White v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION. See for complete details. Signed by Magistrate Judge David J. Novak on 09/19/2017. (mailed copy to pro se Plaintiff) (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
WILLIAM WHITE, JR.,
pro se Plaintiff,

)
)
)

v.

)

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

Civil Action No. 3:16cv774 (DJN)

)
)
)
)

MEMORANDUM OPINION
On August 15, 2012, William White, Jr. ("Plaintiff') protectively filed for Social Security
Disability Benefits ("DIB") and for Supplemental Security Income ("SSI") under the Social
Security Act ("Act"), alleging disability from arthritis in both knees, diabetes, high blood
pressure and gastroesophageal reflux disease ("GERO"), with an alleged onset date of January 1,
2012. (R. at 242-46.) The Social Security Administration ("SSA") denied Plaintiffs claims
both initially and upon reconsideration. Thereafter, an Administrative Law Judge (''ALJ")
denied Plaintiffs claims in a written decision and the Appeals Council denied Plaintiff's request
for review, rendering the ALJ's decision as the final decision of the Commissioner.
Plaintiff, now proceeding prose, seeks judicial review of the ALJ's decision pursuant to
42 U .S.C. § 405(g), arguing that the ALJ erred in assessing his residual functional capacity
CRFC"), in concluding that he could perform work existing in the national economy, and that
additional evidence not previously submitted to the Agency warrants remand. (Pl. 's Mot. for
Summ. J. C'Pl.'s Mem.") (ECF No. 13) at 1-2.) This matter now comes before the Court by
consent of the parties pursuant to 28 U.S.C. §636(c)(l) on the parties' cross-motions for

summary judgment, rendering the matter ripe for review. 1 For the reasons that follow, the Court
hereby DENIES Plaintiffs Motion for Summary Judgment (ECF No. 13), GRANTS
Defendant's Motion for Summary Judgment (ECF No. 15) and AFFIRMS the final decision of
the Commissioner.

I.

PROCEDURAL HISTORY

On August 15, 2012, Plaintiff protectively filed an application for DIB and SSI with an
alleged onset date of January 1, 2012. (R. at 207-21, 242.) The SSA denied these claims
initially on January 29, 2013, and again upon reconsideration on November 7, 2013. (R. at 92109, 112-32.) At Plaintiffs written request, the ALJ held a hearing on January 23, 2015. (R. at
25, 151.) On April 16, 2015, the ALJ issued a written opinion, denying Plaintiffs claims and
concluding that Plaintiff did not qualify as disabled under the Act, because he could make
successful adjustments to jobs that existed in significant numbers in the national economy. (R. at
9-19.) Specifically, Plaintiff could perform the duties of a production inspector and information
clerk. (R. at 18.) On August 11, 2016, the Appeals Council denied Plaintiffs request for
review, rendering the ALJ's decision as the final decision of the Commissioner subject to review
by this Court. (R. at 1-3.)
II.

STANDARD OF REVIEW

In reviewing the Commissioner's decision to deny benefits, a court "will affirm the
[SSA]'s disability determination 'when an ALJ has applied correct legal standards and the ALJ's

The administrative record in this case remains filed under seal, pursuant to E.D. Va. Loe.
R. 5 and 7(C). In accordance with these Rules, the Court will endeavor to exclude any personal
identifiers such as Plaintiffs social security number, the names of any minor children, dates of
birth (except for year of birth), and any financial account numbers from its consideration of
Plaintiff's arguments, and will further restrict its discussion of Plaintiff's medical information to
only the extent necessary to properly analyze the case.
2

factual findings are supported by substantial evidence.'" Nfascio v. Colvin, 780 F.3d 632, 634
(4th Cir. 2015) (quoting Bird v. Comm 'r ofSoc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)).
Substantial evidence requires more than a scintilla but less than a preponderance, and includes
the kind of relevant evidence that a reasonable mind could accept as adequate to support a
conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chafer, 76 F.3d 585,
589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of
choice within which the decision makers can go either way, without interference by the courts.
An administrative decision is not subject to reversal merely because substantial evidence would
have supported an opposite decision."' Dunn v. Colvin, 607 F.App'x 264, 267 (4th Cir. 2015)
(quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)). To determine whether
substantial evidence exists, the court must examine the record as a whole, but may not
"undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005)). In considering the decision of the Commissioner based on the
record as a whole, the court must "take into account whatever in the record fairly detracts from
its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal

Camera C01p. v. NL.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any
fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm
regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If
substantial evidence in the record does not support the ALJ's determination or if the ALJ has
made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517

(4th Cir. 1987).

