Wajler v. Commissioner of Social Security

Filing 26

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION: Order adopting the 20 Report and Recommendations. The Court GRANTS the defendant's motion for Summary Judgment [16)]; DENIES Wajlers motion for Summary Judgment 13 and DENIES Wajlers motion to remand, 22 and DISMISSES this civil action WITH PREJUDICE and RETIRES it from the docket of this Court. The Court directs the Clerk of Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 9/19/14. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TADEUSZ JOZEF WAJLER,
Plaintiff,
v.

CIVIL ACTION NO. 1:13CV156
(Judge Keeley)

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b),
and L.R. Civ. P. 4.01(d), on June 7, 2013, the Court referred this
Social Security action to United States Magistrate David J. Joel
(“Magistrate

Judge

Joel”)

with

directions

to

submit

proposed

findings of fact and a recommendation for disposition. Due to Judge
Joel’s retirement, the case was reassigned to Magistrate Judge
James E. Seibert (“Magistrate Judge Seibert”) on October 17, 2013,
and then, on June 9, 2014, reassigned to Magistrate Judge Robert W.
Trumble (“Magistrate Judge Trumble or magistrate judge”) (dkt. no.
19). Magistrate Judge Trumble filed his Report and Recommendation
(“R&R”) (dkt. no. 20) on August 1, 2014, and directed the parties,
in accordance with 28 U.S.C. § 636(b)(1) and Rule 6(e), Fed. R.
Civ. P., to file any written objections with the Clerk of Court
within fourteen (14) days after being served with a copy of the
R&R.

WAJLER V. COMMISSIONER OF SOCIAL SECURITY

1:13CV156

MEMORANDUM OPINION AND ORDER ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
On August 14, 2014, the plaintiff, Tadeusz Jozef Wajler
(“Wajler’),

through

his

attorney,

Michael

Miskowiec,

filed

objections to the R&R (dkt. no. 21), and also filed a “Motion to
Remand For Consideration of New and Material Evidence Pursuant to
the Sixth Sentence of 42 U.S.C. § 405(G) (dkt. no. 22). On
August 25, 2014, the Commissioner responded to the motion to remand
(dkt. no. 24), to which Wajler replied on September 2, 2014 (dkt.
no. 25).
I.

PROCEDURAL BACKGROUND

Wajler applied for disability benefits under Title II of the
Social Security Act, 42 U.S.C. § 401-434, alleging that he became
unable to wok on February 3, 2011, due to dysuria, influenza and
related symptoms, myofascial pain syndrome, nausea, vomiting,
carpal tunnel syndrome (“CTS”), neuropathy, piriformis syndrome,
headaches, and degenerative disc disease/degenerative arthritis of
the lumbar spine, status post double discectomy with residual back
pain and radiculopathy, history of cervical and thoracic strain,
and somatic dysfunction of the thoracic, lumbar, and pelvic areas.
Following

denial

of

the

application

initially

and

on

reconsideration (R. 60-63, 71-76), Wajler requested a hearing,
which an administrative law judge (“ALJ”) conducted on October 11,
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MEMORANDUM OPINION AND ORDER ADOPTING
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2012, (R. at 91).1 Wajler, represented by counsel, appeared and
testified at the hearing. An impartial vocational expert (“VE”)
also appeared and testified. (R. 34-59). On November 30, 2012, the
ALJ found that Wajler was not disabled (R. 17-28).
The Appeals Council denied Wajler’s timely request for a
review of the ALJ’s decision (R. 6-13) on April 23, 2013, thus
making the ALJ’s decision the final decision of the Commissioner
(R. 1-5). On June 7, 2013, Wajler filed this action seeking review
of that final decision (dkt no. 1).
II.

