Savage v. Commissioner of the Social Security Administration
ORDER: It is hereby ORDERED that the Commissioner's decision be affirmed.Signed by Magistrate Judge Kaymani D West on 7/24/2017. (gnan )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Samuel L. Savage,
Nancy A. Berryhill, Acting Commissioner )
of Social Security Administration,
C/A No. 5:16-1138-KDW
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 his 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
Plaintiff applied for DIB and SSI on August 1, 2012, pursuant to Titles II and XVI of the
Act, 42 U.S.C. § 401-403, and § 380-83, et seq., alleging he became disabled on July 2, 2009. Tr.
193-202. His applications were denied initially, Tr. 90-91, and upon reconsideration, Tr. 123-24.
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 141-42, which was
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes Nancy A.
Berryhill for Carolyn W. Colvin as Defendant in this action.
held on October 28, 2014, Tr. 32-64. In a decision dated January 7, 2015, the ALJ found that
Plaintiff was not disabled within the meaning of the Act. Tr. 14-26. Plaintiff requested review by
the Appeals Council, Tr. 10-11, and the Appeals Council denied Plaintiff’s request for review on
March 9, 2016, making the ALJ’s decision the final decision for purposes of judicial review, Tr. 15. Plaintiff brought this action seeking judicial review of the Commissioner’s decision in a
Complaint filed on April 12, 2016. ECF No. 1.
Born in December 1957, Plaintiff was 51 years old on his alleged onset date of July 2,
2009; 54 years old as of his protected filing date of August 1, 2012; and 55 years old as of his date
last insured of March 31, 2013. Tr. 218. In his Disability Report – Adult, Plaintiff indicated that he
completed the 12th grade and had not completed any specialized job training. Tr. 234. Plaintiff
listed his past relevant work (“PRW”) as: heavy equipment operator, temporary worker, and truck
driver. Tr. 235. Plaintiff indicated that he stopped working on July 2, 2009 because of the
following medical conditions: lower back problems, numbness in back, right ankle pain, numbness
in right side of back, complete numbness in right leg, pain and severe swelling around and in back
of knees, and depression. Tr. 233. In a Disability Report – Appeal dated December 18, 2012,
Plaintiff indicated that since September 5, 2012 he could “only stand or bend/stoop for a short
period of time” and since November 3, 2012 he was having “much more pain in right leg and foot.
Am now limping.” Tr. 270. In another Disability Report – Appeal dated October 1, 2013, Plaintiff
indicated that in May and September of 2013 his right foot and right ankle “gave out” causing him
to fall. Tr. 294. Plaintiff noted that it was “difficult for [him] to hold a job not being able to stand
very long.” Tr. 298. He also indicated that since he last completed a disability report it had become
“more difficult to stand or bend.” Tr. 299.
The Administrative Proceedings
Plaintiff appeared with his counsel for an administrative hearing on October 28, 2014. Tr.
32. In response to questions from the ALJ, Plaintiff confirmed that he was 56 years old, graduated
from the twelfth grade, and had not worked since July 2009 due to illness and injuries. Tr. 37-38.
Plaintiff testified that he had problems with the nerves on his right side from his toe to his lower
back. Tr. 38. Plaintiff testified that he is taking pain medication for the pain in his lower back that
“helps a little bit.” Tr. 39. Plaintiff stated that he has memory loss as a side effect of the
medication. Id. Plaintiff stated his back and leg give him trouble. Tr. 39-40. Plaintiff testified that
he is also taking medication for depression and Dr. Selph recently changed his medication from
Trazadone to something else. Tr. 40. Plaintiff testified that he felt “groggy” and his leg felt “like
pins are sticking in the bottom of my foot and leg all during the day, the whole time.” Id. The ALJ
noted that Plaintiff was using a cane and Plaintiff testified that Dr. Selph had prescribed the cane
on his last visit. Id. Before being prescribed the cane Plaintiff stated he was “just holding onto
anything [he] could get to.” Tr. 41.
