Tucker v. Commissioner of the Social Security Administration

Filing 32

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS and ADOPTS the Magistrate Judge's Report and Recommendation [ECF No.26], and Plaintiff's Objections to the Magistrate Judge's Report and Recommendation [ECF No.28] is OVERRULED. The Court AFFIRMS the Acting Commissioners final decision. Signed by Honorable J Michelle Childs on 9/26/2017. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Shelnia Losoyna Tucker,
Plaintiff,

v.
Nancy A. Berryhill,
Acting Commissioner of the
Social Security Administration,1
Defendant.

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Civil Action No.: 5:16-cv-00842-JMC

ORDER

This matter is before the court on Plaintiff Shelnia Losoyna Tucker’s (“Plaintiff”)
Objections to the Magistrate Judge’s Report and Recommendation (“Objections”) (ECF No. 28),
filed on May 30, 2017. Plaintiff filed a Complaint seeking judicial review of the final decision of
the Acting Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
(ECF No. 1.) The Magistrate Judge determined that the Administrative Law Judge (“ALJ”)
performed adequate review of the whole record evidence finding that (1) Plaintiff failed to
establish a good cause for failing to submit additional evidence to the Appeals Council, (2)
Plaintiff’s contention that the ALJ failed to properly evaluate Dr. Kimberly K. Kruse’s opinion
evidence is without merit, and (3) the ALJ applied the proper legal standards in determining
Plaintiff’s residual functional capacity.

(ECF No. 26.) Accordingly, the Magistrate Judge

recommended that the court affirm the Acting Commissioner’s final decision. (Id.)

1

Nancy A. Berryhill became the Acting Commissioner of Social Security (“Acting
Commissioner”) on January 23, 2017. Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is
substituted for former Acting Commissioner Carolyn W. Colvin as a Defendant in this lawsuit.
1

For the reasons set forth below, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation, and AFFIRMS the Acting Commissioner’s final decision.
I. BACKGROUND
On February 14, 2012, Plaintiff filed an application for Social Security benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-433, alleging that she became disabled on
July 18, 2010. (ECF No. 10-2 at 23-34.) At the administrative hearing before the ALJ, Plaintiff
amended her alleged onset date from July 18, 2010 to December 31, 2012. (Id.) After conducting
a hearing regarding Plaintiff‘s application for Social Security benefits, the ALJ determined that
Plaintiff had not been under a disability as defined by the Social Security Act from December 31,
2012, the amended alleged onset date, through September 30, 2016, the date last insured. (Id.)
The ALJ determined that Plaintiff had the following severe impairments: degenerative joint
disease of the bilateral knees and right ankle, carpal tunnel syndrome, rotator cuff syndrome,
obstructive sleep apnea, and obesity. (Id.) However, the ALJ concluded that Plaintiff 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 and 404.1526). (Id.) Furthermore, the ALJ determined that Plaintiff has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) with additional
limits including lifting or carrying up to 20 pounds occasionally and 10 pounds frequently,
standing or walking for approximately 6 hours of an 8-hour work day, and sitting for
approximately 6 hours of an 8-hour workday with normal breaks. (Id.)
On October 15, 2014, Plaintiff requested a review of the ALJ’s decision by the Social
Security Administration's Appeals Council (“Appeals Council”). (ECF No. 10-2 at 19.) On
November 24, 2014, the Appeals Council granted Plaintiff’s request for extension of time before

2

it issued a decision on Plaintiff’s application for Social Security benefits. (Id.) Additionally, the
Appeals Council issued a notice to Plaintiff stating that any more evidence must be sent “within
25 days of the date of this letter” and it would “not allow more time to send information except
for very good reasons.” (ECF No. 10-2 at 11.) This notice also stated that if the Appeals Council
did not hear from Plaintiff within twenty-five (25) days it would assume Plaintiff did not want to
send any more information and would proceed with its action based on the record before the
ALJ. (Id.) However, Plaintiff did not submit any additional evidence by the deadline of
December 19, 2014. While reviewing the ALJ’s decision, the Appeals Council found that the
ALJ’s “assessed residual functional capacity is inconsistent with the hypothetical questions
posed to the vocational expert at the hearing with respect to [Plaintiff’s] environmental and
manipulative limitations.” (ECF No. 10-4 at 69.)
On November 25, 2015, the Appeals Council sent Plaintiff a “Notice of Appeals Council
Action” stating it had granted Plaintiff’s request for review of the ALJ’s decision and determined
that the ALJ’s decision was not supported by substantial evidence, but planned to make a
decision finding that Plaintiff is not disabled. (ECF No. 10-4 at 68-71.) The Appeals Council
stated that it “plans to adopt Findings 1 through 4 and 6 of the Administrative Law Judge
decision, but plans to find that you have the residual functional capacity consistent with the
limitations included in the second hypothetical posed to the vocational expert.” (Id.) The Appeals
Council notified Plaintiff to provide any further evidence within thirty (30) days of the date of
the letter or could request for an appearance before the Appeals Council within thirty (30) days.
(Id.) Plaintiff submitted a handwritten letter dated December 5, 2015 for the Appeals Council’s
consideration. (ECF No. 10-6 at 62.) On January 11, 2016, the Appeals Council issued a decision
finding that Plaintiff was not disabled “at any time through the date of the Administrative Law