PLAINTIFF'S BACKGROUND

On October 11, 2012, the date of the administrative hearing,
Wajler was forty-five (45) years old and thus is considered a
younger individual pursuant to 20 CFR 404.1563 and 416.963. (R.
27). He has a high school education, including two years of
vocational school for auto body work (R. 38). He previously worked
as an auto body technician from 1988 until his second back surgery
in February, 2011 (R. at 177), and worked for approximately one

1

The record in various places erroneously indicates that the
hearing took place on August 11, 2011, the date the hearing was
requested; however, the correct date of the hearing is October 11,
2012.
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MEMORANDUM OPINION AND ORDER ADOPTING
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year in mine shaft construction. (Id.). He is married and has ten
(10) children, all under the age of eighteen (R. 117-18).
III.
Utilizing
prescribed

in

ADMINISTRATIVE FINDINGS

the

five-step

sequential

the

Commissioner’s

evaluation

regulations

at

20

process
C.F.R.

§§ 404.1520, the ALJ found as follows:
1.

Wajler met the insured status requirements of the
Social Security Act through December 31, 20152;

2.

Wajler has not engaged in substantial gainful
activity since February 3, 2011, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et
seq.);

3.

Since February 3, 2011, Wajler has had the
following medically determinable impairments that,
either individually or in combination, are “severe”
and significantly limited his ability to perform
basic work activities for a period of at least 12
consecutive months: history of degenerative disc
disease/degenerative arthritis of the lumbar spine,
status post double discectomy with residual back
pain and radiculopathy; history of cervical and
thoracic strain; and somatic dysfunction of the
thoracic, lumbar, and pelvic areas (20 CFR
404.1520(c) and 416.920(c));

4.

Wajler does not have an impairment or combination
of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR
Part
404,
Subpart
P,
Appendix
1
(20
CFR

2

On the first page of the ALJ’s decision, he states that
Wajler “has acquired sufficient quarters of coverage to remain
insured through December 31, 2014.”
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MEMORANDUM OPINION AND ORDER ADOPTING
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404.1520(d),
404.1525,
416.925 and 416.926);

404.1526,

416.920(d),

5.

After careful consideration of the entire record,
the magistrate judge determined that, since
February 3, 2011, Wajler has had the residual
functional capacity to perform a range of sedentary
work as defined in 20 CFR 404.1567(a) and
416.967(a) with the following limitations, a
sit/stand option without breaking task, with the
ability to sit, stand, and walk for at least 15
minutes each at a time, can perform postural
movements occasionally, but should do minimal
squatting and cannot climb ladders, ropes, or
scaffolds, should do all walking on level and even
surfaces, and should use a cane for ambulation,
should have no exposure to temperature extremes,
wet or humid conditions, or hazards, and is limited
to unskilled work involving only routine and
repetitive instructions and tasks;

6.

Wajler is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965);

7.

Wajler was born on May 2, 1967 and was 43 years old
on the alleged disability onset date and therefore
is defined as a younger individual age 18-44. His
age category subsequently changed to a younger
individual age 45-49 (20 CFR 404.1563 and 416.963);

8.

Wajler has at least a high school education and is
able to communicate in English (20 CFR 404.1564 and
416.964);

9.

Transferability of job skills is not material to
the determination of disability because using the
Medical-Vocational Rules as a framework supports a
finding that he is “not disabled,” whether or not
he has transferable job skills (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2);

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10.

Considering his age, education, work experience,
and residual functional capacity, there are jobs
that exist in significant numbers in the national
economy that he can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)); and

11.

Wajler has not been under a disability, as defined
in the Social Security Act, from February 3, 2011
through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

(R. at 17-28).
IV.

