Smith v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Plaintiff's 12 Motion for Summary Judgment is denied; Commissioner's 14 Motion for Summary Judgment is granted; Plaintiff's 17 Objections are overruled; Magistrate Seibert's 16 Report and Recommendation is adopted; and the decision of the ALJ is affirmed. This matter is stricken from the active docket. Signed by Chief Judge John Preston Bailey on 4/24/12. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

KAREN NICOLE SMITH,
Plaintiff,
v.

Civil Action No. 2:11-CV-32
(BAILEY)

MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
I.

Introduction
On this day, the above-styled matter came before this Court for consideration of the

Report and Recommendation (“R&R”) of United States Magistrate Judge James E. Seibert
[Doc. 16] and the plaintiff’s Objections thereto [Doc. 17].

Pursuant to 28 U.S.C. §

636(b)(1)(C), this Court is required to understake a de novo review of those portions of the
magistrate judge’s findings to which objection is made. However, failure to file objections
permits the district court to review the R&R under the standards that the district court
believes are appropriate, and under these circumstances, the parties’ right to de novo
review is waived. See Webb v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Accordingly,
this Court will conduct a de novo review only as to those portions of the R&R to which the
plaintiff objected. The remaining portions of the R&R will be reviewed for clear error. As
a result, it is the opinion of this Court that the R&R should be ADOPTED.

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II.

Background
Smith originally filed for disability Insurance on September 25, 2007, alleging

disability since December 31, 2002. (Tr. 143). The application was denied on November
27, 2007, and on reconsideration on February 19, 2008. (Tr. 88-89, 101). The Claimant
requested a hearing before an ALJ and received yet another adverse decision, finding that
she was not under a disability within the meaning of sections 216(l) and 223(d) of the Social
Security Act through March 31, 2005, the last date insured, and that during the relevant
time period, Claimant retained the residual functional capacity (“RFC”) to perform light
exertional work that required no high production rates or quotas; no more than occasional
contact with co-workers, supervisors, or the general public; and permitted for a fifteen
minute break in the morning and afternoon and, if caught up on work, an additional ten
minute break in the morning and afternoon, with no more than five breaks in an eight-hour
work day. (Tr. 16-18, 159). The ALJ also found that her RFC would not have prevented
her from performing her past work as a secretary or bookkeeper. (Tr. 22). In light of the
above, the Claimant requested review by the Appeals Counsel, but was denied. (Tr. 1, 10).
Having exhausted her administrative remedies, Claimant now seeks review in this Court.
On April 19, 2011, the plaintiff filed her Complaint [Doc. 1] seeking judicial review
of an adverse decision by the Commissioner of Social Security pursuant to 42 U.S.C. §
405(g). Pursuant to the Local Rules, this case was referred to Magistrate Judge Seibert
for a recommended disposition. On August 1, 2011, the plaintiff moved for Summary
Judgment [Doc. 12]. In response, the defendant moved for Summary Judgment on August
29, 2011 [Doc. 14]. In support of her motion, the plaintiff asserts two claims of error on the
part of the Administrative Law Judge (“ALJ”). On cross motion for summary judgment, the
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defendant responds to each claim and argues that the ALJ’s decision is supported by
substantial evidence.
First, the plaintiff argues that the ALJ erred in failing to determine Claimant’s ability
to work on a regular and continuous basis as required by the Commissioner’s regulations
([Doc. 16] at 10). Instead, the plaintiff asserts that the ALJ failed to adequately determine
the frequency with which she was required to use the restroom facilities [Doc. 17]. In
response, the defendant contends that the ALJ reasonably accounted for Claimant’s
limitations arising from her bladder impairment when assessing her RFC. [Doc. 16].
Second, the plaintiff alleges that the ALJ conducted an improper assessment of
credibility in formulating her residual functional capacity (“RFC”). Id. In particular, the
plaintiff argues that the ALJ improperly relied upon past employment as a babysitter,
bookkeeper, and secretary. Plaintiff argues these positions were part-time in nature, which
does not constitute evidence that she can perform substantial gainful activity.