Plaintiff testified that he is a single parent and lived with his 16-year-old son in a groundfloor apartment. Tr. 41. Plaintiff stated that he had a driver’s license and had driven himself to the
hearing. Id. Plaintiff stated that it took him 15 minutes to get to the hearing and after sitting in the
car his leg hurts and his thigh started to hurt. Tr. 42. Plaintiff testified that he was able to feed
himself, but needed help getting out of the bath. He could put on his clothes if he could sit down
and was capable of making himself a sandwich. Id. Plaintiff testified that he could make a bed and
“sweep a little bit with one hand.” Tr. 43. Plaintiff stated that he could stand for five minutes
before needing to sit down and, if he took his time, he could walk “down the block and back”
which he estimated could be five or ten minutes. Id. Plaintiff testified that he could sit for an hour
before his leg started to hurt, but if he got up and stretched for 15-to-20 minutes he could resume
sitting. Tr. 44. Plaintiff stated that he did not lift anything because all his weight was on one leg.
Id. Plaintiff testified that the heaviest thing he could lift would be “the forks and the spoons.” Tr.
In response to a question from his counsel, Plaintiff testified that he lies down for “an hour
or two” to relieve the pain from sitting or standing too long—he described too long as “about an
hour.” Tr. 46.
The ALJ asked Plaintiff how he spent his days and Plaintiff testified that he goes to his
mother’s house around 4:00 in the afternoon after she returns home from Pell Mental Health
Center and stays with her until his sister gets home from work. Plaintiff then returns home. Tr. 4647.
Plaintiff’s counsel resumed questioning and asked Plaintiff about the “pins and needles”
feeling in his feet. Tr. 47. Plaintiff stated the feeling was constant and interfered with his ability to
concentrate because it was “very annoying.” Id. Plaintiff stated he was “always moving” his foot
to alleviate the sensation but that it did not help. Id. Plaintiff testified that he can do household
tasks for “[t]en minutes at the most” before needing to take a break. Tr. 48. Plaintiff described an
incident “a couple of years ago” when he put his right foot in a tub of hot water but it felt “icecold.” Tr. 49. When he attempted to put his left foot in the tub he “had to snatch it out before [he]
sank a toe in.” Id. Plaintiff stated that he can put his right foot in “scalding-hot water and don’t
even feel it.” Id. Plaintiff testified that his back pain is constant and is at a pain level of seven or
eight on a ten-point scale, but a four or five when he takes his medicine. Id. However, Plaintiff
stated that the pain level rises with activity. Tr. 50. Plaintiff stated that he did not have days that
were worse than others, but that “all days are bad.” Id.
VE Stephen P. Davis also testified at the hearing. The VE asked for clarification regarding
Plaintiff’s listed job of heavy equipment operator. Tr. 51. Plaintiff stated that he was a forklift
operator on a construction site using an industrial-sized forklift. Tr. 52. Plaintiff stated that he used
his training from operating a forklift in a warehouse to using the forklift on a construction site. Tr.
The VE characterized Plaintiff’s past work as a tow truck driver as Dictionary of
Occupational Titles (“DOT”) number 919.63-026, semi-skilled with a specific vocational
preparation (“SVP”) of 3, classified at the medium level, and performed at light. The heavy
equipment operator was DOT 859.683-010, skilled, SVP 6, classified as medium, and performed
at light. The two truck-driver positions were DOT 905.663-014, SVP 4, both classified as medium,
and both performed at light. The last job of production assembly line worker (described by the
DOT as production assembler) was DOT 706.687-010, unskilled at SVP 2, classified as light, and
performed at medium. Tr. 53-54.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff’s age, education,
past relevant work experience, and impairments of “peripheral neuropathy, in particular severe
peripheral neuropathy on the right lower extremity . . . with pain up into the lower back.” Tr. 55.
The ALJ asked the VE to consider the residual functional capacity (“RFC”) assessment and
limitations of the state agency physicians contained in the record at Exhibit 6A. Id. The VE
testified that because of the limitations to the lower extremities none of Plaintiff’s PRW would be
available but there would be jobs at the unskilled level. The VE identified the following jobs at the
medium level of unskilled work: hand packager, DOT 920.587-018, unskilled at SVP 2, medium,
525,000 nationally, and approximately 31,000 in South Carolina. Tr. 59. The VE stated that
because of the physician’s undefined limitations, he would apply 25% erosion to the job
availability numbers. Id. The second job identified by the VE was floor waxer, DOT 381.687-034,
unskilled, SVP of 2, medium, 358,000 nationally, approximately 9,000 in South Carolina with
those numbers eroded by 25%. Tr. 59-60. A third job would be a cleaner of laboratory equipment,
DOT 381.687-022, unskilled at SVP 2, medium, 345,000 nationally, and approximately 41,000 in
South Carolina with a 25% erosion. Tr. 61.