3

The SSA regulations set forth a five-step process that the agency employs to determine
whether disability exists. 20 C.F.R. § 416.920(a)(4); see Mascio, 780 F.3d 634-35 (describing
the AL.J's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the
claimant's work activity. § 416.920(a)(4)(i). At step two, the ALJ asks whether the claimant's
medical impairments meet the regulations' severity and duration requirements.

§ 416. 920(a)( 4 )(ii). Step three requires the ALJ to determine whether the medical impairments
meet or equal an impairment listed in the regulations. § 416.920(a)(4)(iii). Between steps three
and four, the ALJ must assess the claimant's RFC, accounting for the most that the claimant can
do despite his physical and mental limitations. § 416.945(a). At step four, the ALJ assesses
whether the claimant can perform his past work given his RFC. § 4 l 6.920(a)( 4)(iv). Finally, at
step five, the ALJ determines whether the claimant can perform any work existing in the national
economy. § 416.920(a)(4)(v).

III.

THE ALJ'S DECISION

On January 23, 2015, the ALJ held a hearing during which Plaintiff (then-represented by
counsel) and a vocational expert ("VE") testified. (R. at 25-78.) On April 16, 2015, the ALJ
issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 919.)
The ALJ followed the five-step evaluation process established by the Social Security Act
in analyzing Plaintiffs disability claim. (R. at 10-11.) At step one, the ALJ found that Plaintiff
had not engaged in substantial gainful employment since the alleged onset date. (R. at 11.) At
step two, the ALJ found that Plaintiff had the following severe impairments: osteoarthritis,
degenerative joint disease ("DJD") of the right knee, history of open reduction internal fixation
('"ORIF") of the right tibia with hardware replacement, hypertension, hyperlipidemia, diabetes

4

mellitus, and obesity. (R. at 11.) At step three, the AL.T determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the impairments in the listings. (R. at 12.)
In assessing Plaintiff's RFC, the ALJ found that Plaintiff could perform light work with
additional limitations. (R. at 13.) Plaintiff could only occasionally lift, carry, push and pull
twenty pounds and ten pounds frequently. (R. at 13.) Plaintiff could stand and/or walk two
hours in an eight-hour workday and sit six or more hours in an eight-hour workday. (R. at 13.)
He could occasionally climb ramps or stairs, but could never climb ladders, ropes or scaffolds.
(R. at 13.) Additionally, Plaintiff could only occasionally balance, stoop, kneel, crouch and

crawl. (R. at 13.) He could not tolerate exposure to extreme heat or cold. (R. at 13.)
Furthermore, he would need to alternate between sitting and standing every thirty minutes while
remaining on task. (R. at 13.) Plaintiff required the use of a cane. (R. at 13.) Finally, Plaintiff
could understand, remember and carry out simple and routine work-related instructions, along
with concentrating for periods of two hours on work-related tasks before requiring a break. (R.
at 13.)
At step four, the ALJ determined that Plaintiff could not perform any past relevant work.
(R. at 17.) Finally, at step five, the ALJ concluded that Plaintiff could perform jobs that existed

in significant numbers in the national economy. (R. at 18.) Specifically, Plaintiff could work as
a production inspector and information clerk. (R. at 18.) Therefore, he did not qualify as
disabled. (R. at 19.)
IV.

ANALYSIS

Plaintiff, fifty years old at the time of this Opinion, previously worked as a warehouse
supervisor and a flagman. (R. at 17, 242, 247.) He applied for Social Security benefits, alleging

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disability from arthritis, diabetes, high blood pressure and GERO, with an alleged onset date of
January 1, 2012. (R. at 242, 246.) Plaintiffs appeal to this Court alleges that the ALJ erred in
assessing his RFC and in finding that he could perform work that existed in the national
economy. (Pl. !s Mem. at 1.) Additionally, Plaintiff claims that updated records that he
submitted to the Court prove his disability. (Pl. 's Mem. at 1-2.) Defendant responds that
substantial evidence supports the ALJ's decision. (Def. 's Mot. for Summ. J. and Br. in Supp.
Thereof ("DeCs Mem.") (ECF No. 15) at 12.) For the reasons that follow, the ALJ did not err in
his decision.

