Sergent v. Colvin

Filing 13

MEMORANDUM OPINION denying Plaintiff's 9 MOTION for Judgment on the Pleadings; granting Defendant's 10 MOTION for Judgment on the Pleadings; affirming the final decision of the Commissioner; dismissing this mater from the docket of this Court. Signed by Magistrate Judge Omar J. Aboulhosn on 3/28/2016. (cc: counsel of record) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JESSICA LEE SERGENT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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MEMORANDUM

CIVIL ACTION NO. 2:15-00352

OPINION

This is an action seeking review of the decision of the Commissioner of Social Security
denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI), under Titles II and XVI of the Social Security Act, 42 U.S.C. '' 401-433, 13811383f. This case is presently pending before the Court on the Parties= cross-Motions for Judgment
on the Pleadings. (Document Nos. 9 and 10.) Both parties have consented in writing to a decision
by the United States Magistrate Judge. (Document Nos. 3 and 4.)
The Plaintiff, Jessica Lee Sergent (hereinafter referred to as AClaimant@), filed applications
for DIB and SSI on October 18, 2011 (protective filing date), alleging disability as of December
6, 2008,1 due to “neck injury, headaches, nerve damage to right arm and shoulder, depression,
[and] arthritis.@2 (Tr. at 10, 176-77, 178-79, 180-85, 216, 233.) The claims were denied initially
and upon reconsideration. (Tr. at 10, 56-93, 94-96, 99-101, 109-11, 113-15, 116-18, 120-22.) On
July 17, 2012, Claimant requested a hearing before an Administrative Law Judge (ALJ). (Tr. at

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At the administrative hearing, Claimant amended her alleged onset date to April 1, 2009. (Tr. at 48.)

On her form Disability Report – Appeals, dated July 25, 2012, Claimant alleged the following changes in her
medical conditions: “Neck has got[ten] worse, having more pain, more numbness in my right arm and hand, disc in
my neck is pushing into my spinal cord.” (Tr. at 267.)

123-24.) The hearing was held on June 10, 2013, before the Honorable Maria Hodges. (Tr. at 2755.) By decision dated July 15, 2013, the ALJ determined that Claimant was not entitled to
benefits. (Tr. at 10-21.) The ALJ=s decision became the final decision of the Commissioner on
November 14, 2014, when the Appeals Council denied Claimant=s request for review. (Tr. at 1-5.)
On January 7, 2015, Claimant brought the present action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. ' 405(g). (Document No. 1.)
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, 416.920 (2013). If an individual is found "not disabled"
at any step, further inquiry is unnecessary. Id. '' 404.1520(a), 416.920(a). The first inquiry under
the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. ''
404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from
a severe impairment. Id. '' 404.1520(c), 416.920(c). 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. Id. '' 404.1520(d), 416.920(d). 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. 20 C.F.R. ''
404.1520(e), 416.920(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
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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), 416.920(f) (2013). The
Commissioner must show two things: (1) that the 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).
When a claimant alleges a mental impairment, the Social Security Administration Amust
follow a special technique at every level in the administrative review process.@ 20 C.F.R. ''
404.1520a(a) and 416.920a(a). First, the SSA evaluates the claimant=s pertinent symptoms, signs
and laboratory findings to determine whether the claimant has a medically determinable mental
impairment and documents its findings if the claimant is determined to have such an impairment.
Second, the SSA rates and documents the degree of functional limitation resulting from the
impairment according to criteria as specified in 20 C.F.R. '' 404.1520a(c) and 416.920a(c). Those
sections provide as follows:
(c) Rating the degree of functional limitation. (1)Assessment of functional
limitations is a complex and highly individualized process that requires us to
consider multiple issues and all relevant evidence to obtain a longitudinal picture
of your overall degree of functional limitation. We will consider all relevant and
available clinical signs and laboratory findings, the effects of your symptoms, and
how your functioning may be affected by factors including, but not limited to,
chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent
to which your impairment(s) interferes with your ability to function independently,
appropriately, effectively, and on a sustained basis. Thus, we will consider such
factors as the quality and level of your overall functional performance, any episodic
limitations, the amount of supervision or assistance you require, and the settings in
which you are able to function. See 12.00C through 12.00H of the Listing of
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Impairments in appendix 1 to this subpart for more information about the factors
we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the
degree of your functional limitation: Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. See 12.00C
of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas
(activities of daily living, social functioning; and concentration, persistence, or
pace), we will use the following five-point scale: None, mild, moderate, marked,
and extreme. When we rate the degree of limitation in the fourth functional area
(episodes of decompensation), we will use the following four-point scale: None,
one or two, three, four or more. The last point on each scale represents a degree of
limitation that is incompatible with the ability to do any gainful activity.
Third, after rating the degree of functional limitation from the claimant=s impairment(s), the SSA
determines their severity. A rating of Anone@ or Amild@ in the first three functional areas (activities
of daily living, social functioning; and concentration, persistence, or pace) and Anone@ in the fourth
(episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless
evidence indicates more than minimal limitation in the claimant=s ability to do basic work
activities. 20 C.F.R. '' 404.1520a(d)(1) and 416.920a(d)(1).

