Riley v. Commissioner of Social Security Administration

Filing 21

ORDER re 1 Complaint - Social Security, filed by Peter Joseph Riley. It is ordered that the Commissioner's decision be AFFIRMED. Signed by Magistrate Judge Jacquelyn D Austin on 8/7/2017. (abuc)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Peter Joseph Riley,

)
)
Plaintiff,
)
)
vs.
)
)
1
Nancy A. Berryhill ,
)
Acting Commissioner of Social Security,)
)
Defendant.
)

Civil Action No. 8:16-cv-00352-JDA

ORDER

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 [Doc. 7]; and the Order of reference signed by the Honorable
Margaret B. Seymour on February 18, 2016 [Doc. 10]. Plaintiff brought this action pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”), denying Plaintiff’s claim for
supplemental security income (“SSI”).2 For the reasons set forth below, the decision of
the Commissioner is affirmed.

1

On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social
Security.
2

Section 1383(c)(3) provides, “The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as provided
in section 405(g) of this title to the same extent as the Commissioner’s final determinations
under section 405 of this title.” 42 U.S.C. § 1383(c)(3).

PROCEDURAL HISTORY
On February 7, 2012, Plaintiff filed an application for SSI, alleging disability
beginning October 15, 2008.

[R. 165–74.]

The claim was denied initially and on

reconsideration by the Social Security Administration (“the Administration”). [R. 83–85,
102–03, 106–09, 111–12.] Plaintiff requested a hearing before an administrative law judge
(“ALJ”), and on May 15, 2014, ALJ Robert C. Allen held a hearing on Plaintiff’s claim. [R.
38–66.]
The ALJ issued a decision on June 27, 2014, finding Plaintiff not disabled under the
Social Security Act (“the Act”). [R. 26–37.] At Step 1,3 the ALJ found Plaintiff had not
engaged in substantial gainful activity since February 7, 2012, the application date. [R. 28,
Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments:
coronary artery disease, congestive heart failure, generalized anxiety disorder, and
affective disorder. [R. 28, Finding 2.] The ALJ also found Plaintiff had non-severe
impairments of hypertension and hyperlipidemia, which were effectively treated and
controlled with medication. [R. 28.] At Step 3, the ALJ found Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 28, Finding 3.] The
ALJ specifically considered Listings 4.02, 4.04, 4.05, 12.02, 12.04, 12.05, and 12.06. [R.
28–29.]
Before addressing Step 4, Plaintiff’s ability to perform his past relevant work, the
ALJ found Plaintiff retained the following residual functional capacity (“RFC”):

3

The five-step sequential analysis used to evaluate disability claims is discussed in the
Applicable Law section, infra.
2

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform sedentary work as defined in 20 CFR
416.967(a) except with the following limitations: He cannot
climb ladders, ropes, or scaffold. He can occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl. He
should avoid concentrated exposure to heat, cold, and
humidity as well as odors, dusts, gases, and fumes. He should
avoid unprotected heights and dangerous machinery. He is
limited to simple unskilled work that does not involve more than
occasional contact with the general public.
[R. 29, Finding 4.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was
unable to perform his past relevant work as a painter [R. 35, Finding 5]; however, based
on his age, education, work experience, RFC, and vocational expert testimony, there were
jobs that existed in significant numbers in the national economy that Plaintiff could perform
[R. 35, Finding 9]. On this basis, the ALJ found Plaintiff had not been under a disability,
as defined in the Act, since February 7, 2012, the date the application was filed. [R. 36,
Finding 10.]
Plaintiff requested Appeals Council review of the ALJ’s decision but the Council
declined. [R. 1–6. ] Plaintiff filed this action for judicial review on February 4, 2016. [Doc.
1.]
THE PARTIES’ POSITIONS
Plaintiff contends the ALJ’s decision is not supported by substantial evidence and
should be remanded because the ALJ failed to consider Plaintiff’s medication side effects
and/or failed to find that Plaintiff’s medication side effects are severe impairments, failed
to accord proper weight to the opinions of Plaintiff’s treating physicians Drs. Abdulla
Abdulla and Fredric Woriax, and failed to properly assess Plaintiff’s credibility. [Doc. 15.]
The Commissioner, on the other hand, contends the ALJ’s decision is supported by
3

substantial evidence and that substantial evidence supports the ALJ’s consideration of the
side effects of Plaintiff’s medication, the ALJ assigned the proper weight to the medical
opinions, and the ALJ properly evaluated and considered Plaintiff’s credibility. [Doc. 16.]
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
‘substantial evidence.’”).
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); 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
4

