Taylor v. Astrue
MEMORANDUM OPINION 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 if Affirmed and this matter is Dismissed from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 12/3/2013. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
MICHELLE LYNN TAYLOR,
Case No. 3:12-cv-08626
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
This is an action seeking review of the decision of the Commissioner of the Social
application for a period of disability and disability insurance benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. §§ 401-433. The case is presently before the
Court on the parties’ motions for judgment on the pleadings. (ECF Nos. 8, 9). Both
parties have consented in writing to a decision by the United States Magistrate Judge.
(ECF Nos. 4, 5). 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.
Plaintiff, Michelle Lynn Taylor (“Claimant”), filed for DIB in March 2010 alleging
a disability onset date of September 4, 2006, (Tr. at 10), due to severe disc degeneration,
deformed neck, twisted pelvis with pain in the hips, numbness in the right leg and foot,
attention deficit hyperactivity disorder (“ADHD”), depression with obsessive compulsive
disorder, jerking hands and body, muscle spasms in her upper back, arthritis in the
lower back, status post back surgery, bulging discs, and head tremors. (Tr. at 151). The
Social Security Administration (“SSA”) denied the application initially and upon
reconsideration. (Tr. at 10). Claimant filed a request for a hearing, which was held on
October 20, 2011 before the Honorable Benjamin R. McMillion, Administrative Law
Judge (“ALJ”). (Tr. at 26-58). By written decision dated November 18, 2011, 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 October 4, 2012, when the Appeals
Council denied Claimant’s request for review. (Tr. at 1-3).
On December 7, 2012, Claimant filed the present civil action seeking judicial
review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The
Commissioner filed an Answer and a Transcript of the proceedings on February 11,
2013. (ECF Nos. 6, 7). Thereafter, the parties filed their briefs in support of judgment on
the pleadings. (ECF Nos. 8, 9). Accordingly, this matter is ripe for disposition.
Claimant was 26 years old at the time of her alleged onset of disability, 27 years
old on her date last insured for DIB purposes, and nearly 32 years old on the date of the
administrative hearing. (Tr. at 19, 130). She completed the ninth grade and
subsequently obtained CPR and First Aid certifications. (Tr. at 31-32). Claimant has
prior work experience as a cashier, assistant manager of a convenience store, dog
groomer, and child care worker. (Tr. at 33-34). She communicates in English.
Claimant received DIB and SSI between 1999 and 2003, when the benefits were
terminated for administrative reasons. (Tr. at 205). After termination of benefits,
Claimant worked for several years, although during this period, she also applied for and
was denied SSI on multiple occasions.
Summary of ALJ’s Findings
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, 775 (4th Cir.
1972). A disability is defined as the “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or 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
step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §
404.1520(a)(4). First, the ALJ determines whether a claimant is currently engaged in
substantial gainful employment. Id. § 404.1520(b). Second, if the claimant is not
gainfully employed, then the inquiry is whether the claimant suffers from a severe
impairment. Id. § 404.1520(c). Third, if the claimant suffers from a severe impairment,
the ALJ determines 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). If the impairment does meet or equal a listed impairment, then the
claimant is found disabled and awarded benefits.
However, if the impairment does not meet or equal a listed impairment, 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). In the fourth step, the ALJ
ascertains whether the claimant’s impairments prevent the performance of past relevant
work. Id. § 404.1520(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 the final step. McLain v. Schweiker, 715 F.2d 866,
868-69 (4th Cir. 1983). Under the fifth and final inquiry, the Commissioner must
demonstrate that the claimant is able to perform other forms of substantial gainful
activity, while taking into account the claimant’s remaining physical and mental
capacities, age, education, and prior work experiences. 20 C.F.R. § 404.1520(g); see also
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). 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.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the ALJ “must follow a special
technique” when assessing disability. 20 C.F.R. § 404.1520a. First, the ALJ evaluates the
claimant’s pertinent signs, symptoms, and laboratory results to determine whether the
claimant has a medically determinable mental impairment. Id. § 404.1520a(b). If such
impairment exists, the ALJ documents the findings. Second, the ALJ rates and
documents the degree of functional limitation resulting from the impairment according
to criteria specified in the Regulations. Id. § 404.1520a(c). Third, after rating the degree
of functional limitation from the claimant’s impairment(s), the ALJ determines the
severity of the limitation. Id. § 404.1520a(d). 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. Id. §
404.1520a(d)(1). Fourth, if the claimant’s impairment is deemed severe, the ALJ
compares the medical findings about the severe impairment and the degree of
functional limitation against the criteria of the appropriate listed mental disorder to
determine if the severe impairment meets or is equal to a listed mental disorder. Id. §
404.1520a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental
impairment that neither meets nor equals a listed mental disorder, then the ALJ
assesses the claimant’s residual function. 20 C.F.R. § 404.1520a(d)(3).
In this case, the ALJ determined as a preliminary matter that Claimant met the
insured status requirements of the Social Security Act through March 31, 2007. (Tr. at
12, Finding No. 1). The ALJ acknowledged that Claimant satisfied the first inquiry
because she had not engaged in substantial gainful activity since September 4, 2006, the
alleged date of disability onset, through March 31, 2007. (Id., Finding No. 2). Under the
second inquiry, the ALJ found that Claimant suffered from severe impairments of
“chronic lumbar pain with degenerative disc disease (DDD) of the spine, status-post
three surgeries; chronic neck pain; nerve tremors; chronic hip pain; head tremors;
depression; attention deficit hyperactive [sic] disorder (ADHD); and obsessive
compulsive disorder (OCD).” (Tr. at 12, Finding No. 3). However, the ALJ found that all
other alleged impairments were not severe, as they were responsive to treatment, caused
no more than minimal vocational limitations, were not of sufficient duration, or were
not medically determinable. (Tr. at 12). Under the third inquiry, the ALJ concluded that
Claimant’s impairments, either individually or in combination did not meet or medically
equal any of the listed impairments. (Tr. at 12-14, Finding No. 4). Consequently, the ALJ
determined that, through the date last insured, Claimant had the RFC to:
[P]erform light work as defined in 20 CFR 404.1567(b) except that the
claimant could never climb and must have avoided concentrated exposure
to vibration. She could tolerate no more than occasional interaction with
the public, and she could perform work requiring no more than simple, 2step instructions.