The

defendant responds that the ALJ reasonably found that Claimant’s subjective complaints
of pain and functional limitations were not credible. Id.
On August 31, 2011, Magistrate Judge Seibert rejected both of the plaintiff’s claims
of error and recommended that the plaintiff’s motion [Doc. 12] be denied, that the
defendant’s motion [Doc. 14] be granted, and that the ALJ’s decision be affirmed. ([Doc.
16] at 2). First, the magistrate judge concluded that “the record is fully and fairly developed
on the issue of whether Claimant is able to work on a regular and continuous basis even
with her urinary frequency, and it is fully developed as to why the ALJ discredited
Claimant’s statements as to the frequency with which she needs to use the restroom.” Id.
at 13-14. Specifically, the magistrate judge determined that the ALJ noted that Claimant
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testified that her symptoms improved after beginning to take a medication called Elmiron,
and the ALJ gave weight to this evidence. Id. at 14. Further, the magistrate judge noted
that although Claimant went to several doctors with various urinary problems, there is no
evidence that the Claimant ever complained to her doctors that she needed to urinate every
ten to fifteen minutes; in the absence of such evidence, the magistrate concluded the ALJ
could properly discredit her testimony to the contrary. Id. In addition, the ALJ noted that
Claimant’s part-time work at a daycare prior to being prescribed Elmiron “supports her
ability to work at the [RFC] which with the additional limitations fully accommodates her
symptoms relating to this impairment.” Id. Therefore, the magistrate judge recommends
there was no need for the ALJ to factor a higher frequency of bathroom breaks into his RFC
analysis. As such, the magistrate judge found the ALJ’s determination as to Claimant’s
RFC and his determination that she could return to her past employment as a secretary or
bookkeeper is supported by substantial evidence. Id.
Next, the magistrate judge held that the ALJ had properly determined that the
Claimant’s statements concerning her symptoms were not fully credible. Id. In particular,
the magistrate judge found that the ALJ appropriately followed the two-step process
required to determine whether a person is disabled by pain or other symptoms; that is, first,
the ALJ must expressly consider whether the claimant has demonstrated by objective
medical evidence an impairment capable of causing the degree and type of pain alleged;
and second, once this threshold determination has been made, the ALJ must consider the
credibility of her subjective allegations of pain in light of the entire record. Craig v. Chater,
76 F.3d 585 (4th Cir. 1984). The ALJ concluded the Claimant retained the ability to
perform a limited range of light work. He found that while she suffered from medically
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determinable impairments capable of causing “some of the alleged symptoms,” the
statements as to the severity and frequency of her symptoms were not credible to the
extent they were inconsistent with the RFC assessment. The magistrate judge noted that
the ALJ’s credibility determination resulted from a lengthy consideration of the entire record,
including medical evidence, hearing testimony, and the Claimant’s daily activities during the
relevant time period. “Because hearing officers are in the best position to see and hear the
witnesses and assess their forthrightness,” the reviewing court “will reverse an ALJ’s
credibility determination 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)). Finding no such patent error, the magistrate judge opined that the ALJ’s
credibility determination shall stand.
III.

Applicable Standards
A.

Judicial Review of an ALJ Decision

“Judicial review of a final decision regarding disability benefits is limited to
determining whether the findings . . . are supported by substantial evidence and whether
the correct law was applied. See 42 U.S.C. § 405(g). ‘The findings . . . as to any fact, if
supported by substantial evidence, shall be conclusive.’ Richard v. Perales, 402 U.S. 389,
390, 91 S.Ct. 1420, 1422 (1971); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The phrase ‘supported by substantial evidence’ means ‘such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.’ See Perales, 402
U.S. at 401, 91 S.Ct. at 1427 (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S.Ct. 206, 216 (1938)). Substantial evidence . . . consists of more than a mere

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scintilla of evidence but may be somewhat less than a preponderance . . .. Thus, it is not
within the province of a reviewing court to determine the weight of the evidence, nor is it
the court’s function to substitute its judgment . . . if the decision is supported by substantial
evidence. See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966); Snyder v.
Ribicoff, 307 F.2d 518, 529 (4th Cir. 1962). Ultimately, it is the duty of the administrative
law judge reviewing a case, and not the responsibility of the courts, to make findings of fact
and to resolve conflicts in the evidence. King v. Califano, 599 F.2d 597, 599 (4th Cir.
1979). ‘This Court does not find facts or try the case de novo when reviewing disability
determinations.’ Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976).” Hays
v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
B.