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Judge’s decision, September 11, 2014.” (ECF No. 10-2 at 5-9.) The Appeals Council adopted the
ALJ’s findings under steps 1, 2, 3, and 4 of the sequential evaluation, but did not accept the
ALJ’s residual functional capacity assessment and limitations. The Appeals Council stated that it
had reviewed and included Plaintiff’s correspondence dated December 5, 2015 as a supplemental
exhibit. (Id.)
On May 15, 2017, the Magistrate Judge issued a Report recommending that this court
affirm the Acting Commissioner’s decision to deny Plaintiff’s application for Social Security
benefits. (ECF No. 26 at 25.) On May 30, 2017, Plaintiff filed an objection to the Magistrate
Judge’s Report. (ECF No. 28.) In the Objections, Plaintiff states that (1) new medical evidence
faxed to the Appeals Council on September 2, 2015 was not incorporated in its decision, (2) the
Magistrate Judge failed to consider Dr. Kruse’s opinion that Plaintiff was capable of performing
“simple, repetitive tasks” and did not provide details of how the vocational expert’s testimony
supports the ALJ’s determination that Plaintiff can perform semi-skilled work, and (3) the
Magistrate Judge failed to address the ALJ’s findings regarding her obesity and how it limits the
ability to work. (Id.)
On June 8, 2017, the Acting Commissioner filed a response explaining that the court
should overrule Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation.
(ECF No. 30 at 1.) The Acting Commissioner explained that Plaintiff’s Objections generally
reiterate the arguments stated in her initial brief and that the ALJ adequately considered the
vocational expert’s testimony as to Plaintiff’s past relevant work as a childcare worker, which
did not require the performance of work-related activities restricted by her residual functional
capacity. (Id. at 2.)

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II. LEGAL STANDARDS
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976.) The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections
are filed, and reviews those portions which are not objected to for clear error, including those
portions to which only “general and conclusory” objections have been made. See Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); See also Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court
may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 405(g) of the Act provides, “the findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times
as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541,
543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that
substitutes the court’s findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971). The court must uphold the Commissioner’s decision if it is supported by
substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it
does not follow, however, that the findings of the administrative agency are to be mechanically
accepted.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “The statutorily granted right of
review contemplates more than an uncritical rubber stamping of the administrative agency.” Id.

5

“[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to
assure that there is a sound foundation for the [Commissioner’s] findings, and that this
conclusion is rational.” Vitek, 438 F.2d at 1157–58.
III. ANALYSIS
A. The Magistrate Judge’s Review
In the Report, the Magistrate Judge considered Plaintiff’s contentions that her
impairments are more limiting than the ALJ’s assessment. Plaintiff argues that her application
for Social Security benefits should be remanded for the Acting Commissioner’s consideration of
new opinion evidence which was submitted to the Appeals Council on September 2, 2015; that
the Magistrate Judge did not address the ALJ’s failure to properly assess opinion evidence; and
that the ALJ did not explain his findings regarding Plaintiff’s residual functional capacity as
required by SSR 96-8p. (ECF No. 15.)
First, Plaintiff contends that the Appeals Council failed to add to the Supplemental List of
Exhibits a correspondence of September 2, 2015, consisting of a Functional Capacity
Questionnaire completed by Stewart Darby, PA, and a letter from Lisa A. Williams, M. Ed, LPC,
regarding Plaintiff’s mental health treatment. (ECF No. 15 at 13-14.) Plaintiff argues that she
relies on this new evidence faxed to the Appeals Council, which allegedly explains the ALJ’s
concerns regarding the lack of treatment records for her fibromyalgia diagnosis or documentation
of her specific mental health treatment for depression. (Id. at 14.) Plaintiff “asserts that the
evidentiary gap noted by the ALJ has been filled by the evidence that was submitted, but not
included in the record, on September 2, 2015.” (Id. at 15.) However, the Acting Commissioner
argues that because Plaintiff failed to submit the evidence in a timely manner to the Appeals
Council, the Appeals Council “was not required to discuss the evidence or include it in the
record” pursuant to 20 C.F.R. § 404.968(a)-(b). (ECF No. 17 at 18-19.) The Acting
6

Commissioner contends that even if this evidence was timely submitted to the Appeals Council,
Plaintiff would be unable to meet her burden of showing that it was both “new” and “material”
because the submitted documents post-date the relevant period and were nonacceptable medical
sources. (Id. at 19-20.)
The Magistrate Judge explained that this additional evidence has not been made a part of
the Appeals Council’s administrative record. However, this evidence could only be made part of
the record if Plaintiff meets her burden pursuant to sentence six of 42 U.S.C. § 405(g). (ECF No.
26 at 15.) To meet this burden, Plaintiff must show “good cause” for the evidence not having
been made part of the record and demonstrate that the evidence is both “new” and “material.”
See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). Upon evaluating the record evidence, the
Magistrate Judge determined that Plaintiff, through her representative, requested Appeals
Council’s review of the ALJ’s decision on October 14, 2014, and requested “an Appeals Council
BAR CODE that can be used to submit additional evidence.” (ECF No. 26 at 17-18.) Plaintiff
later requested an extension of time to submit documents during this period. (Id.) On November
24, 2014, the Appeals Council granted Plaintiff an additional twenty-five (25) days to submit
more information. (Id.) However, over nine (9) months later, on September 2, 2015, Plaintiff
faxed additional evidence to the Appeals Council that included a functional capacity
questionnaire dated May 26, 2015, and an opinion letter dated June 23, 2015 without providing
any reason for the delay. (Id.)
After reviewing the parties’ briefs, the Magistrate Judge ordered Plaintiff to file a
response to Defendant’s brief and to discuss the issue of timeliness of the new evidence
submitted to the Appeals Council. (ECF No. 26 at 18-19.) In her supplemental briefing, Plaintiff
contends that “the Appeals Council granting an additional 30 days to submit new evidence in