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 the 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 claimant’s residual
5

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 claimant 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
6

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).4 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).
APPLICABLE LAW
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

4

Though the court in Wilkins indicated in a parenthetical that the four-part test set forth
in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the
Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating
a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152,
2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107,
2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm’r of Soc. Sec., No.
2:08-cv-93, 2009 WL 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 Supreme
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 more stringent Borders inquiry.
7

disability. 42 U.S.C. § 423(a). “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 consecutive months.
Id. § 423(d)(1)(A).
I.

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. § 416.920. 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

8

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. §
416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A.

Substantial Gainful Activity

“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. § 416.972(a)—and gainful—done for pay or profit,
whether or not a profit is realized, id. § 416.972(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. Id. § 416.974–.975.
B.

Severe Impairment

An impairment is “severe” if it significantly limits an individual’s ability to perform
basic work activities. See id. § 416.921. 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), 1382c(a)(3)(G). 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

9

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), 1382c(a)(3)(G).
C.

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. § 416.909, the ALJ will find the claimant disabled without
considering the claimant’s age, education, and work experience.5

20 C.F.R. §

416.920(a)(4)(iii), (d).
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. § 416.960(b).

5

The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R.
§§ 416.911, 416.925.
6

Residual functional capacity is “the most [a claimant] can still do despite [his]
limitations.” 20 C.F.R. § 416.945(a)(1).
10

E.

Other Work

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
perform other work that exists in the national economy. See 20 C.F.R. § 416.920(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. § 416.969a; 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

7

An exertional limitation is one that affects the claimant’s ability to meet the strength
requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that
affects the ability to meet the demands of the job other than the strength demands. Id.
Examples of nonexertional limitations include but are not limited to difficulty functioning
because of being nervous, anxious, or depressed; difficulty maintaining attention or
concentrating; difficulty understanding or remembering detailed instructions; difficulty
seeing or hearing. 20 C.F.R. § 416.969a(c)(1).
11

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
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).
II.

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).
III.

Treating Physicians
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. § 416.927(c)(2); see Mastro v. Apfel, 270

12

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, i.e., when the treating physician’s opinion
does not warrant controlling weight, Craig, 76 F.3d at 590, but 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. § 416.927(c). 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 Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the
treating physician’s conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th
Cir. 1983) (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. § 416.927(c)(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). Further, the ALJ is required to review all of
the medical findings and other evidence that support a medical source’s statement that a

13

claimant is disabled. 20 C.F.R. § 416.927(d). However, the ALJ is responsible for making
the ultimate determination about whether a claimant meets the statutory definition of
disability. Id.
IV.

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. § 416.917; 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. § 416.917. Under the regulations,
however, the ALJ may determine that a consultative examination or other medical tests are
necessary. Id.
V.

Pain
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,

14

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 “pain rule” applicable within the United States Court of Appeals for the
Fourth Circuit, it is well established that “subjective complaints of pain and physical
discomfort could give rise to a finding of total disability, even when those complaints [a]re
not supported fully by objective observable signs.” Coffman v. Bowen, 829 F.2d 514, 518
(4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). 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. § 416.928. 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:
...

15

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
determinative.
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. § 416.929(c)(1)–(c)(2) (outlining evaluation of pain).
VI.