OBJECTIONS

On August 19, 2014, counsel for Wajler filed objections to the
R&R that essentially reiterated his arguments in support of his
motion

for

magistrate
evidence

summary

judgment.

judge’s

determination

in

the

record

to

These

objections

that

support

there
the

challenged

the

was

substantial

ALJ’s

credibility

determination, and the Commissioner’s conclusion that there are
jobs in significant numbers in the national economy that Wajler can
perform. (Dkt. No. 21 at 1-2).
In his summary judgment motion, Wajler had objected that the
record did not contain substantial evidence to support the ALJ’s
determination

that

Wajler’s

testimony

regarding

his

pain,

limitations due to back and left leg pain, and his pain management
treatment was not credible. He also objected to the ALJ’s reliance

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MEMORANDUM OPINION AND ORDER ADOPTING
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on the testimony of the VE to satisfy the Commissioner’s burden of
showing that there are jobs in significant numbers in the national
economy that Wajler could perform. (Dkt. No. 20 at 29).
Then, and now, Wajler contends that the ALJ misread the
medical evidence of record, specifically the January 27, 2011, MRI
(Pl.’s Objs. to the R&R at 2, and Pl.’s Br. at 15), and that the
jobs identified by the VE from the Dictionary of Occupational
Titles (DOT) did not accommodate Wajler’s deficit in reading (Pl.’s
Objs. to the R&R at 5 and Pl.’s Br. at 15).
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required
to conduct a de novo review of those portions of the magistrate
judge’s R&R to which objections have been filed. It need not,
however, conduct a de novo review when a party’s objections are
only “general and conclusory,” and “do not direct it to a specific
error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a specific objection, the Court only reviews the magistrate
judge’s conclusions for clear error. Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). A failure to
file specific objections also waives appellate review of both
factual and legal questions. See United States v. Schronce, 727
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MEMORANDUM OPINION AND ORDER ADOPTING
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F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
Wajler’s objections repeat arguments already considered by the
magistrate judge - that the ALJ misread the objective medical
evidence regarding his pain and any pain management treatment
utilized to address his pain, and also failed to include his
decreased

attention

span

in

reading

due

to

his

pain

in

the

hypothetical presented to the VE. See Phillips v. Astrue, No.
6:10–53, 2011 WL 5086851, at *2 (W.D. Va. Oct. 25, 2011 (“General
objections to a magistrate judge’s report and recommendation,
reiterating arguments already presented, lack the specificity
required by Rule 72 and have the same effect as a failure to
object.” (citing Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va.
2008)).
Out of consideration to Wajler’s contentions, the Court has
undertaken a de novo review of all the matters considered by the
magistrate judge. For the reasons that follow, it concludes not
only

that

there

is

no

clear

error,

but

also

that

there

is

substantial evidence in the record to support the Commissioner’s
decision.

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MEMORANDUM OPINION AND ORDER ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
V.

MEDICAL

AND VE’S EVIDENCE

The Court incorporates the magistrate judge’s extensive review
of the medical evidence predating Wajler’s alleged onset date of
February 3, 2011 (R&R at 3-15), as well as the medical evidence
that postdates the alleged onset date of February 3, 201l (R&R at
15-26). The Court also incorporates the magistrate judge’s summary
of the VE’s testimony, and the additional VE evidence (R&R at 2628).
VI.
A.

DISCUSSION

Credibility Analysis
Wajler contends that the ALJ misread portions of the objective

medical evidence (dkt. no. 14 at 11), and that substantial evidence
supports his testimony regarding debilitating headaches and back
pain. Wajler argues that the ALJ’s analysis of his credibility did
not satisfy the controlling test in Craig v. Chater, 76 F.3d 585
(4th Cir. 1996). (Dkt. No. 21 at 3).
1.
In Craig, the Fourth Circuit established a two-prong test for
evaluating a claimant’s subjective complaints of pain. The first
prong requires an ALJ to determine whether there is objective
evidence to establish the existence of a medical impairment or
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MEMORANDUM OPINION AND ORDER ADOPTING
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impairments

