Rinaldi v. Commissioner of Social Security Administration
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the recommendation of the Magistrate Judge. [ECF #18]. The Commissioner's decision is affirmed. Signed by Honorable R Bryan Harwell on 9/12/2017. (gnan )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Diana Louise Rinaldi,
Nancy A. Berryhill, Acting Commissioner )
of the Social Security Administration,
Civil Action No.: 2:16-CV-1403-RBH
Plaintiff Diana Louise Rinaldi (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of a final decision of the Commissioner of the Social Security Administration (the
“Commissioner”) denying her claim for disability insurance benefits (“DIB”) under Title II of the
Social Security Act (the “Act”). The matter is before the Court for review of the Report and
Recommendation of United States Magistrate Judge Mary Gordon Baker, made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) for the District of South Carolina. The Magistrate
Judge recommends affirming the Commissioner’s decision. [ECF #18].
Plaintiff filed this current application for disability insurance benefits (“DIB”) on July 19, 2013,
alleging she was unable to work. Plaintiff later amended the alleged onset date to October 1, 2013.
Plaintiff’s medical history was adequately set forth by the ALJ in rendering the decision in this case.
Briefly stated, Plaintiff has a history of coronary heart disease and underwent stent placement in her
artery in February of 2012. [ECF #9-9, Ex. 5F]. Plaintiff’s records reveal that she intermittently
experienced chest pain over the years, usually resolving after a few days. In February of 2013, Plaintiff
sought treatment for chest pain, however a March 2013 chest x-ray was normal. She reported
experiencing chest pain in May of 2013, but her lab results were unremarkable. [ECF #9-9, Ex. 6F].
A July 2013 cardiovascular examination was normal. [ECF #9-10, Ex. 7F]. Treatment notes dated after
Plaintiff’s amended alleged onset date do not reveal significant cardiac abnormalities, either. In July
of 2013, a CTA (computed tomography angiography) revealed moderate emphysema but no pulmonary
embolism related to her COPD complaints. Plaintiff had a consultative examination in October of 2013
where, at that time, her cardiovascular examination was within normal limits. [ECF #9-10, Ex. 10F].
While Plaintiff sought treatment in December of 2013 at the hospital resulting in a normal
cardiovascular examination, her stress test revealed findings somewhat consistent with stent restenosis.
[ECF #9-11, Ex. 12F]. However, her pulmonary examination was also unremarkable. [ECF #9-11, Ex.
12F]. Cardiac testing performed at another hospital where she sought treatment around this same time
revealed unremarkable findings. [ECF #9-12, Ex. 13F]. In January of 2014, her medical record reveals
that she denied chest pain since the December 2013 discharge and did not attend the follow-up
appointment scheduled after her December 2013 visit. [ECF #9-12, Ex. 22F]. In March of 2014,
Plaintiff told Bonnie Treado, DNP, the nurse who was treating her, that financial constraints and family
responsibilities kept her from making medical appointments. The record indicates that Ms. Treado
reminded Plaintiff that her practice was federally funded, and they could help her with her financial
issues. Ms. Treado also reminded Plaintiff that she could reschedule her appointment if she had to
watch her grandchildren and could not make the appointed time. [ECF #9-12, Ex. 22F]. In July of
2014, Plaintiff’s respiratory examination revealed rhonchi, but otherwise no wheezing. [ECF #9-12,
In October of 2014, Plaintiff stated that she was riding a bicycle daily and feeling “great.” She
was experiencing mild chest pains occasionally. Her December 2014 records reveal she reported chest
pain at that time, however she was still smoking a pack of cigarettes per day. [ECF #9-12, Ex. 20F].
A chest x-ray and EKG were unremarkable, and her discharge treatment notes do not attribute her chest
tightness to any cardiac issues. [ECF #9-12, Ex. 20F]. In February of 2015, treatment notes indicate
Plaintiff began smoking less, and her respiratory examination was benign at that time. [ECF #9-12, Ex.
22F]. In May of 2015, Plaintiff called her primary care provider complaining of chest pain and was
advised to go to the emergency room, however at her follow up in June of 2015, Plaintiff reported that
she did not seek the recommended treatment. [ECF #9-12, Ex. 14F]. Regarding her Factor V Leiden
deficiency, the medical records generally indicate that while Plaintiff suffers from this blood clot
disorder, she has not been compliant in taking her medication for this condition. While the medical
records do not indicate significant complications resulting from this disorder. she did have findings
suggestive of deep vein thrombosis in May 2013. [ECF #9, Ex. 1F, 6F, 7F, 10F, 22F].