Five-Step Evaluation Process

To determine whether a claimant is disabled, the ALJ considers the following fivestep evaluation process:
Step One:

Determine whether the claimant is engaging in substantial
gainful activity;

Step Two:

Determine whether the claimant has a severe impairment;

Step Three: Determine whether the claimant has a listed impairment (20
C.F.R. Pt. 404, Subpt. P, App. 1) and conduct a Residual
Functional Capacity (“RFC”) assessment;
Step Four:

Consider the RFC assessment to determine whether the
claimant can perform past relevant work; and

Step Five:

Consider the RFC assessment, age, education, and work
experience to determine whether the claimant can perform any
other work.

See 20 C.F.R. § 404.1520 (2011).

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IV.

Discussion
In her Objections [Doc. 17], timely filed on September 9, 2011, the plaintiff takes

issue with the analysis of the magistrate judge. This Court will address these objections
as they relate to each of the plaintiff’s claims of error discussed above. In so doing, the
Court will determine, de novo, whether either claim of error necessitates a finding that the
ALJ’s decision is not supported by substantial evidence.
A.

The ALJ’s Determination Regarding Claimant’s RFC

In her Objection, the plaintiff argues that the magistrate judge’s recommendation is
legal error in his conclusion that the ALJ’s determination of her RFC was correct. The
Administrative Law Judge concluded that the claimant could perform work at the light level
of physical exertion with the following restriction: “allows for a 15-minute break in the
morning and the afternoon and if caught up with work an additional 10-minute break in the
morning and afternoon, with no more than five breaks in an eight-hour workday.” (Tr. 18,
Finding No. 5). Thus, the plaintiff argues that the ALJ found that the claimant would need
up to five breaks in an eight-hour workday.
Eugene Czuczman, the vocational expert at the hearing, testified that if the claimant
were required to utilize all five of the breaks indicated in the ALJ’s RFC assessment,
including times in which the employee was not caught up, “and they are taking those
additional breaks and they’re doing it consistently, say three times out of the week, within
a couple of weeks, they are going to be fired.” (Tr. 81).
Residual functional capacity is the “maximum degree to which the individual retains
the capacity for sustained performance of the physical-mental requirements of jobs.” 20

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C.F.R., Part 404, Subpart P, Appx. 2, § 200.00(c) (2010). When determining residual
functional capacity, the Commissioner must evaluate the claimant’s “ability to work on a
sustained basis.” 20 C.F.R. § 404.1512(a) (2010).
Therefore, plaintiff’s Objection suggests that based on the testimony of the
vocational expert (“VE”), the ALJ was required to decide how frequently Smith would be
required to have all five bathroom breaks per day. If this were to occur regardless of
whether she was caught up with her work at a frequency of three times per week, the
vocational expert testified that she would be fired. Therefore, the plaintiff argues she would
not be able to perform work on a regular and continuing basis.
The Claimant also objects to the magistrate judge’s rejection of her contention that
the ALJ’s conclusion that her testimony was not credible is not supported by substantial
evidence. Plaintiff asserts that the ALJ concluded only that “[t]he claimant’s medically
determinable impairments could have reasonably been expected to cause some of the
alleged symptoms during the time period in question; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity
assessment.” (Tr. 19).
Based on the above finding, the plaintiff asserts that the medical impairments could
cause some of her symptoms without further identification, and the Court has no way to
know which symptoms were reasonably expected to result from such impairments.
Therefore, the plaintiff concludes that there is no way to evaluate the ALJ’s credibility
finding.
In addition, the plaintiff objects that the ALJ improperly relied on the part-time work
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at a day care from February 2004 to March 2005, two to three days per week, and
babysitting in her home from March to June 2005, to discount her testimony concerning the
severity of her headaches and her need to frequently use the bathroom. Plaintiff argues
the part-time day care and babysitting work was not sufficient to be considered substantial
gainful activity, as the ALJ acknowledged. (Tr. 16, Finding No. 2). The plaintiff cites Smith
v. Heckler, 782 F.2d 1176 (4th Cir. 1986), to show that the ability to perform work part-time
at a level that does not constitute substantial gainful activity is not evidence that the
claimant can perform substantial gainful activity.
Finally, the plaintiff objects that the ALJ found she stopped using depo provera to
relieve her migraine headaches due to concerns about weight gain. (Tr. 20). Instead, she
asserts the treatment records of treating physician shows that she stopped taking depo
provera because she had been diagnosed with osteogenesis imperfect. (Tr. 283).
Based upon the above objections, the plaintiff requests that the magistrate judge’s
recommendation be rejected, that the decision of the Commissioner should be reversed,
and that this matter should be remanded to determine how often the plaintiff would be
required to use the restroom, regardless of whether she was caught up on her work.
Finally, the plaintiff asserts the ALJ should be directed to make a new and specific
credibility determination.
The plaintiff further avers that the ALJ failed to properly consider whether the
combined effect of her impairments medically equaled one of the listed impairments. The
magistrate judge rejected this claim.

