Hairston v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on September 13, 2013. (sfc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

VICKY CHALISA HAIRSTON,

CASE NO. 6:11–cv–00057
Plaintiff,

v.

MEMORANDUM OPINION

MICHAEL J. ASTRUE, COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

JUDGE NORMAN K. MOON

This matter is before the Court on the parties’ cross Motions for Summary Judgment
(docket nos. 11 and 14), the Report & Recommendation of United States Magistrate Judge
Robert S. Ballou (docket no. 19 [hereinafter “R&R”]), and Plaintiff’s Objections to the R&R
(docket no. 20). Pursuant to Standing Order 2011 – 17 and 28 U.S.C. § 636(b)(1)(B), the Court
referred this matter to the Magistrate Judge for proposed findings of fact and a recommended
disposition. The Magistrate Judge filed his R&R, advising this Court to deny Plaintiff’s Motion
for Summary Judgment, and grant the Commissioner’s Motion for Summary Judgment. Plaintiff
timely filed her Objections, obligating the Court to undertake a de novo review of those portions
of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1)(B); Farmer v. McBride,
177 F. App’x 327, 330 (4th Cir. 2006). For the following reasons, I will overrule Plaintiff’s
Objections and adopt the Magistrate Judge’s R&R in full.

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I. BACKGROUND
On November 3, 2008, Plaintiff Vicky Chalisa Hairston (“Plaintiff”) filed an application
for Disability Insurance Benefits (“DIB”) and an application for Supplemental Security Income
(“SSI”) payments under Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§
401–433, 1381–1383f. Plaintiff’s last insured date was December 31, 2005, and thus to receive
DIB benefits, she must show that her disability began before that date and existed for twelve
continuous months. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §§ 404.101(a), 404.131(a).
To receive SSI benefits, Plaintiff must show that her disability began on or after the date she
applied for benefits. 42 U.S.C. § 1383(a)(1); 20 C.F.R. § 416.501.
Plaintiff was born on June 24, 1965, and was forty-three years old at the time she filed
her November 2008 applications. Plaintiff claimed that her disability began on December 30,
2005, due to problems with her knees, back, and depression. See Administrative Record 15–16,
111, 132 [hereinafter “R.”]. Before 2005, Plaintiff completed high school through the attendance
of special education classes. R. 16, 35. She worked from 1995 to 2000 in the dining room of a
retirement home, doing what a vocational expert described as semi-skilled, medium work, until
1999, when she injured her knees. R. 36, 47. Plaintiff reported that during the relevant period of
her disability, her daily activities included soaking in the tub, watching TV, reading, and being
driven to the park by her family. R. 154. This Court has jurisdiction pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).
A. The ALJ Decision
The state agency denied Plaintiff’s application at the initial and reconsideration levels of
administrative review (R. 5, 67), and on March 1, 2010, Administrative Law Judge (“ALJ”)
Charles Boyer held a hearing to consider Plaintiff’s disability claim. R. 32. Plaintiff was

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represented by counsel, and an independent vocational expert testified as well.

R. 34–50.

During the hearing, Plaintiff testified that she suffers from chronic knee and back pain. She said,
due to her ailments, that she can only sit for about thirty minutes to an hour at one time. R. 40.
Plaintiff also testified that using her crutches or walker caused pain in her neck, hands, and
shoulder, which affected the use of her hands and ability to write for more than 30–40 minutes at
a time. R. 39–40. Plaintiff said she can only perform small tasks at home, is awakened at night
by pain in her leg, must sit to cook, and avoids climbing, stooping, bending, and reaching to
prevent pain and injury. R. 40–41.
Determining disability, and thus eligibility for Social Security benefits, involves a fivestep inquiry. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). In this process, the
Commissioner asks whether (1) the claimant is engaged in substantial gainful activity; (2) the
claimant has a medical impairment (or combination of impairments) that are severe, meaning the
impairments significantly limit the claimant’s ability to perform basic work activities; (3) the
claimant’s medical impairment meets or exceeds the criteria of one of the impairments listed in
Appendix I of 20 C.F.R. Part 404, Subpart P; (4) the claimant has the residual functional capacity
(“RFC”) to perform her past relevant work; and (5) the claimant has the RFC to perform other
specified types of work. See Johnson v. Barnhart, 434 F.3d 650, 653 n.1 (4th Cir. 2005) (citing
20 C.F.R. § 404.1520). The claimant has the burden of production and proof in Steps 1–4. See
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). At Step 5, the burden shifts to
the Commissioner “to produce evidence that other jobs exist in the national economy that the
claimant can perform considering h[er] age, education, and work experience.”