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November, 2015 prevents any argument that evidence submitted to it prior to that date was
submitted untimely.” (Id.) Plaintiff further submits that the Acting Commissioner’s suggestion
regarding untimeliness is post hoc reasoning because the Appeals Council did not indicate the
evidence was untimely, it was not clear the Appeals Council considered the evidence, and there
is no indication that Plaintiff should have “re-submitted” the same evidence after the November
2015 notice. (Id.)
The Magistrate Judge determined that Plaintiff was on constructive notice that the
Appeals Council had not considered the September 2015 evidence nor made it a part of the
record. On November 25, 2015, the Appeals Council issued a notice stating that in granting
Plaintiff’s request for review, it “considered the written record that was before the
Administrative Law Judge and the testimony at the hearing.” (ECF No. 26 at 18-19.) The
Appeals Council informed Plaintiff to “send us more evidence or a statement about the facts and
the law in your case within 30 days of the date of this letter.” The Magistrate Judge explained
that if Plaintiff had any question about the submitted evidence, she could have made an inquiry
to the Appeals Council. (Id.) Therefore, pursuant to sentence six of U.S.C. § 405(g), the
Magistrate Judge concluded that Plaintiff failed to establish good cause for failing to timely
submit the additional evidence to the Appeals Council. (Id.)
Next, the Magistrate Judge concluded that the ALJ determined that the record evidence
supported Plaintiff’s residual functional capacity assessment and that she was capable of
performing her prior related work as a childcare worker. (ECF No. 26 at 22-25.) The Magistrate
Judge found that the ALJ explained his consideration of Dr. Kruse’s one-time examination of
Plaintiff on August 30, 2012, which discusses her allegations of learning problems and
depression. During Plaintiff’s examination, Dr. Kruse had to end the mental status examination

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explaining that Plaintiff’s “performance is invalid due to Ganser responding and a strong
indication of negative impression management was noted.” (ECF No. 10-7 at 34-35.) Hence, Dr.
Kruse did not diagnose Plaintiff, but deferred to her medical record. (Id.) The ALJ explained
that he considered Plaintiff’s symptoms, her medical records, and the opinion evidence. (ECF
No. 10-2 at 26-32.) Furthermore, the ALJ stated that Plaintiff’s “sporadic treatment of acute
complaints is inconsistent with a finding of persistently disabling conditions” because her
“treatment records document minimal findings.” (Id.) Most importantly, no treating source
provided any opinion of Plaintiff’s physical or mental functional capabilities. The ALJ also
stated that he evaluated opinion evidence under the regulatory factors and gave “little weight” to
the September 2012 opinion of Dr. Thomas Motycka because Plaintiff’s “vocational prospects
are outside the area of his expertise.” (Id.) Regarding Dr. Kruse’s evaluation of Plaintiff, the ALJ
explained that “Dr. Kruse did not specifically opine as to the claimant’s ability to perform work
activity.” (Id.)
The Magistrate Judge determined that because Dr. Kruse’s relationship with Plaintiff
was solely for a disability report and not based on a treating relationship, she is considered a nontreating source. 20 C.F.R. § 404.1527(a)(2).2 (ECF No. 26 at 19-22.) Despite this deficiency in
Dr. Kruse’s opinion, the ALJ stated that he “considered the findings contained within Dr.
Kruse’s report, which are consistent with the evidence of record as a whole.” (Id.) The ALJ
concluded that the record evidence supported his residual functional capacity assessment and that
Plaintiff is capable of performing her prior relevant work as a childcare worker. (Id). The

2

Pursuant to 82 FR 5844, the Social Security Administration is no longer required to give
special weight to medical opinions, but this regulation will only apply to claims filed on or after
March 27, 2017. See https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html.
(Last accessed September 19, 2017). The court notes that Dr. Kruse’s medical opinion is dated
August 30, 2012. (ECF No. 10-7 at 33.)
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Magistrate Judge notes Plaintiff stated that Dr. Kruse opined that she believed Plaintiff was
capable of performing simple, repetitive tasks, but the ALJ did not consider that statement to be
an opinion on Plaintiff’s ability to perform work-related activity. Even if Dr. Kruse’s opinion
that Plaintiff was “capable of performing simple repetitive tasks” was a limitation on Plaintiff’s
ability to work, the ALJ explained that Plaintiff’s medical records and testimony were
inconsistent with this limitation. The ALJ also discussed Plaintiff’s ability to be attentive and
concentrate and found that Plaintiff experienced “no more than mild limitations in activities of
daily living, social functioning and concentration, persistence or pace.” (Id.) In addition, the ALJ
explained that Plaintiff’s prior related work was a semi-skilled job and that the vocational expert
testified she “retains the functional abilities necessary to perform her past relevant work as a
childcare worker.” (Id.)
Furthermore, the Magistrate Judge considered Plaintiff’s final allegation that the ALJ did
not explain his residual functional capacity findings as required by SSR 96-8p. (ECF No. 15 at
23.) The Magistrate Judge explained that Plaintiff’s medical history, testimony regarding her
symptoms, and her reported functional abilities were considered in the ALJ’s residual functional
capacity findings. (ECF No. 26 at 23-26.) The ALJ evaluated Plaintiff’s obesity in conjunction
with Plaintiff’s complaints and found that it resulted in functional limitations consistent with his
residual functional capacity assessment. (Id.) Finally, the ALJ indicated that Plaintiff’s 5’11”
height and weight of 220 pounds resulted in a corresponding body mass index of 30.7 which is in
the Level I BMI range of 30.0 to 34.9. (Id.) The ALJ stated that he accounted for Plaintiff’s
obesity in determining her residual functional capacity. (Id.)

