Ashcraft v. Commissioner of Social Security et al

Filing 17

MEMORANDUM OPINION AND ORDER Adopting 15 Report and Recommendation and Overruling 16 Objections: denying 10 Plaintiff's Motion for Summary Judgment; granting 12 Defendant's Motion for Summary Judgment. The final decision of the Commissioner is AFFIRMED. This case is DISMISSED from the Court's active docket. Signed by District Judge Gina M. Groh on 4/26/2013. (cmd)

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

AMY C. ASHCRAFT,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-CV-113
(JUDGE GROH)

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION AND OVERRULING OBJECTIONS
Plaintiff, Amy C. Ashcraft, filed an action in this Court on September 26, 2012,
seeking judicial review of an adverse decision by the defendant, Commissioner of Social
Security, pursuant to 42 U.S.C. § 405(g). The case was referred to United States
Magistrate Judge James E. Seibert for submission of proposed findings of fact and
recommendation for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B).
Defendant filed an answer to Plaintiff’s Complaint on December 17, 2012. Plaintiff filed a
motion for summary judgment on January 11, 2013. Defendant filed its motion for
summary judgment on February 11, 2013.
On March 12, 2013, Judge Seibert filed his report and recommendation for
disposition. The Report and Recommendation stated that if the parties objected to any
portion of his proposed findings of fact and recommendation for disposition, they must file
written objections within fourteen days after being served with a copy of the Report and

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Recommendation. On March 22, 2013, Plaintiff filed her written objections to the Report
and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make 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 Report and
Recommendation under the standard 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). Therefore, this Court will conduct a de novo
review only as to those portions of the Report and Recommendation to which Plaintiff
objected. The remaining portions of the Report and Recommendation will be reviewed for
clear error.
I.

Background

A. Procedural History
In October 2008, Plaintiff filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”). Plaintiff claimed she was disabled
since September 2, 2007 due to anxiety, bipolar disorder, and neck and shoulder
problems. R. at 143. Plaintiff’s applications were initially denied on February 9, 2009
and upon reconsideration April 13, 2009. R. at 11. On June 17, 2009, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). Id. On November 2,
2010, the ALJ held the hearing, and Plaintiff signed a waiver of her right to be
represented by counsel and proceeded to testify at the hearing. Id. Also, Dwight
McMillion, an impartial Vocational Expert (“VE”), appeared at the hearing. Id.

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On January 5, 2011, the ALJ issued her decision finding that Plaintiff was not
disabled. Plaintiff appealed the decision to the Appeals Council, which denied review of
the ALJ’s decision, making the ALJ’s decision the final decision of the Commissioner.
Then, Plaintiff filed this action.
B. Factual Background
1. Personal History
Plaintiff was born in 1978. She is married, and she has one son from a previous
marriage. She graduated high school, completed a two year vocational program where
she received an early childhood education degree, and completed three years at
Fairmont State University towards a degree in graphic design. R. at 39, 150-51. In the
past fifteen years, she worked as a graphic designer, waitress, construction laborer, and
storm chaser. R. at 39. She also previously volunteered at her church, helping with
vacation Bible school every year. R. at 40. Plaintiff stated she became disabled on
September 2, 2007. R. at 41.
2. Mental Health Medical History
Plaintiff was initially given Xanax by her treating doctor to help with her nerves.
R. at 260. However, in November 2005, she was referred to a psychiatrist. Id. Claimant
had five appointments with the United Summit Center, a behavioral health center, from
January 2006 to January 2007. On January 27, 2006, in her initial psychiatric intake
evaluation, performed by Richard Cook, PAC, she complained of “racing thoughts,
irritability, and poor sleep” that interfered with her college courses. R. at 260. Plaintiff
reported a history of panic attacks and depression. Id. Dr. Cook’s impression was that
Plaintiff suffered from Mood Disorder NOS and untreated general anxiety disorder and
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mood disorder. Id.
On March 27, 2006, Plaintiff had a 90-day follow up appointment at the United
Summit Center. John Stevens, M.A., reported that Plaintiff has “made some progress”
and that “her mood has improved.” R. at 255. At this point, Plaintiff seemed to be doing
well in therapy, although she still had difficulty sleeping and concentration problems. Id.
At the 180-day follow up appointment on June 22, 2006, Mr. Stevens stated that
Plaintiff had “made some progress, her mood has improved and her panic attacks have
decreased to mild.” R. at 246. Plaintiff reported that the medicine prescribed by the
United Summit Center helped her think more clearly, but that she still had difficulty
sleeping, relaxing, and concentrating. Id.
On October 11, 2006, Plaintiff had a 270-day follow up appointment. R. at 239.
It was reported that she had made some progress in the past 90 days. Her anxiety and
withdrawal decreased to moderate. Id. However, she still had occasional panic attacks.
Id. Mr. Stevens noted that although her mood seemed a bit depressed, her thought
process was logical and coherent and her thought content was organized. Id.
The last report from the United Summit Center is dated January 12, 2007. R. at
225. The report noted that Plaintiff’s condition had deteriorated, and further treatment
for her diagnosed Panic Disorder without Agoraphobia and Bipolar Disorder was
prescribed. R. at 225-30.
Jennifer Robinson, M.A., conducted a consultative examination of Plaintiff on
January 12, 2009. R. at 346. Ms. Robinson described how Plaintiff’s bipolar disorder
and anxiety affected her daily life, including lethargy, mood swings, and inability to focus
on tasks. Ms. Robinson noted that Plaintiff “displayed good hygiene and grooming,”
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and had good eye contact and fair insight. R. at 348. Ms. Robinson noted that
Plaintiff’s immediate memory, remote memory, and concentration were within normal
limits. Id. However, her recent memory was severely deficient. Id. Ms. Robinson’s
diagnosis was bipolar disorder, moderate depression, and anxiety disorder, not
otherwise specified. Id.
On January 26, 2009, state agency mental health expert Jim Capage, Ph.D.,
reviewed the record and completed a psychiatric review technique form (PRTF) and
mental residual functional capacity (RFC) assessment. R. at 354. Dr. Capage found
mild restriction of activities of daily living and moderate difficulties in both maintaining
social functioning and maintaining concentration, persistence, or pace. R. at 364. Dr.
Capage found no episodes of decompensation. Id. Dr. Capage noted that the evidence
supported Plaintiff’s statements regarding her mental impairments, but not the degree of
limitation. R. at 366. Thus, Dr. Capage found Plaintiff not fully credible. Id.
Dr. Capage’s RFC concluded that Plaintiff was not markedly limited in any of the
four categories: understanding and memory; sustained concentration and persistence;
social interaction; and adaptation. R. at 368-69. Dr. Capage summarized his findings
as follows:
[Plaintiff’s] mental impairments are severe but do not meet nor equal the
Listings [of Impariments]. Ratings of Part I of this Form indicate that the
[Plaintiff] retains the mental-emotional capacity to perform routine workrelated activities in a low-pressure setting. She can manage infrequent
and superficial contact with coworkers and supervisors, but given her
penchant for mood swings and irritability, it seems that she would work
best in more of a socially-isolated setting that deals with things rather than
people.
R. at 370.

