Jackson v. Commissioner of the Social Security Administration

Filing 46

ORDER: It is hereby ORDERED that the Commissioner's decision is affirmed. Signed by Magistrate Judge Kaymani D West on 8/12/2013. (gnan )

Jackson v. Commissioner of the Social Security Administration

Doc. 46

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
LaTasha Marlene Jackson,
Plaintiff,

vs.
Carolyn W. Colvin,1 Acting Commissioner
of Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

C/A No. 5:12-00686-KDW

ORDER

This social security matter is before the court pursuant to 28 U.S.C. § 636(c) and Local
Civil Rule 83.VII.02 DSC for final adjudication, with the consent of the parties, of Plaintiff’s
petition for judicial review. Plaintiff brought this action pro se pursuant to 42 U.S.C. § 405(g) to
obtain judicial review of a final decision the Commissioner of Social Security
(“Commissioner”), denying her claim for Supplemental Security Income (“SSI”) pursuant to the
Social Security Act (“the Act”). Having carefully considered the parties’ submissions and the
applicable law, the court affirms the Commissioner’s decision, as discussed herein.
I.

Relevant Background
A.

Procedural History

Plaintiff filed her application for SSI on August 8, 2007, alleging she became disabled on
January 1, 2007. Tr. 173. In her form disability report, Plaintiff stated she became unable to work
on June 1, 2001, because of constant pain in her lower abdomen, sharp pains in her lower right
side, migraine headaches, lower back pain, trouble holding urine, dizzy spells, and nausea. Tr.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes Carolyn W.
Colvin for Michael J. Astrue as Defendant in this action.

Dockets.Justia.com

180-81. Her application was denied initially and upon reconsideration, Tr. 87-95, and Plaintiff
requested a hearing, Tr. 96. An Administrative Law Judge (“ALJ”) initiated a hearing on January
29, 2010, but continued the hearing to allow Plaintiff the opportunity to secure legal counsel. Tr.
51-77. The hearing reconvened on May 28, 2010, and Plaintiff chose to proceed without
counsel. Tr. 19-50. The ALJ issued an unfavorable decision on June 23, 2010. Tr. 8-18. The
Appeals Council denied Plaintiff’s request for review on February 8, 2012, making the ALJ’s
decision the final decision for purposes of judicial review. Tr. 1-3. Plaintiff brought this action
seeking judicial review of the Commissioner’s decision in a pro se Complaint filed on March 8,
2012. ECF No. 1.
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was born on January 9, 1980, and was 27 years old on the date her application
for SSI was filed. Tr. 16. Plaintiff completed high school and attended college for approximately
nine months. Tr. 188. Plaintiff’s work history includes work in a fast food restaurant and on a
manufacturing production line. Tr. 190-92. As of the date of the hearing, Plaintiff lived with her
parents and older sister. Tr. 23.
2.

Medical History2

On November 6, 2006, Plaintiff slipped and fell in water on the fifth floor of Medical
College of Georgia (“MCG”) hospital and was taken to the MCG Emergency Department
complaining of right knee pain, low back pain, and flank pain. Tr. 307-14, 545. X-rays of her
right knee revealed no acute fracture or dislocation. Tr. 309. She was discharged on November 7,
2006, with a prescription for Vicodin to take as needed for pain. Tr. 304. Plaintiff returned to the
2

Although Plaintiff alleges her disability began June 1, 2001, see Tr. 181, no medical records
prior to November 2006 have been made part of the record, nor does Plaintiff specifically discuss
conditions or treatment prior to 2006.
2

MCG Emergency Department on November 20, 2006, still complaining of right knee pain. Tr.
302. The medical assessment noted that she had no primary care physician with whom she could
follow-up. Id. Plaintiff was treated and discharged with instructions to follow-up with her regular
doctor or orthopedic surgery as directed. Tr. 299.

An MRI of Plaintiff’s right knee was

performed on December 8, 2006, at MCG Health, Inc. and she was diagnosed with a “[t]ear of
the peripheral portion of the anterior horn of the lateral meniscus.” Tr. 346-47. After
consultation, Plaintiff underwent a diagnostic arthroscopy of her knee which revealed no
evidence of pathology other than “minimal grade II changes of chondromalacia3 on the lateral
tibia.” Tr. 319-21. Plaintiff continued with follow-up appointments and physical therapy with
MCG Health Sports Medicine Center. On March 12, 2007, she reported that her knee was much
better, and she had no complaints about her knee. Plaintiff was released from care on March 12,
2007. Tr. 315-18.
In 2006 and early 2007 Plaintiff was treated by Dr. Oletha R. Minto of Aiken Obstetrics
& Gynecology Associates for issues related to pain and severe dysmenorrhea;4 Dr. Minto’s
treatments included multiple laparotomies;5 a laparoscopy; and several cycles of Lupron.6 Tr.
3

