Webb v. Astrue

Filing 15

MEMORANDUM OPINION affirming the final decision of the Commissioner and dismissing this matter from the docket of this court. Signed by Magistrate Judge Mary E. Stanley on 9/28/2011. (cc: attys) (cbo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
DAWNN SUE CHILDERS WEBB,
Plaintiff,
v.

CASE NO. 2:10-cv-01035

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

M E M O R A N D U M

O P I N I O N

This is an action seeking review of the decision of the
Commissioner of Social Security denying Plaintiff's application for
disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. Both parties have consented in
writing to a decision by the United States Magistrate Judge.
Plaintiff, Dawnn Sue Childers Webb (hereinafter referred to as
“Claimant”), filed an application for DIB on April 30, 2007,
alleging disability as of June 1, 1998, due to spinal fusion, foot
drop, arthritis in lower back, spondylolisthesis, nerve damage in
lower back, degenerative disc disorder, and depression.
10, 133-40,

170-80,

198-204,

208-14.)

The claim

was

(Tr. at
denied

initially and upon reconsideration. (Tr. at 10, 60-64, 75-77.) On
September

7,

2007,

Claimant

requested

Administrative Law Judge (“ALJ”).

a

hearing

(Tr. at 79.)

before

an

The hearing was

held on May 28, 2008 before the Honorable Charlie Paul Andrus.

(Tr. at 29-57, 86.)

A supplemental hearing was held on October 29,

2008 before the Honorable Charlie Paul Andrus.
107.)

(Tr. at 19-28,

By decision dated March 11, 2009, the ALJ determined that

Claimant was not entitled to benefits.

(Tr. at 10-18.)

The ALJ’s

decision became the final decision of the Commissioner on June 17,
2010, when the Appeals Council denied Claimant’s request for
review.

(Tr. at 1-4.)

present

action

On August 20, 2010, Claimant brought the

seeking

judicial

review

of

the

administrative

decision pursuant to 42 U.S.C. § 405(g).
Under 42 U.S.C. § 423(d)(5), a claimant for disability has the
burden of proving a disability.

See Blalock v. Richardson, 483

F.2d 773, 774 (4th Cir. 1972).

A disability is defined as the

"inability to engage in any substantial gainful activity by reason
of any medically determinable impairment which can be expected to
last for a continuous period of not less than 12 months . . . ."
42 U.S.C. § 423(d)(1)(A).
The

Social

Security

Regulations

establish

a

"sequential

evaluation" for the adjudication of disability claims.

20 C.F.R.

§ 404.1520 (2002). If an individual is found "not disabled" at any
step, further inquiry is unnecessary.

Id. § 404.1520(a).

The

first inquiry under the sequence is whether a claimant is currently
engaged in substantial gainful employment.

Id. § 404.1520(b).

If

the claimant is not, the second inquiry is whether claimant suffers
from a severe impairment.

Id. § 404.1520(c).

2

If a severe

impairment is present, the third inquiry is whether such impairment
meets or equals any of the impairments listed in Appendix 1 to
Subpart P of the Administrative Regulations No. 4.
404.1520(d).

Id. §

If it does, the claimant is found disabled and

awarded benefits.

Id.

If it does not, the fourth inquiry is

whether the claimant's impairments prevent the performance of past
relevant work.

Id. §§ 404.1520(e).

By satisfying inquiry four,

the claimant establishes a prima facie case of disability. Hall v.
Harris, 658 F.2d 260, 264 (4th Cir. 1981).

The burden then shifts

to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th
Cir. 1983), and leads to the fifth and final inquiry: whether the
claimant is able to perform other forms of substantial gainful
activity, considering claimant's remaining physical and mental
capacities and claimant's age, education and prior work experience.
20 C.F.R. § 404.1520(f) (2002).
things:

(1)

that

the

The Commissioner must show two

claimant,

considering

claimant’s

age,

education, work experience, skills and physical shortcomings, has
the capacity to perform an alternative job, and (2) that this
specific

job

exists

in

the

national

economy.

McLamore

v.

Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant
satisfied

the

first

inquiry

because

she

has

not

engaged

in

substantial gainful activity since the alleged onset date of June
1, 1998 through her date last insured of March 31, 2003.

3

(Tr. at

12.) Under the second inquiry, the ALJ found that Claimant suffers
from the severe impairment of vertebrogenic disorder.
13.)

(Tr. at 12-

At the third inquiry, the ALJ concluded that Claimant’s

impairment does not meet or equal the level of severity of any
listing in Appendix 1.

(Tr. at 13.)

The ALJ then found that

Claimant has a residual functional capacity for light work, reduced
by nonexertional limitations.

(Tr. at 13-16.)

As a result,

through the date last insured, Claimant was unable to return to her
past relevant work.

(Tr. at 16.)

Nevertheless, the ALJ concluded

that Claimant could perform jobs such as clerk, survey interviewer,
and telephone order clerk, which exist in significant numbers in
the national economy.
denied.

(Tr. at 17.)

On this basis, benefits were

(Tr. at 17-18.)

Scope of Review
The sole issue before this court is whether the final decision
of the Commissioner denying the claim is supported by substantial
evidence.

In Blalock v. Richardson, substantial evidence was

defined as
“evidence which a reasoning mind would accept
as
sufficient
to
support
a
particular
conclusion. It consists of more than a mere
scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the
case before a jury, then there is 'substantial
evidence.’”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting
Laws

v.

Celebrezze,

368

F.2d
4

640,

642

(4th

Cir.

1966)).

Additionally, the Commissioner, not the court, is charged with
resolving conflicts in the evidence.
1453, 1456 (4th Cir. 1990).

Hays v. Sullivan, 907 F.2d

Nevertheless, the courts “must not

abdicate their traditional functions; they cannot escape their duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”

Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the
Commissioner is supported by substantial evidence.
Claimant’s Background
Claimant was 38 years old at the time of the administrative
hearing.

(Tr. at 36.)

She obtained a General Equivalency Diploma

(GED) and did not require special education classes while in
school.

(Tr. at 37, 179.)

In the past, she worked as a cashier

and a stocker in retail stores and as a certified nursing assistant
(CNA).

(Tr. at 38-39, 53-54.)

The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record, and will summarize Claimant’s medical
history between June 1, 1998 and March 31, 2003.
Physical Evidence
Records indicate Claimant was treated by Timothy G. Saxe,
M.D., Internal Medicine practitioner, from May 15, 1997 to June 19,
2006.

(Tr. at 270-325.) As previously noted, only those records

5

dated between June 1, 1998 and March 31, 2003 are relevant to the
subject DIB claim.

During that time period, Dr. Saxe and his staff

treated Claimant on 21 occasions.

