Williams v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION re 1 Complaint filed by Joyce Williams, 15 MOTION for Summary Judgment filed by Commissioner of Social Security, 13 MOTION for Summary Judgment filed by Joyce Williams. Signed by Magistrate Judge James E. Bradberry and filed on 11/23/09. (mwin, )

UNITED

STATES

DISTRICT

COURT

FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

JOYCE WILLIAMS,

Plaintiff,
v.
MICHAEL J. ASTRUE,

2:09CV60

Commissioner of

Social

Security,

Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff brought this action under 42 U.S.C. § 405(g)
judicial review of the decision of the Secretary of Health

seeking
Human under

and (DIB)

Services denying her receipt of disability insurance benefits

the Social Security Act.
for summary judgment.

Plaintiff and defendant have both filed motions
The motions were referred to the undersigned

United §

States

Magistrate and
for

Judge pursuant and Rule 72 of

to the

the

provisions of the

of

28

U.S.C. States
of

636(b)(1)(B)
Court

(C),
the

Rules
of

United
by

District

Eastern
21, 2009.

District

Virginia,

order

reference entered April

I. A.

STATEMENT OF THE

CASE

Procedural Background

Plaintiff 21, 2005, alleging

filed an application that she became

for DIB payments on March 1,

on December due to

disabled

2005,

breast cancer,

degenerative disc disease, hypertension, anxiety, and

neuropathy,

headaches,

carpal anemia, 95-99,and on

tunnel syndrome, pain,
156;

gastroesophageal reflux disease, cardiovascular
were

depression,
162.)

disease.

(R.

at

Plaintiff's

claims

denied

initially

reconsideration. granted. The

A

request was

for

a

hearing on June

was 25,

timely 2007.

filed

and

was was

hearing

conducted

Plaintiff

represented by counsel and testified,

in the course of

the hearing.

A

vocational expert was present but did not testify.
On August 23, 2007, an administrative law judge (ALJ)

<R.

at

35-49;

56.)

denied plaintiff's

claim for DIB.
request 4, 2008,

(R.

at

18-34.)

On September 7,
(R.

2007,
at

plaintiff filed a
On December

for review of

the ALJ's decision.

16-17.)

the Appeals Council denied plaintiff's request,

thereby making (R. at

the decision of the ALJ the
1-5.)

final decision of the Commissioner.

On

February

6,

2009,

plaintiff

filed

a

complaint

in

federal

court, appealing the Commissioner's final decision, defendant filed an answer. summary judgment, alleging On May 27, that the

and on April 9,

2009,

2009, plaintiff filed a motion for Commissioner's decision was not

supported by substantial evidence. motion for summary judgment.
B.

On June 26,

2009,

defendant

filed a

This matter is now ripe for consideration.
Factual Background

Plaintiff hearing, and a

was born October 31,

1956,

and at

the

time

of

the

she was fifty years old. aid certificate.

Plaintiff has a high school education Plaintiff worked as a correctional

teacher's

officer for ten years, a housekeeper. (R. She

and prior to that, her job as a

she worked as a desk clerk and officer due to her

left

correctional

illnesses.
1, 2005.

at 39-40).

Plaintiff's onset date of disability is March

1.

Medical history

a.

Treating physicians

In April,

2000,

plaintiff was seen by Dr.

Claire Carman,

who

diagnosed

her

with

right

breast

cancer.

(R.

at

214.)

Plaintiff

had
She

conservative

surgery,

followed by external

beam radiation therapy.

completed her treatments on July 18,

2000.

At

the time of plaintiff's

follow-up cancer

visit was (R.

on

August

23,

2000,

she from

had the to

no

clinical side

evidence effects Carman

of of for

and

recovering at 190.)

nicely She
<R.

acute

radiation.
mammograms

continued
at

follow up with
Carman

and monitoring.

211-14.)

referred plaintiff

to physical therapy for scar massage,

range of motion,

and correction of

costochondritis.1
On

(R. at 212.)
15, 2001, Carman discovered a new mass in

November

plaintiff's
plaintiff's

right

breast.

<R.

at

210.)

After

removal

of

the

mass,

right breast remained asymptomatic.
On May 27, 2005,
Norfolk

plaintiff
General

underwent
Hospital,

a

bilateral
reveled

diagnostic
a mass in

mammogram

at

Sentara

which

her

left

breast.

(R.

at

205-206.)

Following

a

biopsy,

plaintiff

was

diagnosed with left breast carcinoma on June 2,
June 21, 2005, Carman performed a left

2005.

<R.

at 204.)

On

partial mastectomy with sentinel

node biopsy and excision of the area.
Following surgery, Carman

(R.

at

178.)
to Dr. Michael

referred plaintiff

Steinberg, discussed

an with

oncologist, plaintiff

for the

chemotherapy. potential side

(R.

at

203.) of

Steinberg

effects

chemotherapy,

including peripheral neuropathies2 and muscle and joint aching.
286.) On July 13,
on

(R.

at

2005,

plaintiff began chemotherapy and completed the
2005. <R. at 202; 282-91.) Additionally,

treatments

October

26,

plaintiff

received CT stimulation,

an

IMRT

forward treatment plan,

and

Dictionary 431

1

(31st

Pertaining to a rib and its cartilage.
ed. 2 007) .

Doland's Illustrated Medical

nervous system, sometimes limited to noninflammatory lesions as opposed to those of neuritis; the etiology may be know or unknown. Known etiologies include

2

A functional disturbance or pathological change in the peripheral

Doland's

complications of other diseases (such as diabetes or porphyria), or of toxicity states (such as poisoning with arsenic, isoniazid, lead, or nitrofurantoin).
at 1287.

a six and one-half week course of radiation therapy for local regional
control of the cancer. (R. at 187.)

On October 23,

2 006,

Steinberg completed a medical assessment

physical ability form,
her lifting/carrying, should only due to

finding that plaintiff's impairment did not affect
standing/walking, climb, balance, or sitting. stoop, crouch, He indicated and that crawl

plaintiff

kneel,

occasionally, reaching, speaking

fatigue and tiredness. feeling, pushing, by

Steinberg determined that seeing, hearing, Finally, or he

handling, were not

pulling,

affected

plaintiff's

impairment.

suggested that plaintiff should have some environmental restrictions due
to the effects of chemotherapy. {R. at 350-54.)

The record also includes an unsigned medical assessment
dated May 23, for thirty 2007, which indicates that plaintiff was only able stand for thirty minutes, and able to

form

to sit and

minutes,

sit

stand/walk
plaintiff

for

less

than
to

two

hours.
as

The
as

form
ten

further
pounds.

indicated
(R. at

that
597.)

should

never

lift

much

Finally,

the form noted that plaintiff suffered from "[d]iffuse, constant (R. at
page

radiating pain."
appear on the that

595.)
of the

Although Steinberg's
form, on the it was not

name

and address
Defendant to be

last the

signed. form

suggests

handwriting

unsigned

appears

different than the handwriting on the form of October 23, 2006, which was prepared and signed by Steinberg.
351-52; 598.)