The ALJ posed a second hypothetical using Plaintiff’s testimony “considering it to be fully
credible.” Tr. 61. The hypothetical individual would be able to stand and/or walk for five-to-ten
minutes at a time, sit for an hour at a time, lift nothing greater than the weight of a fork and spoon,
and would need to lie down one-to-two hours every day during the eight-hour period. Tr. 61-62.
The VE testified that this individual could not do Plaintiff’s past work and no other jobs would be
available. Tr. 62.
Plaintiff’s counsel asked the VE if there would be jobs available if a person were off task
one-third of the time and the VE stated there would be “no jobs.” Tr. 62. Plaintiff’s counsel
clarified for the ALJ that off task meant the individual would be up for an hour and then would
need to lie down for an hour—perhaps more, but a minimum of one-third of the time. Tr. 63. The
VE stated that the “off-task limit is 15 percent. Anything above 15 percent precludes all work.” Id.
The ALJ’s Findings
In his January 7, 2015 decision, the ALJ made the following findings of fact and
conclusions of law:
The claimant meets the insured status requirements of the Social Security
Act through March 31, 2013.
The claimant has not engaged in substantial gainful activity since July 2,
2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments: peripheral neuropathy,
degenerative disc disease, and depression (20 CFR 404.1520(c) and
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).
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant can
occasionally lift and/or carry 50 pounds and frequently lift and/or carry 25
pounds. The claimant can stand and/or walk for about 6 hours in an 8-hour
workday, and sit for about 6 hours in an 8-hour workday. The claimant can
occasionally push and/or pull with the right lower extremity. The claimant
can frequently climb ramps or stairs and occasionally climb ladders, ropes,
or scaffolds. The claimant can frequently balance, stoop, kneel, crouch, or
crawl. The claimant should avoid concentrated exposure to extreme cold,
extreme heat, wetness, and humidity. While the claimant may have
difficulty with concentration over extended periods of time, he can perform
simple, unskilled work. The claimant can accept supervision and interact
with co-workers and the general public.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on December 8, 1957 and was 51 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date. The claimant subsequently changed age category to
advanced age (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
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)).
The claimant has not been under a disability, as defined in the Social
Security Act, from July 2, 2009, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
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,”
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
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 he 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 his inability to work within the meaning of
the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the
inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence
that claimant can perform alternative work and that such work exists in the regional economy. To
satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the
existence of jobs available in the national economy that claimant can perform despite the existence
of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir.
2002). If the Commissioner satisfies that burden, the claimant must then establish that he 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).
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).
Plaintiff’s allegations of error are (1) the ALJ failed to properly evaluate his credibility,
and (2) the ALJ’s RFC assessment was defective. Pl.’s Br. 8, 13; ECF No. 17.
ALJ’s Credibility Determination
Plaintiff alleges that although the ALJ summarized the testimony regarding Plaintiff’s
subjective symptoms the ALJ did not evaluate the testimony and considered only the objective
medical evidence. Pl.’s Br. 9-10. Plaintiff argues that the “ALJ’s exclusive reliance upon medical
evidence in his credibility evaluation violates the specific mandates of SSR 96-7p and constitutes
reversible error.” Id. at 11. Plaintiff also asserts the ALJ erred by “ignoring significant objective
clinical and laboratory findings which are entirely consistent with Plaintiff’s allegations of
disabling pain and numbness in his leg and back . . . .” Id. at 12. The Commissioner argues that the
ALJ properly considered Plaintiff’s credibility limitations in accordance with the regulations.
Def.’s Br. 9, ECF No. 19.
