McCormick v. Commissioner of the Social Security Administration

Filing 19

ORDER affirming Commissioner's decision. Signed by Magistrate Judge Kaymani D West on 2/11/2016. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Wanda Teresa McCormick,
Plaintiff,

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

) Civil Action No. 5:14-4710-KDW
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ORDER
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This social security matter is before the court pursuant to 28 U.S.C. § 636(c) and Local
Civil Rule 83.VII.02 (D.S.C.) for final adjudication, with the consent of the parties, of Plaintiff’s
petition for judicial review. Plaintiff brought this action 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 protectively applied for SSI benefits on August 25, 2011, alleging a disabilityonset date of July 1, 2001.1 Tr. 210-15. Plaintiff’s claims were denied initially, Tr.121, 157-61,
and on reconsideration, Tr. 137. Plaintiff requested a hearing before an administrative law judge
(“ALJ”), Tr. 169-71, and a hearing was held on August 1, 2013, Tr. 29-70. In a decision dated
September 27, 2013, the ALJ determined that Plaintiff was not disabled within the meaning of
1

The SSI Application refers to an application date of September 12, 2011, Tr. 210; Plaintiff’s
protective filing date is August 25, 2011, see Tr. 284.

the Act. Tr. 9-23. On December 3, 2014, the Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision. Tr. 1-5. On December 12, 2014, Plaintiff brought this action
seeking judicial review of the Commissioner’s decision. ECF No. 1.
B.

Plaintiff’s Background

Plaintiff was born in July 1964, and was 47 years old on August 25, 2011, her protected
filing date. See Tr. 284. The Disability Report – Field Office Form SSA-3367 indicates a
disability onset date of July 1, 2002, which is one year later than the date on her SSI application.
Compare Tr. 284 with Tr. 210. In her Disability Report – Adult Form SSA 3368, Plaintiff
indicated she completed the 12th grade and did not attend special education classes. Tr. 290.
However, at her administrative hearing Plaintiff testified that she completed only the ninth grade.
Tr. 36. The Disability Report also indicates Plaintiff stopped working on July 1, 2002, due to her
conditions of depression, borderline mental retardation, and heart problems. Tr. 289. In her
Function Report-Adult completed October 11, 2011, Plaintiff indicated her back, legs, and arms
hurt. See Tr. 296.
C.

Relevant Medical History
a. Dr. Kathleen Lundvall

On November 3, 2011, Dr. Lundvall completed a Psychiatric Review Technique form
(“PRTF”) assessing Plaintiff’s mental health. Tr. 504-15. Dr. Lundvall noted that Plaintiff met
Listings 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders. Tr. 504. Under the
category of affective disorders Dr. Lundvall checked boxes indicating Plaintiff had depressive
syndrome characterized by the following: anhedonia or pervasive loss of interest in almost all
activities, sleep disturbance, decreased energy, and difficulty concentrating or thinking. Tr. 507.
Under the category of anxiety-related disorders she checked boxes indicating generalized

2

persistent anxiety accompanied by motor tension, autonomic hyperactivity, and apprehensive
expectation. Tr. 509. Dr. Lundvall rated Plaintiff’s functional limitations under the “B” criteria
of the listings. Tr. 514. She determined Plaintiff had “marked” limitations in all areas which
include restriction of activities of daily living; difficulties in maintaining social functioning;
difficulties in maintaining concentration, persistence, or pace; and she noted Plaintiff had three
episodes decompensation of extended duration. Id. On October 31, 2012, Dr. Lundvall
responded “yes” to a questionnaire asking if the November 2011 PRTF was still her opinion. Tr.
516.
b. Dr. Gariane Gunter
On February 26, 2013, Dr. Gunter completed a PRTF noting that Plaintiff met Listings
12.04 and 12.06. Under Listing 12.04 affective disorders, Dr. Gunter found that Plaintiff had the
medically determinable impairment of depressive disorder NOS [not otherwise specified] that
did not precisely satisfy the diagnostic criteria of the listing. Tr. 521. Under Listing 12.06
anxiety-related disorders, Dr. Gunter determined Plaintiff had anxiety disorder NOS, which was
a medically determinable impairment that did not precisely satisfy the diagnostic criteria of the
listing. Tr. 523. She noted that the symptoms and signs that substantiated the presence of the
impairment included: “Recurrent & persistent anxiety that includes autonomic hyperactivity &
apprehensive expectation.” Id. Under the “B” criteria of the listings Dr. Gunter opined that
Plaintiff had “moderate” limitations in restriction of activities of daily living and “marked”
limitations in the areas of difficulties in maintaining social functioning and difficulties in
maintaining concentration, persistence, or pace. Tr. 525. She noted Plaintiff had three episodes of
decompensation of extended duration. Id. Under the “C” criteria of the listings Dr. Gunter
indicated that Plaintiff had the following:

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[A] medically documented history of a chronic organic mental . . . disorder of at
least 2 years’ duration that has caused more than a minimal limitation of ability to
do any basic work activity, with symptoms or signs currently attenuated by
medication or psychological support, and . . . [a] residual disease process that has
resulted in such marginal adjustment that even a minimal increase in mental
demands or change in the environment would be predicted to cause the individual
to decompensate.
Tr. 526.
D.

The Administrative Proceedings

Plaintiff appeared, along with her counsel, at the August 1, 2013 administrative hearing
held in Columbia, SC before ALJ Frances W. Williams. Tr. 29. At the hearing Plaintiff amended
her onset date to her protected filing date of August 25, 2011. Tr. 32-33. Vocational Expert
(“VE”) Thomas D. Neal was also present and testified at the hearing. Tr. 29.
1.

Plaintiff’s testimony

On the day of the hearing Plaintiff testified that she was 49 years old, 5 feet 7 inches tall,
weighed 305 pounds, and lived in a trailer with her son, daughter, and two grandchildren ages
seven months and six years old. Tr. 34. Plaintiff stated that the trailer had two sets of stairs, one
with three steps and one with six steps and that it hurt her back and legs to use the stairs. Tr. 35.
Plaintiff stated that she had an unrestricted driver’s license and had no problems driving other
than driving on the interstate because she did not “know how to get off and on too good.” Tr. 3536. Plaintiff testified that the highest grade she completed was the ninth grade, she was in adult
education for a while, but did not obtain her GED because she could not pass the test. Tr. 36.
Plaintiff testified that she did not receive Medicaid, did not have health insurance, and had not
worked since 2001. Tr. 36-37. Plaintiff stated that she stopped working because she had “a bad
car wreck and it messed [her] back and [her] neck up.” Tr. 37. Plaintiff stated that she had not
received unemployment benefits in the last several years and had not tried to find work. Id.

