Kemp v. Commissioner of Social Security Administration
ORDER that the decision of the Commissioner is REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED to the Commissioner for an award of benefits to Plaintiff based on a disability commencing April 24, 2002. Signed by Magistrate Judge Jacquelyn D Austin on 9/22/11. (gpre, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Anna Lee Kemp,
Michael J. Astrue,
Commissioner of Social Security,
Civil Action No. 8:09-3318-JDA
This matter is before the Court for a final Order pursuant to Local Civil Rules
73.02(B)(1) and 83.VII.02, D.S.C.; 28 U.S.C. § 636(c); the parties’ consent to disposition
by a magistrate judge; and the Honorable Terry L. Wooten’s March 16, 2010 Order of
reference. Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial
review of a final decision of the Commissioner of Social Security (“the Commissioner”),
denying Plaintiff’s claims for disability insurance benefits (“DIB”). For the reasons set forth
below, it is recommended that the decision of the Commissioner be reversed and
remanded pursuant to 42 U.S.C. § 405(g) for an award of benefits.
Plaintiff filed an application for DIB in February 2005, alleging disability beginning
December 24, 1998.1 [R. 82–90.] Her application was denied initially [R. 27, 58–62] and
Plaintiff previously applied for DIB on July 16, 2001, alleging disability beginning Decem ber 24, 1998.
[R. 92–94.] That application was denied initially and on reconsideration. [R. 28–29, 65–67, 69–73.] Plaintiff
did not request a hearing before an ALJ. [R. 82.] Hence, the denial of Plaintiff’s application on
reconsideration becam e the Com m issioner’s final decision on Plaintiff’s 2001 application. See 20 C.F.R. §
404.921; see also id. § 404.957(c) (outlining when an ALJ m ay find there is cause to dism iss a hearing request
in its entirety or to refuse to hear an issue).
on reconsideration [R. 26]. In January 2007, Administrative Law Judge (“ALJ”) Richard
Vogel held an administrative hearing on Plaintiff’s claim. [R. 345–75.] On July 26, 2007,
the ALJ issued his decision, finding Plaintiff not disabled. [R. 10–25; see also R. 390–405
(duplicate).] After the Appeals Council denied Plaintiff’s request for review [R. 5–8],
Plaintiff sought judicial review in federal district court. [See R. 443–45 (civil docket in case
filed on January 30, 2008).]
On March 5, 2009, the Honorable Henry M. Herlong, Jr., entered an order reversing
the ALJ’s decision and remanding the case for further proceedings. [R. 406–21.] Judge
Herlong ordered that, on remand, the ALJ should:
discuss the combined effects of Plaintiff’s severe and non-severe
impairments and whether such combined effects met or medically
equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 [R. 411–12];
consider all of Plaintiff’s impairments in combination to determine her
residual functional capacity [R. 412];
specifically discuss statements from Plaintiff and her husband
regarding Plaintiff’s memory, concentration, vertigo, and vision and
explain and reconsider all of the objective evidence that discredits
those statements and symptoms when assessing Plaintiff’s residual
functional capacity during the relevant time period [R. 418]; and
reassess the impairments resulting from Plaintiff’s closed head injury
and, if needed, include all of Plaintiff’s credible limitations in the
hypothetical questions posed to the vocational expert [R. 420].
On remand, the Appeals Council instructed the ALJ to conduct further proceedings
consistent with Judge Herlong’s order. [R. 535.] After a hearing in September 2009 [R.
549–62], the ALJ again denied Plaintiff’s claim, issuing his decision on October 20, 2009
[R. 376–89]. The ALJ found Plaintiff had severe impairments—migraine headaches,
depression, and a history of a closed head injury—and non-severe impairments—eye
problems, a seizure disorder, and hypothyroidism.2 [R. 382, Finding 4.] However, the ALJ
found Plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listed impairment. [Id., Finding 5.] Further, the ALJ found Plaintiff had
the residual functional capacity to sit for six hours of an eight hour day; stand/walk for two
hours of an eight hour day; frequently lift/carry light items; occasionally lift ten pounds;
never climb or crawl; occasionally crouch and stoop; and never be exposed to hazards.
[R. 383, Finding 6.] The ALJ also found Plaintiff would be restricted to low-stress work,
defined as only occasional decision-making and changes in the work setting, with no
exposure to the general public and only occasional interaction with co-workers and
supervisors. [Id.] The ALJ determined Plaintiff was unable to perform her past relevant
work [R. 387, Finding 7], but there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform [id., Finding 11].
Plaintiff filed this action for judicial review on December 23, 2009.3 [Doc. 1.] Upon
motion by the Commissioner, the action was remanded pursuant to sentence six of 42
U.S.C. § 405(g) on May 7, 2010.4 [Doc. 13.] The case was reopened on September 30,
2010 [see Doc. 14] and is now ripe for review.
In the previous decision, the ALJ found Plaintiff to have only two severe im pairm ents: m igraine
headaches and closed head injury. [R. 16.] He found Plaintiff had non-severe im pairm ents of depression,
vision problem s, and hypothyrodism . [Id.]
There is no record that Plaintiff requested Appeals Council review of the ALJ’s October 2009 decision.
The Com m issioner m oved to rem and the case pursuant to sentence six of § 405(g) because the
transcript could not be located. [Doc. 12.] Upon rem and, the Com m issioner assem bled a transcript of the
adm inistrative record. [Doc. 14.]
THE PARTIES’ POSITIONS
Plaintiff alleges the ALJ disregarded the remand order by failing to properly assess
the combined effect of Plaintiff’s impairments and to conduct a proper credibility analysis.
