Chastain v. Commissioner of the Social Security Administration

Filing 17

ORDER that the Commissioner's decision is affirmed. Signed by Magistrate Judge Kaymani D West on 2/6/2024.(gnan )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Jennifer C.,1

)
)
Plaintiff, )
)
)
vs.
)
)
Martin O’Malley,2 Commissioner of
)
Social Security,
)
Defendant.

Civil Action No. 5:22-3363-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”) 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 for the reasons discussed herein.
I.

Relevant Background
A.

Procedural History

On February 12, 2020,3 Plaintiff protectively filed for DIB under Title II of the Act, 42
U.S.C. §§ 401-433, alleging she became disabled on September 10, 2018. Tr. 194-95. After
being denied initially, Tr. 88, and upon reconsideration, Tr. 112, Plaintiff requested a hearing

1

The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to claimants only by their first names and last initials.
2
Martin O’Malley was confirmed as Social Security Commissioner on December 20, 2023.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes Martin
O’Malley for Kilolo Kijakazi as Defendant in this action.
3
Although the Application Summary is dated March 10, 2020, Plaintiff’s protected filing date,
as noted on the Disability Determination and Transmittal, is February 12, 2020. See Tr. 88.

before an Administrative Law Judge (“ALJ”), Tr. 128-29. ALJ J. Petri conducted a hearing on
November 23, 2021, taking testimony from Plaintiff and a Vocational Expert (“VE”). Tr. 40-59.
Representing Plaintiff at that hearing was her attorney, Thomas Phillips. Tr. 40. The ALJ denied
Plaintiff’s claim in a decision dated December 21, 2021. Tr. 17-35. On February 10, 2022,
Plaintiff requested review of this decision from the Appeals Council. Tr. 190-93. The Appeals
Council denied her request on August 8, 2022, Tr. 2-6, making the ALJ’s December 2021
decision the final decision of the Commissioner, Tr. 2. Plaintiff brought an action seeking
judicial review of the Commissioner’s decision in a Complaint filed September 30, 2022. ECF
No. 1.
B.

Plaintiff’s Background

Plaintiff was born in December 1983 and was 34 years old as of her alleged onset date of
September 10, 2018, and 36 years old as of her date last insured of September 30, 2020. Tr. 215.
In her March 2020 Disability Report-Adult-Form Plaintiff indicated that she completed high
school in 2002, did not attend special education classes, and had not completed any type of
specialized job training, trade or vocational school. Tr. 209. She listed her past relevant work
(“PRW”) as a child caregiver (March 2006-July 2016) and grocery store deli worker (March
2018-Sept. 2018). Id. Plaintiff indicated she stopped working on September 10, 2018, because of
her medical conditions, which she listed as epilepsy, social anxiety, and memory problems. Tr.
208. Plaintiff indicated that she was 5’ tall, weighed 240 pounds, and her conditions caused her
pain or other symptoms. Id.
A Disability Report-Appeal dated September 25, 2020, indicated a change in Plaintiff’s
condition of two seizures on August 8 and August 27 since her last report. Tr. 247. Plaintiff

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indicated that since August 2020 she feels like her “memory is getting worse and [her] brain is
slower.” Id. Plaintiff noted that she has to “concentrate a lot more on one thing at a time.” Id.
C.

Administrative Proceedings

On November 23, 2021, Plaintiff appeared with counsel in Greenville, South Carolina for
her administrative hearing before ALJ Petri. Tr. 40. VE Jewel Euto also appeared. Id. Due to the
extraordinary circumstances of the coronavirus pandemic, the hearing was conducted
telephonically. Tr. 42.
1.