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Fourth, if the claimant=s

impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe
impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate

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20 C.F.R. Pt. 404, Subpt. P, App. 1, ' 12.04, provides that affective disorders, including
depression, will be deemed severe when (A) there is medically documented continuous or
intermittent persistence of specified symptoms and (B) they result in two of the following: marked
restriction of activities of daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence or pace; or repeated episodes of
decompensation , each of extended duration or (C) there is a medically documented history of a
chronic affective disorder of at least 2 years= duration that has caused more than a minimal
limitation of ability to do basic work activities with symptoms currently attenuated by medication
or psychosocial support and (1) repeated extended episodes of decompensation; (2) a residual
disease process resulting in such marginal adjustment that a minimal increase in mental demands
or change in the environment would cause decompensation; or (3) a current history of 1 or more
years= inability to function outside a highly supportive living arrangement, and the indication of a
continued need for such an arrangement.
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listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental
disorder. 20 C.F.R. '' 404.1520a(d)(2) and 416.920a(d)(2). Finally, if the SSA finds that the
claimant has a severe mental impairment(s) which neither meets nor equals a listed mental
disorder, the SSA assesses the Claimant=s residual functional capacity. 20 C.F.R. ''
404.1520a(d)(3) and 416.920a(d)(3). The Regulation further specifies how the findings and
conclusion reached in applying the technique must be documented at the ALJ and Appeals Council
levels as follows:
At the administrative law judge hearing and the Appeals Council levels, the written
decision issued by the administrative law judge and the Appeals Council must
incorporate the pertinent findings and conclusions based on the technique. 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.
20 C.F.R. '' 404.1520a(e)(2) and 416.920a(e)(2) (2013).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry because
although she engaged in substantial gainful activity from December 6, 2008, to March 31, 2009,
Claimant had not engaged in substantial gainful activity since April 1, 2009, the amended alleged
onset date. (Tr. at 12-13, Finding Nos. 2 and 3.) Under the second inquiry, the ALJ found that Claimant
suffered from degenerative disc disease, which was a severe impairment. (Tr. at 13, Finding No. 4.) At
the third inquiry, the ALJ concluded that Claimant=s impairment did not meet or equal the level of
severity of any listing in Appendix 1. (Tr. at 14, Finding No. 5.) The ALJ then found that Claimant had
a residual functional capacity to perform light exertional level work, as follows:
[T]he [C]laimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b), except she can frequently balance, stoop,
kneel, and climb ramps and stairs, but can only occasionally crouch, crawl, and climb
ladders, ropes, and scaffolds. She can occasionally reach overhead and can frequently

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handle and finger with her right, dominant arm; she can frequently reach in all other
directions. She must avoid concentrated exposure to extreme cold, wetness, humidity,
vibrations, pulmonary irritants, and workplace hazards.
(Tr. at 15, Finding No. 6.) At step four, the ALJ found that Claimant was able to perform her past
relevant work as a clerical worker and cashier. (Tr. at 19, Finding No. 7.) On the basis of testimony of
a Vocational Expert (AVE@) taken at the administrative hearing, the ALJ further concluded that
Claimant could perform jobs such as a routing clerk and counter clerk, at the unskilled, light level of
exertion, and as a bench worker and a security monitor at the unskilled, sedentary level of exertion.
(Tr. at 20, Finding No. 7.) On these bases, benefits were denied. (Tr. at 20-21, Finding No. 8.)
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 640,
642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is charged with resolving conflicts
in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the Courts Amust
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.

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Claimant=s Background
Claimant was born on August 23, 1979, and was 33 years old at the time of the administrative
hearing, June 10, 2013. (Tr. at 19, 178, 180.) Claimant had at least a high school education and was
able to communicate in English. (Tr. at 19, 232, 234.). Claimant had past relevant work as a clerical
worker, cashier, and nursing assistant. (Tr. at 19, 234, 249-56.)
The Medical Record.
The Court has reviewed all the evidence of record, including the medical evidence, and will
discuss it below in relation to Claimant=s arguments.
On December 6, 2008, Claimant was involved in a motor vehicle accident when the vehicle in
which she was a passenger was rear ended. (Tr. at 326, 329.) Claimant was restrained by her seatbelt
and the airbags were not deployed. (Id.) Nevertheless, Claimant was jarred severely, backward and
forward, and on December 7, 2008, reported to the emergency department at Cabell Huntington
Hospital with complaints of neck pain and headache. (Tr. at 326, 329, 469.) Physical exam revealed
moderate tenderness of the paraspinal muscles of the neck. (Id.) The x-rays of Claimant’s cervical
spine were unremarkable. (Tr. at 343.) She was given a differential diagnosis of cervical strain and was
discharged home in improved condition. (Tr. at 327, 330.)
Claimant returned to the emergency department on December 9, 2008, with complaints of
thoracic back pain and muscle spasm. (Tr. at 305-06, 308-09.) She reported that the onset of pain was
gradual with increased pain down her bilateral trapezius muscles and down the right arm. (Tr. at 305,
308.) Physical exam revealed decreased range of right arm motion due to pain. (Id.) She was diagnosed
with muscle spasm and discharged home with a prescription for Tramadol. (Tr. at 306, 309.)
On April 3, 2009, Claimant treated with Dr. Jon Bowen, M.D., of Lincoln County Primary
Care Center, for a tension headache. (Tr. at 415-16, 1532-33.) She was started on Depakote as a mood
stabilizer and for prophylaxis of the headaches. (Tr. at 416, 1533.) Claimant returned to Dr. Bowen on