[Doc. 23 at 1.] Specifically, Plaintiff alleges the ALJ failed to explain why Plaintiff’s
impairments in combination did not meet or medically equal a listed impairment or have
the combined effect of disability. [Id. at 13.] Plaintiff also argues she is entitled to rely
exclusively on subjective evidence to prove the intensity, persistence and severity of her
pain symptoms, relying on Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006); Plaintiff
contends the ALJ relied on isolated references in the record to determine Plaintiff’s
complaints were not legitimate. [Id. at 14.] Further, Plaintiff alleges the Commissioner
failed to meet its burden at Step 5 by arbitrarily and without proper reconciliation of contrary
evidence deciding not to include Plaintiff’s actual limitations in the ALJ’s final determination
of disability. [Id. at 15.]
The Commissioner argues Plaintiff did not meet her burden of showing she had a
combination of impairments that met or medically equaled a listing. [Doc. 25 at 12.] The
Commissioner also argues the ALJ identified valid reasons for discounting the credibility
of Plaintiff’s subjective statements. [Id. at 19.] Finally, the Commissioner argues the
limitations presented to the vocational expert were only those limitations that were
supported by substantial evidence and that the ALJ was not required to accept a limitation
that was not supported by the evidence. [Id. at 21.]
STANDARD OF REVIEW
The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the
evidence must do more than merely create a suspicion of the existence of a fact and must
include such relevant evidence as a reasonable person would accept as adequate to
support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687
(S.D.W. Va. 1963)) (“Substantial evidence, it has been held, is evidence which a reasoning
mind would accept as sufficient to support a particular conclusion. It consists of more than
a mere scintilla of evidence but may be somewhat less than a preponderance. If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
Where conflicting evidence “‘allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the
[Commissioner’s] designate, the ALJ),’” not on the reviewing court. Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.
1987)); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that
where the Commissioner’s decision is supported by substantial evidence, the court will
affirm, even if the reviewer would have reached a contrary result as finder of fact and even
if the reviewer finds that the evidence preponderates against the Commissioner’s decision).
Thus, it is not within the province of a reviewing court to determine the weight of the
evidence, nor is it the court’s function to substitute its judgment for that of the
Commissioner so long as the decision is supported by substantial evidence. Laws, 368
F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse a Commissioner’s decision on plenary review,
however, if the decision applies incorrect law or fails to provide the court with sufficient
reasoning to determine that the Commissioner properly applied the law. Myers v. Califano,
611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep’t of Health & Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner’s decision “is in clear
disregard of the overwhelming weight of the evidence, Congress has empowered the
courts to modify or reverse the [Commissioner’s] decision ‘with or without remanding the
cause for a rehearing.’” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42
U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial
evidence to support a decision denying coverage under the correct legal standard and
when reopening the record for more evidence would serve no purpose.” Breeden v.
Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence
four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir.
1991) (unpublished table decision). To remand under sentence four, the reviewing court
must find either that the Commissioner’s decision is not supported by substantial evidence
or that the Commissioner incorrectly applied the law relevant to the disability claim. See,
e.g., Jackson v. Chater, 99 F.3d 1086, 1090–91 (11th Cir. 1996) (holding remand was
appropriate where the ALJ failed to develop a full and fair record of the plaintiff’s residual
functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand
was appropriate where record was insufficient to affirm but was also insufficient for court
to find the plaintiff disabled).
Where the court cannot discern the basis for the
Commissioner’s decision, a remand under sentence four may be appropriate to allow the
Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176,
1181–82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its
reasoning” because ALJ did not say he was discounting testimony or why); Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor
the Appeals Council indicated the weight given to relevant evidence). On remand under
sentence four, the ALJ should review the case on a complete record, including any new
material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant
may produce further evidence on remand.”). After a remand under sentence four, the court
enters a final and immediately appealable judgment and then loses jurisdiction. Sargent,
941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be
taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding . . . .
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the
basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the
determination of disability at the time the application was first filed; (2) the evidence is
material to the extent that the Commissioner’s decision might reasonably have been
different had the new evidence been before him; (3) there is good cause for the claimant’s
failure to submit the evidence when the claim was before the Commissioner; and (4) the
claimant made at least a general showing of the nature of the new evidence to the
reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. §
405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d
26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by
amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).5 With remand under sentence
six, the parties must return to the court after remand to file modified findings of fact.
Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and
does not enter a final judgment until after the completion of remand proceedings. See
Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an
order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C.
§ 405(g) is not a final order).
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. 42 U.S.C. § 423(a). “Disability” is defined as:
Though the court in W ilkins indicated in a parenthetical that the four-part test set forth in Borders had been
superseded by an am endm ent to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the
requirem ents outlined in Borders when evaluating a claim for rem and based on new evidence. See, e.g.,
Ashton v. Astrue, No. 6:10-cv-152, 2010 W L 5478646, at *8 (D.S.C. Nov. 23, 2010); W ashington v. Comm’r
of Soc. Sec., No. 2:08-cv-93, 2009 W L 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec’y of Health &
Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W . Va. 1992). Further, the Suprem e Court of the United
States has not suggested Borders’ construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S.
617, 626 n.6 (1990). Accordingly, the Court will apply the m ore stringent Borders inquiry.
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 consecutive months.
Id. § 423(d)(1)(A).
The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations
have reduced the statutory definition of disability to a series of five sequential questions.