The plaintiff objects to the magistrate judge’s

conclusion. For the reasons set out below, and those more fully stated in the R&R, this

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Court OVERRULES the plaintiff’s Objections insofar as they relate to the ALJ’s
consideration of the combined effect of the plaintiff’s impairments.
Step three requires an ALJ to determine whether a claimant’s impairments equal the
level of severity of an impairment described in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (a “listed
impairment”). A claimant has a listed impairment if he or she has an impairment that meets
the requirements of a listing or is medically equivalent to a listed impairment. See 20
C.F.R. §§ 404.1525, 404.1526. An ALJ will find that a claimant’s “impairment(s) meets the
requirements of a listing when it satisfies all of the criteria of that listing, including any
relevant criteria in the introduction, and meets the duration requirement (see § 404.1509).”
20 C.F.R. § 404.1525(c)(3). Alternatively, an ALJ will find that a claimant’s “impairment(s)
is medically equivalent to a listed impairment in appendix 1 if it is at least equal in severity
and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). Medical
equivalence can be found based upon the combined effect of a claimant’s impairments.
Specifically, if a claimant has “a combination of impairments, no one of which meets a
listing . . . , [an ALJ] will compare [the claimant’s] findings with those for closely analogous
listed impairments. If the findings related to [the claimant’s] impairments are at least of
equal medical significance to those of a listed impairment, [an ALJ] will find that [the
claimant’s] combination of impairments is medically equivalent to that listing.” 20 C.F.R.
§ 1526(b)(3).
Here, the plaintiff does not argue that she has one particular impairment that meets
or medically equals a listed impairment. Instead, the plaintiff argues that the ALJ erred by
not considering whether a combination of her impairments medically equaled a listed
impairment. More specifically, the plaintiff argues that the ALJ erred by ignoring medical
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evidence that she suffers from headaches. This Court disagrees.
First, the ALJ explicitly stated in his factual findings that he considered the
combination of all impairments. Specifically, the ALJ appropriately followed the two-step
process required to determine whether a person is disabled by pain or other symptoms;
that is, first, the ALJ must expressly consider whether the claimant has demonstrated by
objective medical evidence an impairment capable of causing the degree and type of pain
alleged; and second, once this threshold determination has been made, the ALJ must
consider the credibility of her subjective allegations of pain in light of the entire record.
Craig v. Chater, 76 F.3d 585 (4th Cir. 1984). The ALJ concluded the Claimant retained
the ability to perform a limited range of light work. He found that while she suffered from
medically determinable impairments capable of causing “some of the alleged symptoms,”
the statements as to the severity and frequency of her symptoms were not credible to the
extent they were inconsistent with the RFC assessment.
The magistrate judge noted that the ALJ’s credibility determination resulted from a
lengthy consideration of the entire record, including medical evidence, hearing testimony,
and the Claimant’s daily activities during the relevant time period. It is well settled that
“[b]ecause hearing officers are in the best position to see and hear the witnesses and
assess their forthrightness,” the reviewing court “will reverse an ALJ’s credibility
determination 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)).
Important to this determination, this Court notes that although the Claimant went to several
doctors alleging various urinary problems, there is no evidence that the Claimant ever