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Plaintiff testified that she went to vocational rehabilitation one time and was told that she would
not be allowed to work due to her conditions of “enlarged heart and [her] back and [her] legs, the
way they are.” Id. Plaintiff identified past work she had done in the late 1990s working part-time
at a chicken farm and poultry plant. Tr. 38-40. Plaintiff testified that in 1998 she worked fulltime at Wal-Mart for about six months, first as a cashier and then she was transferred to “‘soft
lines’ where you hang up clothes and stuff.” Tr. 41. She also worked part-time for short periods
for the South Carolina Highway Department and for a limousine company. Tr. 41-42. The ALJ
determined that the only past relevant work would have been Plaintiff’s employment with WalMart. Tr. 42-43.
In response to questions from her attorney Plaintiff testified that about ten years prior she
had been psychiatrically committed to Lexington hospital.2 Tr. 43. She also testified that at some
point—she thought perhaps in 1999—she had counseling sessions at Newberry Mental Health.
Tr. 44-45. Plaintiff testified that over the past four or five years she was receiving counseling at
Lexington County Mental Health Center. Tr. 45. She was seen initially by Dr. Lundvall3 and
after Dr. Lundvall left the Center Plaintiff was assigned to Dr. Gunter. Tr. 45-46. Plaintiff stated
that she has seen several counselors over the last two years as the counselors keep changing. Tr.
46. When asked to describe her symptoms Plaintiff stated that she “can’t remember a lot and
[her] nerves bother [her].” Id. Plaintiff stated that she has problems dealing with people and
“likes to stay to [herself]” because of her nerves. Tr. 47. Plaintiff testified that she started feeling
that way in 2000 when she was unable to obtain custody of her grandchildren. Id. Plaintiff
2

Plaintiff’s medical records indicate that on August 31, 2003, an application was made to have
Plaintiff involuntarily committed for possible suicide attempt. Tr. 490-93. The commitment order
was rescinded, and Plaintiff was discharged on September 2, 2003. Tr. 494. Doctors determined
Plaintiff accidentally overdosed when she mixed alcohol with Vicoden and Seroquel. Id. Plaintiff
denied suicidal ideation and stated “she has had a history of depression, but feels like she has
been doing quite well.” Id.
3
Throughout the transcript Dr. Lundvall’s name is misspelled phonetically as Lonvall.
5

testified that she is “tired all the time.” Tr. 48. She also described an inability to keep track of
small items about a half-inch in size because it is “blurry and stuff.” Tr. 48-49. Plaintiff stated
she could not relax much because of her back and legs hurting but she could not say if was due to
pain or to a mental condition. Tr. 49. Plaintiff stated she did household chores “a little at a time”
because of her back and legs. Id. She also stated that she has problems concentrating and “can’t
stay on one skill.” Tr. 50. Plaintiff testified that she gets along with people and likes being with
people but does not like being in a crowd. Id. Plaintiff testified that she has a fear of being raped
and for years has had dreams of that fear. Tr. 50-51.
Plaintiff testified that she went to night school because she wanted to find a better job. Tr.
51. She also stated that she has trouble reading and sometimes is unable to understand the words
she reads. Id. Plaintiff testified that she also has trouble with spelling. Tr. 52. Plaintiff testified
that her back pain is “all the way up [her] spine, but it’s mostly in the lower part of [her] back.”
Id. Plaintiff stated that the back pain started with a car accident. Tr. 53. She testified that she can
walk or stand for about 10 to 20 minutes. Id. Plaintiff testified that she has swelling in her knees,
legs, feet, and hands. Id. Plaintiff testified that she has problems lifting and can lift three-to-ten
pounds. Tr. 54. She stated that she has muscle cramps in her legs and has pain “[j]ust about all
the time.” Id. Plaintiff stated she takes Altram, Neurontin, and Celebrex for the pain but she told
doctors she could not take codeine and morphine.4 Tr. 55.
In response to questions from the ALJ Plaintiff stated that she takes 600 milligrams of
Neurontin three times a day and she takes the Altram three times a day. Tr. 55. Plaintiff testified
that the side effect of the medication is weight gain, but that the medications help. Tr. 56.
Plaintiff stated that doctors had not done any specific treatment for her back and legs other than
prescribe medicine. Id. Plaintiff testified that doctors were going to send her for an MRI of her
4

Treatment notes indicate Plaintiff is allergic to these medications. See, e.g., Tr. 358.
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back but because she did not have $100.00 they would not take her. Id. Plaintiff stated that
doctors have not recommended any kind of physical therapy. Id. Plaintiff testified that she saw
Dr. Lundvall and now Dr. Gunter about every three months and sees counselors every two-tothree weeks. Tr. 57. Plaintiff testified that her mental health was better but she could not tell
when it started getting better. Id. The ALJ noted that in October 2011 Plaintiff stated that she
cooked, washed dishes, cleaned, dusted, let the dogs out, and watched her four-year-old
grandchild. Id. Plaintiff confirmed that was fairly representative of her activities and they were
the same at present. Tr. 58. Plaintiff testified she was unable to care for her younger grandchild
because she took too much medicine and now the older grandchild also went to a babysitter. Id.
Plaintiff stated that she did not smoke and had stopped drinking alcohol a “couple of years ago.”
Id. Plaintiff stated that at one time she had a problem with alcohol but was able to stop on her
own. Tr. 58-59. When asked if there was anything else she wanted to tell the ALJ, Plaintiff
stated: “Nothing except that I hurt all over and my back and legs bothers me real bad, and my
nerves.” Tr. 59. In response to follow-up questions from her attorney Plaintiff testified that she is
unable to cook, wash dishes, and clean for eight hours a day on a schedule and has to do it at her
own pace. Id.
2.

The VE’s testimony

VE Neal described Plaintiff’s past work at Wal-Mart as cashier, Dictionary of
Occupational Titles [“DOT”] number 211.462-010, light exertional level, SVP of 2, unskilled;
and as sales attendant, DOT number 299.677-010, light exertional level, SVP of 2, and unskilled.
Tr. 60.
The ALJ asked the VE to consider a person who could lift and carry 20 pounds
occasionally and 10 pounds frequently; “[w]ho should not be required to climb ladders, ropes,

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scaffolds, and other postural restrictions with no more than occasional stooping. . . . Occasional
stooping, crouching, kneeling, balancing, crawling, or climbing stairs and ramps, and who would
also be limited to unskilled work with no more than occasional direct interaction with the public,
no more than occasional team-type interactional with co-workers. Additionally, should not be
required to make complex detailed decisions, should not be required to adapt to greater than
simple gradual changes in the workplace, should work in an environment where a supervisor is
in the vicinity, not necessarily in the same room, but close by in the vicinity of the work area,
and would require no reading at greater than a fifth grade level.” Tr. 60-61. The VE testified that
based on those limitations none of Plaintiff’s past work would be applicable. Tr. 62. The VE
identified a “reduced range of light unskilled work” that would be available. Id. Examples
included: cleaner, DOT number 323.687-014, light, SVP of 2, unskilled, approximately 1,000 in
South Carolina, 180,000 in the national economy; laundry garment bagger, DOT number
920.687-018, light, SVP of 1, lowest level of unskilled, 750 in South Carolina, 27,000 in the
national economy; hand folder, DOT number 589.687-014, light, SVP of 2, unskilled, 550 in
South Carolina, 55,000 in the national economy. Tr. 62-63.
The ALJ asked the VE to “assume all of those same abilities and limitations, but . . . add
that the individual should not have concentrated exposure to extremes of temperatures or
humidity . . . . And instead of occasional interaction with the public and team-type with coworkers . . . consider no interaction with the public and no team-type interaction with coworkers.” Tr. 63. The VE testified that the “no contact with customers” limitation would not
preclude the work he identified, but the “no team work, even on an occasional basis” would
preclude all work. Tr. 63-64.