resulting

from

anatomical,

physiological

or

psychological abnormalities that could reasonably be expected to
produce the pain or other symptoms alleged. Id. at 594. The second
prong requires an ALJ to “expressly consider” whether a claimant
has such an impairment. Id. at 596.
If a claimant satisfies these two prongs, an ALJ then must
evaluate the “intensity and persistence of the claimant’s pain, and
the extent to which it affects her ability to work.” Id. at 595. In
this evaluation, an ALJ must consider
not only the claimant’s statements about her
pain, but also ‘all the available evidence,’
including the claimant’s medical history,
medical signs, and laboratory findings . . .
and any other evidence relevant to the
severity of the impairment, such as evidence
of the claimant’s daily activities, specific
descriptions of the pain, and any medical
treatment taken to alleviate it.
Id.
Prior to Craig, in Shively v. Heckler, 739 F.2d 987, 989-90
(4th Cir. 1984), the Fourth Circuit concluded that “[b]ecause he
had the opportunity to observe the demeanor and to determine the
credibility of the claimant, the ALJ’s observations concerning
these questions are to be given great weight” (citing Tyler v.
Weinberger, 409 F.Supp. 776 (E.D. Va. 1976)).

10

Once made, an ALJ’s

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credibility determination will be reversed only “if the claimant
can show it was ‘patently wrong.’”

Powers v. Apfel, 207 F.3d 431,

435 (7th Cir. 2000) (quoting Herr v. Sullivan, 912 F.2d 178, 181
(7th Cir. 1990)).
Nevertheless, despite the great deference given to an ALJ’s
credibility

determination,

SSR

96-7p

requires

that

an

ALJ

articulate sufficiently the reasons for his determination. Thus,
the ALJ’s determination or decision “must contain specific reasons
for the finding on credibility, supported by the evidence in the
case record, and must be sufficiently specific to make clear to the
individual

and

to

any

subsequent

reviewers

the

weight

the

adjudicator gave to the individual’s statements and the reasons for
that weight.”

Id. at *2.

SSR 96-7p outlines the factors an ALJ should consider to
assess the credibility of an individual’s subjective allegations of
pain.

These

include

the

individual’s

daily

activities,

the

location, duration, frequency, and intensity of the individual’s
pain or other symptoms, any factors that precipitate and aggravate
the symptoms, the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms, any treatment or other than medication, the
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individual receives or has received for relief of pain or other
symptoms, any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying flat on his
or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board), and, any other factors concerning the individual’s
functional limitations and restrictions due to pain or other
symptoms. SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).
Here, the ALJ followed Craig’s two-prong test, as well as the
requirements in 20 C.F.R. § 404.1529(c)(3). The magistrate judge
noted that the objective evidence established the existence of a
medical impairment that could reasonably be expected to produce the
pain or other symptoms Wajler alleged, and that those impairments
could reasonably be expected to produce the symptoms alleged. (R&R
at 33). He also noted the ALJ’s consideration of the objective
medical evidence, Wajler’s statements regarding his activities of
daily living, the location, duration, frequency, and intensity of
his pain, the precipitating and aggravating factors that caused his
pain, and the treatment he underwent to mitigate the pain. (R&R at
34-35). Only after having completed a thorough analysis of the
factors in Craig, as well as 20 C.F.R. § 404.1529(c)(3), did the
ALJ conclude that Wajler’s statements concerning the intensity,
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persistence

and

limiting

effects

of

these

symptoms

were

not

entirely credible. (R&R at 34).
2.
In the R&R, the magistrate judge considered each of Wajler’s
claims to determine whether substantial evidence supported the
ALJ’s credibility analysis, and his ultimate denial of Wajler’s
disability claim. He noted that “[t]he court will not reverse an
ALJ’s decision for harmless error, which exists when it is clear
from the record that the ALJ’s error was inconsequential to the
ultimate nondisability determination.”