Plaintiff’s application for benefits was denied initially and upon review. On July 15, 2015
Plaintiff participated in a hearing, at which time she stated that her medical problems were as follows:
factor V blood clot disease, two heart attacks resulting in the implantation of two stents, high
cholesterol, thyroid disease, emphysema, chronic obstructive pulmonary disease (“COPD”), and
asthma. [ECF #9-2, p. 36]. On September 14, 2015, Plaintiff received an unfavorable opinion from the
ALJ. [ECF #9-2, p. 11]. On April 12, 2016, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s findings the final decision of the Commissioner of Social Security.
The ALJ’s findings were as follows:
(1) The claimant meets the insured status requirements of the Social
Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since
October 1, 2013, the amended alleged onset date (20 C.F.R. 404.1571
(3) The claimant has the following severe impairments: coronary
artery disease status post stent placement, chronic obstructive
pulmonary disease (COPD), and Factor V Leiden mutation/blood clot
disorder (20 C.F.R. 404.1520(c)).
(4) The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. 404.1567(a). Specifically, the claimant
can lift and carry up to 10 pounds occasionally and lesser amounts
frequently, sit for 6 hours in an 8-hour day, and stand and/or walk
occasionally. However, the claimant cannot have concentrated
exposure to pulmonary irritants, such as dusts, fumes, odors and
(6) The claimant is unable to perform any past relevant work (20
(7) The claimant was born on January 6, 1971 and was 41 years old,
which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 C.F.R. 404. 1563).
(8) The claimant has a limited education and is able to communicate
in English (20 C.F.R. 404.1564).
(9) Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) 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
C.F.R. 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the
Social Security Act, from October 1, 2013, through the date of this
decision (20 C.F.R. 404.1520(g)).
[ECF #9-2, pp. 16-26].
On May 3, 2016, Plaintiff filed a complaint seeking judicial review of the Commissioner’s
decision. [ECF #1]. Both Plaintiff and Defendant filed briefs [ECF #12, ECF #13, ECF #16], and the
Magistrate Judge issued her Report and Recommendation (“R&R”) on July 31, 2017, recommending
that the Commissioner’s decision be affirmed [ECF #18]. The Magistrate Judge considered all of the
medical testimony within the record and determined that the ALJ properly addressed the relevant
medical findings, as well as considered Plaintiff’s testimony in determining that the ALJ’s decision is
supported by substantial evidence. [ECF #18, p. 12]. Plaintiff filed objections on August 11, 2017.
[ECF #19]. Plaintiff objects to the recommendation of the Magistrate Judge based on the following
reasons: (1) Plaintiff’s testimony concerning her lack of insurance and/or financial resources should
have been found to be “fully credible” and (2) the ALJ should have given Nurse Treado’s opinion
significant weight, notwithstanding the fact that she was not an “acceptable medical source.”
Defendant responded to these objections on August 22, 2017. [ECF #21].
Standard of Review
Judicial Review of the Commissioner’s Findings
The federal judiciary has a limited role in the administrative scheme established by the Act,
which provides the Commissioner’s findings “shall be conclusive” if they are “supported by substantial
evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more
than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This statutorily mandated standard precludes a de novo review of the factual circumstances that
substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157-58
(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must uphold the
Commissioner’s factual findings “if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even if the Court
disagrees with the Commissioner’s decision, the Court must uphold the decision if substantial evidence
supports it). This standard of review does not require, however, mechanical acceptance of the
Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). The Court “must not
abdicate [its] responsibility to give careful scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner]’s findings, and that [her] conclusion is rational.” Vitek, 438 F.2d
The Court’s Review of the Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the Report and Recommendation (“R & R”) to which specific
objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
Under the Act, Plaintiff’s eligibility for the sought-after benefits hinges on whether she is under
a “disability.” 42 U.S.C. § 423(a). The 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.” Id. § 423(d)(1)(A). The claimant bears the ultimate burden to
prove disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The claimant may establish
a prima facie case of disability based solely upon medical evidence by demonstrating that her
impairments meet or equal the medical criteria set forth in Appendix 1 of Subpart P of Part 404 of Title
20 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d) & 416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of disability
by proving she could not perform her customary occupation as the result of physical or mental
impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This approach is
premised on the claimant’s inability to resolve the question solely on medical considerations, and it is
therefore necessary to consider the medical evidence in conjunction with certain vocational factors.