Id.

If a

determination of disability can be made at any step, the Commissioner need not analyze
subsequent steps. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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The ALJ found that Plaintiff met the insured status requirements of the Act through
December 31, 2005, and that Plaintiff had not engaged in substantial gainful activity since
December 30, 2005, the alleged onset date. Next, the ALJ found the Plaintiff is obese (5’7” and
235 pounds), and has a severe musculoskeletal impairment – degenerative disc disease and a
history of work-related knee injury. R. 15–16. Based on the medical evidence on record, the
ALJ concluded that Plaintiff retained the ability to perform sedentary work, and that her
impairments did not significantly limit her capacity for that work. R. 24. He also found Plaintiff
lacked a mental impairment that would impose significant work-related limitations or prove
severe under the Act and its regulations. R. 24.
At step three of the disability analysis, relying on the assessment of Disability
Determination Services (“DDS”) and additional records submitted by Plaintiff, the ALJ found
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 24. The
ALJ further found, at step 4 of the analysis, that Plaintiff had the RFC to perform sedentary work
as defined in 20 C.F.R. 404.1567(a) and 416.967(a). R. 25.
The ALJ reached this finding by adopting the DDS assessments as consistent with other
credible evidence in the record. He did not adopt DDS assessments of Plaintiff’s non-exertional
limitations, because he found they did not significantly affect Plaintiff’s capacity for sedentary
work, as supported by physicians’ statements in the record authorizing sedentary and sometimes
light work for Plaintiff. R. 25. The ALJ found Plaintiff’s statements were “not entirely credible
as they relate[d] to the intensity, persistence and limiting effects” of her symptoms – in other
words, the ALJ found her limitations “would not reasonably limit Plaintiff’s capacity for
sedentary work.” R. 25. Finally, the ALJ found that, although Plaintiff was not capable of

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performing her past relevant work, she also would not qualify as disabled, even if she had no
past relevant work. R. 26.
In the fifth and final step of the disability analysis, the ALJ found the transferability of
Plaintiff’s job skills from her past relevant work was not material to the determination of
disability, because she retained the RFC to perform sedentary work at all relevant times and thus
qualifies as “not disabled.” R. 26–27 (citing SSR 82-41, 1975–1982 Soc. Sec. Rep. Serv. 847,
& 20 C.F.R. Part 404, Subpart P, App. 2). Therefore, the ALJ found that Plaintiff “has not been
under a disability, as defined in the Social Security Act, from December 30, 2005, through the
date of [his decision].” R. 27.
On December 7, 2011, the Appeals Council made additional evidence Plaintiff submitted
to the Council part of the record, including 2010 records from the Bedford Christian Free Clinic,
and an August 10, 2011 Physical Residual Functional Capacity form by Gautham Gondi, M.D.
R&R 5. But on December 7, 2011, the Appeals Council also denied Plaintiff’s request for
review. R. 1–4. Plaintiff filed the instant suit on December 21, 2011, seeking judicial review of
the Commissioner’s final decision.
B. The Summary Judgment Motions
In her May 17, 2012 memorandum, Plaintiff contends that the ALJ’s decision was in
error because his RFC determination is not supported by substantial evidence. See Pl.’s Mem. in
Supp. 9. Plaintiff argues the ALJ failed to consider the effect of nonexertional limitations
stemming from neck and upper extremity impairments on her ability to perform the full range of
sedentary work. Id. Furthermore, Plaintiff contends the ALJ did not properly consider nonexertional limitations imposed by her knee impairments. Id. at 11, 15–16. Finally, Plaintiff
argues the evidence supports a finding that nonexertional limitations erode her ability to perform