Chondromalacia patella is a common cause of kneecap pain or anterior knee pain. Often called
“Runner’s Knee,” this condition often affects young, otherwise healthy athletes. Chondromalacia
is
due
to
an
irritation
of
the
undersurface
of
the
kneecap.
See
http://orthopedics.about.com/cs/patelladisorders/a/chondromalacia.htm (last visited August 12,
2013).
4
Dysmenorrhea
is
the
medical
term
for
menstrual
cramps.
See
http://pms.about.com/od/menstrualcramps/Menstrual_Cramps_Dysmenorrhea.htm (last visited
August 12, 2013).
5
A laparotomy is a large incision made into the abdomen. Laparotomy may be performed to
determine the cause of a patient’s symptoms or to establish the extent of a disease. Exploratory
laparotomy may be used to examine the abdominal and pelvic organs (such as the ovaries,
fallopian tubes, bladder, and rectum) for evidence of endometriosis. See
http://www.surgeryencyclopedia.com/La-Pa/Laparotomy-Exploratory.html (last visited August
12, 2013).
6
Lupron Depot (leuprolide acetate for depot suspension) is a prescription treatment for
endometriosis, given as an injection by a healthcare professional. It can help relieve the pain of
3

351-54, 360-64. On October 2, 2006, Plaintiff requested that Dr. Minto provide her with a letter
to Medicaid stating that she was unable to work because of her condition. Tr. 353. Dr. Minto said
that she could not write such a letter because she had not said that Plaintiff was unable to work.
Id. In December 2006, January and February 2007, Plaintiff had discussions with Dr. Minto
about scheduling surgery for a hysterectomy. Tr. 351-53. In late March 2007 Dr. Minto sent a
letter to Plaintiff terminating the physician-patient relationship in “the interest of patient care.”
Tr. 349.
On May 4, 2007, Dr. Gasnel E. Bryan performed a total abdominal hysterectomy with
right salpingectomy7 on Plaintiff at Aiken Regional Medical Center. Tr. 374-75.

Plaintiff

returned to Aiken Regional Medical Center on June 19, 2007, complaining of “severe intractable
pelvic and abdominal pain associated with nausea, vomiting and dizziness.” Tr. 365. A CT scan
revealed left hydronephrosis8 with left ureter, and possible stricture of the distal ureter. Id. Dr.
Prakash Maniam of Urology of Aiken, LLC performed a cystoscopy, retrograde pyelogram, left
ureteroscopy, and left ureteral stent placement on Plaintiff. Id. Plaintiff was discharged in good
condition on June 22, 2007. Id.
Plaintiff was seen by Dr. Maniam on June 26, 2007, complaining of pain in the left flank
and bladder following the left stent placement. Tr. 502. Dr. Maniam opined that Plaintiff’s
symptoms were related to stent irritation, but that he wanted the stent to remain in place. Id. Dr.

endometriosis and reduce lesions. See http://www.endofacts.com/about-lupron-depot.aspx (last
visited August 12, 2013).
7
Surgical removal of right Fallopian tube. See http://medical-dictionary.thefreedictionary.com/
salpingectomy (last visited August 12, 2013).
8
Hydronephrosis is a condition where one or both kidneys become stretched and swollen as a
result of a build-up of urine inside the kidney(s). It can occur when there is a blockage in the
urinary tract or when something disrupts the normal workings of the bladder which causes urine
to
flow
back
from
the
bladder
and
into
the
kidney(s).
See
http://www.nhs.uk/conditions/Hydronephrosis/Pages/Introduction.aspx (last visited August 12,
2013).
4

Maniam noted a telephone discussion with Plaintiff on July 3, 2007, regarding her recent
complaints of pain in her left side and after urination. Tr. 503. He “reassured her that this sounds
like it is from the stent and gave the options of removing it or keeping it to help dilate the ureter
and hopefully avoid an open procedure.” Id. Plaintiff agreed to continue with the stent. Id.
Plaintiff was seen by Dr. Maniam on July 11, 2007, complaining of “low energy, malaise, and
significant pain on the left side.” Tr. 504. Dr. Maniam determined that due to Plaintiff’s pain he
would remove the stent. Id. On July 18, 2007, Dr. Maniam removed the stent in a procedure
performed in his office. Tr. 505.
Plaintiff returned to Aiken Regional Medical Center on August 1, 2007, with “severe left
renal colic.” Tr. 388. Plaintiff was diagnosed with left ureteral stricture. Id. A cystoscopy was
performed, and a stent placed to dilate the ureter. Id. Plaintiff was unable to tolerate the stent and
it was removed. After discussions with the surgeon, Plaintiff opted for a ureteral reimplant.9 Id.
After the surgery Plaintiff remained in the hospital until August 6, 2007 when she was
“discharged to home in good condition.” Tr. 387. Plaintiff was seen by Dr. Maniam on August
10, 2007, for follow-up from the reimplantation. Tr. 506. Dr. Maniam noted that the incision site
looked good, and that he would see Plaintiff in two weeks for stent removal. Id. He also noted
that he was controlling Plaintiff’s pain symptoms with Darvocet and Detrol. Id.

