within the province of a reviewing court to
determine the weight of the evidence, nor is it the court’s function to substitute its
judgment for that of the [Commissioner] if his decision is supported by substantial
evidence.” Id. Instead, when substantial evidence supports the Commissioner’s
decision, this court must affirm that decision even if it disagrees with the
Commissioner. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
“Ultimately, it is the duty of the administrative law judge reviewing a case, and not
the responsibility of the courts, to make findings of fact and to resolve conflicts in the
evidence.” Hays, 907 F.2d at 1456.
III. DISCUSSION
The Social Security Act 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); 20 C.F.R. § 404.1505. The Social Security regulations
establish a sequential evaluation process to determine whether a claimant is disabled.
See 20 C.F.R. §§ 404.1520, 416.920. Under this process, the ALJ must determine
whether the claimant: (1) is currently engaged in substantial gainful activity; (2) has
a severe impairment; (3) has an impairment which equals an illness contained in 20
C.F.R. pt. 4, subpt. P, app. 1, which warrants a finding of disability without
considering vocational factors; (4) if not, whether the claimant has an impairment
which prevents him from performing past relevant work; and (5) if so, whether the
claimant is able to perform other work considering both his remaining physical and

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mental capacities (defined by plaintiff’s RFC) and his vocational capabilities (age,
education, and past work experience) to adjust to a new job. See 20 C.F.R. §
404.1520; Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). The applicant bears
the burden of proof during the first four steps of the inquiry. Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.
1992)).
A. Treating Physician
Plaintiff argues that the ALJ erred in failing to assign proper weight to Dr.
Gregory Niemer’s opinion that plaintiff’s RA met the requirements of Listing §
14.09.1 Tr. 529. Statements that a patient is “disabled” or “unable to work” or meets
the listing requirements are administrative findings reserved for the Commissioner’s
determination. SSR 96-2p. Even if the plaintiff can produce conflicting evidence
which might have resulted in a contrary decision, this court must affirm the
Commissioner’s findings if substantial evidence supports that decision. Blalock, 483
F.2d at 775.
As the magistrate judge properly concluded, Dr. Niemer’s opinion that
plaintiff met the listing requirements is a “legal conclusion” and not a “medical
opinion,” and thus, was not entitled to significant weight. Furthermore, the ALJ’s

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A. Persistent inflammation or persistent deformity of: (1) One or more major peripheral weightbearing joints resulting in the inability to ambulate effectively (as defined in 14.00(C)(6)); or (2) One
or more major peripheral joints in each upper extremity resulting in the inability to perform fine and
gross movements effectively (as defined in 14.00(C)(7)); or
B. Inflammation or deformity in one or more major peripheral joints with: (1) Involvement of two or
more organs/body systems with one of the organs/body systems involved at least to a moderate level of
severity; and (2) at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss). § 14.09 (emphasis added).

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decision to discredit Dr. Niemer’s opinion was supported by substantial evidence. 2
Plaintiff’s objection points the court to portions of the record which fail to
demonstrate that the ALJ’s decision was error.3 This court, therefore, adopts the
magistrate judge’s finding that the ALJ did not err in refusing to give Dr. Niemer’s
legal opinion controlling weight.
B. Listing Analysis for RA
The ALJ found that plaintiff suffers from a severe impairment of RA under
step two, but that neither this impairment nor the combination of her impairments
met, or was medically equal to, one of the listed impairments in 20 CFR pt. 404,
subpt. P, app. 1 in step three. Tr. 12. Plaintiff argues the ALJ did not perform a
proper listing analysis for plaintiff’s RA in step three, and therefore, remand is
required.4 This court affirms the ALJ’s decision because the ALJ’s error was
harmless.
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Even if this court found that Dr. Niemer’s opinion is a medical opinion, in light of the record before
this court, the ALJ was fully within his rights to find that it was inconsistent with other substantial
evidence. Tr. 18, 378-411. “If 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
v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). “Under such circumstances, the ALJ holds the discretion
to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence.”
Id. (citing Hunter, 993 F.2d at 35).
3
Tr. 186-95, 207 discusses plaintiff’s symptoms prior to the date of disability. Tr. 332-33 describes a
flu related examination, where plaintiff states that she does not have joint or muscle pain. This
contradicts rather than substantiates plaintiff’s allegations. Plaintiff may have intended to point the
court to an earlier report that notes pain associated with walking and standing that came on suddenly.
Tr. 328. It appears the calf pain was not considered problematic enough to receive treatment and
remedied itself by plaintiff’s next doctor’s appointment, which occurred a little over a week later for
sinusitis. Tr. 330. Tr. 316-20 addresses only two visits in July and August of 2006 in which Dr.
Niemer concluded that while plaintiff complained of lower extremity pain, plaintiff appeared
comfortable and the RA was stable. Tr. 402-10, though difficult to decipher, appears to catalogue a
three month period in 2007 in which plaintiff alternated between complaining of pain in her lower
extremities and on other occasions complaining of pain in her shoulder or arm, but indicates that with
infusions the RA is “better” or “good.” These few episodes fail to contradict a conclusion that the
ALJ’s findings were supported by substantial evidence.
4
Plaintiff’s objection only states that the ALJ did not conduct a proper listing analysis and in no way
challenges the finding that this conclusion was harmless error due to the ALJ’s findings as a whole.
Plaintiff’s objection impliedly argues that a finding of harmless error is outside the district court’s
authority. This is incorrect. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994).