Each of those office visits are

summarized below. (Tr. at 284-316.)
On March 27, 1998, Bradley A. Nine, M.D., evaluated Claimant
after noting that she was “normally seen by Dr. Saxe... Assessment:
1.

Headaches, ? migraine.

2.

Irregular menstrual bleeding.

PLAN: 1. I’ve given her a prescription for Imitrex injections. 2.
I’ve given
cramps.”

her

a

prescription

for

Ponstel for

her menstrual

(Tr. at 318.)

On December 1, 1998, Dr. Saxe’s Physician’s Assistant Certified (“PA-C”), Cynthia C. Campbell, reported:
Chief Complaint: Pain in the neck from the ear to the
throat...She was in a motor vehicle accident in 1991, and
she hurt her neck at that time, and she has seen Dr.
Davis who is a chiropractor who helps her with her back
and
neck...She
is
also
complaining
of
severe
dysmenorrhea...She states that her periods have been
irregular ever since she had her tubes tied...
IMPRESSION/PLAN: 1.
Lymphadenopathy [swelling of the
lymph nodes] of the right anterior cervical chain. We’re
going to start her on Biaxin 500 mg one p.o. b.i.d. for
seven days...
2.
Dysmenorrhea [severe uterine pain
during menstruation]. She is going to come in next week
for her annual pap smear... 3. The stiff neck. If she
is still having problems with her neck after treating the
lymphadenopathy, we may try a muscle relaxant and an
NSAID to see if this will help.
(Tr. at 316.)
On December 8, 1998, Ms. Campbell stated in an office visit
note:

6

Chief Complaint: Needs pap smear and recheck of her lymph
nodes...She
is
also
complaining
that
she
has
constipation...She is also complaining of decreased
energy, decreased sex drive, decreased concentration, and
that she is very moody and irritable.
Christina had
started her on Zoloft in the past, but she was not
compliant with the medication...We’re going to start her
on Paxil 10 mg a day for two weeks and then I want her to
follow up, and we’ll reevaluate her depression at that
time...Patient was given a pamphlet on how to increase
the fiber in her diet. I recommended CitruCel but patient
refused.
We did a pap smear, and patient will be
notified of her results.
(Tr. at 314-15.)
On Linda G. Brown, M.D., Pathologist, reported that Claimant’s
pap smear showed “benign cellular changes.”

(Tr. at 312.)

On December 21, 1998, Dr. Saxe’s PA-C, Ms. Campbell stated:
Follow up on depression...We had started her on Paxil 10
mg once a day...She states that she feels much better now
that she is taking two of them later in the day because
they kind of give her a hangover effect if she takes them
close to bedtime. She has more energy and feels that she
can now enjoy life...She appears in no acute distress.
She is smiling and appears to have a lot more energy than
at the last visit.
IMPRESSION/PLAN: 1. Depression, stable.
continue the Paxil at 20 mg once a day.

We’re going to

(Tr. at 313.)
On

July

28,

1999,

Dr.

Saxe’s

PA-C,

Kelly

P.

Cummings,

reported: “Patient presents with chief complaint of having a cat
scratch and cat bite on her right knee and left forearm and left
neck area...She assures me that the cat has received its rabies
shots...We’ll place her on Biaxin 500 mg b.i.d. for ten days.”
(Tr. at 311.)

7

On October 8, 1999, Dr. Saxe reported: “Dawn returns for two
month follow up of her migraines and the knot on the back of her
head...The Imitrex works extremely well to relieve her severe
headaches...We’ll CT scan her head...Recheck back after CT scan.”
(Tr. at 309.)
On October 26, 1999, Torin Walters, M.D. reported to Dr. Saxe
regarding a CT scan of Claimant’s head: “There is no extra-axial
fluid collection, intraparenchymal hemorrhage or mass effect.
Ventricles are normal. There is no acute bony abnormality or focal
bony abnormality which would correlate with a palpable nodule.”
(Tr. at 308.)
On September 9, 1999, Ms. Campbell, reported that Claimant
presented

“complaining

of

severe

headaches...Fenoprofen

600

mg...was refilled...Also, she was given five samples of Imitrex
nasal spray and instructed on how to use these.”

(Tr. at 310.)

On January 7, 2000, Dr. Saxe reported:
Dawn returns for two month follow up of her headaches and
knot on her head. She’s been having some sharp pains in
her side. The headaches and the knot on her head are
basically better...We’ll send her for a CT scan of the
abdomen and pelvis to rule out abscess, or other
pathology in the right lower quadrant.
(Tr. at 307.)
On

January

“IMPRESSION:
of

the

1.

scalp.

24,

2000,

Ms.

Campbell,

Right lower quadrant pain.
3.

Migraines.

4.

evaluated
2.

Claimant:

Cyst-like lesion

Lymphadenopathy

of

the

neck...I’m going to have her follow up in the next two weeks for a
8

pap.”

(Tr. at 306.)

On February 3, 2000, Ms. Campbell, stated:
Chief Complaint: Follow up for lymphadenopathy, place on
head, abdominal pain, and...presents today for her annual
pap and pelvic...She has a family history of lymphoma.
Her brother had it at the age of 23, and he is doing fine
now. She is a smoker. Has smoked about half a pack a
day for several years...She is also complaining of small
nodules on her spine, that she has had them for a long
time...She has had a tubal ligation.
(Tr. at 303.)
On February 21, 2000, Dr. Saxe’s Certified Family Nurse
Practitioner (“CFNP”), Teresa Twohig, stated: “She presents today
with

complaints

of

sore

throat...Assessment:

[inflammation of the throat]...Plan: 1.
for seven days.”

1.

Pharyngitis

Dynabac 250 mg two daily

(Tr. at 302.)

On May 24, 2000, Felix R. Muniz, M.D. reported in a progress
note copied to Dr. Saxe:
Ms. Childers comes today to the office to discuss further
options of treatment after a successful left diagnostic
medial branch block. She reported excellent pain relief
for about four hours in the left lower back area...Today,
we are scheduling her for radiofrequency denervation of
the left lumbar medial branch nerve at L3/L4, L4/L5, and
L5/S1 levels.
(Tr. at 301.)
On July 10, 2000, Dr. Saxe reported in a progress note:
Dawn returns today for follow up...She had been to the
pain clinic. They want to cut some nerves in her back
and she’s not sure she wants to. She saw Dr. Stevens who
said she had lymphadenopathy and not to do anything about
it...She goes back to see Dr. Muniz on the 17th.
IMPRESSION/PLAN: 1.

