Brown v. Commissioner of the Social Security Administration

Filing 48

ORDER re 1 Complaint - Social Security, filed by Crystal Weaver Brown: It is hereby ORDERED that the Commissioner's decision be affirmed. Signed by Magistrate Judge Kaymani D West on 8/22/2016. (gnan )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Crystal Weaver Brown,
Plaintiff,

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

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C/A No. 5:15-0321-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 (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 Disability Insurance Benefits (“DIB”) and 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 applied for DIB and SSI in January 2012,1 pursuant to Titles II and XVI of the
Act, 42 U.S.C. §§ 401-403, and 380-83, et seq., alleging she became disabled on August 9, 2007.
Tr. 190-93. Her applications were denied initially, Tr. 95-98, and upon reconsideration, Tr. 1311

Plaintiff applied for SSI and DIB previously in 2008; however, her applications were denied.
The date of the prior unfavorable decision was June 10, 2010. Tr. 49-60. Therefore, the period
under consideration for the decision now under review is from the date following the June 10,
2010 decision.

34. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 146-49, which
was held on August 15, 2013, Tr. 25-45. In a decision dated September 27, 2013, the ALJ found
that Plaintiff was not disabled within the meaning of the Act. Tr. 13-24. The Appeals Council
denied Plaintiff’s request for review on December 18, 2014, making the ALJ’s decision the final
decision for purposes of judicial review. Tr. 1-6. Plaintiff brought this action seeking judicial
review of the Commissioner’s decision in a Complaint filed on January 23, 2015. ECF No. 1.
B.

Plaintiff’s Background

Plaintiff was born in December 1973. Tr. 211. At the time of the August 2013 hearing
she was 39 years old. Tr. 28. Plaintiff completed high school; she has prior work history as a
corrections officer, restaurant manager, and therapeutic assistant. Tr. 216-17. In her form
disability report, Plaintiff indicated she stopped working on August 9, 2007, because of her
medical conditions, which she listed as depression, four herniated discs, bone and joint pain, and
nerve damage. Tr. 216.
C.

The Administrative Proceedings
1.

Plaintiff’s Testimony

Plaintiff appeared with her non-attorney representative for an administrative hearing on
August 15, 2013. Tr. 25-45. The ALJ asked Plaintiff if she was familiar with the term res
judicata. When Plaintiff stated she was unfamiliar with the term the ALJ explained that in her
case, because she had a prior decision in 2010, the ALJ would find Plaintiff had no disability
before June 10, 2010, unless Plaintiff had some reason for him not to apply that decision. Tr. 2829. Plaintiff’s representative indicated she planned to adhere to the alleged onset date of August
9, 2007, and to argue the 2010 decision should not apply. Tr. 29.
In response to questions from her representative, Plaintiff testified that she had an on-thejob accident in 2007. Tr. 29. Prior to that she had asthma, in 1997 and 1999 she had surgery on

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her left foot, and in 2006 she had surgery on her right foot. Tr. 30. Plaintiff also stated that she
had problems with her back and had been seen by several doctors. Tr. 30-31.
The ALJ resumed questioning of Plaintiff and asked her what she felt was the main
reason she was unable to work. Tr. 36. Plaintiff responded, “Pain.” Id. When asked pain from
what condition, Plaintiff responded: “I have bone pain. I have a right foot that’s broke, and when
I had the surgery, the bond didn’t reconnect where they put the pins at, so that’s very painful.”
Tr. 36-37. Plaintiff testified that she did not know when the pin broke, but she “started noticing
pain about three years ago. . . .” Tr. 37. Plaintiff stated that she saw a doctor the prior month who
recommended additional surgery to repair the broken pin. Id. Plaintiff testified that she sees other
doctors to help with pain management. Plaintiff stated that she gets shots in her back and was
trying to get a nerve block but her insurance company was “fighting” her. Tr. 38. Plaintiff
testified that she was “waiting to get in to see Dr. McKiken2 so he [could] fix the foot” but would
not be able to see him until December because he was “booked up.” Id. Plaintiff testified she was
also seeing another doctor for her arthritis and muscle pain. Id.
Plaintiff stated that during a typical day she “[m]ostly lay in a bed” but sometimes she or
her children have doctors’ appointments. Tr. 39. Plaintiff stated that lately she has had to cancel
appointments more often because she has not felt well. Id. Plaintiff testified that between 9:00
a.m. and 5:00 p.m. she spends five hours in bed. She stated that she tries to get up to help her
mother cook by putting a chair next to the stove. Tr. 39-40. Plaintiff stated that she was teaching
her children how to help with the laundry and that she is able to do the shopping. Tr. 40. Plaintiff
testified that she drove five hours in a typical week and that driving generally included going to
the grocery store or to doctors’ appointments. Id. Plaintiff stated that she did not watch television
or work on a computer because it hurt to sit up. Id.
2

