Hibbitts v. Colvin
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 10/30/2016. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
LOIS G. HIBBITTS,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant
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Civil Action No. 2:15cv00026
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Lois G. Hibbitts, (“Hibbitts”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), determining
that she was not eligible for disability insurance benefits, (“DIB”), under the Social
Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of
this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
magistrate judge by transfer based on consent of the parties pursuant to 28 U.S.C.
§ 636(c)(1). Oral argument has not been requested; therefore, the matter is ripe for
decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
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“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.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “‘substantial evidence.’”” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Hibbitts protectively filed an application for DIB on
July 16, 2012, alleging disability as of June 29, 2012, due to severe scoliosis;
arthritis; hypothyroidism; fibromyalgia; depression; swelling of the feet; borderline
diabetic; and back and hip pain. (Record, (“R.”), at 151-52, 165, 169, 206.) The
claim was denied initially and on reconsideration. (R. at 79-81, 85-87, 90-94, 9698.) Hibbitts then requested a hearing before an administrative law judge, (“ALJ”).
(R. at 99.) A hearing was held on March 10, 2014, at which Hibbitts was
represented by counsel. (R. at 26-51.)
By decision dated May 28, 2014, the ALJ denied Hibbitts’s claim. (R. at 1421.) The ALJ found that Hibbitts meets the nondisability insured status
requirements of the Act for DIB purposes through December 31, 2016. (R. at 16.)
The ALJ also found that Hibbitts had not engaged in substantial gainful activity
since June 29, 2012, her alleged onset date. 1 (R. at 16.) The ALJ found that the
medical evidence established that Hibbitts suffered from severe impairments,
1
Therefore, Hibbitts must show that she became disabled between June 29, 2012, the
alleged onset date, and May 28, 2014, the date of the ALJ’s decision, in order to be entitled to
DIB benefits.
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namely bilateral hip osteoarthritis and status-post left hip replacement; scoliosis
and degenerative disc disease; diabetes mellitus; and obesity, but he found that
Hibbitts did not have an impairment or combination of impairments listed at or
medically equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at
16-17.) The ALJ found that Hibbitts had the residual functional capacity to
perform sedentary work 2 that allowed the opportunity to alternate between sitting
and standing without moving away from her station; that did not require more than
occasional stooping, crouching and kneeling; and that allowed her to be absent
from work one day a month. (R. at 17.) The ALJ found that Hibbitts was able to
perform her past relevant work as a school secretary. (R. at 20.) Thus, the ALJ
found that Hibbitts was not under a disability as defined by the Act, and was not
eligible for DIB benefits. (R. at 21.) See 20 C.F.R. § 404.1520(f) (2015).
After the ALJ issued his decision, Hibbitts pursued her administrative
appeals, (R. at 7-9), but the Appeals Council denied her request for review. (R. at
1-5.) Hibbitts then filed this action seeking review of the ALJ’s unfavorable
decision, which now stands as the Commissioner’s final decision. See 20 C.F.R. §
404.981 (2015). The case is before this court on Hibbitts’s motion for summary
judgment filed June 13, 2016, and the Commissioner’s motion for summary
judgment filed July 14, 2016.
2
Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a) (2015).
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II. Facts
Hibbitts was born in 1955, (R. at 30, 151), which, at the time of the ALJ’s
decision, classified her as a “person of advanced age” under 20 C.F.R. §
404.1563(e). Hibbitts has a high school education and past work experience as a
school secretary and library assistant. (R. at 30-31, 170.) Hibbitts stated that she
could sit up to 25 minutes without interruption. (R. at 39.) She stated that she
occasionally used a cane. (R. at 41.) Hibbitts stated that “frustration” was more of a
problem for her than depression. (R. at 45.) She stated that she took Aleve and
used a heating pad and TENS unit to manage her pain. (R. at 46.) Hibbitts stated
that she had been offered narcotic pain medication, but refused to take it because of
her fear of addiction. (R. at 45.)
Vocational expert, Asheley Wells, also testified at Hibbitts’s hearing. (R. at
35, 48-49.) Wells classified Hibbitts’s work as a library assistant as light 3 and
skilled and her work as a school secretary as sedentary and skilled. (R. at 35.) She
stated that the job as school secretary customarily allowed for some alternating
between sitting and standing. (R. at 48.) Wells stated that the need to engage in no
more than occasional stooping, crouching or kneeling would not impact the ability
to do the job. (R. at 49.)
