Hardy v. Commissioner of Social Security Administration

Filing 23

ORDER adopting 19 Report and Recommendation and affirming denial of disability benefits. Signed by Honorable David C Norton on 3/27/12. (juwo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
VALLERIE HARDY,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTRUE, COMMISSIONER )
OF SOCIAL SECURITY,
)
)
Defendant.
)
)

No. 6:10-cv-02972-DCN

ORDER

This matter is before the court on the magistrate judge’s Report and
Recommendation (R&R) that this court affirm the Administrative Law Judge’s (ALJ)
decision denying plaintiff’s application for disability insurance benefits (DIB). Plaintiff
filed objections to the R&R. For the reasons set forth below, the court adopts the R&R
and affirms the Commissioner’s denial of benefits.
I. BACKGROUND
Plaintiff Vallerie Hardy first filed for DIB on November 25, 1996. Her
application was denied on January 14, 1997, without appeal. Hardy filed a second
application for DIB on June 4, 1998, which was denied initially on July 16, 1998, and
upon review by the ALJ on June 16, 2000. Hardy last met the disability insured status
requirement on June 30, 2000.
Hardy filed the instant application for DIB on October 26, 2001. Hardy alleges
disability since March 31, 1995; however, because her first claim for DIB was denied on
January 14, 1997, without appeal, her earliest possible onset date of disability is January
15, 1997. As Hardy’s insured status expired on June 30, 2000, the period of disability at
issue in this case is from January 15, 1997, to June 30, 2000. Hardy’s claim was denied
1

on March 4, 2002, and upon reconsideration on December 6, 2002. Hardy timely
requested an administrative hearing, which was held on December 2, 2004, and continued
February 3, 2005. The ALJ denied the claim on June 15, 2005. Tr. 16-25.
On May 22, 2007, Magistrate Judge William M. Catoe filed an R&R,
recommending that the ALJ’s decision be reversed and remanded for further proceedings
under sentence four of 42 U.S.C. § 405(g). Tr. 512. No objections were filed. On June
14, 2007, this court adopted the R&R, which gave the following instructions to the ALJ
on remand: (1) to reconsider the weight due Hardy’s treating physician opinions; (2) to
reevaluate the link between Hardy’s mental impairments and her subjective complaints of
pain; (3) to reconsider Hardy’s residual functional capacity (RFC), in particular why
Hardy’s obesity, migraine headaches, asthma, and anxiety were found not to be severe
impairments; and (4) to resolve conflicts between the Vocational Expert’s testimony and
the Dictionary of Occupational Titles. Tr. 486-87, 507-12.
Pursuant to the remand order, the Appeals Council directed further consideration
of Hardy’s alleged disability to the ALJ. Hardy testified at a supplemental hearing held
on February 7, 2008. On March 28, 2008, the ALJ again denied Hardy’s application for
DIB. Tr. 450-66. Magistrate Judge Kevin F. McDonald filed an R&R on January 6,
2012, recommending that the Commissioner’s decision be affirmed. Tr. 512. Hardy
filed timely objections to the R&R on January 23, 2012.
Hardy was 51 years old when her insured status expired. Tr. 463. She suffers
from a history of degenerative disc disease in her neck with surgery there, asthma,
anxiety, depression, diabetes, headaches, and obesity. Tr. 180, 304-09, 453. Hardy has