Plaintiff

returned to Dr. Maniam on August 17, 2007, complaining of “nausea and bilateral flank pain,
mostly on the left.” Tr. 507. Dr. Maniam noted the pain was “probably related to stent irritation.”

9

In ureteral reimplantation surgery the original ureter is surgically re-positioned (reimplanted) in
the bladder wall. The end of the ureter is surrounded by bladder muscle in this new position,
which prevents urine from “backing up” (refluxing) toward the bladder. See
http://urology.ucsf.edu/patient-care/children/pediatric-urology-patient-information (procedures-PDF “Ureteral Reimplantation Surgery”) (last visited August 12, 2013).
5

Id. He gave Plaintiff a prescription for Bactrim DS #14 for possible pyelonephritis,10 and
Mepergan instead of Darvocet to control her nausea. Id. On August 27, 2007, Plaintiff was seen
by Dr. Maniam for follow-up post stent removal. Tr. 508.
Plaintiff was admitted to Aiken Regional Medical Center on September 10, 2007, with
recurrence of distal ureteral stricture. Tr. 509. Dr. Maniam recommended “cystoscopy and
incision of the ureteral stricture with possible balloon dilation and stent placement.” Id. Plaintiff
underwent surgery on September 11, 2007. Tr. 510-14.
On October 22, 2007, Medical Consultant William Lindler reviewed Plaintiff’s medical
records and assessed her physical residual functional capacity (“RFC”). Tr. 515-22. MC Lindler
opined that Plaintiff could lift 50 pounds occasionally and 25 pounds frequently and that she was
able to stand, walk, and sit for up to six hours each (with normal breaks) in an eight-hour
workday. He opined that Plaintiff’s ability to push and/or pull was unlimited other than as shown
for lift and carry. He opined Plaintiff could frequently climb a ramp or stairs; occasionally climb
a ladder, rope, or scaffold; could frequently balance, stoop, kneel, crouch, or crawl. Tr. 517. MC
Lindler found that Plaintiff had no manipulative, visual, communicative, or environmental
limitations. Tr. 518-19.
On November 19, 2007, Plaintiff had a routine IVP11 performed as follow-up to her left
ureteral reimplant. Tr. 525-28. The test results noted adequate drainage of the left renal
collecting system, although there was some “mild calyceal blunting that is persistent with
minimal prominence to the proximal mid left ureter.” Tr. 525-26. On December 14, 2007,

10

Bacterial infection of the kidney. See ATTORNEY’S ILLUSTRATED MEDICAL DICTIONARY P93
(1997).
11
An intravenous pyelogram (IVP) is an x-ray test that provides pictures of the kidneys, the
bladder, the ureters, and the urethra (urinary tract). See http://www.webmd.com/a-to-zguides/intravenous-pyelogram-ivp (last visited August 12, 2013).
6

Plaintiff had a renal ultrasound because of her complaints of left-sided flank pain and surgical
history. Tr. 529. The results were negative, and there was no hydronephrosis. Id.
Dr. Maniam submitted a disability report on March 4, 2008. Tr. 530-31. He noted that
Plaintiff “achieved effective resolution of the [urethral] obstruction,” but noted that “she has had
chronic pain symptoms related to the back since her surgery.” Tr. 530. Dr. Maniam opined that
“[t]his is felt to be possibly related to muscle spasm or the muscle irritated due to the psoas
hitch.”12 Id. Dr. Maniam noted that Plaintiff “has been relatively inactive” and that he was
“attempting to get her into physical therapy.” Id. His last visit with Plaintiff was on January 17,
2008, and Dr. Maniam noted that, at that time, Plaintiff continued to have “left-sided back
discomfort.” Id. He also noted that Plaintiff was able to do housework, but that “she was
avoiding doing any bending or lifting because this seemed to worsen the pain.” Id.
Medical Consultant Katrina B. Doig, M.D. conducted a Physical RFC Assessment of
Plaintiff on April 14, 2008. Tr. 532-39. Dr. Doig opined that Plaintiff could occasionally lift 20
pounds, frequently lift and/or carry 10 pounds, and that she was able to stand and/or walk for at
least six hours (with normal breaks) in an eight-hour workday, and sit for up to six hours (with
normal breaks) in an eight-hour workday. Tr. 533. Dr. Doig opined that Plaintiff’s ability to push
and/or pull was unlimited other than as shown for lift and/or carry. Id. Dr. Doig limited
Plaintiff’s ability to climb a ramp/stairs, balance, kneel, and crouch to frequently; and her ability
to climb ladder/rope/scaffolds, to stoop, or to crawl to occasionally. Tr. 534. Dr. Doig found
Plaintiff had no manipulative, visual, communicative, or environmental limitations. Tr. 535-36.
Dr. Doig commented that Plaintiff’s symptoms were credible as reflected in the RFC. Tr. 537.