See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency”
in considering disability claims). The ALJ must consider whether (1) the claimant is
engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the
impairment meets or equals an impairment included in the Administration’s Official Listings
of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents
the claimant from performing past relevant work; and (5) the impairment prevents the
claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the
fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699
F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day
of her insured status to receive disability benefits. Everett v. Sec’y of Health, Educ. &
Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden
shifts to the Commissioner to produce evidence that other jobs exist in the national
economy that the claimant can perform, considering the claimant’s age, education, and
work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find
an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §
404.1520(a),; Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Substantial Gainful Activity
“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit,
whether or not a profit is realized, 20 C.F.R. § 404.1572(b). If an individual has earnings
from employment or self-employment above a specific level set out in the regulations, he
is generally presumed to be able to engage in substantial gainful activity. 20 C.F.R. §
An impairment is “severe” if it significantly limits an individual’s ability to perform
basic work activities. See 20 C.F.R. § 404.1521. When determining whether a claimant’s
physical and mental impairments are sufficiently severe, the ALJ must consider the
combined effect of all of the claimant’s impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ
must evaluate a disability claimant as a whole person and not in the abstract, having
several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49–50 (4th Cir.
1989) (stating that, when evaluating the effect of a number of impairments on a disability
claimant, “the [Commissioner] must consider the combined effect of a claimant’s
impairments and not fragmentize them”). Accordingly, the ALJ must make specific and
well-articulated findings as to the effect of a combination of impairments when determining
whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must
adequately explain his or her evaluation of the combined effects of the impairments.”). If
the ALJ finds a combination of impairments to be severe, “the combined impact of the
impairments shall be considered throughout the disability determination process.” 42
U.S.C. § 423(d)(2)(B).
Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant’s impairment or combination of impairments meets or medically equals
the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration
requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without
considering the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d).
Past Relevant Work
The assessment of a claimant’s ability to perform past relevant work “reflect[s] the
statute’s focus on the functional capacity retained by the claimant.” Pass v. Chater, 65
F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the
claimant’s residual functional capacity6 with the physical and mental demands of the kind
of work he has done in the past to determine whether the claimant has the residual
functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
As previously stated, once the ALJ finds that a claimant cannot return to her prior
work, the burden of proof shifts to the Commissioner to establish that the claimant could
Residual functional capacity is “the m ost [a claim ant] can do despite [his] lim itations.” 20 C.F.R. §
perform other work that exists in the national economy. See 20 C.F.R. § 404.1520(f)–(g);
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
To meet this burden, the
Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the
“grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers
primarily from an exertional impairment, without significant nonexertional factors.7 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930–31
(4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving
exertional limitations). When a claimant suffers from both exertional and nonexertional
limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case,
the Commissioner must use a vocational expert to establish the claimant’s ability to
perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49–50 (“Because we
have found that the grids cannot be relied upon to show conclusively that claimant is not
disabled, when the case is remanded it will be incumbent upon the [Commissioner] to
prove by expert vocational testimony that despite the combination of exertional and
nonexertional impairments, the claimant retains the ability to perform specific jobs which
exist in the national economy.”). The purpose of using a vocational expert is “to assist the
ALJ in determining whether there is work available in the national economy which this
particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert’s
An exertional lim itation is one that affects the claim ant’s ability to m eet the strength requirem ents of jobs.
20 C.F.R. § 404.1569a. A nonexertional lim itation is one that affects the ability to m eet the dem ands of the
job other than the strength dem ands. Id. Exam ples of nonexertional lim itations include but are not lim ited
to difficulty functioning because of being nervous, anxious, or depressed; difficulty m aintaining attention or
concentrating; difficulty understanding or rem em bering detailed instructions; difficulty seeing or hearing. Id.
testimony to be relevant, “it must be based upon a consideration of all other evidence in
the record, . . . and it must be in response to proper hypothetical questions which fairly set
out all of claimant’s impairments.” Id. (citations omitted).
Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783
F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant
issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important
when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir.
1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, . . . being especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id.
(internal quotations and citations omitted).
The opinion of a claimant’s treating physician must “be given great weight and may
be disregarded only if there is persuasive contradictory evidence” in the record. Coffman
v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (citing Foster v. Heckler, 780 F.2d 1125, 1130
(4th Cir. 1986) (holding that a treating physician’s testimony is entitled to great weight
because it reflects an expert judgment based on a continuing observation of the patient’s
condition over a prolonged period of time); Mitchell v. Schweiker, 699 F.2d 185, 187 (4th
Cir. 1983)). If a treating physician’s opinion on the nature and severity of a claimant’s
impairments is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence” in the record, the
ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2); see Mastro v. Apfel, 270
F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician’s opinion if it is
unsupported or inconsistent with other evidence. Craig, 76 F.3d at 590. Similarly, where
a treating physician has merely made conclusory statements, the ALJ may afford the
opinion such weight as is supported by clinical or laboratory findings and other consistent
evidence of a claimant’s impairments. See id. (holding there was sufficient evidence for
the ALJ to reject the treating physician’s conclusory opinion where the record contained
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless assign a weight to the medical opinion based on the 1) length of the
treatment relationship and the frequency of examination; 2) nature and extent of the
treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with
the record a whole; 5) specialization of the physician; and 6) other factors which tend to
support or contradict the opinion. 20 C.F.R. § 404.1527(d),. In any instance, a treating
physician’s opinion is generally entitled to more weight than a consulting physician’s
opinion. See Mitchell, 699 F.2d at 187 (stating that treating physician’s opinion must be
accorded great weight because “it reflects an expert judgment based on a continuing
observation of the patient’s condition for a prolonged period of time”); 20 C.F.R. §
404.1527(d)(2). An ALJ determination coming down on the side of a non-examining, non-
treating physician’s opinion can stand only if the medical testimony of examining and
treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir.1986).