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May 19, 2009, with complaints of continued headaches, with a several month history. (Tr. at 417-19,
1534-35.) Dr. Bowen again diagnosed tension headache and prescribed Hydrocodone. (Id.)
Claimant underwent physical therapy for her neck pain from May 29, 2009, through August 3,
2009. (Tr. at 374-78, 1536.)
An MRI scan of Claimant’s cervical spine on October 5, 2009, revealed an apparent annular
tear within the paracentral aspect of the C5-6 disc, with associated degenerative change. (Tr. at 38687, 428-29, 544-46, 587-88, 716-17, 1546-47.)
On October 15, 2009, Dr. Bowen acknowledged Claimant’s complaints of right facet pain in
the cervical spine and diagnosed cervicalgia. (Tr. at 430-31, 590-91, 719-20.) He noted consistently on
physical exam that Claimant had normal strength and gait. (Tr. at 430, 432, 434, 437, 438, 441, 44445, 447, 450, 452, 454, 457, 590.)
On November 4, 2009, Claimant was examined by Dr. James D. Weinstein, M.D., a
neurosurgeon, for complaints of pain in the back of her neck that radiated to the head, shoulders, and
right arm. (Tr. at 392, 572, 574, 699, 701, 1550, 1553.) Dr. Weinstein noted that the MRI scan revealed
modest abnormalities and therefore, he did not recommend surgery. (Id.) He opined that there was a
probability that she would have trouble in the future. (Id.) Claimant returned to Dr. Weinstein on May
12, 2010, at which time he noted that in the intervening six months since he last examined Claimant,
she reported that her condition had worsened with pain in the jaw, ear, and right arm, with finger
numbness. (Tr. at 391, 570-71, 695-96.) He noted that there was no upper motor neuron signs of cord
compression, but that given that her symptoms had worsened, Dr. Weinstein opined that she “might
need surgery.” (Id.)
A further MRI scan of Claimant’s cervical spine on June 1, 2010, revealed a stable appearance
of a right central disc herniation of the protrusion type at C5-6, with no significant neural compression.
(Tr.at 382, 389-90, 440, 547, 567-68, 691-92, 1561.) On June 3, 2010, Dr. Weinstein recommended

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conservative treatment, despite a worsening of Claimant’s symptoms. (Tr. at 388, 565-66, 688-89.)
On April 4, 2011, Dr. Bowen noted continued complaints of right facet pain in the cervical
spine, with trigger points. (Tr. at 449.) Consequently, he administered trigger point injections. (Tr. at
450.) Dr. Bowen continued to administer a series of trigger point injections. (Tr. 452, 454, 457.) On
December 15, 2011, Claimant reported that Dr. Bowen had decreased the strength of her pain
medication, Hydrocodone, and that was unable to handle the pain. (Tr. at 1576.) Physical examination
revealed that Claimant had intact motor and sensory functions, as well as a normal gait. (Tr. at 1577.)
Dr. Bowen administered Claimant’s last trigger point injection on January 11, 2012. (Tr. at
524-25.) On January 31, 2012, Claimant reported neck pain and worsened right upper extremity
numbness, burning, and pain. (Tr. at 1580.) Physical exam revealed decreased right upper extremity
motion secondary to pain, equal grip strength bilaterally, and no decreased in muscle tone. (Tr. at
1581.) On March 30, 2012, Claimant reported constant neck pain, with occasional sharp pains in her
right arm. (Tr. at 1583.) Claimant advised that the Neurontin helped with the occasional sharp pains.
(Id.) Physical exam revealed muscle spasm in the upper trapezius, mostly on the right. (Tr. at 1585.)
Claimant signed a controlled substance agreement and it was recommended that she have a further
MRI. (Id.)
On April 6, 2012, an MRI scan of Claimant’s cervical spine revealed right paracentral disc
extrusion at C5-6. (Tr. at 548, 1587.)
On April 12, 2012, Dr. Bruce A. Guberman, M.D., an internal medicine and cardiovascular
specialist, examined Claimant at the request of her attorney. (Tr. at 469-78.) Claimant reported that
since her injury, the neck pain progressively worsened and she experienced constant, sharp to dull pain
in the cervical spine with radiation into the posterior aspect of her head, and at times the sides and front
of her head with the right side more severely involved than the left side. (Tr. at 471.) She reported
radiation of pain into both shoulders, right greater than the left and radiation into the fingers of her

