Walker v. Astrue

Filing 16

MEMORANDUM OPINION AFFIRMING the final decision of the Commissioner and DISMISSING this matter from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 2/3/2012. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
BETTY LOU WALKER,
Plaintiff,
v.

Case No.: 3:10-cv-01409

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

MEMORANDUM OPINION
This action seeks a review of the decision of the Commissioner of the Social
Security Administration (hereinafter “Commissioner”) denying Claimant’s applications
for a period of disability and 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, 1381-1383f. This case is presently before the Court on the parties’ cross
motions for judgment on the pleadings as articulated in their briefs. (Docket Nos. 13, 14
and 15). Both parties have consented in writing to a decision by the United States
Magistrate Judge. (Docket Nos. 7 and 8).
The Court has fully considered the evidence and the arguments of counsel. For
the reasons that follow, the Court finds that the decision of the Commissioner is
supported by substantial evidence and should be affirmed.

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I.

Procedural History
Plaintiff, Betty Lou Walker (hereinafter “Claimant”), filed applications for DIB

and SSI on November 20, 2006, alleging that she became disabled on January 26, 2006
due to “low back and shoulder problems and uterine mass.” (Tr. at 114-16, 119-21, and
132). The Social Security Administration (hereinafter “SSA”) denied the claims initially
and upon reconsideration. (Tr. at 10). Thereafter, Claimant requested an administrative
hearing, which was conducted on October 6, 2008 by the Honorable Michelle Cavadi,
Administrative Law Judge (hereinafter “ALJ”). (Tr. at 20-51). By decision dated July 16,
2009, the ALJ determined that Claimant was not entitled to benefits. (Tr. at 10-19). The
ALJ’s decision became the final decision of the Commissioner on October 28, 2010
when the Appeals Council denied Claimant’s request for review. (Tr. at 1-3). Claimant
filed the present action seeking judicial review of the administrative decision pursuant
to 42 U.S.C. §405(g). (Docket No. 2). The Commissioner filed an Answer and a
Transcript of the Administrative Proceedings, and both parties filed their Briefs in
Support of Judgment on the Pleadings. (Docket Nos. 10, 11, 13, 14, and 15).
Consequently, the matter is ripe for resolution.
II.

Claimant’s Background
Claimant was forty-five years old at the time of her administrative hearing. (Tr. at

25). She attended school through the seventh grade and did not obtain a GED. (Tr. at
26). Claimant can read and write, but has trouble doing even simple mathematics. (Id.).
In the fifteen years prior to Claimant’s alleged onset of disability, she worked in
janitorial/housekeeping services. (Tr. at 133).
III.

Relevant Evidence
The Court has reviewed the Transcript of Proceedings in its entirety, including
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the medical records in evidence, and summarizes below Claimant’s medical treatment
and evaluations to the extent that they are relevant to the issues in dispute. As a preface
to the discussion, the Court notes that a substantial number of medical records included
in the Transcript of Proceedings pre-date Claimant’s alleged onset of disability and,
thus, do not directly bear on whether she was disabled during the relevant time period;
however, the Court has reviewed those records and will comment on them as necessary
to elucidate Claimant’s medical background.
A.

Relevant Treatment Records—Pre-onset of Disability

In November 2000, Claimant began treatment with Rodney Thompson, D.C., at
the Thompson Chiropractic Clinic and continued to receive episodic chiropractic care
from him through the disability onset date. (Tr. at 288-326). The records indicate that
Claimant initiated care for complaints of lower back pain that radiated into her legs. (Tr.
at 318). In addition to receiving chiropractic adjustments, Claimant reported using ice
and wearing a lumbar support to reduce her discomfort. (Tr. at 324). Her symptoms
waxed and waned over the next two years. (Tr. at 314-320). She described feeling
numbness and tingling in her legs, popping in her hips, cervical spasms, and tightness in
her low back. (Tr. at 317-320). In September 2002, she developed a severe migraine
headache, which prompted her to seek treatment through the Emergency Department at
Cabell Huntington Hospital. (Tr. at 311).
On March 24, 2003, Dr. Thompson reviewed x-rays of Claimant’s lumbar spine
that were taken at St. Mary’s Medical Center. (Tr. at 309). The x-rays revealed
asymmetry of the facets at L5-S1 with mild degenerative disc disease in the lower spine.
In July 2003, Claimant began to complain of right knee and foot pain, but by August,
Dr. Thompson felt Claimant’s knee was improving with treatment. Claimant continued
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to complain of pain and tenderness in her lumbar, cervical and thoracic spine.
On July 1, 2005, Claimant reported to Dr. Thompson that on June 28, 2005, she
experienced the onset of a severe headache, which was accompanied by cervical muscle
spasms. She sought treatment at the Emergency Department and was diagnosed as
having a migraine headache. (Tr. at 295). Dr. Thompson examined Claimant and found
right cervical focal tenderness and bilateral muscle spasms. He diagnosed cervical
torticollis,1 cerviocogenic headache,2 thoracalgia,3 and thoracic fixation. (Id.). After
several months of more intensive chiropractic treatment, Claimant noted some
improvement. (Tr. at 288).
B.

Relevant Treatment Records—Post-onset of Disability

On February 27, 2006, Claimant advised Dr. Thompson that she had been
horseback riding at home two days earlier and now felt lumbosacral and gluteal pain
and tenderness. (Tr. at 287). Dr. Thompson found Claimant to have a decreased range
of motion and diagnosed cervico-thoracic and lumbosacral strain/sprain. He treated her
with chiropractic adjustments.
On April 26, 2006, Claimant consulted with Diane Mothersbaugh, a certified
family nurse practitioner at Valley Health Systems in Wayne. (Tr. at 202). Claimant
reported feeling “great” and having a good activity level. Claimant’s blood pressure was
measured at 110/76, and Nurse Mothersbaugh noted that Claimant’s hypertension was
controlled. At a follow-up visit on July 19, 2006, Claimant stated that she felt good.
An abnormal condition in which the head is inclined to one side as a result of muscle contractions on
that side of the neck. Also called “wry neck.” Mosby’s Medical Dictionary, 8th Edition. © 2009, Elsevier.

1

2 In chiropractic, a condition in which headaches are the result of cervical subluxations. Mosby’s Medical
Dictionary, 8th Edition. © 2009, Elsevier.