The ALJ is required to review all of the medical findings and other evidence that
support a medical source’s statement that a claimant is disabled. 20 C.F.R. § 404.1527(e).
However, the ALJ is responsible for making the ultimate determination about whether a
claimant meets the statutory definition of disability. Id.
Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a
claimant’s medical sources do not give sufficient medical evidence about an impairment
to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v.
Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative
examination is not required when there is sufficient medical evidence to make a
determination on a claimant’s disability. 20 C.F.R. § 404.1517. Under the regulations,
however, the ALJ may determine that a consultative examination or other medical tests are
Congress has determined that a claimant will not be considered disabled unless he
furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing
the existence of a medical impairment that could reasonably be expected to produce the
pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling
pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App’x 716,
723 (4th Cir. 2005) (unpublished opinion). First, “the ALJ must determine whether the
claimant has produced medical evidence of a ‘medically determinable impairment which
could reasonably be expected to produce . . . the actual pain, in the amount and degree,
alleged by the claimant.’” Id. (quoting Craig, 76 F.3d at 594). Second, “if, and only if, the
ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as
a matter of fact, whether the claimant’s underlying impairment actually causes her alleged
pain.” Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the Fourth Circuit’s “pain rule,” it is well established that “subjective
complaints of pain and physical discomfort can give rise to a finding of total disability, even
when those complaints [a]re not supported fully by objective observable signs.” Coffman,
829 F.2d at 518.
The ALJ must consider all of a claimant’s statements about his
symptoms, including pain, and determine the extent to which the symptoms can reasonably
be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528.
Indeed, the Fourth Circuit has rejected a rule which would require the claimant to
demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108
(4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all
administrative law judges within the circuit a policy stating Fourth Circuit law on the subject
of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336–37 (4th Cir. 1990).
The Commissioner thereafter issued the following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia and
West Virginia), Social Security Ruling (SSR) 88-13, Titles II
and XVI: Evaluation of Pain and Other Symptoms:
FOURTH CIRCUIT STANDARD: Once an underlying
physical or [m]ental impairment that could reasonably be
expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling effects
of a disability claimant’s pain, even though its intensity or
severity is shown only by subjective evidence. If an underlying
impairment capable of causing pain is shown, subjective
evidence of the pain, its intensity or degree can, by itself,
support a finding of disability. Objective medical evidence of
pain, its intensity or degree (i.e., manifestations of the
functional effects of pain such as deteriorating nerve or muscle
tissue, muscle spasm, or sensory or motor disruption), if
available, should be obtained and considered. Because pain
is not readily susceptible of objective proof, however, the
absence of objective medical evidence of the intensity,
severity, degree or functional effect of pain is not
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been
superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed.
Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, “If an individual’s statements about
pain or other symptoms are not substantiated by the objective medical evidence, the
adjudicator must consider all of the evidence in the case record, including any statements
by the individual and other persons concerning the individual’s symptoms.” Id. at 34,485;
see also 20 C.F.R. § 404.1529(c)(1)–(c)(2) (outlining evaluation of pain).
The ALJ must make a credibility determination based upon all the evidence in the
record. Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ
must articulate specific and adequate reasons for doing so, or the record must be obvious
as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
Although credibility determinations are generally left to the ALJ’s discretion, such
determinations should not be sustained if they are based on improper criteria. Breeden,
493 F.2d at 1010 (“We recognize that the administrative law judge has the unique
advantage of having heard the testimony firsthand, and ordinarily we may not disturb
credibility findings that are based on a witness’s demeanor. But administrative findings
based on oral testimony are not sacrosanct, and if it appears that credibility determinations
are based on improper or irrational criteria they cannot be sustained.”).
Relevant Time Period
The Commissioner has established Plaintiff was not disabled on or before April 23,
2002 based on the denial of Plaintiff’s first application for benefits. See 20 C.F.R. §
Plaintiff was insured for benefits through December 31, 2003.
Therefore, to receive benefits, Plaintiff must establish she was disabled between April 24,
2002 and December 31, 2003. Everett, 412 F.2d at 843.
Residual Functional Capacity Assessment
Plaintiff first argues the ALJ disregarded Judge Herlong’s remand order by failing
to properly assess the combined effect of Plaintiff’s impairments and failing to conduct a
proper credibility analysis. The Court agrees. Judge Herlong ordered the ALJ, when
assessing Plaintiff’s residual functional capacity (“RFC”) on remand, (1) to consider all
Plaintiff’s impairments in combination and (2) to (a) specifically discuss Plaintiff’s and her
husband’s statements regarding Plaintiff’s memory, concentration, vertigo, and vision and
(b) explain and reconsider all of the objective evidence, if any, that discredits those
statements and symptoms. [R. 412, 416.] The ALJ, however, again failed to consider the
entire case record or use objective evidence to discredit Plaintiff’s allegations. This failure,
in turn, prevented the ALJ from properly considering and explaining the combined effects
of Plaintiff’s impairments.
To credit a claimant’s complaints of pain or other symptoms, although there must
be objective medical evidence of some condition that could reasonably produce pain, there
need not be objective evidence of the pain itself or its intensity. Walker, 889 F.2d at 49
(citing Foster, 780 F.2d at 1129). The ALJ is required to make credibility determinations
about allegations of pain or other nonexertional disabilities, and “such decisions must refer
specifically to the evidence informing the ALJ’s conclusions.” Hammond, 765 F.2d at 426.