Plaintiff’s Testimony

In response to questions from the ALJ Plaintiff testified that she graduated from high
school, she is five feet tall, and she weighs 222 pounds. Tr. 45. Plaintiff testified that her weight
is not stable and since her doctor increased her seizure medication and Effexor she has “lost a lot
of weight.” Id. Plaintiff indicated that she previously weighed 250 pounds and had lost the
weight in one month. Id. Plaintiff stated that she is right-handed, married, and lives with her
husband and two sons ages 17 and 9. Tr. 46. Plaintiff testified that her husband is employed and
provides a source of income, and she has not received any benefits such as worker’s
compensation or unemployment. Id. She stated that she has a driver’s license that she uses as an
ID, but she does not drive and has not driven since August 2017 when she had her first seizure.
Tr. 47. Plaintiff was unable to recall when she last worked, but the ALJ noted earnings records
reflected she worked for a short time in 2018 at Ingles. Id. Plaintiff testified that she worked at
Ingles full-time in the deli and the heaviest things she had to lift were the “hot bar pans” which
weighed “about 15 pounds.” Tr. 47-48. When asked if she also had to lift boxes, she testified that
she did and the boxes of chicken weighed “about 20 pounds or a little bit more.” Tr. 48. Plaintiff
testified that she made roughly $8.00 an hour, and she worked six hours a day, five days a week.

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Id. Plaintiff affirmed that her longest period of employment was at Seneca Baptist Child Day
Care as lead teacher for the two-year-olds, and as a floater for other teachers. Tr. 48-49. Plaintiff
testified that she is unable to work because she “was a liability because of [her] seizures.” Tr. 49.
Plaintiff testified that nothing else limited her ability to work. Id. Plaintiff affirmed that she
always takes her medication like she is supposed to although there have been times when she
could not afford it or ran out of her medication. Id. Plaintiff stated that she could not tell a
difference when she did not take the medication because she still has seizures on the medication.
Id. Plaintiff testified that her last seizure was the previous Wednesday, and it lasted “about three
to five minutes.” Tr. 50. Plaintiff stated that after her seizure she felt drained, and that feeling
“can last anywhere from two to three days.” Id. She stated that she has seizures two-to-three
times a month, and she cannot feel them coming on—she has no warning. Id. Plaintiff testified
that because of her anxiety she does not like to be in crowds, she does not go to the grocery store
anymore, and she “basically stay[s] at home because [her] anxiety is so bad.” Id. Plaintiff stated
that her “husband driving on the road” also makes her anxiety bad because she worries about the
cars and the potential for them having a wreck. Id. Plaintiff stated that they tried to attend a
concert and she went into a seizure at the concert. Id. Plaintiff stated that when she is at home,
she cannot take a shower or cook unless her husband or older son is at home. Tr. 51. She stated
that she is “not allowed to lock any doors” in case she has a seizure. Id. She also stated that she
has a Boxer dog that is trained for her seizures. Id. Plaintiff testified that on a typical day she sits
on the couch and watches TV or sits on the front porch to give the dog “some outside time” until
2:30 when she walks to the bus stop to get her son. Id. She stated that when her oldest son gets
home around 4:00 they start cleaning the house, and she can cook supper and take a shower. Id.

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In response to questions from her attorney Plaintiff testified that when she was working at
the daycare she had to lift all of the children in her room and they weighed “[p]robably 30
pounds or more.” Tr. 52. Plaintiff affirmed that she has panic attacks if she is out with her
husband driving or if she is in a “big” crowd. Id. She stated that she has anxiety medication that
she takes twice a day, and even on the medication she still has panic attacks. Id. She testified the
attacks last until she gets “out of the crowds, off the road and get back home.” Id. She stated that
she feels a little drained after a panic attack but not much; she is drained with her seizures. Id.
Plaintiff testified that she was trying to get an appointment with a psychiatrist, but because of
Covid the doctor is backed up. Tr. 53. Plaintiff stated that she gets two-to-three hours of sleep at
night and is tired during the day. Id. She stated she is still having problems with her carpal tunnel
syndrome and her “thumbs will lock up, [her] hands tingle, or they’ll go to sleep.” Id. Plaintiff
stated she has trouble opening jars. Id. Plaintiff confirmed that her doctor had recently increased
her seizure medication, but she was unable to recall the name of the medication. Id. Plaintiff
stated that she now takes 300 mg every day, and the doctor also increased her anxiety medication
to 25 mg. Tr. 54. Plaintiff confirmed that she had an upcoming appointment with her neurologist.
Id. Plaintiff also testified that in October 2021 she had an ultrasound that revealed she had nine
or more nodules on her thyroid. Plaintiff stated she is waiting for an appointment with a thyroid
specialist. Id.
2.