Pain in the chest. Dorland’s Medical Dictionary for Health Consumers. © 2007 by Saunders, an
imprint of Elsevier, Inc.
3

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Nurse Mothersbaugh assessed Claimant to be stable and instructed her to return in four
months. (Tr. at 235).
Claimant returned to Valley Health on October 25, 2006 for her regular followup. (Tr. at 237). She once again stated that she felt good. Claimant had been taking
Crestor for hyperlipidemia and reported having no side effects. Her blood pressure was
measured at 128/70; her lungs were clear; and her heart had regular rhythm and rate.
On examination, Nurse Mothersbaugh palpated a mass in Claimant’s left mid to upper
abdomen. The attending physician, Dr. Hurt, also noted the mass on re-examination,
describing it as a moveable, softball-sized mass. Nurse Mothersbaugh ordered a CT scan
of Claimant’s abdomen and pelvis and laboratory profiles of her liver function and
lipids. (Id.). The laboratory profiles were within normal limits. (Tr. at 245). The CT scan
was interpreted to show a large cystic mass believed to be of the right ovary. The
radiologist’s impression was “cystic neoplasm4 of the right ovary is suspected.” (Tr. at
246). The scan also showed probable uterine fibroids.
On November 13, 2006, Claimant presented to the office of Dr. Gerard Oakley, a
gynecologic oncologist practicing at Cabell Huntington Hospital, for further evaluation
of the pelvis mass. (Tr. at 377-379). Claimant supplied a medical history of
hypertension, hypercholesterolemia, and one normal pregnancy resulting in a
spontaneous vaginal delivery. Claimant admitted to smoking half a pack of cigarettes
per day for twenty years, but denied alcohol intake. She reported a normal diet and
regular daily activities. Her medications included Crestor for hyperlipidemia; Vistaril as
needed for allergies; and Amiodipine Besylate for treatment of hypertension. Dr. Oakley
4 A malignant neoplasm containing closed cavities or saclike spaces. Mosby’s Medical Dictionary, 8th
Edition. © 2009, Elsevier.

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interviewed Claimant, reviewing all of her systems to elicit concerns or complaints. She
denied any problems, except for back pain in the recent past. She told Dr. Oakley that
she currently had no arthritis, bone pain, joint pain, muscle weakness or decreased
range of motion. Upon performing a complete physical examination, Dr. Oakley
documented no abnormalities other than the presence of the pelvic mass. His
examination of Claimant’s back and spine was negative for reduced range of motion or
muscle compromise and revealed no unusual objective findings. (Id.). Dr. Oakley
recommended an exploratory laparotomy, total abdominal hysterectomy, and a bilateral
salpingo-oophorectomy for removal and diagnosis of the mass. (Id.).
Claimant underwent the recommended surgery on November 30, 2006. (Tr. at
374-76). There were no complications during the procedure, and Claimant was
discharged the following day. (Tr. at 387). The mass was sent for pathological
examination and was diagnosed as an atypical proliferative (borderline) serous tumor5
without evidence of invasion. (Tr. at 360-62).
On December 13, 2006, Claimant returned to Nurse Mothersbaugh for an
evaluation. (Tr. at 234). She reported having aches when taking Crestor, so the
medication was discontinued. Nurse Mothersbaugh ordered a hepatic panel and
provided Claimant with samples of Welchol, another cholesterol-reducing medication.
The results of the hepatic panel were within normal limits. (Tr. at 243). Nurse
Mothersbaugh checked Claimant again on January 3, 2007 to determine if she had any
side effects from Welchol. (Tr. at 233). Claimant stated that Wechol made her dizzy, so
Nurse Mothersbaugh told Claimant not to take it anymore and switched her to Zetia.
Borderline ovarian tumors are a subset of ovarian carcinomas that are generally noninvasive and have a
superior prognosis when compared to other ovarian cancers. Stage I serous borderline tumors have a
99.5% survival rate and are called “atypical proliferative serous tumors” to convey their benign nature.
Ovarian Cancer, Johns Hopkins Pathology. © 2000-2012 Johns Hopkins University.

5

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Claimant reported on January 31, 2007 that she had no side effects from Zetia and felt
good. (Tr. at 233). Nurse Mothersbaugh performed a focused examination and
concluded that Claimant’s chronic conditions were “stable.” (Id.).
Claimant returned to Dr. Oakley’s office on January 15, 2007. (Tr. at 370). She
stated that she was doing well with only occasional right lower quadrant pain when she
was rolling over or lifting. (Tr. at 370-71). On examination, Dr. Oakley found no
abnormalities. He documented that Claimant was doing well and could increase her
activities, including a return to horseback riding.
On February 28, 2007, Claimant returned to Dr. Thompson’s office complaining
that her thoracic spine felt “locked up,” and she had “pain in the neck constantly with
headaches from the neck” and “numbness in both arms at night.” (Tr. at 281). She
reported having been in two motor vehicle accidents since her last chiropractic visit a
year earlier. The first accident happened when she hit a patch of ice and went into a
ditch. She did not hurt herself and received no medical attention. The second accident
occurred in the Spring of 2006. The tire came off of her car causing the vehicle to flip
over. She did not seek medical attention, although she thought that she broke a rib. She
finally came to see Dr. Thompson because she was sitting on the couch and could not get
up. Dr. Thompson examined Claimant and noted that she could stand unassisted and
use her arms; she had no assistive devices. However, she had lumbar spasms with
paraspinal tenderness, right forward antalgia,6 and decreased flexion and extension of
her lumbar spine. (Tr. at 282). Dr. Thompson ordered x-rays of the pelvis and the
lumbar, thoracic and cervical spine, which he reviewed with Claimant on March 1, 2007.

Counteracting or avoiding pain, as a posture or gait assumed so as to lessen pain. Dorland's Medical
Dictionary for Health Consumers. © 2007 by Saunders, an imprint of Elsevier, Inc.
6

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(Tr, at 280). According to Dr. Thompson, the x-rays showed that Claimant’s cervical
spine had spondylosis7 with disc space narrowing and encroachment of the C5-C6 level;
the lumbar spine had spondylosis, osteophyte formation and asymmetry of the articular
facets at L5; and the thoracic spine had mild spondylosis. Dr. Thompson performed
adjustments of the entire spine.
Claimant returned to Dr. Thompson frequently during the months of March and
April 2007 for adjustments. (Tr. at 277-280). Her range of motion improved and her
pain decreased, although certain activities, such as running the vacuum, exacerbated her
pain. Also during the month of March, Claimant saw Dr. Oakley for a follow-up
evaluation. (Tr. at 392-93). Claimant complained of having menopausal symptoms
secondary to her hysterectomy and was prescribed hormone replacement therapy.
On April 11, 2007, Claimant had her regular follow-up appointment with Nurse
Mothersbaugh. (Tr. at 232). Nurse Mothersbaugh performed a focused examination and
concluded that Claimant’s chronic conditions were stable on the current medication
regimen. She instructed Claimant to return in six months. (Id.).
On July 18, 2007, Claimant returned to see Dr. Oakley. (Tr. at 363-367). She
denied having any menopausal symptoms and asked to have her dosage of hormone
replacement decreased to lessen the potential of side effects. On examination, Dr.
Oakley found no abnormalities. Claimant denied having any psychiatric symptoms and
made no complaints of pain in her back, spine, or extremities. (Id.).
Claimant reinitiated chiropractic care on August 13, 2007. (Tr. at 274). She
complained of having some lumbosacral pain and tenderness that had become acute and
7 Degenerative spinal changes due to osteoarthritis. Dorland's Medical Dictionary for Health Consumers.
© 2007 by Saunders, an imprint of Elsevier, Inc.