2

past relevant work experience as an insurance underwriter, administrative specialist, and
telephone operator. Tr. 90, 104.
In 1995, Hardy underwent a cervical discectomy after a spinal MRI revealed bone
spurs. Tr. 309. Following her surgery, in May 1996, Hardy began seeing Dr. Lovelace
for treatment. Tr. 283. Hardy complained of head, neck, and arm pain, along with sleep
difficulties. Tr. 300. Dr. Lovelace referred Hardy to a pain management center, where,
in conjunction with intensive pain treatment, Hardy underwent a psychological
evaluation by Dr. Drummond. Tr. 180. In December 1998 and January 1999, Dr.
Drummond administered several psychological tests, including a Millon Clinical
Multiaxial Inventory-III (MCMI-III) and Minnesota Multiphasic Personality Inventory 2
(MMPI-2). Tr. 138-64. Dr. Drummond noted a likely relationship between Hardy’s
“physical problems” and “depressed mood.” Tr. 149. Near her completion of the pain
program, another physician, Dr. DuBose, remarked that Hardy “is doing quite well” but
“continues to have some pain complaints.” Tr. 169. A physical therapist stated that
Hardy made “moderate gains.” Tr. 168.
Following the completion of her pain program, Hardy told Dr. Lovelace that she
received no relief, but Dr. Lovelace observed that “the last note from the Pain Clinic in
4/99 suggests that she was better.” Tr. 284, 293. On February 25, 2000, Dr. Lovelace
wrote to Hardy’s attorney and stated that Hardy “failed to improve” from her treatment in
the pain center and “is unable to be gainfully employed due to her illnesses and chronic
pain.” Tr. 283, 297.
Hardy’s insured status expired on June 30, 2000. Tr. 451. In February 2002,
stage agency psychologists Drs. Phillips and Ibiary reviewed Hardy’s medical records for

3

the period at issue and opined that the evidence was insufficient to establish any mental
impairment. Tr. 206-19. Dr. Ibiary determined that Hardy was restricted to performing
light work with no more than occasional climbing. Tr. 200. State agency psychologist
Dr. Varner also reviewed Hardy’s records and found that up until the date she was last
insured, Hardy’s impairments “imposed minimal limitations on her ability to perform
basic work functions.” Tr. 196.
In November 2004, Dr. Lovelace completed a questionnaire in support of Hardy’s
application for DIB, opining that Hardy “is permanently disabled due to her multiple
problems and has been since [February 25, 2000].” Tr. 355. Dr. Lovelace also wrote a
letter stating that, in light of Hardy’s impairments, she “would most certainly miss more
than an hour of work during the working portion of an 8 hour work day, and would miss
more than 3 days of work per month[], on the average.” Tr. 356.
Also in November 2004, Dr. Smith, who began treating Hardy in May 2003 for
psychological problems, wrote a letter on Hardy’s behalf stating that she “would have
great difficulty with any activity that called for regular attendance, meeting a schedule,
performing on a production schedule, or quotas. She would certainly miss more than 3
days of work per month . . . . She would have marked difficulty dealing with work peers,
supervisors, and the public.” Tr. 354. Dr. Smith relied on the MCMI-III and MMPI-2
tests administered by Dr. Drummond in 1998 and 1999.
In January 2005, Dr. Drummond provided a letter summarizing his prior
treatment of Hardy at the pain management center. Dr. Drummond opined that during
this time, she “had a psychological condition that was sufficiently severe to interfere with
any regular activity, including work.” Tr. 359. Dr. Drummond noted that Hardy “also

4

suffered from a physical pain condition.” Id. As a result, Dr. Drummond found that
Hardy “would have missed more than 3 days or more of work during any month, and
more than an hour during the working portion of any work day because of these
psychological problems.” Id. Dr. Drummond “did not follow Ms. Hardy before or after
[late 1998 and early 1999],” but found “it was clear that she had a chronic condition at
the above level of severity both before and after treatment in our program.” Id. Another
physician in the pain center, Dr. Prabhu, wrote a letter in March 2005 stating that Hardy
“did fairly well physically.” Tr. 360. Dr. Prabhu deferred to Dr. Drummond’s analysis
of Hardy’s mental impairments.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270-71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
is narrowly tailored to “determining whether the findings of the [Commissioner] are
supported by substantial evidence and whether the correct law was applied.” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “Substantial evidence has been defined . .
. as more than a scintilla, but less than [a] preponderance.” Thomas v. Celebrezze, 331
F.2d 541, 543 (4th Cir. 1964). “It means such relevant evidence as a reasonable mind