A. The ALJ Did Not Err in Assessing Plaintiff's RFC.
Plaintiff argues that the ALJ erred in assessing his RFC. (Pl. 's Mem. at 1.) Specifically,
Plaintiff argues that his knee pain limits him more than the RFC reflects. (Pl. 's Mem. at 1.)
Defendant responds that the ALJ properly assessed Plaintiffs RFC. (Def.'s Mem. at 12.)
After step three of the ALJ's sequential analysis, but before deciding whether a claimant
can perform past relevant work at step four, the ALJ must determine the claimant's RFC. 20
C.F.R. §§ 404.1520(a)(4)(iv), 404.945(a)(l), 416.920(a)(4)(iv), 416.945(a)(l). In analyzing a
claimant's disabilities, the ALJ must first assess the nature and extent of a claimant's limitations
and then determine the claimant's RFC for work activity on a regular and continuing basis.
§§ 404.1545(b), 416.945(b). Generally, the claimant shoulders the responsibility for providing
the evidence that the ALJ utilizes in making his RFC determination; however, before
determining that a claimant does not have a disability, the ALJ must develop the claimant's
complete medical history, including scheduling consultative examinations if necessary.
§§ 404.1545(a)(3), 416.945(a)(3 ). The RFC must incorporate impairments that find a basis in

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the claimant's credible complaints. Carter v. Astrue, 2011 WL 2688975, at *3 (E.D. Va. June
23, 2011); accord20 C.F.R. §§ 404.1545(e), 416.945(e).
Social Security Ruling 96-8p instructs that the RFC "assessment must first identify the
individual's functional limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions listed in the regulations." Mascio, 780 F.3d
at 636 (citing SSR 96-8p, 1996 WL 374184 (July 2, 1996), at *5). The Ruling further explains
that the RFC "assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations)." Id. (citing SSR 96-8p, at *7).
Here, the ALJ considered the x-rays of Plaintiffs knees taken in 2012 and 2013 and
discussed their results. (R. at 14.) He discussed Plaintiffs 2009 hospitalization, as well as the
results from physical examinations conducted between 2012 and 2014. (R. at 14-15.) The ALJ
detailed both the positive and negative findings from these exams. (R. at 14-15.) Additionally,
the ALJ noted the routine and conservative nature of treatment for Plaintiffs impairments. (R. at
15.) In reviewing Plaintifrs daily activities, the ALJ detennined that Plaintiff could function at a
greater level than he alleged. (R. at 16.)
The ALJ also considered the opinions of the state agency consultants. (R. at 16.) He
gave the opinions slight weight, because the evidence showed further limitations than what they
had opined. (R. at 16.) Additionally, he gave the opinion of the consultative medical examiner
partial weight, but imposed additional limitations. (R. at 17.) The ALJ relied on Plaintiff's daily
activities, the objective medical findings and the routine nature of his medical care in assessing
his RFC. (R. at 15-17.) Substantial evidence supports the ALJ' s decision.

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1. Plaintiff's medical records support the ALJ's findings.