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B. Plaintiff’s Response to the Magistrate Judge’s Report
In the Objections, Plaintiff asserts an error set forth by the Magistrate Judge’s
determination concerning her disability claim. First, Plaintiff argues that new evidence about her
medical condition was submitted to the Appeals Council on September 2, 2015, but was not
incorporated in its decision. (ECF No. 28 at 1-2). Second, Plaintiff argues that the ALJ
incorrectly determined that she did not appear to have any significant cognitive difficulties.
However, Dr. Kruse opined she appeared to be of below average intelligence and she may not be
capable of managing her own funds. (ECF No. 28 at 3-6.) Third, Plaintiff argues that the
Magistrate Judge failed to address the ALJ’s findings regarding her obesity and how it limits the
ability to work. (Id. at 6-7.)
Plaintiff initially argues that the ALJ did not resolve any conflict between the state
agency opinions and Dr. Kruse’s opinion because the ALJ did not acknowledge Dr. Kruse’s
findings about Plaintiff’s capability of performing simple, repetitive work. (ECF No. 28 at 3-7.)
However, the Magistrate Judge suggested that the ALJ explained his residual functional capacity
assessment resolves any conflicts in evidence because the state agency chart reviewers found that
Plaintiff had no more than mild limitation in activities of daily living, social functioning, and
concentration, persistence, and pace. (Id.)
Plaintiff further contends that the ALJ failed to explain why he would give more weight
to non-examining chart reviewers as opposed to the findings of an evaluating physician; both
chart reviewers confirmed her condition would allow her to perform simple tasks in a slowerpaced, a lower stress work environment, with limited public contact. However, the Magistrate
Judge apparently supported the ALJ’s decision by stating that the vocational expert testified that
Plaintiff “retains the functional abilities necessary to perform her past relevant work as a

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childcare worker.” (ECF No. 28 at 3-5.) Even though the Magistrate Judge stated that the ALJ
did not consider that statement to be an opinion on Plaintiff’s ability to perform work activity,
she did not explain how this testimony supports the ALJ’s findings that Plaintiff can perform
semi-skilled work and Dr. Kruse’s opinion that Plaintiff was capable of performing simple,
repetitive tasks. (Id.) Finally, Plaintiff argues that the ALJ failed to explain her obesity diagnosis
including limitations in stamina and exertional capabilities in lifting, standing, and walking.
(ECF No. 28 at 6-7). Plaintiff contends that the ALJ recognized her obesity, but he did not
address how it limited her if she could stand still and walk for six hours during an eight-hour
workday. (Id.)
C. The Court’s Ruling
A court may remand a case to the Commissioner to consider additional evidence, but
only if the evidence is new, material, and there is good cause for failure to incorporate that
evidence into a prior proceeding. 42 U.S.C. § 405(g) (sentence six). Melkonyan, 501 U.S. at 97.
In order to justify a remand to consider newly submitted medical evidence, the evidence must
meet the requirements of 42 U.S.C. § 405(g) and Borders v. Heckler, 777 F. 2d 954, 955 (4th
Cir. 1985), superseded by statute, 42 U.S.C. § 405(g), as recognized by Wilkins v. Sec'y, Dept. of
Health and Human Servs., 925 F. 2d 769 (4th Cir.1991).3 In Borders, the Fourth Circuit held that
newly discovered evidence may warrant a remand to the Commissioner if these four
requirements are met: (1) the evidence is relevant to the determination of disability during the

3

The Wilkins court indicated that the Borders’ Court’s four part requirements was superseded by
42 U.S.C. § 405(g). However, the Fourth Circuit has continued to cite Borders as the authority
when a plaintiff requests for the court to remand a Social Security disability claim based on new
evidence and the U.S. Supreme Court has not suggested that Borders is not accurate. See
Washington v. Comm’r of Soc. Sec., 2009 WL 86737, at *5 (E.D. Va. 2009). Upon further
evaluation, the court notes that Plaintiff would not be able to meet the materiality requirement of
a new evidence pursuant to U.S.C. § 405(g).
12