SR 96-7p 2 requires that, prior to considering Plaintiff’s subjective complaints the ALJ
must find there is an underlying impairment that has been established by objective medical
evidence that would reasonably be expected to cause the subjective complaints of the severity and
persistence alleged. Only then is the ALJ to move to the second step: consideration of the record
as a whole, including both objective and subjective evidence, to assess the claimant’s credibility
regarding the severity of his subjective complaints, including pain. See SSR 96-7p, 1996 WL
374186, at *2; see also 20 C.F.R. § 404.1529(b); Craig v. Chater, 76 F.3d at 591-96. The
requirement of considering a claimant’s subjective complaints does not mean the Commissioner
must accept those complaints on their face. The ALJ may consider the claimant’s credibility in
light of his testimony and the record as a whole. If the ALJ rejects a claimant’s testimony about a
claimant’s pain or physical condition, the ALJ must explain the basis for such rejection to ensure
that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec’y, Dep’t of
Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (quoting Smith v. Schweiker, 719 F.2d
723, 725 n.2 (4th Cir. 1984)). The reasons given for the ALJ’s credibility assessment “must be
grounded in the evidence and articulated in the determination or decision.” SSR 96-7p, 1996 WL
374186, at *4. “The determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” Id.; see Mickles v. Shalala, 29 F.3d at 927
(“Although a claimant’s allegations about her pain may not be discredited solely because they are
In March 2016 the Social Security Administration published SSR 16-3p, 2016 WL 1119029
(2016), which supersedes SSR 96-7p, eliminates use of the term “credibility,” and clarifies that
subjective symptom evaluation is not an examination of an individual’s character. Because the
ALJ decided this case prior to March 16, 2016, the effective date of SSR 16-3p, the court analyzes
the ALJ’s decision based on the provisions of SSR 96-7p, which required assessment of the
claimant’s credibility. Although SSR 16-3p eliminates the assessment of credibility, it requires
assessment of most of the same factors to be considered under SSR 96-7p.
not substantiated by objective evidence of the pain itself or its severity, they need not be accepted
to the extent they are inconsistent with the available evidence, including objective evidence of the
underlying impairment, and the extent to which that impairment can reasonably be expected to
cause the pain the claimant alleges she suffers . . . .”). The Ruling further requires “[a]ssessment of
the credibility of an individual’s statements about pain or other symptoms and about the effect the
symptoms have on his or her ability to function must be based on a consideration of all of the
evidence in the case record.” 1996 WL 374186, at *5. This evidence includes statements “about
the individual’s medical history, treatment and response, prior work record and efforts to work,
daily activities, and other information concerning the individual’s symptoms and how the
symptoms affect the individual’s ability to work.” Id. SSR 96-7p provides further guidance on
how to evaluate a claimant’s credibility, indicating that “[o]ne strong indication of the credibility
of an individual’s statements is their consistency, both internally and with other information in the
case record.” SSR 96-7p, 1996 WL 374186, at *5.
Here, the ALJ outlined Plaintiff’s testimony regarding his subjective complaints and found,
after “careful consideration of the evidence,” that Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.” Tr. 22-23. The ALJ found that Plaintiff’s
“allegations are not fully credible as the medical evidence of record does not support the degree of
impairment and the limitations alleged by the claimant.” Tr. 23. The ALJ then proceeded to
discuss Plaintiff’s medical records from 2010 through 2014, along with the medical opinions. Tr.
Social Security rules and regulations recognize that chronic pain may not necessarily be
provable by objective diagnostic studies and that the subjective complaints of a claimant should be
given fair consideration in making a determination of disability. 20 C.F.R. § 404.1529, § 416.929;
SSR 96-7p. When evaluating a claimant’s complaints of chronic pain, the ALJ is directed to
consider such factors as the claimant’s daily activities, location, frequency and intensity of the
claimant’s pain symptoms, any precipitating or aggravating factors, the effectiveness of any pain
medications, treatment received, and any measures used to relieve pain or other symptoms. 20
C.F.R. § 404.1529(c)(3)(i)-(vi), § 416.929(c)(3)(i)-(vi). A claimant’s symptoms, including pain,
are considered to diminish the capacity for work to the extent that alleged functional limitations
are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §
404.1529(c)(4), § 416.929(c)(4). “[A] formalistic factor-by-factor recitation of the evidence” is
unnecessary as long as the ALJ “sets forth the specific evidence he relies on in evaluating the
claimant’s credibility.” White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001).