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the full range of sedentary work; thus, the ALJ erred in relying on the grid tables (“Grids”), see
20 C.F.R. Part 404, Subpart P, Appendix 2, in finding she is not disabled and in denying her
claim. Id. at 16. Plaintiff offers the August 10, 2011 RFC report by Dr. Gondi (“Dr. Gondi’s
Report”) as showing that her exertional and nonexertional limitations erode her ability to
perform the full range of sedentary work. Id. at 16. This report was submitted to the Appeals
Council and made part of the record, but never considered by the ALJ because it was created
after he adjudicated Plaintiff’s case. Plaintiff requests a remand of her case to the Commissioner
to consider Dr. Gondi’s Report, which she argues is new, material, and has a reasonable
probability of changing the outcome of the Commissioner’s final decision. Id. at 16–19.
In response, Defendant argues the ALJ properly considered Plaintiff’s neck and upper
extremity impairments, and substantial evidence supports his finding that they do not
significantly impair Plaintiff’s ability to perform the full range of sedentary work. Def.’s Mem.
in Supp. 10. Defendant comments that most of Plaintiff’s evidence on these issues predates her
alleged onset date, she relies on her own statements that the ALJ found not entirely credible, and
the assessments of a consultative examiner and state agency physicians provide substantial
evidence to support the ALJ’s finding. Id.
Defendant also contends the ALJ properly relied on the Grids to find Plaintiff was not
disabled. Id. at 11. Defendant points to the ALJ’s findings that Plaintiff’s treating specialist
released her to sedentary and light work before the alleged onset date, with no “credible evidence
of significant deterioration in her medical condition or functional status” since that time. Id. The
ALJ also remarked, as Defendant reiterates, that Plaintiff had not pursued aggressive therapies or
undergone surgery since the time of her release to light and sedentary work.

Id.

Thus,

Defendant argues the ALJ’s decision to rely on the Grids is warranted, since Plaintiff could not

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prove her nonexertional limitations would erode her ability to perform the full range of sedentary
work. Id.
Finally, Defendant advocates no remand is necessary for the Commissioner to consider
Dr. Gondi’s Report. According to Defendant, the report is neither new, in that Plaintiff’s
attorney could have obtained it and submitted it to the ALJ prior to the date of his decision, nor
material, because it lacks corroboration by clinical evidence and treatment notes. Id. at 12–13.
C. The Magistrate Judge’s Report and Recommendation
Magistrate Judge Robert S. Ballou recommends denying Plaintiff’s motion for summary
judgment and granting the Commissioner’s motion. His R&R addressed Plaintiff’s contentions
as they were narrowed to one issue in the hearing before him: namely, “whether substantial
evidence supports the ALJ’s decision that [Plaintiff] can perform a full range of sedentary work,
and thus, the ALJ did not err by relying on the [Grids] to find [Plaintiff] not disabled.” R&R 5.
The Magistrate Judge also considered whether Dr. Gondi’s Report warrants remand to the
Commissioner, finding it does not because it is neither new nor material, and because there is no
reasonable probability it would have changed the ALJ’s decision. Id. at 12–14.
At issue before the ALJ and Magistrate Judge was whether the Commissioner and ALJ
can rely on the Grids to show Plaintiff is not disabled, because the national economy contains
sufficient jobs she can perform. At this step of the analysis (step 5), the Commissioner must
show a significant number of jobs exist in the national economy that a claimant can perform,
given her RFC.

Washington v. Astrue, 698 F. Supp. 2d 562, 571 (D.S.C. 2010).

The

Commissioner promulgated the Grids, located at 20 C.F.R. Part 404, Subpart P, Appendix 2, to
serve this function and indicate the proper disability determination for claimants. Id. See also
Hall v. Harris, 658 F.2d 260, 265 (4th Cir. 1981). However, the Grids are “not conclusive, but

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may only serve as guidelines” when “a claimant suffers from both exertional and nonexertional
limitations.” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989); 20 C.F.R. § 404.1569a(d). If a
nonexertional limitation is grave enough to erode a claimant’s ability to perform the full range of
work of which she is exertionally capable, the Grids cannot be used. Id. The Commissioner
must use a vocational expert to prove sufficient jobs exist when the Grid does not apply to a
claimant. Id. at 49–50.
Plaintiff argues her nonexertional limitations erode her ability to perform the full range of
sedentary work. Thus, the Commissioner could not properly prove there are sufficient jobs in
the national economy that she could perform without the testimony of a vocational expert. In his
R&R, the Magistrate Judge noted the ALJ considered the assessments of state agency and
consulting physicians that Plaintiff could perform sedentary work, and the ALJ found Plaintiff
had the RFC to perform sedentary work. R&R 9. The R&R agrees with Plaintiff that the ALJ
did not adopt the nonexertional limitations found by the state agency assessments and pointed
out the ALJ’s reasoning for doing so.