Plaintiff was seen by a nurse practitioner at MUSC Health in June 2013 for issues related to
right foot pain. The nurse practitioner referred Plaintiff to Dr. McKibbin. Tr. 466-67.
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Plaintiff’s representative noted a doctor’s report indicating that injections were stopped
because they were no longer giving Plaintiff relief—not that Plaintiff was being non-compliant.
Tr. 41.
2.

Lay Witness’s Testimony

Plaintiff’s mother, Walena Brothers Weaver, also testified at the hearing. Tr. 41. She
testified that she does most of the household chores because Plaintiff is unable to do them. Tr.
42. The ALJ had no questions for Mrs. Weaver.
D.

The ALJ’s Findings

In his September 27, 2013 decision, the ALJ made the following findings of fact and
conclusions of law:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2012.

2.

The claimant has not engaged in substantial gainful activity since June 11,
2010, the period under consideration (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe impairment: levoscoliosis,
degenerative disc disease, and arthritis (20 CFR 404.1520(c) and
416.920(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant can climb, stoop,
kneel, crouch or crawl occasionally and balance frequently. The claimant
is also limited to frequent overhead reaching with her upper extremities.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on December 21, 1973 and was 33 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
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8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because the Medical-Vocational Rules support a finding that the
claimant is “not disabled,” whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from August 9, 2007, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

Tr. 18-24.
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:
inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months[.]
42 U.S.C. § 423(d)(1)(A); see also 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
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Listings; (4) whether such impairment prevents claimant from performing past relevant work
(“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. § 404.1520, § 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. § 404.1520(a)(4) and § 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. Subpart P, § 404.1520(a), (b); § 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).

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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 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, 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 her 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

The gist of Plaintiff’s assertions is that she suffers from severe mental limitations of
depression and anxiety and the ALJ erred in giving little weight to the only mental residual
functional capacity (“RFC”) assessment in the record and in failing to include these limitations in

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making his RFC determination. Pl.’s Br. 1-2, ECF No. 39. Plaintiff also asserts that she is unable
to sit for six hours or walk for two hours and therefore, under the Medical-Vocational
Guidelines, she should be deemed disabled due to the erosion of the availability of jobs she can
perform. Id. at 2. Finally, Plaintiff contends that new evidence submitted to the Appeals Council
related to the hardware in her right foot undermines the findings upon which the ALJ based his
decision. Id. at 3. The Commissioner contends that substantial evidence supports the ALJ’s
finding that Plaintiff was not disabled and the ALJ properly determined Plaintiff’s RFC. Def.’s
Br. 10-11, ECF No. 40.
The court notes that the ALJ determined that because an earlier administrative decision
denying benefits became final on June 10, 2010, the period under consideration for purposes of
his decision began on June 11, 2010. Tr. 16. Therefore, Plaintiff’s allegations related to events
before June 11, 2010 will not be considered.
1.