The ALJ discussed Plaintiff’s impairments of peripheral neuropathy, degenerative disc
disease, and depression. Tr. 19-20. The ALJ also considered Plaintiff’s statements that “nerve
problems from his toes to his lower back keep him from working” along with Plaintiff’s subjective
complaint that “his leg feels like pins are in it all day long.” Tr. 22. The ALJ noted Plaintiff’s
statement that “he spends most of the time lying down” and “after 10 minutes of doing an activity
he must take a break because of pain.” 3 Id. The ALJ also noted Plaintiff’s testimony regarding his
In his discussion of whether Plaintiff’s combined impairments met Listing 12.04 the ALJ
determined that Plaintiff had no restriction in his activities of daily living noting that he “cares for
his personal needs, prepares meals for himself and his son, does household chores such as making
beds, sweeping, and ironing, and shops (Exhibit 4E).” Tr. 21. The ALJ also noted that Plaintiff
“visits with his mother daily, shops, and attends church (Exhibit 4E).” Id. Plaintiff argues this
discussion occurred in the section of the decision regarding his depression-related assessment and
not in the credibility assessment. Pl.’s Reply 2-3, ECF No. 22. The undersigned finds that is of no
moment as the ALJ specifically stated in making his RFC and credibility determination that he
considered the entire record and the evidence. See Reid v. Commissioner of Social Security, 769
F.3d 861, 865 (4th Cir. 2014) (absent evidence to the contrary, ALJ’s statement that she had
considered the entire record in reaching her decision was taken at her word); Wall v. Astrue, 561
F.3d 1048, 1070 (10th Cir. 2009) (noting well-established principle of taking ALJ at his word
when he indicates he considered all of the evidence).
use of a cane, an inability to lift anything heavier than cutlery, and his perceived pain levels. Id.
The ALJ discussed the objective medical evidence including Plaintiff’s EMG and nerve
conduction studies, MRIs of his spine, 4 and reports of examinations showing normal or
unremarkable gait and no leg weakness. Id. The ALJ also discussed the May 9, 2013 consultative
examination performed by Dr. Thomas J. Motycka. Tr. 23.
When considering whether an ALJ’s credibility determinations are supported by
substantial evidence, a district court does not replace its own credibility assessments for those of
the ALJ; rather, the court scrutinizes the evidence to determine if it is sufficient to support the
ALJ’s conclusions. In reviewing the record for substantial evidence, the court does not re-weigh
conflicting evidence, reach independent determinations as to credibility, or substitute its own
judgment for that of the Commissioner. Hays, 907 F.2d at 1456. Because the ALJ had the
“opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ’s
observations concerning these questions are to be given great weight.” Shively v. Heckler, 739
F.2d 987, 989 (4th Cir. 1984). The undersigned has considered Plaintiff’s challenges and has
reviewed the record. Based on this review and applicable law, the undersigned finds that the ALJ’s
decision reflects that he considered the relevant factors in weighing Plaintiff’s credibility. 5
Plaintiff notes that the ALJ did not reference his February 2014 lumbar MRI or July 2014 skin
biopsies. Pl.’s Br. 11. An ALJ need not recite each piece of evidence in the record to prove that
such analysis has occurred. Craig, 76 F.3d at 590 (citing Gordon v. Schweiker, 725 F.2d 231, 236
(4th Cir. 1984)). The undersigned notes, however, that the ALJ referenced the exhibit containing
these reports and the physician’s discussion of the same five times. See Tr. 23-24 (citing ex. 22F).
Notably, no physician indicated as a result of these findings that Plaintiff had any limitations that
would prevent him from working.
The undersigned agrees with Plaintiff that the ALJ failed to consider his long work history.
“However, a failure to discuss a claimant’s work record is not a controlling factor in assessing
credibility, and an ALJ’s failure to discuss it is considered harmless error where he cites valid
additional factors to support his credibility determination.” Musgrove v. Colvin, No. CV 1:152275-JMC-SVH, 2016 WL 3176610, at *18 (D.S.C. Mar. 22, 2016), report and recommendation
adopted, No. 1:15-CV-02275-JMC, 2016 WL 3125491 (D.S.C. June 3, 2016) (citing Glick v.
Colvin, No. 6:12-3294-RBH, 2014 WL 994591, at *18 (D.S.C. Mar. 13, 2014)).
Therefore, the undersigned recommends a finding that Plaintiff cannot demonstrate that the ALJ’s
credibility analysis as a whole is unsupported by substantial evidence or controlled by an error of
law. See Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006) (noting that a claimant’s
allegations “need not be accepted to the extent that they are inconsistent with available evidence”);
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (per curiam) (finding that the ALJ may
properly consider inconsistencies between a plaintiff’s testimony and the other evidence of record
in evaluating the credibility of the plaintiff’s subjective complaints).