20 C.F.R. §§ 404.1560(a) & § 416.960(a). These factors include the claimant’s (1) residual functional
capacity, (2) age, (3) education, (4) work experience, and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform. Id. §§ 404.1560(a), 404.1563,
404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964, 416.965, & 416.966. If an assessment
of the claimant’s residual functional capacity leads to the conclusion that she can no longer perform
her previous work, it then becomes necessary to determine whether the claimant can perform some
other type of work, taking into account remaining vocational factors. Id. §§ 404.1560(c)(1) &
416.960(c)(1). Appendix 2 of Subpart P governs the interrelation between these vocational factors.
Thus, according to the sequence of evaluation suggested by 20 C.F.R. §§ 404.1520 & 416.920, it must
be determined (1) whether the claimant currently has gainful employment, (2) whether she suffers from
a severe physical or mental impairment, (3) whether that impairment meets or equals the criteria of
Appendix 1, (4) whether, if those criteria are met, the impairment prevents him from returning to
previous work, and (5) whether the impairment prevents her from performing some other available
The effect of Plaintiff’s efforts at smoking cessation in assessing Plaintiff’s
Plaintiff argues that the ALJ erred in failing to consider Plaintiff’s efforts to stop smoking,
which Plaintiff contends should negate any adverse inference that she chose to spend her funds on
cigarettes, rather than treatment. In effect, Plaintiff is questioning the ALJ’s credibility assessment of
Plaintiff. The Magistrate Judge considered a related argument within the R&R with respect to whether
the ALJ adequately assessed Plaintiff’s inability to afford treatment under SSR 96-7p.
With respect to financial constraints in obtaining treatment, the Fourth Circuit has held that an
ALJ may consider a claimant’s use of cigarettes and that impact on the ability to afford treatment. See
Hill v. Colvin, No. 7:14-CV-171-D, 2015 WL 5147604, at *6 (E.D.N.C. Aug, 10, 2015), report and
recommendation adopted by 2015 WL 5164957 (E.D.N.C. Sept. 2, 2015) (noting that, “[a] claimant’s
use of income to purchase cigarettes can undercut his allegations that he is unable to afford treatment”);
Magwood v. Astrue, No. 6:10-2936-MBS-KFM, 2011 WL 6257159, at *8 (D.S.C. No. 21, 2011); Mayle
v. Astrue, No. 9:06-3048 CMC-GCK, 2007 WL 4285383, at *21 (D.S.C. 2007) (rejecting the argument
that a plaintiff could not afford treatment because the record showed plaintiff has resources available
to obtain cigarettes). Thus, it was not error for the ALJ to consider the effect of Plaintiff’s cigarette
habit on her ability to afford treatment. In assessing Plaintiff’s treatment generally, the ALJ noted that
the medical records indicate Plaintiff was “smoking less.” [ECF #9-2, p. 22]. Furthermore, a review
of the hearing transcript indicates that Plaintiff testified she has “tried to quit” smoking, not necessarily
that she had quit or how recent these efforts had been made to stop smoking. [ECF #9-2, p. 37]. A
review of the record thus reveals that the ALJ was aware of Plaintiff’s efforts in smoking cessation, but
does not necessarily indicate that the ALJ did not consider this as a factor in determining Plaintiff’s
ability to afford treatment. Moreover, Plaintiff does not provide any legal citation suggesting that a
claimant’s smoking cessation efforts generally negate the impact of a claimant’s smoking habit on the
ability to afford treatment.
As far as Plaintiff’s credibility, under its scope of review, the Court cannot make credibility
determinations but may review the ALJ’s decision to determine whether substantial evidence supports
the ALJ’s credibility assessment. Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005). The ALJ’s
“decision must contain specific reasons for the finding on credibility, supported by the evidence in the
case record, and must be sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that
weight.” SSR 96-7p. An ALJ may consider a claimant’s non-compliance with medical advice or
treatment when weighing his or her credibility. Dunn v. Colvin, 607 Fed App’x 264, 271 (4th Cir.