Plaintiff’s Mental Impairments
a. ALJ’s Evaluation of Plaintiff’s Mental Functional Capacity

Plaintiff asserts that the “ALJ erred by failing to follow SSA regulations with respect to
evaluating mental functional capacity for work resulting from pain.” Pl.’s Br. 2. The
Commissioner argues that the objective medical evidence does not support Plaintiff’s claim that
she is disabled due to depression and that the ALJ adequately explained his decision regarding
her mental functioning. Def.’s Br. 12.
The regulations provide steps that must be applied in evaluating mental impairments. See
20 C.F.R. §§ 404.1520a; 416.920a. The ALJ must follow a “special technique” to determine the
severity of a claimant’s mental impairments. 20 C.F.R. §§ 404.1520a(a); 416.920a(a). Under the
special technique, the ALJ first evaluates the claimant’s pertinent symptoms, signs, and
laboratory findings to substantiate the presence of a medically determinable mental impairment.

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20 C.F.R. §§ 404.1520a(b)(1); 416.920a(b)(1). Then the ALJ rates the claimant’s degree of
functional limitation resulting from the impairment. 20 C.F.R. §§ 404.1520a(b)(2);
416.920a(b)(2). The rating determines whether the claimant’s impairment is severe or not severe.
20 C.F.R. §§ 404.1520a(d); 416.920a(d). The ALJ considers four broad functional areas in order
to rate a claimant’s degree of functional limitation: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§
404.1520a(c)(3); 416.920a(c)(3); see id. Pt. 404, Subpt. P, App. 1, § 12.00C. The ALJ considers
factors such as “the quality and level of [the claimant’s] overall functional performance, any
episodic limitations, the amount of supervision or assistance [the claimant] require[s], and the
settings in which [the claimant is] able to function.” 20 C.F.R. §§ 404.1520a(c)(2);
416.920a(c)(2); see id. Pt. 404, Subpt. P, App. 1, § 12.00C–H. The ratings for the first three
functional areas—activities of daily living; social functioning; and concentration, persistence, or
pace—consist of a five-point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. §§
404.1520a(c)(4); 416.920a(c)(4). The fourth functional area—episodes of decompensation—uses
a four-point scale: none, one or two, three, and four or more. Id.
In analyzing Plaintiff’s mental impairments, the ALJ determined that Plaintiff’s
depression/anxiety did not constitute a severe impairment because it “no more than minimally
affects the claimant’s ability to perform work related activity.” Tr. 19. The ALJ noted that
Plaintiff “had never sought psychiatric treatment or counseling, and has never been hospitalized
[or] treated by a mental health facility.” Id. As required by the regulations, in his decision the
ALJ documented application of the proper technique by incorporating pertinent findings and
conclusions as to the degree of limitation in each of the functional areas. The ALJ noted:
Additionally, although the claimant has been assessed with depression by her
primary care provider, this condition has not resulted in more than: mild
restriction in her activities of daily living; mild limitations in her social
functioning; mild deficiencies of her concentration, persistence, or pace; or any
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episodes of deterioration or decompensation in work or work-like settings. As a
result, the claimant’s depression has no more than a minimal effect on the
claimant’s ability to perform basic work activities and is a non-severe impairment.
Of note, the claimant did not allege a mental impairment in her prior filing and
reported that she was doing well with her chronic depression, one month after she
began treatment.
Id.
b. ALJ’s Consideration of Mental Health Opinions
Plaintiff also disputes the ALJ’s decision to accord “little weight” to the mental
assessment of Dr. Lish. Pl.’s Br. 1. The Commissioner contends that Plaintiff’s reliance on the
opinion of a one-time examiner is faulty. Def.’s Br. 12.
The regulations require that all medical opinions in a case be considered; the opinion of a
treating physician is generally entitled to more weight than the opinion of a non-treating
physician. 20 C.F.R. §§ 404.1527; 416.927. However, it is only given controlling weight if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. §§ 404.1527(c)(2);
416.927(c)(2). Under the regulations, if an ALJ determines that a treating physician’s opinion is
not entitled to controlling weight, he must then consider the weight to be given to the physician’s
opinion by applying five factors identified in the regulation: (1) the length of the treatment
relationship and the frequency of examinations; (2) the nature and extent of the treatment
relationship; (3) the evidence with which the physician supports his opinion; (4) the consistency
of the opinion; and (5) whether the physician is a specialist in the area in which he is rendering
an opinion. 20 C.F.R. §§ 404.1527(c)(1)-(5); 416.927(c)(1)-(5); see also Johnson, 434 F.3d at
654. However, statements that a patient is “disabled,” “unable to work,” meets the listing
requirements, or similar assertions are not medical opinions. These are administrative findings
reserved for the Commissioner’s determination. SSR 96–5p, 1996 WL 374183, at *5.