12

Ureteral reimplantation where the posterior bladder wall is tacked to the psoas muscle. See
http://emedicine.medscape.com/article/1893904-overview (last visited August 12, 2013).
7

On November 14, 2008, Dr. Reddiah Mummaneni of Aiken Neurosciences, PC,
submitted an evaluation letter regarding Plaintiff’s headaches. Tr. 567-68. Plaintiff’s general
exam and neurological evaluation were normal, but Dr. Mummaneni ordered an MRI and MRA
of Plaintiff’s brain “to rule out if there is anything structurally going on in the brain.” Tr. 568.
The final test reports from the MRI and MRA were normal. Tr. 572-73. In his neurology followup Dr. Mummaneni opined that Plaintiff “might be having some low grade meningitis due to
autoimmune disorder.” Tr. 574. He noted that he would schedule Plaintiff for a lumbar puncture
study and start her on 60 mg of Prednisone. Id. Dr. Mummaneni performed the lumbar puncture
on December 4, 2008. Tr. 578. The results of the tests were normal. Tr. 579-91. On December
11, 2008, Dr. Mummaneni continued Plaintiff’s current medications of Amitriptyline and
Prednisone, and added triptans. Tr. 591. He provided Plaintiff with samples of Maxalt 10 mg and
instructed her not to take more than 20 mg per 24 hours. Id.

Plaintiff returned to Dr.

Mummaneni on December 16, 2008 for follow-up. Tr. 592. Because the prescribed medications
were not having any benefit, Dr. Mummaneni stopped the medications. Id. He opined that
Plaintiff “might have chronic paroxysmal hemicranias,” but noted that she had “some features of
hemicranias symptoms but not all of them.” Id. Dr. Mummaneni started Plaintiff on Indocin 50
mg for one day and then increased to 150 mg daily. Id. On December 31, 2008, Plaintiff
returned for a neurology follow-up. Tr. 593. Plaintiff reported a 50-60% percent improvement in
the headaches. Id. Dr. Mummaneni’s impression was that Plaintiff was most likely experiencing
chronic paroxysmal hemicranias; he continued her on the Indocin 50 mg three times a day. Id.
Plaintiff returned to Dr. Mummaneni on February 16, 2009, for neurology follow-up. Tr. 596.
Dr. Mummaneni noted the reason for Plaintiff’s headaches was unclear, and that the headaches
may be migraines versus chronic paroxysmal hemicrania. Id. Plaintiff stated that she was having

8

some stomach problems from the Indocin and had to stop taking it. Id. Plaintiff did not want to
start any new medications. Id. Dr. Mummaneni noted that Plaintiff was “doing decently well
compared to how she came in initially.” Id.
Plaintiff reported to Aiken Regional Medical Center on April 26, 2009, complaining of
lower abdominal cramps, nausea, and vomiting. Tr. 599-605.

She was diagnosed with

gastroenteritis, treated, and discharged. Tr. 602. Plaintiff returned to Aiken Regional Medical
Center on June 18, 2009 complaining of bilateral ear pain for two days. Tr. 609. Plaintiff was
diagnosed with ear pain and fluid behind her right ear drum, treated, and discharged. Tr. 610-13.
On August 28, 2009, Plaintiff was seen by cardiologist Ansermo L. Arthur, M.D. of
Carolina Heart & Vascular Center for bradycardia. Tr. 626.

After examination the sinus

bradycardia was unchanged from Plaintiff’s last visit and she was asymptomatic. Tr. 627.
Plaintiff was scheduled for an event monitor. Id. Plaintiff returned to Dr. Arthur on October 1,
2009 complaining of chest pain. Tr. 624. After physical examination Dr. Arthur noted that he
was “[s]till not sure if this is related to CAD. Schedule cardiac cath.” Tr. 625. On October 6,
2009, Plaintiff underwent a cardiac catheterization. Tr. 615-17, 629. On October 14, 2009,
Plaintiff was referred to Aiken Cardiovascular Associates for imaging of her right groin due to
pain status post catheterization. Tr. 618. The results indicated “no evidence of pseudoaneurysm.”
Id. On November 5, 2009, Plaintiff was seen by Dr. Arthur regarding her complaints of chest
pain. Tr. 622. Dr. Arthur noted Plaintiff’s negative test results and that she had no symptoms
attributable to valvular heart disease. Id. Dr. Arthur started Plaintiff on Cipro 500 mg and
Vesicare 10 mg. Tr. 623.