VE’s Testimony

The VE described Plaintiff’s PRW as childcare worker, Dictionary of Occupational Titles
(“DOT”) number 359.677-010, medium exertional level, SVP: 3, semi-skilled; and delicatessen
worker, DOT number 317.664-010, medium exertional level, SVP:2, unskilled. Tr. 55. In her

5

first hypothetical the ALJ asked the VE to assume an individual of the same age, education, and
past work as Plaintiff with the following limitations:
Hypothetical number one is light work except this hypothetical individual could
never climb. She could frequently handle and finger with her right dominant
upper extremity. She could have no exposure to workplace hazards. She would be
further limited to simple, routine tasks performed two hours at a time with only
simple work-related decisions and few, if any, changes in the work setting, but no
fast paced production rate work. And by that, I mean assembly line work. . . . She
could have occasional interaction with the public.
Tr. 55-56. The ALJ acknowledged those limitations would exclude the past work at the medium
level, but asked the VE if there would be other jobs. Tr. 56. The VE provided the following
exemplar jobs: small products assembler, DOT 706.684-022, light exertional level, SVP:2,
unskilled, approximately 230,000 positions nationally; leader tier, DOT 732.687-038, light
exertional level, SVP:2, unskilled, approximately 202,000 positions nationally; and blending
tank tender helper, DOT 520.687-066, light exertional level, SVP:2, unskilled, approximately
245,000 nationally. Id. The VE confirmed that the three jobs had a GED reasoning level of 1 or
2. Tr. 56-57.
For her second hypothetical the ALJ added to the limitations in the first hypothetical that
the individual would be absent from work three or more days per month. Tr. 57. The VE testified
the excessive absenteeism would preclude all work. Id. The VE stated her testimony was not
inconsistent with the DOT and companion publications; however, because absenteeism is not
specifically addressed in those publications she relied on “U.S. Department of Labor data and
statistics, observation of jobs in the marketplace, and vocational education and training in
determining employer tolerances.” Id. The VE stated her answer would be the same as to the
right dominant breakdown for handling and fingering, the pace, and contact with the public. Id.

6

Plaintiff’s counsel asked if jobs would be eliminated or reduced if in the first hypothetical
the individual was limited to occasional handling and fingering with the right. Tr. 57. The VE
testified that two of the three identified jobs would be eliminated, but there would be other jobs
available. Tr. 58. The VE stated that the job that would remain was the blending tank tender
helper. Id. The VE stated that the limitation to occasional would not reduce the number of jobs
available in the national economy because those jobs are at the occasional level. Id.
Counsel asked if any of the listed jobs would be available if the individual was off-task
for 15 percent or more of the workday. Tr. 58. The VE testified that at 15 percent the jobs would
be available, but if the individual “exceeds 20 percent off-task behavior that employability
becomes an issue.” Id. The VE stated that at 20 percent the jobs would not be available, “nor any
jobs in the national economy.” Id.
With no further testimony the hearing closed. Tr. 59.
II.

Discussion
A.

The ALJ’s Findings

In her December 21, 2021 decision, the ALJ made the following findings of fact and
conclusions of law:
1.
The claimant last met the insured status requirements of the
Social Security Act on September 30, 2020.
2.
The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of September 10,
2018 through her date last insured of September 30, 2020 (20 CFR
404.1571 et seq.).
3.
Through the date last insured, the claimant had the
following severe impairments: seizures, carpal tunnel syndrome,
obesity, depression, and anxiety (20 CFR 404.1520(c)).
4.
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
7