Credibility
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

16

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.”).
APPLICATION AND ANALYSIS
Medication Side Effects
Plaintiff argues that the ALJ failed to consider the side effects of Plaintiff’s
medications as a severe impairment and/or failed to consider the effects of his medications
on his ability to sustain work. [Doc. 15 at 11–12.] The Commissioner contends, however,
that substantial evidence supports the ALJ’s consideration of the alleged side effects of
Plaintiff’s medications. [Doc. 16 at 7–10.]
In reaching a determination regarding a claimant’s RFC, the ALJ must base the
decision on “all of the relevant evidence in the case record,” including side effects of
medication. SSR 96-8P, 61 Fed. Reg. 34,474-01, at 34, 477 (July 2, 1996). The ALJ is
not, however, required to accept unquestioningly all alleged side effects of medications;
complaints of side effects may properly be discredited by inconsistent evidence, as long
as the ALJ fully explains why the claimant’s testimony should be discredited. See Johnson
v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005) (relying upon the claimant’s activities to
discredit “allegedly disabling ‘doped up’ effect” of medication).
In the hearing before the ALJ, Plaintiff testified that his medications in combination
with his condition cause him to get dizzy. [R. 56–57.] In his function report, Plaintiff
17

indicated that his medications cause fatigue, dizziness, drowsiness, upset stomach, back
pain, and headaches. [R. 211.] In the decision, the ALJ noted that Plaintiff “was treated
with a variety of medications, apparently without detrimental side effects.

Those

medications included aspirin, Benazepril, Coreg, Furosemide, Plavix, Nitroglycerin, Lasix,
Zocor, Carvedilol, Isosorbide, Simvastatin. He was also prescribed Xanax, Trazodone,
Prozac, and Vistaril.” [R. 33.] A review of Plaintiff’s medical history fails to establish that
Plaintiff complained of any medication side effects to his treating physicians. Plaintiff
complained of dizziness, fatigue, and low energy at times [R. 370, 383, 387, 411, 413, 426,
431, 460, 480, 486]; however, these symptoms were not ascribed to medications, and
Plaintiff’s physicians indicated he experienced no known side effects from medications [R.
441] and associated his fatigue with his depression, inactivity, and cardiomyopathy [R.
486]. Further, the record contains no evidence of any physician ever opining that the side
effects from Plaintiff’s medications rendered him unable to work, and Plaintiff has failed to
direct the Court to any such evidence. As stated, the ALJ is not required to accept
unquestioningly all alleged side effects of medications. See Johnson, 434 F.3d at 659.
After reviewing the record, the Court concludes that the ALJ properly considered Plaintiff’s
medication side effects. Accordingly, the decision of the Commissioner should not be
reversed on this ground.
Weight Assigned to Medical Opinions
Plaintiff contends the ALJ failed to assign proper weight to the opinions of Drs.
Abdulla and Woriax. [Doc. 15 at 13–16.] Specifically, Plaintiff argues the ALJ considered
congestive heart failure a severe impairment but failed to consider coronary artery disease

18

and ischemic cardiomyopathy severe impairments.8 [Id. at 13.] Plaintiff also contends the
ALJ failed to adequately document his assessment of the factors required to be considered
in weighing a treating physician’s opinion and failed to explain the evidentiary support for
the weight assigned to Dr. Abdulla’s opinion, which is supported by Dr. Woriax’s opinion.
[Id. at 13–16.] The Commissioner argues the ALJ assigned the proper weight to Dr.
Abdulla’s opinion because, under the controlling regulations, the ALJ properly found that
Dr. Abdulla’s RFC opinion was not supported by the evidence. [Doc. 16 at 10–14.]
With respect to medical source opinions regarding a claimant’s impairments and
limitations, the ALJ is obligated to evaluate and weigh these medical opinions “pursuant
to the following non-exclusive list: (1) whether the physician has examined the applicant,
(2) the treatment relationship between the physician and the applicant, (3) the
supportability of the physician’s opinion, (4) the consistency of the opinion with the record,
and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d at 654 (citing
20 C.F.R. § 404.1527). ALJs typically “accord ‘greater weight to the testimony of a treating
physician’ because the treating physician has necessarily examined the applicant and has