Tommasetti v. Astrue, 533

F.3d 1035, 1038 (9th Cir. 2008); see also Keys v. Barnhart, 347
F.3d 990, 994-95 (7th Cir. 2003) (stating that “[t]he doctrine of
harmless error . . . is fully applicable to judicial review of
administrative decisions”); Hurtado v. Astrue, 2010 WL 3258272, at
*11 (D.S.C. July 26, 2010) (finding that “[t]he court acknowledges
there may be situations in which an error in an opinion is harmless
because it would not change the outcome of the ALJ’s decision”);
cf. Ngarurih v. Ashcroft, 371 F.3d 182, 190 n. 8 (4th Cir. 2004)
(explaining

that

“[w]hile

the

general

rule

is

that

an

administrative order cannot be upheld unless the grounds upon which
the agency acted in exercising its powers were those upon which its
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action can be sustained, reversal is not required where the alleged
error clearly had no bearing on the procedure used or the substance
of the decision reached.”). (R&R at 35-6).
The magistrate judge acknowledged that the ALJ had erroneously
referenced Wajler’s January 27, 2010 MRI as the last of his prealleged onset date MRI studies (R. at 23), and also had misquoted
the MRI, stating it indicated that granulation tissue did not
contact the S1 nerve, when the study clearly established that there
was such contact. (Id.). The magistrate judge, however, found that
these errors involved medical evidence relating to Wajler’s prealleged onset conditions, and, as such, were only two of many
factors the ALJ relied on in making his credibility analysis.

He

further noted that the ALJ had evaluated all four of the prealleged onset date MRIs. Although the ALJ’s references to the
January 27, 2010 MRI was incorrect, his references to Wajler’s
three other MRIs, including the succeeding ones from September,
2010 and October, 2010, only four (4) months before Wajler’s second
surgery, contained no errors.
The magistrate judge further noted that, at the hearing before
the ALJ, Wajler testified that headaches were one of his worst
medical problems, but that he did not treat them because nothing
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helped. (R&R at 38). The medical records documented that Wajler had
reported experiencing cluster headaches since the age of sixteen,
that medication had relieved his headaches, and that his medical
records after 2006 rarely noted any complaints of headaches. (R&R
at 23). The record also reflected that, despite his allegation of
total disabling headaches since approximately 1983, Wajler had been
substantially and gainfully employed until 2010.
After carefully reviewing the record in Wajler’s case, the
magistrate judge determined that any error relating to the prealleged onset medical record was harmless, and the ALJ’s other
findings regarding the headaches and the post-alleged onset MRIs
substantially supported the ALJ’s credibility analysis and ultimate
determination that Wajler was not disabled.
3.
Wajler contends that the ALJ incorrectly stated that, just
prior to February 3, 2011, the alleged onset date, he reported his
pain was under control and improving with the use of Naproxem and
Norco for pain, denied any sleep problems, was independent in his
personal care, and had elected to undergo a second surgery. (R. at
23, R&R at 39-40). Wajler argues there is no substantial evidence

15

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that any doctor indicated his pain “was being controlled by
naproxen and norco.”

(Dkt. No. 14 at 11).

As the magistrate judge correctly found, however, the evidence
is clearly otherwise:
1.

On

November

1,

2010,

Dr.

Sedney

of

WVU

Healthcare

reported to Dr. Bailes that Wajler had good resolution of his
symptoms until September 2010.
2.

(R. at 414);

Following a hospital admission for sudden onset of severe

back pain, an October 14, 2010 MRI reported an “extruded fragment
of the L4-5 disc. (R. at 526). The discharge record indicates that
“[t]he patient was released from the hospital with his pain under
control and reports that since then it has been improving although
he continues to take naproxen and norco for pain.” (Id.); and
3.

Wajler continued to take Naproxen and Norco for pain,

even as late as January 3, 2011. (R. at 452-4).
Based

on

this,

the

magistrate

judge

determined

that

substantial evidence supported the ALJ’s finding that Wajler’s pain
had been controlled with medication. Alternatively, he concluded
that, if there was any error, it was harmless.