9

Dr. Gasnel Bryan provided an Excuse Slip for Plaintiff dated April 27, 2010 noting that
Plaintiff was unable to travel because of surgery on April 16, 2010, 13 and complications from
surgery that resulted in her being re-hospitalized April 23-27, 2010. Tr. 631. The note indicated
Plaintiff would be able to return to work after six weeks. Id.
4.

Additional Medical Evidence14

Plaintiff submitted additional medical records as attachments to her response brief for the
court’s consideration. These included hospital records from a visit to the GYN Service at Aiken
Regional Medical Center on September 7, 2012, ECF No. 39-1, and visits Plaintiff made to the
Aiken Regional Medical Center Emergency Room on October 19, 2012, and November 23,
2012, ECF Nos. 44-1 and 45-1. On September 7, 2012, Plaintiff was admitted for exploratory
surgery by Dr. Bryan due to an increase in severity of symptoms related to lower abdominal
pain. ECF No. 39-1 at 5. The findings were “consistent with extensive postoperative intestinal,
peritoneal, and pelvic adhesions and partial small bowel obstruction.” Id. Plaintiff was “treated
symptomatically” and discharged in “fairly good condition” on September 13, 2012. Id. Plaintiff
went to the hospital on October 19, 2012 complaining of chest pain. ECF 44-1 at 24. Chest xrays revealed no acute cardiopulmonary process. Id. at 26. On November 23, 2012, Plaintiff
presented to the hospital with a headache. ECF No. 45-1 at 5. The diagnosis was headache
13

Plaintiff testified at her administrative hearing that Dr. Bryan is her OBGYN, and on April 16,
2010, he performed a procedure to remove scar tissue. Tr. 28.
14
As discussed within, this additional evidence is not part of the administrative record. A court’s
substantial-evidence review under 42 U.S.C. § 405(g) (sentence four) is limited to the certified
administrative record. Wilkins v. Sec’y, Dept. of Health & Human Servs., 953 F.2d 93, 96 (4th
Cir. 1991) (en banc) (quoting Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir. 1972)
(“‘Reviewing courts are restricted to the administrative record in performing their limited
function of determining whether the Secretary’s decision is supported by substantial
evidence.’”)). Further, when it may be considered at all, evidence not before the ALJ is
considered only when it is “new and material” and “relates to the period on or before the date of
the administrative law judge hearing decision.” 20 C.F.R. § 404.970(b). This additional evidence
is from 2012, and there is no indication it relates to the period before the ALJ’s June 23, 2010
decision under review herein.
10

unspecified, and the notes indicated that the headache did “not appear to be the sign of any
serious illness.” Id. at 11.
C.

The Administrative Proceedings
1.

Plaintiff’s Testimony

Plaintiff appeared for an administrative hearing on January 29, 2010. Tr. 51-76. Plaintiff
testified that she was 30 years old, was single, and lived with her parents. Tr. 54. Plaintiff stated
that she was no longer represented by counsel, Tr. 55, and was unable to secure another
representative so close to the hearing date, Tr. 68. The ALJ agreed to continue the hearing to
allow Plaintiff the opportunity to seek a representative. Tr. 72-76.
At the May 28, 2010 hearing, Plaintiff appeared pro se and indicated she was unable to
find a representative. Tr. 22. Plaintiff testified that she and her 40-year-old sister lived with their
parents. Tr. 23. Plaintiff testified that she never had a driver’s license. Tr. 23-24. When asked to
describe her work record for the past 15 years Plaintiff stated that she worked at Carlisle Tire and
Wheel in 2000 and 2001 on the production line piercing rims. Tr. 24. Before that she worked at
Hardy’s [sic] as a cook and she would occasionally answer the phone. Id. When asked by the
ALJ why she felt she warranted disability benefits, Plaintiff stated that she had “a lot of medical
problems.” Tr. 25. She indicated that she had been diagnosed by Dr. Mummaneni with “chronic
paroxysmal hemicranias continua” in 2009. Tr. 25. Plaintiff stated that for relief from the
headaches she was taking over-the-counter Aleve. Tr. 26. She also stated that she had back
problems and had received injections from Dr. William Derret, but “due to some financial
problems with Dr. Derret,” she was “put on hold.” Id. Plaintiff stated she was diagnosed with
degenerative disc disease and lumbago. Tr. 27. She stated she was also diagnosed with “left
urethia stricture” and was taking Vesicare as prescribed by Dr. Maniam. Tr. 27-28. Plaintiff