“If an individual’s statements about pain or other symptoms are not substantiated by the
objective medical evidence, the adjudicator must consider all of the evidence in the case
record, including any statements by the individual and other persons concerning the
individual’s symptoms.” SSR 96-7p, 61 Fed. Reg. 34,483-01, 34,485 (July 2, 1996); see
also Craig, 76 F.3d at 595 (“Although a claimant’s allegations about her pain may not be
discredited solely because they are 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.”); 20 C.F.R. § 416.929(c)(1)–(c)(2) (outlining the evaluation of pain).
If he rejects a claimant’s testimony about her pain or physical condition, the ALJ must
explain the basis for such rejection to ensure 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
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.” SSR 96-7p, 61 Fed. Reg. at
In the 2009 decision, which followed Judge Herlong’s remand order, the ALJ again
found Plaintiff’s “medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms; however, [Plaintiff’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” [R. 385.]
While Judge Herlong’s remand order directed the ALJ “to specifically discuss [Plaintiff’s]
and [her husband’s] statements regarding [Plaintiff’s] memory and concentration problems,
vertigo, and vision problems” and then “to explain and reconsider all objective evidence,
if any, that discredits those statements and symptoms to determine [Plaintiff’s] RFC” [R.
418], a comparison of the 2007 and 2009 decisions reveals that, although the ALJ
rearranged his discussion of Plaintiff’s RFC, the substance of the discussion remains
largely unchanged, with some portions repeated verbatim [compare R. 19–23, with R.
The ALJ removed portions of the RFC discussion Magistrate Judge Catoe
previously found to be in error.9 However, the ALJ failed to include a specific discussion
of Plaintiff’s memory, concentration, vertigo, and vision or any new rationale for discrediting
Plaintiff and her husband’s statements regarding those limitations. In fact, the only
additional support the ALJ included in his RFC discussion in the 2009 decision was that
Plaintiff’s treating neurologist noted Plaintiff “looked great” and her affect had returned to
normal in November 2003; there was no indication Plaintiff required emergency treatment
or inpatient hospitalization or that her medications caused significant side effects during
the relevant period; and Plaintiff’s positive response to the relatively conservative course
of treatment was inconsistent with a level of severity that would have precluded Plaintiff
from sustaining any work activity. [R. 385–86.] These statements fail to specifically
Because Plaintiff alleged only that the ALJ erred in assessing Plaintiff’s credibility, this discussion is lim ited
to Plaintiff’s credibility. However, the Court notes the rem and order further directed the ALJ to specifically
discuss Plaintiff’s husband’s statem ents regarding Plaintiff’s m em ory, concentration, vertigo, and vision and
to explain and reconsider the evidence that discredits those statem ents as well. Moreover, Magistrate Judge
Catoe’s report and recom m endation found the ALJ erred in discrediting Plaintiff’s husband’s testim ony in the
2007 decision. [R. 438–39.] Although the ALJ lengthened his discussion of Plaintiff’s husband’s testim ony
in the 2009 decision, the ALJ failed to com ply with Magistrate Judge Catoe’s report and recom m endation and
Judge Herlong’s rem and order with respect to Plaintiff’s husband’s credibility.
For exam ple, because Magistrate Judge Catoe found evidence in the record supporting Plaintiff’s
allegations, the 2009 decision did not include the following reasons previously relied upon to discredit Plaintiff
in the 2007 decision:
evidence to indicate Plaintiff suffered from any eye condition or eye pain;
treatm ent notes regarding weather-related com plications;
treatm ent notes regarding an inability to drive;
treatm ent notes regarding vertigo; and
evidence to indicate a venous angiom a to the left frontal area.
[See R. 436–37 (finding evidence in the record to support Plaintiff’s testim ony where the ALJ found there was
no such evidence).]
address memory, concentration, vertigo, or vision. Moreover, although Judge Herlong’s
remand order explained that “the absence of objective evidence is insufficient to make a
determinative conclusion that [Plaintiff] exaggerated her symptoms” [R. 417] with respect
to Plaintiff’s concentration, memory, and attention, the ALJ continued to rely on a lack of
evidence to discredit Plaintiff’s claims in the 2009 decision [R. 385 (stating that Plaintiff’s
treating neurologist “did not note any limitations in concentration, memory, or attention”)].10
Finally, the ALJ’s discussion of Plaintiff’s daily activities continues to be one-sided, failing
to consider all of the evidence in the record. [R. 386 (including running errands and
shopping in the discussion of daily activities, even though the remand order noted the ALJ
failed to mention Plaintiff reported getting lost and being confused while running errands).]
Accordingly, for the same reasons included in the remand report and recommendation and
order—requiring objective verification of symptoms, relying upon isolated references taken
out of context, and failing to consider the entire record—the ALJ failed to properly assess
Plaintiff’s credibility on remand; this failure impacted the ALJ’s consideration of the
combined effect of Plaintiff’s impairments.
Combined Effect of Impairments
Once the ALJ finds a claimant has a severe impairment or combination of
impairments,11 the ALJ must consider all of the claimant’s impairments, including non-
The Court notes the 2009 decision om itted the statem ent that the ALJ relied on the “lack of objective
verification of [Plaintiff’s] com plaints” [see R. 21 (statem ent in 2007 decision)]; however, a review of the 2009
decision reveals the ALJ continued to rely on lack of objective verification with respect to Plaintiff’s
concentration, m em ory, and attention because he failed to provide any objective evidence in the record to
support a finding that Plaintiff was not experiencing these sym ptom s, instead relying on the lack of notes
regarding these sym ptom s in the treating neurologist’s records [R. 385].