(Def's Mot.

for Summ.

J.

1

13;

R.

at

Throughout Steinberg's treatment of plaintiff, he consistently noted that were she was progressing well unremarkable.
complain of

and that

her physical his
(R.
a

examinations indicate
285,
scan

generally

Furthermore,
serious
620.)

reports
at
bone

that
288,
was

plaintiff
293-95,

did not

pain.
Finally,

282-83,
density

508-10,

549-50,

618,

normal

except

for

some

signs

of osteopenia, 3
x-rays were

a

mammogram
(R.

revealed
at 501;

no

recurrent
545.)

malignancy,

and

chest

normal.

505;

On

April

20,

2006,

plaintiff

was

referred

to

Dr.

Richard

Wertheimer Wertheimer

due

to

complaints that the

of

numbness was

in

her caused

hands by

and

legs.

noted

numbness

peripheral

polyneuropathy,4

which

began when

she

was

receiving

chemotherapy but

continued to worsen after chemotherapy ended. and nerve conduction studies. (R. at

Wertheimer ordered an EMG On June 16, 2006, the

300-03.)

EMG

revealed

evidence

of

right

SI

radiculopathy5

and

right

median

neuropathy at the wrist.

An MRI

scan of the lumbosacral

spine revealed

disc

protrusion at L3-L4 without evidence of metastatic
of the SI nerve root. Because plaintiff

6

disease

or
to
(R.

impingement

continued
ordered.

complain of back and leg pain,

a whole body bone scan was

at

299.)

On

July

3,

2006,

Wertheimer

noted

that

the

bone

scan

was

negative with no evidence of neoplasm7 but that degenerative disease was
seen in both of plaintiff's ankles. (R. at 298.)

to the extent that there is insufficient compensation for normal bone lysis. The term is also used to refer to any decrease in bone mass below the normal.
Doland's at 1369.

3

Reduced bone mass due to the decrease in the rate of osteogenesis

at

1513.

4
5 6

Neuropathy of several peripheral nerves simultaneously.
Disease of the nerve roots. Doland's at 1595.

Ddland's

directly connected with it.

The transfer of disease from one organ or part to another not
(e.g.,
at

microorganisms
tumors.

tubercle bacilli)

It may be due either to the transfer of pathogenic

or to transfer of cells,

as in malignant

Doland's

1163.

in which the growth is uncontrolled and progressive. Malignant neoplasms are distinguished from benign in that the former show a greater degree of anaplasia
and have the properties of invasion and metastasis. Doland's at 1258.

7

Any new and abnormal growth; specifically a new growth of tissue

On August 1,

2006,

Wertheimer reported that plaintiff had good

strength

in

her

lower

extremities

bilaterally,

with

some

weakness

of

right

foot

dorsiflexion.6

<R.

at

391.)

Additionally,

straight-legand

raising testing was negative,
proprioception was positive intact. as

Romberg's
at as 391.) her

sign testing was negative,

(R. well

Plaintiff's Phalen's sign was Tinel's sign, but she had no

bilaterally

limitation of range of motion in her fingers.
plaintiff reported that physical

(R.

at 391.)

Additionally,
but she

therapy helped her back pain,

continued to experience pain which radiated from her lower back into her

right leg and groin.
at 391.)

Wertheimer referred her to a rheumatologist.

(R.

On October 20, form

2006, Wertheimer completed a medical assessment could sit eight hours and stand or walk

indicating that plaintiff

four hours

in an eight-hour workday but that
tunnel

she could only lift and/or
syndrome. to reach, (R. (R. at 355-57.) feel, His

carry up to five pounds due to carpal Wertheimer push, opined that plaintiff's

abilities

handle, at 356.)

and pull were all affected by pain and numbness.

opinion was

that plaintiff

should never balance,

stoop,

crouch,

kneel,

and/or crawl due to back pain. should not
chemicals, and the

Finally, Wertheimer warned that plaintiff moving machinery, extreme temperatures,

work

near

heights,

humidity,

and vibrations due to the possible of injury. (R. at 357.)

loss of balance indicated

increased

risk

Wertheimer

that plaintiff was able to perform work activity five days a week, hours a day,
(R. at 357.)

eight

fifty-two weeks a year,

if the work is sedentary in nature.

hand or

foot.

0

Flexion or bending toward the extensor aspect of a limb, as of the
Poland's at 570.

On February 15,

2007, Wertheimer noted that plaintiff had good

strength in all

four extremities,

with some mild weakness of

right foot

dorsiflexion.

(R.

at 388-89.)

Additionally,

her coordination was intact and her Romberg's sign

throughout, her gait was only slightly wide-based,
testing was negative. some of her back pain,
in her hand. (R. at

(R.

at 389.)

An elastic back support had relieved

and a wrist splint had helped with the discomfort

388.)
1006, plaintiff was seen by Dr. Alfred Denio for

On October 2,

an

initial

consultation
Denio opined was

at
that

the

Center

for

Arthritis

and
back

Rheumatic
pain was

Diseases.

plaintiff's to her

mechanical

nonstructural treatments.

and (R.

related

deconditioning

after

cancer

at 368.)

Denio noted that plaintiff had a supple neck,

no

peripheral

synovitis,9
she

and

good
of

grip

strength
in in her her

and

finger

curl.

Additionally, and cervical only some

had normal and she in

range

motion

elbows, lumber

shoulders, spine with

spine,

had good movement the right

tenderness

sciatic

notch

and

lumbar

paravertebrals.10
when plaintiff

(R.

at 370.)
her

Denio indicated that there was no pain
knees, ankles, and big toes, and

rotated

hips,

straight-leg-raising and ankle reflexes

test was negative. were normal, with

(R. some

at

370.)

Plaintiff's knee noted on

knee

tenderness

percussion.
was intact,

(R. at 370.)
and her

Plantar1 reflexes were flexor, motor function
5/5. <R. at 370-71). Romberg. Denio noted a (R. at 371.)

strength was

slightly broad-based gait,

with some hysterical

on motion,

a synovial

and is characterized by a fluctuating swelling due to effusion within
sac. Doland's at 1879.

9

Inflammation of a synovium; it is usually painful, particularly

10 11

Beside the vertebral column.

Doland's at 1403. Doland's at 1476.

Pertaining to the sole of the foot.
7

Lumbar spine x-rays revealed degenerative changes of facets at L4-5,

with

some

associated

degenerative

disk

disease,
(R. at

but
372.)

x-rays

of

her

hands,

wrists,

and hips were unremarkable.
On November 20, 2006,

Denio

noted

that

plaintiff

had

only

transient

relief

with

a

series

of

epidural

steroid

injections.