In rendering his decision, the ALJ reviewed records from Dr. Andrew
3
Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, she
also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2015).
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Bockner, M.D., a state agency physician; Dr. Robert McGuffin, M.D., a state
agency physician; Alan D. Entin, Ph.D., a state agency psychologist; Dr. Robert
Keeley, M.D., a state agency physician; Dr. Dennis Aguirre, M.D.; Dr. Danny A.
Mullins, M.D., an orthopaedist; Dr. Sudama S. Tholpady, M.D.; and Dr. Ashley
Bevins, D.O.
On November 2, 2007, Hibbitts saw Dr. Danny A. Mullins, M.D., with
complaints of back and left hip pain. (R. at 260, 286.) Dr. Mullins reported that
Hibbitts had arthritis of the hip; arthritic changes with scoliosis of the lumbosacral
spine; and tenderness over the greater trochanter. (R. at 286.) Dr. Mullins
administered a trochanter injection and advised Hibbitts to use a cane. (R. at 286.)
On February 4, 2008, Hibbitts explained that she previously had been
diagnosed with fibromyalgia, and Dr. Dennis Aguirre, M.D., assessed 10 of 18
positive trigger points. (R. at 229-33.) Hibbitts reported low back pain with
occasional left hip pain and numbness and tingling in her right leg, after standing
too long. (R. at 229.) Hibbitts reported that her functional impairment was
moderate, and when present, it interfered with some of her daily activities and
ability to sleep. (R. at 229.) Dr. Aguirre diagnosed massive obesity;
hypothyroidism; left hip and leg pain; and severe degenerative disease. (R. at 233.)
On February 21, 2008, Dr. Aguirre administered an epidural injection for
Hibbitts’s lumbar radiculopathy. (R. at 228.)
On April 18, 2008, Hibbitts reported to Dr. Mullins that the previous
trochanteric injection did not give her much relief. (R. at 282.) She also reported
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that the epidural injection gave her some relief, but the pain slowly returned. (R. at
282.) Hibbitts declined referral to a spine surgeon, stating that she believed one of
her issues was her weight, with which Dr. Mullins agreed. (R. at 282.) On February
25, 2009, an MRI of Hibbitts’s left hip showed subchondral cysts in the left hip
bone socket consistent with osteoarthritic changes and a trace amount of fluid in
the trochanteric bursa on the left. (R. at 243.)
On March 6, 2009, Dr. Sudama S. Tholpady, M.D., reported that Hibbitts
had impaired ambulation because of severe arthritis of the left hip. (R. at 236-37.)
Hibbitts reported that her leg edema was fairly stable on medication. (R. at 236.)
Dr. Tholpady reported that Hibbitts limped on the left side; she had no joint
swelling; she had some tenderness over the right ankle; she had normal muscle
power; she had no abnormal movements; and her gait was impaired due to joint
pain. (R. at 236.) Dr. Tholpady diagnosed severe hyperlipidemia due to morbid
obesity; elevated liver enzymes, most likely secondary to nonalcoholic fatty liver
disease; stable idiopathic leg edema; history of hypokalemia; well-controlled
hypothyroidism; and severe osteoarthritis of the left hip, which may require joint
replacement. (R. at 236.)
On April 6, 2009, Dr. Mullins performed a left total hip replacement. (R. at
245-50.) Subsequent visits show that Hibbitts was doing very well following her
hip replacement. (R. at 271, 273-77.) On July 29, 2009, Dr. Mullins authorized
Hibbitts to return to work as of August 6, 2009. (R. at 266.) On April 21, 2010,
Hibbitts complained of low back pain with radicular symptoms into her right leg.
(R. at 273.) Dr. Mullins reported that Hibbitts was overall doing quite well. (R. at
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273.) Hibbitts stated that she was considering applying for disability. (R. at 273.)