5

might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (internal quotation marks omitted).
“[T]he court [must] uphold the [Commissioner’s] decision even should the court
disagree with such decision as long as it is supported by ‘substantial evidence.’” Blalock
v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “Ultimately, it is the duty of the
administrative law judge reviewing a case, and not the responsibility of the courts, to
make findings of fact and to resolve conflicts in the evidence.” Hays, 907 F.2d at 1456.
III. DISCUSSION
“Disability” is defined as the “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). The Social
Security Regulations establish a five-step sequential evaluation process to determine
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ must
determine whether the claimant: (1) is engaging in substantial gainful activity; (2) has a
“severe impairment”; (3) has an impairment that meets the criteria listed in 20 C.F.R. part
404, subpart P, appendix 1; (4) has the RFC to perform past relevant work; and (5) can
perform any other work considering the claimant’s vocational factors (RFC, age,
education, and work experience). See id. § 404.1520(a)(4); Hall v. Harris, 658 F.2d 260,
264-65 (4th Cir. 1981). The applicant bears the burden of proof during the first four steps
of the inquiry, while the burden shifts to the Commissioner for the final step. Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If at any step the claimant is found disabled,
no further inquiry is needed. 20 C.F.R. § 404.1520(a)(4).

6

At the first step of the sequential analysis, the ALJ found that Hardy had not
engaged in substantial gainful activity from the relevant period of January 15, 1997,
through June 30, 2000. Tr. 453. Proceeding to the second step, the ALJ found that
Hardy had the following severe impairments: residuals of degenerative disc disease of
the cervical spine post surgery; depression; and a pain disorder. Id. Hardy’s obesity,
migraine headaches, asthma, and anxiety were found not to be severe impediments as
defined by the Regulations. Id. At step three, the ALJ found that Hardy had no
impairment that met or medically equaled one of the listed impairments in 20 C.F.R. part
404, subpart P, appendix 1. At steps four and five, the ALJ determined that Hardy,
through the period at issue, was unable to perform past relevant work but had the RFC to
perform simple, routine, light work in a supervised environment, with additional
limitations. Tr. 455, 463. The ALJ concluded that considering Hardy’s vocational
factors, Hardy could perform jobs existing in significant numbers in the national
economy, thus she was not disabled. Tr. 464.
The magistrate judge recommended that the court affirm the ALJ’s decision.
Hardy objects that the ALJ failed to follow this court’s remand order. She specifically
argues that the ALJ failed: (1) to give great weight to the opinions of her treating
physicians and to give sufficient reasons for denying those opinions controlling weight;
and (2) to properly analyze her subjective complaints of pain and credibility. The court
takes these objections in turn.
A. Evaluation of the Medical Opinions
Hardy first argues that in assessing her RFC, the ALJ failed to properly evaluate
the medical opinions of her treating physicians, Drs. Lovelace, Drummond, and Smith.
This court previously remanded to the ALJ to consider the weight to be given to the
7