As explained above, the ALJ determ ines whether the claim ant has a severe im pairm ent or im pairm ents
at Step 2 of the five-step evaluation.
severe impairments, and the limitations imposed by all of the claimant’s impairments at the
remaining steps of the sequential analysis. Pittman v. Astrue, No. 5:08-cv-83-FL, 2008 WL
4594574, at *4 (E.D.N.C. Oct. 10, 2008); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2,
1996). As stated above, the ALJ must make specific and well-articulated findings as to the
effect of a combination of impairments when determining whether an individual is disabled.
Walker, 889 F.2d at 50 (“As a corollary to th[e] rule [that the ALJ must evaluate the
combined effect of the claimant’s impairments], the ALJ must adequately explain his or her
evaluation of the combined effects of the impairments.” (citing Reichenbach v. Heckler, 808
F.2d 309, 312 (4th Cir. 1985)).
Here, because the ALJ improperly discredited Plaintiff’s testimony about the effects
of her impairments, the ALJ could not have considered the combined effects of all of
Plaintiff’s impairments when determining her RFC. Therefore, the ALJ’s RFC assessment
is in error, and the ALJ’s error in assessing Plaintiff’s RFC further impacted the ALJ’s
decision at Step 5 of the sequential analysis.
Vocational Expert Testimony
Plaintiff contends the ALJ erred at Step 5 of the sequential analysis because the
ALJ relied on the vocational expert’s testimony with respect to a hypothetical that did not
contain Plaintiff’s actual limitations. Because the Court has found the ALJ erred in
determining Plaintiff’s RFC, and an ALJ must use the RFC assessment to pose
hypothetical questions to the vocational expert, the ALJ further erred in relying on the
vocational expert’s testimony in response to a hypothetical based on the flawed RFC
As previously stated, once a claimant reaches Step 5 of the sequential evaluation,
the Commissioner bears the burden of providing evidence of a significant number of jobs
in the national economy that the claimant could perform. Walls v. Barnhart, 296 F.3d 287,
290 (4th Cir. 2002). Here, Plaintiff suffers from nonexertional limitations; therefore, the
grids could serve only as guidelines for the ALJ’s determination of whether Plaintiff could
perform work that exists in the national economy. See Gory, 712 F.2d at 931. Where the
grids may serve only as guidelines, the Commissioner must use a vocational expert to
establish the claimant’s ability to perform other work. 20 C.F.R. § 404.1569a (2001); see
Walker, 889 F.2d at 49–50.
At the September 11, 2009 hearing, the ALJ proffered the following hypothetical
question to the vocational expert:
[P]lease assume a hypothetical worker the same age as
[Plaintiff], let’s say at the time of the date of her last insured,
which was 44, same education. I don’t know if we got into that
but that would have been high school graduate with some
college . . . [w]ho retains sedentary exertional capacity with the
following limitations. No climbing or crawling, occasional
crouching and stooping, no exposure to industrial hazards, low
stress setting, no more than occasional decision-making or
changes in the setting, no exposure to the general public and
no more than occasional interaction with co-workers and
supervisor in a working—in conjunction or cooperation with
others as opposed to simple, physical proximity. Now, can you
identify unskilled work, Doctor, that’s consistent?
[R. 559–60.] The vocational expert began to testify as to the jobs that would exist for this
The ALJ then added an additional limitation to the
Doctor, before you, before you go on I probably should have
put in the first hypothetical one more . . . limitation and that
would be an individual requiring no exposure to fluorescent
lighting. . . .Would there be—would, would that eliminate all
unskilled sedentary work or would there be some you could
identify consistent with that additional limitation?
[Id. (emphasis added).]12 The vocational expert testified that this limitation, inability to be
exposed to fluorescent lighting, would eliminate all unskilled sedentary work because
fluorescent lighting is virtually everywhere. [Id.] The ALJ then added a different limitation
to the original hypothetical question:
Now, Doctor, if I included in the RFC another limitation to the
effect that the individual’s ability to concentrate and to maintain
attention at work was impaired for up to 20 percent of the
workday, would that eliminate work?
[R. 561.] The vocational expert testified that this limitation, inability to concentrate and to
maintain attention up to twenty percent of the workday, would eliminate all jobs in the
national economy. [Id.] Finally, the ALJ asked the vocational expert how many absences
would be tolerated in a month for unskilled work, to which the vocational expert testified no
more than three days a month. [Id.]
In his RFC assessment, the ALJ did not include limitations relating to exposure to
fluorescent lighting, concentration, or absences from work, although he acknowledged
Plaintiff alleged fluorescent lights triggered her migraines, she had problems with her
memory and focus, and she had migraines fifteen to twenty days a month. [R. 385.]
However, the ALJ provided no reasoning or discussion as to why these limitations were
excluded from the RFC assessment or why he rejected the hypotheticals that included
these limitations. The Court finds this is reversible error.
The wording of this addition to the hypothetical suggests the ALJ intended to include this lim itation in the
For a vocational expert’s opinion “to be relevant or helpful, it must be based upon
a consideration of all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of claimant’s impairments.” Walker, 889 F.2d
at 50 (citations omitted). Moreover, the ALJ must provide sufficient reasoning for a
reviewing court to determine whether the ALJ properly applied the law. See Myers, 611
F.2d at 982; see also Smith, 782 F.2d at 1181–82 (remanding case where decision of ALJ
contained “a gap in its reasoning” because ALJ did not say he was discounting testimony
or why). Here, it is unclear from the decision why the ALJ failed to rely on the vocational
expert’s testimony in response to the hypothetical questions that included Plaintiff’s alleged
need to avoid florescent lighting, inability to concentrate, or potential to miss more than
three days of work a month, which would ultimately result in no work being available for
Plaintiff.13 Accordingly, the Court finds the ALJ erred at Step 5 of the sequential evaluation.