8

As an initial matter and as previously stated, the ALJ found coronary artery disease to
be a severe impairment. [R. 28.] With respect to ischemic cardiomyopathy, to the extent
the ALJ may have erred at Step 2, the error is harmless. See Mickles v. Shalala, 29 F.3d
918, 921 (4th Cir. 1994) (affirming denial of benefits where the ALJ erred in evaluating a
claimant’s pain because “he would have reached the same result notwithstanding his initial
error”); Sawyer v. Colvin, 995 F.Supp.2d 496, 509 (D.S.C. 2014) (discussing harmless
error at Step 2 stage). The determination of Plaintiff’s disability did not end at Step 2. The
ALJ found multiple severe impairments; thus, he continued through the sequential
evaluation process and considered all impairments. See Singleton v. Astrue, C/A No.
9:08–1892–CMC, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009) (discussing how error at
Step 2 may be harmless). The ALJ acknowledged Plaintiff’s ischemic cardiomyopathy
diagnosis in the discussion of Plaintiff’s medical history when determining Plaintiff’s RFC.
[R. 30, 31.]
19

a treatment relationship with the applicant.” Id. (quoting Mastro, 270 F.3d at 178). While
the ALJ may discount a treating physician’s opinion if it is unsupported or inconsistent with
other evidence, Craig, 76 F.3d at 590, the ALJ must still weigh the medical opinion based
on the factors listed in 20 C.F.R. § 404.1527(c).
The opinion of a treating physician is given controlling weight only if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2). Additionally, Social Security Ruling (“SSR”) 96-2p requires that an ALJ
give specific reasons for the weight given to a treating physician’s medical opinion:
[A] finding that a treating source medical opinion is not well
supported by medically acceptable clinical and laboratory
diagnostic techniques or is inconsistent with the other
substantial evidence in the case record means only that the
opinion is not entitled to “controlling weight,” not that the
opinion should be rejected. Treating source medical opinions
are still entitled to deference and must be weighed using all of
the factors provided in 20 C.F.R. 404.1527 and 416.927. In
many cases, a treating source’s opinion will be entitled to the
greatest weight and should be adopted, even if it does not
meet the test for controlling weight.
1996 WL 374188, at *4 (July 2, 1996). However, not every opinion offered by a treating
source is entitled to deference:
Medical sources often offer opinions about whether an
individual who has applied for title II or title XVI disability
benefits is “disabled” or “unable to work,” or make similar
statements of opinions. In addition, they sometimes offer
opinions in other work-related terms; for example, about an
individual’s ability to do past relevant work or any other type of
work. Because these are administrative findings that may
determine whether an individual is disabled, they are reserved
to the Commissioner. Such opinions on these issues must not
be disregarded. However, even when offered by a treating

20

source, they can never be entitled to controlling weight or given
special significance.
SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996); see also 20 C.F.R. §§ 404.1527(e),
416.927(e) (stating an ALJ does not have to “give any special significance to the source
of an opinion on issues reserved to the Commissioner,” such as an opinion that the
claimant is disabled, the claimant’s impairment or impairments meets or equals a listing,
or the claimant has a certain residual functional capacity).
Drs. Abdulla and Woriax’s Opinions
Plaintiff has a history of ischemic cardiomyopathy dating back to 2008 when he
suffered an anterior myocardial infraction. [R. 490.] Subsequently, Plaintiff underwent
coronary artery bypass surgery and was on intensive medical therapy since that time. [Id.]
Plaintiff was later referred by Dr. Abdulla, a cardiologist, who saw Plaintiff every six to eight
months beginning in 2008, for consideration of an automatic cardioverter/defibrillator
(“AICD”). [Id.] On August 27, 2012, Dr. Peter Bigham successfully implanted a dualchamber AICD. [R. 515–16.]
Prior to the AICD implantation, Dr. Abdulla completed a Cardiac Residual Functional
Capacity Questionnaire on May 21, 2012. [R. 439–43.] Dr. Abdulla indicated Plaintiff has
Class II ischemic cardiomyopathy and coronary artery disease with fatigue but no pain.
[Id.] Dr. Abdulla noted Plaintiff had no marked limitation of physical activity and was
capable of low stress jobs but that Plaintiff frequently experienced cardiac symptoms that
could interfere with attention and concentration. [Id.] Dr. Abdulla indicated Plaintiff had no
known side effects from medications and could walk one to two city blocks without rest,
could sit one hour at a time, could stand twenty minutes at a time, would need a job that