On May 7 2009, the McGuire VA Medical Center ("VAMC") admitted Plaintiff. (R. at
297.) Monica Hazelrigg, M.D., diagnosed Plaintiff with new onset diabetes mellitus and diabetic
ketoacidosis. (R. at 297, 302, 304.) An insulin drip and electrolyte repletions resolved
Plaintiffs diabetic ketoacidosis. (R. at 302.) Dr. Hazelrigg prescribed a regimen oflisinopril
and amlodipine to control Plaintiffs blood pressure. (R. at 302-03.) Upon physical
examination, Plaintiff appeared mildly distressed, reporting sporadic chest tightness, as well as
sporadic loss of strength or feeling in his left hand. (R. at 299.) But Plaintiff also displayed 5/5
grip strength in both hands and 5/5 strength bilaterally in his upper and lower extremities. (R. at
299.) The VAMC discharged Plaintiff on May 11, 2009. (R. at 297.)
On February 13, 2011, Plaintiff presented to the VAMC pharmacotherapy clinic to
manage his diabetes. (R. at 317.) Plaintiff denied experiencing myalgia and generally had no
complaints. (R. at 317.) Plaintiff reported to Brandi L. Cummings, PharmD, BCPS, that he
walked three to four times per day for exercise. (R. at 317, 320.)
On April 6, 2011, Plaintiff visited the V AMC for a blood pressure check and to receive
instructions on how to self-check, monitor and record his blood pressure at home. (R. at 31516.) Plaintiff reported to Mary P. Clay, R.N., that he cut meal portions in an attempt to lose
weight and walked at least one mile three times per week for exercise. (R. at 316.)
On January 17, 2012, Plaintiff presented to the VAMC with knee pain. (R. at 307.)
Juliette Fontaine, M.D., ordered x-rays and referred Plaintiff to physical therapy. (R. at 309-10,
335.) The x-rays showed status post ORIF of proximal right tibia fracture with no evidence of
acute fracture or dislocation. (R. at 335.) His right knee had tricompartmental degenerative
changes. (R. at 335.) However, Plaintiffs knees appeared well-aligned and had not changed

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significantly since 2009. (R. at 335.) His right knee lacked any joint effusion, and his left knee
exhibited mild chronic degenerative changes. (R. at 335.) Regarding Plaintiffs obesity, Dr.
Fontaine advised Plaintiff to work on his diet, exercise and weight loss. (R. at 309.)
On February 16, 2012, Plaintiff presented to the VAMC for a follow-up regarding his
knee pain. (R. at 305-06.) On exam, Plaintiff had limited knee flexion and extension of his left
knee with limited flexion in his right knee. (R. at 305.) He had no patellar motion restrictions.
(R. at 305.) Additionally, he had no varus or vargus instability. (R. at 305.) Jeffrey Spears,
MSPT, instructed Plaintiff to use ice, a cane, neoprene and exercises to treat his knee pain. (R. at
306.) Plaintiff did not show up for his follow-up physical therapy appointment on March 2,
2012. (R. at 306.)
On January 3, 2013, Plaintiff had additional x-rays taken at Retreat Doctors' Hospital.
(R. at 338.) His left knee exhibited intact bony structures without any fracture, body lesion or
significant arthritic change. (R. at 338.) The right knee showed postsurgical change and
moderate arthritic change. (R. at 339.)
On January 8, 2013, Plaintiff underwent a consultative exam with Nancy Powell, M.D.
(R. at 341.) Plaintiff executed a heel-to-knee maneuver one-third of the way with his right heel
and one-half of the way with his left. (R. at 343.) He had a negative Romberg and straight leg
raise. (R. at 343.) Plaintiff exhibited 110 degrees flexion bilaterally. (R. at 343.) Dr. Powell
found no tenderness or edema. (R. at 343.) Dr. Powell observed that Plaintiff walked from the
waiting room to the examining room with a cane, and he had a slight limp. (R. at 342.) Plaintiff
had no difficulty getting on and off the exam table. (R. at 343.)
On June 4, 2013, the VAMC admitted Plaintiff for pneumonia. (R. at 352.) William
Gillen, M.D., and Tangada Prema Sudha Rao, M.D., oversaw Plaintiffs treatment during his