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complained to her doctors regarding her alleged need to urinate every ten to fifteen
minutes, and with such an absence, the ALJ could discredit her testimony to the contrary.
(Tr. 267, 317, and 648). The Claimant attempts to categorize the ALJ’s findings as
“boilerplate language” instead of specific reasons for his finding on credibility. To the
contrary, while the Claimant attempts to minimize the ALJ’s credibility assessment, the
record reflects the ALJ spent nearly three pages of findings deliniating evidence supporting
his credibility finding that the Claimant’s statements as to the severity and frequency of her
symptoms were not credible to the extent they are inconsistent with the RFC assessment.
(Tr. 19-22). Thus, finding no such patent error, the magistrate judge opined that the ALJ’s
credibility determination shall stand. Likewise, this Court will not disrupt these findings.
“The language of 20 C.F.R. § 404.1526 does not state that the ALJ must articulate,
at length, the analysis of the medical equivalency issue. It states that the ALJ should review
all evidence of impairments to see if the sum of impairments is medically equivalent to a
‘listed impairment.’” Bledsoe v. Barnhart, 165 Fed.Appx. 408, 411 (6th Cir. 2006). Based
upon the above, this Court finds that the ALJ complied with 20 C.F.R. § 404.1526. That
the ALJ did not spell out every fathomable consideration is not reversible error. See
Bledsoe, 165 Fed.Appx. at 411 (“The ALJ did not err by not spelling out every
consideration that went into the step three determination.”).
Therefore, this Court cannot find unsupported by substantial evidence the ALJ’s
decision that the combined effect of the plaintiff’s impairments did not medically equal a
listed impairment. Accordingly, this Court agrees with the magistrate judge that the ALJ
did not err in his consideration of the plaintiff’s impairments at step three.

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B.

ALJ’s Credibility Analysis

In her motion, the plaintiff alleges that the ALJ improperly relied upon her daily
activities and lack of medical treatment or medications to discredit her subjective
complaints. The magistrate judge rejected this claim. The plaintiff objects to the magistrate
judge’s conclusion. For the reasons set out below, and those more fully stated in the R&R,
this Court OVERRULES the plaintiff’s Objections insofar as they relate to the ALJ’s
credibility determination.
An ALJ’s credibility analysis is a two-step process:
First, the adjudicator must consider whether there is an underlying medically
determinable physical or mental impairment(s) . . . that could reasonably be
expected to produce the individual’s pain or other symptoms . . ..
Second, . . . the adjudicator must evaluate the intensity, persistence, and
limiting effects of the individual’s ability to do basic work activities.
SSR 96-7p; 1996 WL 374186, *2.
Such considerations the ALJ may consider include:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. 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 or 20 minutes every hour, or sleeping on a board); and

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7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p; 1996 WL 374186, *3.
This Court finds no error in the ALJ’s consideration of the plaintiff’s daily activities.
In so doing, this Court notes that such a consideration is explicitly contemplated by the first
factor listed above. See SSR 96-7p; 1996 WL 374186, *3. In addition, this Court finds no
indication of the type of selective citation condemned in Hines v. Barnhart, 453 F.3d 559
(4th Cir. 2006). In Hines, the Fourth Circuit affirmed a district court which found that an
ALJ erred when he selectively cited evidence concerning the daily activities of a claimant
suffering from sickle cell disease. Id. at 565-66. In particular, the ALJ cited that the
claimant raked his yard and cut his grass, occasionally did repairs such as fixing a door
knob, and was active in his church as a deacon. Id. at 566. The Court found that this was
selective citation because the ALJ improperly ignored the claimant’s testimony that he
“[r]akes the yard or tries mowing the grass [but] when [he] start[s] to feel bad [he] stop[s]
and finish[es] up – maybe tr[ies] to finish up the next day . . ..” Id. The Court found further
selective citation in that the claimant had actually testified that he “probably” would “try to
fix . . . a doorknob” and that he attends church only two or three times a month. Id. Unlike
in Hines, the plaintiff has failed to provide evidence of any significant qualifications to the
daily activities relied upon that the ALJ ignored to discredit the plaintiff’s subjective
complaints. Moreover, this case is also distinguishable from Hines in that the ALJ here
relied upon the plaintiff’s lack of medical treatment in addition to her daily activities.
For these reasons, this Court finds that substantial evidence supports the ALJ’s
credibility determination. Accordingly, this Court agrees with the magistrate judge that the
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ALJ appropriately considered the plaintiff’s lack of credibility concerning the intensity,
persistence, and limiting effects of her ability to do basic work activities.
C.

ALJ’s Consideration of Treating Source Opinions
1.