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radiated into her right lower extremity. Her range of motion was decreased and she had
a forward antalgia. Claimant’s cervical spine was also noted to be tender with a
decreased range of motion, spasms and fixation. Her thoracic spine showed spasms, and
a sacral iliac test was positive. Dr. Thompson performed adjustments and advised
Claimant to return when the pain was acute. (Id.). Claimant returned four times in
August and three times in September. (Tr. at 271-74).
On October 13, 2007, Claimant returned to Valley Health Systems and was seen
by Larissa Pitts, certified family nurse practitioner. (Tr. at 341). Claimant stated that she
was having anxiety attacks and had been on an anti-depressant for approximately one
week, but it did not relieve her symptoms. Nurse Pitts examined Claimant and found no
objective abnormalities. She noted that Claimant’s hypertension and lipids were stable
and controlled on medication. Nurse Pitts gave Claimant a prescription for Vistaril to
treat anxiety and a receipt to seek evaluation at Prestera Centers for Mental Health
(“Prestera”). She instructed Claimant to return to Valley Health Systems in six months.
(Id.).
Claimant next saw Dr. Thompson on January 8, 2008 complaining of pain and
tenderness to the right sacral spine. (Tr. at 270). He performed an adjustment and
instructed Claimant to return when the pain was acute. She returned six times in
January, four times in February, and three times in March. (Tr. at 266-70). On each
occasion, Claimant was given a spinal adjustment and told to return when her pain was
acute.
On March 10, 2008, Claimant presented to Valley Health Systems for her regular
appointment and was seen by Daniel Whitmore, D.O. (Tr. at 331). She voiced no
complaints or concerns. Dr. Whitmore changed Claimant’s medications to pravastatin
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to treat her high cholesterol, lisinopril and diltiazem for her hypertension. He ordered
screening laboratory tests, which revealed elevated cholesterol. Dr. Whitmore increased
Claimant’s prescription of pravastatin. (Tr. at 332).
On April 2, 2008, Claimant initiated care at Prestera. (Tr. at 411-34). She
reported severe behavior withdrawal; moderate paranoia; moderate depression; severe
anxiety and pain; and severe loss of interest in activities. (Tr. at 412-23). She admitted to
having depression for fifteen years with a 1994 admission to the behavioral health unit
at St. Mary’s Medical Center, but denied crisis intervention or substance abuse
counseling. (Tr. at 414, 417). A complete psychiatric history was provided by Claimant to
Hewlitt Trogdon, a clinician at Prestera. (Tr. at 422-26). Claimant’s primary complaint
was panic attacks, which had waxed and waned in the preceding four years. She
indicated that she avoided contact with others and had stopped many of her regular
activities, because she would explode at people and felt others were talking about her.
(Tr. at 427). She had a dysfunctional childhood and a history of long-term abuse by a
former boyfriend, who was the father of her child. She reported having a hysterectomy,
hypertension, and high cholesterol. She claimed to get along well with her husband,
daughter, and stepdaughter, although she periodically yelled at them for no good
reason. (Tr. at 422-26). A mental status examination revealed that Claimant was
oriented x 4; her speech and appearance were normal; she had some flights of idea and
was socially isolated; her attention span was good; her thought content was paranoid;
her memory was good and intelligence was average; her insight was poor and her
judgment was fair; and she had no suicidal or homicidal ideations. (Tr. at 416, 433-34).
Mr. Trogdon’s provisional diagnosis was Social Phobia and Depressive Disorder, not
otherwise specified (“NOS”). He referred Claimant to a Prestera psychiatrist, Dr.
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Razapour for medication management and planned to work with Claimant on
developing coping skills. (Tr. at 246).
On April 16, 2008, Claimant had her first counseling session with Mr. Trogdon.
(Tr. at 429-30). She complained of having five panic attacks in the prior two weeks. She
related having self-esteem issues. Mr. Trogdon discussed coping strategies with
Claimant. He documented that Claimant was scheduled to see Dr. Razapour
immediately after her counseling session. When Claimant presented, Dr. Razapour
completed an initial psychiatric evaluation. (Tr. at 431-32). Claimant told Dr. Razapour
that her anxiety attacks began approximately five years earlier and had worsened to the
point that she could not be in public without feeling chest pain and shortness of breath.
She described having poor sleep, feeling nervous, and having poor self-esteem. Her
medical history included chronic back pain, hypertension, and high cholesterol. Dr.
Razapour noted that Claimant’s grooming was good; she was cooperative; and had no
delusions. Her thought process was goal-directed and her sensorium, memory, and
concentration were all intact. Dr. Razapour diagnosed Claimant with Major Depressive
Disorder, recurrent, moderate and Panic Disorder with agoraphobia. She decided to try
Claimant on a prescription of Lexapro, Triazodone, and Klonopin. Dr. Razapour
instructed Claimant to continue with individual therapy and return in four weeks. (Id.).
Claimant’s next individual counseling session was on May 5, 2008. (Tr. at 43536). Claimant described some success with the techniques she had learned to identify
the warning signs of an impending panic attack and avoid it. She continued to report
good family support. Claimant felt the medication was helping her and stated that she
was doing better and thought she was progressing toward getting her panic attacks
under control. (Id.). She repeated these feelings to Dr. Razapour on May 19, 2008,
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although Claimant did complain that Lexapro gave her a headache. (Tr. at 438). Dr.
Razapour discontinued Lexapro and prescribed Cymbalta. She scored Claimant’s Global
Assessment of Functioning (“GAF”) at 60.8
Claimant next saw Dr. Razapour on July 14, 2008. (Tr. at 442). Claimant stated
that she was doing fine and sleeping and eating well. She reported no side effects from
her medication. Dr. Razapour found no major changes in Claimant’s mental status
evaluation and decided to keep her on the same medications. Dr. Razapour assessed
Claimant’s GAF score as 65.9
The final record in evidence was prepared by Dr. Thompson on November 30,
2008. (Tr. at 443-445). Dr. Thompson completed a Medical Assessment of Ability To Do
Work-Related Activities (Physical) Form, opining that Claimant had arthritis of the
spine, disc narrowing, and pinched nerves in the back and neck, which prevented her
from lifting and carrying five pounds or more. According to Dr. Thompson, Claimant
could stand 1 hour during an eight hour workday and no more than 15 minutes
uninterrupted. She could sit only thirty minutes at a time without taking a break and
could never climb, balance, stoop, crouch, kneel, or crawl. (Id.). He felt that Claimant’s
muscle spasms limited her ability to reach, bend, and push or pull, and she needed to
avoid heights, moving machinery, and vibrations. (Id.).