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Plaintiff’s counsel asked the VE if the three occupations he identified required a normal
attention span. Tr. 64. The VE responded that “[i]f by ‘normal’ you mean that the individual is
able to have attention and concentration for a two-hour period of time, yes, that’s required.” Id.
Citing to a psychologist’s report from 2003,5 Plaintiff’s counsel asked if an individual “in the
bottom five percent of the United States in the ability to employ visual images and thinking and
to process visual material efficiently” would be able to perform the jobs cited by the VE. Tr. 6768.

The VE stated that he would have to ask the psychologist what was meant by processing

visual or written images, but the VE opined that an individual in the fifth percentile would not be
able to interact, interpret signage, read, or make judgments “so under those circumstances,
obviously, they couldn’t do any work.” Tr. 68. The VE agreed with counsel that “an individual
who does not have the ability to complete a normal workday and work week without
interruptions from psychologically based symptoms and is not able to perform at a consistent
pace without an unreasonable number in length of rest period, could not perform these
occupations[.]” Tr. 68-69. Counsel asked if “any impairment in the ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances
would preclude work in the three occupations[.]” Tr. 69. The VE responded that “if they can’t
perform a task for any given period of time, they obviously could not do any type of work.” Id.
Counsel asked the VE if he were to “combine the perceptual and motor limitations with a full
scale IQ that is in the borderline range, would that further limit the individual’s ability to perform
the occupations” and the VE responded: “No, because they’re unskilled.” Tr. 70.

5

On April 15, 2003, John B. Bradley, Ph.D., conducted a psychological evaluation of Plaintiff
upon referral by the S.C. Department of Vocational Rehabilitation Disability Determination
Section to determine Plaintiff’s level of intellectual, academic, and social functioning. Tr. 48084.
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II.

Discussion
A.

The ALJ’s Findings

In her September 27, 2013, 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
25, 2011, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: mild osteophyte
encroachment at C5/6, borderline intellectual disability, depressive
disorder, anxiety disorder, and obesity (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
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 unskilled, light work as defined
in 20 CFR 416. 967(b) except no lifting and/or carrying over 20 pounds
occasionally and 10 pounds frequently; no climbing of ladders, ropes, or
scaffolds; no more than occasional stooping, crouching, kneeling,
balancing, crawling or climbing of stairs or ramps; with no more than
occasional direct interaction with the public or “team-type” interaction
with co-workers; no complex, detailed decisions; no requirement to adapt
to more than simple, gradual changes in the work place; a supervisor in the
vicinity; and no reading at greater than a 5th grade level.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on July 10, 1964 and was 47 years old, which is
defined as a younger individual age 18-49, 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.

Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 CFR 416.968).

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the

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national economy that the claimant can perform (20 CFR 416.969 and
416.969(a)).
10.

The claimant has not been under a disability, as defined in the Social
Security Act, since August 25, 2011, the date the application was filed (20
CFR 416.920(g)).

Tr. at 14-23.
B. Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that SSI benefits are available to individuals who otherwise satisfy
certain criteria not at issue here and are “disabled,” defined as being:
. . .unable 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 twelve 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, 461 n.2 (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;6 (4) whether such impairment prevents claimant from performing past relevant work
6

The Commissioner’s regulations include an extensive list of impairments (“the Listings” or
“Listed impairments”) the Agency considers disabling without the need to assess whether there
are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20
C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §
416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the
Listed impairments for at least one year, she will be found disabled without further assessment.
20 C.F.R. § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must
establish that his impairments match several specific criteria or be “at least equal in severity and
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(“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).
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. § 416.920(a), (b); Social Security Ruling (“SSR”) 82–62 (1982). The claimant bears the
burden of establishing his 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).

duration to [those] criteria.” 20 C.F.R. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31
(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).
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2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner of Social Security 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 at 290 (citing
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court’s function is not to “try [these cases] de novo, or resolve mere conflicts in the
evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v. Bowen, 849
F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)).
Rather, the court must uphold the Commissioner’s decision if it is supported by substantial
evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to
assure there is a sound foundation for the Commissioner’s findings, and that her conclusion is
rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th
Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that
decision must be affirmed “even should the court disagree with such decision.” Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C.

Analysis

Plaintiff asserts the ALJ (1) erred in her analysis of the treating physician opinions, (2)
erred in her analysis of Plaintiff’s credibility, (3) erred in her residual functional capacity

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(“RFC”) determination, and (4) erred in her Step Five evaluation. Pl.’s Br. 1, ECF No. 14. The
Commissioner submits that substantial evidence supports the ALJ’s decision that Plaintiff was
not disabled. Def.’s Br. 2, ECF No. 15.
1.

Treating Physicians’ Opinions

Plaintiff asserts the ALJ made several errors in her analysis of the opinions of Dr.
Lundvall and Dr. Gunter as it relates to the medical evidence.
Social Security Regulation 96-2p provides that if a treating source’s medical opinion is
“well-supported and ‘not inconsistent’ with the other substantial evidence in the case record, it
must be given controlling weight[.]” See also 20 C.F.R. § 416.927(c)(2) (providing treating
source’s opinion will be given controlling weight if well-supported by medically-acceptable
clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence
in the record); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding a physician’s
opinion should be accorded “significantly less weight” if it is not supported by the clinical
evidence or if it is inconsistent with other substantial evidence).
The Social Security Administration typically accords greater weight to the opinion of a
claimant’s treating medical sources, because such sources are best able to provide “a detailed,
longitudinal picture” of a claimant’s alleged disability. See 20 C.F.R. § 416.927(c)(2). However,
“the rule does not require that the testimony be given controlling weight.” Hunter v. Sullivan,
993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Rather, “[c]ourts evaluate and weigh medical
opinions pursuant to the following non-exclusive list: (1) whether the physician has examined
the applicant, (2) the treatment relationship between the physician and the applicant, (3) the
supportability of the physician’s opinion, (4) the consistency of the opinion with the record, and
(5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d at 654; 20 C.F.R. §