Dr. Mullins stated that, “I think that is probably not unreasonable given the
severity of her back problems in combination with her hips.” (R. at 273.) On
September 24, 2010, Hibbitts complained of back pain that radiated into the right
paralumbar region. (R. at 272.) Dr. Mullins reported that Hibbitts had some
tenderness along the right paralumbar region of her back, and she had normal
strength and sensation. (R. at 271.) X-rays showed spinal stenosis most probable at
the L3-L4 and L4-L5 levels. (R. at 271.) On October 8, 2010, x-rays of Hibbitts’s
lumbar spine showed prominent dextroscoliosis centered at the L2-L3 level and
degenerative disc changes at the L3-L4 and L4-L5 levels without neural
impingement. (R. at 261-62.) Also, that same day, an MRI of Hibbitts’s thoracic
spine was normal. (R. at 263-64.) On June 9, 2011, Dr. Mullins reported that
Hibbitts was doing well, and she had minimal complaints. (R. at 252.)
On January 13, 2012, Hibbitts saw Dr. Ashley Bevins, D.O., for complaints
of upper abdomen pain and soreness due to fibromyalgia. (R. at 298-300.) Dr.
Bevins found Hibbitts’s gait normal; her skin pigmentation was normal with no
rash, though she had some scaling and erythema on her right forearm; she
exhibited no joint swelling, nor clubbing or cyanosis in her fingernails; her
psychiatric state was oriented; and her cranial nerves were intact. (R. at 299.) Dr.
Bevins diagnosed fibromyalgia; hyperglycemia; hyperlipidemia; arthritis; fatty
liver; and thyroid disease. (R. at 300.) On May 4, 2012, Hibbitts reported that she
felt better after losing 20 pounds. (R. at 295-97.) Hibbitts’s physical examination
was normal. (R. at 296.) Dr. Bevins diagnosed hyperlipidemia, fatty liver and
hyperglycemia. (R. at 296.) On July 25, 2012, Hibbitts reported to Dr. Mullins that
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she was doing quite well. (R. at 251.) X-rays of Hibbitts’s left hip revealed
excellent position of the components, but her right hip showed some mild to
moderate degenerative joint disease. (R. at 251.) On August 6, 2012, Dr. Bevins
saw Hibbitts for reevaluation of hyperlipidemia. (R. at 291-94.) Dr. Bevins found
Hibbitts’s gait normal; her skin pigmentation was normal with no rash; she
exhibited no joint swelling, nor clubbing or cyanosis in her fingernails; her
psychiatric state was oriented; and her cranial nerves were intact. (R. at 292-93.)
Hibbitts reported that Aleve helped her back pain and scoliosis. (R. at 291.) Dr.
Bevins diagnosed hyperlipidemia, hyperglycemia and scoliosis. (R. at 293.) A
DEXA bone density study was performed on August 9, 2012, which rendered
normal results. (R. at 302-03, 320.)
On September 25, 2012, Dr. Andrew Bockner, M.D., a state agency
physician, opined that Hibbitts did not suffer from a mental impairment. (R. at 56.)
On September 25, 2012, Dr. Robert McGuffin, M.D., a state agency
physician, opined that Hibbitts had the residual functional capacity to perform light
work. (R. at 57-59.) He reported that Hibbitts could frequently climb ramps and
stairs; balance; stoop; kneel; and crouch, and occasionally climb ladders, ropes and
scaffolds and crawl. (R. at 58.) No manipulative, visual or communicative
limitations were noted. (R. at 58.) Dr. McGuffin opined that Hibbitts should avoid
working around concentrated exposure to vibration and hazards, such as machinery
and heights. (R. at 58.)
On April 22, 2013, Alan D. Entin, Ph.D., a state agency psychologist,
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reported that Hibbitts did not suffer from a mental impairment. (R. at 69.)
On April 26, 2013, Dr. Robert Keeley, M.D., a state agency physician,
opined that Hibbitts had the residual functional capacity to perform light work. (R.
at 70-71.) He reported that Hibbitts could occasionally climb; stoop; kneel; crouch;
and crawl. (R. at 71.) No manipulative, visual, communicative or environmental
limitations were noted. (R. at 71.)
On May 10, 2013, Hibbitts reported to Dr. Bevins that, in connection with
her arthritis and back pain, she rested when it was worse, and she was trying to
walk on a treadmill. (R. at 349.) She reported that Dr. Mullins recommended only
conservative treatment, and she was using Aleve for her pain. (R. at 349.) Dr.