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A claimant for disability benefits has the burden of proving her disability.
Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). A diagnosis of a listed impairment
is insufficient; plaintiff’s condition must either meet the listing requirements or be
medically equivalent to the requirements “based on medical findings,” which “must
be supported by medically acceptable clinical and laboratory diagnostic techniques.”
20 C.F.R. § 404.1526(a), (b); see Green v. Chater, No. 94-2049, 1995 WL 478032, at
*2 (4th Cir. Aug. 14, 1995). After identifying the proper listing criteria, the ALJ
should “compare[] each of the listed criteria to the evidence of [plaintiff’s]
symptoms.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). Cooke v.
Heckler, however, “does not establish an inflexible rule requiring an exhaustive
point-by-point discussion in all cases.” Russell v. Chater, No. 94-2371, 1995 WL
417576, at *3 (4th Cir. July 7, 1995). Rather, courts in the Fourth Circuit have found
that a “point-by-point” analysis is required when, “there is ‘ample factual support in
the record’ for a particular listing.” Beckman v. Apfel, No. 99-3696, 2000 WL
1916316, at *9 (D. Md. Dec. 15, 2000).
In the present case, plaintiff has failed to provide factual support at any stage
that demonstrates that she meets the listing requirements, as is her burden. Thus, an
in-depth “point-by-point” discussion was not needed here. See Russell, 1995 WL
417576, at *3. The ALJ specifically discredited plaintiff’s testimony about the
severity of her condition, citing plaintiff’s medical records which revealed that she
had “no acute distress,” “examinations ha[d] been essentially benign,” and that “the
medications ha[d] been relatively effective in controlling the claimant’s symptoms.”

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Tr. 17. Nevertheless, the ALJ’s cursory review in step three is insufficient standing
alone.
In step three, the ALJ failed to specifically compare plaintiff’s symptoms to
the listing impairment of RA, even though he classified plaintiff’s RA as “severe,”
and properly identified listing requirements in step three, § 14.09, which he found
plaintiff failed to satisfy.5 The ALJ did, however, discuss plaintiff’s symptoms and
conditions of RA in light of the medical record and plaintiff’s testimony in the
subsequent steps, and the discussion therein precludes a finding that plaintiff could
have satisfied the listing requirement of § 14.09.6 Plaintiff has not challenged these
findings by the ALJ, which demonstrate substantial evidence that plaintiff’s condition
does not satisfy the § 14.09 listing requirements, nor cited any contradictory
“medically acceptable clinical and laboratory results” supporting her legal
conclusions that she meets this listing.
Plaintiff relies only on the legal conclusion of a physician, which was properly
discredited by the ALJ, a complaint prior to receiving treatment, and an unsupported
assertion that she “absolutely did suffer from joint pain, swelling, tenderness…, etc.”