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4.
Wajler also contends that the ALJ’s finding that he had failed
to pursue treatment for pain management was erroneous. What the ALJ
noted, however, was that Wajler had failed to attend an appointment
at a pain clinic on November 10, 2011, had taken no further action
after

that

to

seek

pain

management

despite

alleging

totally

disabling pain, and instead had applied for disability because he
had no insurance to seek medical care. (R. at 24).
The magistrate judge’s determination that substantial evidence
existed to support the ALJ’s credibility determination, and that
any errors were harmless, is not clearly wrong as a matter of law.
B. Residual Functional Capacity Analysis
At the fifth step of the sequential evaluation, “the burden
shifts to the [Commissioner] to produce evidence that other jobs
exist in the national economy that a claimant can perform given his
age, education, and work experience.” Hunter v. Sullivan, 993 F.2d
31, 35 (4th Cir. 1992).
consider

the

In making this determination, an ALJ must

claimant’s

residual

functional

capacity,

“age,

education, and past work experience to see if [he] can do other
work.” 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). An ALJ may rely
on VE testimony to assist in determining whether other work exists
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in the national economy that a claimant can perform. 20 C.F.R. §§
404.1566(e), 416.966(e).
The Fourth Circuit has held that “[t]he purpose of bringing in
a vocational expert is to assist the ALJ in determining whether
there

is

work

available

in

the

national

economy

which

the

particular claimant can perform.” Walker v. Bowen, 889 F.2d 47, 50
(4th Cir. 1989).
security

When “questioning a vocational expert in a social

disability

hypothetical

insurance

questions

to

the

hearing,

the

ALJ

must

expert

that

are

propound

based

upon

a

consideration of all relevant evidence of record on the claimant’s
impairment.”

English v. Shalala, 10 F.3d 1080, 1085 (4th Cir.1993)

(citing Walker v. Bowen, 876 F.2d 1097, 1100 (4th Cir.1989)).
If the ALJ’s hypothetical question to the VE accurately
reflects all of the claimant’s limitations, the VE’s response is
binding on the Commissioner.

Edwards v. Bowen, 672 F. Supp. 230,

235 (E.D.N.C. 1987). The reviewing court shall consider whether the
hypothetical

question

“could

be

viewed

as

presenting

those

impairments the claimant alleges.” English v. Shalala, 10 F.3d
1080, 1085 (4th Cir. 1993).
Here, the ALJ concluded as follows:

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After careful consideration of the entire
record, the undersigned finds that, since
February 3, 2011, the claimant has had the
residual functional capacity to perform a
range of sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) with the following
limitations: the claimant requires a sit/stand
option without breaking task, with the ability
to sit, stand, and walk for at least 15
minutes each at a time; the claimant can
perform postural movements occasionally, but
should do minimal squatting and cannot climb
ladders, ropes, or scaffolds; to the maximum
extent possible, the claimant should do all
walking on level and even surfaces, and the
claimant requires a cane for ambulation; the
claimant
should
have
no
exposure
to
temperature extremes, wet or humid conditions,
or hazards; and lastly, the claimant is
limited to unskilled work involving only
routine and repetitive instructions and tasks.
(R. at 21).
Even though Wajler testified he had a decreased attention span
in reading due to pain and his medications (R. at 41, 48), there is
no substantial evidence in the medical records documenting any
decreased attention in reading. Nevertheless, the ALJ specifically
found:
However, the undersigned also fully considered
the claimant’s updated treatment records and
the claimant’s allegations and gave them some
weight, in conjunction with the other relevant
evidence as well as the limited weight given
to the medical evidence as well as the limited
weight given to the medical source statements
of Dr. Morris, in finding that the claimant is
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limited
to
sedentary
work
subject
to
additional
exertional
and
nonexertional
limitations, including but not limited to,
being limited to unskilled work involving only
routine and repetitive instructions and tasks
to
accommodate
the
claimant’s
hearing
testimony of decreased attention span in
reading due to pain as well as to decrease any
stress that might aggravate the claimant’s
symptoms.
(R. at 25) (Emphasis added).
The magistrate judge determined that, even though the ALJ had
not specifically used the words “a decreased attention span in
reading due to pain” in his hypothetical to the VE, he specifically
stated in his decision that he had considered and accommodated
Wajler’s hearing testimony of decreased attention span in reading
due to pain. The magistrate judge noted that the evidence of record
regarding Wajler’s actual reading level is “sparse,” and therefore
found that the hypothetical question to the VE contained all of the
limitations supported by the evidence of record. (R&R at 45).
C. Combination of Impairments Analysis
At the second step of the five-step sequential evaluation
process established in the Commissioner’s regulations at 20 C.F.R.
§ 404.1520, an ALJ is required to determine if a claimant has a
severe medically determinable physical or mental impairment, or a

