Brumfield v. Colvin

Filing 14

MEMORANDUM OPINION granting Plaintiff's 12 Motion for Judgment on the Pleadings; denying Defendant's 13 Motion for Judgment on the Pleadings; reversing the final decision of the Commissioner and remanding this matter to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further administrative proceedings and dismissing from the active docket of this Court. Signed by Magistrate Judge R. Clarke VanDervort on 3/31/2015. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SARAH MAE MARIE BRUMFIELD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 3:14-10719

MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social Security
denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security

Income (SSI), under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 13811383f. This case is presently pending before the Court on the Parties’ cross-Motions for Judgment on
the Pleadings. (Document Nos. 12 and 13.) Both parties have consented in writing to a decision by the
United States Magistrate Judge. (Document Nos. 5 and 6.)
The Plaintiff, Sarah Mae Marie Brumfield (hereinafter referred to as “Claimant”), filed
applications for DIB and SSI on March 7, 2011, and March 3, 2011 (protective filing date)
respectively, alleging disability as of February 24, 2011, due to Chronic Obstructive Pulmonary
Disease (“COPD”) and carpal tunnel syndrome (“CTS”).1 (Tr. at 10, 140-41, 142-49, 165, 184.) The
claims were denied initially and upon reconsideration. (Tr. at 64-67, 68-70, 73-75.) On September 28,
2011, Claimant requested a hearing before an Administrative Law Judge (ALJ). (Tr. at 96-97.) The
hearing was held on September 11, 2012, before the Honorable Michele M. Kelley. (Tr. at 18-63.) By

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On her form Disability Report - Appeal, undated, Claimant reported heart problems as an
additional disabling condition. (Tr. at 193.)

decision dated October 19, 2012, the ALJ determined that Claimant was not entitled to benefits. (Tr.
at 10-17.) The ALJ’s decision became the final decision of the Commissioner on December 17, 2013,
when the Appeals Council denied Claimant’s request for review. (Tr. at 1-5.) On February 19, 2014,
Claimant brought the present action seeking judicial review of the administrative decision pursuant
to 42 U.S.C. § 405(g). (Document No. 2.)
Under 42 U.S.C. § 423(d)(5), a claimant for disability has the burden of proving a disability.
See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the "inability
to engage in any substantial gainful activity by reason of any medically determinable impairment
which can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. §
423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the adjudication of
disability claims. 20 C.F.R. §§ 404.1520, 416.920 (2012). If an individual is found "not disabled" at
any step, further inquiry is unnecessary. Id. §§ 404.1520(a), 416.920(a). The first inquiry under the
sequence is whether a claimant is currently engaged in substantial gainful employment. Id. §§
404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from
a severe impairment. Id. §§ 404.1520(c), 416.920(c). If a severe impairment is present, the third
inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to
Subpart P of the Administrative Regulations No. 4. Id. §§ 404.1520(d), 416.920(d). If it does, the
claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the
claimant's impairments prevent the performance of past relevant work. 20 C.F.R. §§ 404.1520(e),
416.920(e). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall
v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v.
Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the

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claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining
physical and mental capacities and claimant's age, education and prior work experience. 20 C.F.R. §§
404.1520(f), 416.920(f) (2012). The Commissioner must show two things: (1) that the claimant,
considering claimant’s age, education, work experience, skills and physical shortcomings, has the
capacity to perform an alternative job, and (2) that this specific job exists in the national economy.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry because she
had not engaged in substantial gainful activity since February 24, 2011, the alleged onset date. (Tr. at
12, Finding No. 2.) Under the second inquiry, the ALJ found that Claimant suffered from COPD,
which was a severe impairment. (Tr. at 12, Finding No. 3.) At the third inquiry, the ALJ concluded that
Claimant’s impairments did not meet or equal the level of severity of any listing in Appendix 1. (Tr.
at 14, Finding No. 4.) The ALJ then found that Claimant had a residual functional capacity to perform
medium exertional level work, as follows:
[T]he [C]laimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except she can only occasionally climb
ladders and scaffolds; frequently balance, stoop, kneel, crouch, crawl, and climb ramps
and stairs; and occasionally tolerate concentrated exposure to extreme cold, vibrations,
fumes, odors, dusts, and gases. Further, she can understand, remember, and carry out
simple, routine tasks involving no more than short simple instructions; make no more
than simple work-related decisions; tolerate only few work place changes; and tolerate
only occasional interaction with the public, coworkers, and supervisors.
(Tr. at 14, Finding No. 5.) At step four, the ALJ found that Claimant was unable to perform her past
relevant work. (Tr. at 16, Finding No. 6.) On the basis of testimony of a Vocational Expert (“VE”)
taken at the administrative hearing, the ALJ concluded that Claimant could perform jobs such as a
dishwasher, stock clerk, and sorter, at the unskilled, medium level of exertion. (Tr. at 16-17, Finding
No. 10.) On this basis, benefits were denied. (Tr. at 17, Finding No. 11.)