ALJ’s Determination of Plaintiff’s RFC
Plaintiff alleges that the “ALJ’s decision contains no function-by-function assessment of
Plaintiff’s ability to perform work-related activities on a sustained basis, nor is there any
discussion of the requirements of medium work, such as the standing, walking, and lifting
requirements of such work.” Pl.’s Br. 14. The Commissioner argues that substantial evidence
supports that “no ‘function-by-function’ assessment could change the ALJ’s finding that [Plaintiff]
could work.” Def.’s Br. 14.
An RFC assessment is a determination of an individual’s ability to perform sustained
work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1.
“RFC is not the least an individual can do despite his or her limitations or restrictions, but the
most. Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for
assessing a claimant’s RFC. 20 C.F.R. § 404.1546(c), § 416.946(c). An ALJ’s RFC assessment
should be based on all relevant evidence and will consider the claimant’s ability to meet the
physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4), §
416.945(a)(3) and (4).
Here, the ALJ determined that Plaintiff has the RFC “to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c) except the claimant can occasionally lift and/or carry 50
pounds and frequently lift and/or carry 25 pounds.” Tr. 21. The ALJ’s RFC assessment also
included the following limitations:
The claimant can stand and/or walk for about 6 hours in an 8-hour workday, and sit
for about 6 hours in an 8-hour workday. The claimant can occasionally push and/or
pull with the right lower extremity. The claimant can frequently climb ramps or
stairs and occasionally climb ladders, ropes, or scaffolds. The claimant can
frequently balance, stoop, kneel, crouch, or crawl. The claimant should avoid
concentrated exposure to extreme cold, extreme heat, wetness, and humidity. While
the claimant may have difficulty with concentration over extended periods of time,
he can perform simple, unskilled work. The claimant can accept supervision and
interact with co-workers and the general public.
Tr. 22-23. In making this determination the ALJ gave great weight to the opinion evidence of
record which included the opinion of Dr. Motycka and the opinion of the State agency examiner.
a. Opinion Evidence
On May 9, 2013, Dr. Motycka completed a consultative examination of Plaintiff. Tr. 51220. In his orthopedic examination Dr. Motycka noted the following:
The cervical spine, lumbar spine, shoulders, elbows, wrists, knees, hips, and ankles
were all normal in terms of range of motion testing. Straight leg raising in the
sitting was 90 degrees bilaterally and produced no discomfort. Straight leg raising
in the supine was 40 degrees bilaterally and produced no discomfort. The hand
exams were normal. They had no joint deformity, joint swelling, decreased range of
motion, or tenderness. His grip strengths were +5/+5. The patient has the ability to
do fine manipulation and gross manipulation with either hand. The patient did
tandem walk, heel walk, and toe walk. The patient had a normal squat and rose
without difficulty. There is no gait disturbance. The only possible assistive device
used was a right ankle ACE wrap, but otherwise he did not use a cane or crutch or
anything such as that. All muscle strength testing is +5/+5. Sensory loss was
claimed in the right lower extremity, circumferentially. He denies sensory loss in
the trunk, and in dermatome of T5, as records indicate was one of his chief
complaints. There were no visible joint abnormalities. He resisted all reflex testing
in the upper and lower extremities. He could not relax. There is no area of atrophy
and indeed his musculature appears to be well toned. His musculature is symmetric,
between right and left.
Tr. 516. Dr. Motycka concluded that “function-wise” Plaintiff appeared to be intact although he
showed evidence of a sprained right ankle. Tr. 517.
State agency reviewer Dr. Darla Mullaney completed a physical RFC assessment of
Plaintiff on May 15, 2013. Tr. 101-03. Dr. Mullaney opined that Plaintiff could lift and/or carry 50
pounds occasionally and 25 pounds frequently, could sit, stand, and/or walk for 6 hours in an 8hour day with normal breaks, and was limited in his right lower extremity for pushing and pulling.
Tr. 101. Dr. Mullaney based these exertional limitations on Plaintiff’s low back pain, abnormal
sensation in right lower extremity, and occasional right lower extremity foot pedals. Id. Dr.
Mullaney noted Plaintiff could climb ramps/stairs frequently; climb ladders, ropes, scaffolds
occasionally; frequently balance, stoop, kneel and crouch; and occasionally crawl. Tr. 101-02. Dr.