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On February 24, 2012, R. Allen Lish, Psy. D., of New Hope PPS, LLC, completed a
Disability Mental Status Consultation Report on Plaintiff. Tr. 348-50. After obtaining
background information from Plaintiff regarding her history and functionality, Dr. Lish
administered Plaintiff the Mini-Mental Status Exam and she scored 23 out of 30 possible points.
Tr. 349. Regarding Plaintiff’s capabilities Dr. Lish noted that Plaintiff’s “struggles do limit her
activities; but she does seem capable of independent living with proper treatment of her mental
health issues.” Id. Dr. Lish diagnosed Plaintiff with “Mood Disorder Due to a Medical Condition
with Major Depressive-Like Episode” and a GAF score of 35. Tr. 350. In his summary Dr. Lish
concluded that Plaintiff was “severely depressed at this time and is not a good candidate for
employment.” Id. His prognosis was “guarded even with proper treatment and compliance.” Id.
The ALJ found that Dr. Lish’s opinion was “inconsistent with the claimant’s own
description of her abilities and with the findings and opinion of her treating physician.” Tr. 19.
The ALJ referenced the medical source statement completed on June 26, 2012, by Plaintiff’s
treating physician, Dr. Christopher Wimberly of Summerville Family Practice Associates that
found no deficits or limitations related to Plaintiff’s depression. Id. (citing ex. B9F, located at Tr.
435). The ALJ concluded: “Because Dr. Lish’s opinion appears to be based upon the claimant’s
subjective complaints and is inconsistent with the claimant’s own reported abilities and the
opinion of her treating physician, it is given little weight.” Tr. 19. See Johnson, 434 F.3d at 657
(finding physician’s opinion that was based on the claimant’s subjective complaints could be
rejected). In assessing Plaintiff’s RFC the ALJ noted that “the state agency psychological
consultant’s opinion that the claimant did not have a severe mental limitation is consistent with
the findings of the primary care provider of no mental limitations.” Tr. 22. See 20 C.F.R. §§
404.1527(e)(1)(i),(2)(i); 416.927(e)(1)(i),(2)(i) (State agency medical and psychological
consultants “consider the evidence in [a claimant's] case and make findings of fact about medical