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Scope of Review
The sole issue before this Court is whether the final decision of the Commissioner denying the
claim is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined
as:
evidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance. If there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is ‘substantial evidence.’
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is charged with resolving
conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the
Courts “must not abdicate their traditional functions; they cannot escape their duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.” Oppenheim v. Finch,
495 F.2d 396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the Commissioner is not supported by
substantial evidence.
Claimant’s Background
Claimant was born on January 3, 1967, and was 45 years old at the time of the administrative
hearing, September 11, 2012. (Tr. at 16, 23, 140, 142.) Claimant had a sixth grade, or limited education
and was able to communicate in English. (Tr. at 16, 26, 183-85.). Claimant had past relevant work as
a caterer and food preparation worker, childcare worker, janitorial worker, and screen maker. (Tr. at
16, 27-32, 51, 53-54, 156-64, 167-74, 184-85.)
Claimant’s Challenges to the Commissioner’s Decision
Claimant alleges that the Commissioner’s decision is not supported by substantial evidence
because the ALJ failed to consider all of her impairments when assessing her RFC. (Document No.

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12 at 4-7.) Claimant states that she suffers from COPD, shortness of breath requiring night-time
oxygen and inhalers, CTS, dizziness, back pain, possible coronary arteriosclerosis with chest pain,
depression, crying spells, anger outbursts, and memory problems. (Id. at 5.) She asserts that the ALJ
considered her COPD, but failed to consider the aforementioned symptoms and conditions, in addition
to anxiety and panic attacks. (Id. at 5-6.) Claimant also contends that the ALJ erred in relying on the
opinions of the non-treating and non-examining State agency medical consultants “who blindly
surmised that [Claimant] can perform medium level work.” (Id. at 5.) Similarly, she asserts that the
ALJ failed to pose hypothetical questions to the VE that contained all of her symptoms and
impairments. (Id. at 6.) Finally, she asserts that the ALJ failed to provide a reasonable explanation as
to why she determined that Claimant was not entitled to full credibility. (Id.)
In response, the Commissioner asserts that the ALJ appropriately evaluated the medical opinion
evidence of record. (Document No. 13 at 5-7.) The Commissioner asserts that pursuant to the
Regulations, State agency physicians are highly qualified experts in social security disability
evaluation, and that the ALJ was entitled to rely upon their assessments. (Id. at 6.) As the ALJ
explained, the Commissioner asserts that the State agency physicians’ opinions were consistent with
other medical evidence of record. (Id.) No treating physician assessed any functional limits or opined
that Claimant was unable to work due to her COPD. (Id.) CT scans showed only mild emphysema, her
bronchoscopy was normal, and although she had intermittent wheezing, findings were benign. (Id. at
7.) The Commissioner asserts that credibility determinations regarding Claimant’s symptoms are
within the ALJ’s province exclusively, not a physician’s. (Id.) The Commissioner further asserts that
the evidence of record undermined Claimant’s credibility. (Id. at 8.) As stated, Claimant’s emphysema
was mild and the CT scan revealed no worrisome findings. (Id.) Despite recommendations that she
stop smoking, the Commissioner notes that she continued to smoke a pack of cigarettes a day. (Id.) The