Bevins found Hibbitts’s gait normal; her skin pigmentation was normal with no
rash; she exhibited no joint swelling, nor clubbing or cyanosis in her fingernails;
her psychiatric state was oriented; and her cranial nerves were intact. (R. at 351.)
On June 12, 2013, while Hibbitts reported to Dr. Mullins that she was doing
“wonderfully” with her hip, she continued to complain of severe low back pain. (R.
at 379.) Dr. Mullins noted that Hibbitts’s back pain was her primary limiting
factor. (R. at 379.) Clinical testing revealed equal leg lengths; an x-ray showed no
fracture, dislocation or misalignment in her hips; and Hibbitts had no pain on
internal or external rotation of her hips. (R. at 380.) On July 11, 2013, Hibbitts
reported worsening back pain, stating that she experienced back pain within 10
minutes of walking and that she had been told that her only option to address this
was surgery. (R. at 345, 348.) She also described snoring and feeling tired all day.
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(R. at 345.) Dr. Bevins found Hibbitts’s gait normal; her skin pigmentation was
normal with no rash; she exhibited no joint swelling, nor clubbing or cyanosis in
her fingernails; her psychiatric state was oriented; and her cranial nerves were
intact. (R. at 347.)
On October 9, 2013, Hibbitts reported having more energy and sleeping
better since using continuous positive airway pressure, (“CPAP”), therapy. (R. at
336.) Dr. Bevins found Hibbitts’s gait normal; her skin pigmentation was normal
with no rash; she exhibited no joint swelling, nor clubbing or cyanosis in her
fingernails; her psychiatric state was oriented; and her cranial nerves were intact.
(R. at 338.) Hibbitts was diagnosed with obstructive sleep apnea. (R. at 339.) On
January 20, 2014, it was noted that Hibbitts’s cholesterol improved with
medication. (R. at 335.) Hibbitts reported swelling in her legs with walking. (R. at
335.) Dr. Bevins diagnosed diabetes mellitus II; edema in the lower extremities;
hyperlipidemia; and vitamin D deficiency. (R. at 335.)
On March 12, 2014, Hibbitts reported doing quite well with her hip;
however, she reported a great deal of discomfort with her lumbar spine. (R. at
387.) Dr. Mullins noted that Hibbitts did not have a need for an assistive device for
ambulation. (R. at 387.) Hibbitts’s neurovascular examination was grossly intact.
(R. at 388.) Hip x-rays showed no fracture or dislocation, and her joint spaces were
well-maintained. (R. at 388.) Dr. Mullins opined that Hibbitts was doing well, and
that he would see her in one year. (R. at 388.) Also, that same day, Dr. Mullins
completed a medical assessment, finding that Hibbitts could occasionally lift and
carry items weighing up to five pounds and frequently lift and carry items
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weighing up to three pounds. (R. at 383-85.) He opined that Hibbitts could stand,
walk and/or sit a total of two hours in an eight-hour workday and that she could do
so for up to 20 minutes without interruption. (R. at 383-84.) Dr. Mullins opined
that Hibbitts could never climb, stoop, kneel, balance, crouch or crawl. (R. at 384.)
He found that Hibbitts was limited in her ability to reach, to push and to pull. (R. at
384.) Dr. Mullins opined that Hibbitts would be restricted from working around
heights and moving machinery. (R. at 385.) He reported that Hibbitts would be
absent from work more than two days a month. (R. at 385.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2015); see also Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). This process requires
the Commissioner to consider, in order, whether a claimant 1) is working; 2) has a
severe impairment; 3) has an impairment that meets or equals the requirements of a
listed impairment; 4) can return to her past relevant work; and 5) if not, whether
she can perform other work. See 20 C.F.R. § 404.1520. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 404.1520(a) (2015).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
The court must not weigh the evidence, as this court lacks authority to substitute its
judgment for that of the Commissioner, provided her decision is supported by
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substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
It is the ALJ’s responsibility to weigh the evidence, including the medical
evidence, in order to resolve any conflicts which might appear therein. See Hays,
907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir. 1975).
Furthermore, while an ALJ may not reject medical evidence for no reason or for
the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980), an
ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R.
§ 404.1527(c), if he sufficiently explains his rationale and if the record supports his
findings.