21

permitted shifting positions at will, would need to take unscheduled breaks during an eighthour working shift, and would need to elevate his legs with prolonged sitting. [Id.] He also
indicated Plaintiff could occasionally lift and carry less than ten pounds, occasionally lift
and carry ten pounds, rarely lift and carry twenty pounds, and never lift and carry fifty
pounds and could occasionally twist, stoop, and crouch, never climb ladders, and rarely
climb stares. [Id.] Finally, Dr. Abdulla opined that Plaintiff should avoid even moderate
exposure to extreme cold, extreme heat, wetness, humidity, noise, and hazards and avoid
all exposure to fumes, odors, dusts, gases, and poor ventilation. [Id.] Dr. Abdulla thought
Plaintiff would be absent from work about three days per month. [Id.]
Dr. Woriax, Plaintiff’s primary care physician, noted on November 20, 2012, that
Plaintiff “has a lawyer involved to help with disability, of which I feel he will qualify with
given his profound cardiomyopathy.” [R. 551.]
The ALJ’s Treatment of Drs. Abdulla and Woriax’s Opinions
The ALJ explained his consideration of Dr. Abdulla and Woriax’s opinions as
follows:
In arriving at the above-stated residual functional capacity, I
considered the statement by Dr. Woriax that he felt the
claimant would qualify for disability given his profound
cardiomyopathy (Exhibit 18F/4). I also considered the
limitations set forth in the cardiac functional assessment of Dr.
Abdulla[] (Exhibit 8F, 9F). . . . In light of the claimant’s good
results of his cardiac treatment, including medications and ICD
implantation, and considering the lack of abnormalities on
clinical findings, I find that the opinions of both Drs. Woriax and
Abdulla[] are not supported by those findings. The evidence
demonstrates the claimant experiences some fatigue,
occasional palpitations, shortness of breath with moderate
exertion, and only infrequent lower extremity edema. The
claimant[] has no respiratory, musculoskeletal, or neurological
abnormalities or deficits that would further interfere with his
22

ability to work. In addition, Dr. Woriax is not a cardiologist and,
therefore, not qualified to make such a determination about the
claimant’s cardiac status. The claimant maintains the ability to
shop in stores, drive a vehicle, walk for exercise, take care of
his personal hygiene, and attend church services, which
demonstrates the claimant is capable of functioning beyond
the limitations determined by Drs. Woriax and Abdulla[].
[R. 34–35].
Discussion
In this case, the ALJ provided thorough reasons for discounting the opinions of Drs.
Abdulla and Woriax.9 The ALJ cited to Dr. Abdulla ‘s treatment notes after implementation
of the AICD, confirming that Plaintiff was doing well from a cardiac standpoint since the
placement of the AICD, was physically active while performing daily activities, and walked
15 minutes at a time for two to four times a week. [R. 32 (citing R. 573).] Additionally, the
ALJ noted that Plaintiff’s “[p]hysical examinations were essentially unremarkable.” [R. 33
(citing treatment records).] The ALJ also cited treatment notes from a January 19, 2014,
follow-up appointment with Dr. Abdulla, which indicated Plaintiff was fairly stable from a
cardiac standpoint. [R. 33 (citing R. 566).] These notes also indicate that Plaintiff denied
chest pain, claudication, lower extremity edema, near syncope, palpitations, syncope, and
tachycardia. [R. 566.] Further, the ALJ noted that Plaintiff’s activities of daily living conflict
with the functional limitations opined by Drs. Abdulla and Woriax. [R. 35.]

9

With respect to Dr. Woriax’s opinion, Plaintiff argues Dr. Woriax’s opinion supports Dr.
Abdulla’s opinion. [Doc. 15 at 13.] Dr. Woriax noted that Plaintiff “has a lawyer involved
to help with disability, of which I feel he will qualify with given his profound
cardiomyopathy.” [R. 551.] However, as stated, an ALJ need not give any special
significance to the source of an opinion on issues reserved to the Commissioner, such as
an opinion that a claimant is disabled. 20 C.F.R. §§ 404.1527(e), 416.927(e). Moreover,
Dr. Woriax’s treatment notes after the AICD implantation consistently indicate Plaintiff was
stable from a cardiac standpoint. [R. 549, 553, 559.]
23

After a review of the decision and the record in this case, the undersigned finds that
the ALJ properly considered and evaluated Drs. Abdulla and Woriax’s opinions as part of
his analysis of the overall record and evidence in this case and provided an explanation
for his treatment of these opinions. The record contains substantial evidence to support
the findings and conclusions of the ALJ, and Plaintiff’s arguments to the contrary are
without merit. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding it is the
responsibility of the ALJ, and not of the courts, to weigh the evidence and resolve conflicts
in that evidence); see also Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (“What
we require is that the ALJ sufficiently articulate his assessment of the evidence to ‘assure
us that the ALJ considered the important evidence . . . [and to enable] us to trace the path
of the ALJ’s reasoning.’” (alterations in original)).