Chronic pain.
9

We will try her on

Neurontin 300 mg three times a day, gradually increasing
the dose. 2. Lymphadenopathy. Stable. She will follow
up with Dr. Stevens. 3. Recheck in three months.
(Tr. at 299.)
On September 6, 2000, Dr. Saxe reported:
Dawn returns today for one month follow up of her pain
and lymphadenopathy. Dr. Stevens said the lymph nodes
are scar tissue...
IMPRESSION: 1. Chronic pain.
2. Lymphadenopathy. Stable.

Better on Neurontin.
3. Plantar corn.

(Tr. at 298.)
On September 27, 2000, Dr. Saxe reported:
Dawn presents today as an acute work-in. The knot on the
side of her head needs to be rechecked...She also states
that she has fibrocystic breast disease and she’s trying
to watch her caffeine. She is having problems with more
depression around her periods, PMS.
We discussed
increasing her Paxil to 40...
IMPRESSION: 1. Knot on the side of head... 2. PMS.
3. Fibrocystic breast disease. 4. Depression.
(Tr. at 297.)
On December 8, 2000, Dr. Saxe reported:
Dawn presents for follow up. She still has the lump on
her head. It still causes her neck pain...She would like
to have the knot cut out of her head and we will refer
her to Dr. Morgan for this...She has a plantar wart on
her right foot...
IMPRESSION:
1.
Telangiectases [red blotches on the
skin]. Etiology uncertain... 2. Lump on the head which
is causing pain and spasm in the neck. 3. Plantar wart.
4. Fibrocystic breast disease. 4. History of PMS and
depression.
PLAN: 1. We will refer to Dr. Morgan to remove the lump
on her head. 2. We shaved the plantar wart. She will
try banana peel on this to see if this helps. 3. We
will get blood work to find out the etiology of the
10

telangiectases.

4.

Recheck back in one month.

(Tr. at 295-96.)
On January 22, 2001, James H. Morgan, III, M.D., reported to
Dr. Saxe regarding his referral of Claimant’s “lump on the head.”
(Tr. at 294.) Dr. Morgan stated: “I don’t feel it is something that
I could excise...I discussed the case with Dr. Saxe on the phone
today and we have decided to ask Dr. Weinsweig for his opinion.”
Id.
On February 8, 2001, Dr. Saxe’s CFNP, Diana Stotts, stated
that Claimant presented with chief complaints of a sinus infection
and back pain.

(Tr. at 292.)

Ms. Stotts prescribed Bactrim DS and

use of vaporizer for the sinusitis. Id.
Dr. Saxe.

She also “conferred with

We are going to x ray her back and then she is to see

him in a month.”

Id.

On March 5, 2001, Joseph W. Dransfeld, M.D., Barboursville
Radiology, Inc., interpreted Claimant’s dorsal and lumbar spine xrays. He concluded: “Dorsal spine: Studies of the dorsal vertebrae
show no bone or joint abnormality.

Lumbar spine: Studies of the

lumbosacral vertebrae show no bone or joint abnormality.”

(Tr. at

248.)
On March 8, 2001, Dr. Saxe reported in a progress note:
Dawn returns for follow up. Her body still hurts. She
still has sinus drainage. She wants to see a doctor for
allergy shots.
She sees the neurosurgeon on the
12th ...The lymph nodes in her neck are basically
done...She has a lot of back pain...We discussed getting
her in physical therapy and seeing if this does not help.
11

Her depression is stable...
SPINE - The cervical spine is tight in the muscles
radiating across the shoulders.
There is no real
decrease in motion...
IMPRESSION: 1. History of allergies. 2. Migraines.
3. C-spine pain and L-S spine pain. 4. Depression.
PLAN: 1. We will refer her to physical therapy. 2.
Reviewed her x-rays and they were normal. 3. I had a
note that they wanted to get a podiatrist see her to take
off a plantar wart and this will be arranged.
4.
Recheck back after being seen by the neurosurgeon.
(Tr. at 292.)
On July 13, 2001, Dr. Saxe reported:
Dawn presents today for follow up of her back pain and
depression.
She needs her physical therapy reauthorized...She states she is under a lot of anxiety
causing her to itch...She picks at her skin. She has a
lot of white places [that] do not tan, as well as the
rest of her body and she is very upset. She wants some
Nizoral cream for this...
SPINE - Spine appears to be normal today...
SKIN - She has a deep tan with multiple scars that do not
tan.
IMPRESSION:
1. Back pain. 2. Depression. 3. Migraines. 4. Anxiety.
PLAN:
1. We will put her on BuSpar 15 mg twice a day.
will refill her Neurontin and Fenoprofen.
3. Recheck back in three months.

2.

We

(Tr. at 291.)
On October 1, 2001, Dr. Saxe reported:
Dawn returns for follow-up...She is doing well on her
medicines...She told me that her physical therapist told
her she should have an anti-inflammatory drug and a pain
pill. We talked about adding a muscle relaxant as well
12

as increasing her Fenoprofen...We
increasing her BuSpar to t.i.d...

also

discussed

IMPRESSION:
1.
Viral infection of the throat.
2.
Arthritis, non-specific. 3. Chronic pains. 4. Anxiety
and depression.
(Tr. at 290.)
On October 5, 2001, David L. Weinsweig, M.D. reported in a
letter to Dr. James Morgan with a copy to Dr. Saxe:
I saw Ms. Childers in my office today. This is a 32-year
old woman who rescheduled her appointment 5 times before
coming in today. She comes in with a history of a couple
of years of pain in the left suboccipital area...
On examination, she was wide awake, alert and oriented.
Her
cranial
nerve
testing
was
normal...She
was
neurologically intact. Her motor strength, sensation,
reflexes and coordination were fine.
Impression: She has tenderness where the muscle attaches
to the skull. I doubt there is anything serious here,
but I have ordered an MRI of the brain for completeness
sake, I will see her back after this is performed. I
suspect to some degree she will have to learn to live
with her discomfort.
(Tr. at 288.)
On November 13, 2001, Dr. Saxe wrote a letter “To whom it may
concern” stating in its totality: “Dawn is a patient who has
chronic pain and requires a TENS unit.

While riding in airplanes

she

TENS

should

be

able

to

continue

her

information is needed, please contact me.”

unit.

If

further

(Tr. at 287.)