11

testified that she had recently been treated by Dr. Bryant [sic] in a surgical procedure to remove
scar tissue. Tr. 28. Plaintiff further testified that in October 2009 Dr. Arthur had diagnosed her
with “bradycardia with a hint of sinus tachycardia.” Tr. 29. Plaintiff testified that due to her
health problems she had problems bending, her headaches would come and go, and she had
constant stomach problems. Tr. 30. She also stated that she was still having problems with her
knee from a right knee arthroscopy she had in 2006. Id. Plaintiff said she could possibly lift 30
pounds before her surgery. Tr. 31. She testified that she was unable to stand for too long because
it put pressure on her back, but she could alternate between sitting and standing for three to four
hours. Id.
2.

Witnesses Testimony

Plaintiff’s mother, Lucille Jackson, testified that Plaintiff was unable to do anything, and
she had to help Plaintiff. Tr. 37. Plaintiff’s father, Willie Lee Jackson, testified that Plaintiff
complained of “headaches most of the time and her back and her stomach.” Tr. 39. Plaintiff’s
sister, Reville Jackson, testified that she observed Plaintiff being unable to get out of bed some
mornings, and that Plaintiff was “in a lot of pain.” Tr. 41-42. She also stated that Plaintiff was
“depressed a lot,” had “a lot of headaches,” and had “[h]ead problems and back problems.” Tr.
42.
3.

Vocational Expert Testimony

Vocational Expert (“VE”) William Stewart also testified at the administrative hearing. Tr.
44-49. Dr. Stewart stated that Plaintiff’s past work as a piercer of car and truck rims was in the
medium category with an SVP of five, and her job as a fast food cook was light work with an
SVP of three. Tr. 45. The ALJ posed a hypothetical question regarding an individual who was
the same age as Plaintiff with the same education and prior work experience and was limited to

12

the following RFC: performing work that required no lifting or carrying over 20 pounds
occasionally, and only ten pounds frequently, with a sit/stand option at the workstation, with
only occasional stooping, twisting, crouching, kneeling, crawling, and climbing of stairs and
ramps; no climbing of ladders or scaffolds. Tr. 46.
The VE found that one with such limitations would be unable to perform Plaintiff’s past
relevant work (“PRW”). Id. The VE testified that the hypothetical individual would have the
following transferable skills: “some clerical skills, some numerical skill and some mechanical
skill as far as operating machinery or equipment.” Id. The VE identified the following jobs that
an individual, who was a high school graduate, could perform utilizing those skills: (1) an order
clerk; sedentary work, SVP of three; 4,000 in South Carolina; 70,000 nationally; DOT number
249362026; (2) low semi-skilled inspector examiner or quality control clerk; sedentary; SVP of
three; 3,000 in South Carolina; 45,000 nationally; DOT number 733687042; and (3) cashier;
sedentary; SVP of four; 2,000 in South Carolina; 35,000 nationally; DOT number 211.462-010.
Tr. 48. When asked by the ALJ if there was any conflict between the jobs cited and the DOT,
the VE stated that the DOT does not describe the sit/stand option but it was based on his “40-plus
years working with people with disabilities and handicaps.” Tr. 49.
D.

The ALJ’s Findings

In his June 23, 2010 decision, the ALJ made the following findings of fact and
conclusions of law:
1.

The claimant has not engaged in substantial gainful activity since August
8, 2007, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: low back pain,
abdominal pain, left ureteral stricture, and migraine headaches versus
chronic paroxysmal hemicranias (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
13

Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and
416.926).
4.

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 CFR 416.967(a) with the exceptions of a sit/stand option at the
workstation with the need to change positions every 60 minutes; only
occasional stooping, twisting, crouching, kneeling, crawling, or climbing
of stairs or ramps; and no climbing of ladders or scaffolds.

5.

The claimant is unable to perform any past relevant work (20 CFR
416.965).

6.

The claimant was born on January 9, 1980 and was 27 years old, which is
defined as a younger individual age 18-44, on the date the application was
filed (20 CFR 416.963).

7.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).

8.

The claimant has acquired work skills from past relevant work (20 CFR
416.968).

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant has acquired work skills from past
relevant work that are transferable to other occupations with jobs existing
in significant numbers in the national economy (20 CFR 416.969,
416.969(a) and 416.968(d)).

10.

The claimant has not been under a disability, as defined in the Social
Security Act, since August 8, 2007, the date the application was filed (20
CFR 416.920(g)).

Tr. 10-17.
II.