He

indicated that plaintiff's main problem continued to be the pain in her back and leg, therefore, he suggested an elastic
at

lumbar

support,

but

plaintiff asked for a surgical opinion.
On December 6, 2006,

(R.

366.)

plaintiff was examined by Michael Weaver,

a certified physician's assistant in the office of Dr. a neurosurgeon. gait,
her

Grant A.

Skidmore,

<R.

at 419).

Weaver noted that plaintiff had a normal had full
in her

could tandem walk without difficulty,
lumbar spine, had a strength of 5/5 at

range of motion in
lower extremities

bilaterally, On

and had downgoing toes. February 16, 2007,

(R.

419.) that recent diagnostic

Skidmore

noted

studies revealed no significant neural compression and only mild stenosis

at

L3-4.

He

indicated
which

that

plaintiff
for

had degenerative
her back pain,

disease
the

in

her
pain

lumbar

spine

could

account

but

leg

seemed to be a possible neuropathy.
surgery on her back was not

Skidmore explained to plaintiff that
(R. at 405.)

an option.

On May 31, at Southampton

2006 plaintiff underwent Healthcare for

a psychiatric evaluation Wayne Reed, a

Behavioral

depression.

licensed professional counselor,

assigned plaintiff a GAF score of sixty.

<R.

at

362-64.)
(R. at

Plaintiff

continued

to

meet

with

Reed

on

a

monthly

basis.

347.)

On October 19,

2006,

Reed completed a mental assessment form,

opining that plaintiff was unable to work full time because of emotional

limitations which were heavily influenced by chronic physical problems.

<R.

at 349.)

He indicated that plaintiff had marked limitations in her

ability to maintain attention and concentration for an extended period,
to travel in unfamiliar places, or use public transportation. (R. at

348-49.) her

Reed also to

indicated that plaintiff locations and

was moderately limited in procedures and to

ability

remember

work-like

understand and remember detailed instructions. that plaintiff was moderately perform limited in her

In addition, ability a to

Reed noted carry out

detailed
regular

instructions,
attendance, be

activities
within

within

schedule,
tolerances,

maintain
work in and

punctual

customary

coordination with or in proximity to others without being distracted,
make simple work-related decisions. (R. at 347-49.)

Plaintiff's
with more Reed. social, Her level she

symptoms
of

improved
and

following
energy

the

initial
she

meeting
became in

functioning less

increased, and an

and

reported (R. at

depression 576; 578.)

increase 10,

happiness

and optimism.

571-74;

On April

2007,

Reed

completed

another

mental

assessment

form

concerning

plaintiff's

functionality.

He indicated that plaintiff was not significantly limited

in the broad functional categories of understanding and memory,
concentration and persistence, social interaction,

sustained
(R. at

and adaption.

585-86.)

It was Reed's belief that plaintiff was only moderately limited

in her abilities to maintain attention and concentration for an extended

period and to travel in unfamiliar places or use public transportation.
(R. at 585-86.)

b.

Disability Determination Services On September 26, 2006, after

(DPS)

physicians the evidence, Dr.

reviewing

Robert

Castle

opined
and ten

that

plaintiff

could

lift

or

carry

twenty pounds
she could

occasionally

pounds

frequently.

He

determined

that

stand or walk for up to six hours in an eight-hour workday and sit up to

six hours
319-22.)

in an eight-hour workday,

with no other limitations.

(R.

at

On September 26, a consultative psychologist,

2006,

plaintiff met with Edward Spain,

Ph.D.,

for a DDS consultation.

Plaintiff reported

symptoms of depression including feelings of hopelessness,

insomnia,

loss

of

appetite,

low energy,

inadequate ability to maintain concentration, Spain's

and inability to remember important aspects of daily activities.

diagnosis was adjustment disorder and assigned plaintiff a GAP score of
sixty, indicating borderline mild to moderate symptoms. (R. at 328,

331.)

Spain believed that plaintiff was mentally capable of performing

moderately complex and detailed tasks, comprehending and accepting simple concise oral instructions without difficulty, appropriate
plaintiff

and behaving in a socially He worried
in

manner

with

supervisors

and

co-workers.
with frequent

that
the

would

have

difficulty

dealing

changes

workplace routine, general public.

maintaining regular attendance, opined that plaintiff's

and dealing with the health condition

Spain

mental

would significantly interfere with her ability to complete a normal work
day or week and that she would be prone to frequent episodes of emotional
deterioration. (R. at 328-32.)

On September 26,

2006,

Robert Gerstle,

Ph.D.,

a

state-agency

psychologist,

reviewed

the

evidence

and

determined

that

plaintiff

was

able to meet the basic demands of competitive work on a sustained basis, despite the limitations resulting from her depression.
found that she suffered only a mild limitation in

(R.
her

at 316.)

He

daily

living,

social functioning,

and ability to concentrate.

Although Gerstle found

that

plaintiff

suffered

from

depression

as

the

result

of

her

medical

problems,
(R. at

he noted that she was doing better with the help of medication.

316.)

10

2.

Plaintiff's

assertions a.

and testimony history

in

the

record.

Employment

Plaintiff
currently holds a

testified
aid

that

she

finished
(R. at

high

school
For

and
ten

teacher's

certificate.

38-39.)

years

she

worked

as

a

corrections

officer,

and (R. at

prior

to

that

she

was

employed as

a desk clerk and housekeeper. b. Impairments

39-40.)

Plaintiff testified that she has trouble holding things due to
numbness, and although, she underwent surgery for carpal tunnel syndrome,

her hands continue to go numb. of her hands, She also she sometimes

Because items have a tendency to slip out and silverware. in her legs, (R. at

uses plastic dishes

42.)

said she

experiences

similar numbness

which

requires her to prop them up in a recliner for approximately three hours
a day. (R. at 47.)

Plaintiff which radiates from

stated the that

that of

she her

takes body

medication to the

to

relieve {R. at

pain, 43.) she

top

bottom. her it. both a so (R.

Plaintiff has

testified for

since

the

medication after

makes

drowsy, at 45.) and

to lie down

four to five hours testified she that

taking

Plaintiff days and estimated

she to

experiences four bad

good week,

bad

that

has

three

days

during

which she remains in bed all day.
that she c. suffers from depression.

<R.
(R.

at 45-46.)
at 46.)

Finally,

she testified

Daily activities and residual Plaintiff testified that

functional lives

capacity

(RFC) and does

she

independently

light housework and cooking,

although she often has help from friends and

relatives.
groceries,

(R.
with

at

40-41.)

Plaintiff
help,and

walks
in her

for

exercise;
time

shops
she

for

someone's

spare

reads.

11

Although fish.

she at

would 41.)

like

to,

due

to

her

impairments,

she

is

unable

to

(R.

3.

The ALJ'a

decision

At

the

conclusion of

the hearing,

the ALJ denied plaintiff's

application.