(Tr. at 14-19, Finding No. 5). Based upon the RFC assessment, the ALJ determined at
the fourth step that Claimant was unable to perform any past relevant work. (Tr. at 19,
Finding No. 6). Under the fifth and final inquiry, the ALJ reviewed Claimant’s past work
experience, age, and education in combination with her RFC to determine if she would
be able to engage in substantial gainful activity. (Tr. at 19-28, Finding Nos. 7-10). The
ALJ considered that (1) Claimant was born in 1979 and was defined as a younger
individual; (2) she had limited school education and could communicate in English; and
(3) transferability of job skills was not material to the ALJ’s determination that Claimant
was “not disabled.” (Tr. at 19, Finding Nos. 7-9). Given these factors, Claimant’s RFC,
and the testimony of a vocational expert, the ALJ determined that Claimant could
perform jobs that exist in significant numbers in the national economy. (Tr. at 20,
Finding No. 10). At the light level, Claimant could work as a price marker or hotel maid;
and at the sedentary level, Claimant could perform jobs such as a sorter and an
assembler. (Tr. at 20). Therefore, the ALJ concluded that Claimant was not disabled as
defined in the Social Security Act at any time from the alleged onset date through the
date last insured. (Tr. at 21, Finding No. 11).
Claimant’s Challenges to the Commissioner’s Decision
Claimant argues that the Commissioner’s decision is not supported by substantial
evidence. (ECF No. 8 at 4-10). Claimant contends that “[o]bviously, [her] physical and
mental impairments in combination equal a Listed Impairment,” or in the alternative
that “her pain, fatigue, and other symptoms are sufficient to establish that she is
disabled.” (Id. at 5-6). More specifically, Claimant asserts that the ALJ (1) improperly
evaluated her credibility, (Id. at 7-9); and (2) entirely failed to consider her previous
awards of DIB and SSI as proof of her disability. (Id. at 9-10).
Relevant Medical Records
The Court has reviewed the transcript of proceedings in its entirety including the
medical records in evidence. The Court has confined its summary of Claimant’s
treatment and evaluations to those entries most relevant to the issues in dispute.
A. Treatment Records—Prior to Alleged Disability Onset
On July 22, 2004, Claimant was referred to a neurosurgeon, Dr. Rida Mazagri,
for evaluation of low back and right leg pain. (Tr. at 283-86). According to Dr. Mazagri’s
office record, Claimant reported symptoms for several months, which she connected to a
March 2004 work-related injury. Claimant, a pet groomer, stated that she was bathing a
100-pound dog when the dog jumped on her. She felt a snap in her back with pain
radiating to her right leg. (Id.). She started receiving physical therapy, but felt her
symptoms had worsened. She denied other health problems. On physical examination,
Claimant had mild weakness of the right foot, with otherwise normal muscles. Her deep
tendon reflexes were normal, except for absent right ankle reflex. (Tr. at 284). Claimant
had decreased touch and pinprick, and a limping gait favoring her right leg. (Tr. at 285).
An MRI scan showed a large disc herniation at the right L5/S1 compressing the S1 nerve
root. Dr. Mazagri discussed Claimant’s treatment options, and she decided to undergo a
partial laminectomy and discectomy procedure. (Id.).
Dr. Mazagri performed the operation on August 10, 2004. (Tr. at 288-89).
Postoperatively, Claimant’s symptoms markedly improved. (Tr. at 281). On follow-up
examination by Dr. Mazagri, Claimant was noted to be walking normally and moving
her extremities well. (Id.). She was instructed to have physical therapy and return for
reevaluation in a few weeks. By September 23, 2004, Claimant’s leg symptoms were
gone, her back pain was reduced to “twinges,” but she still had some neck and arm pain
that was worse with neck movement. (Tr. at 279-80). Dr. Mazagri ordered additional
physical therapy, provided prescriptions for Lortab and Flexeril, and told Claimant to
return in a few weeks. On November 11, 2004, Claimant indicated that her neck pain
was gone, but she now had some pain in low back and right leg that was alleviated by
sitting. (Tr. at 277). She was continued on physical therapy.
On November 29, 2004, Claimant underwent a follow-up MRI of her spine. (Tr.
at 294-95). The scan revealed the development of a moderate-sized broad-based disc
protrusion at L4-5 and an asymmetrical disc bulge at the L1-2 on the left. Dr. Mazagri
examined the film and noted the disc abnormalities, as well as some postoperative scar
tissue, but saw no nerve root compression. (Tr. at 274-75). He felt that Claimant’s
remaining back pain was likely related to her multilevel degenerative disc disease and
recommended that Claimant exercise daily and return for reassessment in a few
On April 1, 2005, Dr. Mazagri reevaluated Claimant. (Tr. at 260-61). Her
symptoms had markedly improved and “she [was] happy and content with the results of
the surgery.” (Id.). She continued to complain of some residual back pain with
occasional radiation to the right leg, but walked normally, had only mild restriction of
flexion, and normal straight leg raising, sensation, and muscle strength. After some
discussion regarding treatment options, Claimant decided to continue with daily
exercises and “see a pain management specialist about nerve blocks to speed up and
facilitate her recovery,” as Claimant had not worked since the accident. On September
28, 2005, Dr. Mazagri wrote to a Claims Manager at the Workers Compensation
Commission requesting authority to send Claimant to an anesthesia-based pain
management center. (Tr. at 257).