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416.927(c). In reviewing the ALJ’s treatment of Plaintiff’s treating physicians, the court is
focused on whether the ALJ’s opinion is supported by substantial evidence. The court is not to
“undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the [Commissioner].” Craig, 76 F.3d at 589.
In her brief to the court Plaintiff argues that the “conclusions of Dr. Lundvall and Dr.
Gunter are supported by their treatment notes.” Pl.’s Br. 5. Plaintiff sets forth various test results
and treatment notes from other psychologists and counselors and asserts that “[t]he point of all
the discussion as to treatment notes is to demonstrate that Dr. Lundvall and Dr. Gunter treated
Plaintiff in accordance with acceptable medical standards, which is the criterion for invoking the
Treating Physician Rule.” Id.
a. Listing-Level Impairments
Plaintiff asserts the “ALJ erred in stating that no treating physician has found Listing
level impairments.” Pl.’s Br. 11. As noted by the Plaintiff, both of her treating psychiatrists
found that she met two separate listings, Listing 12.04 and Listing 12.06. Id. The Commissioner
argues that “it is clear from the ALJ’s detailed and thorough discussion about the findings of Drs.
Ludvall [sic] and Gunter (Tr. 18-20) that this was a mere scrivener’s error that did not impact the
ALJ’s listing analysis.” Def.’s Br. 15, n.4. The Commissioner contends that substantial evidence
supports the ALJ’s finding that Plaintiff’s mental impairments do not meet or equal a listing. Id.
at 11. Plaintiff counters that the ALJ’s omission “is not a scrivener’s error, but an error in
analysis” noting that the ALJ cites only to State Agency doctors in support of her decision with
no reference to Dr. Lundvall and Dr. Gunter. Pl.’s Reply 3, ECF No. 16.
Social Security regulations require that all medical opinions in a case be considered. 20
C.F.R. § 416.927(b). “Medical opinions are statements from physicians and psychologists or

15

other acceptable medical sources that reflect judgments about the nature and severity of [a
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what
[the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(2). Statements that a patient is “disabled” or “unable to
work” or meets the Listing requirements or similar statements are not medical opinions, but
rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183
at *2 (July 2, 1996). “However, opinions from any medical source on issues reserved to the
Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the
case record that may have a bearing on the determination or decision of disability, including
opinions from medical sources about issues reserved to the Commissioner.” Id. at *3.
At Step Three of the sequential evaluation process the ALJ determined that although
Plaintiff had severe impairments, they did not meet the criteria of any listed impairment. Tr. 15.
The ALJ went on to state the following:
No treating or examining physician has mentioned findings equivalent in severity
to the criteria of any listed impairment, nor does the evidence show medical
findings that are the same or equivalent to those of any listed impairment.
Id. The ALJ then considered whether Plaintiff’s mental impairments met the criteria of Listings
12.04 and 12.06. Based on the July 20, 2012 assessment by State agency psychologist Samuel
Goots, Ph.D. and Plaintiff’s 2011 Function Report, the ALJ determined that Plaintiff had no
more than moderate limitations in activities of daily living; social functioning; and concentration,
persistence or pace. Tr. 15-16 (citing exs. C5A and C8E, found at Tr. 128, 296). The ALJ also
determined Plaintiff had experienced no episodes of decompensation, and the evidence failed to
satisfy the paragraph “C” criteria of the listings. Tr. 16.

16

As noted by Plaintiff, the ALJ’s statement that no treating physician had mentioned
findings equal to the severity of the listings was error. However, the undersigned notes that in
considering Plaintiff’s RFC the ALJ discussed the PRTFs completed by Drs. Lundvall and
Gunter, noting that both doctors indicated Plaintiff’s depression and anxiety met Listings 12.04
and 12.06. Tr. 18. The ALJ gave little weight to these opinions finding that they are not
supported by the doctors’ “own treatment records, or of the overall documented evidence of
record.” Id. The ALJ found that “[d]espite their assessments of three episodes of decompensation
of extended duration, the evidence does not document need for in-patient or other extensive or
aggressive treatment of an episode of decompensation of extended duration.” Tr. 19 (citing exs.
C3F, C8F, C20F and C21F, treatment records of Drs. Lundvall and Gunter found at Tr. 368-409,
447-55, 527-36, and 537-43). The ALJ noted that Plaintiff was seen by the doctors “no more
frequently than every 2-3 months, which does not support finding of marked or extreme mental
difficulties.” Id. Further, the ALJ noted that “[w]hile Dr. Gunter found ‘marked’ limitations, she
found the claimant did not meet ‘A’ criteria for anxiety or depression and noted no other mental
disorder.” Id.
While the undersigned agrees with Plaintiff that the ALJ erred in stating no doctors found
she met the criteria for a listing, this error is harmless as the ALJ, in making her listings analysis,
properly evaluated the evidence as required by the regulations. See SSR 96-5p, 1996 WL 374183
at *2-3 (clarifying that while opinions from medical sources on issues reserved to the
Commissioner must not be ignored, they are “never entitled to controlling weight or special
significance”); see Tanner v. Comm’r of Soc. Sec., 602 F. App’x. 95, 101 (4th Cir. 2015) (finding
an ALJ’s error to be harmless where it was “highly unlikely, given the medical evidence of
record, that a remand to the agency would change the Commissioner’s finding of non-

17

disability”); Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming the ALJ’s decision
when “there is no question but that he would have reached the same result notwithstanding his
initial error”).
b. Frequency of Treatment
Plaintiff alleges the ALJ “erred in supporting her conclusion of nondisability on the
ground that psychiatric visits were no more than every two or three months.” Pl.’s Br. 11 (citing
ALJ Decision at Tr. 19). As discussed in the previous section, in discussing Drs. Lundvall and
Gunter’s opinions the ALJ noted that Plaintiff’s treatment records showed her to be stable on her
“medication/counseling regimen” and she was seen by the doctors “no more frequently than
every 2-3 months.” Tr. 19. The ALJ made this observation in support of her determination that,
with regard to meeting the criteria for a listing, that level of treatment did not support a “finding
of marked or extreme mental difficulties.” Id. The ALJ’s decision that Plaintiff was not disabled
since August 25, 2011, was not based simply on that one observation, but on her evaluation of
the record under the five-step sequential evaluation process. See Tr. 14-23. This allegation of
error by Plaintiff is without merit.
c. Rejection of Opinions Based on Non-compliance
Plaintiff next alleges that the ALJ “erred in rejecting the treating psychiatrists in part
because Plaintiff was not compliant with relaxation techniques and assertiveness skills, and had
poor construction of boundaries.” Pl.’s Br. 12 (citing ALJ Decision at Tr. 18-19).
The ALJ attributed little weight to the opinions of Dr. Lundvall and Dr. Gunter finding
that their opinions were “not supported by their own treatment records, or of the overall
documented evidence of record.” Tr. 18. The ALJ noted that the treatment records “showed no
worsening of the claimant’s condition although she was not compliant with relaxation