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ALJ accommodated limitations resulting from her lung conditions when she limited her exposure to
dust, fumes, and irritants. (Id.)
The Commissioner further asserts that Claimant’s activities undermined her credibility. (Id.
at 8-10.) Claimant maintained her personal care, shopped, and completed household chores. (Id. at 89.) Furthermore, she worked part-time as a caterer after her alleged onset date. (Id. at 9.) Accordingly,
the Commissioner contends that the record, as a whole, failed to support a disabling condition and that
the ALJ properly assessed the opinion evidence, Claimant’s credibility, and her RFC. (Id. at 9-10.)
The Medical Record
The Court has reviewed all the evidence of record, including the medical evidence, and will
discuss it below in relation to Claimant’s arguments.
Claimant presented to the emergency room at St. Mary’s Medical Center on January 20, 2011,
with complaints of flu-like symptoms, including a cough, generalized body aches, fever, chills, and
nasal congestion, all with a ten-day history. (Tr. at 253, 489.) Claimant reported chest wall discomfort
when coughing and an intermittent productive cough. (Id.) She denied a history of anxiety, depression,
or suicidal ideations. (Tr. at 255, 491.) Physical exam revealed regular and non-labored respirations,
and an absence of rales or rhonchi, but a very faint expiratory wheeze in the right upper and lower
lobes. (Tr. at 256, 492.) Physical exam in all other respects essentially was normal. (Tr. at 256-57, 49293.) Claimant was admitted. (Tr. at 254, 490.) Chest x-rays on January 20, 2011, revealed a small illdefined opacity in the bilateral upper lobes and a questionable area of opacity in the medial right
middle lobe. (Tr. at 270, 515-16.) Findings suggested pneumonia and a CT scan was recommended.
(Id.) An initial CT scan on January 20, 2011, revealed emphysema and patchy bilateral infiltrates
involving both lungs, which caused the interpreting physician to suspect septic emboli bilaterally. (Tr.
at 271, 504, 514.) On January 22, 2011, it was determined that the bilateral focal patchy infiltrates

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most likely were secondary to pneumonia, which could have been atypical versus typical and not as
likely to have been septic emboli. (Tr. at 229.) Claimant was treated with antibiotics and discharged
on January 24, 2011, in good condition. (Tr. at 223-25, 444-46.) Chest x-rays prior to discharge on
January 24, 2011, indicated no significant change and a stable chest. (Tr. at 269.)
On February 21, 2011, Claimant was seen by Dr. Essam Mekhaiel, M.D., of University
Physicians and Surgeons, for management of shortness of breath. (Tr. at 424-27.) Claimant complained
of shortness of breath, chills, upper back pain, and wheezing. (Tr. at 424.) Upon examination, Dr.
Mekhaiel failed to observe any wheezing, rhonchi, rales, or crackles and noted that her chest was not
overinflated. (Tr. at 425-26.) He assessed shortness of breath, cough, and infiltrates in both lungs. (Tr.
at 426.) Dr. Mekhaiel recommended a bronchoscopy and chest CT Scan and prescribed a Proventil
inhaler. (Id.)
Claimant followed-up with Dr. Fadi Alkhankan, M.D., also of University Physicians and
Surgeons, on February 24, 2011. (Tr. at 275-79, 419-23.) She reported continued chest pain or
discomfort, chest congestion, chronic dyspnea on exertion, and chronic cough with sputum. (Tr. at 275,
419.) Physical examination revealed that her chest was overinflated, but there was no evidence of
bronchial breath sounds, wheezing, rhonchi, rales, or crackles. (Tr. at 276, 420.) Dr. Alkhankan
assessed shortness of breath, cough, bilateral lung infiltrates, and COPD. (Tr. at 279, 423.) He
continued Claimant on her Proventil inhaler and prescribed Spiriva HandiHaler and ordered a chest
CT scan, pulmonary function test, and an overnight pulse oximetry. (Id.)
On March 18, 2011, Claimant saw Heidi Wehrheim, M.D., regarding her elevated hemoglobin
and blood sugar levels. (Tr. at 280-83.) Active problems included backache, chest pain, COPD, cough,
CT lung infiltrates bilaterally, dizziness, headache, nephrolithiasis, and shortness of breath. (Tr. at
280.) Claimant reported that she exercised regularly and was not sedentary, though Dr. Wehrheim