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right hand. (Id.) She stated that she had numbness, tingling, and weakness of her right hand and arm,
with intermittent shaking of her right hand and arm. (Id.) Her neck pain was made worse by rapid head
movements or by turning the head far in either direction. (Id.) Claimant also reported almost constant
pain in the thoracic region of the spine, without radiation. (Id.)
Physical examination revealed an antalgic, but steady gait and that Claimant was
uncomfortable in the supine and sitting position. (Tr. at 472.) Claimant exhibited severe tenderness of
the cervical spine and mild tenderness of the thoracic spine, without spasm. (Tr. at 473.) She had
reduced ranges of motion. (Id.) Claimant had moderate tenderness of the right shoulder, with reduced
range of motion and had normal elbow range of motion. (Id.) She was able to button and pick up coins
with either hand without difficulty and was able to write normal with the dominant, right hand. (Tr. at
474.) Dr. Guberman noted weakness of the right arm, graded at 4/5. (Id.) Dr. Guberman diagnosed
acute and chronic cervical and thoracic spine strain, post-traumatic. (Id.) Dr. Guberman opined that
Claimant’s diagnoses and symptoms, causally and solely were related to the motor vehicle accident
injury on December 6, 2008. (Tr. at 474-75.) He opined that Claimant had reached maximum medical
improvement and that “further improvement is not likely with any planned treatment. (Tr. at 475.) Dr.
Guberman further opined that “her condition, symptoms, impairment and limitations of activities of
daily living with radiculopathy will continue to progressively worsen.” (Id.) He believed that she would
require permanent chronic medical follow-up that included medication, physician visits, and injections.
(Id.) Dr. Guberman also thought that she needed to see Dr. Weinstein in the near future for further
reconsideration of surgery. (Id.) He believed that she eventually would require “disc surgery with
discectomy and fusion at the C5-C6 level.” (Id.) Surgery would be required because her signs and
symptoms of radiculopathy had progressed. (Id.) Dr. Guberman further opined that Claimant had
permanent limitations in her ability to perform daily activities, which made her unable to maintain her
prior employment. (Id.) Consequently, Dr. Guberman opined that Claimant had significant limitations

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in her ability to sit, stand, bend, stoop, lift, carry, push, or pull and in her ability to use her arms
overhead to carry, lift, push, pull, or perform repeated activities. (Id.) He recommended an eighteen
percent impairment of the whole person for the cervical spine aspect of Claimant’s injury and a seven
percent impairment of the whole person for the thoracic spine aspect of her injury, for a total of 24
percent impairment of the whole person. (Tr. at 475-76.)
On May 3, 2012, Dr. Weinstein acknowledged Claimant’s increased symptoms and noted that
the MRI of April 6, 2012, showed a progression of the slight disc herniation that previously was
evident. (Tr. at 551, 645-46, 670-71, 1588.) He opined that Claimant had “reached the point that I
would recommend surgery.” (Tr. at 551, 645, 670, 1588.) Dr. Weinstein noted that Claimant had been
examined by Dr. Alberico, who will perform the surgery. (Id.) Dr. Anthony Alberico, M.D., also
examined Claimant on May 3, 2012, and opined that she would benefit from ACDF at C5-C6. (Tr. at
552, 1588.)
On May 10, 2012, at the request of Claimant’s attorney, Claimant was referred to Elizabeth
Davis, R.N., a Certified Life Care Planner and Rehabilitation Counselor, for a rehabilitation
assessment. (Tr. at 598-609.) Ms. Davis concluded that Claimant was suitable to performing sedentary
and light, unskilled work on a part-time basis, or up to 20 hours per week, which reflected Dr.
Guberman’s recommendations for physical limitations. (Tr. at 608.)
On May 25, 2012, Dr. Rabah Boukhemis, M.D., a State agency reviewing medical consultant
conducted a physical RFC assessment and concluded that Claimant was capable of lifting 20 pounds
occasionally and 10 pounds frequently and sit, stand, or walk for six hours in an eight-hour workday.
(Tr. at 78.) Dr. Boukhemis assessed postural limitations and recommended that she avoid concentrated
exposure to extreme cold, wetness, humidity, vibration, environmental irritants, and hazards. (Tr.at 78/79.)
On August 9, 2012, Claimant underwent an independent neurological evaluation by Dr.

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Constantino Y. Amores, at the request of her attorney. (Tr. at 612-34.) Claimant reported that he drove
40 miles to the evaluation and continuously sat for the duration of the two hour evaluation without
complaining of pain except when asked to move her head. (Tr. at 614.) On physical examination,
Claimant exhibited significantly limited range of neck motion, worse on extension and turning to the
right when she complained of the pain and numbness radiating to the right arm. (Tr. at 615.) She had
a normal gait and full active range of motion of all extremities. (Id.) Dr. Amores noted pain and
tenderness to palpation of the right para vertebral muscles and diagnosed herniated C5-6 disc with
radiculopathy, cervical spondylosis, and chronic pain syndrome. (Id.) He opined that there definitely
was a causal relationship between Claimant’s complaints and reported injury and that her prognosis
was guarded, “particularly with the chronic pain syndrome and the prolonged use of pain medications.”
(Tr. at 616.) Dr. Amores further opined that Claimant’s herniated cervical disc condition was
permanent. (Tr. at 617.)
On August 30, 2012, Dr. Alberico noted that Claimant cancelled the scheduled surgery “due
to obligations with her children.” (Tr. at 637, 660, 1465.) He noted that Claimant’s symptoms had
worsened and that she had progressive numbness in the entire right arm with some additional weakness.
(Id.) She also had developed some left-sided symptoms at the base of her neck into the shoulder, which
did not extend to the hand. (Id.) Dr. Alberico noted decreased motor strength, 4/5, and that the left side
was approaching 5/5. (Tr. at 638, 1466.) He recommended a more recent study, if Claimant intended
to proceed with surgery. (Tr. at 639, 1467.)
An MRI scan of Claimant’s cervical spine on October 1, 2012, revealed right paracentral disc
osteophyte complex at the C5-6 level. (Tr. at 1463-64.) The previously seen extruded fragment at that
level no longer was evidence and there was stable, mild, right-sided canal narrowing. (Tr. at 1464.)
On October 1, 2012, Claimant reported to Dr. Alberico that she experienced neck pain with
radiation to the right arm, with some pain that started to develop on the left side. (Tr. at 1461.) He