Discussion
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,”
defined as:

14

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. § 1382c(a)(3)(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 working; (2) whether the claimant has a
severe impairment; (3) whether that impairment meets or equals an impairment included in the
Listings;15 (4) whether such impairment prevents claimant from performing PRW; and (5)
whether the impairment prevents the claimant from performing specific jobs that exist in
significant numbers in the national economy. 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 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).

15

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, he 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 his impairments match several specific criteria or be “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).
15

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, 482 U.S. at 146, n.5 (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 of the
Commissioner are supported by substantial evidence and whether the Commissioner applied the
proper legal standard in evaluating the claimant’s case. See id., Richardson v. Perales, 402 U.S.
389, 390 (1971); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990)).

16

The court’s function is not to “try these cases de novo or resolve mere conflicts in the
evidence.” Vitek v. Finch, 428 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 his conclusion is
rational. See Vitek, 428 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

In her Complaint, Plaintiff alleges that she has been diagnosed with the chronic illnesses
of fibromyalgia, myalgias, and myofascial pain syndrome, and that they prevent her from
working. Compl. 3, ECF No. 1. Plaintiff also notes that she has chronic paroxysmal hemicranias
continua, a rare condition that causes serious headaches; a reappearance of pelvic peritoneal
adhesions; and degenerative disc lumbar and lumbago disease. Id. In her Complaint Plaintiff asks
the court to review her case because she “need[s] for this court to say that [she] is physically and
gainfully incapable of working and should be rightfully deemed disabled.” Id. at 5. In her Brief,
Plaintiff contends that she should be considered disabled based on the medical condition of
fibromyalgia and the reoccurring issue of abdominal adhesions. Pl.’s Br. 2, ECF No. 35.
Plaintiff contends her “impairments prevent [her] from performing all types of qualified works.”

17

Id. at 3. Plaintiff asserts that her medical records provide evidence to support her argument. Id. at
4.
Defendant contends that Plaintiff has failed to sustain her burden that her impairments
render her unable to engage in substantial gainful activity. Def.’s Br. 6, ECF No. 40. Defendant
argues that the ALJ properly considered the objective medical record, including the reports of
examining and non-examining physicians, and the record does not support findings of limitations
greater than those found by the ALJ. Id. at 7.
The ALJ’s findings are supported by the medical records, and by Plaintiff’s failure to
produce any evidence that an examining or treating physician has imposed any limitations on
Plaintiff’s ability to perform basic work activities. Plaintiff appears to argue that the ALJ should
have found her disabled based on her allegations of physical pain. Pl’s. Br. 2.
SSR 96-7p requires that, prior to considering Plaintiff’s subjective complaints, the ALJ
must find there is an underlying impairment that has been established by objective medical
evidence that would reasonably be expected to cause the subjective complaints of the severity
and persistence alleged. Only then is the ALJ to move to the second step—consideration of the
record as a whole, including both objective and subjective evidence, to assess the claimant’s
credibility regarding the severity of her subjective complaints, including pain. See SSR 96-7p, 61
Fed. Reg. 34483-01, 34484-85 (July 2, 1996); see also 20 C.F.R. § 416.929; Craig v. Chater, 76
F.3d 585, 591-96 (4th Cir. 1996).
The requirement of considering a claimant’s subjective complaints does not mean the
Commissioner must accept those complaints on their face. The ALJ may consider the claimant’s
credibility in light of her testimony and the record as a whole. If he rejects a claimant’s testimony
about her pain or physical condition, the ALJ must explain the basis for such rejection to ensure

18

that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec’y, Dep’t of
Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (quoting Smith v. Schweiker, 719 F.2d
723, 725 n.2 (4th Cir. 1984)). “The determination or 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, 61
Fed. Reg. at 34486.
The ALJ limited Plaintiff to sedentary work with a sit/stand option with the need to
change positions every 60 minutes; only occasional stooping, twisting, crouching, kneeling,
crawling, or climbing of stairs or ramps; and no climbing of ladders or scaffolds. Tr. 13. The
court finds that, as part of his review of the record as a whole, the ALJ properly completed Step
Two of the analysis SSR 96-7p sets out for considering whether a claimant’s subjective
complaints are credible. The ALJ determined that Plaintiff’s claims regarding the intensity,
persistence and limiting effects of her symptoms were not credible to the extent they were
inconsistent with the RFC assessment in light of her activities, and the hearing testimony. See
SSR 96-7p, 61 Fed. Reg. at 34485 (requiring that ALJ “make a finding on the credibility of the
individual’s statements based on a consideration of the entire case record”). Factors the ALJ is
to consider include claimant’s use of pain medication or other treatments for subjective
symptoms. See id., 20 C.F.R. § 416.929(c)(3).
The ALJ considered Plaintiff’s claims, as appropriate, during his discussion of Plaintiff’s
RFC. The ALJ detailed Plaintiff’s testimony regarding her headaches and associated symptoms,
included her testimony that “she was not taking any prescribed medication for it at this time but
takes over-the-counter Aleve when necessary.” Tr. 14. Regarding Plaintiff’s claims of residual