treating physicians’ opinions according to the factors listed at 20 C.F.R. § 404.1527(d).
Tr. 507. The ALJ subsequently determined that the opinions of Drs. Lovelace,
Drummond, and Smith were not “supported by objective clinical findings or persuasive
in evaluating [Hardy’s] disability for the period at issue.” Tr. 463.
Under the “treating physician rule,” a treating physician’s opinion is given
controlling weight if it is well-supported by medically acceptable clinical evidence and
not inconsistent with other substantial evidence of record. 20 C.F.R. § 404.1527(d)(2).
“[I]f a physician’s opinion is not supported by clinical evidence or if it is inconsistent
with other substantial evidence, it should be accorded significantly less weight.” Craig v.
Chater, 76 F.3d 585, 590 (4th Cir. 1996).
Statements that a patient is “disabled” or “unable to work” are not medical
opinions but administrative findings reserved for the Commissioner. SSR 96-5p, 1996
WL 374183, at *5 (July 2, 1996). The ALJ is not free to simply ignore such statements,
but must instead “evaluate all the evidence in the case record” to determine whether the
statements are “supported by the record.” Id. at *3.
When an ALJ assigns less than controlling weight to a treating physician’s
opinion, she must still give “good reasons” for the weight given, by “rationally
articulat[ing] the grounds for her decision.” Steel v. Barnhart, 290 F.3d 936, 941 (7th
Cir. 2002); SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). In assigning a weight, the
ALJ must consider: (1) the length of the treatment relationship and frequency of
examination; (2) the nature and extent of the treatment relationship; (3) the supportability
of the opinion; (4) the consistency of the opinion with the record as a whole; (5) the
specialization of the physician; and (6) other factors which tend to support or contradict

8

the opinion. 20 C.F.R. § 404.1527(d)(1)-(6). Courts do not typically require an ALJ to
expressly discuss each factor; however, “the ALJ must at least indicate that he or she was
aware of and considered all of the factors.” Baxter v. Astrue, No. 10-3048, 2012 WL
32567, at *6-7 (D. Md. Jan. 4, 2012). “An ALJ’s determination as to the weight to be
assigned to a medical opinion will generally not be disturbed absent some indication that
the ALJ has dredged up some ‘specious inconsistencies,’ or has not given good reason for
the weight afforded a particular opinion.” Koonce v. Apfel, No. 98-1144, 1999 WL
7864, at *2 (4th Cir. Jan. 11, 1999) (citation omitted).
1. Dr. Lovelace
The court’s prior remand order required the ALJ to consider the weight owed to
Dr. Lovelace’s opinions according to the § 404.1527(d) factors. The ALJ again found
Dr. Lovelace’s opinions to be unpersuasive. Hardy argues that the ALJ failed to properly
give Dr. Lovelace’s opinions controlling weight. Pl.’s Obj. 7.
The ALJ’s decision shows that he weighed Dr. Lovelace’s opinions according to
the § 404.1527(d) factors and gave good reasons for the weight given. First, as to Dr.
Lovelace’s statements that Hardy was “disabled” and “unable to be gainfully employed,”
the ALJ properly found that such statements are administrative findings reserved for the
Commissioner. See Tr. 355 (questionnaire stating that Hardy is “permanently disabled
due to her multiple problems”); SSR 96-5p, 1996 WL 374183, at *5 (“Such opinions . . .
can never be entitled to controlling weight or given special significance.”). Next,
applying the § 404.1527(d) factors, the ALJ recognized Dr. Lovelace’s status as Hardy’s
primary care physician, discussed Hardy’s visits with Dr. Lovelace during the relevant
period and the nature and frequency of those visits, and analyzed the supportability and

9

consistency of Dr. Lovelace’s opinions. Tr. 456. Specifically, the ALJ determined that
Dr. Lovelace’s opinions as to Hardy's disability were inconsistent with his own treatment
notes and those of other physicians. For instance, in February 2000, Dr. Lovelace wrote
that Hardy had “failed to improve” from her treatment in the pain center, Tr. 283, but his
treatment notes from September 1999 refer to Dr. DuBose’s April 1999 report, which
states that Hardy “has actually done fairly well,” “is recovering more quickly,” and
“overall feels in more control.” Tr. 166, 293. A physicians opinion “should be accorded
significantly less weight” if it “is not supported by clinical evidence” or “inconsistent
with other substantial evidence.” Craig, 76 F.3d at 590.
Moreover, in the remand order, the magistrate judge found that the ALJ had
previously “ignored the evidence showing [the] psychological nature of the plaintiff’s
pain disorder, which [the ALJ] found was a severe disorder.” Tr. 506. Here, the ALJ did
not disregard Hardy’s psychological symptoms during the period at issue, including her
depression, but took them into account. He found that Hardy “initially reported an
essentially situational depression and thereafter had a good response to a simple
medication regime prescribed by Dr. Lovelace.” Tr. 461. The ALJ also factored Hardy’s
mental limitations into his final RFC assessment, finding, “The mental limitations are
supported by the clinical evidence as to a pain disorder and depression sufficient to
interfere with concentration and memory but not to preclude all work.” Tr. 463.
For these reasons, the court finds that the ALJ evaluated Dr. Lovelace’s medical
opinions according to the appropriate standards and that his decision is supported by
substantial evidence.