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opined that Claimant “would probably benefit from anterior cervical decompression arthrodesis at C56.” (Id.) On November 9, 2012, Dr. Alberico acknowledged Claimant’s complaints of neck pain with
radiation into the right upper extremity. (Tr. at 1458.) Physical exam revealed pain, tingling, and
diminished motor strength on the right, but normal findings on the left. (Tr. at 1460.) He diagnosed
cervical herniated disc in stable condition. (Id.)
On April 24, 2013, Claimant reported that after she lifted a gallon of milk, she experienced
increased pain in her neck, shoulder, and right arm. (Tr. at 1614.) She reported that she felt increased
burning, although the condition had improved. (Id.) Physical examination revealed near normal grip
strength on the right and normal strength on the left. (Tr. at 1615.) She continued to be diagnosed with
cervicalgia. (Id.)
Claimant=s Challenges to the Commissioner=s Decision
Claimant alleges that the Commissioner=s decision is not supported by substantial evidence
because the ALJ improperly assessed her credibility. (Document No. 9 at 5-6.) Citing Coffman v.
Bowen, 829 F.2d 514 (4th Cir. 1987), Claimant argues that she satisfied the requirements of 42 U.S.C.
' 423(d)(5)(A), as her allegations and the medical evidence are mutually supportive. (Id. at 5-6.) She
further argues that the ALJ summarily concluded that she was not entirely credible and that the ALJ’s
use of boilerplate credibility language “will not suffice for a valid credibility determination.@ (Id. at 6.)
Claimant asserts that the ALJ “made improper assumptions” about her testimony and “arrived at unfair
and incorrect conclusions.” (Id.) Specifically, Claimant asserts that the ALJ improperly equated her
fear to elect back surgery to a suggestion that her condition was “not as bothersome as” she alleged.
(Id.) Claimant explains that as a single parent to four children, she was “hesitant to undergo a procedure
that could result in paralysis and thereby impact her ability to raise her children.” (Id.)
In response, the Commissioner contends that substantial evidence supports the ALJ’s
credibility determination. (Document No. 10 at 9-12.) The Commissioner asserts that Claimant’s

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subjective complaints were “quite extreme” and agrees with Claimant that boilerplate language is not
sufficient for a credibility analysis. (Id. at 9-10.) The Commissioner asserts however, that the ALJ
discussed many reasons that supported her credibility determination, including a lack of consistency
in Claimant’s allegations, a lack of consistency between Claimant’s allegations and the record
evidence, the reasons for cancelling her surgery, and Claimant’s reported daily activities. (Id. at 1012.)
Claimant also alleges that the Commissioner’s decision is not supported by substantial
evidence because the ALJ erred in assessing her RFC when she equated Claimant’s ability to driving
40 miles to an evaluation and ability to sit for entire two hours of the evaluation, to the ability to stand,
walk, or sit for six hours out of an eight-hour workday. (Document No. 9 at 6.) She further asserts that
the ALJ erred in summarily rejecting and misconstruing the opinions of Drs. Weinstein, Alberico,
Amores, and Guberman, and relying on the findings of the State agency medical consultants, who were
non-treating and non-examining sources. (Id. at 7-8.)
In response, the Commissioner asserts that substantial evidence supports the ALJ’s analysis of
the medical opinions. (Document No. 10 at 12-15.) The Commissioner asserts that Claimant merely
discusses Dr. Amore’s diagnosis and recommendation for surgery, but provides “no insight into any
work-related functional limitations.” (Id. at 13.) Although the ALJ noted Claimant’s ability to have
driven 40 miles to the evaluation and to sit continuously for two hours during the evaluation, she also
assessed the limited range of motion of Claimant’s neck, with tenderness, but had a normal gait and
full range of extremity motion. (Id.) The Commissioner therefore, contends that substantial evidence
supports the weight accorded Dr. Amore’s opinion. (Id. at 13-14.)
The Commissioner next asserts that substantial weight supports the limited weight the ALJ
gave Dr. Guberman’s opinion. (Id. at 14.) Although Claimant highlights Dr. Guberman’s diagnoses,
MRI results, and estimated medical expenses, the Commissioner asserts that these factors provided no

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insight into Claimant’s functional limitations. (Id.) The Commissioner further asserts that it was proper
for the ALJ to discount Dr. Guberman’s opinion on the basis of Dr. Boukhemis’s opinion. (Id.)
Third, the Commissioner asserts that contrary to Claimant’s argument, the ALJ properly
considered the fact that Drs. Weinstein and Alberico recommended surgery, but the ALJ’s finding that
Claimant’s decision not to proceed suggested that she was not in crippling pain as alleged. (Id. at 1415.)