Claimant’s next medical visit of record occurred in May 2006. (Tr. at 255-56).
She presented to Dr. Mazagri complaining of increased back pain with radiation to both
legs. She indicated that her job required her to stand, and this was becoming difficult for
her. She also reported that she was thirty weeks pregnant. Dr. Mazagri noted that
Claimant was walking normally, had normal muscle strength, a negative leg raising,
symmetrical deep tendon reflexes, but had some mild restriction of lumbar flexion and
extension. (Id.). He felt her symptoms were exacerbated by her pregnancy and believed
that they would improve with daily exercise and delivery of the child.
B. Treatment Records—Disability Onset through Date Last Insured
On December 7, 2006, Dr. Mazagri reevaluated Claimant’s back and leg
symptoms. (Tr. at 251-52). She complained that her pain had increased and was now
associated with tingling, numbness, and radiation into her leg. Dr. Mazagri found
Claimant’s lumbar extension and flexion to be restricted and her straight leg raising was
positive. She also had decreased sensation in her right foot and knee. (Id.). He suspected
she had another herniated disc and prescribed steroids and pain medication. He
ordered a repeat MRI, which showed degenerative disc disease, recurrent herniation at
the L5/S1 on the left, presumably impinging on the nerve root, but without evidence of
spinal canal stenosis. (Tr. at 292-93). On February 1, 2007, Dr. Mazagri reviewed the
results of the scan and suggested that Claimant continue taking pain medication and
anti-inflammatory medication, have physical therapy, and consider receiving nerve
blocks at a pain management clinic. He did not recommend surgery at that time.
C. Agency Evaluations and RFC Opinions
On December 14, 2006, Claimant was referred to Charley W. Bowen, M.A.,
licensed psychologist, for an adult mental profile. (Tr. at 298-306). Mr. Bowen
conducted a clinical interview and mental status evaluation of Claimant and then
administered to her an adult intelligence scale and wide range achievement test. Mr.
Bowen noted that Claimant had an abusive childhood with a history of 40
hospitalizations between the ages of 14 and 20 years for attempted suicide and selfmutilation. She described difficulties with trust, paranoia, and obsessive shopping. (Tr.
at 299). She also reported feelings of depression, irritability, sadness, anhedonia, and
somatic complaints that occurred daily. Claimant was married and lived with her
husband and four-month-old child. She explained that she had suffered a work-related
injury in 2004 that required back surgery for a herniated disc. She complained of severe
pain related to her back and walked with a noticeable limp.
As far as her educational history, Claimant indicated that she had completed the
eleventh grade, but dropped out of school in the twelfth grade because she “had no
reason to go anymore.” (Tr. at 301). She described having behavioral problems in school
that resulted in detentions and suspensions. Claimant stated that she had not tried to
obtain a GED because she was afraid she would fail. Claimant’s reported work history
included working for a kennel groomer for two years until she hurt her back in 2004.
She remained off work until 2006 when she became a cashier at an Exxon station. (Tr.
at 302). She explained that she was fired from that job because she kept moving things
after being told not to move them by her supervisor. She then worked at a Go-Mart until
she was placed on bed rest secondary to pregnancy-induced toxemia.
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On mental status examination, Claimant had adequate grooming and hygiene;
her eye contact was fair; her social interaction was mildly deficient; her responses were
lengthy; and her presentation was dramatic (Tr. at 302). However, Claimant was alert
and oriented, spoke at a normal pace and rate, and her mood was euthymic. Mr. Bowen
saw no evidence of flights of ideas or circumstantiality. Claimant’s thought processes
were normal; her insight was fair; and her immediate, recent, and remote memory was
normal. She displayed normal concentration and attention, and her persistence and
pace were also normal. (Tr. at 303).
When asked about her daily activities, Claimant stated that she woke early,
attended to her personal hygiene, and fed her baby. She usually rested for a while after
finishing those tasks. During the day, she cared for her child, prepared a few meals, and
did household chores like sweeping, mopping, vacuuming, dusting, and washing the
dishes. According to Claimant, she spent several hours each day rearranging her
furniture. She also went shopping two or three times each week, and described shopping
as her hobby. (Id.). Claimant did not belong to clubs or social organizations, but did
speak with her mother on a weekly basis and visited a neighbor daily.
Claimant’s adult intelligence testing revealed a full scale IQ score of 86, which is
in the low average range. Her wide range achievement scores were found to be
consistent with her IQ score. (Tr. at 304). She performed arithmetic at a fifth grade
level; reading at an eighth grade level, and spelling at an eleventh grade level.