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issues ... [including the claimant’s] residual functional capacity,” and they “are highly qualified
physicians, psychologists, and other medical specialists who are also experts in Social Security
disability evaluation.”); see, e.g., Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)
(finding that where non-examining sources’ opinions are reasonably consistent with the record as
a whole, an ALJ may assign significant weight to them); Johnson, 434 F.3d at 656–57 (same);
Stanley v. Barnhart, 116 F. App’x 427, 429 (4th Cir. 2004) (same). Furthermore, even if the
allegedly contradictory evidence Plaintiff highlights could support a different result, the court’s
role is not to second-guess the ALJ’s findings. Rather, when “conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled, the responsibility for that
decision falls on the . . . ALJ[ ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal
quotation omitted).
Upon review of the record, the undersigned finds that the ALJ’s conclusion is supported
by substantial evidence. The ALJ considered the evidence, the medical opinions of record, and
the opinions contained in third-party function reports in making his functional assessment.
“Simply because the plaintiff can produce conflicting evidence which might have resulted in a
contrary interpretation is of no moment.” Washington v. Astrue, 659 F. Supp. 2d 738, 753
(D.S.C. 2009) (citing Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). See generally
Jackson v. Astrue, 8:08-2855-JFA, 2010 WL 500449, at *10 (D.S.C. Feb. 5, 2010) (“[A]n ALJ is
not required to provide a written evaluation of every piece of evidence, but need only minimally
articulate his reasoning so as to make a bridge between the evidence and its conclusions.”)
(internal quotation and citations omitted). Accordingly, the undersigned finds Plaintiff’s
argument on this point is without merit because the ALJ performed the special technique for
assessing the severity of a claimant’s mental impairments, and adequately documented his
evaluation of Plaintiff’s mental impairments and opinions regarding her mental health.

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2. Reliance on the Medical-Vocational Guidelines
Plaintiff asserts that she is unable to sit for six hours or walk for two hours and therefore,
under the Medical-Vocational Guidelines she should be considered disabled. Pl.’s Br. 2. The
Commissioner contends “the ALJ reasonably found that Plaintiff’s objective medical evidence
supported a light and sedentary RFC, and did not support her subjective complaints of
disability.” Def.’s Br. 17.
The ALJ determined that Plaintiff had the RFC “to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant can climb, stoop, kneel, crouch or crawl
occasionally and balance frequently.” Tr. 20. He also limited Plaintiff to “frequent overhead
reaching with her upper extremities.” Id. In making his finding regarding the existence of jobs
Plaintiff could perform, the ALJ noted that the additional limitations had “little or no effect on
the occupational base of unskilled light work,” and a finding of “not disabled” was appropriate
under Medical Vocational Rules 202.21. Tr. 23.
The Social Security Regulations define RFC as “what [a claimant] can still do despite
[her] limitations.” 20 C.F.R. § 404.1545(a)(1); § 416.945(a)(1). The Commissioner is required to
“first assess the nature and extent of [the claimant’s] physical limitations and then determine [the
claimant’s] residual functional capacity for work activity on a regular and continuing basis.” 20
C.F.R. § 404.1545(b); § 416.945(b).
In assessing Plaintiff’s RFC, the ALJ considered the entire record and gave legitimate
reasons for his assessment. The ALJ specifically cited to the medical evidence in the record,
noting a July 2010 MRI of Plaintiff’s lumbar spine, treatment records of Plaintiff’s orthopedist
from September and October of 2011 and March and May of 2012, and the results of a March
2012 consultative examination. Tr. 21. The ALJ also considered the medical opinions and noted
the “limitation to occasional climbing, stooping, kneeling, crouching, or crawling takes into