Analysis.
1. Pain and Credibility Assessment.
Claimant alleges that the ALJ erred in assessing her credibility. (Document No. 9 at 5-6.)
A two-step process is used to determine whether a claimant is disabled by pain or other symptoms.
First, objective medical evidence must show the existence of a medical impairment that reasonably
could be expected to produce the pain or symptoms alleged. 20 C.F.R. '' 404.1529(b) and 416.929(b)
(2013); SSR 96-7p; See also, Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). A claimant=s
Astatements alone are not enough to establish that there is a physical or mental impairment.@ 20 C.F.R.
'' 404.1529(a) and 416.929(a) (2013). If such an impairment is established, then the intensity and
persistence of the pain or symptoms and the extent to which they affect a claimant=s ability to work
must be evaluated. Craig v. Chater, 76 F.3d at 595. When a claimant proves the existence of a medical
condition that could cause the alleged pain or symptoms, Athe claimant=s subjective complaints [of
pain] must be considered by the Secretary, and these complaints may not be rejected merely because
the severity of pain cannot be proved by objective medical evidence.@ Mickles v. Shalala, 29 F.3d 918,
919 (4th Cir. 1994). Objective medical evidence of pain should be gathered and considered, but the
absence of such evidence is not determinative. Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990).
In Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006) (citing Craig v. Chater, 76 F.3d at 595),

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the Fourth Circuit stated:
Although a claimant=s allegations about her pain may not be discredited solely because
they are not substantiated by objective evidence of the pain itself or its severity, they
need not be accepted to the extent they are inconsistent with the available evidence,
including objective evidence of the underlying impairment, and the extent to which
that impairment can reasonably be expected to cause the pain the claimant alleges she
suffers.
A claimant=s symptoms, including pain, are considered to diminish his capacity to work to the
extent that alleged functional limitations are reasonably consistent with objective medical and other
evidence.

20 C.F.R. '' 404.1529(c)(4) and 416.929(c)(4) (2013). Additionally, the Regulations

provide that:
[w]e will consider all of the evidence presented, including information about your prior
work record, your statements about your symptoms, evidence submitted by your
treating, examining, or consulting physician or psychologist, and observations by our
employees and other persons. . . . Factors relevant to your symptoms, such as pain,
which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms.
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of
your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms
(e.g., lying flat on your back, standing for 15 or 20 minutes every hour, sleeping
on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain
or other symptoms.
20 C.F.R. '' 404.1529(c)(3) and 416.929(c)(3) (2013).
SSR 96-7p repeats the two-step regulatory provisions:

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First, the adjudicator must consider whether there is an underlying medically
determinable physical or mental impairment(s)--i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory diagnostic techniques--that
could reasonably be expected to produce the individual=s pain or other symptoms. * *
* If there is no medically determinable physical or mental impairment(s), or if there is
a medically determinable physical or mental impairment(s) but the impairment(s) could
not reasonably be expected to produce the individual=s pain or other symptoms, the
symptoms cannot be found to affect the individual=s ability to do basic work activities.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual=s pain or other symptoms has been
shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of
the individual=s symptoms to determine the extent to which the symptoms limit the
individual=s ability to do basic work activities. For this purpose, whenever the
individual=s statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the individual=s statements based
on a consideration of the entire case record.
SSR 96-7p, 1996 WL 374186 (July 2, 1996). SSR 96-7p specifically requires consideration of the
Atype, dosage, effectiveness, and side effects of any medication the individual takes or has taken to
alleviate pain or other symptoms@ in assessing the credibility of an individual=s statements.
Significantly, SSR 96-7p requires the adjudicator to engage in the credibility assessment as early as
step two in the sequential analysis; i.e., the ALJ must consider the impact of the symptoms on a
claimant=s ability to function along with the objective medical and other evidence in determining
whether the claimant=s impairment is Asevere@ within the meaning of the Regulations. A Asevere@
impairment is one which significantly limits the physical or mental ability to do basic work activities.
20 C.F.R. '' 404.1520(c) and 416.920(c).
Craig and SSR 96-7p provide that although an ALJ may look for objective medical evidence
of an underlying impairment capable of causing the type of pain alleged, the ALJ is not to reject a
claimant=s allegations solely because there is no objective medical evidence of the pain itself. Craig,
76 F.3d at 585, 594; SSR 96-7p (Athe adjudicator must make a finding on the credibility of the
individual=s statements based on a consideration of the entire case record@). For example, the

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allegations of a person who has a condition capable of causing pain may not be rejected simply because
there is no evidence of Areduced joint motion, muscle spasms, deteriorating tissues [or] redness@ to
corroborate the extent of the pain. Id. at 595. Nevertheless, Craig does not prevent an ALJ from
considering the lack of objective evidence of the pain or the lack of other corroborating evidence as
factors in his decision. The only analysis which Craig prohibits is one in which the ALJ rejects
allegations of pain solely because the pain itself is not supported by objective medical evidence.
The ALJ noted the requirements of the applicable law and Regulations with regard to assessing
pain, symptoms, and credibility. (Tr. at 15.) The ALJ found at the first step of the analysis that
Claimant=s Amedically determinable impairments could reasonably be expected to cause the alleged
symptoms.@ (Tr. at 15.) Thus, the ALJ made an adequate threshold finding and proceeded to consider
the intensity and persistence of Claimant=s alleged symptoms and the extent to which they affected
Claimant=s ability to work. (Tr. at 16-19.) At the second step of the analysis, the ALJ concluded that
Athe [C]laimant=s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.@ (Tr. at 16.)
Claimant argues that under the mutually supportive test recognized in Coffman v. Bowen, 829
F.2d 514 (4th Cir. 1987), that she satisfies the requirements of 42 U.S.C. ' 423(d)(5)(A), because the
evidence of record, including her testimony and statements, is supported by substantial evidence.
(Document No. 9 at 5-6.) Claimant has misinterpreted the holding in Coffman. In that case, the issue
was not one of credibility but whether the ALJ applied the appropriate standard in weighing the treating
physician=s opinion that the claimant was disabled from gainful employment. Coffman, 829 F.2d at
517-18. The Fourth Circuit concluded that the ALJ had misstated the legal principles and standards
and improperly discounted the physician=s opinion due to a lack of corroborating evidence. Id. at 518.
The Court held that the correct standard required a treating physician=s opinion to be Aignored only if