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3.

Physical Health History

In November 2005, several x-rays of Plaintiff’s spine were taken that revealed
normal results. R. at 305. Between 2005 to 2007, Plaintiff regularly saw her treating
physician, John Manchin, II, D.O. R. at 276-322. In her visits to Dr. Manchin, Plaintiff
complained about back, neck, and shoulder pain. Dr. Manchin treated Plaintiff with pain
medication. On February 16, 2007, Plaintiff went to the emergency room at Ruby
Memorial Hospital complaining of abdominal pain. R. at 262. She also reported having
nausea, vomiting, diarrhea, constipation, and bloody stool. R. at 263. She was
prescribed medication for her symptoms. R. at 319. On February 23, 2007, Plaintiff
visited Dr. Palmer. He prescribed medication to help with the nausea and vomiting.
On March 13, 2007, Plaintiff went to the West Virginia University Digestive
Disease Clinic. R. at 319. The doctor recommended that Plaintiff continuing taking
Nexium to relieve her gastrointestinal symptoms. R. at 320-21. Plaintiff was diagnosed
with irritable bowel syndrome, and the doctor ordered an EGD to rule out peptic ulcer
disease. R. at 321. On March 23, 2007, an upper endoscopy was performed, and the
procedure revealed antral gastritis and mild bulbar duodenitis. R. at 317.
On May 1, 2007, Plaintiff visited the West Virginia University Department of
Orthopaedics, on referral from the West Virginia University Emergency Department. R.
at 326. Plaintiff complained of a neck pain in her left side radiating into her shoulder. R.
at 328. The doctor’s impression was cervicalgia, neck sprain, scoliosis, left rotator cuff
syndrome, lumbar sprain, and left cervical radiculopathy. Id. Plaintiff was put on an
exercise plan, including a walking program, given a prescription patch for her neck and
back, and recommended for professional massages once a week for eight weeks. Id.
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The doctor also ordered an MRI of the cervical spine. Id. The MRI revealed “[v]ery mild
degenerative change at the C4-C5 level but no evidence for acute injury to the cervical
spine.” R. at 330. Also in May 2007, a MRI completed on her left shoulder produced no
abnormalities. R. at 332. In July 2007, Dr. Matthew P. Darmelio offered to treat
Plaintiff’s shoulder and neck pain with a cortisone injection, however he decided to first
treat with alternative occupational therapy. R. at 333.
In 2007, Plaintiff also saw Dr. Kevin Clarke. R. at 338-340. Dr. Clarke assessed
Plaintiff as being bipolar and having a left rotator cuff tear. Id. Plaintiff was treated with
a Marcaine injection to her left shoulder. Dr. Clarke also prescribed several different
medications for Plaintiff’s bipolar disorder and referred her to an orthopedist. Id.
In 2008, Plaintiff returned to Dr. Manchin’s office and continued treatment for the
same issues described earlier. R. at 341-45, 411-423.
On January 21, 2009, Plaintiff had a consultative examination with Stephen
Nutter, M.D. Doctor Nutter noted that Plaintiff had a normal gait, did not require a
handheld assistive device, appeared stable at station and comfortable in the supine and
sitting position, and had normal intellectual functioning. R. at 351. He also noted that
her recent and remote memory for medical events was good. Id. Doctor Nutter noted
that Plaintiff’s right shoulder showed signs of crepitus, mild tenderness and pain with
movement and her left shoulder showed evidence of crepitus, moderate tenderness and
pain with movement. R. at 352. The doctor did not notice any other redness, warmth,
swelling, tenderness, crepitus or laxity in the upper extremity joints. Id. Doctor Nutter’s
impression was Plaintiff had degenerative arthritis and chronic cervical and lumbar
strain with no evidence of radiculopathy. R. at 353. Doctor Nutter concluded that
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Plaintiff had a range of motion abnormalities of the cervical and lumbar spine, however,
her straight leg raise test was negative, she had no sensory abnormalities, and her
reflexes and muscle strength testing was normal. Id.
On February 6, 2009, Fulvio Franyutti, M.D. submitted a physical residual
capacity assessment, finding that Plaintiff’s alleged limitations were partially supported
by findings. R. at 377. Therefore, Doctor Franyutti considered Plaintiff only partially
credible. Id. Dr. Franyutti found that Plaintiff could occasionally lift or carry fifty pounds
and frequently lift or carry twenty-five pounds. R. at 373. Also, Plaintiff could stand,
walk, or sit for about six hours in an eight hour workday and had unlimited capacity to
push or pull. Id. Dr. Franyutti also noted that Plaintiff should only occasionally climb
ramps and stairs or crawl and she should never climb ladders, ropes, or scaffolds. R. at
374. Dr. Franyutti found no manipulative, visual, or communicative limitations. R. at
375-76. Last, Dr. Franyutti found that Plaintiff should avoid concentrated exposure to
extreme cold or heat and should avoid concentrated exposure to hazards (machinery,
heights, etc.). R. at 376.
In 2010, Plaintiff was also treated by chiropractor George Higgs, D.C. R. at 394410. Dr. Higgs completed several tests measuring levels of muscle tension and thermal
asymmetries in the spine. Id. The test results were submitted to the ALJ. In November
2010, Dr. Higgs sent a letter to social security describing Plaintiff’s scoliosis and stating