(R.

at

30.)

At

step one of

the

five-step evaluation,

the

ALJ noted that plaintiff had not engaged in substantial gainful activity

since March 1,

2005,

the alleged onset date of disability.
to the the second step of ALJ the evaluation. that

(R.

at 23.)

The ALJ thus proceeded At step

two,

determined

medical

evidence

established

that

plaintiff

had

history

of

breast

cancer,

neuropathy,
(R. at 23.) were

lumbar degenerative disc disease, However,
nonsevere months,

depression, all other
for a

and anxiety. alleged

the

ALJ

concluded

that

impairments
period any of

because

they did not to

exist

continuous not require

twelve

were

responsive

medication,

did

significant

medical

treatment,

or

did

not

result

in

any

continuous

exertional

or

nonexertional

functional

limitations.

In particular,

the ALJ noted that

plaintiff's
releases,

carpal

tunnel

syndrome,
and

status
her

post

bilateral
headaches

surgical
were not

cardiovascular

disease,

migraine

attended by clinical or objective evidence of limitation.
At step three of the evaluation, the ALJ

(R.

at 23-24.)
that

determined

plaintiff did not have an impairment or combination of
met or medically equaled one of the listed impairments 404, Subpart P, Appendix 1.

impairments
in 20 C.F.R.

that
Part

The ALJ found that plaintiff's degenerative

disc disease did not reach the level of severity described in the listing due to the absence of evidence of a spinal disorder resulting in

compromise
root

of

a

nerve

root

or

the

spinal

cord,

with

evidence

of

nerve
and

compression accompanied by motor

loss,

sensory or reflex

loss,

12

positive
severe
changes

straight

leg

raising,-

spinal

arachnoiditis12
13 resulting in

manifested
the need

by
for

burning or painful dysesthesia,

in position or posture more than once every two hours;

or lumbar

spinal stenosis resulting in pseudoclaudication" and in the inability to
ambulate effectively, at 24.) Although loss of plaintiff suffers from peripheral neuropathy with as defined in 1.00(B)(2)(b) and 1.04(A), (B). (R.

sensation in her hands and feet,

the ALJ found that there was no

evidence of significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and

dexterous movements,
The ALJ further

or gait and station,
that plaintiff has

as described in listing
a history of left and

13.10.
right

found

breast as

cancer,

but there was no evidence of listing 13.10. (Id.) the signs medical and

recurrence or metastasises,

described in

Finally, plaintiff

although some

evidence

established in Criteria

that "A"

had exhibited

symptoms

listed

of listing 12.04 and 12.06, resulted of the in less

the ALJ found that her depression and anxiety functional there The was limitations no evidence that under to Criteria "B" the

than marked listing, and

medical of

establish

presence

Criteria

"C."

ALJ

found

plaintiff's

mental

impairments result in mild restriction of her activities of daily living;
mild difficulties in maintaining social functioning; moderate

Dorland's

at

124.

12

Inflammation of the arachnoidea mater;
Distortion of any sense,
Limping or lameness.

called also arachnitis.
cEand's at

13
584.

especially of chat of touch.

14

Doland's at 375.
13

difficulties in maintaining concentration,
episodes of decompensation. (Id.)

persistence,

or pace;

and no

Having that satisfied or

determined equaled in

that

plaintiff

did not

have the

an

impairment set

medical Subpart

severity P,

any of

criteria

forth in 20 C.F.R.
determine perform whether past

Part 404,
she had

Appendix 1,
functional work

the ALJ moved on to
capacity in (RFC) to

the work

residual or other

her

relevant

existing

significant

numbers in the economy.
ALJ found that be

(R. at 25.)

After considering the evidence,
determined alleged impairments but

the

plaintiff's to

medically the

could her

reasonably statements
of the

expected

produce intensity,

symptoms and

that

concerning
were

the
not

persistence,
in

limiting
the

effects
of

symptoms
the

entirely

credible

light

of

effects

treatment,

absence

of

recurrent

malignancy,

and

statements

from

treating

and

examining

sources
(R. at

regarding
26.)

the

nature

and

severity

of

plaintiff's

impairments.

The Wertheimer,

ALJ

rejected their

the

opinions

of were

Drs.

Reed,

Steinberg, checklist

and

because

assessments

merely

forms

prepared for purposes of
were not completed in

litigating the claim for disability.
normal course of treating

The forms
and the

the

plaintiff,

limitations

cited

were

not

supported

by

the (R.

clinical at

and

objective

findings reported elsewhere in the record.
Considering the evidence, the

28-29.)
that plaintiff

ALJ

determined

had the RFC to perform the strength demands of light work.

From a mental

standpoint,
considering

she
her

was

limited

to

simple

instructions
and chronic

and

simple
(R.

tasks,
at 29.)

depression,

anxiety,

pain.

Plaintiff's past relevant work as a corrections officer is classified as
medium semi-skilled work, work, she is unable and since plaintiff is limited to simple light (Id.)

to perform past

relevant work.

14

At step five the ALJ determined that based on plaintiff's age, education,
successful

work

experience,

and

RFC,

she
in

would

be

able

to

make

a

adjustment

to work that

exists

significant numbers

in the

national

economy.

Therefore, (Id.)

he

determined

that

a

finding

of

not

disabled was appropriate.

C.

Issue

The

issue

in

this

matter

is

whether

substantial

evidence

exists to support the Commissioner's final decision that plaintiff is not
disabled within the meaning of the Social Security Act and, therefore,

not entitled to DIB.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.
As Procedure, set

Motion for Summary Judgment Standard
forth in Rule 56 of the Federal Rules of Civil

summary judgment is appropriate when the moving party can show

by affidavits, pleadings, or

depositions,

admissions, "that

answers is no

to

interrogatories, issue as to

the any

other evidence,

there

genuine

material
matter of

fact

and

that

the

moving party
56{c).

is

entitled

to

a

judgment
of

as

a

law."

Fed. R. Civ. P.

Rule

56 mandates

entry

summary

judgment against a party who motion . . . fails to

"after adequate time for discovery and upon a showing sufficient to establish the

make

existence of an element essential to that party's case,
party will bear the burden of proof at trial."
477 U.S. 317, 322 (1986) .

and on which that
v. Catrett.

Celotex Corp.

The moving party is not entitled to

summary judgment if there

is

a

genuine
Inc..

issue
477

of

material
242, 248

fact

in

dispute.
A genuine

Anderson
issue of

v.
fact

Liberty
exists

Lobby,

U.S.

(1986).

if

"a

reasonable

jury

could

return

a verdict
15

for

the

nonmoving

party."

Id.

In

other

words,

summary

judgment

appropriately to

lies

only See

if

there

can be but one

reasonable
as the

conclusion as
Fourth

the verdict.
explained,

id.