equaled 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).
5.
After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the claimant
had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except she can never climb. She
can frequently handle and finger with the right, dominant upper
extremity. She can have no exposure to workplace hazards. She is
limited to simple, routine tasks performed two hours at a time with
only simple, work-related decisions and few, if any, changes in the
work setting, but no fast-paced production rate work. She can have
occasional interaction with the public.
6.
Through the date last insured, the claimant was unable to
perform any past relevant work (20 CFR 404.1565).
7.
The claimant was born on December [redacted] 1983 and
was 36 years old, which is defined as a younger individual age 1849, on the date last insured (20 CFR 404.1563).
8.
The claimant has at least a high school education (20 CFR
404.1564).
9.
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 transferrable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Through the date last insured, considering the claimant’s
age, education, work experience, and residual functional capacity,
there were jobs that existed in significant numbers in the national
economy that the claimant could have performed (20 CFR
404.1569 and 404.1569(a)).
11.
The claimant was not under a disability, as defined in the
Social Security Act, at any time from September 10, 2018, the
alleged onset date, through September 30, 2020, the date last
insured (20 CFR 404.1520(g)).
Tr. 22-23, 25, 33-35.
B.

Legal Framework

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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).
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 (4) whether such impairment prevents claimant from performing PRW; and (5)
whether the impairment prevents the claimant from performing specific jobs that exist in
significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are
sometimes referred to as the “five steps” of the Commissioner’s disability analysis. If a decision
4

The Commissioner’s regulations include an extensive list of impairments (“the Listings” or
“Listed impairments”) the Agency considers disabling without the need to assess whether there
are any jobs a claimant could do. The Agency considers the listed impairments, found at 20
C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R.
§ 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the
listed impairments for at least one year, he will be found disabled without further assessment. 20
C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish
that his impairments match several specific criteria or be “at least equal in severity and duration
to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see
Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his
9

regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §
404.1520(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 the claimant 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); Social Security Ruling (“SSR”) 82–62
(1982). The claimant bears the burden of establishing the 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 the 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 the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264–65 (4th Cir.
1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of
that federal court review is narrowly tailored to determine whether the findings of the
Commissioner are supported by substantial evidence and whether the Commissioner applied the

impairment is disabling at Step 3).
10

proper legal standard in evaluating the claimant’s case. See id., Richardson v. Perales, 402 U.S.
389, 390 (1971); Walls v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere conflicts in the
evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d
846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather,
the court must uphold the Commissioner’s decision if it is supported by substantial evidence.
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (explaining that,
“whatever the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary
sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire
record to assure there is a sound foundation for the Commissioner’s findings, and that the
conclusion is rational. See Vitek, 438 F.2d at 1157–58; see also Thomas v. Celebrezze, 331 F.2d
541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the
Commissioner, that decision must be affirmed “even should the court disagree with such
decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C.

Analysis

Citing to SSR 16-3p, Plaintiff alleges that the ALJ erred in determining she did not meet
or equal the criteria of Listing 12.06 due to the ALJ cherry-picking evidence that is not reflective
of the longitudinal record. Pl.’s Br. 3, ECF No. 11. The Commissioner argues that substantial

11

evidence supports the ALJ’s finding that Plaintiff’s anxiety did not meet or medically equal the
criteria of Listing 12.06. Def.’s Br. 10, ECF No. 13.
1.

Listing 12.06

At Step Three of the sequential evaluation process, to determine whether a claimant’s
impairment or combination of impairments meets or medically equals the criteria of an
impairment listed in 20 C.F.R. pt. 404, Subpt. P, App. 1, the ALJ must identify the relevant listed
impairments and then compare the listing criteria with evidence of claimant’s symptoms. Cook v.
Heckler, 783 F.2d 1168, 1173 (4th Cir.1986). “Without such an explanation, it is simply
impossible to tell whether there was substantial evidence to support the determination.” Id. Here,
the ALJ determined that the “severity of claimant’s mental impairments, considered singly and in
combination, did not meet or medically equal the criteria of listings 12.04 and 12.06.” Tr. 23.
Listing 12.06 concerns “anxiety and obsessive-compulsive disorders” and has three
paragraphs designated as A, B, and C. Listing 12.06 may be satisfied if the claimant’s mental
disorder satisfies requirements of both paragraphs A and B or both paragraphs A and C. See 20
C.F.R. 404, subpt. P, app. 1, § 12.00(A)(1)-(2).
Plaintiff contends that the evidence in the record documents she has satisfied the
requirements of Paragraph A and Paragraph B. Pl.’s Br. 4. The ALJ discussed only the Paragraph
B and Paragraph C criteria. Tr. 23-25. Therefore, for purposes of this Order, the court focuses
only on the Paragraph B criteria. To satisfy the “paragraph B” criteria, the mental impairments
must result in either “extreme” limitation in at least one or “marked” limitation in at least two of
the following four areas of mental functioning: (1) difficulties in understanding, remembering, or
applying information; (2) difficulties in interacting with others; (3) difficulties in maintaining
concentration, persistence, or pace; or (4) difficulties in adapting or managing oneself. 20 C.F.R.