she needs to continue treatment because at that time, she had trouble with most
activities of daily life. R. at 424.
4. Evidence from Hearing with ALJ
On November 2, 2010, ALJ Caroline Beers held a hearing regarding Plaintiff’s
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claim for disability. R. at 26. At the beginning of the hearing, the ALJ thoroughly
explained to Plaintiff, and Plaintiff recognized, that she had a right to be represented by
counsel. R. at 29-33. The ALJ explained that:
Social Security is a very specialized area of the law, and so an individual
who is knowledgeable, if they’re an attorney or a qualified representative,
can usually present–present a better case for you than you can on your
own, not that you can’t do it on your own, of course.
R. at 30. The ALJ went on to explain that attorneys are paid through a contingency fee,
“[m]eaning, that unless they win the case for you, that they don’t get paid.” Id. Also, the
ALJ elaborated that Plaintiff could find an attorney from Legal Aid that would provide
either free or reduced rates for representation. Id. Plaintiff acknowledged that she fully
understood her right to be represented by an attorney at the hearing. R. at 33. Then,
Plaintiff signed a waiver to be represented, and the ALJ proceeded with the hearing. Id.
Plaintiff testified that she studied graphic design for three years in college, but
that she dropped out because of her mental health problems. R. at 37. Plaintiff testified
that her past work consisted of running a graphic design shop, waitressing, construction
laborer, and storm chasing. R. at 39. Plaintiff stated she left her graphic design job
because she was having difficulty controlling her emotions and would get overwhelmed.
R. at 40. Plaintiff explained that she developed her bipolar issues when she was in
school, but she always had neck and shoulder problems. R. at 41.
With regard to her physical health, Plaintiff testified that she has pain in her
shoulders and neck. R. at 42. The ALJ asked Plaintiff what aggravates her neck pain,
and Plaintiff stated that “pretty much anything” makes it worse. R. at 43. Plaintiff stated
she has moderate to severe pain, and she feels that she has a tear in her left arm, but

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the MRI does not reveal one. R. at 45.
With regard to her mental health, Plaintiff testified that she is bipolar and she has
racing thoughts. R. at 47. However, when she watches television shows, she is able to
follow the story line and remember what happened “[f]or a little while.” R. at 48. She is
nervous or anxious in front of crowds or when she is the center of attention. Id.
Although she is not seeing a psychiatrist, she receives Xanax from her regular care
provider. Id.
With regard to her daily activities, Plaintiff is able to take care of her personal
needs and hygiene. R. at 49. She cooks, cleans, and does the laundry for the
household. R. at 49, 51. She tries to attend her son’s school functions, and she usually
takes him to baseball practices and to the school bus stop. R. at 50. She also helps
her son with his homework when she can. R. at 51. Plaintiff is able to use a computer.
Id. Plaintiff also takes care of her pets, visits with family, watches television shows,
reads, and does craft activities, like beading. R. at 52-53
Next, the VE described Plaintiff’s past relevant work, ranging from light to
medium and unskilled to skilled. R. at 54. Then, the ALJ posed the following
hypothetical to the VE:
Let’s assume an individual, a hypothetical individual, who is of the
claimant’s age, education and work history, who can do medium exertional
work, who is limited to occasional climbing of stairs and ropes, I’m sorry,
ramps; stairs and ramps–can’t read my own writing here–who can
occasionally crawl, can never climb ladders, ropes or scaffolds, who
needs to avoid concentrated exposure to extreme cold, heat and hazards
such as moving machinery and heights.
Who can perform simple tasks consistent with SVP-2 entry-level work;
who can make simple work-related decisions with few workplace changes;
can have no contact with the public and occasional contact with
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supervisors and superficial contact with coworkers. Can such a person do
the claimant’s past work?
R. at 55. The VE responded that this hypothetical person could not do Plaintiff’s past
work, but there were a significant number of jobs in the national economy that such a
person could perform. Id. Then, the ALJ added a limitation for occasional reaching in all
directions, bilaterally. R. at 56. The VE answered that this limitation precluded all the
jobs he provided in response to the previous hypothetical. R. at 56-57. Next, the ALJ
changed the hypothetical from reaching in all directions, to occasional overhead
reaching. R. at 57. The VE responded that the limitation did not have a significant
impact on any of the jobs provided in response to the original hypothetical. Id. Last, the
ALJ asked if the original hypothetical person was limited to occasional overhead
reaching, was able to do frequent reaching in all directions, and was able to do frequent
handling, if that would make a difference. Id. The ALJ stated that it would have a slight
impact on the number of some jobs, but that it would not preclude those jobs. Id. Last,
the VE testified that the jobs he listed were consistent with descriptions in the Dictionary
of Occupational Titles. R. at 59.
II.