Mr. Bowen diagnosed Claimant with bipolar disorder, borderline personality
disorder, and various health problems by report. (Tr. at 305). He felt her prognosis was
fair. Mr. Bowen recommended that a payee be appointed to manage any financial
benefits she received due to her history of overspending and financial difficulties. (Tr. at
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On October 19, 2010, Dr. Rogelio Lim completed a Physical Residual Functional
Capacity Assessment at the request of the SSA. (Tr. at 346-353). Dr. Lim noted that
Claimant date last insured was March 31, 2007, so he focused his record review on the
time period prior to that date. He indicated that Claimant’s statements regarding the
severity and persistence of her symptoms were not fully credible based upon the medical
records in evidence. Pointing to an evaluation in February 2007, Dr. Lim emphasized
that Claimant’s gait was normal; there was no evidence of myelopathy; and the range of
motion in her lower back was only mildly restricted. (Tr. at 353). Thus, Dr. Lim opined
that Claimant could occasionally lift and carry 50 pounds; could frequently lift and carry
25 pounds; could stand, walk, or sit six hours each in an eight-hour workday; and had
unlimited ability to push and pull. (Tr. at 347). He suggested that she only occasionally
climb ramps, ladders, stairs, ropes, and scaffolds. (Tr. at 348). Dr. Lim saw no evidence
of manipulative, visual, or communicative limitations. He recommended that Claimant
avoid concentrated exposure to vibration and hazards such as machinery and heights.
(Tr. at 349-50).
On April 1, 2011, Frank Roman, Ed.D. completed a Psychiatric Review Technique.
(Tr. at 371-83). He concluded that there was insufficient evidence in the record to
establish any medically determinable mental impairment prior to her date last insured.
(Tr. at 383).
D. Treatment Records—After Date Last Insured
Claimant supplied numerous medical records prepared after her date last
insured. The records begin on September 29, 2009, and the last record is dated October
4, 2011. The ALJ reviewed these records as part of his assessment although they are not
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particularly relevant to Claimant’s condition prior to March 31, 2007. According to these
records, Claimant began treatment with Philip Fisher, D.O. at the Huntington Spine
Rehab and Pain Center in September 2009. Dr. Fisher treated Claimant with
medications, including Valium, Paxil, Nexium, Savella, Norco, Medrol, OxyContin,
Neurontin, and Roxicodone. (Tr. at 405-407).
In November 2010, Claimant saw Dr. Panos Ignatiadis for back and leg pain. (Tr.
at 358-59). Apparently in May 2010, Dr. Ignatiadis had performed a posterolateral
interbody fusion with pedicle screws and rods at the L4/L5/S1 on Claimant’s back. She
complained of pain at the site of the procedure and ultimately requested removal of the
hardware. (Tr. at 360). Dr. Ignatiadis performed the removal procedure in December
2010. (Tr. at 363-64).
On June 5, 2011, Claimant was voluntarily admitted to River Park Hospital for
detoxification and treatment for opiate dependence and suicidal ideations. (Tr. at 413).
According to Claimant, she started abusing Lortab after receiving them to treat her back
pain. Claimant remained hospitalized until June 14, 2011. (Tr. at 408-12). At the time of
discharge, Claimant had been successfully detoxified, and was ordered to obtain
intensive outpatient substance abuse treatment. (Tr. At 411).
Scope of Review
The issue before this Court is whether the final decision of the Commissioner
denying Claimant’s application for benefits is supported by substantial evidence. The
United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) has defined
substantial evidence 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
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justify a refusal to direct a verdict were the case before a jury, then there is
Blalock, 483 F.2d at 776 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)). Additionally, the administrative law judge, not the court, is charged with
resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
The Court will not re-weigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Id. Instead, the Court’s duty is
limited in scope; it must adhere to its “traditional function” and “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). Thus, the ultimate question for the Court is not
whether the Claimant is disabled, but whether the decision of the Commissioner that the
Claimant is not disabled is well-grounded in the evidence, bearing in mind that “[w]here
conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [Commissioner].” Walker v.
Bowen, 834 F.2d 635, 640 (7th Cir. 1987).
The Court has considered Claimant’s challenges in turn and finds them
unpersuasive. To the contrary, having scrutinized the record as a whole, the Court
concludes that the decision of the Commissioner finding Claimant not disabled is
supported by substantial evidence.
Claimant alleges that the Commissioner’s decision is not supported by substantial
evidence on the ground that her physical and mental impairments in combination equal
a Listed Impairment, or in the alternative that her impairments prevent her from
engaging in substantial gainful activity. (ECF No. 8 at 5-6). In support of her
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contentions, Claimant argues that the ALJ (1) improperly assessed her credibility, (Id. at
7-9); and (2) failed to consider her prior awards of DIB and SSI. (Id. at 9-10).
A. Combination of Impairments Equivalent to a Listing
Claimant asserts that “[o]bviously, the [Claimant’s] physical and mental
impairments in combination equal a Listed Impairment,” given that she “suffers from
the following: chronic lumbar pain with degenerative disc disease (DDD) of the spine,
status post three (3) surgeries; chronic neck and hip pain; head and nerve tremors;
depression; attention deficit hyperactivity disorder; obsessive compulsive disorder.” (Id.
at 5). However, she fails to identify which Listed Impairment is supposedly met by her
combination of conditions.
A determination of disability may be made at step three of the sequential
evaluation when a claimant's impairments meet or medically equal an impairment
included in the Listing. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The purpose
of the Listing is to describe “for each of the major body systems, impairments which are
considered severe enough to prevent a person from doing any gainful activity.” Id. §§
404.1525, 416.925. Because the Listing is designed to identify those individuals whose
medical impairments are so severe that they would likely be found disabled regardless of
their vocational background, the SSA has intentionally set the medical criteria defining
the listed impairments at a higher level of severity than that required to meet the
statutory standard of disability. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107
L.Ed.2d 967 (1990). Given that the Listing bestows an irrefutable presumption of
disability, “[f]or a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria.” Id. at 530.