time Plaintiff first filed her application and not simply cumulative; (2) the evidence is material to
the extent that had the new evidence been before the Commissioner its decision “might
reasonably have been different;” (3) there is good cause for Plaintiff’s failure to submit the
evidence when the claim was before the Commissioner; and (4) Plaintiff has presented to the
remanding court “at least a general showing of the nature” of the newly discovered evidence.
Borders, 777 F. 2d at 955.
On September 2, 2015, Plaintiff submitted new medical evidence to the Appeals Council.
According to Plaintiff, the Appeals Council did not make the new evidence part of the
administrative record when it reviewed the ALJ’s decision and only attached as a supplemental
exhibit Plaintiff’s correspondence dated December 5, 2015. As an alternative remedy, Plaintiff
requests a remand of her case to the Acting Commissioner so that the new medical reports may
be properly considered.
After the ALJ’s decision, Plaintiff filed an appeal to the Appeals Council for further
review of her application for Social Security benefits. Plaintiff developed new medical reports
documenting her treatment of physical symptoms, as well as mental health treatment. Plaintiff
apparently faxed a Functional Capacity Questionnaire (Physical) to the Appeals Council dated
May 26, 2015, and signed by Physician’s Assistant Stewart Darby. (ECF No. 15-1 at 1.) Mr.
Darby reports that Plaintiff was diagnosed with “chronic pain/fibromyalgia” and finds Plaintiff’s
prognosis to be “fair.” (Id.) Plaintiff’s signs and symptoms include impaired sleep, depression,
anxiety, muscle weakness, and reduced range of motion. (Id.) Mr. Darby indicates Plaintiff can
stand, walk, and sit for zero-to-two hours in an eight-hour workday, occasionally lift less than 10
pounds, rarely lift 10 pounds, never lift 20 or 50 pounds, occasionally perform fingering,
grasping, and handling during an eight-hour workday, but never stoop, bend, or crouch. (Id.) Mr.

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Darby explained that Plaintiff would frequently experience pain severe enough to interfere with
the attention and concentration needed to perform simple work tasks. (Id.)
Furthermore, a letter from Lisa A. Williams, M. Ed., LPC, dated June 23, 2015, was
apparently faxed to the Appeals Council. This letter states that Plaintiff started outpatient
counseling on February 10, 2015, and participated in seven individual therapy sessions. (ECF
No. 15-1 at 3.) During this period, Plaintiff’s diagnosis was post-traumatic stress disorder and
major depressive disorder. Ms. Williams explained that Plaintiff made limited progress in
treatment, but remained depressed and had “ongoing triggers to her physical abuse [allegedly
from her husband] that hinder her from obtaining and maintaining gainful employment. Based on
her current symptoms, she is currently unable to work and would benefit from some financial
assistance. (Id.) This new evidence was submitted to the court in conjunction with Plaintiff’s
brief. (Id.)
However, the Acting Commissioner argues that Plaintiff failed to submit the evidence
while her claim was before the Appeals Council. (ECF No. 17.) The Acting Commissioner
further argues that even if this evidence was timely submitted to the Appeals Council, Plaintiff
would be unable to meet her burden of showing that it was both “new” and “material” because
the submitted documents post-date the relevant period and were provided by nonacceptable
medical sources. (Id. at 19-20.) As stated above, it appears that the new evidence was faxed on
September 2, 2015, after the initial November 24, 2014 letter allowing for the submission of
additional documents to the Appeals Council. The Appeals Council further notified Plaintiff she
could send more evidence within thirty (30) days of November 25, 2015. Without question, the
new evidence discusses Plaintiff’s fibromyalgia diagnosis and mental health treatment for
depression, which were not addressed in the ALJ’s decision.

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There are four factors Plaintiff must meet in order for the new medical evidence to be
considered by the court. First, the evidence must not be cumulative. Mr. Darby’s Functional
Capacity Questionnaire (Physical), dated May 26, 2015, was relevant at the time of the ALJ's
decision in this case. Furthermore, Ms. William’s report is not cumulative because the letter,
dated June 23, 2015, indicated that Plaintiff received outpatient counselling starting on February
10, 2015. Next, the evidence must be material. However, the opinions found in Mr. Darby and
Ms. Williams’ letters are not material. Plaintiff appears to assert that the opinions in the letters
are material because “the evidentiary gap noted by the ALJ has been filled by the evidence that
was submitted, but not included in the record, on September 2, 2015.” (Id. at 15.) The court
disagrees.
Mr. Darby is a Physician Assistant and not an acceptable medical source. Pursuant to 20
C.F.R. § 416.913, the Social Security Administration establishes as follows the sources that can
provide evidence to establish a medically determinable impairment:
§ 416.913. Medical and other evidence of your impairment(s).
(a) Sources who can provide evidence to establish an impairment. We need
evidence from acceptable medical sources to establish whether you have a
medically determinable impairment(s). See § 416.908. Acceptable medical
sources are—
(1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists. Included are school psychologists, or
other licensed or certified individuals with other titles who perform the same
function as a school psychologist in a school setting, for purposes of establishing
intellectual disability, learning disabilities, and borderline intellectual functioning
only;
(3) Licensed optometrists, for purposes of establishing visual disorders only
(except, in the U.S. Virgin Islands, licensed optometrists, for the measurement of
visual acuity and visual fields only);

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(4) Licensed podiatrists, for purposes of establishing impairments of the foot, or
foot and ankle only, depending on whether the State in which the podiatrist
practices permits the practice of podiatry on the foot only, or the foot and ankle;
and
(5) Qualified speech-language pathologists, for purposes of establishing speech or
language impairments only. For this source, “qualified” means that the speechlanguage pathologist must be licensed by the State professional licensing agency,
or be fully certified by the State education agency in the State in which he or she
practices, or hold a Certificate of Clinical Competence from the AmericanSpeech-Language-Hearing Association.
(d) Other sources. In addition to evidence from the acceptable medical sources
listed in paragraph (a) of this section, we may also use evidence from other
sources to show the severity of your impairment(s) and how it affects your ability
to work or, if you are a child, how you typically function compared to children
your age who do not have impairments. Other sources include, but are not limited
to—
(1) Medical sources not listed in paragraph (a) of this section (for example, nursepractitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and
therapists);
(2) Educational personnel (for example, school teachers, counselors, early
intervention team members, developmental center workers, and daycare center
workers);
(3) Public and private social welfare agency personnel; and
(4) Other non-medical sources (for example, spouses, parents and other
caregivers, siblings, other relatives, friends, neighbors, and clergy).4