Applicable Standards

A.

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure governs summary judgment.
See FED. R. CIV. P. 56. Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322,
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106 S. Ct. 2548, 2552 (1986). A genuine issue exists “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). Thus, the Court must
conduct “the threshold inquiry of determining whether there is the need for a trialwhether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of
either party.” Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.
The party opposing summary judgment “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986).
That is, once the movant has met its burden to show an absence of material fact, the
party opposing summary judgment must then come forward with affidavits or other
evidence demonstrating there is indeed a genuine issue for trial. FED. R. CIV. P. 56(c);
Celotex Corp., 477 U.S. at 323-25, 166 S. Ct. at 2552-54; Anderson, 477 U.S. at 248,
106 S. Ct. at 2510. “If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249, 106 S. Ct. at 2511
(citations omitted).
B.

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,

12

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 mind 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 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, 528 F.2d 1054, 1056-57 (4th Cir. 1976).” Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990).
C.

Social Security - Medically Determinable Impairment- Burden

Plaintiff bears the burden of showing that she has a medically determinable
impairment that is so severe that it prevents her from engaging in any substantial gainful
activity that exists in the national economy. 42 U.S.C. § 423(d)(1), (d)(2)(A); Heckler v.
Campbell, 461 U.S. 458, 469 (1983).

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III.

Discussion

Plaintiff has three primary objections: (1) the ALJ did not perform his heightened
duty to the pro se Claimant/Plaintiff,1 (2) the ALJ failed to develop the record, and (3)
the ALJ posed an improper hypothetical to the VE.
A.

The ALJ’s Heightened Duty to the Pro Se Claimant/Plaintiff

In the Fourth Circuit, a claimant, appearing pro se, is “entitled to the sympathetic
assistance of the ALJ to develop the record, to assume a more active role and to
adhere to a heightened duty of care and responsibility.” Crider v. Harris, 624 F.2d 15,
16 (4th Cir. 1980) (internal quotation marks and citation omitted). When a claimant
represents herself pro se, the ALJ must “scrupulously and conscientiously probe into,
inquire of, and explore for all the relevant facts, being especially diligent in ensuring that
favorable as well as unfavorable facts and circumstances are elicited.” Marsh v. Harris,
632 F.2d 296, 299 (4th Cir. 1980) (internal quotation marks and citations omitted). If the
ALJ’s failure to do so results in less than a “full and fair hearing of their claims,” then
“good cause” may exist to remand “for the taking of additional evidence.” Sims v.
Harris, 631 F.2d 26, 27 (4th Cir. 1980). However, when a claimant waives her right to
be represented by counsel, “the Secretary has no duty to insist that claimant have
counsel.” Marsh, 632 F.2d at 299.
“[C]ourts of appeals have found good cause to remand where the administrative
law judge fails diligently to explore all relevant facts especially in cases of uneducated,
pro se claimants and where the absence of counsel appears to prejudice a claimant.”
1

For purposes of this Order, Ms. Ashcraft is referred to as the Plaintiff rather than
as the Claimant.
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Walker v. Harris, 642 F.2d 712, 714 (4th Cir. 1981). In Walker, the claimant was a 54
year old woman with a fourth-grade education. Id. at 713. She appeared
unrepresented at the hearing, which lasted only nineteen minutes. Id. at 714. Claimant
called no witnesses, and “[t]he transcript reflects a barely-coherent, rambling
monologue by her concerning, among other things, cats, chickens, unnatural sexual
acts sought to be performed on her nephew, the death of her sister, and the removal of
her nephew from her home. The administrative law judge made no effort to focus her
testimony on relevant matters.” Id. Therefore, the Fourth Circuit had “no difficulty
concluding that the administrative law judge failed in her duty ‘scrupulously and
conscientiously (to) probe into, inquire of, and explore for all the relevant facts’ in this
case involving an unrepresented, poorly-educated pro se claimant.” Id.
In Marsh, the pro se claimant was illiterate and completed only two months of the
first grade. 632 F.2d at 297. The Court found that the claimant had an “obvious lack of
understanding of the evidence necessary to develop the critical issues” and this
problem was compounded by the absence of an attorney. Id. at 300. The Court
explained that the claimant’s “testimony provided sketchy evidence concerning
nocturnal episodes resulting from his epileptic condition, he was completely unaware of
any necessity for a recent EEG, and he furnished incomplete information about his
ability to perform household chores, the number and frequency of the attacks, and the
effects of his medication.” Id. at 299. Therefore, the ALJ had a duty to fully inquire into
the issues necessary for adequate development of the record, such as evidence
necessary to prove claimant’s epileptic disability, and he failed to do so. Id. at 299-300.