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hospitalization. (R. at 361.) The VAMC discharged Plaintiff in stable condition on June 7,
2013. (R. at 352-53.) Plaintiff displayed a normal gait and left the hospital ambulatory. (R. at
359, 373). Dr. Gillen and Dr. Rao authorized Plaintiff to resume regular duties of employment
immediately upon discharge. (R. at 361.) Neither physician noted additional restrictions, nor
limited Plaintiff to "light duty work." (R. at 361.)
On November 4, 2013, Plaintiff underwent x-rays of both knees. (R. at 424.) They
showed status post ORIF proximal right tibia fracture with no acute fracture or dislocation. (R.
at 425.) The right knee showed post-traumatic degenerative changes, grossly unchanged. (R. at
425.) The left knee showed mild chronic degenerative changes. (R. at 425.) Rachna Dhar,
M.D., wrote to Plaintiff with the x-ray results. (R. at 428.) Dr. Dhar's letter did not suggest a
course of treatment. (R. at 428.)
On January 7, 2014, Plaintiff presented to the VAMC for an orthopedic consultation with
complaints of knee pain. (R. at 507-08.) Plaintiff did not appear in any apparent distress. (R. at
508.) John McMurtry, M.D., found Plaintiff with intact flexion-extension at the hip, ankle and
knee. (R. at 508, 510.) Plaintiff appeared stable to varus, valgus, anterior and posterior drawer.
(R. at 508.) Plaintiff had negative Lachman and McMurray tests. (R. at 508-09.) He had intact
and normal reflexes. (R. at 509.) However, Plaintiff had tenderness to palpation over the medial
and lateral knee joint lines. (R. at 509.) He demonstrated positive patellar crepitus. (R. at 509.)
As for treatment, Dr. McMurtry advised Plaintiff to avoid high-impact activities, utilize knee
braces, and take nonsteroidal pain medications as medically appropriate. (R. at 509.) They
discussed that Plaintiff may need knee replacements eventually. (R. at 509.) Ultimately, they
decided to continue to treat Plaintiff's knee pain with nonsteroidal pain medications, as he did
not want to pursue surgery. (R. at 509-10.)

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On December 18, 2014, Plaintiff visited the VAMC for a routine check-up. (R. at 48283.) Dr. Dhar noted Plaintiffs well-controlled blood pressure, that Plaintiff had orthopedic
consultation regarding his knees and that he had made eff011s to be compliant with diet and
exercise. (R. at 483, 487.) Physical examination showed that Plaintiff walked with the help of a
cane, but his knees were non-tender with no swelling or erythema. (R.at 486.) Plaintiff
displayed a normal mood and affect. (R. at 486.) Dr. Dhar described Plaintiffs diabetes as
uncontrolled and advised him to comply with his insulin, exercise and diet regimen. (R. at 486.)
Plaintiff stated that he walked every day. (R. at 486.) Dr. Dhar noted no other concerns during
this visit. (R. at 483 .)
Michelle G. Smith, LPN, also completed a fall risk assessment with Plaintiff on
December 18, 2014. (R. at 488.) Plaintiff denied ever falling in the past year and denied
worrying that he might fall. (R. at 488.) Nurse Smith observed that Plaintiffs stride and
mobility appeared essentially normal. (R. at 488.)
On June 13, 2014, Plaintiff returned to Dr. Dhar at the V AMC for another routine checkup. (R. at 495.) Dr. Dhar again noted Plaintiffs well-controlled blood pressure, but described
his diabetes as uncontrolled. (R. at 496.) Dr. Dhar advised Plaintiff to avoid sugary drinks to
better control his blood sugar, as well as to comply with his insulin, diet and exercise regimen.
(R. at 496, 498-500.) Plaintiff displayed a normal mood and affect and appeared alert. (R. at
498.) Physical examination revealed no tenderness, swelling or erythema in Plaintiffs knees.
(R. at 498.) Plaintiff reported that he walked every day. (R. at 499.) Nurse Smith also
completed a diabetes foot exam at this visit. (R. at 504.) The results showed that Plaintiff had
normal sensation and circulation and no deformity. (R. at 504.) Dr. Dhar noted no other
concerns during this visit. (R. at 496.)

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Plaintiff's physical exams show both positive and negative findings regarding his knee
pam. At times, he exhibited a decreased range of motion and strength in his knee with pain and
inflammation, positive patellar crepitus, lower extremity edema and a slight limp. (R. at 305-06,
342-44, 389, 411, 509.) Other times, however, he demonstrated stable varus, valgus, anterior
and posterior drawer, normal motor strength, no edema, negative Lachman and McMurray tests,
normal sensations and intact reflexes. (R. at 305-06, 343, 373, 508-09.) The ALJ considered
these findings and imparted limitations on Plaintiff based on them.