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account the claimant’s allegations of back pain and her limited range of motion in her lumbar
spine.” Tr. 22. The ALJ “also considered the opinions provided in the third party function reports
provided by the claimant’s husband, mother, children, and friends.” Id. The ALJ concluded:
In sum, the above [RFC] assessment for limited light work is supported by the
medical evidence of the claimant’s degenerative disc disease, arthritis, and
levoscoliosis, as well as the opinions of the state agency consultants, which have
been accorded great weight. In light of the claimant’s musculoskeletal
impairments, I find that the claimant can only occasionally stoop, kneel, and
crawl and climb ladders. However, in light of the aforementioned inconsistencies,
particularly the evidence that the claimant’s symptoms were controlled with
medication and therapy, and her retention of full strength and normal gait, I
cannot find the claimant’s allegation that she is incapable of all work activity to
be credible.
Tr. 22. The ALJ’s RFC assessment is consistent with the State agency physicians, objective
medical evidence, and other record evidence. The ALJ has the duty to weigh the evidence,
resolve material conflicts in the record, and decide the case accordingly. See Richardson v.
Perales, 402 U.S. at 399. The ALJ met his statutory and regulatory obligation to assess all of the
evidence in the record. This court may not reweigh the evidence or substitute its own judgment
for the Commissioner’s, even if it finds the evidence is susceptible to more than one rational
interpretation. See Hays, 907 F.2d at 1456. For the foregoing reasons, the undersigned finds that
the ALJ properly accounted for the effects of Plaintiff’s physical impairments and substantial
evidence supports the ALJ’s conclusion that Plaintiff retained the RFC to perform a range of
light work with additional restrictions.
Plaintiff further alleges that her mental limitations affect her ability to maintain attention
and concentration which, in turn, makes her nervous. Pl.’s Br. 1. Plaintiff also asserts that she is
“limited by certain fumes which can cause [her] to have severe asthma attacks.” Id. Plaintiff
claims that her ability to work in the category of light work “is eroded by [her] combined
exertional and non-exertional limitations considered severe.” Id. The Commissioner argues that
“[b]ecause the ALJ properly found that Plaintiff had no limitations that would significantly
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reduce the occupational base, he was entitled to rely on the Grids to direct a finding of not
disabled.” Def.’s Br. 19.
Once an ALJ determines that a claimant cannot return to her prior work, the burden of
proof shifts to the Commissioner to establish that the claimant could perform other work that
exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g); 416.920(f)-(g); Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may
sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive
reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional
impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, §
200.00(e); Gory v. Schweiker, 712 F.2d 929, 930–31 (4th Cir. 1983) (stating that exclusive
reliance on the grids is appropriate in cases involving exertional limitations). “A nonexertional
impairment is one which is medically determinable and causes a nonexertional limitation of
function or an environmental restriction.” SSR 85–15, 1985 WL 56857, at *2.
As noted in section 1 above, the ALJ properly found that Plaintiff’s mental impairments
did not constitute a severe impairment. The ALJ also discussed Plaintiff’s asthma (in addition to
other non-severe impairments) and found that “treatment notes showed that her symptoms were
well controlled with medication.” Tr. 19. The ALJ found Plaintiff’s asthma to be a non-severe
impairment and noted:
[T]here is no documentation that these minor medical problems have imposed
recurring vocationally restrictive limitations for a period of 12 continuous months.
Consequently, these minor medical problems have imposed no more than a
combination of slight abnormalities, which have had no more than a minimal
effect on the claimant’s ability to work.
Id. Additionally, the ALJ determined that he would not include the state agency medical
consultant’s limitation on exposure to pulmonary irritants finding it was not needed because “the
record does not reflect any problems with asthma after the alleged onset date.” Tr. 22. The ALJ

15

did not find that any of Plaintiff’s non-severe impairments caused any limitations to her RFC and
Plaintiff has failed to demonstrate that this decision was not supported by substantial evidence.
Accordingly, the ALJ’s use of the grids as a framework to find that Plaintiff was not disabled is
not error. See Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir. 1984) (finding that although
claimant also suffered from depression and anxiety neurosis, his nonexertional impairments did
not affect his residual functional capacity therefore application of the grids was appropriate).
3. New Evidence Submitted to the Appeals Council
Plaintiff asserts that “new evidence submitted to the Appeals Council undermined the
findings upon which the ALJ decision rested.” Pl.’s Br. 3. Plaintiff asserts that this alleged “new
and material” evidence proves that her former physician’s treatment of her foot was unsuccessful
and resulted in leaving her in pain. Id. The Commissioner argues that the “extra-record evidence
submitted by Plaintiff would not reasonable (sic) change the outcome of this case as it fails to
show work-related mental or physical limitations or fully corroborate Plaintiff’s complaints.”
Def.’s Br. 18.
Applicable law indicates that when a claimant requests review of an ALJ decision, the
Appeals Council “may deny or dismiss the request for review, or it may grant the request and
either issue a decision or remand the case to [the ALJ].” 20 C.F.R. § 404.967. The regulations
permit claimants to submit additional evidence that was not before the ALJ when requesting
Appeals Council review. 20 C.F.R. §§ 404.968, 404.970(b). In such cases, the regulations require
that the Appeals Council first determine if the submission constitutes “new and material”
evidence that “relates to the period on or before the date of the [ALJ’s] hearing decision.” 20
C.F.R. § 404.970(b). See Wilkins v. Sec’y, Dep’t of HHS, 953 F.2d 93, 96 (4th Cir. 1991).
Evidence is new if it is not duplicative or cumulative. Williams v. Sullivan, 905 F.2d 214, 216
(8th Cir. 1990). Evidence is material if there is a reasonable possibility that the evidence would