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The ALJ stated that medical imaging did not demonstrate sufficient symptoms, and the record did not
establish, that plaintiff met the listing requirements. The ALJ specifically found that plaintiff did not
suffer from an inability to ambulate or perform fine and gross movements effectively ruling out §
14.09(A)(1) and (2), nor did plaintiff have inflammation or a deformity in a major peripheral joint with
involvement of two or more organs/body with at least one system involved to a moderate level of
severity, ruling out § 14.09(B). Tr. 16. The ALJ discussed little specific evidence in step three.
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The ALJ noted Dr. Niemer’s repeated finding that plaintiff was “responding well to medication” and
that plaintiff reported that she was “doing well and even stable with medication” to her doctors. Tr.
18. The ALJ also considered the treatment records from “Dr. John Plyler and the Hope Clinic, which
revealed that claimant had a normal gait and she consistently denied pain and weakness in the joints,
muscles and back.” Tr. 18. Furthermore, the ALJ reviewed plaintiff’s symptoms from the records of
Dr. Moscatello and Moncks Corner Primary Care, which revealed that claimant had “normal motor
strength throughout, intact sensation, no atrophy, normal gait and balance and no edema, cyanosis or
clubbing of the extremities,” and the ALJ found that no records indicated significant joint deformity.
Tr. 18. The ALJ goes into further detail concerning these records when explaining the decision to
disregard Dr. Niemer’s “updated physician statement” opinion.

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Pl.’s Br. 14. The ALJ specifically dealt with the first two types of evidence: (1) he
correctly declined to give controlling weight to the legal conclusions of the treating
physician, discussed above, and (2) he did not give significant weight to symptoms
prior to treatment, as the ALJ found that plaintiff’s doctors concluded that the
treatment had improved plaintiff’s condition. Tr. 17-18. Finally, plaintiff’s bald
assertion of her symptoms is unsupported by medical records as required by 20
C.F.R. § 404.1526(a), (b). Here, substantial evidence supports the ALJ’s conclusion
that plaintiff’s RA failed to meet the listing criteria because the ALJ discussed the
evidence relating to plaintiff’s RA his decision, and, read as a whole, the ALJ’s
decision established that the appropriate factors were considered in finding that
plaintiff’s impairment did not equal the requirements of listing § 14.09.7 See, e.g.,
Crockett v. Astrue, No. 10-0064, 2011 WL 2148815, at *10 (W.D. Va. June 1, 2011).
Thus, the ALJ’s error in step three was harmless.
C. Combination of Impairments
Plaintiff next argues that the ALJ did not conduct a proper combination of
impairments analysis pursuant to the Fourth Circuit’s holding in Walker v. Bowen,
889 F.2d 47 (4th Cir. 1989). Plaintiff states that she suffers from RA, “asthma,
depression, migraine headaches, high blood pressure, gastroesophageal reflux disease,
a torn shoulder, and recurring ovarian cysts,” Pl.’s Obj. 2, and therefore, the

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Other circuits have found that a proper analysis conducted in the wrong step satisfies the ALJ’s
duties. See Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005) (“An ALJ’s findings at other
steps of the sequential process may provide a proper basis for upholding a step three conclusion that a
claimant’s impairments do not meet or equal any listed impairment.”); see also Hutchison v. Bowen,
787 F.2d 1461, 1463 (11th Cir. 1986) (“While Appendix 1 must be considered in making a disability
determination, it is not required that the Secretary mechanically recite the evidence leading to her
determination.”). This court need not rely on such cases, however, as that the ALJ’s analysis in the
subsequent step demonstrates that the sequential error was harmless.

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magistrate judge’s recommendation that this court find the ALJ’s opinion sufficient is
error.8
First, the ALJ separately considered each of these conditions in detail,
determining that only plaintiff’s RA was “severe.” Tr. 14-17. The ALJ briefly
discussed plaintiff’s “asthma, migraines, hernias, ovarian cysts, gastrointestinal
problems, hypertension and depression” together, finding that these were “not
severe.” Tr. 14. As required by Walker and 20 C.F.R. § 404.1523, the ALJ discussed
the conditions in combination when determining plaintiff’s RFC. The ALJ
discredited plaintiff’s testimony concerning the severity, intensity, and limiting
effects of her migraines, depression, hip bursitis and torn muscle, stating that the
plaintiff’s statements were both inconsistent with the RFC assessments and the
medical records. Specifically, the ALJ stated that plaintiff’s testimony concerning
her chronic pain was inconsistent with her examination records, which reveal that she
was in no acute distress and that her examinations were essentially benign. Tr. 17;
see Walker, 889 F.2d at 39 (discussing the ALJ’s ability to discredit plaintiff’s
testimony concerning pain if it is not substantiated by the medical evidence). The
ALJ found that “examinations have routinely revealed that the claimant’s lungs were
clear,” considered plaintiff’s RA at length, and found that plaintiff’s mental condition
had been treated conservatively with medications. Tr. 17. The ALJ indicated that he
considered the impairments in “combination” and the “entire record.” Tr. 16. The
ALJ listed plaintiff’s alleged aliments together and discussed them together when
determining their effect on plaintiff’s ability to work.
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This conclusory allegation is not supported by facts sufficient to challenge the magistrate judge’s
finding of harmless error.