The regulation does not require an ALJ to consider the opinion of a Physician’s Assistant.
Even if Mr. Darby and Ms. Williams’ opinions were part of the record before the ALJ at the time
of his decision, it would not have been material because the ALJ was not required to consider the
4

The Social Security Administration included three new kinds of medical sources to the
“Acceptable Medical Sources” list for claims filed on or after March 27, 2017. These medical
sources include Advanced Practice Registered Nurses, Audiologists, and Physician Assistants for
impairments within their licensed scope of practice. See Revisions to Rules Regarding the
Evaluation
of
Medical
Evidence:
See
https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html
(Last
accessed
September 14, 2017).
16

findings and opinions contained therein in making his decision. The ALJ only has discretion to
consider medical evidence provided by Mr. Darby and Ms. Williams to demonstrate Plaintiff’s
diagnosis of “Chronic Pain/Fibromyalgia, Post-Traumatic Stress Disorder, and Depressive
Disorder” and the ALJ made a finding based on the evidence of record. Additionally, the Fourth
Circuit has held that those other than “an ‘acceptable medical source’ do not qualify . . . to make
a ‘medical assessment’ on a Social Security claimant's ‘ability to do work-related activities such
as sitting, standing, moving about, lifting, carrying, handling objects, hearing, speaking and
traveling’ and their assessment can qualify only as a layman's opinion.” Lee v. Sullivan, 945 F.
2d 687, 691 (4th Cir. 1991).
The court need not address the “good cause and the nature of the newly discovered
evidence” requirements given Plaintiff has clearly failed to establish one of the requirements
under Borders. Because the evidence is not material as contemplated under Borders, a remand
under sentence six is not warranted. Plaintiff cannot establish that the new evidence is material
such that it would have changed the ALJ’s determination. A sentence six remand is appropriate
only “when the district court learns of evidence not in existence or available to the claimant at
the time of the administrative proceeding that might have changed the outcome of that
proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990).
Next, the ALJ determined that Plaintiff is capable of performing past relevant work as a
childcare worker. During the administrative hearing, a vocational expert acknowledged
Plaintiff’s past work as a childcare worker as “light and semiskilled, SVP 3.” (ECF No. 10-2 at
77-79.) The ALJ asked the vocational expert to assume a hypothetical individual of the same
age, education, and past work experience as Plaintiff with the following limitations:
Exertionally, they’d be limited to medium work, as that term is defined in the
regulations. This individual would have the following postural limitations. They
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could frequently balance, stoop, kneel, crouch, crawl. They could only
occasionally climb ramps and stairs, could never climb ladders, ropes, or
scaffolds. This individual would have to avoid concentrated exposure to
hazardous machinery and unprotected heights. (Id.)
The ALJ asked if a person with those restrictions could perform any of Plaintiff’s past work. The
vocational expert testified that Plaintiff’s “past work was light, therefore, it would be available
under these limitations” both as Plaintiff performed it and as generally performed. (Id.)
In a second hypothetical, the ALJ asked the vocational expert to “assume all the same
limitations as contained in hypothetical one” and to assume the individual is limited to light work
as defined in the regulations. (Id.) The ALJ indicated that “[a]dditionally, regarding fingering of
objects, that is fine manipulation, I would say no smaller than the size of a paperclip. The
individual would be limited with the light upper extremities to frequently with that one. This
hypothetical individual would be right-handed.” (Id.) The vocational expert testified that all of
Plaintiff’s past work would be available, both as she performed it and as generally performed.
(Id.)
After the administrative hearing, the ALJ made the following findings:
the claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) with additional limits. In particular, the claimant can lift
or carry up to 20 pounds occasionally and 10 pounds frequently. She can stand or
walk for approximately 6 hours of an 8-hour work day and sit for approximately 6
hours of an 8-hour workday with normal breaks. Additionally, the claimant can
frequently balance, stoop, kneel, crouch or crawl. She can occasionally climb
ramps and stairs, but can never climb ladders, ropes or scaffolds. The claimant
must avoid exposure to hazards including dangerous moving machinery and
unprotected heights. The claimant can also perform occasional fingering and fine
manipulation with objects no smaller than a paperclip.
The ALJ explained that Plaintiff’s “sporadic treatment of acute complaints is inconsistent with a
finding of persistently disabling conditions.” (ECF No. 10-2 at 30-33.) The ALJ also noted that
the “treatment records document minimal findings.” (Id.) The ALJ stated that he “carefully