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there is persuasive contradictory evidence.@ Id. There, the physician provided medical reports with his
opinion letter. Id. The record also included findings of two other physicians and the testimony of the
claimant. Id. In view of the of the supporting evidence, the Fourth Circuit noted that [b]ecause
Coffman=s complaints and his attending physician=s findings were mutually supportive, they would
satisfy even the more exacting standards of the Social Security Disability Benefits Reform act of 1984,
42 U.S.C. ' 423(d)(5)(A).@ Id. Accordingly, the undersigned finds contrary to Claimant=s argument
that Coffman fails to offer any Amutually supportive@ test applicable to assessing a claimant=s
credibility. For the reasons set forth herein, the undersigned finds Coffman inapposite and Claimant=s
argument without merit.
Claimant also argues that the ALJ=s use of boilerplate credibility language warrants remand
because such boilerplate language “will not suffice for a valid credibility determination.” (Document
No. 9 at 6.) Pursuant to SSR 96-7p, the ALJ Amust consider the entire case record and give specific
reasons for the weight given to the individual=s statements.@ SSR 96-7p, 1996 WL 374186, at *4. AThe
reasons for the credibility finding must be grounded in the evidence and articulated in the determination
or decision.@ Id. The decision Amust contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual=s statements and the
reasons for that weight.@ Id.
In this case, it is clear that the ALJ used boilerplate language regarding the two-step credibility
analysis. (Tr. at 15-16.) However, the ALJ went on to explain the specific reasons for her credibility
determination and specifically cited the medical evidence, Claimant=s testimony and reports,
Claimant=s activities, and the factors set forth in 20 C.F.R. '' 404.1529(c)(3) and 416.929(c)(3).
Accordingly, pursuant to SSR 96-7p, the Court finds that the ALJ=s credibility finding sufficiently was

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articulated and explained with references to the specific evidence that formed her decision. For these
reasons, the Court further finds that the ALJ did not conclude summarily, as Claimant alleges, that she
was not credible.
Finally, with respect to the ALJ’s credibility assessment, Claimant asserts that the ALJ made
improper assumptions regarding Claimant’s election not to proceed with surgery. As the Commissioner
points out, it was the inconsistency in the stated reasons for electing not to proceed with surgery that
caused the ALJ to question Claimant’s credibility and not so much as the decision itself. However, the
ALJ did suggest that the failure to undergo the surgery may have indicated that Claimant’s allegations
of disabling pain were not as severe as alleged, else she would have proceeded with the surgery. As
the Commissioner notes, Claimant told Dr. Alberico on August 30, 2012, that she cancelled the surgery
“due to obligations with her children.” (Tr. at 637, 660, 1465.) At the administrative hearing however,
Claimant testified that she simply had not rescheduled the surgery. (Tr. at 34.) She further testified that
there was no guarantee that the surgery would help her condition. (Tr. at 35.) She stated that it was a
“scary thought to go be cut on not knowing 100% that it’s even going to do any good.” (Id.) Claimant
however, did not mention the fear of paralysis until she submitted her brief. Thus, it was reasonable
for the ALJ to question Claimant’s credibility based upon the differing reasons for failing to proceed
with the surgery.
The Court further notes that in assessing Claimant’s pain and credibility, the ALJ considered
the factors set forth in the Regulations. Accordingly, the Court finds that the ALJ’s pain and credibility
assessment was proper and conducted in accordance with the appropriate Rules and Regulations, and
is supported by the substantial evidence of record.

2. RFC Assessment.
Claimant also alleges that the ALJ erred in assessing her RFC by not according appropriate
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weight to the opinion evidence of record. (Document No. 9 at 6-9.) ARFC represents the most that
an individual can do despite his or her limitations or restrictions.@ See Social Security Ruling 968p, 61 Fed. Reg. 34474, 34476 (1996). Pursuant to SSR 96-8p, the RFC assessment Amust be based
on all of the relevant evidence in the case record,@ including A the effects of treatment@ and the
Alimitations or restrictions imposed by the mechanics of treatment; e.g., frequency of treatment,
duration, disruption to routine, side effects of medication.@ 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), 416.945(a) (2013). AThis 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. AIn 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).
Opinions on a claimant’s Residual Functional Capacity are issues that are reserved to the
Commissioner. The Regulations state that:
We use medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s). Although we
consider opinions from medical sources on issues such as whether your
impairment(s) meets or equals the requirements of any impairment(s) in the Listing
of Impairments in appendix 1 to subpart P of part 404 of this chapter, your residual
functional capacity . . . or the application of vocational factors, the final
responsibility for deciding these issues is reserved to the Commissioner.

See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2) (2013).