Hibbitts argues that the ALJ erred by failing to adhere to the treating
physician rule and give controlling weight to Dr. Mullins’s opinions. (Plaintiff’s
Memorandum In Support Of Her Motion For Summary Judgment, (“Plaintiff’s
Brief”), at 4-5.) Based on my review of the record, I find this argument
unpersuasive. The ALJ must generally give more weight to the opinion of a
treating physician because that physician is often most able to provide “a detailed,
longitudinal picture” of a claimant’s alleged disability. See 20 C.F.R. §
404.1527(c)(2) (2015). However, “[c]ircuit precedent does not require that a
treating physician’s testimony ‘be given controlling weight.’” Craig v. Chater, 76
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F.3d 585, 590 (4th Cir. 1996) (quoting Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.
1992) (per curiam)). In fact, “if a physician’s opinion is not supported by clinical
evidence or if it is inconsistent with other substantial evidence, it should be
accorded significantly less weight.” Craig, 76 F.3d at 590.
In March 2014, Dr. Mullins opined that Hibbitts could occasionally lift and
carry items weighing up to five pounds and frequently lift and carry items
weighing up to three pounds. (R. at 383-85.) He opined that Hibbitts could stand,
walk and/or sit a total of two hours in an eight-hour workday and that she could do
so for up to 20 minutes without interruption. (R. at 383-84.) Dr. Mullins opined
that Hibbitts could never climb, stoop, kneel, balance, crouch or crawl. (R. at 384.)
He found that Hibbitts was limited in her ability to reach, to push and to pull. (R. at
384.) Dr. Mullins opined that Hibbitts would be restricted from working around
heights and moving machinery. (R. at 385.) He reported that Hibbitts would be
absent from work more than two days a month. (R. at 385.) The ALJ noted that he
was giving this opinion little weight because it was not supported by Dr. Mullins’s
own treatment notes or the overall medical evidence. (R. at 20.)
Following Hibbitts’s April 2009 left hip surgery, she reported doing very
well, with good relief of her symptoms. (R. at 245, 271-77.) A July 25, 2012, right
hip x-ray showed mild to moderate degenerative joint disease; however, Hibbitts
later reported that Aleve helped relieve her symptoms. (R. at 251, 291.) Although
Hibbitts reported fatigue, she received a CPAP machine and reported feeling much
better. (R. at 336, 340.) Dr. Bevins repeatedly found Hibbitts’s gait normal, and
she exhibited no joint swelling. (R. at 292, 338, 342, 347, 351.) In June 2013, Dr.
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Mullins found equal leg lengths; he reported that an x-ray showed no fracture,
dislocation or misalignment in her hips; and Hibbitts reportedly had no pain on
internal or external rotation of her hips. (R. at 380.) In March 2014, Hibbitts
reported continued lumbar spine discomfort, but she required no assistive device
for ambulation; her neurovascular function was intact; and her joint spaces were
well-maintained. (R. at 387-88.)
While the state agency physicians found that Hibbitts had the residual
functional capacity to perform light work, the ALJ gave Hibbitts the benefit of the
doubt and declined to accord great weight to these opinions. (R. at 20.) In limiting
Hibbitts to sedentary work, the ALJ limited her to work that provided an option to
occasionally alternate sitting and standing. (R. at 17.) The vocational expert
clarified that the sedentary school secretary job, as customarily performed, was
consistent with these restrictions, as well as other postural limitations the ALJ
imposed. (R. at 17, 48-49.)
In addition, the ALJ found that Hibbitts’s activities of daily living also
supported his finding. (R. at 19-20.) The record shows that Hibbitts drove;
shopped; performed household chores, such as dusting, laundry and preparing
meals; used the Internet; and attended church. (R. at 40-41, 198-200.) Hibbitts also
worked, at least at times, as a school secretary following her alleged onset date. (R.
at 31-33.) Also, Hibbitts repeatedly reported that Aleve relieved her symptoms. (R.
at 46, 291, 349.) “If a symptom can be reasonably controlled by medication or
treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir.
1986). Based on this, I find that the ALJ properly weighed the medical evidence
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and that substantial evidence exists to support the ALJ’s finding with regard to
Hibbitts’s residual functional capacity.
Based on the above reasoning, I find that substantial evidence exists in the
record to support the ALJ’s finding that Hibbitts was not disabled. An appropriate
Order and Judgment will be entered.
ENTERED: October 31, 2016.
s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
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