Remand for Additional Proceedings or for an Award of Benefits
Plaintiff argues the case should be remanded for an award of benefits. The Court
Whether to remand for additional proceedings or for an award of benefits is
generally approached on a practical level, and the decision rests within the sound
discretion of the district court. Smith v. Astrue, No. 3:10-66, 2011 WL 846833, at *3
(D.S.C. Mar. 7, 2011) (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)).
The Court notes the rem and order directed the ALJ to “include all im pairm ents that are not in conflict with
objective evidence in the hypothetical questions posed to the [vocational expert].” [R. 420.] That the ALJ
included these additional lim itations in his hypothetical questions indicates that, at least as of the date of the
hearing, the ALJ thought these lim itations were not in conflict with objective evidence in the record. However,
the ALJ’s failure to include these lim itations in the RFC assessm ent or to ultim ately rely on the vocational
expert’s testim ony in response to these hypothetical questions leaves the Court to question why the ALJ
discounted or rejected the hypothetical questions.
An award of benefits is more appropriate when further proceedings would serve no useful
purpose. Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1985). Likewise, an award of
benefits is appropriate when substantial evidence indicates the claimant is disabled, and
the weight of the evidence indicates a remand would only delay the receipt of benefits
while serving no useful purpose or a substantial amount of time has already passed.
Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984); Tennant v. Schweiker, 682 F.2d
707, 710 (8th Cir. 1982).
Further, an award of benefits is appropriate when the
Commissioner has had an opportunity to develop the record on an outcome-determinative
issue and has failed to produce substantial evidence, Broadbent v. Harris, 698 F.2d 407,
414 (10th Cir. 1983); Tennant, 682 F.2d at 710–11; Edwards, 672 F. Supp. at 237, or
where “there is not the slightest uncertainty as to the outcome” and additional proceedings
“would be an idle and useless formality,” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766
n.6 (1969); see also Barry v. Bowen, 862 F.2d 869, 1988 WL 124873, at *2 (4th Cir. 1988)
(unpublished opinion) (citing NLRB, 394 U.S. at 766 n.6). On the other hand, additional
proceedings are appropriate where they could remedy defects. Rodriguez v. Bowen, 876
F.2d 759, 763 (9th Cir. 1989).
The Court has reviewed the record and the parties’ filings and finds reopening the
record would serve no useful purpose. Plaintiff applied for benefits in February 2005,
alleging an onset of disability on December 24, 1998. Because Plaintiff’s previous
disability application was denied on reconsideration on April 23, 2002, the issue in this
case is whether Plaintiff was disabled between April 24, 2002 and December 31, 2003.
A substantial amount of time has passed since Plaintiff alleges she became disabled and
since she applied for benefits, and this case has already been reversed and remanded for
further administrative action yet the Court has found reversible error again. Further, as
discussed in detail below, substantial evidence in the record as a whole indicates the ALJ
should have included at least two of the limitations from the additional hypothetical
questions posed to the vocational expert—no exposure to fluorescent lighting and an
inability to concentrate or maintain attention at work for up to twenty percent of the
workday.14 Because the vocational expert opined that with these limitations no jobs would
be available for Plaintiff, remand would only delay the receipt of benefits while serving no
useful purpose because there is no additional information to be developed in the record
to remedy any defects.
Accordingly, in this case, an outright award of benefits is
As previously noted, the ALJ acknowledged Plaintiff’s allegations with respect to
exposure to fluorescent lighting both in the hearing and in the decision, and the ALJ
included this limitation in a hypothetical question posed to the vocational expert. [R. 386,
560.] However, the ALJ failed to address this alleged limitation in his discussion of
W ith respect to the third additional lim itation posed by the ALJ— attendance issues— the record is unclear
with respect to how m any days a m onth Plaintiff m ight have m issed work due to m igraines during the relevant
tim e period. The record does not contain m any records dated during the relevant tim e period. On the one
hand, a num ber of the records during the relevant tim e period indicated that the frequency of m igraines
decreased between April 24, 2002 and Decem ber 31, 2003. [See R. 223 (decreased frequency of m igraines
as of June 26, 2002)); R. 340 (rem arkable im provem ent with headaches as of Decem ber 2, 2002); R. 339
(doing better as of April 28, 2003).] On the other hand, Plaintiff m issed jury duty on Novem ber 24, 2003
because of severe m igraines. [R. 338.] Accordingly, the record would need to be developed further with
respect to the num ber of potential absences from work during the relevant tim e period because the vocational
expert testified that em ployers would tolerate no m ore than three absences a m onth. However, because the
Court finds substantial evidence supports an award of benefits based on the fluorescent lighting and
concentration lim itations, rem anding the case for developm ent of the record on the attendance issue would
serve no useful purpose and is unnecessary.