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observed that she was in poor physical condition. (Tr. at 281.) Claimant also reported that she was
working part-time. (Id.) Dr. Wehrheim had Claimant ambulate down the hallway and then up and
down a flight of stairs. (Tr. at 282.) She observed increased dyspnea during the hallway, which became
significant on the stairs. (Id.) Claimant denied chest pain during the exercises, but was very short of
breath. (Id.) Dr. Wehrheim assessed shortness of breath, palpitations, coronary arteriosclerosis, chest
pain, COPD, backache, and iron deficiency anemia. (Tr. at 282-83.) She discussed with Claimant
breathing exercises, advised that she quit smoking, continued her medications, and ordered a work-up
with a pulmonologist. (Tr. at 283.)
A chest CT Scan on February 26, 2011, revealed interval resolution of previously noted
bilateral infiltrates, mild emphysema, and “no worrisome findings.” (Tr. at 284-85, 412-13.) On that
same date, Dr. Alkhankan conducted spirometry and lung volume testing, which demonstrated dyspnea
on exertion. (Tr. at 286, 303, 410.) Testing was consistent with a moderate pseudoobstructive airway
defect. (Id.) Claimant had moderate air trapping but no hyperinflation. (Id.) Pulmonary function
studies revealed the same results. (Tr. at 288-91.)
Dr. Narendra Parikshak, M.D., a State agency physician, completed a form Physical RFC
Assessment on May 25, 2011. (Tr. at 292-99.) Dr. Parikshak opined that Claimant’s COPD limited her
to performing medium exertional level work, with frequent postural limitations except that she could
climb ladders, ropes, and scaffolds only occasionally. (Tr. at 292-94.) Dr. Parikshak also opined that
Claimant should avoid concentrated exposure to extreme cold, vibration, fumes, odors, dusts, gases,
and poor ventilation. (Tr. at 296.) Dr. Fulvio Franyutti, M.D., another State agency physician,
reviewed the medical evidence in the case file and affirmed Dr. Parikshak’s assessment, as written,
on August 11, 2011. (Tr. at 311.)
On May 26, 2011, Claimant returned to Dr. Alkhankan for management of abnormal

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radiological findings, bronchitis, COPD, and shortness of breath. (Tr. at 305-09, 405-09.) Claimant
denied new onset of dyspnea, chest congestion, or shortness of breath. (Tr. at 305, 405.) Dr. Alkhankan
noted that she had chronic dyspnea, though it was not present at rest or on exertion. (Id.) She denied
chest pain or discomfort and palpitations. (Id.) Dr. Alkhankan noted that Claimant continued to smoke.
(Tr. at 306, 406.) On physical examination, Claimant’s chest was overinflated and she had some
wheezing. (Tr. at 308, 408.) Her lungs were clear to auscultation and had no bronchial sounds,
inspiratory wheezing, rhonchi, or rales and crackles. (Id..) Dr. Alkhankan assessed shortness of breath,
cough, history of infiltrates in both lungs, and COPD. (Tr. at 309, 409.) He noted that Claimant’s
COPD was under “good control” and continued Claimant on her inhalers and directed her to return for
follow-up in five months. (Id.)
Claimant underwent a consultative mental status examination by Emily E. Wilson, M.A., a
licensed psychologist, at the request of the SSA on September 6, 2011. (Tr. at 312-17.) Ms. Wilson
noted that Claimant was working part-time as a caterer. (Tr. at 312-13.) Claimant reported anxiety that
began several years ago, characterized by worry and difficulty falling asleep sometimes. (Tr. at 313.)
She also reported depression with the symptoms of increased appetite, frequent nightmares, poor
energy, feelings of worthlessness, and increased irritability and worrying. (Id.) Depression began when
she took Chantix to stop smoking, between May and July, 2011. (Id.) Claimant also reported that she
was tired a lot, depressed sometimes, and not interested in much. (Id.) She further reported an
increased appetite, problems concentrating, an inability to have fun, shortness of breath, memory
problems, smelling strange odors, backache, nightmares, fast heartbeat, many fears, headaches,
nervousness, temper problems, many arguments, and relationship changes. (Id.)
Ms. Wilson noted Claimant’s activities to have included performing self-care tasks
independently, light cleaning, occasionally cooking, shopping, managing finances, and doing laundry.