18

techniques, assertiveness skills, and poor construction of boundaries; but show that she is stable
on her medications and she continued to report that her medications were helping her.” Tr. 1819. The ALJ did not, as Plaintiff alleges, reject the doctors’ opinions because Plaintiff was noncompliant. The ALJ found that despite Plaintiff’s non-compliance the records showed that her
condition was stable and not as severe as the opinions set forth in the doctors’ PRTFs. This
allegation of error by Plaintiff is also without merit.
d. Rejection of GAF Scores
Plaintiff argues the “ALJ erred in rejecting the GAFs of 50 on the ground that the new
DSM V no longer has GAFs.” Pl.’s Br. 14. Plaintiff references the ALJ’s acknowledgment that
the DSM V went into effect on July 1, 2013, and also notes that every treatment note scoring her
GAF at 50 was prior to July 2013, and the ALJ’s decision “was only issued in September 2013.”
Id.
Regarding her consideration of Plaintiff’s GAF scores, the ALJ explained as follows:
I also note that throughout the record, treatment providers have documented
global assessment of functioning (GAF) scores, which indicate severe limitations
or symptoms. It is acknowledged that a GAF rating is a medical opinion as
defined in 20 CFR §§ 404.1527(a)(2) and 416.927(a)(2). I therefore consider GAF
scores with all of the relevant evidence in the case file and weigh a GAF rating as
required by 20 CFR §§ 404.1527(a)(2), 416.927(a)(2), and SSR 06-03p, while
keeping the following in mind: The GAF score is unlike most other opinion
evidence we evaluate because it is a rating. As with other opinion evidence, a
GAF score needs supporting evidence to be given much weight. By itself, the
GAF score cannot be used to “raise” or “lower” someone’s level of function, as
the score is only a snapshot opinion about the level of functioning. Unless the
clinician clearly explains the reasons behind his or her GAF rating, and the period
to which the rating applies, it does not provide a reliable longitudinal picture of
the claimant’s mental functioning for a disability analysis.
Therefore, following a review of the evidence of record, I give little weight to the
scores given by the treating sources supporting the finding of disability, as the
reasons behind each GAF score were not clearly explained. Moreover, I take
administrative notice that the Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition, which became effective July 1, 2013, dropped the use of

19

the GAF for several reasons, including its conceptual lack of clarity (i.e.,
including symptoms, suicide risk, and disabilities in its descriptors) and
questionable psychometrics in routine practice.
Tr. 20. The ALJ did not reject Plaintiff’s GAF scores because the new DSM V no longer uses
GAF scores. The ALJ specifically stated that she gave little weight to the scores because “the
reasons behind each GAF score were not clearly explained.” Tr. 20. This allegation of error is
meritless.
e. Failure to Follow Treating Physician Rule
Citing to 20 CFR § 404.1512(d), Plaintiff asserts that in rejecting the two treating sources
the ALJ violated this regulation by failing to recontact her treating physician if she found the
treating source’s opinion insufficient.7 Pl.’s Br. 14. Under the regulation the ALJ was required to
“recontact medical sources ‘[w]hen the evidence we receive from your treating physician or
psychologist or other medical source is inadequate for us to determine whether you are
disabled.’” McCoy v. Astrue, No. CA 1:10-3139-RBH-SVH, 2012 WL 1015785, at *17 (D.S.C.
Feb. 10, 2012) report and recommendation adopted, No. 1:10-CV-3139-RBH, 2012 WL
1015773 (D.S.C. Mar. 23, 2012) (citing to 20 C.F.R. § 404.1512(e)). Here, the ALJ confirmed at
the administrative hearing that all documents pertaining to the case were received into evidence.
Tr. 31-32. “The ALJ reviewed the evidence presented and did not conclude that the evidence was
insufficient to render a disability determination. Consequently, it was unnecessary for [her] to
recontact medical sources.” McCoy v. Astrue, 2012 WL 1015785, at *17.
Plaintiff also appears to argue the ALJ erred in not giving controlling weight to the
opinions of her treating physicians. The regulations provide that a treating source’s opinion will
7

Given that this case is a claim for SSI the proper regulation is 20 CFR § 416.912. This
regulation was modified on February 23, 2012, and the requirement of the adjudicator to contact
the treating physician was removed. 77 Fed. Reg. 10651 (Feb. 23, 2012). This modification
occurred after Plaintiff’s claim was filed and the regulation remains binding on the
Commissioner.
20

be given controlling weight if well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record. 20
C.F.R. § 416.927(c)(2). However, the ALJ has the discretion to give less weight to the opinion of
a treating physician when there is “persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d
171, 178 (4th Cir. 2001). Social Security Ruling 96-2p requires that an unfavorable decision
contain specific reasons for the weight given to the treating source’s medical opinion, supported
by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight. In undertaking review of the ALJ’s treatment of a claimant’s
treating sources, the court focuses its review on whether the ALJ’s opinion is supported by
substantial evidence.
As required by SSR 96-2p, the ALJ’s decision contained specific reasons for the weight
given to the opinions of Dr. Lundvall and Dr. Gunter. See Mellon v. Astrue, No. 4:08–2110–
MBS, 2009 WL 2777653, at *13 (D.S.C. Aug. 31, 2009) (“[S]o long as the narrative opinion is
sufficien[tl]y detailed and cogent on the ultimate issues for the reviewing court to follow the
ALJ’s logic and reasoning and supported by substantial evidence in the record, then the lack of
specific findings on more subordinate issues . . . does not require reversal.”). The ALJ
determined the opinions were not supported by the treatment records and contrary to the doctors’
opinions Plaintiff’s treatment records showed that there was no worsening of Plaintiff’s
condition, that she was stable on her medication, and that there was no need for in-patient or
other extensive treatment. Tr. 18-19. The undersigned finds that Plaintiff’s allegation that the
ALJ failed to properly consider the opinions of Dr. Lundvall and Dr. Gunter to be without merit.

21

The ALJ articulated sufficient reasons for assigning less-than-controlling weight to their
opinions.
2.

Credibility Determination

Plaintiff asserts the “ALJ erred in rejecting credibility by improper use of the two-part
symptom test” because although the ALJ found that Plaintiff has an objective medical condition
that could reasonably support some alleged symptoms, the ALJ “never explains which ones.”
Pl.’s Br. 17. Plaintiff also contends the ALJ did not comply with the mandatory discussion
requirements of SSR 96-7p. Id. at 18. The Commissioner argues that substantial evidence
supports the ALJ’s credibility determination. Def.’s Br. 17-18.
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,
1996 WL 374186; 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. This part of the ALJ’s analysis
requires her to weigh Plaintiff’s complaints against “all the available evidence, including
[Plaintiff’s] medical history, medical signs, and laboratory findings,” as well as “any objective
medical evidence of pain” and “any other evidence related to the severity of the impairment,
such as evidence of [Plaintiff’s] daily activities, specific descriptions of the pain, and any

22

medical treatment taken to alleviate it.” Craig, 76 F.3d at 595 (internal quotation marks and
citations omitted).
If the ALJ rejects a claimant’s testimony about a claimant’s pain or physical condition, he
must explain the basis for such rejection to ensure 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; see Mickles v. Shalala, 29 F.3d 918, 927
(4th Cir. 1994) (“Although a claimant’s allegations about her pain may not be discredited solely
because they are not substantiated by objective evidence of the pain itself or its severity, they
need not be accepted to the extent they are inconsistent with the available evidence, including
objective evidence of the underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges she suffers . . . .”).
Here, the ALJ identified the applicable law and regulations with regard to assessing pain,
symptoms, and credibility. Tr. 20. The ALJ determined that Plaintiff’s mild osteophyte
encroachment at C5/6, borderline intellectual disability, depressive disorder, anxiety disorder,
and obesity were severe impairments that could be expected to cause some of the symptoms
Plaintiff alleged.8 Tr. 14, 21. See Craig, 76 F.3d at 591-96. In the first prong of the two-step pain
and credibility analysis the ALJ discussed Plaintiff’s hearing testimony describing her
symptoms. Id. As noted by the ALJ, Plaintiff testified that she had attempted to secure a
8