The GAF scale is a tool for rating a person’s overall psychological functioning on a scale of 0-100. This
rating tool is regularly used by mental health professionals and is recognized by the American Psychiatric
Association in its Diagnostic and Statistical Manual of Mental Disorders (DSM) IV. A GAF of 60, which
falls in the range of 51-60, indicates moderate symptoms (e.g. flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g. few
friends, conflicts with peers or co-workers).

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9 A GAF score between 61-70 indicates some mild symptoms (e.g. depressed mood and mild insomnia)
OR some difficulty in social, occupational, or school functioning (e.g. occasional truancy, or theft within
the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

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C.

Agency Assessments

On January 24, 2007, Dr. W. Roy Stauffer performed an internal medicine
examination of Claimant at the request of West Virginia’s Disability Determination
Service (“DDS”). (Tr. at 213-218). Claimant provided a subjective history of back and hip
pain that began approximately seven years earlier, was chronic, and radiated into both
lower extremities with associated numbness. She also described bilateral shoulder pain
and cervical arthritis. She denied having surgery or injections and took Tylenol for pain
relief, although it did not help. She stated that her pain limited her ability to lift, bend,
stand more than 15 minutes, raise her arms or use her neck. Claimant reported having
hypertension and high cholesterol and indicated that she had a uterine mass, which had
been removed by hysterectomy. Claimant did not mention having any psychiatric
symptoms. Dr. Stauffer completed a thorough physical examination. He found
tenderness of Claimant’s back and knee with decreased bilateral shoulder flexion,
decreased lumbar flexion, and decreased cervical extension and rotation. Claimant was
able to squat, although she was slow in rising. She had leg pain when walking on her
heels and toes. Claimant’s mental status examination was normal, and she was
neurologically intact with normal motor strength, fine and gross manipulation, deep
tendon reflexes, and sensation. Dr. Stauffer diagnosed Claimant with chronic low back
pain secondary to degenerative joint disease, muscle spasm, and possible scoliosis;
bilateral shoulder pain most likely related to degenerative joint disease of the neck and
shoulders; and controlled hypertension. (Tr. at 215). Taking into account, Claimant’s
limitations in range of motion and her complaints of pain, Dr. Stauffer opined that
Claimant could lift fifty pounds occasionally and twenty-five pounds frequently; she
could stand, walk, or sit six hours, each, in an eight hour work day; and had unlimited
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ability to push or pull. Dr. Stauffer felt Claimant would have some difficulty climbing
ladders, ropes or scaffolds, but he did not believe she had any manipulative limitations
other than repetitive reaching overhead. (Tr. at 215-16).
Mandy Rebrook, a single decision maker, completed a Physical Residual
Functional Capacity Assessment Form on February 5, 2007. (Tr. at 219-226). Her
assessment of Claimant’s exertional limitations mirrored those of Dr. Stauffer. She did
not feel Claimant had any postural, manipulative, visual, communicative, or
environmental restrictions. She did not feel Claimant was fully credible because the
medical records did not support the severity of the limitations described by Claimant.
(Id.).
A second Physical Residual Functional Capacity Assessment Form was completed
by Dr. A. Rafael Gomez on August 3, 2007. (Tr. at 257-264). Dr. Gomez concluded that
Claimant had no severe impairments. He indicated that Claimant was less than credible,
because her allegations were not supported by the medical evidence. He opined that she
had no exertional or other limitations. (Id.).
IV.

Summary of ALJ’s Decision
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits 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 has lasted or 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 five-step sequential evaluation process
for the adjudication of disability claims. If an individual is found “not disabled” at any
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step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§
404.1520, 416.920. The first step in the sequence is determining whether a claimant is
currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If
the claimant is not, then the second step requires a determination of whether the
claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If severe
impairment is present, the third inquiry is whether this impairment meets or equals any
of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations
No. 4. (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If the impairment does, then the
claimant is found disabled and awarded benefits.
However, if the impairment does not, the adjudicator must determine the
claimant’s residual functional capacity (“RFC”), which is the measure of the claimant’s
ability to engage in substantial gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e), 416.920(e). After making this determination, the next
step is to ascertain whether the claimant’s impairments prevent the performance of past
relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the
performance of past relevant work, then the claimant has established a prima facie case
of disability, and the burden shifts to the Commissioner to prove, as the final step in the
process, that the claimant is able to perform other forms of substantial gainful activity,
when considering the claimant’s remaining physical and mental capacities, age,
education, and prior work experiences. Id. §§ 404.1520(g), 416.920(g); see also McLain
v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish
two things: (1) that the claimant, considering his or her age, education, skills, work
experience, and physical shortcomings has the capacity to perform an alternative job,
and (2) that this specific job exists in significant numbers in the national economy.
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McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the SSA “must follow a special
technique at every level in the administrative review.” 20 C.F.R. §§ 404.1520a,
416.920a. First, the SSA evaluates the claimant’s pertinent signs, symptoms, and
laboratory results to determine whether the claimant has a medically determinable
mental impairment. If such impairment exists, the SSA documents its findings. Second,
the SSA rates and documents the degree of functional limitation resulting from the
impairment according to criteria specified in 20 C.F.R. §§ 404.1520a(c), 416.920a(c).
Third, after rating the degree of functional limitation from the claimant’s impairment(s),
the SSA determines the severity of the limitation. A rating of “none” or “mild” in the first
three functional areas (activities of daily living, social functioning, and concentration,
persistence or pace) and “none” in the fourth (episodes of decompensation) will result in
a finding that the impairment is not severe unless the evidence indicates that there is
more than minimal limitation in the claimant’s ability to do basic work activities. 20
C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth, if the claimant’s impairment is
deemed severe, the SSA compares the medical findings about the severe impairment
and the rating and degree and functional limitation to the criteria of the appropriate
listed mental disorder to determine if the severe impairment meets or is equal to a listed
mental disorder. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if the SSA finds
that the claimant has a severe mental impairment, which neither meets nor equals a
listed mental disorder, the SSA assesses the claimant’s mental residual functional
capacity. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
In this particular case, the ALJ determined as a preliminary matter that Claimant
met the insured status requirements of the Social Security Act through December 31,
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2010. (Tr. at 12, Finding No. 1). At the first step of the sequential evaluation, the ALJ
found that Claimant had not engaged in substantial gainful activity since the alleged
onset date of January 26, 2006. (Tr. at 12, Finding No. 2). Turning to the second step of
the evaluation, the ALJ determined that Claimant had the severe impairments of:
degenerative disc disease of the lumbar spine; depression and anxiety with social
phobia; and bilateral shoulder degenerative disc disease. (Tr. at 12, Finding No. 3). The
ALJ took note of Claimant’s history of ovarian mass and subsequent surgery, but found
that this condition was non-severe as Claimant had no current symptoms or complaints.
The ALJ further determined that Claimant’s bronchitis and hypertension were not
severe impairments because Claimant had no medical diagnosis of bronchitis and her
hypertension was controlled by medication. Under the third inquiry, the ALJ concluded
that Claimant did not have an impairment or combination of impairments that met or
medically equaled one of the impairments contained in the Listing. (Tr. at 13-14,
Finding No. 4). Accordingly, the ALJ assessed Claimant’s residual functional capacity
(hereinafter “RFC”) as the following:
[M]edium work as defined in 20 CFR 404.1567(c) and 416.967(c), with
limitations as described the function by function discussion below.
(Tr. at 15, Finding No. 5).
In the function-by-function discussion, the ALJ found that Claimant could not
climb scaffolds, ladders, or ropes and could not balance, stoop, kneel, crouch, or crawl.
The ALJ acknowledged Claimant’s psychiatric impairment, but concluded that this
condition did not significantly interfere with her ability to understand, remember, and
carry out instructions; use judgment; respond appropriately to occasional contact with
supervisors and co-workers; or adjust to changes in the routine work setting. Relying on