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(Tr. at 314.) On mental status examination, Ms. Wilson noted that Claimant was cooperative and
interacted in an appropriate manner, and she maintained fair eye contact. (Tr. at 314-15.) Claimant
exhibited relevant and coherent speech and her verbal responses were adequate and appropriate, was
oriented fully, had an appropriate mood but restricted affect, denied any delusions or obsessions, had
normal memory and above average concentration, denied suicidal or homicidal ideation, exhibited
normal psychomotor activity, and had normal persistence and pace. (Tr. at 315.) Ms. Wilson noted that
Claimant’s insight and judgment were below average. (Id.) She diagnosed anxiety disorder NOS and
opined that Claimant’s prognosis was good if she obtained consistent and appropriate psychotropic and
psychological intervention. (Tr. at 316.)
On September 23, 2011, Karl G. Hursey completed a form Psychiatric Review Technique, on
which he opined that Claimant’s anxiety disorder was a non-severe impairment, that resulted in mild
restriction of activities of daily living and social functioning and no difficulties in maintaining
concentration, persistence, or pace, or episodes of decompensation of extended duration. (Tr. at 31831.) He further opined that Claimant retained “the capacity to engage in worklike activity consistent
with SGA.” (Tr. at 330.)
Claimant returned to Dr. Alkhankan on October 24, 2011, for management of COPD and
shortness of breath. (Tr. at 398-404.) She reported chest congestion, chronic productive cough,
wheezing, and new onset of chronic dyspnea at rest, during exertion, and with changes in position, and
which was worse at night. (Tr. at 398.) He noted that Claimant continued to smoke and that her chest
was overinflated, and pulmonary auscultation revealed abnormalities and wheezing. (Tr. at 401.) Dr.
Alkhankan assessed shortness of breath, cough, coronary arteriosclerosis, COPD, and backache. (Tr.
at 404.) He continued Claimant on Proventil and Spiriva and prescribed Prednisone and Amoxicillin.
(Id.)

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On January 26, 2012, Claimant reported chest congestion and dyspnea during exertion. (Tr.
at 389.) Claimant’s chest was clear to auscultation and wheezing was not heard. (Tr. at 392.) Dr.
Alkhankan assessed shortness of breath and cough, hemoptysis, current smoker, acute sinusitis,
allergic rhinitis, chest pain, and COPD. (Tr. at 393.) He encouraged smoking cessation but Claimant
was not interested in stopping at that time. (Id.) Claimant underwent a bronchoscopy on January 31,
2012, which revealed normal results. (Tr. at 375-76.) Another chest CT Scan on February 6, 2012,
revealed no evidence of parenchyma lung disease. (Tr. at 363-64.) It was noted that the left mainstream
and particularly the left lower lobe bronchus, appeared abnormal. (Tr. at 364.) Based on these test
results, Dr. Alkhankan prescribed a course of Zithromax for Claimant and indicated that the results
revealed pneumonia. (Tr. at 362.)
On February 13, 2012, Claimant reported chest congestion, dyspnea during exertion, chronic
productive cough, and wheezing. (Tr. at 356-61.) On physical exam, Dr. Alkhankan noted that
Claimant’s lungs were clear to auscultation, though rhonchi were heard. (Tr. at 360.) His assessment
was the same except for the addition of pneumonia and nephrolithiasis. (Id.) Claimant returned to Dr.
Alkhankan on June 13, 2012, for management of COPD and shortness of breath. (Tr. at 342-49.) She
reported chest congestion, dyspnea on exertion and worse at night, chronic productive cough, and
wheezing. (Tr. at 342.) On physical exam, Dr. Alkhankan observed rhonchi, but noted that her lungs
were clear to auscultation and he did not hear any wheezing. (Tr. at 346.) He assessed headache,
shortness of breath, cough, dizziness, current smoker, multiple pulmonary nodules, allergic rhinitis,
palpitations, pneumonia, COPD, and nephrolithiasis. (Tr. at 347-48.) He again encouraged smoking
cessation and renewed her medications and oxygen. (Tr. at 348.)