Finally,

Circuit

[w]e must
underlying

draw any permissible
facts in the light the

inference
most

from the
to a to the
that

favorable taken of where
case prove.

the
is

party

opposing
only not

the
a

motion.
rational party,

Summary
record trier such as

judgment
as fact

appropriate could for the
on an

where

whole find

lead

non-moving

non-moving
showing the

party

has

failed
has the

to

make
of

a
the to

sufficient

essential

element

non-moving party

burden

Tuck

v.

Henkel

Corp.,

973

F.2d

371,

374

(4th

Cir.

1992) (citations

omitted).
B. Standard of Review

When
the right to a

an

individual
in

makes

a
to

claim

for

DIB/SSI,
whether

he
he

or
or

she
she

has
is

hearing

order

determine

disabled. has been
filing a

See

42

U.S.C.

§

1383 (c) (1) (A) (2000) .

After

a

final

decision

rendered by the
civil action in

SSA,

a party can seek review of the decision by
court. See id. at § 1383 (c) (3) . The

federal

factual

findings

which

have been

rendered by the Commissioner

of

Social

Security "if supported by substantial evidence,
where a claim has been denied, the "court shall

shall be conclusive," and
review only the question

of

conformity

with Id.

such

regulations

and

the

validity

of

such

regulations."
to whether an

at § 405 (g).

The Commissioner's findings with respect
even if the

individual

is disabled should not be disturbed,

court

may

disagree

with

them,

as

long

as

the

findings

are

supported

by

substantial
Sullivan.

evidence,
F.2d

and the
1456

correct
(4th

law has been applied.
1990); Smith v.

See Havs v.
795

907

1453,

Cir.

Schweiker.

F.2d 343,

345

(4th Cir.

1986) .

Substantial

evidence

is

defined as

"more

16

than

a mere

scintilla. accept
U.S. U.S.

It means to

such

relevant a

evidence

as

a

reasonable

mind might
Perales, N.L.R.B., evidence,

as

adequate
401 229

support

conclusion."
Consolidated

Richardson v.
Edison is Co. v.

402 305 the

389, 197,

(1971)(quoting (1938)). has held

In determining what that substantial

substantial exists

Fourth

Circuit

evidence

"[i]f there is evidence to justify a refusal to direct a verdict were the
case before a jury. 1984)(quoting Laws . v. ." Shivelv v. Heckler, F.2d 739 F.2d 987, 642 989 (4th Cir. 1966)).

Celebrezze.

368

640,

(4th Cir.

Specific regulations have been promulgated at the direction of
Congress by the Secretary of Health and Human Services for the purpose
The step

of making an eligibility determination. social security regulations (SSR)

See 20 C.F.R. the ALJ to

§ 416

(2000). five

require

conduct a

sequential evaluation of a disability to determine whether a claimant is
entitled to benefits. The five steps which the ALJ must follow are:

1.

Is

the

individual

involved

in

substantial

gainful

activity? 2. Does the individual suffer from a severe impairment or

combination of impairments which significantly limit his or her physical or mental ability to do work activities? 3. Does
C.F.R.

the
at

individual
which meet
1? Appendix

suffer
or

from

an

impairment
listed in

or
the

impairments

equal

those

4.

Does him
work?

the or

individual's her from

impairment his

or or

impairments prevent her past relevant

performing

5.

Does
him

the individual's
or her from doing

impairment
any other

or

impairments prevent

work?

See ALJ

id.

at § 404.1520/416.920. the
F.2d

In reviewing a social for weighing

security case, the evidence.

the See

bears
907

ultimate
at 1456.

responsibility

Hays,

17

C.
A person is

Discussion
DIB if he or she is insured for such

eligible for

benefits,

has

not attained retirement

age,

has

filed an

application

for

such benefits, The meet code to and be

and is under a disability. carefully insured at § detail and the

See 42 U.S.C.

§ 423(a)(2000). a person must benefit

SSR

requirements for such

which

fully id.
SSI

eligible

insurance

payments.

See
The

423(c).
is designed "to assure a minimum level of

program

income

for

people

who

are

age

sixty-five

or

over,

or

who

are

blind

or

disabled and who do not have sufficient a 20 an standard C.F.R. § of living at the

income and resources Federal that minimum

to maintain level." paid to limited out in

established has

income

416.110. if

Congress

stated

benefits will be

individual or

that person which

is aged, less

blind or disabled and has than the dollar figure set

income

resources § 1382(a).

total

42 U.S.C.

While the requirements for these two types of social security benefits differ, the definitions and terms used to determine if a person

is disabled and,
person is

therefore,

eligible
if he

for
or

such benefits are
is unable "to

the same.
in

A
any

considered disabled

she

engage

substantial
physical or

gainful
mental

activity
impairment

by

reason
can

of
be

any

medically
to

determinable
in death

which

expected

result

or

which

has

lasted or

can

be

expected

to

last

for

a

continuous

period

of not less than twelve months." an individual's

Id.

at § 423(d) (1) (A) .

To be disabled,

impairments must be:

of such severity that he is not only unable to do his previous work but cannot, considering his age, education,
other kind

and
of

work

experience,

engage
work

in

any

substantial
18

gainful

which

exists whether which

in he

the

national exists or

economy, in a the

regardless area job

of in

such

work

immediate

lives,
for

whether

specific

vacancy

exists
applied

for him,

or whether he would be

hired if he

work.

Id. 1.

at

§

423(d)(2)(A). has not been engaged in substantial gainful activity.

Plaintiff

The

first

step

in

evaluating

whether

a

disability

exists

requires a determination of whether plaintiff has engaged in substantial
gainful C.F.R. activity §§ since the onset of the If a alleged claimant disability. is working, See and 20 the

404.1520;

415.920

(2000).

work

which

he then

or

she

is

doing

is

considered be found not

to

be

substantial See is

gainful at §§ as

activity,

the

claimant

will

disabled. activity

id.

404.1520(b);
"work

416.920(b).
that . even

Substantial
doing done

gainful

defined
or if

activity . .

involves if it is

significant on a part-time

physical basis or

mental you do

activities

less,

get

paid

less,

or

have

less

responsibility

than

when

you

worked

before." 416.910.

ipU at §§ 404 .1572 (a) ;

416.972 (a);

see also id.

at SS 404.1510;

In order to be gainful activity,

the work activity must be done

for pay or

for some type of profit,

even if

that profit

is not

realized.

See

id.

at

§§

404.1510(b);
activity

404.1572(b);
does not

416.910(b);
daily or

416.972)b).
recreational

Substantial

gainful

include

activities,
therapy,
Id. at §§

including "taking care of yourself,
attendance, club activities,

household tasks, hobbies,
social programs. . . ."

school

or

404.1572(c);

416.972(c).