16

have changed the outcome. See Borders v. Heckler, 777 F.2d 954, 956 (4th Cir. 1985). When
such new and material evidence is submitted, the Appeals Council then “evaluate[s] the entire
record including the new and material evidence.” Id.; see also Felts v. Astrue, No. 1:11CV00054,
2012 WL 1836280, at *1 (W.D. Va. May 19, 2012) (quoting Wiltons v. Sec’y, Dep’t of HHS, 953
F.2d 93, 96 (4th Cir. 1991)). After this evaluation, if the Appeals Council finds that the ALJ’s
“action, findings, or conclusion is contrary to the weight of the evidence currently of record,” id.,
it will grant the request for review and either issue its own decision on the merits or remand the
case to the ALJ. 20 C.F.R. §§ 404.967, 404.977(a), 404.979. But, if, upon consideration of all the
evidence (including any new and material evidence), the Appeals Council finds that the ALJ’s
action, findings, or conclusions are not contrary to the weight of the evidence, it can simply deny
the request for review. Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011). Nothing in the SSA
or the regulations requires the Appeals Council to explain its rationale for denying review. Id.
Where, as here, the Appeals Council considers additional evidence before denying the claimant’s
request for review of the ALJ’s decision, the court must review the record as a whole, including
the new evidence, in order to determine whether substantial evidence supports the ALJ’s
decision. Id. at 707.
Here the Appeals Council received additional evidence from Plaintiff that included
medical records from South Carolina Diagnostic Imaging, Summerville Family Practice, MUSC,
Tri-County Radiology Associates, and Concentra Medical Center. Tr. 5-6 (listing exs. B16FB21F, B23F, B25F-B26F). The Appeals Council noted that it “considered the reasons [Plaintiff]
disagree[s] with the decision and the additional evidence listed on the enclosed Order of Appeals
Council.” Tr. 1. The Appeals Council considered whether the ALJ’s decision was contrary to the
weight of the evidence of record and determined that the information did not provide a basis for
changing the ALJ’s decision. Tr. 2. As for records Plaintiff provided that related to medical