10

2. Dr. Drummond
Next, Hardy argues that the ALJ failed to properly evaluate Dr. Drummond’s
medical opinions. Pl.’s Obj. 6. The court’s remand order instructed the ALJ to apply the
§ 404.1527(d) factors to Dr. Drummond’s opinions. Subsequently, the ALJ found Dr.
Drummond’s opinions to be unpersuasive and unsupported by the substantial evidence of
record. Tr. 463.
The ALJ looked to the length, frequency, and nature of Dr. Drummond’s
treatment, noting that Dr. Drummond treated Hardy during her “brief” five-week period
at the pain management center, “for a psychological evaluation purely related to her
participation in a pain management program.” Tr. 462. The ALJ then considered the
consistency and supportability of Dr. Drummond’s opinions, noting inconsistencies
between Dr. Drummond’s conclusions based on the psychological tests he administered
and the test results themselves. In particular, the ALJ referenced Dr. Drummond’s
reports from the pain management program, which indicated “psychological dysfunction
of mild to moderate severity” that could “be managed with either brief or extended
therapeutic methods,” and that Hardy “made gains regarding depression, strength,
endurance, and flexibility, and insight as to needed further changes.” Tr. 139, 144, 175.
Yet, in 2005, Dr. Drummond opined that during the period at issue, Hardy “had a
psychological condition that was sufficiently severe to interfere with any regular activity,
including work.” Tr. 359; see Montgomery v. Chater, No. 95-2851, 1997 WL 76937, at
*1 (4th Cir. Feb. 25, 1997) (holding ALJ properly discredited treating physician’s
opinion because “contemporaneous records documenting [the claimant’s] condition at the
time of treatment failed to corroborate his retrospective opinions”). The ALJ also pointed

11

out that the MCMI-III and MMPI-2 reports “state, essentially, that they cannot be
considered definitive and must be evaluated in conjunction with additional clinical data.”3
Tr. 139, 151, 462. Finally, the ALJ noted that the record only contains Dr. Drummond’s
initial report at the pain center, his closing report, and a summary of his opinions
prepared nearly six years later, none of which identify any specific treatment afforded by
Dr. Drummond. Tr. 462. “[T]he claimant has the burden of producing evidence in
support of his claim and . . . his claim for benefits may be properly denied if his evidence
is insufficient to persuade the [Commissioner].” Breeden v. Weinberger, 493 F.2d 1002,
1005 (4th Cir. 1974); see also Johnson v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005)
(“To qualify for DIB, [the claimant] must prove that she became disabled prior to the
expiration of her insured status.”).
In addition, in the court’s prior remand order, the magistrate judge found that
“there is no evidence that Dr. Drummond’s opinion was unreliable because his memory
was flawed.” Tr. 506. Here, unlike in his previous decision, the ALJ did not focus on
Dr. Drummond’s ability to recall his prior treatment of Hardy. Cf. Tr. 20 with Tr. 45960, 462. The ALJ instead applied the § 404.1527(d) factors and gave specific reasons for
the weight given to Dr. Drummond’s opinions, and his decision is supported by
substantial evidence.