2. Dr. Powell's opinion, Plaintiffs daily activities and Plaintiffs previous
work support the ALJ's findings.
First, Dr. Powell's opinion supports the ALJ' s determination. She opined that Plaintiff
could stand or walk for six hours in an eight-hour work day with more frequent breaks. (R. at
344.) He could sit without restriction. (R. at 344.) He could lift or carry twenty-five pounds
occasionally and fifteen pounds frequently with the hand that he did not use to hold his cane. (R.
at 344.) He would have possible postural limitations with climbing, kneeling and crawling due
to his knee pain. (R. at 344.) The ALJ gave this opinion partial weight and incorporated the
exertional limitations. (R. at 17.) However, he assessed additional non-exertional limitations.
(R. at 17.)
Second, Plaintiffs daily activities support the ALJ's decision. On October 22, 2012,
Plaintiff completed a function report. (R. at 252-259.) Plaintiff reported that he cooked
complete meals and went to the store. (R. at 252, 254.) He reported no problems with his
personal care. (R. at 253-54.) He washed dishes, did laundry, ironed and made his bed. (R. at
254.) Plaintiff went outside almost daily and could go do so alone. (R. at 255.) He used public
transportation but did not drive, because he had no car. (R. at 255.) Plaintiff would walk to his

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neighbor's house. (R. at 256.) He reported that he could walk a half-mile before needing to rest
for five or ten minutes. (R. at 257 .)
Finally, Plaintiffs previous work supports the ALJ's decision. Even if a claimant's work
does not rise to the level of gainful employment, it can indicate some capacity to work. 20
C.F.R. §§ 404.1571, 416.971. Here, Plaintiffs wage statements indicate that he worked at
various times between 2012 and 2014. (R. at 223-25, 231-33, 235.) Additionally, he received
unemployment compensation in 2012 and 2013, which required him to certify that he had the
willingness and capacity to work. (R. at 16, 214.)
Substantial evidence supports the ALJ's determination as to Plaintifrs limitations.
Plaintiff's medical records show mixed findings. The ALJ relied on the positive findings,
Plaintiffs daily activities and his work history to resolve the conflicting findings. This Court

will not second guess the ALJ's resolution of those conflicts, because substantial evidence in the
record supports his findings.
B. The ALJ Did Not Err at Step Five.
Plaintiff next argues that the ALJ erred at step five of the sequential analysis by
determining that he could perform work that existed in the national economy. (Pl.' s Mem. at 1.)
Defendant responds that the ALJ properly relied on the testimony of the VE at step five. (Def. 's
Mem. at 13-14.)
At the fifth step of the sequential analysis, the Commissioner must show that, considering
the claimant's age, education, work experience and RFC, he can perform other work that exists
in significant numbers in the national economy. 20 C.F.R. §§ 404. l 520(f), 4 l 6.920(f). The
Commissioner can carry her burden at the final step with the testimony of a VE. Walker v.
Bowen, 889 F.2d 47, 50 (4th Cir. 1989). During the VE's testimony, the ALJ must pose

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hypothetical questions that accurately represent the claimant's RFC based on all of the record
evidence and a fair description of all of the claimant's impairments, so that the VE can offer
testimony about any jobs existing in the national economy that the claimant can perform.2 Id.
Only when the hypothetical posed represents all of the claimant's substantiated impairments will
the testimony of the VE be "relevant or helpful." Id.; Hines v. Barnhart, 453 F.3d 559, 567 (4th
Cir. 2006)(finding that the VE's testimony had no value, because he did not take all of the
claimant's impairments into account).
Here, the ALJ posed a hypothetical that mirrored the above discussed RFC. (R. at 7275.) The VE testified that, based on his experience, a hypothetical person with Plaintiffs age,
education, work experience and RFC could work as a production inspector (DOT No. 529.666014), with 41,300 jobs available nationally, and an information clerk (DOT 205.367-014), with
38,500 jobs available nationally. (R. at 74-75.) Based on the testimony of the VE, the ALJ
determined at step five that Plaintiff did not qualify as disabled. (R. at 18.)
The ALJ made a proper step five finding, because he relied on relevant testimony from
the VE in response to an appropriate hypothetical. Because the hypothetical posed to the VE
took into account all of the Plaintiff's physical and mental limitations described in the RFC, and
substantial evidence supports the RFC determination, the ALJ did not err.
C. New Evidence Submitted to the Court Does Not Warrant Remand.
Plaintiff alleges that the evidence he has submitted for the first time with his appeal to
this Court shows a deterioration of his condition and warrants remand. (Pl. 's Mem. at 2.)