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considered all evidence of record. Notably, no treating source has provided an opinion of the
claimant’s physical or mental functional capabilities.” (Id.) The ALJ noted that “Dr. Kruse did
not specifically opine as to the claimant’s ability to perform work activity” but “considered the
findings contained within Dr. Kruse’s report, which are consistent with the evidence of record as
a whole.” (Id.) The ALJ then determined that the record evidence supported his residual
functional capacity assessment and that Plaintiff is capable of performing her prior relevant work
as a childcare worker. (Id.)
The Magistrate Judge explained that because Dr. Kruse’s relationship with Plaintiff was
solely for a disability report and not based on a patient-doctor relationship, she is considered a
non-treating source. (ECF No. 26 at 21-22); see also 20 C.F.R. § 404.1527(a)(2). Although Dr.
Kruse opined that she believed Plaintiff was capable of performing simple, repetitive tasks, the
ALJ did not consider that statement to be an opinion on Plaintiff’s ability to perform work
activity. Even if Dr. Kruse’s opinion that Plaintiff was “capable of performing simple repetitive
tasks” was in fact a limitation on Plaintiff’s ability to work, the ALJ discussed Plaintiff’s medical
records and testimony that are inconsistent with Plaintiff’s alleged limitations. The ALJ
explained Plaintiff’s ability to sustain attention and concentration and found that Plaintiff
experienced “no more than mild limitations in activities of daily living, social functioning and
concentration, persistence or pace.” (ECF No. 10-2 at 27.) Furthermore, the ALJ explained that
Plaintiff’s past relevant work was a semi-skilled job and that the vocational expert testified that
Plaintiff “retains the functional abilities necessary to perform her past relevant work as a
childcare worker.” (Id. at 33.)
Next, Plaintiff argues that the ALJ should have considered more than Dr. Kruse’s opinion
that Plaintiff could perform semi-skilled work. Dr. Kruse conducted an examination of Plaintiff,

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regarding her “significant cognitive difficulties.” (ECF No. 28 at 4.) The ALJ explained that Dr.
Kruse terminated the mental status examination because Plaintiff’s “performance is invalid due
to Ganser responding and a strong indication of negative impression management was noted.”
(ECF No. 10-7 at 34-35.) Dr. Kruse did not diagnose and instead deferred to the medical record.
(Id.) Dr. Kruse noted in summary:
She seems capable of understanding and following instructions. I do believe this
patient is capable of using appropriate judgment. She appears aware of social
cues. I believe she is capable of performing simple repetitive tasks. I am unable to
determine if she is capable of managing funds appropriately and given her
performance on calculations, this would indicate otherwise. Medical prognosis is
deferred to medical evaluation.
The ALJ indicated he “considered the findings contained within Dr. Kruse’s report, which are
consistent with the evidence of record as a whole.” (ECF No. 10-2 at 33.) The Magistrate Judge
suggested that the ALJ explained that his residual functional capacity resolves any conflicts in
evidence because the state agency chart reviewers found that Plaintiff had no more than mild
limitation in activities of daily living, social functioning, and concentration, persistence, and
pace. (ECF No. 28 at 3-5.) Plaintiff initially argues that the ALJ did not resolve any conflict
between the state agency opinions and Dr. Kruse’s opinion because the ALJ did not
acknowledge Dr. Kruse’s findings about Plaintiff’s capability of performing simple, repetitive
work. Furthermore, Plaintiff contends that the ALJ failed to explain why he would give more
weight to non-examining chart reviewers as opposed to the findings of an evaluating physician.
(Id.) Plaintiff further argues that the Magistrate Judge stated that “based on the ALJ’s decision,
the ALJ did not consider that statement to be an opinion on Plaintiff’s ability to perform work
activity.” (Id.) However, the Magistrate Judge did not explain how this testimony supports the
ALJ’s findings that Plaintiff can perform semi-skilled work and consider Dr. Kruse’s opinion
that Plaintiff was capable of performing simple, repetitive tasks. (Id.)
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Although Plaintiff may be disabled for certain forms of employment, the crucial factual
determination is whether Plaintiff is disabled for all forms of substantial gainful employment.
See 42 U.S.C. §§ 423(d)(2) and 1382c(a). There are four elements which must be considered in
making such an analysis. These elements are: (1) objective medical facts and clinical findings,
(2) the opinions and conclusions of treating physicians, (3) subjective evidence of physical
manifestations of impairments, as described through a claimant's testimony, and (4) the
claimant's education, vocational history, residual skills, and age. Vitek v. Finch, 438 F. 2d 1157,
1159–60 (4th Cir. 1971); Underwood v. Ribicoff, 298 F. 2d 850, 851 (4th Cir. 1962).
On May 20, 2014, Plaintiff appeared with her certified non-attorney representative, Mr.
Charles L. Stover, at an administrative hearing and testified about her application for Social
Security benefits. The ALJ asked Plaintiff the reason she thinks she cannot work and Plaintiff
responded: “I deal with major back pain, depression, headaches, my ankle hurts and swells, and I
deal with carpel tunnel in my left arm.” (ECF No. 10-2 at 58.) Plaintiff also stated her back pain
limited her mostly, and she suffers from fibromyalgia. (Id.)
Plaintiff contends that the ALJ improperly concluded that Plaintiff did not appear to have
any significant cognitive difficulties, but Dr. Kruse opined that Plaintiff appeared to be of below
average intelligence and she may not be capable of managing her own funds. (ECF No. 28 at 4.)
The ALJ reasonably considered Plaintiff’s medical reports and explained that the “treatment
records document minimal findings.” (ECF No. 10-2 at 30-33.) The ALJ explained that “no
treating source has provided an opinion of the claimant’s physical or mental functional
capabilities.” (Id.) The ALJ also stated that he evaluated the opinion evidence under the
regulatory factors and gave “little weight” to the September 2012 opinion of Dr. Thomas
Motycka because Plaintiff’s “vocational prospects are outside the area of his expertise.” (Id.)