On July 12, 2002, Dr. Saxe stated:
Dawn presents today for follow up. She is getting a lot
of stiffness in her necks (sic), hands and knees. She is
in therapy.
She finds that muscle relaxants seem to
work...She does take Fenoprofen only during her menstrual
13

cramps and this does seem to help.
Her mother was diagnosed with ALS and this is creating a
lot of stress. She is off the Paxil . She would like to
see if Celexa seems to help. We will put her on Celexa,
Fenoprofen and also write her for some Flexeril because
this helps her as well...
IMPRESSION: 1. Osteoarthritis. 2. Depression.
3. Symptoms of fibromyalgia. 4. Possible bursitis.
(Tr. at 286.)
On August 15, 2002, Dr. Saxe’s CFNP, Tammy King, noted:
Dawn saw Dr. Saxe last month.
She was having some
depression/anxiety symptoms. He started her on Celexa.
She tells me she has tried other stuff in the past, but
this is the best she has felt in a long time. She is
much calmer...She also has a bite [insect] on her arm
that she wants me to look at...Patient is alert and
oriented, in no acute distress...She is going to continue
her Celexa...Elocon cream to use on her insect
bite...follow up in three months.
(Tr. at 285.)
On November 13, 2002, Dr. Saxe’s CFNP, Tammy King, noted:
I saw Dawn back in August. She was on Celexa and doing
well. She is upset because she has gained 17 lb. since
she went on it...She tells me the Celexa actually helped
her anxiety and depression, but she cannot stand to gain
anymore weight. Is also wondering if she can have
something to help her sleep...
General - Patient is alert and oriented, in no acute
distress...
Diagnoses: 1. Weight gain. 2. Depression. 3. Anxiety.
(Tr. at 284.)
On June 25, 2007, a State agency medical source attempted to
complete a Physical Residual Functional Capacity Assessment and
concluded that there was “[i]nsufficient evidence prior to DLI
14

[date last insured].” (Tr. at 347-54, 352.)

The evaluator, Sheila

Heston, stated:
Medical records prior to DLI [3/31/2003] indicate
treatment for depression, insect bites, weight gain,
right elbow pain, and soreness of thumbs.
X-ray of
lumbar and dorsal spine is normal.
Claimant had a
laminectomy
dated
after
DLI
of
03/21/2003.
Questionnaires were completed after which indicated
constant pain and restricted ADL’s [activities of daily
living]. Evidence prior to DLI is insufficient.
(Tr. at 354.)
On August 27, 2007, A. Rafael Gomez, M.D. stated in a “Case
Analysis” report: “I have reviewed all the evidence in file and the
PFRC [Physical Residual Functional Capacity Assessment] of 06/25/07
is affirmed as written.”

(Tr. at 393.)

On July 4, 2008, Robert Marshall, M.D. stated in a form titled
“Medical Interrogatory Physical Impairment(s) - Adults; In The Case
Of: Dawnn Sue Webb...June 1, 1998 through March 31, 2003; Alleged
Onset Date: June 1, 1998” marked “No” to the question: Do any of
the claimant’s impairments established by the medical evidence,
combined or separately, meet or equal any impairment described in
the Listing of Impairments? and stated: “No physical [illegible]
during this period for this allegation.

At that time the records

do

other

not

indicate

any

reason

depression.” (Tr. at 490-93.)

for

this

than

[illegible]

Dr. Marshall concluded:

I find no evidence that she was physically disabled
during the period in question. I can’t find that at any
time from 98-03 she had a psychological evaluation. It’s
not possible for me to declare whether her psychological
problems would have prevented her from working.
My
15

conclusions refer only to her physical state.
(Tr. at 496.)
On October 23, 2008, Paul W. Craig II, M.D. completed a form
titled “Medical Assessment of Ability to do Work-related Activities
(Physical) for Claimant’s representative.

(Tr. at 499-501.)

He

concluded that Claimant could lift/carry less than 10 pounds;
stand/walk 1-2 hours in an 8-hour workday; stand/walk less than 1
hour without interruptions; sit for 2-3 hours; sit 1 hour or less
without

interruptions;

could

never

do

any

of

the

postural

activities; could not do any of the physical functions except for
reaching and pushing/pulling; and required all of the environmental
restrictions due to her impairment.

Id.

On October 28, 2008, Dr. Craig wrote in a single page report
to Claimant’s representative:
Per your request I have examined the above claimant for
a Social Security Capacity Evaluation...After a complete
review of records presented at the time of evaluation, as
well as a full medical history and completion of a
physical evaluation the claimant’s limitations are
delineated below and in the attached form:
1.
2.

3.
4.
5.

History of L5S1 spondylolisthesis with underlying
degenerative disc disease and facet arthropathy
ultimately requiring surgical fusion.
Ongoing chronic pain syndrome due to ongoing
chronic severe low back pain, left leg pain and
dysesthetic pain over the midline low back area.
No radicular deficit or nerve root compression
evident.
Sleep cycle disturbance secondary to chronic pain.
Required maintenance narcotic use with some daytime
somnolence.
Claimant limited to sedentary activity levels and
appears unable to reasonably or reliably work and
16

[sic, an] 8 hour day, 5 days a week on a regular
basis.
Complaints of hand arthritis but no formal
diagnosis at the time of this visit.

6.

(Tr. at 498.)
Psychiatric Evidence
On June 26, 2007, a State agency medical source completed a
Psychiatric Review Technique form for the time period to March 31,
2003.

(Tr. at 355-68.)

The evaluator, Frank Roman, Ed. D., found

Claimant’s

impairment

was

disorder.

(Tr. at 355.)

not

severe

regarding

her

affective

He found Claimant had mild limitation

regarding restriction of activities of daily living, difficulties
in maintaining social functioning and maintaining concentration,
persistence, or pace; and no episodes of decompensation.
365.)

(Tr. at

He stated that the evidence does not establish the presence

of “C” criteria.

(Tr. at 366.)

Dr. Roman concluded: “Based on MER

claimant is credible and capable.

Symptoms are consistent with

history of depression. Overall, she is independent in her ADLs and
able to follow routine work duties in a low stress setting.”

(Tr.

at 367.)
On August 24, 2007, a State agency medical source completed a
Psychiatric Review Technique form for the time period to March 31,
2003.

(Tr. at 379-92.)

The evaluator, Debra Lilly, P. D., found

“[i]nsufficient evidence” prior to the date last insured of march
31, 2003. (Tr. at 379.)

Dr. Lilly concluded: “This is a claimant

with DLI several years ago.

Although there is some medical
17

evidence in file, there is insufficient medical and functional
information to adjudicate this time period.”

(Tr. at 391.)

Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts that the Commissioner’s decision is not
supported by substantial evidence because (1) the ALJ erred in
finding Claimant’s medical condition to be “stable” rather than
“debilitating” and failed to afford greater weight to the opinion
of treating physician Timothy G. Saxe, M.D. dated June 19, 2006;
(2) the ALJ erred in determining Claimant’s mental illnesses were
not severe enough to prevent her from working; (3) the ALJ erred in
determining

Claimant

had

the

residual

functional

capacity

to

perform light work; (4) the ALJ erred in not affording Claimant
full

credibility;

(5)

the

ALJ

erred

in

stating

that

the

transferability of job skills is not material because she is
disabled under the Medical-Vocational Guidelines (grid rules); and
(6) the ALJ erred in finding there were jobs Claimant could perform
in the national economy.