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Part 404, subpt. P, app. 1, § 12.06. A “marked limitation” occurs when “functioning in [an] area
independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20
C.F.R. Part 404, Subpart P, App. 1, 12.00(F)(2)(d). An “extreme limitation” occurs when a
claimant is “not able to function in this area independently, appropriately, effectively, and on a
sustained basis.” 20 C.F.R. Part 404, Subpart P, App. 1, 12.00(F)(2)(e).
Regarding the first area of mental functioning—understanding, remembering, or applying
information—the ALJ found that Plaintiff had a moderate limitation. Tr. 24. The ALJ noted that
although Plaintiff “alleged that she has difficulty understanding, remembering, and following
instructions (11E/6)[,] [m]ental status exams throughout the longitudinal record report no deficits
in memory or cognition (3F/8, 11, 17; 4F/4,11,17, 20-21, 57; 5F/4). However, the psychological
consultative examiner noted that the claimant could recall 1 out of 3 objects at 5 minutes,
suggesting a mild impairment in short-term auditory memory functioning (11F/3).” Id.
In the area of interacting with others, the ALJ found that Plaintiff had a moderate
limitation. The ALJ noted:
The claimant has alleged that she does not like to be around people in public
(11E/6). However, the record shows that [s]he remained able to interact with
others one-on-one. For example, the claimant lives with her husband and two sons
and visits with friends at home (Hearing Testimony; 11E/5). In addition,
providers have described the claimant as pleasant (3F/8). The claimant also told
the consultative examiner that she got along well with others while working
(11F/1). The record also shows that the claimant was able to function in public, as
she is able to go grocery shopping with her husband, go to the emergency room,
and go to doctor’s appointments (Hearing Testimony; 11F/2).
Id. Regarding the functional area of concentrating, persisting or maintaining pace, the ALJ
determined Plaintiff had a moderate limitation. The ALJ noted:
The claimant has alleged that she has difficulty maintaining concentration and
completing tasks (11E/6). Although the consultative examiner noted fair attention
and fair to poor concentration, mental status exams throughout the longitudinal
record report normal attention and concentration (3F/8, 11, 17; 4F/4, 11, 17, 2013

21, 23, 26, 29, 39, 57; 5F/4; 9F/6, 25; 10F/1; 11F/3; 13F/2). The claimant
remained able to perform a variety of simple tasks, such as preparing simple
meals, laundry, household cleaning, watching television, and listening to audio
books (11F/2).
Id. As to the final Paragraph B criteria, adapting or managing oneself, the ALJ also determined that
Plaintiff “had experienced a moderate limitation.” Id. She noted:
The claimant has alleged that she does not always handle stress or changes in
routine well (11E/7). However, she is able to attend to her personal care without
any reminders or problems, with the exception of someone in the house when she
bathes, and uses an alarm to remind herself to take medication (11E/2-3).
Moreover, she is able to participate in the care of her two children, ages 17 and 9
(Hearing Testimony). The claimant also told the psychological consultative
examiner that she is fully capable of managing her funds independently and
accurately, although her husband currently manages the household finances
(11F/2). Mental status examinations show that the claimant typically has good
insight and judgment (3F/8, 11, 17; 4F/4, 11, 17, 20-21, 57; 5F/4).
The ALJ concluded that because Plaintiff’s mental impairments did not cause at least two
“marked” limitations or one “extreme” limitation, Plaintiff did not satisfy the Paragraph B criteria
for Listing 12.06. Id. Citing to the evaluation of a consultative examiner, Plaintiff contends she
meets the “B” criteria of Listing 12.06 because she has an extreme limitation in maintaining
concentration, persistence, and pace. Pl.’s Br. 5.
2.