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the testimony of a vocational expert, the ALJ determined that Claimant could return to
her past relevant employment as an office cleaner, uniform laundress, and kitchen
worker. (Tr. at 18, Finding No. 6). Therefore, the ALJ concluded that Claimant was not
disabled and, thus, was not entitled to benefits. (Tr. at 19).
V.

Scope of Review
The issue before the Court is whether the final decision of the Commissioner is

based upon an appropriate application of the law and is supported by substantial
evidence.

In Blalock v. Richardson, the Fourth Circuit Court of Appeals defined

“substantial evidence” to be:
[E]vidence 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). This Court is not charged with conducting a de novo
review of the evidence. Instead, the Court’s function is to scrutinize the totality of the
record and determine whether substantial evidence exists to support the conclusion of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The decision
for the Court to make is “not whether the claimant is disabled, but whether the ALJ’s
finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434
F. 3d 650,653 (4th Cir. 2005), citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 2001). If
substantial evidence exists, then the Court must affirm the decision of the
Commissioner “even should the court disagree with such decision.”
Richardson, supra at 775.

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Blalock v.

A careful review of the record reveals that the decision of the Commissioner is
based upon an accurate application of the law and is supported by substantial evidence.
VI.

Claimant’s Challenges to the Commissioner’s Decision
Claimant argues that the Commissioner’s decision should be reversed and/or

remanded for the following reasons:
1.

The ALJ disregarded the effects of Claimant’s back pain and

anxiety/depression.
2.

The ALJ failed to properly assess Claimant’s credibility and pain;

3.

The ALJ failed to consider Claimant’s impairments in combination;

4.

The ALJ improperly disregarded Dr. Thompson’s RFC assessment;

5.

The ALJ failed to fully develop the record; and

6.

The ALJ failed to rebut the presumption of disability.

(Docket No. 14). The Commissioner responds that the ALJ more than accommodated
Claimant’s alleged impairments and still found Claimant capable of performing her past
relevant work; therefore, the decision of the Commissioner should be affirmed. (Docket
No. 15).
Having thoroughly scrutinized the record and the arguments of counsel, the
Court finds that the challenges raised by Claimant are unpersuasive and the decision of
the Commissioner is supported by substantial evidence.
VII.

Analysis
A.

Effects of Claimant’s Pain and Psychiatric Impairments

Claimant first argues that the ALJ disregarded the effects of her severe chronic
back pain and psychiatric impairments. (Docket No. 14 at 5-6). According to Claimant,
the records substantiate her repeated complaints of pain and her efforts to find pain
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relief. Moreover, Claimant argues that the pain had a deleterious effect on her ability to
concentrate and maintain persistence and pace.
Contrary to Claimant’s allegations, the ALJ clearly considered the effects of
Claimant’s pain and psychiatric symptoms in rendering a decision. (Tr. at 14-18). The
ALJ reviewed Claimant’s multiple musculoskeletal complaints to Dr. Thompson, noting
that Claimant did not make similar complaints to her primary care physicians. Claimant
treated with Dr. Thompson only when she had acute symptoms and generally
discontinued treatment and resumed her normal daily activities when she improved.
Her statements to Dr. Thompson also conveyed an active lifestyle and indicated that her
back and neck “flare-ups” were often connected to a specific traumatic event. For
example, she saw Dr. Thompson for treatment of acute pain after riding her horse and
after having been involved in two motor vehicle accidents. Although the second accident
resulted in her car flipping over, Claimant did not immediately seek treatment from Dr.
Thompson. When she finally did seek treatment, she went to Dr. Thompson for a few
months and then discontinued seeing him. When she subsequently returned for
chiropractic care, several months later and after a new onset of pain, Dr. Thompson’s
records showed only mild to moderate pain and tenderness. (Id.).
The ALJ additionally noted that Claimant initiated psychiatric care in April 2008
complaining of panic attacks. However, by May, Claimant had improved with counseling
and medication. (Id.). By June, she had progressed even further in controlling her panic
attacks and stated she had more positive days than negative ones. In her July visit with
Dr. Razapour, Claimant reported that she was sleeping well and had no side effects from
her medications. Her GAF score was a 65, which indicated the presence of only mild
symptoms.
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Certainly, a large part of the ALJ’s discussion of the effects of Claimant’s
impairments is contained in the ALJ’s credibility analysis. As discussed infra, the ALJ
found Claimant’s descriptions of the intensity, severity, and persistence of her
symptoms to be exaggerated, because they conflicted with other credible evidence. The
ALJ observed that Claimant’s statements to her treating health care professionals did
not convey the severity of symptoms described by Claimant at the administrative
hearing. Similarly, Claimant’s sporadic chiropractic treatment and rapid improvement
with mental health counseling belied her testimony regarding the intensity and
persistence of her impairments. (Tr. at 18). In the course of making these comparisons,
the ALJ undoubtedly considered the effects of Claimant’s alleged impairments on her
ability to engage in substantial gainful employment. Therefore, the Court finds no
legitimate basis to support this challenge.
B.