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Accordingly, the case was remanded for further development of the record. Id. at 300.
Upon review of the hearing transcript in this case, it is apparent that the ALJ
“scrupulously and conscientiously prob[ed] into, inquir[ed] of, and explore[d] [] all the
relevant facts . . . .” See id. at 299. First, unlike the nineteen minute hearing in Walker,
Plaintiff’s hearing lasted over an hour. Plaintiff is an educated pro se claimant with
three years of college education–this far surpasses the claimant’s four years of
education in Walker and the claimant’s two months of first grade in Marsh. In 2007,
Plaintiff was pursuing a degree in graphic design. She was able to read, write, and do
math. Plaintiff also received a two year degree in early childhood education.
Second, the ALJ thoroughly explained to Plaintiff, and Plaintiff recognized, that
she had a right to an attorney. The ALJ explained that:
Social Security is a very specialized area of the law, and so an individual
who is knowledgeable, if they’re an attorney or a qualified representative,
can usually present–present a better case for you than you can on your
own, not that you can’t do it on your own, of course.
The ALJ went on to explain that attorneys are paid through a contingency fee. Also,
she elaborated that Plaintiff could find an attorney from Legal Aid that would provide
either free or reduced rates for representation. Thus, Plaintiff had a clear understanding
that she had a right to an attorney and what her options were for finding such
representation. However, Plaintiff elected to proceed and signed a form indicating that
she waived her right to be represented by counsel.
Third, the ALJ also told Plaintiff that if she was lacking certain medical records,
the ALJ could make the request for the documents or hold the record open for Plaintiff
to file the records. Plaintiff stated on the record that she was missing files from Dr.

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Higgs, her chiropractor. Therefore, the ALJ held the record open for Plaintiff to submit
the medical records from Dr. Higgs office, which she did submit and were included in
her file. R. at 424. Also, Plaintiff filed medical records from Dr. John Manchin at the
Manchin Clinic after the hearing for the ALJ to review in making her decision. R. at 415.
Fourth, the ALJ explained on the record in plain language terms–not
legalese–the issue for her to determine and Plaintiff’s burden. Therefore, the ALJ
satisfied her heightened duty to the pro se Claimant, and Plaintiff’s objection is
OVERRULED.
B. Developing the Record
1. Specific Evidence
Judge Seibert stated in his Report and Recommendation that Plaintiff “failed to
point to any specific evidence that would make the ALJ’s decision not based on
substantial evidence.” However, Plaintiff argues that the ALJ’s decision is not based on
substantial evidence because she “cherry-picked” facts from Plaintiff’s medical records,
specifically Exhibit 1F, that were only unfavorable to Plaintiff rather than favorable.
Thus, Plaintiff contends that the “ALJ was acting in an adversarial way by only
advocating that the cherry-picked evidence points to a non-disability.”
Although the ALJ ultimately rendered an unfavorable decision, it does not follow
that the ALJ relied only on unfavorable facts. The ALJ stated that she carefully
considered all the evidence in rendering her opinion, and she attached a list of all the
exhibits in the matter with her decision. R. at 12, 21-25. Additionally, the ALJ
specifically cited to twenty-one exhibits to support her decision. Plaintiff argues the ALJ

17

used only unfavorable facts to the Plaintiff in making her decision. However, a look at
the ALJ’s decision shows otherwise. First, the ALJ relied on Plaintiff’s medical records
to establish that she had “antral gastritis and mild bulbar duodenitis,” was depressed,
and suffered from bipolar and anxiety disorder. R. at 13-14. Additionally, in a physical
examination performed by Dr. Stephen Nutter, Plaintiff’s right shoulder “showed
evidence of crepitus, mild tenderness, and pain with movement” and the left shoulder
“showed evidence of crepitus, moderate tenderness, and pain with movement.” R. at
14. The ALJ also noted in her decision that Plaintiff’s “[i]nsight was fair, and her
judgment skills were markedly deficient. Recent memory was severely deficient.” Id.
The ALJ did not cherry-pick only unfavorable facts to use in her decision, as evidenced
by the numerous favorable facts cited by the ALJ. However, in weighing the evidence,
the ALJ determined that Plaintiff was not disabled because she could perform jobs that
exist in significant numbers in the national and regional economy.
2. Speculative Evidence
Plaintiff objects to Judge Seibert’s contention that she pointed to “merely
speculative evidence concerning what her doctor will say regarding her mental health
treatment.” Plaintiff argues that speculative evidence is enough to get a remand, relying
on Sims v. Harris.
The ALJ has a heightened duty to ensure the claimant receives a full and fair
hearing as guaranteed by 20 C.F.R. §§ 404.927, 416.1441. See Sims, 631 F.2d at 27.
In Sims, the ALJ took “seven pages of transcript to establish claimant’s name, age, and
address for the record.” Id. at 28. Also, the claimant “was confused about how to object