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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 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).
The Regulations state that opinions on these issues are not medical opinions as described
in the Regulation dealing with opinion evidence (20 C.F.R. §§ 404.1527(a)(2) and 416.927(a)(2));
rather, they are opinions on issues reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e) and
416.927(e). For that reason, the Regulations make clear that “[w]e will not give any special
significance to the source of an opinion on issues reserved to the Commissioner. . . .” Id. §§
404.1527(e)(3) and 416.927(e)(3). The Regulations further provide that “[f]or cases at the
Administrative Law Judge hearing or Appeals Council level, the responsibility for deciding your
residual functional capacity rests with the Administrative Law Judge or Appeals Council.” See 20
C.F.R. §§ 404.1545 and 416.946 (2012). However, the adjudicator must still apply the applicable
factors in 20 C.F.R. § 416.927(d) when evaluating the opinions of medical sources on issues
reserved to the Commissioner. See Social Securing Ruling (“SSR”) 96-5p, 61 FR 34471, 34473
(1996).
Social Security Ruling 96-5p makes a distinction between an RFC assessment, which is
“the adjudicator’s ultimate finding of ‘what you can still do despite your limitations,’” and a
“‘medical source statement,’ which is a ‘statement about what you can still do despite your
impairment(s)’ made by an individual’s medical source and based on that source’s own medical
findings.” Id. SSR 96-5p states that “[a] medical source statement is evidence that is submitted to
SSA by an individual’s medical source reflecting the source’s opinion based on his or her own
knowledge, while an RFC assessment is the adjudicator’s ultimate finding based on a consideration
of this opinion and all the other evidence in the case record about what an individual can do despite

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his or her impairment(s).” Adjudicators “must weigh medical source statements under the rules set
out in 20 C.F.R. § 416.927, providing appropriate explanations for accepting or rejecting such
opinions.” Id. at 34474.
As discussed above, the ALJ concluded that Claimant was capable of performing light
exertional level work, with frequent and occasional postural limitations. (Tr. at 15.) The ALJ
further found that Claimant was capable of reaching overhead occasionally, handling and fingering
with her right arm frequently, and reaching in all other directions frequently. (Id.) She further
found that Claimant must avoid concentrated exposure to extreme cold, wetness, humidity,
vibrations, pulmonary irritants, and workplace hazards. (Id.) In assessing Claimant’s RFC, the ALJ
considered the opinion evidence of record. (Tr. at 18-19.) The ALJ gave limited weight to the
opinion of Dr. Guberman because his twenty-four percent whole person assessment was not
helpful; during the examination Claimant was capable of maintaining an independent gait without
limitations to her lower extremity functioning or range of motion; and his assessed significant
limitations in her ability to sit, stand, bend, and stoop were unsupported by his own examination
notes. (Tr. at 18.)
The Court finds that the ALJ’s decision to assign little weight to Dr. Guberman’s opinion
is supported by substantial evidence. The ALJ noted that Dr. Guberman’s examination revealed
moderate tenderness of the right shoulder, reduced range of elbow motion, and slight right arm
motor strength weakness. Nevertheless, Claimant was capable of buttoning, picking up coins with
either hand, and writing normal with her dominant hand. The examination in all other respects
essentially was normal. Thus, although Claimant had some limitation and tenderness, the findings
were inconsistent with Dr. Guberman’s opinion that she was unable to work. Moreover, the ALJ’s
RFC was consistent with the opinion of the State agency medical consultant’s opinion, Dr.
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Boukhemis, to whom the ALJ accorded great weight because the opinion was consistent with
Claimant’s demonstration of an intact gait and range of motion findings. (Tr. at 18.) Dr.
Boukhemis’s opinion was consistent with the overall objective evidence that while Claimant
experienced some limitations regarding her right arm and neck, she was able to function with the
right upper extremity. Despite giving great weight to Dr. Boukhemis’s opinion, the ALJ assessed
a greater limitations to occasional overhead reaching, frequent handling and fingering with the
right arm, and frequent reaching in all other directions due to Claimant’s demonstration of
weakness and diminished strength of the right upper extremity. (Id.)
The ALJ also considered Ms. Davis’s opinion and noted although she was not an acceptable
medical source, she found her opinion consistent with Dr. Boukhemis’s opinion and noted that
Ms. Davis had an opportunity actually to examine Claimant. (Tr. at 18.) Accordingly, based on the
foregoing, the Court finds that the ALJ properly considered the opinion evidence, gave appropriate
weight to the various medical sources, and that her RFC assessment is supported by the substantial
evidence of record.
Regarding Dr. Amores, the ALJ summarized his treatment of Claimant. (Tr. at 17.) Dr.
Amores did not necessarily render an opinion, but indicated that Claimant’s conditions were
permanent and that her prognosis was guarded. However, Dr. Amores did not assess any functional
limitations resulting from Claimant’s physical impairments. Dr. Amores acknowledged
Claimant’s complaints of pain and numbness in the right arm and limited range of neck motion.
Nevertheless, Claimant maintained a normal gait and had full and active range of motion of all
extremities. (Tr. at 17, 615.) Claimant highlights only Dr. Amores’s diagnoses and
recommendations of surgery. The diagnoses and recommendation however do not establish a
disability. Accordingly, the Court finds that the ALJ appropriately considered all the medial
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evidence of record and that her RFC assessment is supported by the substantial evidence of record.
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 Plaintiff=s Motion for Judgment on the Pleadings (Document No. 9.) is
DENIED, Defendant=s Motion for Judgment on the Pleadings (Document No. 10.) is GRANTED,
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 send a copy of this Memorandum Opinion to counsel

of record.
ENTER: March 28, 2016.

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