As noted by the Commissioner, “Plaintiff does not challenge any of the ALJ’s findings with
respect to her physical impairments.” Def.’s Br. 3. Accordingly, this Order considers only those
allegations of error relating to Plaintiff’s mental impairments.
23

commercial driver’s license but could not pass the test, she could not pass the tests for her GED,
she was involved in a motor vehicle accident that affected her neck, she could not remember a lot
and her nerves “bothered” her, she had problems dealing with people and liked to stay to herself,
she could not relax because her back and legs hurt, she has problems reading and cannot spell
well, she could stand and walk for only 10-15 minutes at a time, she could lift about three to ten
pounds, she takes too much medication to watch her grandchildren, and she does household
chores but at her own pace. Tr. 20-21. The ALJ noted that Plaintiff’s obesity “may be considered
a ‘severe’ impairment” but found there was “no evidence her obesity has resulted in
cardiovascular complications, coronary artery disease, or pulmonary problems. There is no
evidence her obesity significantly affects her ability to use her extremities or hands for fine
manipulation.” Tr. 21. The ALJ determined, “[a]fter careful consideration of the evidence” that
Plaintiff’s medically determinable impairments could reasonably be expected to cause some of
her alleged symptoms. Id.
At step two of the credibility analysis, continuing the analysis of Plaintiff’s subjective
complaints the ALJ found that the Plaintiff’s “statements concerning the intensity, persistence,
and limiting effects of these symptoms are not entirely credible for the reasons explained in this
decision.” Id. In discussing the severity of Plaintiff’s impairments at step two of the sequential
evaluation process the ALJ described Plaintiff’s self-reported ADLs as follows: “she makes her
bed, washes the dishes, cooks a couple of times a week, dusts, cleans the bathroom, and does
other household chores, watches television, takes care of the pets, reads, plays cards, takes care
of a 4-year-old grandchild, walks, does grocery and household shopping, and drives.” Tr. 15
(citing ex. C8E, Plaintiff’s October 2011 Function Report-Adult). As part of her credibility

24

analysis the ALJ also discussed Plaintiff’s allegations regarding her back pain and noted the
absence of medical evidence showing problems with her lumbar spine. Id.
As required by SSR 96-7, the ALJ fully explained the reasons for partially discounting
Plaintiff’s subjective claims, including references to the record medical evidence. The ALJ noted
the lack of objective medical evidence to support Plaintiff’s allegation of an inability to work due
to complications from obesity or back pain. Tr. 21. See 20 C.F.R. § 416.929 (“Objective medical
evidence . . . is a useful indicator to assist us in making reasonable conclusions about the
intensity and persistence of your symptoms . . . .”). Additionally, the ALJ considered other
evidence in the record including the treatment notes of Plaintiff’s treating and examining sources
and “credible findings relating to any subjective symptoms.” Tr. 22 (emphasis in original). The
ALJ concluded that Plaintiff’s “impairments do not preclude all work” and the RFC “is
supported by the objective clinical findings, the reports of treating physicians, and the claimant’s
level of functioning.” Id.
The court is to consider whether the Commissioner’s decision is supported by substantial
evidence and is free from legal error. See 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. The
court has considered Plaintiff’s challenges and has reviewed the record, including all records
specifically referenced by Plaintiff in her brief. Based on this review and applicable law, the
court finds the ALJ’s credibility analysis is supported by substantial evidence and was
sufficiently specific. The ALJ discussed the two-part test for evaluating pain and analyzed the
entire case record. Tr. 20-22. Substantial evidence supports the ALJ’s credibility determination.
To the extent that Plaintiff attempts to point to selective records that may support her subjective
complaints, the court may not substitute its judgment for the Commissioner’s and finds that the
ALJ’s conclusions are within the bounds of the substantial evidence standard. See Craig, 76 F.3d

25

at 595 (stating that a claimant’s subjective complaints of pain itself or its severity “need not be
accepted to the extent they are inconsistent with the available evidence, including objective
evidence of the underlying impairment, and the extent to which that impairment can reasonably
be expected to cause the [symptoms] the claimant alleges she suffers”); Hunter v. Sullivan, 993
at 35 (finding ALJ may properly consider inconsistencies between a plaintiff’s testimony and the
other evidence of record in evaluating the credibility of the plaintiff’s subjective complaints).
Plaintiff’s arguments do not convince the court that the ALJ’s decision is erroneous or
not based on substantial evidence. In the credibility analysis and other places in the decision, the
ALJ addressed relevant evidence concerning Plaintiff’s ADLs and their impact on her claims.
E.g., Tr. 15-16, 18, 20-21. Considering the ALJ’s review of Plaintiff’s ADLs in conjunction with
the balance of her credibility determination, the court finds no error. The Commissioner’s
decision is supported by substantial evidence. See Johnson v. Barnhart, 434 F.3d at 658 (noting
that a claimant’s routine activities were inconsistent with her complaints); Blalock v. Richardson,
483 F.2d at 775 (indicating that even if the court disagrees with the Commissioner’s decision, the
court must uphold it if it is supported by substantial evidence). Furthermore, the ALJ was able to
observe the demeanor and determine the credibility of the claimant; “the ALJ’s observations
concerning these questions are given great weight.” Shively v. Heckler, 739 F.2d 987, 989 (4th
Cir. 1984). The credibility determination is supported by substantial evidence.
3.

RFC Determination

Plaintiff asserts the ALJ “erred by coming up with her RFC before she assessed
credibility of symptoms.” Pl.’s Br. 22. Plaintiff also alleges the ALJ failed to properly conduct a
function-by-function assessment of Plaintiff’s ability to do work-related activities. See Pl.’s Br.
23-25. As noted by Plaintiff in her Reply Brief, the Commissioner does not discuss whether the

26

ALJ conducted a function-by-function comparison of the RFC. Pl.’s Reply Br. 11. Plaintiff
suggests that the ALJ’s RFC “comes out of the blue.” Id.
Social Security Ruling 96-8p provides that the “RFC assessment must first identify the
individual’s functional limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 CFR
404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” 1996 WL 374184, at *1. The functions
listed in paragraphs (b), (c), and (d) of the regulations address different impairments and
abilities. Paragraph (b) discusses physical abilities. Although ALJ discussed Plaintiff’s physical
limitations, as noted earlier, see n.8, that is not at issue in this case. Paragraph (d) discusses other
types of impairments “such as skin impairment(s), epilepsy, impairment(s) of vision, hearing or
other senses, and impairment(s) which impose environmental restrictions [which] may cause
limitations and restrictions which affect other work-related abilities.” 20 C.F.R. § 416.945(d).
That paragraph is also inapplicable here. Paragraph (c) provides that when assessing a Plaintiff’s
mental abilities the ALJ will “first assess the nature and extent of your mental limitations and
restrictions and then determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental activities, such as limitations in
understanding, remembering, and carrying out instructions, and in responding appropriately to
supervision, coworkers, and work pressures in a work setting, may reduce your ability to do past
work and other work.” 20 C.F.R. § 416.945(c).
Social Security Ruling 96-8p requires:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform

27

sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
1996 WL 374184, at *7. That Ruling further provides that “[t]he RFC assessment must include a
discussion of why reported symptom-related functional limitations and restrictions can or cannot
reasonably be accepted as consistent with the medical and other evidence.” Id. It is widely held
that ALJs are not required to specifically discuss and analyze every piece of evidence in the case
in their narrative opinions so long as it is possible for the reviewing court to realize that all
relevant evidence was considered, though not written about, in reaching the ultimate decision.
Phillips v. Barnhart, 91 F. App’x 775, 780 n.7 (3d Cir. 2004) (“[T]he ALJ’s mere failure to cite
specific evidence does not establish that the ALJ failed to consider it.”); Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998) (“Although required to develop the record fully and fairly, an ALJ is not
required to discuss every piece of evidence submitted.”); Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005) (finding that “there is no rigid requirement that the ALJ specifically refer to
every piece of evidence in his decision, so long as the ALJ’s decision . . . is not a broad
rejection” insufficient to enable the reviewing court to conclude that the ALJ considered the
claimant’s medical condition as a whole).
Reviewing the record in this case as a whole, the undersigned finds the ALJ’s
determination is sufficiently detailed and is supported by substantial evidence. Contrary to
Plaintiff’s suggestion that the RFC came “out of the blue,” the ALJ discussed claimant’s RFC for
several pages, Tr. 16-22, including prior ALJ determinations and the reports of State agency medical
consultants, Tr. 19, 21. In a 2005 decision, ALJ Morgan found that Plaintiff had the RFC to perform
unskilled, sedentary work. See Tr. 106. In a 2010 decision, ALJ Pope determined Plaintiff had the

28

RFC for limited light work and was capable of performing her PRW as a poultry worker. See Tr. 145,
149. On December 1, 2011, State agency consultant, Janet Boland, Ph.D., made the following
determination after conducting a Mental Residual Functional Capacity Assessment:
Due to [claimant’s] mental conditions documented on the PRTF, she may have
difficulty sustaining her concentration and pace on complex tasks. However, she
should be able to attend to and perform simple tasks without special supervision. She
can attend work regularly, but may miss an occasional day due to her mental
conditions. She can relate appropriately to supervisors and co-workers, however she
may be better suited for jobs that do not require regular work with the general public.
She can make simple work-related decisions and occupational adjustments, adhere to
basic standards for hygiene and behavior, protect herself from normal work-place
safety hazards and use public transportation.
Tr. 118. On July 20, 2012, State agency consultant Samuel Goots, Ph.D., made the following
determination on reconsideration of Plaintiff’s claim:
This claimant’s mental condition is not currently of listing level severity but does
impose moderate functional limitations without totally precluding work activities.
She can understand, retain and follow simple instructions and can concentrate well
enough to complete simple tasks with ordinary supervision. She would have
moderate difficulty with more detailed instructions and complex tasks. She could
complete a normal workweek with an occasional interruption due to her mental
condition. She would function best in a work setting with limited contact with the
general public and minimal interaction with coworkers and supervisors. She could
avoid common, work-related hazards.
Tr. 134.
The ALJ identified Plaintiff’s mental impairments of borderline intellectual disability,
depressive disorder, and anxiety disorder. Tr. 14. In her listings analysis the ALJ considered
Plaintiff’s mental impairments under the “B” criteria of the listings but noted:
The limitations identified in the “paragraph B” criteria are not a [RFC] assessment
but are used to rate the severity of mental impairments at steps 2 and 3 of the
sequential evaluation process. The mental [RFC] assessment used at steps 4 and 5 of
the sequential evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in paragraph B of the adult
mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).
Therefore, the following [RFC] assessment reflects the degree of limitation I have
found in the “paragraph B” mental function analysis.
Tr. 16.

29

The ALJ cited to treatment notes that documented Plaintiff “was able to complete daily tasks
at home, including cooking and cleaning.” Tr. 18 (citing to ex. C3F, treatment notes from Lexington
County Mental Health Center). The treatment notes also indicated that in March 2012 Plaintiff
“reported doing well with her medications, sleep was generally good, her mood fair, and she could
not remember when she last took Restoril.”9 Id. The ALJ discussed, but gave little weight to, the
opinions of Drs. Lundvall and Gunter set forth in their PRTFs. Tr. 18-19. The ALJ noted that while
she “carefully considered these opinions and the decrease in GAF estimates, the actual treatment
records show the claimant’s condition to be quite stable on medication/counseling regimen.” Tr. 19.
The ALJ discussed Plaintiff’s hearing testimony when she responded to questions by stating that her
mental condition was better during the past couple of years and “she now testified that she likes
people and gets along with people; she just does not like crowds.” Id. Based on this testimony the
ALJ did not find that ALJ Pope’s “finding of ‘no’ work with the public or team-type interaction is
currently supported.” Id. The ALJ also considered other portions of Plaintiff’s testimony indicating
that she had trouble passing tests for a commercial driver’s license and for the GED, she could not
remember a lot and her nerves bothered her, she had problems dealing with people and liked to stay
to herself, and that she had problems reading and cannot spell well. Tr. 20-21. The ALJ concluded
that based on the “overall evidence” Plaintiff “would be limited to unskilled work with no more than
direct interaction with the public or ‘team-type’ interaction with co-workers. No work involving
complex, detailed decisions; no requirement to adapt to more than simple, gradual changes in the
work place; a supervisor in the vicinity; and no reading at greater than a 5th grade level.” Tr. 21.

In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the court stated that “remand may be
appropriate . . . where an ALJ fails to assess a claimant’s capacity to perform relevant functions,

9

Restoril belongs to a group of drugs called benzodiazepines. Restoril is used to treat insomnia
symptoms, such as trouble falling or staying asleep. See http://www.drugs.com/restoril.html (last
visited Feb. 8, 2016).
30

despite contradictory evidence in the record, or where other inadequacies in the ALJ’s analysis
frustrate meaningful review.” Id. at 637. Here, unlike Mascio, the ALJ addressed conflicting
evidence and the court is able to meaningfully review how the ALJ arrived at her conclusion.
As to Plaintiff’s argument that the ALJ erred because she came up with her RFC before
assessing the credibility of Plaintiff’s symptoms, the court finds any such error to be harmless. See
Mascio at 639. While the ALJ set forth her RFC determination at Step 4, see Tr. 16, the undersigned
considers this to be a header for her discussion of the medical evidence and Plaintiff’s symptoms. As
indicated above, the court finds the ALJ properly analyzed Plaintiff’s credibility. After making the
credibility determination, the ALJ set forth her RFC assessment based on the “overall evidence.” Tr.
21. Accordingly, Plaintiff’s allegations of error regarding the RFC assessment are without merit.

4.

VE’s Findings

Plaintiff’s final argument is that the “ALJ erred in the Step 5 evaluation by ignoring the
findings of the vocational expert.” Pl.’s Br. 26. Plaintiff asserts the ALJ failed to resolve
conflicts in the evidence resulting from Plaintiff’s cross examination of the VE. Id. at 27.
Plaintiff also faults the ALJ for not discussing the reports of psychologists Noelker and
Bradley.10 Id. at 29. The Commissioner asserts the ALJ properly relied on the VE’s testimony.
Def.’s Br. 20.