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combination of impairments that meets or equals the severity of one
of the listed impairments. After an extensive review of the record,
the ALJ concluded that Wajler did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. (R. at 20). In Walker v.
Bowen, 889 F.2d 47, 50 (4th Cir. 1989), the Fourth Circuit held
that, as part of this analysis, an ALJ must “adequately explain his
or her evaluation of the combined effects of [a claimant’s]
impairments.” See also Reid v. Commissioner, No. 13-1480, __ F.3d
__ (4th Cir. Sept. 16, 2014).
In documenting Wajler’s severe impairments, the ALJ included
the following: a history of degenerative disc disease/degenerative
arthritis of the lumbar spine; status post double discectomy with
residual back pain and radiculopathy; history of cervical and
thoracic strain; and somatic dysfunction of the thoracic, lumbar,
and pelvic areas. He further found that all the other impairments
Wajler alleged were not severe, or not medically determinable
either because they had responded to treatment, or because they had
caused no more than minimal vocationally relevant limitations, or
because they had not lasted, or were not expected to last, the
continuous period of twelve months, or because they were not
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expected to result in death, or because they had not been diagnosed
by an acceptable medical source. (R. at 20).
It is evident that the ALJ considered Wajler’s impairments in
combination. After a thorough review of all the evidence, he
concluded that Wajler did not “have an impairment or combination of
impairments that met or equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926):
In
so
concluding,
the
undersigned
has
appropriately evaluated medical and other
evidence pertaining to the claimant’s medially
(sic) determinable impairments in conjunction
with all relevant severity criteria contained
within, and including but not limited to, the
1.00 Musculoskeletal System series of listed
impairments.
. . .
Evidence considered in reaching the foregoing
conclusions is discussed below in conjunction
with the determination of the claimant’s
residual functional capacity.
(R. at 20).
After carefully considering the record, the Court is satisfied
that the ALJ weighed all the evidence of Wajler’s impairments in
combination before concluding that
[t]he claimant has medically determinable
impairments that could reasonably be expected
to cause some of the symptoms described and
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the undersigned believes that the claimant
does experience symptoms, but not to the
debilitating degree of severity alleged. In
view of this determination concerning the
claimant’s credibility, the undersigned does
not accept medical findings or opinions that
are based solely or primarily upon the
claimant’s subjective complaints.
(R. at 26).
VII. MOTION TO REMAND
On August 14, 2014, counsel for Wajler filed a “Motion to
Remand for Consideration of New and Material Evidence Pursuant to
the Sixth Sentence of 42 U.S.C. § 405(g)” (dkt. no. 22). On
August 25, 2014, the Commissioner responded (dkt. no. 24), and on
September 2, 2014, Wajler replied (dkt. no. 25) to that response.
For the reasons that follow, the Court DENIES the motion to remand.
Wajler contends that the evidence of his surgery on May 30,
2014, to implant a permanent spinal cord stimulator, is relevant to
his 2011 claim because one of the factors the ALJ relied on in his
decision denying the claim was Wajler’s failure to pursue further
pain management treatment (Dkt. no. 23 at 2). The Commissioner
asserts that Wajler failed to satisfy all of the requirements for
remand under sentence six of 42 U.S.C. § 405(g), contending that

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the evidence submitted “does not relate to the time period that was
under consideration by the ALJ.”