Evidence of Extreme Limitation

On July 24, 2020, Licensed Clinical Psychologist, Cashton B. Spivey, Ph.D. conducted a
Psychological Evaluation of Plaintiff upon referral of the S.C. Vocational Rehabilitation
Department, Disability Determination Division to evaluate her cognitive, personality and
emotional functioning. Tr. 892-95. In his Conclusions and Recommendations Dr. Spivey noted
that Plaintiff scored 27 out of a possible 30 points on the Mini-Mental State Examination—a
score that was “within normal limits.” Tr. 894. He diagnosed Plaintiff with major depressive

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disorder, unspecified anxiety disorder, and social anxiety disorder. Id. Dr. Spivey provided the
following assessment:
[Claimant] is an individual who would be capable of managing funds
independently and accurately. This assessment is based primarily on an estimate
of her general intelligence score likely falling in the low average range as well as
her report that she has successfully completed high school and received a
diploma. [Claimant] believes she is fully capable of managing funds
independently. [Claimant] is currently performing certain household duties and
chores independently. She is capable of doing the laundry, loading and unloading
the dishwasher and cleaning the house. She would be capable of understanding
simple and complex instructions as well as performing simple and complex tasks
in the workplace. This assessment is based primarily on an estimate of her general
intelligence score likely falling in the low average range. She would currently
display difficulty relating well to others in the workplace due to the magnitude of
her reported dysphoria, her reported emotional lability, and her report of social
anxiety. [Claimant] believes she would have problems with persistence in the
workplace due to her report of attention/concentration difficulties. During the
evaluation, her attention was fair while the concentration ranged from fair to poor.
Therefore, based on behavior observations made during this evaluation, she would
display difficulty sustaining concentration and persisting in work related activities
at a reasonable pace.
Tr. 894-95.
Plaintiff contends that the consultative examiner’s finding that that she would display
difficulty sustaining concentration and persisting in work-related activities at a reasonable pace is
an “extreme” limitation in maintaining concentration, persistence and pace and she therefore
meets the Paragraph B criteria. Pl.’s Br. 5. The Commissioner argues that the ALJ provided
substantial evidentiary support for her finding that “Plaintiff’s anxiety did not satisfy the
exacting criteria of Listing 12.06 (Tr. 23-25).” Def.’s Br. 14.
The ALJ discussed Plaintiff’s medical treatment record thoroughly over five pages in her
decision. Tr. 26-30. The ALJ noted that she “considered the findings on mental status
examination and opinions from the consultative examination; however, the longitudinal record
shows that the claimant had been off her medications for approximately seven months and

15

returned to her primary care provider for medications just 7 days prior to the consultative
examination (10F/4; 11F; 12F/13).5” Tr. 31. The ALJ indicated that she considered Plaintiff’s
mental impairments in the mental limitations in her residual functional capacity (“RFC”)
assessment, specifically finding that Plaintiff’s “moderate limitation in concentrating, persisting
or maintaining pace supports the limitation to no fast-paced production rate work.” Id. As to
Plaintiff’s statements about the intensity, persistence, and limiting effects of her symptoms, the
ALJ noted that the longitudinal record shows no specialized outpatient mental health treatment
and no psychiatric hospitalizations. Id. The ALJ indicated that she considered Plaintiff’s claims
regarding the inability to afford healthcare pursuant to SSR 18-3p and found “no evidence
indicating that the claimant exhausted all resources available to individuals who cannot afford
medical treatment or medication such as hospitals, clinics, or community agencies.” Id.
Additionally, the ALJ indicated that along with numerous instances of noncompliance with
prescribed medication, the record contained reports of positive drug screens for benzodiazepines,
marijuana, and opioids. Id.
Regarding the opinion evidence related to Plaintiff’s mental impairments, the ALJ
considered the opinions of the State agency psychologists and the opinion of the consultative
examiner. The ALJ determined that the “psychological consultants’ determination that the
claimant’s anxiety and depression resulted in moderate limitations in three of the four paragraph
B domains is generally supported by and consistent with the longitudinal record, especially the
consultative examination performed by Dr. Spivey (11F). However, evidence presented at the
5