18

to the medical evidence in her file and nearly all of her own testimony concerning her
medical problems was directionless and generally incoherent.” Id. Additionally, the ALJ
was “unfamiliar with claimant’s former job duties and medical ailments, and [the ALJ’s]
inquiries failed to establish the nature of either with any specificity.” Id. The Fourth
Circuit Court of Appeals found that the “absence of counsel created clear prejudice or
unfairness to the claimant.” Id. Therefore, the Fourth Circuit remanded the case for
further fact development including “I.Q. testing, psychological examination, the
possibility of heredity in her daughter’s medical condition, claimant’s work experience
and daily lifestyle, and other medical evidence.” Id.
In this case, the ALJ elicited detailed testimony about Plaintiff’s pain and its
limitations on her lifestyle and work-related abilities. Unlike the laimant in Sims, Plaintiff
in this case answered questions coherently and logically. Plaintiff testified at the
hearing that she could stand and walk around two hours a day and that she could sit
four continuous hours before she had to move around. R. at 46. Also, she could pick
up coins with both hands, turn doorknobs, and reach overhead. R. at 46-47. The ALJ
asked Plaintiff to rate her pain on a scale of 1 to 10 and to explain to her where Plaintiff
felt the pain. The ALJ inquired into Plaintiff’s daily activities, and Plaintiff testified that
she got her son ready for school and occasionally took him to baseball practice,
watched television, read, took care of her pets, maintained her personal hygiene,
prepared simple meals, cleaned the house, did laundry, shopped, drove, did crafts, and
visited with friends and family.
The ALJ asked specific questions regarding Plaintiff’s previous employment, and
it is apparent that the ALJ was familiar with Plaintiff’s work history and medical records.
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Additionally, the ALJ asked additional questions of the VE, as counsel might have done
on behalf of Plaintiff if they had been present, such as by imposing additional
hypothetical limitations regarding Plaintiff’s ability to reach overhead and bilaterally.
C. Dr. Higgs Report
Plaintiff argues that the ALJ erred in failing to develop the record in regards to Dr.
Higgs’, Plaintiff’s chiropractor’s, report. The ALJ discounted Dr. Higgs’ report because it
was from a non-acceptable medical source and his report failed to interpret Plaintiff’s
problems into functional limitations. Plaintiff argues that the ALJ failed to adequately
develop the record by discounting Dr. Higgs’ report because it failed to state Plaintiff’s
functional limitations.
The ALJ did not fail to adequately develop the record. The ALJ kept the record
open after the hearing so Plaintiff could submit the opinion letter and records from her
chiropractor, Dr. Higgs. Also, the ALJ properly afforded Dr. Higgs’ opinion little weight
as he was not an acceptable medical source. See 20 C.F.R. §§ 404.1513(a), (e),
416.913(a), (e). Accordingly, Plaintiff’s objection is OVERRULED.
D. Resolving Conflicting Evidence and Weighing Opinion of Treating
Sources
Plaintiff contends the ALJ incorrectly resolved conflicting evidence as the ALJ
discounted Plaintiff as not credible because her treating source evidence was
inconsistent with the consultative evidence. Additionally, Plaintiff argues the ALJ
incorrectly relied on Dr. Capage’s report, a consultative examiner, as the standard by
which Plaintiff’s problems would be measured. Plaintiff states the ALJ’s decision cannot
be based on substantial evidence because she failed to weigh evidence in the record
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from Plaintiff’s treating sources.
This Court’s review of Plaintiff’s denial of SSI benefits is limited to a
determination of whether the decision was supported by substantial evidence. 42
U.S.C. § 405(g); see Russell v. Barnhart, 58 Fed. Appx. 25, 27 (4th Cir. 2003). An
ALJ’s decision is based on substantial evidence if it is supported by “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206 (1938)). It
“consists of more than a mere scintilla of evidence but may be somewhat less than a
preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). “‘In reviewing
for substantial evidence, [the court should not] undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute [its] judgment . . . .’” Russell, 58
Fed. Appx. at 23 (citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). Therefore,
the Court will not disturb the ALJ’s decision regarding the conflicting evidence so long
as it is based on substantial evidence.
First, Plaintiff argues that the ALJ did not sufficiently weigh the United Summit
Center’s report because the ALJ relied only on unfavorable information. As an initial
matter, the Court notes that the 2006 records from the United Summit Center on which
Plaintiff relies falls outside the period relevant in this case. Notwithstanding, the ALJ’s
decision cited to Exhibit 1F, the medical records from the United Summit Center,
indicating that she indeed reviewed the records. The ALJ noted that “[w]hile in mental
health treatment in 2006, [Plaintiff] was doing well in therapy, and her mood was