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Courts in this jurisdiction have repeatedly rejected as meritless arguments like
Claimant’s where she “does not even attempt to specify which listing” she believes her
conditions meet, because it is the claimant’s burden to prove that her condition equals
one of the listed impairments. Thomas v. Astrue, Civil Action No. 3:09-00586, 2010 WL
4918808, at *8 (S.D.W.Va. Nov. 24, 2010); see also Vance v. Astrue, No. 2:11-cv-0781,
2013 WL 1136961, at *17 (S.D.W.Va. Mar. 18, 2013); Berry v. Astrue, No. 3:10-cv00430, 2011 WL 2462704, at *9 (S.D.W.Va. Jun. 17, 2011); Spaulding v. Astrue, No.
2:09-cv-00962, 2010 WL 3731859, at *16 (S.D.W.Va. Sept. 14, 2010). The Court agrees
with this line of cases. In the absence of a focused challenge, Claimant simply does not
carry her burden.
Moreover, substantial evidence supports the ALJ's determination that Claimant's
combination of impairments does not equal in severity any of the impairments listed. As
the ALJ noted, Claimant does not satisfy Section 1.01 (musculoskeletal), specifically 1.02
(major dysfunction of a joint(s)) and Listing 1.04 (disorders of the spine); Section 11.01
(neurological deficits); and Section 12.01 (mental), specifically 12.04 (affective
disorders) and 12.06 (anxiety related disorders) because she had no signs “reflective of
listing level severity ... Also, none of the claimant’s treating or examining physicians of
record reported any of the necessary clinical, laboratory, or radiographic findings
specified therein.” (Tr. at 13). The ALJ appropriately assessed the severity of Claimant’s
mental impairments using the special technique and found that she had only mild
restriction of activities of daily living and social functioning, moderate difficulties in
concentration, persistence or pace, and no episodes of decompensation of extended
duration. (Tr. at 13-14). Claimant also failed to establish any of the Paragraph C criteria
contained in Listings 12.04 and 12.06, as her mental impairments had not caused
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“repeated episodes of decompensation of extended duration;” had not “resulted in such
marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the claimant to decompensate;” and had not
demonstrated her inability to function outside of a highly supportive living
arrangement. (Tr. at 14). The ALJ further noted that “there is no evidence the claimant’s
OCD has resulted in a complete inability to function independently outside of the area of
The record lacks any evidence to controvert the ALJ’s findings, and Claimant
offers no additional evidence to support the bare assertion that her combination of
impairments equals a Listing. Therefore, the Court rejects Claimant's contention and
finds that the ALJ’s determination at the third step of the sequential evaluation is
supported by substantial evidence.
B. Determination of Claimant’s Credibility
Claimant contends that the ALJ improperly assessed her credibility by failing to
apply the proper legal standards and by failing to adequately articulate the reasons for
discounting her credibility. (ECF No. 8 at 7-9). Having carefully reviewed the written
decision, the Court affirms the ALJ’s credibility determination.
Pursuant to the Regulations, an ALJ evaluates a claimant’s report of symptoms
using a two-step method. 20 C.F.R. §§ 404.1529, 416.929. First, the ALJ must determine
whether the claimant’s medically determinable medical and psychological conditions
could reasonably be expected to produce the claimant’s symptoms, including pain. Id. §§
404.1529(a), 416.929(a). That is, a claimant’s “statements about his or her symptoms is
not enough in itself to establish the existence of a physical or mental impairment or that
the individual is disabled.” SSR 96-7p, 1996 WL 374186, at *2. Instead, there must exist
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some objective “[m]edical signs and laboratory findings, established by medically
acceptable clinical or laboratory diagnostic techniques” which demonstrate “the
existence of a medical impairment(s) which results from anatomical, physiological, or
psychological abnormalities and which could reasonably be expected to produce the
pain or other symptoms alleged.” 20 C.F.R. §§ 404.1529(b), 416.929(b).
Second, after establishing that the claimant’s 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. §§ 404.1529(a), 416.929(a). If 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. SSR 96-7P, 1996 WL 374186, at *2. In evaluating a
claimant’s credibility regarding his or her symptoms, the ALJ will consider “all of the
relevant evidence,” including (1) the claimant’s medical history, signs and laboratory
findings, and statements from the claimant, treating sources, and non-treating sources.
20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1); (2) objective medical evidence, which is
obtained from the application of medically acceptable clinical and laboratory diagnostic
techniques. Id. §§ 404.1529(c)(2), 416.929(c)(2); and (3) any other evidence relevant to
the claimant’s symptoms, such as evidence of the claimant's daily activities, specific
descriptions of symptoms (location, duration, frequency and intensity), precipitating
and aggravating factors, medication or medical treatment and resulting side effects
received to alleviate symptoms, and any other factors relating to functional limitations
and restrictions due to the claimant’s symptoms. Id. §§ 404.1529(c)(3), 416.929(c)(3);
see also Craig v. Cather, 76 F.3d 585, 595 (4th Cir. 1996); SSA 96-7P, 1996 WL 374186,
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In Hines v. Barnhart, the Fourth Circuit stated that:
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 he suffers.
453 F.3d at 565 n.3 (citing Craig, 76 F.3d at 595). The ALJ may not reject a claimant’s
allegations of intensity and persistence solely because the available objective medical
evidence does not substantiate the allegations; however, the lack of objective medical
evidence may be one factor considered by the ALJ. SSR 96-7P, 1996 WL 374186, at *6.