Accordingly, the decision of the

Commissioner should not be reversed on this ground.
Credibility
Plaintiff contends the ALJ failed to assess Plaintiff’s credibility in accordance with
SSR 96-7p arguing that there was no evidence to contradict Plaintiff’s diagnoses; no
evidence to contradict the side effects of his medications; and the ALJ inaccurately stated
Plaintiff’s activities of daily living. [Doc. 15 at 16–18.] The Commissioner contends the ALJ
properly evaluated and considered Plaintiff’s credibility. [Doc. 16 at 14–16.]
Determining whether an individual is disabled by pain or other symptoms is a
two-step process. First, an ALJ must determine whether a claimant has an underlying
impairment that has been established by objective medical evidence that would reasonably
be expected to cause subjective complaints of the severity and persistence alleged. See
20 C.F.R. § 416.929(b); SSR 96–7p; Craig, 76 F.3d at 591–96 (discussing the
24

regulation-based two-part test for evaluating pain). The first part of the test “does not . .
. entail a determination of the intensity, persistence, or functionally limiting effect of the
claimant’s asserted pain.” Craig, 76 F.3d at 594 (internal quotation omitted). Second, and
only after claimant has satisfied the threshold inquiry, the ALJ is to evaluate “the intensity
and persistence of the claimant’s pain, and the extent to which it affects [his] ability to
work.” Id. at 595. This second step requires the ALJ to consider the record as a whole,
including both objective and subjective evidence, and SSR 96–7p cautions that a
claimant’s “statements about the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to work may not be disregarded
solely because they are not substantiated by objective medical evidence.” SSR 96–7p.
If an ALJ rejects a claimant’s testimony about his pain or physical condition, he must
explain the bases for such rejection to ensure that the decision is sufficiently supported by
substantial evidence. Hatcher v. Sec’y, Dep’t of Health & Human Servs., 898 F.2d 21, 23
(4th Cir. 1989). “The reasons for the credibility finding must be grounded in the evidence
and articulated in the determination or decision.” SSR 96–7p. “The determination or
decision must contain specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” Id.
Here, after setting forth the applicable regulations, the ALJ considered Plaintiff’s
subjective claims under the required two-step process. See Craig, 76 F.3d at 591–96. The
ALJ found Plaintiff’s impairments could reasonably be expected to cause some of the
symptoms he alleged, but determined that Plaintiff’s statements “concerning the intensity,
25

persistence and limiting effects” of his symptoms were “not entirely credible to the extent
alleged.” [R. 33.] Upon review of the ALJ’s decision, the Court finds the ALJ adequately
explained his consideration of Plaintiff’s alleged symptoms and limitations. [R. 29–34.]
The ALJ explained that Plaintiff did well after AICD implantation without complications and
denied having chest pain, dizziness, palpitations, syncope, and peripheral edema. [R.
33–34.] Although Plaintiff may disagree with the ALJ’s findings, Plaintiff has failed to direct
the Court to any evidence of record not considered by the ALJ in making his credibility
determination.10 It is not the duty of the Court to reweigh evidence or make credibility
determinations in evaluating whether a decision is supported by substantial evidence;
“[w]here conflicting evidence allows reasonable minds to differ,” the court must defer to the
Commissioner’s decision. Johnson, 434 F.3d at 653. Accordingly, the decision of the
Commissioner should not be reversed on this ground.
CONCLUSION
Wherefore, based upon the foregoing, it is ordered that the Commissioner’s decision
be AFFIRMED.
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
August 7, 2017
Greenville, South Carolina

10

Indeed, much of Plaintiff’s argument with respect to the ALJ’s credibility determination
relates to the ALJ’s failure to consider the side effects of Plaintiff’s medication. As
previously discussed, the Court concludes that the ALJ properly considered Plaintiff’s
medication side effects.
26