(Pl.'s Br. at 3-14.)

The Commissioner asserts that substantial evidence supports
the ALJ’s finding that Claimant was not disabled between June 1,
1998 and March 31, 2003.

(Def.’s Br. at 4-10.)

Medical Source Opinions
Claimant first asserts that the ALJ erred in determining that
“the

record

as

a

whole

indicates

an

overall

stable

medical

condition and does not support debilitating symptoms...The ALJ

18

should have

afforded

greater

weight

to

[the] opinion

of

the

Plaintiff’s physician, Timothy G. Saxe, M.D.” (Pl.'s Br. at 3-7.)
The Commissioner responds that Claimant’s “claims have no
merit because the evidence relating to the period from June 1, 1998
to

March

31,

2003,

confirms

the

accuracy

of

the

ALJ’s

characterization of the evidence, step two finding, RFC assessment,
and credibility finding...The clinical notes of Dr. Saxe...fail to
demonstrate disabling limitations.”

(Tr. at 7-9.)

Every medical opinion received by the ALJ must be considered
in accordance with the factors set forth in 20 C.F.R. § 404.1527(d)
(2010).

These

factors

include:

(1)

length

of

the treatment

relationship and frequency of evaluation, (2) nature and extent of
the treatment relationship, (3) supportability, (4) consistency (5)
specialization, and (6) various other factors.

Additionally, 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.”

Id. § 404.1527(d)(2).

Under § 404.1527(d)(1), more weight is given to an examiner
than to a non-examiner.

Section 404.1527(d)(2) provides that more

weight will be given to treating sources than to examining sources
(and,

of

course,

than

to

non-examining

sources).

Section

404.1527(d)(2)(I) states that the longer a treating source treats
a claimant, the more weight the source’s opinion will be given.
Under § 404.1527(d)(2)(ii), the more knowledge a treating source

19

has about a claimant’s impairment, the more weight will be given to
the source’s opinion.
the

factors

of

Sections 404.1527(d)(3), (4), and (5) add

supportability

(the

more

evidence,

especially

medical signs and laboratory findings, in support of an opinion,
the more weight will be given), consistency (the more consistent an
opinion is with the evidence as a whole, the more weight will be
given), and specialization (more weight given to an opinion by a
specialist about issues in his/her area of specialty).
In evaluating the medical record of evidence for the relevant
time period, June 1, 1998 to March 31, 2003, the ALJ made the
following

findings

regarding

Claimant’s

disabilities

and

opinions of her treating physician, Dr. Saxe:
The claimant alleged neck pain and low backache during
the time in question from June 1, 1998 through March 31,
2003.
In March 2001 x-rays of the dorsal spine and
lumbar spine were both within normal limits.
Her
complaints of stiff neck seemed to be associated with her
treatment for lymphadenopathy on the right side. She did
receive injections for this condition in 2000 and she was
prescribed Neurontin for pain. In July 2002 she reported
stiffness in her joints and she was in therapy and taking
muscle relaxants (Exhibits 1F and 5F)...
The undersigned has examined the claimant’s vertebrogenic
disorder under listing 1.00. The record does not reflect
all of the positive neurological signs necessary to meet
this listing. The claimant had two negative x-rays and
she did not have any MRIs or CT scans.
She did not
receive treatment from a specialist and was not referred
to a specialist. Her complaints for [sic, were] sporadic
and in July 2002 she reported that therapy and muscle
relaxants seem to help (Exhibit 5F).
The medical
evidence shows that the claimant’s problems mainly
started in March 2006, which is after her date last
insured.
Finally, the claimant does not equal in
combination a listed impairment, even when taking into
20

the

consideration those impairments deemed not severe...
She started treated [sic, treatment] with Dr. Saxe in
1998...
The records from the office of Dr. Saxe and other
sources, refer to many problems, including dysmenorrhea,
neck pain, headaches (probably tension vs. migraine),
skin eruptions, enlarged glands (no specific diagnosis)
and lymphadenopathy on the right side. She was exposed
to chemicals which made her lungs worse, but the
predominant problems appears to have been depression with
some anxiety. She was given prescriptions for a number
of acute problems by Dr. Saxe or his office staff,
including Paxil, Prozac, Zoloft (which did seem to help)
and Celexa which helped but made her gained [sic, gain]
weight. There was passing reference or two during 1998
to 2003 to low back ache, but this was not a major
complaint. When Dr. Weinswig, neurosurgeon, saw her in
2001 it had nothing to do with her back but rather for
evaluation of discomfort at the back of her head (no
specific diagnosis).
Her neurological exam was
completely normal. Dr. Marshall went on the [sic, to]
say that “I find no evidence that she was physically
disabled during the time period in question. I can’t
find that at anytime from 1998 to 2003 she had a
psychological evaluation....My conclusions refer only to
her physical state” (Exhibit 27F). She testified that
her worse problem during that time period was her back...
As for the opinion evidence, Dr. Saxe did not provide a
functional capacity assessment (Exhibit 5F). The state
agency found no impairments due to insufficient evidence
prior to her date last insured (Exhibit 9F).
(Tr. at 12-16.)
The

undersigned

records, and

finds

has
that

thoroughly
the

reviewed

ALJ fully

all

considered

the
Dr.

medical
Saxe’s

opinions, as well as those of the consultive examining physicians
and the State agency record-reviewing medical sources of record, in
keeping with the applicable regulations.

The ALJ’s decision

reflects that he both considered and discussed the records of Dr.
21

Saxe and his staff regarding Claimant’s medical care during the
relevant time period.

Claimant asserts that “[t]he record clearly

supports Dr. Saxe’s statement dated June 19, 2006.”
3.)

(Pl.'s Br. at

The undersigned must assume that Claimant is referring to the

progress note signed by Stephen D. Campbell, M.D., contained in
records submitted by Dr. Saxe.

(Tr. at 271.)

“Patient is in today for follow-up.
her Neurontin.
2006.

This note states:

She wants to get a refill on

She had surgery with Dr. Ignatiadis on May 16,

She said she’s had significant improvement since this

surgery.

She says she is having half as much pain now than she did

before.”

Id.

Claimant is reminded that the relevant time period

for this DIB claim is June 1, 1998 to March 31, 2003 and that the
ALJ found: “The medical evidence shows that the claimant’s problems
mainly

started

in

March

2006,

which

is

after

her

date

last

insured.” (Tr. at 13.)
Evaluation of Mental Impairment
Claimant next argues that the ALJ erred when he determined
that her depression and anxiety were not severe enough to prevent
her from working.