Exhibit 10F/4 is a July 17, 2020 treatment record from Trinity Family Practice, LLC. Plaintiff
appeared for “an acute visit for anxiety and depression.” Tr. 888. Plaintiff indicated she had
stopped taking her medications seven months prior because she could not afford them and
indicated she wanted to restart her medications. Id. Exhibit 11F is Dr. Spivey’s consultative
Psychological Evaluation. Tr. 892-95. Exhibit 12F/13 is a duplicate copy of the July 17, 2020
16

hearing level, especially relating to the claimant’s difficulty managing stress, frequent
tearfulness, and noncompliance with prescribed medication, supports a determination that the
claimant also has a moderate limitation in adapting or managing oneself.”6 Tr. 32. Specifically as
to Dr. Spivey’s opinion the ALJ found:
Dr. Spivey’s opinion that the claimant would display difficulty sustaining
concentration and persistence in work-related activities is supported by his
findings of fair attention and concentration. However, the undersigned notes that
the opinion is not fully consistent with the longitudinal record, which reports
normal findings relating to attention and concentration (3F/8, 11, 17; 4F/4, 11, 17,
20-21, 23, 26, 29, 39, 57; 5F/4; 9F/6, 25; 10F/1; 13F/2).7 Moreover, the record
shows that the claimant had been off prescribed medication for her mental
impairments for the previous seven months and had only returned to her primary
care provider for medication seven days prior to the consultative examination
(10F/4; 11F; 12F/13).
Tr. 33.
As noted above, under the criteria for Listing-level mental disorders, an “extreme
limitation” occurs when a claimant is “not able to function in this area independently,
appropriately, effectively, and on a sustained basis.” 20 C.F.R. Part 404, Subpart P, App. 1,
12.00(F)(2)(e) (emphasis added). Here, the consultative examiner never opined that Plaintiff met
the requirements of a Listing, or that she had an extreme limitation in any functional area. His
report supports the idea that Plaintiff could work—albeit with some “problems” or “difficulties”

treatment record.
6
The State agency psychologists determined Plaintiff had moderate limitations in the first three
functional areas of Paragraph B, and mild limitations in the area of adapt or manage oneself. Tr.
78, 97-98.
7
The records from Exhibit 3F include Emergency Department (“ED”) notes from Oconee
Memorial Hospital in 2017 and 2018. Tr. 342, 345, 351. The records from Exhibit 4F include
treatment notes from Don Bryant, M.D. Family Medicine from September 2017 to January 2019,
Tr. 399, 406, 412, 415-16, 418, 421, 424; an October 2018 urgent care visit to AnMed Health,
Tr. 434; and a May 2018 office visit to Dr. John Charles Saunders, Tr. 452. Exhibit 5F/4 is a
January 2019 treatment note from Oconee Hospital ED. Tr. 465. Exhibit 9F contains records
from two visits to AnMed Health ED in December 2019. Tr. 783, 802. The record from Exhibit
10F is an August 2019 treatment note from Trinity Family Practice, Tr. 885-86; and Exhibit 13F
is an October 2021 treatment note from Easley Hospital ED, Tr. 916. The ALJ provided a
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in certain areas. Tr. 894. Dr. Spivey noted that during the evaluation Plaintiff’s “attention was
fair while the concentration ranged from fair to poor.” Id. He indicated only that Plaintiff would
“display difficulty” in the area of sustaining concentration and persisting in work-related
activities, not that she would be unable to function. Tr. 895.
Plaintiff disagrees with the ALJ’s findings and wants the court to view the evidence she
highlights differently. However, it is the responsibility of the ALJ to decide the legal question of
whether a claimant’s impairment meets or equals a Listing. SSR 96-6p, 1996 WL 374180, at *3.
The ALJ is responsible for weighing the evidence and resolving any evidentiary conflicts, not the
court. Keene v. Berryhill, 732 F. App’x 174, 177 (4th Cir. 2018) (“This 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.”). “In reviewing for substantial evidence, we do not
undertake to reweigh conflicting evidence, make credibility determinations, or substitute our
judgment for that of the ALJ. Where conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that decision falls on the ALJ.” Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (brackets, citation, and internal quotation marks
omitted). Substantial evidence supports the ALJ’s finding of a moderate limitation in the area of
concentration, persistence, or maintaining pace.
3.