The ALJ

found

that

plaintiff

has

not

engaged

in

substantial

gainful
2005.

activity since
The record

the alleged onset
this finding,

date of

disability on March 1,
the ALJ's decision

supports

therefore,

19

at

step

one

is

supported
two.

by

substantial

evidence,

and

the

Court

will

proceed to

step

2. The Court to

Plaintiff suffers second step of

from a

severe

impairment. evaluation requires the

the

disability suffers

determine

whether plaintiff

from a

severe

impairment.

See

20 C.F.R.
from a

§§ 404.1520<c);
severe

416.920(c) (2000) .
then he or she

If a claimant does not
cannot be considered

suffer

impairment,

disabled,

and thus,

he

or

she

is

ineligible

for

DIB.

See

id.

To

find

that a severe impairment exists, combination of impairments which

a claimant must have "any impairment or significantly limits [his] physical or

mental ability to do basic work activities.
must be the product and of it "anatomical, must be
and

..."

Id.,
or

The

impairment

physiological, by

psychological evidence
Id. at

abnormalities,"
consisting §§ of

established
laboratory

"medical
..."

signs, 416.908.

symptoms,

findings.

404.1508;

Examples of basic work activities which must be significantly
limited by the impairment
(1)

include:
functions such as walking,

Physical

standing,

sitting,

lifting,

pushing,

pulling,

reaching,
(2) speaking;

carrying,

or handling;
for seeing, hearing, and

Capacities

(3)
remembering (4)

Understanding,
simple of

carrying

out,

and

instructions;

Use

judgment;

(5) Responding appropriately to supervision, co-workers, and usual work situations; and
(6) setting. Dealing with changes in a routine work

20

Id.

at

§§

404.1521(b) ; which an

416.921(b).

The

combined shall be

effect

of

all

of

the

impairments without be

individual

suffers

considered would at

together,

regard to The is

for whether as a

any one of severe has

those

symptoms See

individually §§ 404.1523; disability 482 U.S.

enough

qualify Supreme a de

impairment. held that See this

id. of

416.923. evaluation
137,

Court

step v.
a

the

minimis
The

threshold.
of

Bowen

Yuckert,
threshold

146-47

(1987).

purpose

requiring

such

showing

of medical severity is to increase "the efficiency and reliability of the

evaluation process by identifying at an early stage those claimants whose
medical impairments are so slight that it is unlikely they would be found to be disabled even Id. if their age, education, and experience were taken

into account."

at 153.

Accordingly,

the severity determination must

have

"a

strictly
Id. at

medical
151

basis

.

.

.

without
Report

regard

to

vocational
the 1984

factors."

(quoting

the

Senate

accompanying

amendments.)

The impairments:

ALJ

found of

that

plaintiff cancer,

has

the

following

severe

history

breast

neuropathy,

lumbar

degenerative

disc disease, depression and anxiety. as well as plaintiff's
suffered from

Statements of treating physicians, indicate
The

own

testimony,

that
ALJ

plaintiff
found that

has
all

continually

these

impairments. since

other alleged impairments are nonsevere, a continuous require period of twelve months,

they have not existed for to not medication, result in do any

are

responsive or do

not

any significant exertional the ALJ or noted

medical

treatment,

continuous Specifically,
status post

nonexertional that plaintiff's

functional carpal

limitations. syndrome,
and

tunnel

bilateral

surgical

releases,

cardiovascular

disease,

migraine

headaches were

not attended by clinical

or objective

evidence.

21

Substantial evidence exists to support the ALJ's finding that plaintiff's
history of breast cancer, neuropathy, lumbar degenerative disc disease, The record also supports severe. lumbar

depression and anxiety are severe impairments. the ALJ's Having conclusion that plaintiff's

the other alleged impairments are not history of breast cancer, neuropathy,

found

degenerative disc disease,
properly proceeded to step

depression and anxiety to be
three of the evaluation.

severe,

the ALJ

3.

Plaintiff does not suffer from an impairment or combination impairments that meets or equals one found in the listings. The third step of the evaluation requires

of

a determination of

whether plaintiff suffers from an impairment or impairments which meet(s) or equal(s) one found in the listings set forth in Appendix 1. See id.

at §§ 404.1520(d); "for each of the

416.920(b)(2000). major body systems,

The listings provide a description impairments which are considered
Id.

severe enough to prevent a

person

from doing any

gainful

activity."

at

§§

404.1525(a);

416.925(a).

The

impairment

must

have

a

duration

of

at

least

twelve
death.

months,
See

unless
id.;

such

impairment
id. at

is
§§

expected
404.1509;

to

cause

claimant's

see

also

416.909.

Without more,

a diagnosis that a claimant has an impairment listed in the See

Appendix does not automatically result in a finding of a disability.

id.

at

§§

404.1525(d);

416.925(d).

Claimant

has

the

burden

to

show and

through medical evidence,
laboratory findings,

such as symptoms,

signs,

doctors opinions,

that his or her condition meets the precise criteria

set

out

in

the

listings

for

that particular

impairment.

See

id.

If a claimant's listings,
a

impairment or impairments can be

found in the

or are equal to impairments that are set forth in the listings,
will be considered disabled without considering his or her

claimant

22

age,

education, A

or

work

experience. impairments
Appendix 1

See are
"if

id.

at

§§

404.1520<d); to a
at

416.920(d).
listed

claimant's
found in

medically
the medical

equivalent
findings

impairment

are

least equal 404.1526(a);
equivalency,

in severity and duration 416.926(a).
the

to the

listed findings."

Id.

at §§

In order to make a determination as

to medical

SSR state:
compare the symptoms, signs, and

We

will

laboratory findings about your impairment(s), as shown in the medical evidence we have about your
claim, with we the will medical criteria shown with the

listed
listed,

impairment. your is

If

your
the

impairment
listed

is

not your more
or the

consider

impairment

most
than

like
one a

impairment medically
and

to

decide If
of

whether you have
review

impairment
equals

equal.
none we

impairment, listed signs, and

them

meets

impairment,

will

symptoms,

laboratory

findings

about

your
to
Id.

impairments
listed
just

to

determine

whether

the

combination of your impairments

is medically equal

any

impairment.
an impairment is not listed within the

Therefore,

because

Appendix,
will not

it
be

does

not

necessarily
a

follow

that
If

the

claimant's
is

impairment
then a

considered

disability.

the

listing

met,

claimant a to listing show

is

considered

disabled and 1 is not

is met,

entitled then a

to

DIB

and/or has

SSI.