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In conducting its review, the Appeals Council found that the ALJ’s “assessed residual
functional capacity is inconsistent with the hypothetical questions posed to the vocational expert
at the hearing with respect to [Plaintiff’s] environmental and manipulative limitations (ECF No.
10-4 at 69),” but the Appeals Council made the following findings:
The claimant has the following severe impairments: degenerative joint disease of
the bilateral knees and right ankle, carpal tunnel syndrome, rotator cuff syndrome,
obstructive sleep apnea and obesity, but does not have an impairment or
combination of impairments which is listed in, or which is medically equal to an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.
The claimant’s combination of impairments results in the following limitations on
her ability to perform work-related activities: residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) with additional limits. In
particular, the claimant can lift or carry up to 20 pounds occasionally and 10
pounds frequently. She can stand or walk for approximately 6 hours of an 8-hour
workday with normal breaks. Additionally, the claimant can frequently balance,
stoop, kneel, crouch or crawl. She can occasionally climb ramps and stairs, but
can never climb ladders, ropes or scaffolds. The claimant must avoid
concentrated exposure to hazards including dangerous moving machinery and
unprotected heights. The claimant can also perform occasional fingering and fine
manipulation, but with objects no smaller than a paperclip, and she is limited to
frequent lifting in the left upper extremity.
(ECF No. 10-2 at 7) (emphasis added to distinguish the Appeals Council’s assessment of
Plaintiff’s residual functional capacity and the ALJ’s finding of Plaintiff’s residual functional
capacity). Fourth Circuit precedent does not require that a treating physician's testimony “be
given controlling weight.” Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). Pursuant to 20
C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2), the court in Craig v. Chater, 76 F. 3d 585, 589 (4th
Cir. 1996) noted that:
if a treating source's opinion on the issue(s) of the nature and severity of an impairment(s)
is well supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in the case record, we will give
it controlling weight. (Id.)

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Factors that an ALJ considers in evaluating a medical opinion include whether the physician
examined or treated the claimant, the length of the treatment relationship, the frequency of
examination, and the supportability and consistency of the opinion. 20 C.F.R. § 404.1527(c).
The court believes that the Appeals Council’s assessment of Dr. Kruse's report, and Plaintiff's
physical limitations for purposes of the hypothetical question, are both reasonable and consistent
with the evidence of record. The court notes that Dr. Kruse was not a treating physician because
she conducted one examination of Plaintiff. While the ALJ was free to give Dr. Kruse’s opinions
less weight because she was not a “treating source,” the ALJ evaluated her opinions. The record
evidence did not support Plaintiff’s alleged limitations including “significant cognitive
difficulties.” Furthermore, it appears to the court that the vocational expert's evaluation of
Plaintiff’s vocational factors, and the hypothetical questions which the expert considered, are
also consistent with the Appeals Council’s findings that Plaintiff was capable of performing past
relevant work as a childcare worker.
Finally, Plaintiff argues that the ALJ failed to explain her obesity diagnosis including
limitations in stamina and exertional capabilities in lifting, standing, and walking (ECF No. 28 at
6-7). Plaintiff contends that the ALJ recognized her obesity, but he did not address how it limited
her if she could stand still and walk for 6 hours during an 8-hour workday.5 (Id.) The ALJ stated

5

The court records show that Plaintiff attached a Functional Capacity Questionnaire (Physical),
dated May 26, 2015, and signed by Physician’s Assistant Stewart Darby. (ECF No. 15-1 at 1.)
Mr. Darby reports Plaintiff’s diagnosis as “chronic pain/fibromyalgia” and finds Plaintiff’s
prognosis to be “fair.” Mr. Darby reports that Plaintiff can stand, walk, and sit for zero-to-two
hours in an eight-hour workday, occasionally lift less than 10 pounds, rarely lift 10 pounds, never
lift 20 or 50 pounds. Mr. Darby also indicates Plaintiff can occasionally perform fingering,
grasping, and handling during an eight-hour workday, but never stoop, bend, or crouch. Finally,
Mr. Darby reports that Plaintiff would frequently experience pain severe enough to interfere with
the attention and concentration needed to perform simple work tasks. The court observes that Mr.
Darby’s opinion on Plaintiff’s Functional Capacity Questionnaire is contrary to the ALJ and the
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that he accounted for Plaintiff’s obesity in determining her residual functional capacity. The
Magistrate Judge explained that a failure to address a claimant’s obesity or its effects may be
harmless error if the record does not demonstrate that obesity imposes any additional limitations
on the claimant’s ability to work (ECF No. 26 at 24-25). The court notes that the ALJ considered
the impact of Plaintiff's obesity as one of Plaintiff’s severe impairments. (ECF No. 10-2 at 7, 26.)
However, the ALJ’s residual functional capacity finding was based on Plaintiff’s objective
medical records, the opinions and conclusions of treating and consultative physicians, subjective
evidence of physical manifestations of impairments, and Plaintiff’s education, vocational history,
residual skills, and age. The court further finds there is no objective evidence in the treatment
records that Plaintiff’s obesity was causing any functional limitations.
After reviewing all of the evidence submitted, the court ADOPTS the Magistrate Judge’s
Report and Recommendation (ECF No. 26) and Plaintiff’s Objections to the Magistrate Judge’s
Report and Recommendation (ECF No. 28) is OVERRULED.
IT IS SO ORDERED.

J. Michelle Childs
United States District Judge
September 26, 2017
Columbia, South Carolina

Appeals Council’s assessment of Plaintiff’s residual functional capacity. See also (ECF No. 10-2
at 28.)
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