Claimant’s Pain and Credibility

As a corollary to Claimant’s preceding argument, she contends that the ALJ erred
in finding her less than credible when describing the persistence, intensity, and
limitations associated with her symptoms. (Docket No. 14 at 6-7). She asserts that the
ALJ “disregarded the medical records,” adding “[i]t is unreasonable to believe that
[Claimant] would have the quantity of medical records and the ability to repeatedly
exaggerate the severity and duration of her symptoms for years on end, and dupe
numerous medical providers.” (Id. at 7). Obviously, Claimant has misunderstood or
overlooked the ALJ’s rationale underlying the credibility determination. Indeed, the ALJ
relied heavily upon the medical records; in particular, Claimant’s statements made to
health care providers during the course of her treatment and the objective medical
findings.
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Social Security Ruling 96-7p clarifies the two-step process by which the ALJ must
evaluate symptoms, including pain, to determine their limiting effects on a claimant.
See, also 20 C.F.R. §§ 404.1529, 416.929. First, the ALJ must establish whether the
claimant’s medically determinable medical and psychological conditions could
reasonably be expected to produce the claimant’s symptoms. SSR 96-7P. Once the ALJ
finds that the conditions could be expected to produce the alleged symptoms, the ALJ
must evaluate the intensity, persistence, and severity of the symptoms to determine the
extent to which they prevent the claimant from performing basic work activities. Id.
Whenever the intensity, persistence or severity of the symptoms cannot be established
by objective medical evidence, the ALJ must assess the credibility of any statements
made by the claimant to support the alleged disabling effects. The Ruling sets forth the
factors that the ALJ must consider in assessing the claimant’s credibility, emphasizing
the importance of explaining the reasons supporting the credibility determination. The
Ruling further directs that the credibility determination must be based on a
consideration of all of the evidence in the case record. Id.
When evaluating whether an ALJ’s credibility determinations are supported by
substantial evidence, the Court does not simply replace its own de novo credibility
assessments for those of the ALJ; rather, the Court must review the evidence to
determine if it is sufficient to support the ALJ’s conclusions. “In reviewing the record for
substantial evidence, the Court does not re-weigh conflicting evidence . . . or substitute
its own judgment for that of the Commissioner.” See Hays v. Sullivan, 907 F.2d. 1453,
1456 (4th Cir. 1990). Because the ALJ had the “opportunity to observe the demeanor
and to determine the credibility of the claimant, the ALJ’s observations concerning
these questions are to be given great weight.” Shively v. Heckler, 739 F.2d 987, 989- 22 -

990 (4th Cir. 1984), citing Tyler v. Weinberger, 409 F. Supp. 776 (E.D.Va. 1976).
Here, the Court finds that the ALJ's credibility assessment of Claimant was
consistent with the applicable regulations, case law, and Social Security Ruling and was
supported by substantial evidence. 20 C.F.R. § 404.1529; SSR 96-7p; Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996). Considerable evidence existed in the record that
Claimant’s testimony regarding pain and psychological distress did not correlate with
her reported level of activity, her functional abilities as assessed by the agency
consultants, and the objective medical records.
As stated in the written decision, the ALJ found that Claimant’s medically
determinable impairments could reasonably be expected to produce her alleged
symptoms, but her statements concerning their intensity, persistence, and limiting
effects were not entirely credible when considering the evidence in its totality. On the
issue of Claimant’s musculoskeletal problems, the ALJ pointed out that Claimant made
no complaints to her primary care physicians regarding back, shoulder, or neck pain.
(Tr. at 18). She worked for six years after the onset of her back pain, receiving
chiropractic care sporadically, on an “as needed” basis. She never had surgery on her
back or neck and had not received injections or been prescribed assistive devices.
Claimant testified that her pain was constant and debilitating, yet she took only Tylenol
for relief. Although Claimant testified that she had to give up her hobbies, the records
indicate that she continued horseback riding well after the alleged disability onset date;
in fact, she specifically received permission from Dr. Oakley in January 2007 to resume
riding after her hysterectomy. (Tr. at 370-71). By March 2008, Dr. Thompson’s records
confirm that Claimant had only mild to moderate symptoms and she reported “doing
better,” with fewer acute episodes, decreased spasms, and increased range of motion.
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(Tr. at 266). Similarly, during her April 2008 visit with her family physician, Claimant
expressed no complaints or concerns. (Tr. at 330). Moreover, Claimant’s descriptions
of her psychiatric distress did not correspond with her statements to the mental health
providers or their objective findings. Claimant testified that she had severe panic attacks
with migraine headaches that prevented her from going out in public and interfered
with her sleep. Yet, in a June 2008 counseling session, only two months after Claimant
initiated psychiatric treatment, her therapist noted that Claimant was finding advanced
ways to deal with her panic attacks and anxiety and was “making huge steps in what she
is able to do.” (Tr. at 437). Claimant conceded that she now had more positive days than
negative ones. At her July 2008 appointment with Dr. Razapour, Claimant reported that
she was doing fine, sleeping well, and eating normally. (Tr. at 442). She had voluntarily
discontinued the medications prescribed to treat her anxiety and insomnia and denied
having headaches. Dr. Razapour documented that Claimant had an improved GAF score
and agreed with Claimant’s decision to limit her medication regimen to a single
antidepressant, Cymbalta. (Id.).
Having scrutinized the ALJ’s decision and the evidence in its totality, the Court
finds that the ALJ thoroughly considered Claimant’s complaints of pain and
psychological distress, conducted a reasoned review of the evidence, and adequately
explained the grounds underlying her credibility determination. Consequently, the
ALJ’s ultimate finding on this issue has substantial evidentiary support.
C.

Impairments in Combination

Claimant next argues that the ALJ failed to consider Claimant’s impairments in
combination, including her severe back pain and anxiety/depression. (Docket No. 14 at
7-8). Claimant recites the applicable Social Security regulations and case law, but fails to
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provide any factual basis for her challenge. Undoubtedly, the ALJ was required to
consider the combined, synergistic effect of all of Claimant’s medically determinable
impairments, severe and non-severe, to accurately evaluate the extent of their resulting
limitations on Claimant. Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989). The relevant
regulations provide:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard to
whether any such impairment, if considered separately, would be of
sufficient severity.
20 C.F.R. §§ 404.1523, 416.923. Where there is a combination of impairments, the issue
“is not only the existence of the problems, but also the degree of their severity, and
whether, together, they impaired the claimant’s ability to engage in substantial gainful
activity.” Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974). The ailments should
not be fractionalized and considered in isolation, but considered in combination to
determine the impact on the ability of the claimant to engage in substantial gainful
activity. Id. The cumulative or synergistic effect that the various impairments have on
claimant’s ability to work must be analyzed. DeLoatche v. Heckler, 715 F.2d 148, 150
(4th Cir. 1983). As the Fourth Circuit Court of Appeals stated in Walker, “[i]t is
axiomatic that disability may result from a number of impairments which, taken
separately, might not be disabling, but whose total effect, taken together, is to render
claimant unable to engage in substantial gainful activity.” Walker v. Bowen, supra at
50.
In this case, the ALJ fulfilled her obligation to evaluate Claimant’s impairments,
separately and in combination. As noted in the preceding section, the ALJ explicitly