17

treatment in 2014, the Appeals Council found that because the information related to a period of
time after the ALJ’s September 2013 decision it did not affect the decision. Id.
The court finds that the Appeals Council’s determination that the additional evidence that
it made part of the record did not provide a basis for changing the ALJ’s decision was correct.
The radiology report from February 2013 that was submitted to the Appeals Council was the
same report that was provided to the ALJ. Compare Tr. 453 with Tr. 450. That x-ray indicated
there was a “hardware fracture of the compression plate.” Tr. 450. The ALJ noted that result in
his decision. Tr. 21. The ALJ further noted the following:
As to the claimant’s foot pain, radiographic imaging does show hardware fracture.
However, the claimant testified that she had severe foot pain beginning in 2010,
but she did not report it to a treating physician until June 2012, and then did not
follow up after that time. (Exhibit B8F). Further, Dr. Kumar’s findings of normal
gait and full strength (Exhibit B5F) are inconsistent with the claimant’s reports of
debilitating pain and activities of daily living of primarily lying in bed.
Tr. 21-22. Because the ALJ considered the very record Plaintiff asserts would undermine the
basis for his decision, the additional records do not negate the substantial evidence that supports
the ALJ’s decision in this case. Furthermore, other records related to Plaintiff’s foot that were
submitted to the Appeals Council seem to come to a different interpretation than the February
2013 x-ray result. On June 25, 2013, Plaintiff was seen by a nurse practitioner at MUSC
complaining of right foot pain with broken hardware. Tr. 466. Plaintiff stated that in 2005 she
had bunion repair surgery by a podiatrist and for the “last six years she has had a constant
throbbing pain below her two incisions.” Id. The nurse practitioner noted that Plaintiff exhibited
“decreased range of motion, tenderness and bony tenderness” in her right foot and recommended
a referral to a physician, custom orthotics, Achilles tendon-stretching exercises, and a
prescription for a topical anti-inflammatory drug. Tr. 466-67. New x-rays of Plaintiff’s right foot
were completed on December 26, 2013 at MUSC with the following findings:

18

Fro
ontal, lateral, and obliqu views of the right foot demonstrat unchange lateral
ue
t
te
ed
pla and screw fixation at the media aspect of the medial cuneiform a first
ate
w
a
al
and
me
etatarsal art
ticulation. No evidenc of hardw
N
ce
dware comp
plication. T
There is
unc
changed join space narr
nt
rowing invo
olving the la
ateral cuneifo and cub
orm
boid and
the respective metatarsal articulations. There is n evidence of acute fra
eir
e
no
acture or
dis
slocation. Cl toe defo
law
ormities are noted at the second, thir and fourt digits.
n
rd
th
Mi pes planu deformity.
ild
us
.
Tr. 465 (em
mphasis add
ded). These additional re
a
ecords do no contradict the ALJ’s f
ot
findings rela
ative
to his dete
ermination re
egarding Pla
aintiff’s foot pain. Acco
t
ordingly, the undersigne finds that the
e
ed
t
Appeals Council’s trea
C
atment of th additional evidence th Plaintiff submitted d
he
l
hat
does not pres
sent
reversible error.3
III.

Conclusion
The court’s fu
unction is no to substit
ot
tute its own judgment f that of t ALJ, bu to
for
the
ut

e
cision is sup
pported as a matter of f
fact and law Based on the
w.
determine whether the ALJ’s dec
foregoing, the court finds that Pl
f
laintiff has not shown t
that the Com
mmissioner’ decision was
’s
unsupporte by substantial evid
ed
dence or rea
ached throu
ugh applicat
tion of an incorrect le
egal
standard. See Craig, 76 F.3d at 589; see also 42 U.S
a
S.C. § 405(g Therefor it is her
g).
re,
reby
ORDERED that the Co
D
ommissioner’s decision be affirmed
d.
IT IS SO ORD
DERED.

August 22, 2016
Florence, South Caroli
S
ina

D.
Kaymani D West
United Sta Magistr Judge
ates
rate

3

The cour notes that additional records sub
rt
t
bmitted to th Appeals Council from Summerv
he
m
ville
Family Pra
actice dated April 24, 20 and May 24, 2013, reflect that Plaintiff sou
013
y
ught to have her
medication changed because she was “desiring to conce ive.” Tr. 463, 478. Whi pregnanc is
ns
b
ile
cy
not norma consider a disabli condition, the court questions h
ally
red
ing
t
how a perso who testified
on
that she ca barely get out of bed during the day due to he impairme and is in too much p
an
t
d
er
ents
n
pain
to sit up an watch tel
nd
levision or use a comput believes she can care for a baby See Tr. 39-40.
u
ter
e
y.
Neverthele this info
ess,
ormation was not before the ALJ and did not pla a role in h decision that
s
d
ay
his
found Plaintiff was not disabled.
19