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improved.” R. at 13. This conclusion is supported by substantial evidence. The March
24, 2006 review assessment stated that “[Plaintiff] is seeking treatment for anxiety. She
has made some progress, her mood has improved. Her agitation has decreased to
moderate. She is doing well in therapy.” R. at 259. The June 22, 2006 assessment
from the United Summit Center stated that “[Plaintiff] is seeking treatment for her
anxiety. She has made some progress, her mood has improved and her panic attacks
have decreased to mild . . . .” R. at 246. In the October 11, 2006 review assessment,
the United Summit Center reported that
[Plaintiff] has made some progress in the past 90 days, her withdraw[al]
decreased to moderate. She isn’t as anxious to go to class. She hasn’t
had any impulsive behaviors or poor judgment. Her anxiety decreased to
moderate. Her feelings of hopelessness has decreased to mild. She still
has panic attacks occasionally. She still gets agitated easily and is tired
almost all the time. She has severe trouble sleeping. She doesn’t want to
take a sleeping pill because she is afraid she won’t be able to wake for her
son if he need[s] her. . . .
She was tired, but oriented x4. She was groomed and dressed
appropriately. She is easily distracted. Her psychomotor re[flexes] were
normal. Her speech was goal directed and appropriate. It was a normal
[volume] and flow[.] Her thought content was organized. Her mood
seemed a bit depressed. Her thought process was logical and coherent.
She has no hallucinations or delusions.
R. at 239. Therefore, the ALJ’s finding that “[w]hile in mental health treatment in 2006,
[Plaintiff] was doing well in therapy, and her mood was improved” is based on
substantial evidence. Although in January 2007, the last report from the United Summit
Center stated that Plaintiff reported having an increase in panic attacks and her
depression had increased to moderate and her anxiety had decreased to severe,
Plaintiff had only one report out of five where she was not making progress with her
anxiety and depression. R. at 225. Also, all of the 2006 reports indicated that Plaintiff
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was doing well in therapy. Therefore, the ALJ’s conclusion is supported by relevant
evidence in the record that a reasonable mind might accept as adequate to support her
conclusion. Additionally, the evidence supporting the ALJ’s finding is more than a mere
scintilla of evidence. Although Plaintiff’s evaluators at the United Summit Center noted
that Plaintiff was easily distracted, they also noted that her thought content was
organized and her thought process was logical and coherent. Thus, although there may
be some conflicting evidence, it was the province of the ALJ to weigh the conflicting
evidence and make credibility determinations, and this Court will not substitute its
judgment for that of the ALJ in regards to such matters.
Second, Plaintiff objects because in the face of conflicting evidence from the
treating source and the consultative source, the treating source should have been given
more weight. However, “[c]ircuit precedent does not require that a treating physician’s
testimony ‘be given controlling weight.’” Craig, 76 F.3d at 590 (quoting Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). An ALJ will generally give more weight to
opinions from a treating source, “since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [Claimant’s] medical
impairment(s) . . . .” 20 C.F.R. § 416.927(c)(2). However, a treating source’s opinions
“on the issue(s) of the nature and severity of [Claimant’s] impairment(s)” is given
controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[Claimant’s] case record.” Id.(emphasis added) “If a physician’s opinion is not
supported by clinical evidence or if it is inconsistent with other substantial evidence, it

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should be accorded significantly less weight.” Craig, 76 F.3d at 590. In weighing a
medical opinion, an ALJ will consider the examining relationship; the treatment
relationship, including the length of treatment and the frequency of examination and the
nature and extent of the treatment relationship; the relevant evidence, including medical
signs and laboratory findings, supporting the opinion; the consistency of an opinion with
the record as whole; the specialization of the treating source; and any other factors
which tend to support or contradict the opinion. 20 C.F.R. § 416.927(c)(1)-(5).
Plaintiff argues that her treating sources, the United Summit Center, presented
evidence that she has poor concentration, is easily distracted, has problems with the
social aspects of her life, and suffers from severe withdrawal. Plaintiff contends that the
ALJ should have given the United Summit Center’s reports greater weight. Plaintiff
argues that the United Summit Center treating sources made longitudinal findings of the
Plaintiff and would have a better grasp on Plaintiff’s abilities rather than the consultative
examiners. To reiterate, the 2006 records (and one record from January 2007) from the
United Summit Center on which Plaintiff relies falls outside the period relevant in this
case. The treating sources from the United Summit Center had five visits with Plaintiff
totaling two hours and forty-five minutes for all visits, with most appointments lasting
around thirty minutes. Also, a variety of staff members and doctors met with Plaintiff,
and the same doctor did not meet with Plaintiff on each visit.
The ALJ relied on Dr. Capage’s report in determining that “[t]he claimant’s
symptoms and treatment support her statements regarding her mental impairments;
however, her reported degree of limitations imposed upon her functioning by these

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mental impairments are not consistent with Ms. Robinson’s findings at the consultative
examination.” R. at 17. Dr. Capage diagnosed Plaintiff with Bipolar I Disorder and
Depressed and Anxiety Disorder. Dr. Capage’s report stated that Plaintiff’s degree of
limitation in regards to restriction of activities of daily living were mild, and moderate
degrees of limitation for difficulties in maintaining social functioning and difficulties in
maintaining concentration, persistence, or pace. R. at 364. Dr. Capage found that
Plaintiff’s symptoms and history supported her statements regarding her mental
impairments, but that the reported degree of limitation imposed upon her functioning by
the mental impairments is not consistent with the findings made by Jennifer Robinson at
her consultative examination. R. at 366.
The ALJ also relied on Ms. Robinson’s consultative mental examination, stating
that she found Plaintiff’s “social interactions and concentration were within normal limits,
and she generally got along well with others . . . [and] would be capable of managing
her personal finances.” R. at 17. Ms. Robinson’s report indicated that she reviewed
“[a]n initial assessment at the United Summit Center dated January 12, 2007 . . . . It
indicated a panic disorder without agoraphobia, bipolar disorder, depressed severe with
psychotic features.” R. at 347. Ms. Robinson found that Plaintiff’s concentration, social
interactions, remote memory, and immediate memory were within normal limits,
although her recent memory was severely deficient. R. at 348-49.
The ALJ gave great weight to the opinion of the state agency physicians that
concluded Plaintiff could perform routine work-related activities in a low-pressure
setting, manage infrequent and superficial contact with co-workers and supervisors, and
would work best in more of a socially isolated setting that dealt with things rather than
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people. R. at 18. The ALJ expressly stated that she gave greater weight to this opinion
because it was consistent with the other medical evidence and the residual functional
capacity. Id.
Also, the ALJ made clear why she accorded less weight to the November 2010
opinion letter of chiropractor, Dr. George Higgs. Id. The ALJ accorded his opinion letter
and the chiropractor’s records less weight “because he did not interpret the records into
functional limitations and also, the chiropractor is not an acceptable medical source
under the Social Security Administration Regulations, to establish a medical diagnosis.”
Id.
Accordingly, Plaintiff’s objection is OVERRULED.
C.