Namely, the ALJ found those limitations did not

significantly affect Plaintiff’s capacity for sedentary work, multiple treating physicians found
Plaintiff capable of the full range of sedentary work and a wide range of light work, and the RFC
assessment on record before the ALJ found Plaintiff could perform the full range of sedentary
work. Id.
Drawing on these findings, the medical evidence considered by the ALJ, Dr. Gondi’s
Report, and additional evidence submitted by Plaintiff to the Appeals Council, the Magistrate
Judge found substantial evidence to support the ALJ’s finding that Plaintiff can perform the full
range of sedentary work, and thus also substantial evidence supporting his use of the Grids to
find Plaintiff is not disabled. Id.

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The Magistrate Judge likewise found the ALJ properly relied on substantial evidence in
finding Plaintiff’s nonexertional neck, upper extremity, and knee impairments did not interfere
with Plaintiff’s ability to perform sedentary work. Thus, the Magistrate Judge found the ALJ
was further supported by substantial evidence in relying on the Grids to find, despite these
nonexertional limitations, that Plaintiff was not disabled.

R&R 9–12.

In particular, the

Magistrate Judge pointed out that although the ALJ did not adopt state agency consulting and
reviewing physicians’ reports about Plaintiff’s nonexertional limitations, each of those doctors
found Plaintiff was capable of sedentary work despite her nonexertional limitations. Id. at 12.
Finally, the Magistrate Judge remarked that he considered Dr. Gondi’s Report as part of
the whole record in determining whether the ALJ’s decision was supported by substantial
evidence. No remand to the ALJ was required to consider Dr. Gondi’s Report, the Magistrate
Judge found, because the report was neither new nor material. R&R 14.
In the Fourth Circuit, a claimant can only obtain a remand based on additional evidence
submitted to the Appeals Council after the ALJ’s decision if that evidence is new and material,
relates to the period on or before the date of the ALJ’s decision, and it is reasonably likely the
new evidence would have changed the outcome of the ALJ’s decision. Wilkins v. Sec’y of
Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Dr. Gondi’s Report is not “new,” the
Magistrate Judge held, because it is based entirely upon treatment notes from 2005 and before,
all of which the ALJ considered as part of the record before him. R&R 14. The Report is not
“material,” says the R&R, because it is based only on treatment notes ending on November 11,
2005 (before the disability onset date), Dr. Gondi had released Plaintiff to light work in July
2004 and there is little evidence Plaintiff’s RFC deteriorated significantly since that time, and Dr.
Gondi’s Report imposes no more restrictive nonexertional limitations than those of other

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physicians the ALJ considered on the record. Id. Consequently, the Magistrate Judge found Dr.
Gondi’s Report was not likely to change the ALJ’s decision about Plaintiff and did not warrant
remand. Id.
Plaintiff timely filed Objections to the R&R on July 23, 2013, arguing that the Magistrate
Judge erred in finding substantial evidence to support the ALJ’s conclusion that Plaintiff’s
nonexertional limitations would not erode her ability to perform the full range of sedentary work.
Pl.’s Objections 1–2.

Plaintiff claims the Magistrate Judge thus erred in finding substantial

evidence to support the ALJ’s use of the Grids, and that a vocational expert’s testimony is
necessary to evaluate her ability to perform sedentary work. Id. at 2. Plaintiff also objects to the
Magistrate Judge and ALJ’s conclusions that Dr. Gondi’s Report is not new and material
evidence, arguing that her case should be remanded to the Commissioner to consider the report.
Id. at 2–3.
II. STANDARD OF REVIEW
A reviewing court must uphold the factual findings of the ALJ if they are supported by
substantial evidence and were reached through application of the correct legal standard. See 42
U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Substantial
evidence is not a large or considerable amount of evidence. Pierce v. Underwood, 487 U.S. 552,
555 (1988). Rather, it comprises “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)), and “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); accord Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012).