If

within he

Appendix or she

claimant

the

burden

that

is unable no

to perform past that

relevant work. impairment or

The

ALJ

found

evidence

plaintiff's

combination
impairments

of
in

impairments
20 CPR Part

meet
404,

or

medically
P,
the

equal

one

of
The

the
ALJ

listed
found
404,

Subpart

Appendix 1.
listing in 20

that plaintiff's

condition did not meet

CPR Part

Subpart P,
severe: (1)

Appendix 1,
evidence

which requires one of the following to qualify as
of a spinal disorder resulting in compromise of a

nerve

root

or

the

spinal

cord,

with evidence

of

nerve

root

compression

23

accompanied by motor loss,

sensory or reflex loss,

and positive straight

leg raising; painful
posture

(2)

spinal

arachnoiditis manifested by severe burning or in position or
spinal
to

dysesthesia,
more
in

resulting in the need for changes
every two hours;
and

than once

or

(3)
the

lumbar

stenosis
ambulate

resulting

pseudoclaudication

in

inability

effectively,

as

defined

in

1.00B2b

and

1.04A,

B,

and

C.

Although

plaintiff had peripheral neuropathy with loss of sensation in her hands and feet, the ALJ found that disorganization
in sustained

there was of motor
of

no

evidence in

of

significant

and

persistent
resulting

function
gross

two

extremities,
movements or

disturbance

and dexterous

gait and station,

as

defined in

listing

13.10.

The

ALJ also found that there

although plaintiff has a history of

left and right breast cancer, as described

was no evidence of recurrence or metastasises,
13.10.

in listing

Finally,

the ALJ found that plaintiff exhibited some signs and

symptoms

of depression,

as described in paragraph

"A"

of

listing

12.04

and 12.06.
resulted in

Despite this,
less

the ALJ found that her depression and anxiety
functional limitations under Criteria "B"

than marked

of the medical listing.

Furthermore,

the evidence did not establish the the ALJ found that plaintiff's

presence of the "C" criteria.

Therefore,

mental impairments result in mild restriction of her activities of daily
living; mild difficulties in maintaining social functioning; moderate
and no

difficulties

in maintaining

concentration,

persistence

or pace,-

episodes of decompensation.

In determining the appropriate weight to give to any medical

source opinion,

the regulations require

that

the ALJ consider:

(1)
(2)

the
the

examining relationship between the medical

source and claimant;

treatment

relationship,

including
24

the

length

of

the

relationship,

frequency

of

examination,

and

nature

and

extent

of

the

treatment

relationship;

(3)

support

by

medical

evidence;

(4)

consistency

of

the

opinion with the record as a whole;
(6)

(5)

the source's specialization;

and

any other factors which support or contradict the opinion.

20 C.F.R.

§404.1527(d).

In

this

case,

the

ALJ

considered

Dr.

Spain's

medical

opinion but did not assign it great weight. opinions of Drs. Reed, Steinberg, and

The ALJ also considered the but gave them no

Wertheimer

evidentiary weight. As to Spain's opinion, for not assigning great weight the ALJ adequately explained the basis his opinion that plaintiff would be

to

unable
Spain's

to

maintain

regular
of

work

attendance.
was

The
not

ALJ

explained
with

that
his

summary

opinion

disability

consistent

countervailing
moderate

conclusion

that
(R.

plaintiff
at 28,

had
331) .

only

borderline

mild
the

to
ALJ

symptomatology.

Furthermore,

explained

that

Spain's

conclusory

opinion

was

not

consistent

with

plaintiff's
essentially
limitations.

mental
within
(R. at

status
the
28,

examination
limits

and
and

test

results,
no

which

were

normal

indicated

significant

330-331.)

As to the opinions of Steinberg, explained
normal

Reed,

and Wertheimer, not completed

the ALJ in the
at

that

their
of

disability

assessments
were

were

course

treatment

but

checklist

forms

prepared

plaintiff's request (R. at 28.) The

for purposes of ALJ noted that

litigating their

the claim of disability. opinions were not

disability

supported by the clinical and objective findings in their treatment notes

or elsewhere in the record.

(R.

at 29.)

For example,

the unsigned form

attributed to Steinberg dated May 23,

2007,

indicts that plaintiff could
The conclusion is unsupported

only sit or stand for less than two hours.

by

Steinberg's

office

notes,

plaintiff's

physical

examinations

were

25

generally unremarkable with no complaints of serious pain,
studies showed no clinically significant signs. 293, 501, 505, 508, 510, 545, 549, 618, 620.) (R.

and diagnostic
285, 288,

at 282-83, Reed's

Also,

assessment

that plaintiff was unable to work was not consistent with his assessment that plaintiff experienced only mild to moderate mental health symptoms. (R. at 349, 585-86). Finally, Wertheimer's opinion that plaintiff could

lift

no more

than
push,

five pounds
and pull

and that

her ability to use
by pain and

her hands
was

to
not

manipulate,

was

affected

numbness

supported by his office notes. strength testing, they

While his notes contained no evidence of a notation that (R. plaintiff at 355-56) . had no

included

limitations in her ability to move her fingers.

The ALJ

fully considered and weighed the medical opinions of plaintiff's treating
physicians in accordance with 20 C.F.R. §404.1527 and adequately

explained his reasons for affording no evidentiary weight to the opinions

of

Steinberg,

Reed,

and Wertheimer. will generally give enhanced they are weight not 20 to the

While findings accept

ALJ's of

and opinions treating

treating

physicians,

required to C.F.R. §

physicians'

opinions

uncritically.

404.1527(d) (2) .

In order to be entitled to controlling or great weight,

a

physician's

opinion

must

be

"well-supported

by

medically

acceptable

clinical
with the

and

laboratory

diagnostic

techniques,"
in ALJ
the

and

not

"inconsistent
20 in C.F.R. §

other

substantial

evidence" the
to The

the was

record. reasonable

404.1527(d) (2)- (3) .
limited or no

Accordingly,
weight

affording
of Spain, by

evidentiary and

medical

opinions is

Steinberg,

Reed,

Wertheimer.

ALJ's

opinion

supported

substantial
the

evidence,

therefore,

the

Court will

proceed to

step

four of

evaluation.

4.

Plaintiff

is

unable

to

perform past

relevant work.

26

If

the

impairment

experienced by plaintiff

does

not

meet

or

exceed those set forth in Appendix 1, four and five. Step four of the

it is necessary to proceed to steps requires the Court to compare

analysis

what

plaintiff §§

can

still

do,

despite

his

or

her

impairments. still

See

20

C.F.R.

404.1520 (e);
to prove
v.

416.920 (e) (2000).
he or she
530

The burden
to

remains with
relevant
If then

plaintiff
work.

that

is

unable
580,

perform
(4th

past

See Thorne is

Wienberger, capable

F.2d

582 past

Cir.

1976) . work,

plaintiff

found to be

of performing

relevant

he

or

she will

not be

considered

to

be

disabled,

and

the

claim

will be

denied.

However,

if plaintiff is unable to return to past relevant work,

the

analysis

proceeds
See 20

to

step
§§

five,

and

the

burden
(2000).

shifts

to

the

Commissioner.

C.F.R.