19

pain from surgery for adhesions, and back pain due to degenerative disc disease and lumbago,
the ALJ examined the record evidence concerning these claims and found no substantial
evidence or no diagnostic evidence to support these assertions. Tr. 15. He noted that after
Plaintiff’s abdominal surgery in April 2010, Dr. Bryan indicated that she could return to work in
approximately six weeks. Id. The fact that Plaintiff was not prescribed pain management or
assistive devices suggests that her impairments and their associated pain symptoms are
controlled to an adequate degree with over-the-counter medication. This evidence considered by
the ALJ also bolsters his finding. See Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)
(noting if symptoms are, or can be, reasonably controlled by medication, they may not be
considered disabling under the Act). The court finds the ALJ’s thorough review of the record as
a whole, including his articulated reasons for discounting Plaintiff’s claims, supports a finding
that the Commissioner’s decision to deny benefits should be affirmed. See Wheeler v. Apfel, 224
F.3d 891, 895 (8th Cir. 2000) (noting ALJ may discount a claimant’s complaints if
inconsistencies are apparent in the evidence as a whole).
Although Plaintiff alleges that her diagnoses of fibromyalgia, myalgias, and myofascial
pain syndrome are chronic illnesses that affect her muscles and “create[] a great deal of pain
constantly,” the ALJ had none of these diagnoses before him in the form of medical records or
Plaintiff’s testimony. Furthermore, Plaintiff has not provided any medical records or other
evidence supporting these diagnoses.16 Plaintiff testified at the hearing, Tr. 27, and alleges in her
16

Although Plaintiff provided the court with additional medical records as attachments to her
Brief, none of those records indicated any diagnoses of fibromyalgia, myalgia, myofascial pain
syndrome, or degenerative disc lumbar and lumbago disease. See ECF Nos. 39, 44, 45. Plaintiff
refers to “[m]ore sufficient medical records” that have been provided “since the ALJ’s last
thorough out look of decision making,” but those records have not been provided to the court.
ECF No. 41 at 4-5. In any event, no such records were before the ALJ prior to his decision, nor
were they presented to the Commissioner in any form. The court cannot now consider additional
documents. See Wilkins, 953 F.2d at 96 (noting reviewing courts limited to considering
20

Complaint, Compl. 3-4, that she has degenerative disc disease “which reduces [her] ability to
bend and/or lift as it seems to only worsen the pain.” However, as noted by the ALJ, “there is no
diagnostic evidence to support this assertion.” Tr. 15. Plaintiff has not established any error by
the ALJ on this point. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (finding claimant
bears the burden of proof and production through step four of the sequential evaluation).
“Reviewing courts are restricted to the administrative record in performing their limited function
of determining whether the [Commissioner’s] decision is supported by substantial evidence.”
Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir. 1972); see also 42 U.S.C. § 405(g).
Therefore, the court will not reverse the Commissioner’s June 23, 2010 decision based on new
information discussed by Plaintiff in her Complaint and/or Brief as this is not part of the
administrative record. If the diagnoses to which Plaintiff referred (fibromyalgia, myalgias,
myofascial pain syndrome, degenerative disc disease, and lumbago) show deterioration in
Plaintiff’s condition that occurred after the ALJ’s decision, it would not be the basis for remand,
but may be the grounds for a new application. Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir.
1997) (“Additional evidence showing a deterioration in a claimant’s condition significantly after
the date of the Commissioner’s final decision is not a material basis for remand, although it may
be grounds for a new application for benefits.”).
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the ALJ, but to

determine whether the ALJ’s decision is supported as a matter of fact and law. Based on the
foregoing, the court finds that Plaintiff has not shown that the Commissioner’s decision was
unsupported by substantial evidence or reached through application of an incorrect legal
administrative record). Further, for evidence not before the ALJ to be considered in any
circumstance, such evidence must be “new and material” and must “relate[] to the period on or
before the date of the administrative law judge hearing decision.” 20 C.F.R. § 404.970(b).
21

standard. See Craig 76 F.3d at 589; see also 42 U.
.
g,
a
.S.C. § 405
5(g). Therefo
fore, it is he
ereby
ORDERE that the Commission
ED
C
ner’s decision be affirme
ed.
IT IS SO ORD
T
DERED.

August 12, 2013
Florence, South Caro
olina

ni
Kayman D. West
United S
States Magistrate Judge

22