(Dkt. No. 24 at 5).

The Commissioner further contends that, because counsel for
Wajler specifically indicated at the August 11, 2011, hearing that
they had no further evidence and agreed that the record could be
closed (dkt. no. 24 at 6, R. at 59), Wajler failed to establish
good cause for a sentence six remand. See Parris v. Colvin, No.
2:13-CV-00004-FDW,

2014

WL,

427697,

at

*5

(Feb.

4,

2014

W.D.N.C.))(finding a Court “will not find good cause exists where
a plaintiff creates and submits new evidence after an unfavorable
decision by and ALJ . . . in an attempt to get a proverbial second
bite at the apple with a more favorable ALJ. To permit otherwise
would be a waste of judicial economy.”) (Dkt. No. 24 at 6).
In

Wilkins v. Secretary, 953 F.2d 93-5 (4th Cir. 1991), the

Fourth Circuit determined that the Appeals Council must consider
evidence submitted to it if the evidence is (a) new, (b) material,
and (c) relates to the period on or before the date of the ALJ’s
decision.
Heckler,

(Emphasis
777

F.2d

added.)
954-5

Prior

(4th

Cir.

to

Wilkins,

1985),

the

in

Borders

Fourth

concluded:
A reviewing court may remand a Social Security
case to the Secretary on the basis of newly
24

v.

Circuit

WAJLER V. COMMISSIONER OF SOCIAL SECURITY

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MEMORANDUM OPINION AND ORDER ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
discovered evidence if four prerequisites are
met. The evidence must be ‘relevant to the
determination of disability at the time the
application was first filed and not merely
cumulative.’ Mitchell v. Schweiker, 699 F.2e
185, 188 (4th Cir. 1983). It must be material
to the extent that the Secretary’s decision
‘might reasonably have been different’ had the
new evidence been before her. King v.
Califano, 599 F.2d 597, 599 (4th Cir. 1979);
Sims v. Harris, 631 F.2d 26, 28 (4th Cir.
1980). There must be good cause for the
claimant’s failure to submit the evidence when
the claim was before the Secretary, 42 U.S.C.
§ 405(g), and the claimant must present to the
remanding court ‘at least a general showing of
the nature’ of the new evidence. King, 599
F.2d at 599. (Emphasis added).
The evidence submitted by Wajler in support of his motion to
remand fails to satisfy all of the criteria for a sentence six
remand; it does not relate to the time period on or before the date
of the ALJ’s decision, nor does it relate to the time period
considered by the ALJ. Thus, it is not material.
VIII. CONCLUSION
Upon examination of Wajler’s objections, it appears he has not
raised any issues that were not thoroughly considered by Magistrate
Judge Trumble in his R&R. Moreover, the Court, upon an independent
de novo consideration of all matters now before it, is of the
opinion that the R&R accurately reflects the law applicable to the

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facts

and

circumstances

before

the

court

in

this

action.

Therefore, it ACCEPTS the R&R in whole and ORDERS that this civil
action be disposed of in accordance with the recommendation of the
magistrate judge.
1.

Accordingly, it

GRANTS the defendant's motion for Summary Judgment (dkt
no. 16) ; and

2.

DENIES Wajler’s motion for Summary Judgment (dkt. no.
13).

The Court also DENIES Wajler’s motion to remand, (dkt. no. 22)
and DISMISSES this civil action WITH PREJUDICE and RETIRES it from
the docket of this Court.
Pursuant to Fed.R.Civ.P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Order to counsel of record.
DATED: September 19, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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