404.1566,

416.966

In relevant work,

determining the Court

whether

a

claimant to

is

able

to

perform

past

is

directed

look at

a medical

assessment of

the individual's RFC. the Court with a

See id.

at §§ 4 04.1545, the

416.945. can
as

The RFC provides

report of what

individual

still do despite his
well as a vocational

or her impairments or combination of impairments

assessment

of

past of his

job or

requirements. her past

If

a

claimant's then he

RFC or

exceeds she is

requirements

relevant

work,

determined to be able to return to his or her past relevant work, claim can be 416.961. denied. See if a id. at §§ 404.1560(b); RFC has 404.1561; reduced

and the

416.960(b); below
step

However,

claimant's

been

the
four

requirements of his or her past relevant work,

then the test at

is

met,

and

the

evaluation

proceeds

to

step

five.

See

id.

at

§§

404.1560(c),

416.960(c).

27

Plaintiff previously worked as a corrections officer, which is classified as medium semi-skilled work.
to simple light work, she is unable

Since plaintiff

is now limited
work. Court The will

to perform past evidence,

relevant and the

ALJ's

opinion

is

supported

by

substantial

proceed to

step
5.

five of

the

evaluation.
within the local and national

Other

nobs

exist

economy which

plaintiff

could perform.

The fifth step in the analysis considers whether plaintiff can

perform any other work economy, considering See
the

available

in

significant age,

numbers

in and

the national past Step work is

plaintiff s §§

education, 416.966

experience.
reached when

20

C.F.R.
is

404.1566,

(2000).

five

claimant

not

engaged in

substantial

gainful

activity

and has a severe
prevents the

impairment

that does not meet or equal
relevant the

the

listings but
In assessing the Court

claimant ability to

from performing past perform other

work.

plaintiff's

work within

economy,

will
which
those

look

at

exertional
only

limitations,

those
and

limitations

or

restrictions
limitations,
activities

impact

strength
and

activities,
which

nonexertional

limitations

restrictions

impact

nonstrength

such as concentration and ability to
404.1569(a); 416.969(a). At

follow instructions.

See id.

at §§

step five,

the burden of proof shifts to the

Commissioner to establish that plaintiff has the ability to perform other
work. See Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

If

a

claimant's

impairment

solely

limits

his

or

her physical

function,

then

the

Court

is

directed

to

conduct

an

analysis

under

the

medical/vocational
nonexertional

regulations.
then full

If

a

claimant's

impairment

is

solely
of

or mental,

consideration must be given

to all

the relevant facts of the case and in accordance with the definitions and

28

discussions of each

factor

in

the

appropriate

section of

the

SSR.

See

20 C.F.R.
suffers

Pt.

404,

Subpt.

P,

App.
or the

2 § 200.00(a).

However,

if a claimant
and

from an

impairment

impairments Court is is

causing directed

both exertional to on first the

nonexertional whether a

limitations, of

determine exertional based on

finding alone.

disability If a

possible would

based be

limitations

claimant

not

disabled

exertional limitations alone, nonexertional
her disabled.

then the Court should determine whether the claimant would render him or

limitations
See id. at

suffered by the
§ 200.00 (e) (2).

The ALJ first determined that plaintiff was not disabled based on exertional limitations alone. Next, the ALJ determined that

plaintiff's symptoms of depression, to simple

anxiety, and chronic pain limited her (R. at 29.) Social Security

instructions and simple tasks.

Regulation

No.

96-9p

explains

that

none

of

these

nonexertional

limitations have a significant effect on plaintiff's occupational base.

SSR96-9p,
determine

1996
that

WL

374185

(1996) .

Accordingly,
and

the

ALJ

was

able

to

plaintiff's

exertional

nonexertional

limitations without
SSR

combined did not preclude plaintiff
consulting the vocational 85-15, 1985 WL 56857 expert.

from performing light work,
SSR 83-14, 1983 WL 31254

(1983);

(1985).

If

the

ALJ

had

not

found

that

plaintiff

had

nonexertional

limitations but instead found that plaintiff had been able to perform the full range of light work since her protective filing date, grid rules

202.14

and

202.21 20 C.F.R.

would pt.

have 404,

directed P,

that app. 2,

plaintiff

be

found .21.

not (R.

disabled.
at 30.)

subpt.

rules 202.14,

Although the ALJ found that plaintiff could not perform the full

range of light work using the grids as a framework and the Commissioner's

29

rulings

for

adjudicative

guidance,

nevertheless,

the

ALJ

found

that

plaintiff's

occupational

base

had

not

been

significantly eroded.

He

found that plaintiff would be able to make an adjustment to other work. To the extent that plaintiff's alleged limitations were consistent with the record, the ALJ properly accounted for plaintiff's exertional and

nonexertional
supported
plaintiff

limitations.
substantial

The Court
evidence,

finds that
and

the ALJ's opinion is
determined that

by

correctly

is not disabled.
III. RECOMMENDATION

For

the

foregoing

reasons,

the

Court

recommends

that

plaintiff's motion for summary judgment be DENIED and defendant's motion
for summary judgment be GRANTED.
IV. REVIEW PROCEDURE

By

copy

of

this

Report

and

Recommendation,

the

parties

are

notified that pursuant 1.

to

28 U.S.C.

§

636(b) (1) (C):

Any party may serve upon the other party and file with the

Clerk written

objections

to

the

foregoing

findings

and

recommendations

within ten days from the date of mailing of this report to the objecting

party

computed

pursuant

to

Rule

6 (a)

of

the

Federal

Rules

of

Civil See 28

Procedure,
U.S.C.

plus three days permitted by Rule 6(d)
Fed.R.Civ. P.
shall

of said rules.

§ 636(b) (1) (C) (2000) ;
2. A district

72(b) .
a de novo determination of

judge

make

those portions

of

this

report

or

specified findings

or

recommendations

to which objection

is made. are further notified and that failure set to file timely will

The parties objections to the

findings

recommendations

forth

above

result

in waiver of

right

to appeal

from a judgment of

this court based

30

on

such

findings
Carr
727

and

recommendations.
737 F.2d 433 (4th

Thomas
Cir.

v.

Arn,

474

U.S.
States

140
v.

(1985);

v.

Hutto,

1984);

United

Schronce,

F.2d 91

{4th Cir.

1984).

/s/
James E. Bradberry

United States Magistrate Judge
Norfolk, Virginia
2009

November 23.

31

Clerk's Mailing Certificate

A copy of the foregoing Report was mailed this date to each of
the following: ^^/ "--- <--'<'--^

John H. Klein, Esq. Montagna, Klein, Camden,
425 Monticello Ave.

LLP

Norfolk,

VA

23510

Susan

L.

Watt,

Esq.
States Attorney-

Assistant

United

World Trade Center,
101 West Main Street

Suite

8000

Norfolk,

VA 23510-1624

Fernando Galindo,

Clerk

Deputy Clerk

/A £-3

, 2009

32