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The structure of the ALJ’s analysis of plaintiff’s conditions indicates that the
ALJ did, in fact, consider the conditions in combination. This analysis places the facts
of this case outside of the circumstances in Walker v. Bowen. While plaintiff states
each alleged ailment again in her objection, she does not point to any medical
evidence which could demonstrate that the ALJ’s analysis was not supported by
substantial evidence. Though a more thorough analysis may be required in some
cases, plaintiff fails to demonstrate how any additional discussion would have
produced a different result. Thus, it appears that the ALJ did not err, and if he did,
the error was harmless.
D. Residual Functional Capacity Assessment
Plaintiff objects to the magistrate judge’s conclusion that the ALJ properly
conducted the RFC, arguing that the “ALJ fail[ed] to consider the entire record in
determining the claimant’s limitations.” Pl.s’ Obj. 3. As the magistrate judge
correctly noted,
The ALJ ex pressly discussed th e p laintiff’s various im pairments and
associated limitations, to the extent he found any present. Tr. 16-17.
The ALJ’s treatment included consideration of the plaintiff’s ability to
use her hands; swelling in her ankl es and its e ffect on her ability to
stand; her ability to walk f or five minutes at a tim e; the effectiven ess
of m edications; a lack of signif icant f indings of lim itation; the
presence of a norm al gait; ev idence of norm al motor stren gth, inta ct
sensation, balance; and lack of evid ence of significant joint defor mity.
Tr. 18. Only after this discussion did the ALJ then also cite the finding
of the DDS m edical consultants in support of his already reasoned
RFC. Tr. 18. So, not only does th e ALJ includ e some measure of an
independent function-by-function assessm
ent, contrary to the
plaintiff’s accusation, the ALJ’ s reliance on the DDS fi nding was
merely supportive rather than substantive.
R&R 12.

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Furthermore, “the ALJ limited plaintiff’s RFC to light work, as defined in 20
CFR 404.1567(b),” which includes a finding that plaintiff could stand or walk off and
on for a total of approximately six hours of an eight hour workday and plaintiff could
occasionally perform the postural activities of climbing ramps/stairs, balancing,
stooping, kneeling, crouching, and crawling. Tr. 16. Even if the ALJ had only
implied this result, it would have been sufficient. See, e.g., Hines v. Barnhart, 453
F.3d 559, 563 (4th Cir. 2006) (“[The ALJ’s] conclusion [that plaintiff could perform a
range of sedentary work] implicitly contained a finding that Mr. Hines physically
[was] able to work an eight hour day.”); see also Mellon v. Astrue, No. 08-2110, 2009
WL 2777653, at *11-15 (D.S.C. Aug. 31, 2009) (holding that even implicit findings
on subordinate issues are sufficient in the Fourth Circuit); Depover v. Barnhart, 349
F.3d 563, 567 (8th Cir. 2003) (“[A]lthough we would have preferred that he had
made specific findings as to sitting, standing, and walking, we do not believe that he
overlooked those functions. We think instead that the record reflects that the ALJ
implicitly found that plaintiff was not limited in these areas.”). This court finds that
the evaluation of plaintiff’s conditions to determine her RFC contained in the ALJ’s
decision is sufficient and is supported by substantial evidence.

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IV. CONCLUSION
For the reasons set forth above and by the magistrate judge, the court
ADOPTS and incorporates by reference the magistrate judge’s report and
recommendation and AFFIRMS the Commissioner’s decision denying benefits.
Plaintiff’s objections are hereby OVERRULED.
AND IT IS SO ORDERED.

________________________________________
DAVID C. NORTON
CHIEF UNITED STATES DISTRICT JUDGE
September 19, 2011
Charleston, South Carolina

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