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In determining whether the ALJ’s decision was supported by substantial evidence, a
reviewing court may not “re-weigh conflicting evidence, make credibility determinations, or
substitute [its] judgment” for that of the ALJ. Craig, 76 F.3d at 589 (citation omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the Secretary (or the Secretary’s designate, the ALJ).” Id.
(quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). “Ultimately, it is the duty of the
[ALJ] reviewing a case, and not the responsibility of the courts, to make findings of fact and to
resolve conflicts in the evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus,
even if a court would have made contrary determinations of fact, it must nonetheless uphold the
ALJ’s decision, so long as it is supported by substantial evidence. See Whiten v. Finch, 437 F.2d
73, 74 (4th Cir. 1971). Ultimately, the issue before this Court is not whether Plaintiff is disabled,
but whether the ALJ’s determination is reinforced by substantial evidence, and whether it was
reached through correct application of the law. Craig, 76 F.3d at 589.
III. DISCUSSION
As noted above, Plaintiff argues the ALJ’s decision is not supported by substantial
evidence, primarily because she claims her nonexertional limitations erode her ability to perform
the full range of sedentary work. Given that argument, Plaintiff contends the Commissioner
never met his burden to prove she is disabled at step 5 of the disability analysis, because when
nonexertional limitations erode a claimant’s ability to perform a given level of work, the Grids
cannot conclusively prove disability (or lack thereof) for that claimant. Therefore, the Plaintiff
argues the ALJ’s decision is unsupported by substantial evidence, and demands a remand for the
Commissioner to present a vocational expert and for the ALJ to consider Dr. Gondi’s Report.

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A. ALJ’s Consideration of Plaintiff’s Nonexertional Limitations
Whether the ALJ’s decision is supported by substantial evidence depends, first, on
whether there is substantial evidence Plaintiff’s nonexertional limitations do not erode her ability
to perform the full range of sedentary work. If there is such substantial evidence, the ALJ’s use
of the Grids is proper, and those Grids provide substantial evidence to support the ALJ’s
conclusion Plaintiff is not disabled. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989);
Hammond v. Heckler, 765 F.2d 424, 425–26 (4th Cir. 1985). The determination of whether a
claimant suffers from a nonexertional impairment sufficient to preclude use of the Grids is one of
fact, and is reviewed by this court only to assess whether that finding is supported by substantial
evidence. Long v. Apfel, 2000 WL 1469542, at *4 (W.D. Va. Aug. 23, 2000).
I agree with the ALJ’s determination that Plaintiff’s nonexertional limitations do not rise
to the level of nonexertional impairments that would prevent use of the Grids to determine
disability at step 5 of the analysis. I have considered the entire record in coming to this
conclusion, including Dr. Gondi’s Report, the additional evidence Plaintiff submitted to the
Appeals Council, and the nonexertional limitations found by the agency consulting and
reviewing physicians the ALJ chose not to adopt. See Wilkins v. Sec’y, Dep’t of Health &
Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (noting a reviewing court must assess new
evidence incorporated into the administrative record by the Appeals Council in determining
whether the Commissioner’s decision is supported by substantial evidence).
Plaintiff calls to the Court’s attention neck and upper extremity limitations, stemming
from a cervical impairment with upper extremity radiculopathy. She also claims nonexertional
limitations based on knee injuries that prevent squatting, bending, kneeling, crawling, and
avoiding things like heights and other hazards in the workplace. The issue before this Court is