(Pl.'s Br. at 7-8.)

Specifically, Claimant

asserts: “Plaintiff began complaining of depression in September of
2000...symptoms continued into 2002...medications did not relieve
her symptoms completely because she continued to complain of
symptoms...the Plaintiff’s moderate mental illnesses should be
deemed a non-severe impairment that nonetheless limits her ability

22

to work.”

Id.

The Commissioner responds that the ALJ appropriately addressed
Claimant’s mental impairments.

(Def.’s Br. at 8-9.) Specifically,

the Commissioner argues:
Dr.
Saxe
treated
Plaintiff’s
mental
impairments
exclusively with medication and did not refer her to a
psychiatrist, psychologist, or counselor during the
relevant time period (Tr. 282-313). Further, during the
relevant time period Dr. Saxe commented that Plaintiff’s
depression was stable and that Plaintiff was doing well
on Celexa, but changed her medication to Lexapro because
the Celexa caused weight gain (Tr. 284, 292, 313).
Plaintiff last saw Dr. Saxe during the relevant time
period on November 12, 2002, and following that visit,
Plaintiff did not return to Dr. Saxe for any treatment
until February 10, 2004, which is ten months after her
insured status expired (Tr. 282, 284).
Id.
The five-step sequential evaluation process applies to the
evaluation of both physical and mental impairments.

20 C.F.R. §

404.1520a (a) (2010). In addition, when evaluating the severity of
mental impairments, the Social Security Administration implements
a “special technique,” outlined at 20 C.F.R. § 404.1520a. Id.
First, symptoms, signs, and laboratory findings are evaluated to
determine whether a claimant has a medically determinable mental
impairment.

§§

404.1520a(b)(1)(2010).

Second,

if

the

ALJ

determines that an impairment(s) exists, the ALJ must specify in
his/her decision the symptoms, signs, and laboratory findings that
substantiate the presence of the impairment(s). §§ 404.1520a(b)(1)
and (e)(2010).

Third, the ALJ then must rate the degree of

23

functional

limitation

resulting

from

the

impairment(s).

§§

404.1520a(b)(2)(2010). Functional limitation is rated with respect
to

four

broad

areas

(activities

of

daily

living,

social

functioning, concentration, persistence or pace, and episodes of
decompensation). §§ 404.1520a(c)(3)(2010).

The first three areas

are rated on a five-point scale: None, mild, moderate, marked, and
extreme. The fourth area is rated on a four-point scale: None, one
or two, three, four or more. §§ 404.1520a(c)(4)(2010). A rating of
“none” or “mild” in the first three areas, and a rating of “none”
in the fourth area will generally lead to a conclusion that the
mental impairment is not “severe,” unless the evidence indicates
otherwise.

§§

404.1520a(d)(1)(2010).

Fourth,

if

a

mental

impairment is “severe,” the ALJ will determine if it meets or is
equivalent in severity to a mental disorder listed in Appendix 1.
§§

404.1520a(d)(2)(2010).

Fifth,

if

a

mental

impairment

is

“severe” but does not meet the criteria in the Listings, the ALJ
will assess the claimant’s residual functional capacity.
404.1520a(d)(3) (2010).

§§

The ALJ incorporates the findings derived

from the analysis in the ALJ’s decision:
The decision must show the significant history, including
examination and laboratory findings, and the functional
limitations that were considered in reaching a conclusion
about the severity of the mental impairment(s). The
decision must include a specific finding as to the degree
of limitation in each of the functional areas described
in paragraph (c) of this section.
§§ 404.1520a(e)(2) (2010).

24

In this case, the Claimant argues that the ALJ erred in
concluding that her depression and anxiety were non-severe. (Pl.’s
Br. at 7-8.) The court finds that the ALJ’s decision reflects
appropriate use of the “special technique,” set forth above, to
evaluate

Claimant’s

mental

impairments.

(Tr.

at

11-16.)

In

reaching his conclusion about the severity of those impairments,
the ALJ considered Claimant’s treatment history with Dr. Saxe and
the findings of the State agency medical experts:
In regards to depression, she was never hospitalized for
a psychiatric condition and did not receive any outpatient treatment.
Her only treatment was from her
primary care physician and she reported that her
medication helps with depression (Exhibit 5F). A second
mental assessment at the reconsideration level found no
mental impairments based on insufficient evidence prior
to her date last insured (Exhibits 12F and 13F). Dr.
Robert Marshall, a medical expert, noted no physical
basis during the period from June 1, 1998 through March
31, 2003 because at that time the record did not indicate
any reason for her allegations other than follow-ups for
depression...Dr. Marshall went on the [sic, to] say that
“I find no evidence that she was physically disabled
during the time period in question. I can’t find that at
anytime from 1998 to 2003 she had a psychological
evaluation. It’s impossible for me to declare whether
her psychological problems would have prevented her from
working.
My conclusions refer only to her physical
state” (Exhibit 27F)...
As for the opinion evidence, Dr. Saxe did not provide a
functional capacity assessment (Exhibit 5F). The state
agency found no impairments due to insufficient evidence
prior to her date last insured (Exhibit 9F). All other
functional capacity assessments were made after her date
last insured is [sic] therefore insufficient evidence
(Exhibits 24F, 25F, and 28F).
(Tr. at 14-16.)
Accordingly, the undersigned finds that substantial evidence
25

supports the ALJ’s finding that Claimant’s mental impairments were
non-severe during the relevant time period.
Credibility
Claimant next argues that the ALJ erred in determining that
Claimant

was

not

fully

credible.

(Pl.'s

Br.

at

11-12.)

Specifically, Claimant asserts that “her testimony is entitled to
full

credibility

because

her

exertional

and

non-exertional

impairments are disabling in nature...Furthermore, [her] testimony
is consistent, because she continuously complained of her back pain
when she visited her treating physician (Exhibit 5F).”

Id.

The Commissioner responds that the evidence relating to the
period from June 1, 1998 to March 31, 2003, confirms the accuracy
of the ALJ’s credibility finding.

Specifically, the Commissioner

asserts:
Plaintiff acknowledged that prior to March 31, 2003, she
drove without restrictions (Tr. 37).
She also
acknowledged that prior to March 31, 2003, she could walk
a quarter of a mile, could stand for “three hours solid,”
had no difficulty using her hands, could lift between ten
and fifteen pounds, and could sit for two or three hours
at a time (Tr. 41). Additionally, she acknowledged that
prior to March 31, 2003, she cooked, washed laundry, and
shopped, as well as gardened when she could (Tr. 42).
The clinical notes of Dr. Saxe, Plaintiff’s primary care
physician,
also
fail
to
demonstrate
disabling
limitations. As noted above, Dr. Saxe treated Plaintiff
for both physical and mental impairments and did not
mention functional limitations.
(Def.’s Br. at 7-8.)
Social Security Ruling 96-7p clarifies when the evaluation of

26

symptoms, including pain, under 20 C.F.R. § 404.1529 requires a
finding about the credibility of an individual's statements about
pain or other symptom(s) and its functional effects; explains the
factors to be considered in assessing the credibility of the
individual's statements about symptoms; and states the importance
of explaining the reasons for the finding about the credibility of
the individual's statements.