The ALJ relies primarily on the Dictionary of Occupational Titles ("DOT') to decide
whether sufficient work exists for the plaintiff in the national economy. Pearson v. Colvin, 810
F.3d 204, 207 (4th Cir. 2015); SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). However,
the ALJ may also consult a VE "to address complex aspects of the employment determination,
including the expert's observations of what a particular job requires in practice .... " Pearson,
810 F.3d at 207.
14

Defendant contends that this does not constitute proper grounds for remand. (Def. Mem. at 13
n.2.) Here, the additional evidence does not support Plaintiffs request for remand.
A court may remand on the basis of additional evidence

'~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). The evidence must meet
four requirements: (1) the new evidence must relate to the period before the ALJ's decision; (2)
the new evidence has a material effect on the outcome; (3) there exists good cause for the
claimant's failure to submit the new evidence before the ALJ; and (4) the plaintiff must make a
general showing of the evidence. Borders v. Heckler, 777 F.2d 954, 954-55 (4th Cir. 1985),

superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Secy Dep 't
of Health & Human Servs., 925 F .2d 769, 774 (4th Cir. 1991 ); Brown v. Comm 'r of Soc. Sec.,
2010 WL 2787898, at *7 n.5 (E.D. Va. June 21, 2010) (noting that the Fourth Circuit continues
to cite Borders as the standard for new evidence); Washington v. Comm 'r ofSoc. Sec., 2009 WL
86737, at *5 (E.D. Va. Jan. 13, 2009) (applying the Borders four-part test to new evidence).
When a plaintiff alleges that new evidence indicates a worsening of his alleged symptoms after
the ALJ's decision, he may file a new application for benefits. 20 C.F.R. §§ 404.620(a)(2),
4 l 6.330(b) (providing that if an applicant meets the requirements for disability after the period in
which his application was in effect, he must file a new application).
Here, Plaintiff argues that the updated records show that his knee conditions have
worsened. (Pl.'s Mem. at 1-2.) Specifically, Plaintiff submitted records from June 28, 2016
through December 2, 2016. (Pl.'s Med. Ex. (filed with ECF No. 13).) On June 28, July 25 and
August 2, 2016, Plaintiff presented to the V AMC with knee pain. (Pl.' s Med. Ex. at 19, 75, 81.)
On August 31, 2016, Marcus Smith, M.D., reviewed x-rays of Plaintiffs knee taken on June 28,

\S

2016. performed a stero id injection on Plaintiff' s ri ght knee and removed nu id from the knee.
(P l. ·s Med. Ex. at 37-43, 64-72.) Dr. Smith reported that Plaintiff tol era ted the procedure well.
(P l. ·s Med. Ex. at 42.) Plainti ff received stero id injections in hi s le ft knee on September 16,
20 16. (Pl." s Med. Ex. at 55-60.) On October 2 1, 20 16, Plaintiff received a synvisc inj ection in
the left knee. (P l."s Med. Ex. al 49, 52.) Plaintiff reported that the synvisc injection improved
his pain more than the stero id injections. (P l. 's Med. Ex. at 49-54.)
These records do not relate back to the relevant time period befo re Apri l 16, 20 15 - the
day of the ALJ's decision. Instead, they document Plainti ff's condition in 20 16. As such, the
new evidence does not warrant remand. [[Plaintiff believes that these 20 16 records require a
finding of di sabil ity, then the appropriate course of acti on for Plaintiff is to file a new appli cation
for bene fits . 20 C.F.R. §§ 404.620(a)(2), 4 16.330(b).
V.

CONC L ION
,US

For the reasons set fort h above, the Court hereby ORDERS that Plaintifrs Motion for
Summary Judgment (ECF No. 13) be DENIED, that Defendant' s Moti on for Summary Judgment
(ECF

o. 15) be ORA TED, and that the final decision or the Com mi ss ioner be AFFlRMED.
Let the clerk forward a copy or thi s Opinion to all co unsel of reco rd, and to prose

Plai ntiff at his address of record.

Isl
David J. Novak
United States Magistrate Judge
Richmond, Virginia
Date: September 19. 20 17

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