Social Security Ruling 96-7p provides further guidance on how to evaluate a
claimant’s credibility. For example, “[o]ne strong indication of the credibility of an
individual’s statements is their consistency, both internally and with other information
in the case record.” Id. at *5. Likewise, a longitudinal medical record “can be extremely
valuable in the adjudicator’s evaluation of an individual’s statements about pain or other
symptoms,” as “[v]ery often, this information will have been obtained by the medical
source from the individual and may be compared with the individual’s other statements
in the case record.” Id. at *6-7. A longitudinal medical record demonstrating the
claimant’s attempts to seek and follow treatment for symptoms also “lends support to an
individual’s allegations ... for the purposes of judging the credibility of the individual’s
statements.” Id. at *7. On the other hand, “the individual’s statements may be less
credible if the level or frequency of treatment is inconsistent with the level of
complaints.” Id. Ultimately, the ALJ “must consider the entire case record and give
specific reasons for the weight given to the individual’s statements.” Id. at *4. Moreover,
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the reasons given for the ALJ’s credibility assessment “must be grounded in the
evidence and articulated in the determination or decision.” SSR 96-7p, 1996 WL 374186,
When considering whether an ALJ’s credibility determination is supported by
substantial evidence, the Court does not replace its own credibility assessment for that
of the ALJ; rather, the Court scrutinizes 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, reach independent determinations as to
credibility, or substitute its own judgment for that of the Commissioner. Hays, 907 F.2d
at 1456. 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 (4th Cir.
Here, the ALJ provided a detailed overview of Claimant’s testimony, which the
ALJ then compared and contrasted with the relevant medical evidence and consultative
evaluations, in order to assess Claimant’s credibility. (Tr at 15-19). The ALJ found that
Claimant’s impairments could reasonably be expected to cause the symptoms she
alleged, but her statements concerning the intensity, persistence and limiting effects of
these symptoms were only partially credible. (Tr. at 17). As the ALJ observed, Claimant’s
allegations of hip and ankle pain were not supported by the record as she complained
infrequently about her hip and ankle, and the MRI scans showed no abnormalities. (Tr.
at 18). Similarly, Claimant did not consistently complain of symptoms related to OCD
and ADHD and sought no particular treatment for those conditions between the onset of
disability and the date last insured. (Id.).The ALJ emphasized that Claimant’s treatment
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for depression had been “essentially routine and/or conservative in nature,” which was
inconsistent with her claims of disabling depression. He was suspicious of Claimant’s
complaints regarding back pain, because although they were continuous, Claimant was
addicted to prescription medications. Therefore, she “may have been motivated to
continue obtaining more pain medication” and exaggerated her pain to suit that
purpose. The ALJ indicated that the degenerative changes in Claimant’s back were often
described as mild or moderate. (Id.). He also pointed out that Claimant’s daily activities
were incompatible with her claims of debilitating pain. Claimant admitted walking and
doing housework; frequently moving furniture; caring for her young child; and
interacting with friends and family. The ALJ further noted that Claimant’s testified that
she quit her job in 2006 due to increased back pain secondary to her pregnancy, but
then also stated she quit her job and abandoned a prior disability claim because her
husband got a better job, and she no longer needed the money. (Tr. at 18). As far as
opinion evidence, the ALJ indicated that no treating physician or medical professional
opined that Claimant was disabled or that her functional capacity had been limited for a
period of twelve months. One of Claimant’s treating physicians cautioned her to avoid
heavy lifting and not move her furniture as frequently, but that advice was compatible
with the RFC assessment made by the ALJ. It is clear from the written discussion that
the ALJ conducted a thorough analysis of the relevant evidence, appropriately weighed
the medical source opinions, and provided a logical reason for discounting the
credibility of Claimant’s statements regarding the intensity, persistence, and limiting
effects of her symptoms.
Other errors Claimant assigns to the ALJ’s credibility determination are likewise
meritless. First, Claimant argues that under the “mutually supportive test” recognized in
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Coffman v. Bowen, 829 F.2d 514 (4th Cir. 1987), she satisfies the requirements of 42
U.S.C. § 423(d)(5)(A) because her testimony is supported by objective medical source
findings. (ECF No. 8 at 7). However, Claimant misinterprets the holding in Coffman.
There, the issue was not whether the ALJ erred in assessing the claimant’s credibility,
but whether the ALJ applied the appropriate legal 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 found that the ALJ had misapplied the relevant
standard by discounting the physician’s opinion due to the alleged lack of corroborating
evidence, when the correct standard was to give the opinion great weight unless
persuasive contradictory evidence was present in the record. Id. at 518. As an aside, the
Fourth Circuit pointed out that evidence supporting the physician’s opinion actually did
exist in the record, noting “[b]ecause Coffman’s complaints and his attending
physician’s findings were mutually supportive, they would satisfy even the more
exacting standards of. . . 42 U.S.C. § 423(d)(5)(A).” Id. Coffman offers no applicable
“test” for assessing a claimant’s credibility and, consequently, is inapposite. As the
written decision in the present case plainly reflects, the ALJ applied the correct two-step
process in determining Claimant’s credibility.