3

Hardy argues that the ALJ improperly supplanted his own analysis of these tests for that of Dr.
Drummond, Pl.’s Obj. 6, but in reality the ALJ simply pointed out objective inconsistencies
between the test results and summarized the disclaimers written on the test reports. In making an
RFC assessment, the ALJ is required to “explain how any material inconsistencies or ambiguities
in the evidence in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184,
at *7 (July 2, 1996).

12

3. Dr. Smith
Finally, Hardy argues that the ALJ failed to properly evaluate Dr. Smith’s medical
opinions. Pl.’s Obj. 5. The court’s remand order instructed the ALJ to apply the §
404.1527(d) factors to these opinions.
The ALJ gave specific reasons for the weight afforded to Dr. Smith’s medical
opinions. As mentioned, Dr. Smith began treating Hardy in May 2003 for her
psychological impairments, almost three years after Hardy’s insured status expired. In
November 2004, Dr. Smith wrote a letter on Hardy’s behalf, stating that during the period
at issue, Hardy “would certainly miss more than 3 days of work per month” and “would
have marked difficulty dealing with work peers, supervisors, and the public.” Tr. 354.
The ALJ found that Dr. Smith’s retrospective opinions were not controlling because they
were unsupported by the record, see Fortner v. Astrue, No. 10-2529, 2011 WL 5299429,
at *5 (D. Md. Nov. 2, 2011), not simply because they were retrospective. See
Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987) (emphasis added) (noting that
“medical evaluations made subsequent to the expiration of a claimant’s insured status . . .
may be relevant to prove a previous disability”); see also Cox v. Barnhart, 471 F.3d 902,
907 (4th Cir. 2006) (emphasis added) (“[T]he ALJ was entitled to grant Dr. Hackbarth’s
opinion less deference because of the inconsistencies the judge identified and because the
letter had been written three years after Cox’s benefits expired.”).
The remand order admonished the ALJ for previously disregarding Dr. Smith’s
opinions because he began treating Hardy after the period at issue: “It appears that the
ALJ rejected Dr. Smith’s opinion solely because it was retrospective, even though he
reviewed the plaintiff’s medical records and tests administered prior to the date [Hardy]

13

was last insured.” Tr. 506. Here, the ALJ gave further reasons for finding Dr. Smith’s
opinions to be unpersuasive. He pointed out the “incomplete nature” of the MCMI-III
and MMPI-2 tests administered by Dr. Drummond, which apparently formed the primary
basis of Dr. Smith’s opinions regarding Hardy’s psychological impairments during the
period at issue. Tr. 354, 463. The ALJ noted that although Dr. Smith began treating
Hardy for anxiety in 2003, none of the other treating sources during the period at issue
cited any treatment for anxiety. Tr. 453. The ALJ also pointed out that Dr. Smith’s
consideration of the record omitted Dr. Lovelace’s mental health treatment of Hardy prior
to her admittance into the pain center. Tr. 463.
The court finds that the ALJ “applied the substance” of the § 404.1527(d) factors
and gave specific reasons for the weight given to Dr. Smith’s opinions. Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
In sum, the ALJ’s decision to afford less than controlling weight to the medical
opinions of Drs. Lovelace, Drummond, and Smith, despite their status as treating
physicians, is supported by substantial evidence. The ALJ is entitled to rely on the
opinions of other physicians and state agency psychologists when they more accurately
reflect the claimant’s condition and are consistent with the record. See Smith v.
Schweiker, 795 F.2d 343, 346 (4th Cir. 1986); 20 C.F.R. §§ 404.1527(f), 416.927(f).4

4

Hardy also argues that the ALJ essentially recited his “same findings” in his decision following
the court’s remand order. Pl.’s Br. 1; Pl.’s Obj. 2-3. The magistrate judge did not address the
ALJ’s compliance with the directives of the previous R&R. The court notes that the magistrate
judge should have considered whether the ALJ complied with the previously-filed R&R and this
court’s subsequent order adopting the R&R and remanding to the ALJ. “Deviation from the
court’s remand order in the subsequent administrative proceedings is itself legal error, subject to
reversal on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 886 (1989). Despite this
omission, the court finds that the ALJ did not simply recount his earlier findings, but instead
provided a more detailed evaluation of Hardy’s treating physicians than before.