The Ruling further directs that

factors in evaluating the credibility of an individual's statements
about pain or other symptoms and about the effect the symptoms have
on his or her ability to function must be based on a consideration
of all of the evidence in the case record.

This includes, but is

not limited to:
- The medical signs and laboratory findings;
- Diagnosis, prognosis, and other medical opinions provided
by treating or examining physicians or psychologists and
other medical sources; and
- Statements and reports from the individual and from
treating or examining physicians or psychologists and
other persons about the individual's medical history,
treatment and response, prior work record and efforts to
work, daily activities, and other information concerning
the individual's symptoms and how the symptoms affect the
individual's ability to work.
Regarding

Claimant’s credibility,

27

the

ALJ

made

extensive

findings:
I find the claimant is not fully credible. I have given
her the benefit of the doubt and have accepted some
limitations based on her testimony; however, her
testimony is very inconsistent and there is minimal
objective evidence showing a basis for such extreme
limitations.
During the time period in question, the
state agency found no diagnosis as there was insufficient
evidence prior to her date last insured (Exhibit 9F). In
regards to depression, she was never hospitalized for a
psychiatric condition and did not receive any out-patient
treatment. Her only treatment was from her primary care
physician and she reported that her medication helps with
depression (Exhibit 5F). A second mental assessment at
the reconsideration level found no mental impairments
based on insufficient evidence prior to her date last
insured (Exhibits 12F and 13F). Dr. Robert Marshall, a
medical expert, noted no physical basis during the period
from June 1, 1998 through March 31, 2003 because at that
time the record did not indicate any reason for her
allegations other than follow-ups for depression. The
records from the office of Dr. Saxe and other sources,
refer to many problems, including dysmenorrhea, neck
pain, headaches (probably tension vs. migraine), skin
eruptions, enlarged glands (no specific diagnosis) and
lymphadenopathy on the right side. She was exposed to
chemicals which made her lungs worse, but the predominant
problems appears to have been depression with some
anxiety. She was given prescriptions for a number of
acute problems by Dr. Saxe or his office staff, including
Paxil, Prozac, Zoloft (which did seem to help) and Celexa
which helped but made her gained [sic, gain] weight.
There was passing reference or two during 1998 to 2003 to
low back ache, but this was not a major complaint. When
Dr. Weinswig, neurosurgeon, saw her in 2001 it had
nothing to do with her back but rather for evaluation of
discomfort at the back of her head (no specific
diagnosis). Her neurological exam was completely normal.
Dr. Marshall went on the [sic, to] say that “I find no
evidence that she was physically disabled during the time
period in question. I can’t find that at anytime from
1998 to 2003 she had a psychological evaluation. It’s
impossible for me to declare whether her psychological
problems would have prevented her from working.
My
conclusions refer only to her physical state” (Exhibit
27F). She testified that her worse problem during that
time was her back. In May 2007 she reported that she
28

eats dinner at her in-laws every Sunday and does laundry
with help. On good days she fixes a family dinner and
goes to the post office. She takes care of her children
and husband and has no help with bathing, only with
fastening her bra. She drives a car and is able to pay
her bills. She watches television and reads. She was
also able to fly from Houston, Texas to Yeager Airport in
Charleston, West Virginia and then she appeared in
Huntington, West Virginia for her hearing. Accordingly,
I find that the claimant is not fully credible.
As for the opinion evidence, Dr. Saxe did not provide a
functional capacity assessment (Exhibit 5F). The state
agency found no impairments due to insufficient evidence
prior to her date last insured (Exhibit 9F). All other
functional capacity assessments were made after her date
last insured is [sic] therefore insufficient evidence
(Exhibits 24F, 25F, and 28F).
(Tr. at 15-16.)
With respect to Claimant’s argument that the ALJ wrongfully
discredited

Claimant’s

subjective

undersigned

finds

the

that

ALJ

complaints
properly

of

pain,

weighed

the

Claimant’s

subjective complaints of pain in keeping with the applicable
regulations, case law, and social security ruling (“SSR”) and that
his findings are supported by substantial evidence.

20 C.F.R. §

404.1529(b) (2006); SSR 96-7p, 1996 WL 374186 (July 2, 1996); Craig
v. Chater, 76 F.3d 585, 594 (4th Cir. 1996).

The ALJ’s decision

contains a thorough consideration of Claimant’s daily activities,
the location, duration, frequency, and intensity of Claimant’s pain
and

other

symptoms,

precipitating

and

aggravating

factors,

Claimant’s medication, and treatment other than medication.
at 15-16.)
entirely

(Tr.

The ALJ explained his reasons for finding Claimant not
credible,

including

the
29

objective

findings,

the

conservative nature of Claimant’s treatment, and her broad range of
self-reported daily activities.

Id.

RFC, Grid Rules, and Jobs in National Economy
Claimant next makes three arguments pertaining to steps four
and five of the sequential evaluation process: (1) She asserts that
the ALJ erred in finding that she had the residual functional
capacity [RFC] to perform light work because her combination of
impairments equals a listed impairment - “her tiredness would make
it impossible to complete a full day’s work...epidural injections
should be sufficient to establish pain at a level that would
prevent Plaintiff from working”; (2) She is disabled under Rule
201.17 of the Medical-Vocational Guidelines (grid rules), 20 C.F.R.
Part 404, Subpart P, Appendix 2; and (3) The ALJ erred in finding
that she can perform other work in the national economy.

(Pl.'s

Br. at 9-10, 13-14).
The Commissioner responds that (1) the ALJ properly determined
Claimant’s RFC; (2) the grid rules claim has no merit because the
grid rule requires that the claimant be illiterate or unable to
communicate in English, and Claimant has stated that she obtained
a GED and never required special education instruction and (3) the
claim that she cannot perform other work in the national economy
fails because Dr. Saxe’s reports do not reveal disabling functional
limitations during the relevant time period and what limitations
Dr. Saxe may have suggested were incorporated into the ALJ’s

30

hypothetical question to the vocational expert (Tr. 54).