Second, Claimant argues that the ALJ’s use of “boilerplate” credibility language
warrants remand on the ground that such language “provides no basis to determine
what weight the [ALJ] gave the Plaintiff’s testimony.” (ECF No. 8 at 8). It is wellestablished that “ALJ’s have a duty to explain the basis of their credibility
determinations, particularly where pain and other nonexertional disabilities are
involved.” Long v. United States Dep’t of Health and Human Servs., No. 88-3651, 1990
WL 64793, at *2 n.5 (4th Cir. May 1, 1990). Social Security Ruling 96-7p instructs that
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“[w]hen evaluating the credibility of an individual’s statements, the adjudicator must
consider the entire case record and give specific reasons for the weight given to the
individuals statements.” SSR 96-7p, 1996 WL 374186, at *4. Moreover, the ALJ’s
credibility finding “cannot be based on an intangible or intuitive notion about an
individual’s credibility.” Id. Rather, the reasons given for the ALJ’s credibility
assessment “must be grounded in the evidence and articulated in the determination or
decision.” Id. Thus, a “bare conclusion that [a claimant’s] statements lack credibility
because they are inconsistent with ‘the above residual functional capacity assessment’
does not discharge the duty to explain.” Kotofski v. Astrue, Civil No. SKG-09-981, 2010
WL 3655541, at *9 (D. Md. Sept. 14, 2010); see also Stewart v. Astrue, Action No. 2:11cv-597, 2012 WL 6799723, at *15 n.15 (E.D.Va. Dec. 20, 2012). To the contrary, the
decision “must 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.” SSR 96-7p, 1996 WL 374186, at
Here, the ALJ admittedly used “boilerplate” language in finding that “the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment.” (Tr. at 17). However, the ALJ did not stop his analysis
with only that bare conclusion. As discussed above, he went on to explain that
Claimant’s ongoing activities of daily living, her inconsistent testimony regarding the
reason she stopped working, the conservative medical treatment reflected in the
records, and the lack of objective medical findings supporting the existence of severe
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symptoms all tended to undermine her credibility. (Tr. at 14-19). The ALJ’s credibility
finding was sufficiently articulated, as he explained his rationale with references to the
specific evidence that informed his decision. Consequently, the Court finds that the ALJ
followed the proper agency procedures in assessing Claimant’s credibility and weighing
medical source opinions.
C. Failure to Consider Prior Award of Benefits
Claimant next argues that the ALJ erroneously failed to consider her two prior
awards of SSI and DIB when concluding that she was not disabled. (ECF No. 8 at 10). In
Claimant’s view, the prior awards not only demonstrate that she was disabled prior to
her date last insured, but corroborate her statements regarding the severity and
persistence of her pain symptoms. In response, the Commissioner asserts that the ALJ
had no duty to consider Claimant’s prior awards. The Commissioner stresses that the
last benefits received by Claimant were terminated four [sic] years before the alleged
onset of disability in this case and, equally as germane, Claimant worked during the
three-year gap. (ECF No. 9 at 15).
According to information supplied to the ALJ by Claimant, she was awarded SSI
from January 1995 through October 1995 and again from September 1999 through
September 2003, when her benefits were terminated due to the amount of her spouse’s
income. Claimant also received Disabled Adult Child benefits from June 1999 through
June 2003, which ended when she got married. (Tr. at 205). Subsequently, Claimant
reapplied for SSI on four occasions before filing the application at issue in this action.
On one occasion, her application was denied due to the amount of Workers
Compensation benefits she was receiving. (Id.). Two other times, she was denied due to
her spouse’s income, and on another occasion, she was medically denied at the initial
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claims level. No appeal was filed; thus, no written decision was prepared by an ALJ or
reviewed by the Appeals Council.
Generally, the “SSA considers the issue of disability with respect to a period of
time that was not adjudicated in the final determination or decision on [a] prior claim to
be a new issue that requires independent evaluation from that made in the prior
adjudication. Thus, when adjudicating a subsequent disability claim involving an
unadjudicated period, [the] SSA considers the facts and issues de novo in determining
disability with respect to the unadjudicated period.” AR 00-1(4), 2000 WL 43774, at *3.
Stated another way, the SSA does not consider findings made during the determination
of a disability claim to constitute evidence relevant to the determination of a later-filed
claim. Nevertheless, in light of the Fourth Circuit’s opinion in Albright v. Commissioner
of Social Security, 174 F.3d 473 (4th Cir. 1999), the SSA has recognized a limited
exception to this general rule. In Albright, the Fourth Circuit agreed with the SSA that
findings made in relation to a prior disability application did not control the findings
made on a subsequent application involving an unadjudicated period. However,
contrary to the SSA’s position, the Court did hold that prior findings were evidence that
should be considered and weighed by the ALJ when making his findings on the
subsequent application. Id. at 477.
Thus, the SSA issued Acquiescence Ruling (“AR”) 00-1(4), which explained how
it would take into account findings made on a prior application for disability benefits
when determining disability on a current application. 2000 WL 43774. The SSA
emphasized that AR 00-1(4) had very limited applicability. It pertained (1) only to
claims filed within the Fourth Circuit; (2) only to an RFC finding or other finding
required at a step in the sequential evaluation process; and (3) only to findings made in
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a final decision by an ALJ or the Appeals Council on a prior disability claim. When these
three prerequisites were met, an ALJ assessing a later-filed claim was mandated to treat
a prior finding as evidence and to weigh it by considering certain factors such as (1)
whether the finding is based upon a fact subject to change with the passage of time; (2)
the likelihood of such a change in view of the amount of time that has passed between
the adjudicated and unadjudicated periods; and (3) the extent that new evidence
provides a basis for making a different finding on the subsequent application. Id. at *4.
Here, neither party explicitly argues that AR 00-1(4) applies in this case. Indeed,
it does not apply given that Claimant’s prior awards do not appear to be based on
findings by an ALJ or the Appeals Council. Similarly, Albright provides no support for
Claimant’s proposition that the prior awards establish her disability for purposes of this
application. The Albright Court plainly noted that the “SSA’s treatment of later-filed
applications as separate claims is eminently logical and sensible,” and reiterated its
support for the general rule that “separate claims are to be considered separately.”