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whether substantial evidence from the whole record before this Court supports the ALJ’s
determination that these limitations do not erode Plaintiff’s ability to perform sedentary work.
First, the record as a whole includes substantial evidence, over the course of many years,
confirming Plaintiff’s ability to perform sedentary work. Dr. Gondi treated Plaintiff from 2001
to 2005 for bilateral knee pain secondary to bilateral knee chrondromalacia patella, stemming
from a work-related injury to both of her knees in 1999. R. 366–85, 393–514. Surgery was
performed on Plaintiff’s knees in 2002 and 2003, and by June 16, 2004 Dr. Gondi released
Plaintiff to medium work activities. R. 440–42. Dr. Gondi later restricted Plaintiff to light work
on July 28, 2004, restricting her to lifting a maximum of 20 lbs, allowing lifting of 10 lbs
frequently, and instructed her to avoid kneeling and squatting. R. 433. In January of 2006, this
state of affairs remained fairly constant – Marla Armstrong, M.D., found Plaintiff capable of
sedentary work after an independent functional capacity evaluation. Dr. Armstrong also
restricted squatting, lifting, bending, and crawling, as well as some sitting. R. 678–79.
Another functional capacity evaluation in May of 2006 by Barbara Suter, P.T., found
Plaintiff could perform sedentary work and noted good tolerance for intermittent sitting,
standing, occasional stair climbing, low level balancing, stooping, above the shoulder work,
reaching forward, fine motor coordination, gripping, and pinching. R. 655–57. Suter reported
minor inconsistencies between Plaintiff’s subjective reports of pain and limitation, and Suter’s
objective findings, and said Plaintiff gave less than full effort to the examination. Id. By June of
2006, Brant Hotzmeier, D.O. found a permanent knee disability, but recommended non-surgical
treatment – weight loss, bracing, exercise, anti-inflammatory medication, and range of motion
strengthening. R. 649–51.
In February through August of 2009, three state agency doctors evaluated Plaintiff.

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William S. Humphries, M.D., found Plaintiff could sit for six hours in a work day, and lift 25 lbs
occasionally and 10 lbs frequently. He advised Plaintiff to avoid climbing, kneeling, crawling,
heights, and hazards. R. 231–36. The other two agency physicians, Thomas Phillips, M.D., and
Joseph Duckwall, M.D., evaluated Plaintiff’s functional capacity. Both found Plaintiff capable
of light work involving occasional balancing, stooping, crouching, and climbing ramps and
stairs, but not including kneeling, crawling, climbing ladders, ropes, or scaffolds, or exposure to
moderate workplace hazards and respiratory irritants. R. 237–41, 269–73.
Finally, on August 10, 2011, Dr. Gondi also evaluated Plaintiff’s RFC and found her
capable of low-stress jobs. He found Plaintiff could sit for at least six hours in a work day and
stand and walk for less than two hours of that day, so long as she could shift positions at will –
he found she could sit for 45 minutes at a time and stand for 45 minutes at a time. R. 721–25.
Dr. Gondi restricted Plaintiff from carrying more than 10 lbs and from more than occasionally
crouching, squatting, or climbing ladders or stairs. Id.
It becomes evident from reviewing these records, including Dr. Gondi’s Report from
2011, that many physicians and specialists have considered both Plaintiff’s exertional and
nonexertional limitations, and have found her capable of performing sedentary work and more.
The limitations they describe variously include: the need to shift positions during work; to
alternate sitting and standing; and to avoid squatting, bending, lifting more than 10 or 20 lbs, and
crawling. Substantial evidence supports the ALJ’s finding that those limitations do not erode
Plaintiff’s ability to perform the full range of sedentary work – including the assessments of
those same physicians and therapists who found that Plaintiff could perform such work.
Sedentary work:
involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary
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job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are
met.
20 C.F.R. §§ 404.1567(a), 416.967(a). I agree with the ALJ, Magistrate Judge, and indeed, with
the many examining, treating, consulting, and reviewing medical professionals in the record, that
the nature of sedentary work means Plaintiff’s nonexertional limitations will not significantly
affect her ability to perform that work.
As for Plaintiff’s contentions that the ALJ failed to properly consider the nonexertional
limitations posed by her neck, upper extremity, and knee injuries, I find these do not significantly
affect her ability to perform sedentary work. Plaintiff reports difficulty reaching and using her
hands, and cites medical records diagnosing her with a herniated disc and referring to her history
of chronic neck pain. R. 39, 40, 159, 181, 360–65, 555–56. But no medical source found these
problems limited Plaintiff’s ability to perform the full range of sedentary work. Dr. Humphries
examined Plaintiff in 2009, noting minor indications of neck, back, and shoulder pain, and his
RFC does not contain any manipulative limitations. R. 234–36. Doctors Phillips and Duckwall
examined Plaintiff in February and August of 2009, respectively, and found no manipulative
limitations or limitations on Plaintiff’s ability to push or pull with her upper extremities. R. 238–
39, 270–71. Even Plaintiff’s treating physician, Dr. Gondi, found no manipulative limitations in
his residual functional capacity evaluation in 2011. He said Plaintiff could frequently flex her
neck, turn her head, look up, and hold her head in a static position. R. 724.
Plaintiff’s knee-related nonexertional limitations were also considered by each treating,
examining, consulting, and reviewing medical professional. From 2004 to 2009, when the
evaluations took place, those professionals consistently released Plaintiff to everything from light
to sedentary work. In 2011, Dr. Gondi’s report, based on his old treating records, found Plaintiff
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capable of low-stress jobs, and noted Plaintiff can sit, stand, and walk, alternately for an entire
work day, so long as she can shift positions about every 30–45 minutes. R. 712–25.
The additional evidence Plaintiff cites does not affect the ALJ’s functional capacity
determination. Considering this evidence as part of the record as a whole, I find substantial
evidence to support the ALJ’s determination that Plaintiff’s nonexertional limitations do not
significantly affect her ability to perform the full range of sedentary work. Therefore, the ALJ’s
decision to rely on the Grids in determining that Plaintiff is not disabled is also supported by
substantial evidence.
B. Dr. Gondi’s Report
Dr. Gautham Gondi completed a residual functional capacity report (“Dr. Gondi’s
Report”) on August 10, 2011, which Plaintiff submitted to the Appeals Council after the ALJ’s
decision. This Court has considered Dr. Gondi’s Report as part of the whole record before it in
making its findings. Wilkins, 953 F.2d 96. Plaintiff requests that this Court remand her case to
the Commissioner for consideration of that report. As explained above, this Court cannot do so
unless the report is new and material, and relates to the period on or before the date of the ALJ’s
decision. Id. Evidence is new if it is not duplicative or cumulative, and it is material if there is a
reasonable probability the new evidence would have changed the Commissioner’s decision. Id.
at 95–96.
I agree with the Magistrate Judge that Dr. Gondi’s Report is neither new, nor material,
nor makes it reasonably probable that the ALJ’s decision would come out differently. Therefore,
I will not remand this case to the Commissioner for further consideration of the report. As the
Magistrate Judge explained, all the evidence Dr. Gondi used to create his report was before the
ALJ when he made his RFC determination – when the ALJ found Plaintiff could perform the full