Plaintiff’s RFC or of jobs available in the national economy that Plaintiff could have
Record evidence corroborates Plaintiff’s claim that fluorescent lighting triggered her
migraines. Both Plaintiff and her husband testified that fluorescent lighting triggers
Plaintiff’s migraine headaches. [R. 554, 557; see SSR 96-7p at 34,485 (stating that an
“adjudicator must consider all of the evidence in the case record, including any statements
by the individual and other persons concerning the individual’s symptoms”).] Additionally,
the record establishes Plaintiff complained of photophobia on several occasions. [See,
e.g., R. 181, 321, 331; see also R. 227 (allergic to photosensitizing drugs); R. 224 (allergic
to photosensitizing drugs and wearing sunglasses in exam room); R. 323 (requested dark,
quiet room for neurology appointments).] Photophobia is an intolerance to light or painful
sensitiveness to strong light. Photophobia Definition, Merriam-Webster.com, http://www.
merriam-webster.com/medlineplus/photophobia (last visited August 25, 2011). “Common
causes of photophobia include migraine headaches, cataracts, or severe ophthalmologic
diseases such as uveitis or corneal abrasion.”
http://en.wikipedia.org/wiki/Photophobia (last visited August 25, 2011) (citing Hazin R,
Abuzetun JY, Daoud YJ, Abu-Khalaf MM (July 2009). “Ocular complications of cancer
therapy: a primer for the ophthalmologist treating cancer patients”. Curr Opin Ophthalmol
20 (4): 308–17). Additionally, there is no objective evidence in the record to support a
finding Plaintiff was not experiencing a sensitivity to fluorescent lights. In response to a
hypothetical question that included a limitation requiring no exposure to fluorescent lighting,
the vocational expert testified that this limitation would eliminate all jobs because
fluorescent lighting is virtually everywhere. [R. 560.] Accordingly, a remand would serve
no useful purpose because the record substantiates Plaintiff and her husband’s allegations
that she has a sensitivity to fluorescent lights, and a vocational expert has testified that a
limitation of no fluorescent light exposure would eliminate all jobs in the economy.
With respect to Plaintiff’s inability to concentrate and/or focus, the ALJ again
acknowledged Plaintiff’s allegation both in the hearing and in the decision and included this
limitation in a hypothetical question posed to the vocational expert.
[R. 385, 561.]
However, the ALJ failed to specifically discuss concentration in the discussion of Plaintiff’s
RFC, instead merely stating that Plaintiff’s treating neurologist did not note any limitations
related to concentration during the relevant time period. [R. 385.] In the discussion of jobs
available in the national economy, the ALJ mentioned in a footnote that, although he posed
a hypothetical question to the vocational expert that included memory, concentration, and
attention impairments, he did not find this additional limitation applied in this case, though
the ALJ failed to provide any rationale for that finding. [R. 388.]
Record evidence corroborates Plaintiff’s claim that she had problems with
concentration and attention. The report of consultative examining psychologist Cary A.
Weber, Ph.D., and the neuropsychological evaluation conducted by Brian L. West, Ph.D.,
demonstrate Plaintiff suffered from difficulties with sustained attention and concentration.15
The Court notes these m edical records are outside the specific tim e fram e of April 24, 2002 through
Decem ber 31, 2003. [See R. 196–201 (indicating the report is based on a Septem ber 25, 2001 exam ination),
290–94 (indicating the evaluation occurred on June 29, 2005).] However, evidence should not be disregarded
m erely because an evaluation occurred outside the relevant tim e period so long as it m ay be relevant to prove
a disability during the relevant tim e period. See Cox v. Heckler, 770 F.2d 411, 413 (4th Cir. 1985) (finding
rem and proper to consider post-insured status evidence where the record dem onstrated that the claim ant had
a progressively deteriorating lung condition that m ay have reached a disabling degree by the tim e the
claim ant’s insured status expired); Moore v. Finch, 418 F.2d 1224 (4th Cir. 1969) (finding it was error for the
adjudicator not to consider reports of m edical evaluations subsequent to the expiration of the claim ant’s
insured period of coverage as evidence of possible earlier and progressive degeneration); Minor v. Astrue,
[R. 196–201, 290–94.] Additionally, there is no objective evidence in the record to support
a finding Plaintiff was not experiencing poor concentration. In response to a hypothetical
question that included a limitation that the individual’s ability to concentrate and to maintain
attention at work was impaired for up to twenty percent of the workday, the vocational
expert testified that this limitation would eliminate all jobs. [R. 561.] Accordingly, a remand
would serve no useful purpose because the record substantiates Plaintiff’s allegations that
she has problems with concentration, and a vocational expert has testified that a limitation
of no fluorescent light exposure would eliminate all jobs in the economy.
Wherefore, based upon the foregoing, the decision of the Commissioner is
REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be
REMANDED to the Commissioner for an award of benefits to Plaintiff based on a disability
commencing April 24, 2002.
No. 08-2175, 2010 W L 3294411, at *4 (D. Md. Aug. 20, 2010) (finding evidence postdating a claim ant’s last
date insured was still relevant to determ ining if the claim ant was disabled during the relevant tim e period
where the claim ant’s condition was based on a diagnosis m ade before the date last insured); Haskins v.
Astrue, No. 08-cv-1107, 2010 W L 3338742, at *6 (N.D.N.Y. Apr. 23, 2010) (finding that even though a
physician did not treat the claim ant before his date last insured, the physician m ay have probative evidence
of functional lim itations during the insured period where logic dictates that the condition predated the
exam ination or where the evidence m ay disclose the severity and continuity of im pairm ents); Coulbourn v.
Astrue, No. 07-0095, 2008 W L 2413169, at *4 (E.D. Cal. June 12, 2008) (stating that m edical reports created
outside the relevant tim e period m ay be relevant when there is no evidence that the condition had changed
significantly during the interim and indicating a court should “look at the substance of the report, the type of
injury in question, the treatm ents received, and the like to acquire a valid judgm ent on the doctor’s report”).
Here, logic dictates that if evaluations both before and after the relevant tim e period indicated poor
concentration and/or attention, then Plaintiff m ost likely suffered an inability to concentrate during the relevant
tim e period between the two evaluations.
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
September 22, 2011
Greenville, South Carolina
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