2015). Here, the ALJ found Plaintiff “partially credible” as to her explanation that she has been noncompliant with treatment due to financial constraints. [ECF #9-2, p. 23]. However, the ALJ also
considered the fact that the medical treatment notes reveal that Plaintiff was provided a charity
application for further treatment and was advised against deciding not to go to the emergency
department or leaving the emergency department when she had chest pain. [ECF #9-2, p. 24].
Moreover, the ALJ noted that Nurse Treado spoke to Plaintiff about her federally funded practice and
financial resources. Accordingly, this Court’s review of the ALJ’s assessment of Plaintiff’s noncompliance due to lack of insurance and/or financial resources as “partially credible,” and the ALJ’s
consideration of her smoking habit as one factor related to her ability to afford treatment, was supported
by substantial evidence.
Opinion of treating nurse practitioner Bonnie Treado, DNP
Plaintiff argues that the ALJ should have given the opinion of Bonnie Treado “significant
weight.” In her objections, Plaintiff acknowledges that at the time she applied for disability, Nurse
Treado was not considered an “acceptable medical source.” Nonetheless, Plaintiff argues that her
location in a small, rural town limits her access to medical care, and she was assigned a certified nurse
practitioner as her primary care provider for this reason. Thus, it is Plaintiff’s contention that had the
ALJ considered Nurse Treado’s education level, her years of experience, and the relationship and
length of care, he would have given significant weight to her opinion.
As acknowledged by Plaintiff, nurse practitioners are not considered acceptable medical sources
under 20 C.F.R. § 404.1513(d)(1), at least at the time of the filing of her application for disability.
However, within the Fourth Circuit, if a nurse practitioner has treated under the supervision of a
physician, and within the course and scope of supervised treatment renders an opinion, then the nurse
practitioner’s opinion deserves the same weight as that of a treating physician. Palmer v. Colvin, No.
5:13-CV-126-BO, 2014 WL 1056767, at *2 (E.D.N.C. March 18, 2014) (citing Bond v. Astrue, No.
4:09-CV-73-BO, at *4 (E.D.N.C. Apr. 21, 2010)); see generally Jones v. Colvin, No. 9:14-4339-TMCBM, 2016 WL 1054991, at *4 (D.S.C. Mar. 17, 2016). Here, Plaintiff does not contend that Nurse
Treado’s treatment and subsequent opinion was conducted under a doctor’s supervision and
endorsement. In fact, Plaintiff’s argument would tend to infer the opposite, given that she argues there
was no physician available to treat her.
Under the applicable regulations, despite the fact that this nurse practitioner is not necessarily
an “acceptable medical source” and may not have been working under the supervision of a physician,
the ALJ still considered Nurse Treado’s opinion. Nurse Treado completed a form in August of 2014
where she indicated by checking boxes that Plaintiff was permanently disabled and unable to work;
however, the form also had a section with instructions to check on the form which activities a claimant
could perform and for how long a claimant could perform each activity. Nurse Treado simply drew a
line across that section. In analyzing this opinion, the ALJ noted and the Defendant points out in the
response brief that the Commissioner makes the ultimate determination about whether a claimant is
permanently disabled. Still, the ALJ considered the relatively sparse information on the form, along
with the fact that Nurse Treado did not provide any specific functional limitations Plaintiff could not
perform that would be inconsistent with an RFC of sedentary work. [ECF #9-2, p. 24]. Further, the ALJ
considered the fact that not only did Plaintiff’s treatment notes reveal generally unremarkable findings,
but Nurse Treado’s own notes do not document significant abnormalities which might support her
assessment. [ECF #9-2, p. 24]. In fact, Plaintiff’s treatment notes while being seen by Nurse Treado
indicate that Plaintiff was riding a bicycle and feeling great two months after Nurse Treado’s August
2014 opinion. Accordingly, this Court finds that substantial evidence supports the ALJ’s determination
regarding the weight given to this opinion.
The Court has thoroughly reviewed the entire record as a whole, including the administrative
transcript, the briefs, the Magistrate Judge’s R & R, Plaintiff’s objections to the R & R, Defendant’s
response to those objections, and the applicable law. For the foregoing reasons, the Court adopts the
recommendation of the Magistrate Judge. [ECF #18]. The Commissioner’s decision is affirmed.
IT IS SO ORDERED.
Florence, South Carolina
September 12, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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