The ALJ’s Hypothetical to the Vocational Expert

An ALJ brings in a vocational expert “to assist the ALJ in determining whether
there is work available in the national economy which this particular claimant can
perform. In order for a vocational expert’s opinion to be relevant or helpful, it must be
based upon a consideration of all other evidence in the record and it must be in
response to proper hypothetical questions which fairly set out all of claimant’s
impairments.” Walker v. Brown, 889 F.2d 47, 50 (4th Cir. 1989) (internal citations
omitted). The ALJ has “great latitude in posing hypothetical questions and need only
pose those that are based on substantial evidence and accurately reflect the plaintiff’s
limitations.” Farnsworth v. Astrue, 604 F. Supp. 2d 828, 853 (N.D.W. Va. 2009)
(internal citations omitted). A hypothetical question is unimpeachable if it adequately
reflects an RFC for which the ALJ had sufficient evidence. Johnson v. Barnhart, 434

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F.3d 650, 659 (4th Cir. 2005).
When formulating a hypothetical question, the ALJ must identify the “physical
and mental limitations imposed by the claimant’s medical impairment(s).” 20 C.F.R.
§ 416.960(b)(2); see also Russell v. Barnhart, 58 F. Appx 25, 30 (4th Cir. 2003). A
hypothetical question “need not reference each of the claimant’s impairments or
diagnoses by name so long as it adequately reflects the limitations caused by those
impairments.” Brown v. Astrue, Civil Action No. CBD-10-1238, 2013 WL 937549 *6 (D.
Md. Mar. 8, 2013) (collecting district court cases in the Fourth Circuit). Additionally, the
ALJ may “translate the claimant’s medical impairments into functional limitations from
which the vocational expert can determine whether work is available.” Id.
In this case, the ALJ asked the VE the following hypothetical question:
Let’s assume an individual, a hypothetical individual, who is of the
claimant’s age, education and work history, who can do medium exertional
work, who is limited to occasional climbing of stairs and ropes, I’m sorry,
ramps; stairs and ramps–can’t read my own writing here–who can
occasionally crawl, can never climb ladders, ropes or scaffolds, who
needs to avoid concentrated exposure to extreme cold, heat and hazards
such as moving machinery and heights.
Who can perform simple tasks consistent with SVP-2 entry-level work;
who can make simple work-related decisions with few workplace changes;
can have no contact with the public and occasional contact with
supervisors and superficial contact with coworkers. Can such a person do
the claimant’s past work?
R. at 55. Plaintiff argues that the hypothetical question is improper because the ALJ
utilized SVP-2 work as an impairment, and Plaintiff also contends that the ALJ “avoided
placing limitations in the hypothetical by arbitrarily assuming that Ms. Ashcraft could
perform SVP-2 work.”

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The ALJ’s hypothetical question included a limitation that the hypothetical person
“can perform simple tasks consistent with SVP-2 entry-level work.” R. at 55. Specific
Vocational Preparation (SVP), “is defined as the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility
needed for average performance in a specific job-worker situation.” Dictionary of
Occupation Titles, App. C (Components of the Definition Trailer). An SVP level 2 is a
job where “anything beyond short demonstration up to and including 1 month” is needed
to learn it. Id. Importantly, the ALJ did not pose the question as a hypothetical person
who “can perform SVP-2 entry-level work”; rather, the question stated a person who
could “perform simple tasks.”
The ALJ set forth all of Plaintiff’s limitations that were supported by the record.
The ALJ imposed a proper limitation of “simple tasks” given the Plaintiff’s difficulty with
her recent memory. The phrase “consistent with SVP-2 entry level work,” merely
attempted to explain the phrase “simple task” and to reflect the Plaintiff’s limitation to
unskilled work. See Bartley v. Astrue, 1:10-cv-00706, 2011 WL 4596703, *4 (S.D.W.
Va. Sept. 30, 2011) (finding ALJ’s hypothetical proper because the ALJ’s “limitation to
simple routine tasks involving minimal contact with the public is consistent with the
regulatory definition of unskilled work.”). Therefore, the ALJ’s hypothetical reflected
Plaintiff’s mental functional limitation, and the hypothetical was not improper.
Accordingly, Plaintiff’s objection is OVERRULED.
IV. Conclusion
For the reasons set forth above, the Court OVERRULES Plaintiff’s objections to

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Magistrate Judge Seibert’s Report and Recommendation. Accordingly, the Court
adopts his Report and Recommendation and ORDERS as follows:
1. Plaintiff’s Motion for Summary Judgment is DENIED;
2. Defendant’s Motion for Summary Judgment is GRANTED;
3. The final decision of the Commissioner is AFFIRMED; and
4. This case is DISMISSED from the Court’s active docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record.
DATED: April 26, 2013

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