14

B. Subjective Complaints of Pain
Hardy next objects to the R&R on the ground that the ALJ’s evaluation of her
credibility and subjective complaints of pain is not supported by substantial evidence.
Pl.’s Obj. 8. “[T]he determination of whether a person is disabled by pain or other
symptoms is a two-step process.” Craig, 76 F.3d at 594. First, the ALJ must consider
whether there is an underlying medically determinable physical or mental impairment
that could reasonably be expected to cause the claimant’s pain or other symptoms. SSR
96-7p, 1996 WL 374186, at *2 (July 2, 1996). Second, once such an impairment has
been established, the ALJ must evaluate the intensity, persistence, and limiting effects of
the claimant’s symptoms to determine whether they limit the claimant’s ability to
perform basic work activities. Id. If the claimant’s statements regarding intensity,
persistence, or limiting effects of pain are not substantiated by objective medical
evidence, the ALJ must make a credibility determination based on the entire record. 20
C.F.R. § 404.1529(a).
Hardy testified during the various administrative hearings that she was in
“excruciating pain” and “wasn’t able to do anything” prior to her treatment at the pain
management center. Tr. 396. She stated that she was “mostly bedridden” during that
time and “all I could do is lay down.” Tr. 742. Hardy asserted that in 1998, her
psychological condition was “much better,” but that “it’s just gotten awful, so awful.”
Tr. 411.
The ALJ found that Hardy’s medically determinable impairments could be
expected to produce her alleged symptoms. Tr. 456. However, the ALJ determined that
Hardy’s statements concerning the intensity, persistence, and limiting effects of her

15

symptoms were not substantiated by the record and not credible to establish impairment
of the severity alleged. Tr. 456, 461.
The ALJ’s decision is sufficiently specific to make clear the weight given to
Hardy’s subjective complaints and the reasons for that weight. See SSR 96-7p, 1996 WL
374186, at *4. In the remand order, the magistrate judge found that the ALJ focused too
heavily on the lack of objective findings accounting for Hardy’s subjective complaints of
pain, failing to consider the link between Hardy’s mental impairments and her subjective
complaints. Tr. 509. Here, the ALJ again noted a lack of objective evidence supporting
Hardy’s subjective allegations. See Tr. 455-61 (providing a thorough discussion of
Hardy’s treatment and concluding that the records show “rather limited objective findings
to support the degree of limitations asserted by the claimant for the period at issue”);
Craig, 76 F.3d at 591 (“[S]ubjective claims of pain must be supported by objective
medical evidence showing the existence of a medical impairment which could reasonably
be expected to produce the actual pain, in the amount and degree, alleged by the
claimant.”). But the ALJ also looked beyond the objective findings, or lack thereof, and
discussed Hardy’s failure to see physicians or pursue suggested treatment measures,
including psychotherapy, during the period at issue, and her periods of improvement with
greater activity. Tr. 461. An ALJ is not required to conduct a formalistic recitation of the
evidence, so long as he “sets for the specific evidence he relies on in evaluating the
cliamant’s credibility.” White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001).
The ALJ took Hardy’s pain disorder and depression into account, finding them to
be “sufficient to interfere with concentration and memory but not to preclude all work.”
Tr. 463. Finally, the ALJ did not simply dismiss all of Hardy’s subjective complaints,

16

but found the medical opinions and treatment notes to be consistent with her “credible”
statements. Id. “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 ALJ’s assessment of Hardy’s subjective complaints of pain and credibility is
supported by substantial evidence.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R
and AFFIRMS the Commissioner’s decision denying benefits.
AND IT IS SO ORDERED.

________________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 27, 2012
Charleston, South Carolina

17