Mullaney cited Plaintiff’s low back pain as the basis for these postural limitations. Dr. Mullaney
noted the following: “[Claimant] has low back pain and polyneuropathy that limits his ability to
sustain work as a truck driver. He has full strength all muscle groups and full [range of motion].
At 7/31/12 neuro visit doc[tor] states there is evidence of a mild transverse myelitis. He declined
further treatment at that time.” Tr. 102.
b. Function-by-Function Analysis
The Administration’s policy interpretation on assessing an individual’s RFC emphasizes
that the “RFC assessment must first identify the individual’s functional limitations or restrictions
and assess his or her work-related abilities on a function-by-function basis, including the functions
in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very
heavy.” SSR 96-8p, 1996 WL 374184, at *1. The functions identified in the cited regulation
include: physical abilities, mental abilities, and other abilities affected by impairments. 20 C.F.R.
§ 404.1545(b)-(d), § 416.945(b)-(d). In Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015),
the Fourth Circuit addressed whether an ALJ’s failure to perform a function-by-function
assessment necessitates remand. The court held that “a per se rule [requiring remand] is
inappropriate given that remand would prove futile in cases where the ALJ does not discuss
functions that are ‘irrelevant or uncontested.’” Id. at 636. However, the court “agree[d] with the
Second Circuit that ‘[r]emand may be appropriate . . . where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.’” Id.
The undersigned finds that remand is not required here because in his decision the ALJ
discussed the functional limitations alleged by Plaintiff. Furthermore, although the ALJ did not
perform an explicit function-by-function analysis, his discussion is sufficient to enable meaningful
review. The ALJ assessed Plaintiff with the RFC to do medium level work and identified
additional restrictions. Tr. 21-22. Plaintiff cites to his testimony “that he could not stand more than
ten minutes without having to sit down, could not walk more than a block or two at a slow pace,
could engage in no significant lifts, and spent most of the day reclining; he is able to perform light
household tasks but has to take rest breaks after about ten minutes.” Pl.’s Br. 13. Plaintiff claims
there is “nothing in the record regarding his “’reported activities’ that is remotely consistent with
an RFC to perform any range of medium work . . . .” Id. at 13-14 (emphasis in Pl’s Brief). The
ALJ specifically discussed Plaintiff’s complaints regarding his limitations that he found were “not
fully credible” and treatment notes from the relevant period that supported Plaintiff’s ability to
perform a range of medium work including reports that his gait was unremarkable, he had no leg
weakness, his strength was preserved in his lower extremities, and he had normal coordinated
movements and normal gait. Tr. 23. Moreover, the ALJ noted earlier in his decision Plaintiff’s
self-report that he was able to take care of his personal needs, prepare meals for himself and his
son, do household chores, shop, visit his mother daily, and attend church. Tr. 21. The ALJ gave
great weight to the examining consultant Dr. Motycka’s opinion that “function-wise the claimant
appears to be intact.” Tr. 24. The ALJ also gave great weight to the State agency consultant
opinion that he found to be “consistent with the findings of consultative examiner Dr. Motycka
and the other medical evidence of record including office treatment notes from University
Specialty Clinics and The South Carolina Neurological Clinic (Exhibits 6F, 8F, 15F, 17F, 22F).”
Id. See Schlossnagle v. Colvin, C.A. No. 15-935, 2016 WL 4077672, at *8 (D. Md. Aug. 1, 2016)
(recognizing that ALJ may satisfy function-by-function analysis by referencing analysis of state
agency physician) (citing Herren v. Colvin, C.A. No. 1:15-CV-00002-MOC, 2015 WL 5725903,
at *5 (W.D.N.C. Sept. 30, 2015)). There is no contrary evidence in the record supporting a finding
that Plaintiff is incapable of performing a range of medium work. Accordingly, the ALJ’s failure
to perform a function-by-function assessment does not require remand.
The court’s function is not to substitute its own judgment for that of the ALJ, but to
determine whether the ALJ’s decision is supported as a matter of fact and law. Based on the
foregoing, the court finds that Plaintiff has not shown that the Commissioner’s decision was
unsupported by substantial evidence or reached through application of an incorrect legal standard.
See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g). Therefore, it is hereby ORDERED that the
Commissioner’s decision be affirmed.
IT IS SO ORDERED.
July 24, 2017
Florence, South Carolina
Kaymani D. West
United States Magistrate Judge
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