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analyzed Claimant complaints of pain, her treatment history, and the severity of her
anxiety and depression using the paragraph B criteria. Moreover, when constructing the
boundaries of Claimant’s RFC, the ALJ clearly considered the combined impact of
Claimant’s musculoskeletal and psychological impairments on her ability to perform
basic work activities. The ALJ identified an exertional level that best suited Claimant’s
maximum capability and refined it by conducting a function-by-function analysis,
resulting in an RFC determination that incorporated Claimant’s individual postural and
psychological restrictions. (Tr. at 14). To the extent that the ALJ did not elaborate
further on her analysis of Claimant’s impairments in combination, the Court finds this
to be harmless error.10
The ALJ unequivocally considered Claimant’s impairments in combination.
During the administrative hearing, the ALJ posed several hypothetical questions, each
of which built upon the last by adding to the combination of impairments. The ALJ
asked the vocational expert if a hypothetical individual of Claimant’s age, education
level, past relevant work, and RFC could perform her past relevant work. (Tr. at 46-47).
After receiving an affirmative answer, the ALJ added a repetitive reaching restriction,

10

Courts have applied a harmless error analysis in the context of Social Security appeals. One illustrative
case provides:
Moreover, "[p]rocedural perfection in administrative proceedings is not required. This
court will not vacate a judgment unless the substantial rights of a party have been
affected." Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988). The procedural
improprieties alleged by [claimant] will therefore constitute a basis for remand only if
such improprieties would cast into doubt the existence of substantial evidence to support
the ALJ's decision.
Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988); See, also, Fisher v. Bowen, 869 F.2d 1055, 1057 (7th
Cir. 1989) (“No principle of administrative law or common sense requires us to remand a case in quest of
a perfect opinion unless there is reason to believe that the remand might lead to a different result.”). Our
Court of Appeals, in a number of unpublished decisions, has taken the same approach. See, e.g., Bishop v.
Barnhart, No. 03-1657, 2003 WL 22383983, at *1 (4th Cir. Oct 20, 2003); Camp v. Massanari, No. 011924, 2001 WL 1658913, at *1 (4th Cir. Dec 27, 2001); Spencer v. Chater, No. 95-2171, 1996 WL 36907, at
*1 (4th Cir. Jan. 31, 1996).

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and then added a climbing restriction. The vocational expert indicated that these added
restrictions did not affect Claimant’s ability to perform her prior employment duties.
The ALJ went further and added pulmonary restrictions, which eliminated only those
jobs performed in the kitchen. The ALJ added a sit/stand option, which did remove
Claimant’s past relevant work, but did not eliminate other light and sedentary jobs that
existed in significant numbers in the national and regional economy; such as, salad
maker, assembler, hand packer, mail addresser, and bench worker. (Tr. at 47-48).
The ALJ’s decision contains numerous specific references to the evidence upon
which she relied and the written decision makes clear that she considered the synergistic
effects of Claimant’s symptoms. The ALJ’s discussion at each step of the sequential
evaluation is sufficient for the Court to determine whether the Commissioner’s final
decision was supported by substantial evidence. Therefore, the Court finds that any
shortcomings in the ALJ’s discussion of the combined effects of Claimant’s impairments
do not warrant remand.
D.

Consideration of Dr. Thompson’s RFC Opinion

Claimant contends that the ALJ improperly disregarded the opinion of Dr.
Thompson, Claimant’s “treating physician.” (Docket No. 14 at 8-9). In particular, on
November 30, 2008, Dr. Thompson completed a Medical Assessment of Ability To Do
Work-Related Activities (Physical) Form, opining that Claimant had arthritis of the
spine, disc narrowing, and pinched nerves in the back and neck, which prevented her
from lifting and carrying five pounds or more and from sitting or standing more than 30
minutes to an hour without a break. (Tr. at 443-445). In addition, Dr. Thompson opined
that Claimant was severely limited in her ability to reach, bend, push, and pull and could
never climb, balance, stoop, crouch, kneel, or crawl. (Id.). The ALJ gave Dr. Thompson’s
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opinions “limited weight” because his own records and x-ray interpretations did not
“justify the severity of the limitations imposed and [were] not credible.” (Tr. at 17).
20 C.F.R. §§ 404.1527(d), 416.927(d) outline how the opinions of accepted
medical sources will be weighed in determining whether a claimant qualifies for
disability benefits. An “accepted medical source” is defined in the regulations to include
a licensed physician; licensed or certified psychologist; licensed optometrist for eye
disorders; licensed podiatrist for foot disorders. Opinions of “other sources” are
considered differently than opinions of accepted medical sources. The term “other
sources” refers to individuals such as nurse practitioners, chiropractors, physicians’
assistants, naturopaths, audiologists, and therapists; educational personnel; social
welfare personnel; and other non-medical sources like relatives, friends, clergy,
caregivers, and neighbors. 20 C.F.R. §§ 404.1513(d), 416.913(d). Consequently, Dr.
Thompson, as a chiropractor, is not an “accepted medical source,” but is an “other
source” under the regulations, and his opinions are treated accordingly.
Generally, in the hierarchy of opinions, the Social Security Administration will
give more weight to the opinion of an examining medical source than to the opinion of a
non-examining medical source. See 20 C.F.R. '§ 404.1527(d)(1), 416.927(d)(1). Even
greater weight will be allocated to the opinion of a treating physician, because that
physician is usually most able to provide Aa detailed, longitudinal picture@ of a claimant=s
alleged disability. See 20 C.F.R. '§ 404.1527(d)(2), 416.927(d)(2). In contrast, the
opinions of “other sources” are not considered in establishing the existence of a
medically determinable impairment, but may be considered by the ALJ in determining
the severity of a claimant’s impairments and their effect on the claimant’s ability to
work. Other source opinions are never entitled to controlling weight. (Id.).
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With this legal framework in mind, the Court reviewed the ALJ’s handling of Dr.
Thompson’s opinion. The ALJ reviewed Dr. Thompson’s RFC assessment and compared
his opinion to his own treatment records. She noted that Dr. Thompson felt Claimant
could not lift even five pounds; could not stand or sit more than thirty minutes at a time;
and could not climb, balance, stoop, kneel, crouch, or crawl. The ALJ emphasized that,
in contrast, Dr. Thompson’s records revealed that Claimant reported only mild to
moderate symptoms when she visited his office for care. Further, an x-ray ordered by
Dr. Thompson showed degenerative changes with disc space narrowing, but did not
contain findings generally present with disabling pain. The ALJ concluded that Dr.
Thompson’s opinion could not be reconciled with his records and objective findings;
therefore, she gave it limited weight. (Tr. at 17). The ALJ’s decision to discount Dr.
Thompson’s opinion complied with the applicable Social Security regulations. She had
no obligation to give Dr. Thompson’s opinion controlling weight and properly
considered its reliability in determining the severity of Claimant’s symptoms. When she
chose to reject Dr. Thompson’s RFC assessment, the ALJ explained her rationale for
doing so.
Having considered the evidence of record, the Court finds that the ALJ’s rationale
was supported by substantial evidence. Claimant made no complaints of severe back,
shoulder or neck pain to her treating physicians. She used only ice and over-the-counter
medications to treat her pain and saw Dr. Thompson on an “as needed” basis. She never
consulted with or was referred to a specialist, such as a neurologist, neurosurgeon, or
orthopedist, and had not been prescribed injections or assistive devices. Although she
walked with a cane at the administrative hearing, she did not use a cane at the time of
her DDS evaluation by Dr. Stauffer and was not noted to have a cane in the office
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records memorializing her visits with Dr. Thompson, Valley Health Systems, and
Prestera. On March 10, 2008, Claimant initiated care with a new primary care provider,
but made no complaints of pain in her neck, shoulders, back or knees. (Tr. at 331).
When considering the lack of medical treatment received by Claimant, her physically
demanding hobby of horseback riding, and her ability to sustain two motor vehicle
accidents—at least one of which involved her car flipping over— without the need for
immediate care, the ALJ’s rejection of Dr. Thompson’s remarkably severe restrictions is
indisputably reasonable.
E.