ALJ’s Consideration of the Longitudinal Record

Plaintiff argues the ALJ failed to find she meets Listing 12.06 because the ALJ cherrypicked evidence that is not reflective of the longitudinal record. Pl.’s Br. 3. Plaintiff contends the
“ALJ references Exhibit 14F/118 as evidence of normal attention and concentration” but that

detailed discussion of these records in her Decision. Tr. 26-29.
8
This appears to be a scrivener’s error on the part of Plaintiff. The ALJ does not reference
Exhibit 14F/11 anywhere in her Decision; the transcript page numbers cited by Plaintiff
18

record “does not mention attention and concentration.” Id. at 5. Based on this one record Plaintiff
asserts the “ALJ clearly has not properly considered the longitudinal record and therefore
Plaintiff’s impairments were not properly evaluated and considered in the decision that was
rendered.” Id.
As noted above, the ALJ cites to many records in her Decision that support her finding of
a moderate limitation in the area of concentrating, persisting or maintaining pace. In addition to
page 11 of Exhibit 4F, the ALJ also cites to pages 4, 17, 20-21, 23, 26, 29, 39, and 57 of this
exhibit—as well as seven other exhibits—as records reporting normal mood, affect, behavior,
judgment, thought content, insight, memory, and cognition. Tr. 24. In her Listing analysis, the
ALJ cited to Plaintiff’s Function Report and medical records and noted favorable and
unfavorable facts in finding moderate limitations and not marked or extreme limitations. Tr. 24.
The ALJ accurately summarized the entirety of Plaintiff’s medical records and testimony and the
relevant medical opinions, including evidence supportive of limitations. Tr. 25-29. The ALJ
considered Plaintiff’s mental limitations in restricting her to “simple, routine tasks performed
two hours at a time with only simple, work-related decisions and few, if any changes in the work
setting, but no fast-paced production rate work” and only occasional interaction with the public.
Tr. 25.
The court finds that the ALJ’s decision is supported by substantial evidence. Plaintiff is
correct that an ALJ may not simply “cherry pick” portions of the evidence to support his
conclusions. Pl.’s Br. 3; see Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017). Here,
however, the ALJ directly addressed Plaintiff’s medical records, acknowledged her several
severe impairments, and explained with citations to the record why she found Plaintiff was not

correspond to Exhibit 4F.
19

limited to the extent she alleged. The ALJ did not improperly cherry-pick the record; her
decision is supported by substantial evidence. See Hall v. Saul, No. 1:19-CV-01637-RBH, 2020
WL 6156535, at *9 (D.S.C. Oct. 21, 2020) (finding ALJ appropriately considered the record and
had not “cherry-picked” evidence only to support his findings). Accordingly, the ALJ did not err
in finding Plaintiff had not established a per se disability under Listing 12.06 (or any other listed
impairments).
III.

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

determine whether the ALJ’s decision is supported as a matter of fact and law. The
Commissioner performed an adequate review of the whole record evidence and that the decision
is supported by substantial evidence.
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying,
or reversing the Commissioner’s decision with remand in Social Security actions under the Act,
the Commissioner’s decision is affirmed.
IT IS SO ORDERED.

February 6, 2024
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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