(Def.’s

Br. at 9.)
At steps four and five of the sequential analysis, the ALJ
must determine the claimant’s residual functional capacity (RFC)
for substantial gainful activity. “RFC represents the most that an
individual can do despite his or her limitations or restrictions.”
See Social Security Ruling 96-8p, 61 Fed. Reg. 34474, 34476 (1996).
Looking at all the relevant evidence, the ALJ must consider the
claimant’s ability to meet the physical, mental, sensory and other
demands of any job.

20 C.F.R. § 404.1545(a) (2010).

“This

assessment of your remaining capacity for work is not a decision on
whether you are disabled, but is used as the basis for determining
the particular types of work you may be able to do despite your
impairment(s).”

Id.

“In determining the claimant's residual

functional capacity, the ALJ has a duty to establish, by competent
medical

evidence,

the

physical

and

mental

activity

that

the

claimant can perform in a work setting, after giving appropriate
consideration to all of her impairments.”

Ostronski v. Chater, 94

F.3d 413, 418 (8th Cir. 1996).
The

RFC

Commissioner.

determination

is

an

issue

reserved

See 20 C.F.R. § 404.1527(e)(2) (2010).

In determining what a claimant can do despite
his limitations, the SSA must consider the
entire record, including all relevant medical
and nonmedical evidence, such as a claimant's
own statement of what he or she is able or
unable to do.
That is, the SSA need not
31

to

the

accept only physicians' opinions. In fact, if
conflicting medical evidence is present, the
SSA has the responsibility of resolving the
conflict.
Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citations
omitted).
In

the

subject

claim,

the

ALJ

made

extensive

findings

regarding Claimant’s RFC, the Medical-Vocational Guidelines (grid
rules), and whether Claimant can perform other work in the national
economy:
After careful consideration of the entire record, the
undersigned finds that, through the date last insured,
the claimant had the RFC to perform light work as defined
in 20 C.F.R. 404.1567(b) except sitting/standing two
hours at a time throughout the day and no work at heights
or around dangerous machinery.
In making this finding, the undersigned has considered
all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with objective
medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p.
The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p...
As for the opinion evidence, Dr. Saxe did not provide a
functional capacity assessment (Exhibit 5F). The state
agency found no impairments due to insufficient evidence
prior to her date last insured (Exhibit 9F). All other
functional capacity assessments were made after her date
last insured is [sic] therefore insufficient evidence
(Exhibits 24F, 25F, and 28F). In regard to Dr. Craig’s
assessment, I find it was not applicable as it is based
solely on the claimant subjective complaints and not on
objective medical evidence. Furthermore, Dr. Craig saw
her on only one visit and there is no basis for extreme
limitations based on the minimal medical evidence prior
to 2003. Accordingly, I have given a lot of weight to
Dr. Marshall and his conclusion is very thorough and
persuasive as well as consistent with the weight of the
32

evidence for the time period of June 1, 1998 through
March 31, 2003...
The vocational expert testified that she could not
perform her past relevant work. Accordingly, I find the
claimant was unable to perform past relevant work...
The claimant has at least a high school education and is
able to communicate in English...
Transferability of job skills is not material to the
determination of disability because the MedicalVocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2)...
Through the date last insured, considering the claimant’s
age, education, work experience, and RFC, there were jobs
that existed in significant numbers in the national
economy that the claimant could have performed (20 CFR
404.1569 and 404.1569a)...
Through the date last insured, if the claimant had the
RFC to perform the full range of light work, a finding of
“not disabled” would be directed by Medical-Vocational
Rule 202.21. However, the claimant’s ability to perform
all or substantially all of the requirements of this
level of work was impeded by additional limitations. To
determine the extent to which these limitations erode the
unskilled light occupational base, through the date last
insured, the ALJ asked the vocational expert whether jobs
existed in the national and regional...economies for an
individual with the claimant’s age, education, work
experience, and RFC.
The vocational expert testified
that given all of these factors the individual would have
been able to perform at the light level of exertions as
follows: clerical...and survey interviewer...Examples at
the sedentary level of exertion were provided as follows:
telephone order clerk...and clerical...Pursuant to SSR
00-4p, the vocational expert’s testimony is consistent
with the information contained in the Dictionary of
Occupational Titles.
At the first hearing, Attorney Redd asked the vocational
expert to consider the claimant would miss work as
frequently as twice a month, would she be able to retain
employment.
The vocational expert testified that she
33

would not be able to maintain employment. I reject this
assessment as it is based on the claimant’s credible and
I do not find the claimant to be fully credible.
(Tr. at 13-17.)
“The Listing of Impairments describes, for each of the major
body systems, impairments that are considered severe enough to
prevent an adult from doing any gainful activity,” see 20 C.F.R. §
404.1525(a)(2010), regardless of age, education or work experience,
see Sullivan v. Zebley, 493 U.S. 521, 532 (1990).

“For a claimant

to qualify for benefits by showing that his unlisted impairment, or
combination of impairments, is ‘equivalent’ to a listed impairment,
he must present medical findings equal in severity to all the
criteria for the one most similar listed impairment.”

See id. at

531.
With respect to Claimant’s argument that the ALJ erred because
her combination of impairments equals a listed impairment, the
court

finds

this

argument

to

be

without

merit.

Under

the

regulations, it is Claimant’s burden to prove that her condition
equals the criteria of one of the listed impairments.

In the

subject claim, Claimant has failed to meet this burden and the
undersigned finds that the ALJ generously determined Claimant’s RFC
to

be

light

with

additional

limitations,

and

even

had

the

vocational expert testify as to sedentary exertion level jobs that
Claimant would be able to perform. (Tr. at 54-55.)
Further, Claimant’s grid rules claim has no merit because the

34

grid rule requires that the claimant be illiterate or unable to
communicate in English.
Rule 202.17 (2010).
(Tr. at 37.)

20 C.F.R., Part 404, Subpt. P, App. 2,

Claimant testified that she obtained a GED.

Also, additional documentation shows that Claimant

did not require special education instruction during her education
and acquired a Certified Nursing Assistant (CNA) diploma. (Tr. at
53, 179.)

Claimant’s assertion that she cannot perform other work

in the national economy fails because the records of her treating
physician,

Dr.

Saxe,

do

not

demonstrate

disabling

functional

limitations during the relevant DIB time period of June 1, 1998
through March 31, 2003.

(Tr. at 270-325.)

Also, any medical

limitations Dr. Saxe may have suggested were incorporated into the
ALJ’s hypothetical question to the vocational expert. (Tr. 53-56.)
After a careful consideration of the evidence of record, the
court finds that the Commissioner’s decision is supported by
substantial evidence.

Accordingly, by Judgment Order entered this

day, the final decision of the Commissioner is AFFIRMED and this
matter is DISMISSED from the docket of this court.
The Clerk of this court is directed to transmit copies of this
Order to all counsel of record.
ENTER: September 28, 2011

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