Duty to Develop the Record

Claimant next argues that the ALJ failed to accurately develop the record, stating
“the Administrative Law Judge has the duty to explore all relevant facts and inquire into
issues necessary for an adequate development of the record, and cannot rely on the
evidence submitted by the claimant when that evidence is inadequate.” (Docket No. 14
at 9). Other than reciting this legal standard, Claimant provides no basis to discern its
applicability to the present case.
Here, the ALJ’s duty was to insure that the record contained sufficient evidence
upon which she could make an informed decision. Ingram v. Commissioner of Social
Security Administration, 496 F.3d 1253, 1269 (11th Cir. 2007); See also, Weise v. Astrue,
2009 WL 3248086 (S.D.W.Va.). Consequently, when examining the record to determine
if it was adequate to support a reasoned administrative decision, the Court looked for
evidentiary gaps that resulted in “unfairness or clear prejudice” to Claimant. Marsh v.
Harris, 632 F.2d 296, 300 (4th Cir. 1980). The Court found none. Claimant applied for
disability benefits based upon “lower back and shoulder problems and a uterine mass”
and subsequently added depression and panic attacks. (Tr. at 132). The ALJ had
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comprehensive treatment records regarding these conditions from all of the health care
providers identified by Claimant, as well as a thorough agency-procured physical
examination by an internist and multiple RFC assessments by other agency consultants.
In addition to this evidence, the ALJ and Claimant’s counsel meticulously questioned
Claimant regarding her daily activities, limitations, alleged pain, anxiety and depression
during the administrative hearing. (Tr. at 27-44). Consequently, the Court finds no
evidentiary gaps in the record and, thus, no merit to Claimant’s contention that the ALJ
failed to fulfill her duty to develop the record.
F.

Presumption of Disability

Claimant’s final contention is that the ALJ did not carry her burden to produce
evidence sufficient to rebut the “presumption of disability.” (Docket No. 14 at 9-10). The
Court finds this contention to be equally without merit. Claimant is ultimately
responsible for proving that she is disabled, and that responsibility never shifts to the
Commissioner. While the Commissioner may have a duty to go forward with the
evidence at the fourth step of the evaluation, Claimant nonetheless retains “the risk of
non-persuasion.” Seacrist v. Weinberger, 538 F.2d 1054, 1056 (4th Cir. 1976).
The SSA recognizes at the fourth step of the sequential disability evaluation that
when a claimant proves the existence of severe impairments that prevent the
performance of past relevant work, the claimant has established a prima facie case of
disability. The burden of production then shifts to the Commissioner to provide
evidence demonstrating that the claimant is able to perform other forms of substantial
gainful activity, when considering the claimant’s remaining physical and mental
capacities, age, education, and prior work experiences. 20 C.F.R. §§404.1520(g); See
also, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner
- 31 -

must establish two things: (1) that the claimant, considering his or her age, education,
skills, work experience, and physical shortcomings has the capacity to perform an
alternative job, and (2) that this specific job exists in significant numbers in the national
economy. McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).
In order to carry this burden, the Commissioner may rely upon medicalvocational guidelines listed in Appendix 2 of Subpart P of Part 404 (“grids”), “which
take administrative notice of the availability of job types in the national economy for
persons having certain characteristics, namely age, education, previous work
experience, and residual functional capacity.” Grant v. Schweiker, 699 F.2d 189, 191192 (4th Cir. 1983); See also 20 C.F.R. § 404.1569. However, the grids consider only the
“exertional” component of a claimant’s disability in determining whether jobs exist in
the national economy that the claimant can perform. Id. For that reason, when a
claimant has significant nonexertional impairments or has a combination of exertional
and nonexertional impairments, the grids merely provide a framework to the ALJ, who
must give “full individualized consideration” to the relevant facts of the claim in order to
establish the existence of available jobs. Id. In those cases, the ALJ must prove the
availability of jobs through the testimony of a vocational expert. Id. As a corollary to
this requirement, however, the ALJ has the right to rely upon the testimony of a
vocational expert as to the availability of jobs types in the national economy that can be
performed by the claimant so long as the vocational expert’s opinion is based upon
proper hypothetical questions that fairly set out all of the claimant’s severe
impairments. See Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989).
In the present case, Claimant never progressed to the fifth and final step of the
process, because the ALJ determined, with the assistance of a vocational expert, that
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Claimant was capable of performing her past relevant employment as an office cleaner,
uniform laundress, and kitchen worker, both as she actually performed these jobs and as
they are generally performed. Hence, Claimant failed to establish a prima facie case of
disability that would have shifted the burden of going forward with the evidence to the
Commissioner. As such, the Commissioner had no duty to rebut a non-existent
“presumption.” Accordingly, this challenge lacks both a factual and legal foundation.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision IS supported by substantial evidence. Therefore, 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.
ENTERED: February 3, 2012.

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