Albright, 174 F.3d at 476. The Albright Court merely recognized that a material finding
made by “a qualified and disinterested tribunal” on a prior disability application should
be given due consideration in determining a subsequent claim because to do otherwise
would “[thwart] the legitimate expectations of claimants—and, indeed, society at large—
that final agency adjudications should carry considerable weight.” Id. at 477-78.
In the present case, Claimant offers no particular findings that should have been
considered and weighed by the ALJ. The mere fact that Claimant received benefits in the
past does not, on its own, justify a remand in this case given that the probative value of
the prior awards is illusory. Claimant’s DIB and SSI benefits were terminated in 2003.
By her own account, she did not become disabled for purposes of this application until
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September 2006, a full three years later. Also by Claimant’s own account, she was
capable of working for most of those three years, with the exception of a period in 2004
during which she received Workers Compensation benefits for a work-related injury. In
any event, the ALJ requested and received information regarding Claimant’s past
benefits history. Although the ALJ did not discuss the prior awards in his decision, he
was not required to do so. See Harris v. Astrue, Case No. 2:12–cv–45, 2013 WL 1187151,
at *8 (N.D.W.V. Mar.21, 2013). This is particularly true given the marginal significance
of the prior awards to the current application. Therefore, the Court finds that the ALJ
did not err by failing to expressly consider and assign a specific evidentiary weight to
Claimant’s prior benefit awards.
Claimant also complains that the ALJ should have retrieved her prior disability
files in order to determine the rationale underlying the prior awards. Certainly, an ALJ
has the duty to fully and fairly develop the record. However, he is not required to act as
Claimant’s counsel. Clark v. Shalala, 28 F.3d 828 (8th Cir. 1994). See also U.S.—Reed v.
Massanari, 270 F.3d 838 (9th Cir. 2001); Haley v. Massanari, 258 F.3d 742 (8th Cir.
2001); Smith v. Apfel, 231 F.3d 433 (7th Cir. 2000). The ALJ has the right to presume
that Claimant’s counsel presented her strongest case for benefits. Nichols v. Astrue,
2009 WL 2512417 *4 (7th Cir. 2009) (citing Glenn v. Sec’y of Health and Human Servs.,
814 F.2d 387, 391 (7th Cir. 1987)). Ultimately, “[a]lthough the ALJ has the duty to
develop the record, such a duty does not permit a claimant, through counsel, to rest on
the record ... and later fault the ALJ for not performing a more exhaustive
investigation.” Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008). See also Social
Security Act, § 223(d)(5)(B), 42 U.S.C.A. § 423(d)(5)(B); 20 C.F.R. § 404.1512(d).
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“An ALJ's duty to develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of
the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). When
considering the adequacy of the record, a court must look for evidentiary gaps that
result in “unfairness or clear prejudice” to the claimant. Brown v. Shalala, 44 F.3d 931,
935 (11th Cir. 1995). A remand is not warranted every time a claimant alleges that the
ALJ failed to fully develop the record. Brown, 44 F.3d at 935 (finding that remand is
appropriate when the absence of available documentation creates the likelihood of
unfair prejudice to the claimant.). In other words, remand is improper, “unless the
claimant shows that he or she was prejudiced by the ALJ's failure. To establish
prejudice, a claimant must demonstrate that he or she could and would have adduced
evidence that might have altered the result.” Carey v. Apfel, 230 F.3d 131, 142 (5th Cir.
As previously stated, the ALJ requested Claimant to supply information
regarding her prior award of benefits. Claimant provided an email detailing the dates of
her applications, the periods during which benefits were awarded, and the reasons for
the termination or denial of benefits. Thus, the information available to the ALJ
reflected several material facts. First, Claimant did not have a written decision by an
ALJ or the Appeals Council. Second, Claimant’s benefits terminated a full three years
before the alleged onset of disability in this case. Third, Claimant was capable of
engaging in work-related activities during the three-year gap as evidenced by her work
history and testimony. Finally, Claimant was denied benefits on medical grounds after
the termination of her earlier benefits, and she did not appeal that denial. Consequently,
the ALJ had adequate information to weigh the significance of the prior awards and did
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not need to obtain Claimant’s old disability files to resolve her pending disability
application. The record before the ALJ was certainly adequate to evaluate whether
Claimant was disabled between the alleged onset of disability and her date last insured.
Therefore, the Court finds no prejudice to Claimant from the ALJ’s failure to obtain the
old disability files.
Finally, Claimant asserts that her credibility should “get a boost from the fact that
she previously received benefits even before her initial back operation.” (ECF No. 8 at
10). Since the nature of the impairments giving rise to Claimant’s prior award of benefits
is not contained in the record, the Court is unable to logically make the connection
suggested by Claimant. In fact, rather than supporting Claimant, the record detailing the
time frames of her prior benefits actually tends to weaken her credibility. According to
the record, Claimant received benefits until September 2003. (Tr. at 205). At the same
time, Claimant states in her Disability Report that she began working at least eight
hours five days per week in January 2000. (Tr. at 153). If Claimant’s Disability Report is
correct, then she was engaged in gainful work-related activity for a period in excess of
three years while simultaneously, and improperly, receiving disability benefits. If the
Disability Report is incorrect, Claimant’s reliability is nonetheless diminished given that
she supplied the inaccurate information. The ALJ emphasized that Claimant made
contradictory statements in her records and in her testimony. This lack of consistency
was one of the reasons that the ALJ discounted Claimant’s credibility. Therefore, the
evidence submitted by Claimant regarding prior disability awards neither bolsters her
credibility, nor provides a basis for remand.
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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
ENTERED: December 3, 2013.
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