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range of sedentary work and is not disabled. Dr. Gondi based his analysis on records ending on
November 11, 2005, prior to Plaintiff’s alleged disability onset date, and at that time Dr. Gondi
released Plaintiff to sedentary work. R. 395. Dr. Gondi’s evaluation of that same evidence
certainly adds to the record before this Court. Yet, Dr. Gondi comes to many of the same
conclusions as the physicians and medical professionals before him. Dr. Gondi’s assessment
provides nothing to call into question the ALJ’s conclusion that Plaintiff can perform the full
range of sedentary work. Therefore, his report is duplicative and cumulative, not new.
Furthermore, Dr. Gondi’s Report is not material. Substantial evidence, described at
length here, supports the ALJ’s conclusion that Plaintiff can perform the full range of sedentary
work. Dr. Gondi’s Report provides no additional limitations that significantly diminish
Plaintiff’s capacity for sedentary work, as the ALJ found, and as I find. The Appeals Council
also considered Dr. Gondi’s report and found it provided no “basis for changing the
Administrative Law Judge’s decision.” R. 2. The Magistrate Judge specifically noted that Dr.
Gondi placed no limitations on Plaintiff’s reaching, handling, fingering or flexion of the neck,
nor any nonexertional limitations more restrictive than those the ALJ considered from other
medical professionals. R. 721–25. Consequently, I conclude remand to the Commissioner is not
warranted by Dr. Gondi’s Report, as it is cumulative, duplicative, immaterial, and unlikely to
have changed the Commissioner’s decision in this case.
IV. CONCLUSION
After undertaking a de novo review of those portions of the R&R to which Plaintiff
objected, I find that substantial evidence supports the ALJ’s conclusions. Accordingly, I will
enter an Order overruling Plaintiff’s Objections, adopting the Magistrate Judge’s R&R in full,
granting the Commissioner’s Motion for Summary Judgment, denying Plaintiff’s Motion for

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Summary Judgment, and dismissing this action and striking it from the active docket of the
Court.
The Clerk of the Court is hereby directed to send a certified copy of this Memorandum
Opinion and the accompanying Order to all counsel of record, and to United States Magistrate
Judge Robert S. Ballou.

13th
Entered this _____ day of September, 2013.

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