Eugene Czuczman’s Opinion

In her motion, the plaintiff asserts that the ALJ failed to properly consider the treating
source opinion of Eugene Czuczman, the vocational expert at the hearing. The magistrate
judge rejected this assertion. The plaintiff objects to the magistrate judge’s conclusion. For
the reasons set out below, and those more fully stated in the R&R, this Court OVERRULES
the plaintiff’s Objections insofar as they relate to the ALJ’s consideration of Eugene
Czuczman’s opinion.
In evaluating the opinions of treating sources, an ALJ must generally give more
weight to the opinion of a treating physician because the physician is most able to provide
“a detailed, longitudinal picture” of a claimant’s alleged disability. See 20 C.F.R. §
404.1527(d)(2). Nevertheless, a treating physician’s opinion is afforded “controlling weight
only if two conditions are met: (1) that it is supported by clinical and laboratory diagnostic
techniques and (2) that it is not inconsistent with other substantial evidence.” Ward v.
Chater, 924 F.Supp. 53, 55 (W.D. Va. 1996); see also 20 C.F.R. § 404.1527(d)(2).
If the ALJ determines that a treating physician’s opinion should not be accorded
controlling weight, the ALJ must then analyze and weigh all the evidence of record, taking
into account the factors listed in 20 C.F.R. § 404.1527(d)(2)-(6). These factors include: (1)
length of the treatment relationship and frequency of evaluation, (2) nature and extent of
the treatment relationship, (3) supportability of the opinion, (4) consistency between the

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opinion and the record as a whole, (5) whether the treatment source is opining within his
or her specialization, and (6) any other factors which tend to support or contradict the
opinion. In addition, the regulations state that the Commissioner “will always give good
reasons in our notice of determination or decision for the weight we give your treating
source’s opinion.” § 404.1527(d)(2). In this regard, Social Security Ruling 96-2p provides
that those decisions “must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” SSR 96-2p, 1996 WL 374188, *5.
Therefore, this Court cannot conclude that the ALJ’s decision to attribute little weight
to the VE’s opinion is unsupported by substantial evidence. Accordingly, this Court agrees
with the magistrate judge that the ALJ properly considered the opinion.
The plaintiff argues that the ALJ committed reversible error by not more specifically
discussing Eugene Czuczman’s opinion and stating reasons for rejecting his conclusions.
This Court disagrees.
The regulations define a claimant’s RFC as “the most [a claimant] can still do despite
[his or her] limitations.” See 20 C.F.R. § 1545(a)(1). In assessing a claimant’s RFC, an
ALJ will consider “all of the relevant medical and other evidence,” such as ”any statements
about what [the claimant] can still do that have been provided by medical sources . . ..” §
404.1545(a)(3). This includes statements about the claimant’s ability to “perform certain
physical demands of work activity, such as sitting, standing, [and] walking . . ..” §
404.1545(b). Upon formulating a claimant’s RFC, the ALJ must determine whether a
significant number of jobs exist in the national economy that have requirements which the
claimant is able to meet despite his or her RFC. See § 404.1566(b). In so determining, the
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ALJ may use the services of a vocational expert, who may offer expert testimony in
response to a hypothetical question about whether a person with the claimant’s RFC can
meet the demands of his or her past relevant work or other suitable work in the national
economy. See §§ 404.1560(b, (c), and 404.1566(e). In the Fourth Circuit, an ALJ “has
great latitude in posing hypothetical questions and is free to accept or reject suggested
restrictions so long as there is substantial evidence to support the ultimate question.”
Koonce v. Apfel, 1999 WL 7864, *5 (4th Cir. Jan. 11, 1999) (citing Martinez v. Heckler,
807 F.2d 771, 774 (9th Cir. 1986)). Here, the VE concluded that if the plaintiff was required
to take five (5) breaks to use the restroom during an eight (8) hour workday, she would be
fired. (Tr. 81). This Court, the Magistrate Judge, and the ALJ, all seem to agree this
contention is completely unfounded and not uncommon. Accordingly, this Court agrees
with the magistrate judge that the ALJ properly accounted for the same.
IV.

Conclusion
Upon careful consideration, it is the opinion of this Court that the magistrate judge’s

Report and Recommendation [Doc. 16] should be, and hereby is, ADOPTED. Further, the
plaintiff’s Objections [Doc. 17] are OVERRULED. Therefore, this Court ORDERS that the
Plaintiff’s Motion for Summary Judgment [Doc. 12] is hereby DENIED, and the Defendant’s
Motion for Summary Judgment [Doc. 14] is hereby GRANTED. As such, the decision of
the ALJ is hereby AFFIRMED. Accordingly, the Court hereby ORDERS that this matter be
STRICKEN from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record.

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DATED: April 24, 2012.

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