10

The undersigned notes that the report of Dr. Noelker (made for Department of Social Services)
was in November 2000 and the report of Dr. Bradley was in April 2003—both well outside of
Plaintiff’s current SSI filing date and amended alleged onset date of August 25, 2011. As noted
by the ALJ, two prior ALJ decisions in 2005 and 2010 determined Plaintiff was not disabled and
after the 2010 decision, aside from GAF scores, there was “no corresponding evidence of actual
worsening in her condition as shown by her functioning, treatment, observations, or actual
findings during mental health examinations.” Tr. 19. The court is not considering these prior
decisions as res judicata to Plaintiff’s current claim. However, as the ALJ noted, as suggested by
Plaintiff’s response at the hearing to a question regarding the effectiveness of her medications, it
appears “that her mental condition was better during the past couple of years, it appears that her
condition has actually improved somewhat.” Id.
31

“[I]n order for a vocational expert’s opinion to be relevant or helpful, it must be based
upon a consideration of all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of claimant’s impairments.” Walker v. Bowen, 889
F.2d 47, 50 (4th Cir. 1989) (citation omitted). Social Security Ruling 00–4p provides in pertinent
part:
When a VE or VS [vocational specialist] provides evidence about the
requirements of a job or occupation, the adjudicator has an affirmative
responsibility to ask about any possible conflict between that VE or VS evidence
and information provided in the DOT. In these situations, the adjudicator will:
Ask the VE or VS if the evidence he or she has provided conflicts with
information provided in the DOT; and
If the VE’s or VS’s evidence appears to conflict with the DOT, the adjudicator
will obtain a reasonable explanation for the apparent conflict.
When vocational evidence provided by a VE or VS is not consistent with
information in the DOT, the adjudicator must resolve this conflict before relying
on the VE or VS evidence to support a determination or decision that the
individual is or is not disabled. The adjudicator will explain in the determination
or decision how he or she resolved the conflict. The adjudicator must explain the
resolution of the conflict irrespective of how the conflict was identified.
SSR 00–4p, 2000 WL 1898704, *4.
Plaintiff asserts that “there is no job in the DOT which has all of the mental limitations
added by the ALJ to her RFC.” Pl.’s Br. 26. Plaintiff contends the ALJ failed to explain how she
resolved this conflict. Id. Plaintiff bases this alleged conflict on testimony she elicited from the
VE on cross-examination related to the findings of the State agency doctors. Id. at 27. The
Commissioner argues that “Plaintiff misconstrues the [VE’s] testimony in stating that the state
agency consultants’ opinions precluded all work.” Def.’s Br. 20. Plaintiff responds that the
Commissioner has not met her burden of proof at Step Five. Pl.’s Br. 11-12.

32

The VE testified that an individual with the RFC described by the ALJ could perform
work at the light, unskilled level and identified three jobs as examples. Tr. 62. The VE stated
there were no conflicts with his testimony and the DOT. Tr. 63. On cross-examination Plaintiff
asked the VE if he would “agree that any impairment in the ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances would
preclude the three occupations?” Tr. 69. The VE qualified his answer by stating that “if they
can’t perform a task for any given period of time, they obviously could not do any type of work.”
Id. Plaintiff asserts that the findings of the State agency doctors who determined that Plaintiff
would have moderate impairment in this area support an assumption “that ‘moderate’ constitutes
‘any’ limitation.” Pl.’s Br. 27. The court disagrees. First, the VE did not agree categorically with
Plaintiff’s interpretation of the ability to perform the named occupations. Second, although the
State agency consultants determined Plaintiff had moderate limitations, they also specifically
stated that Plaintiff was capable of working. Dr. Boland stated Plaintiff “can attend work
regularly, but may miss an occasional day due to her mental conditions.” Tr. 118. Dr. Goots
determined Plaintiff “could complete a normal workweek with an occasional interruption due to her
mental condition.” Tr. 134. Plaintiff’s argument here is very similar to that posed by the plaintiff and
found to be without merit in a recent Fourth Circuit opinion:

For the first time on appeal, Ms. Tanner argues that the agency did not meet its
burden of proof regarding her ability to perform alternative work, because the
vocational expert concluded that, given her functional limitations, there were no
jobs that she could perform. In so contending, however, Ms. Tanner overlooks the
circumstance that the vocational expert only reached that conclusion upon
questioning from her counsel, and that her counsel posed hypothetical questions
that included severe functional limitations not supported by the medical evidence.
Indeed, when the ALJ posed hypotheticals to the VE that set out all of Ms.
Tanner’s credible limitations, the VE responded that Ms. Tanner could perform
the jobs of packer, assembler, marker pricer, sorter, and inspector.

33

Tanner v. Comm’r of Soc. Sec., 602 F. App’x 95, 101 (4th Cir. 2
v
o
,
1
2015). As th court foun in
he
nd
Tanner, here the ALJ’s hypothet
h
tical set out Plaintiff’s c
credible limit
tations and t VE iden
the
ntified
three job Plaintiff could perfor There is no apparen unresolved conflict b
bs
c
rm.
s
nt
between the VE’s
testimony and the DOT for the ALJ to addr
y
D
ress and see an explan
ek
nation. SSR 00-4p, 2000 WL
0
1898704 at *4 (finding that if the VE’s evid
dence appear to conflict with the DO the ALJ will
rs
t
OT,
J
obtain a reasonable explanation for the appa
e
arent conflic (emphasi added). Bu cf., Pears v.
ct)
is
ut
son
Colvin, No. 14-2255, 2015 WL 9204335, at *6 (4th Cir. Dec. 17, 20
N
9
015) (finding that becaus the
g
se
VE’s tes
stimony that the plaintif could ful
t
ff
lfill requirem
ments of cer
rtain occupa
ations appar
rently
conflicted with the DOT the AL was requi
D
LJ
ired to elicit an explanat
t
tion from th VE to re
he
esolve
the appar conflict)
rent
).
III.

Conclusion
C
The court’s function is not to subst
T
f
n
titute its ow judgment for that of the ALJ, b to
wn
t
f
but

determin whether th ALJ’s de
ne
he
ecision is su
upported as a matter of fact and la Based o the
f
aw.
on
foregoing the under
g,
rsigned finds that the Commissione performed an adequa review o the
C
er
d
ate
of
whole rec
cord and tha the decisio is support by substa
at
on
ted
antial eviden
nce.
Accordingly, pursuant to the power of the court t enter a jud
A
o
to
dgment affirm
ming, modif
fying,
or revers
sing the Com
mmissioner’s decision with remand in Social Se
s
w
ecurity actio under Se
ons
ection
1631(c)(3 of the Act, 42 U.S.C. Sections 40
3)
05(g) and 13 83(c)(3), the Commissio
e
oner’s decisi is
ion
affirmed.
.
IT IS SO ORD
T
DERED.

February 11, 2016
y
Florence, South Caro
olina

Kayman D. West
ni
United S
States Magistrate Judge

34