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Analysis.
1. State Agency Physicians’ Opinions.
Claimant alleges that the ALJ erred in giving great weight to the opinions of the State agency
physicians who opined that she was capable of performing medium exertional level work. (Document
No. 12 at 5.) Pursuant to 20 C.F.R. §§ 404.1527(e)(2) and 416.927(e)(2), an ALJ is required to
consider the opinions of State agency medical or psychological consultants, except for the ultimate
determination of disability, which decision is reserved to the ALJ. The Regulations consider State
agency consultants as highly qualified experts in their field, and therefore, the ALJ may rely upon their
opinions. Id. Title 20, C.F.R. §§ 404.1527(e)(2)(I) and 416.927(e)(2)(I) provide:
Administrative law judges are not bound by any findings made by State agency
medical or psychological consultants, or other program physicians or psychiatrists.
State agency medical and psychological consultants . . . are highly qualified
physicians, psychologists, and other medical specialists who are also experts in Social
Security disability evaluation. Therefore, administrative law judges must consider
findings and other opinions of State agency medical consultants . . . except for the
ultimate determination about whether you are disabled.
20 C.F.R. §§ 404.1527(e)(2)(I) and 416.927(e)(2)(I) (2012). Similarly, SSR 96-6p provides:
Because State agency medical and psychological consultants and other program
physicians and psychologists are experts in Social Security disability programs, the
rules in 20 CFR 404.1527[e] and 416/927[e] require administrative law judges and the
Appeals Council to consider the findings of fact about the nature and severity of an
individual’s impairment(s) as opinions of nonexamining physicians and psychologists.
Administrative law judges and the Appeals Council are not bound by findings made
by State agency or other program physicians and psychologists, but they may not
ignore these opinions and must explain the weight given to the opinions in their
decisions.
The Ruling further states:
In appropriate circumstances, opinions from State agency medical and psychological
consultants and other program physicians and psychologists may be entitled to greater
weight than the opinions of treating or examining sources. For example, the opinion
of a State agency medical or psychological consultant or other program physician or
psychologist may be entitled to greater weight than a treating source’s medical opinion
if the State agency medical or psychological consultant’s opinion is based on a review

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of a complete case record that includes a medical report from a specialist in the
individual’s particular impairment which provides more detailed and comprehensive
information than what was available to the individual’s treating source.
SSR 96-6p, 1996 WL 374180 *2 (July 2, 1996).
In her decision, the ALJ gave the opinions of Dr. Parikshak and Dr. Franyutti, both State
agency medical consultants, great weight because their opinions were consistent with Claimant’s
improving medical signs and mild laboratory findings and because they were familiar with Social
Security rules and regulations. (Tr. at 16.) Claimant contends that because these medical consultants
neither talked to nor examined her, they failed to consider all of her limitations to which she testified.
(Document No. 12 at 5.) Pursuant to 20 C.F.R. §§ 404.1527(e)(2) and 416.927(e)(2) and SSR 96-6p,
the ALJ was entitled to rely on the opinions of Drs. Parikshak and Franyutti as State agency medical
consultants because they were highly qualified experts in evaluating disability. The ALJ also was
entitled to rely upon their opinions because they were consistent with the evidence of record. See 20
C.F.R. §§ 404.1527(e)(2)(ii) and 416.927(e)(2)(ii) (2012). The ALJ noted that Dr. Alkhankan’s
examinations revealed only intermittent observations of a hyperinflated chest, wheezing, rales, and
rhonchi. (Tr. at 16.) She noted that Claimant reported in March 2011, that she exercised regularly and
continued to work part-time. (Tr. at 16.) A chest CT Scan revealed only mild emphysema and no
worrisome findings, spirometry revealed only moderate obstruction, and a bronchoscopy in January
2012, was normal. (Tr. at 16, 284-86, 303, 410, 412-13.) Additionally, Dr. Alkhankan noted in May
2011, that Claimant’s COPD was under “good control.” (Tr. at 309, 409.) Furthermore, as the
Commissioner points out, Claimant’s treating physician did not assess any functional limitations
resulting from her medical conditions or opine that she was unable to work. Accordingly, the Court
finds that the opinions of Dr. Parikshak and Dr. Franyutti are consistent with the substantial evidence
of record as determined by the ALJ, and therefore, the ALJ’s decision to give their opinions great

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weight is supported by substantial evidence.
2. Claimant’s Credibility.
Claimant also alleges that the ALJ erred in assessing her credibility by failing to give a
reasonable explanation as to why she found Claimant not credible entirely. (Document No. 12 at 6.)
A two-step process is used to determine whether a claimant is disabled by pain or other symptoms.
First, objective medical evidence must show the existence of a medical impairment that reasonably
could be expected to produce the pain or symptoms alleged. 20 C.F.R. §§ 404.1529(b) and 416.929(b)
(2012); SSR 96-7p; See also, Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). A claimant’s
“statements alone are not enough to establish that there is a physical or mental impairment.” 20 C.F.R.
§§ 404.1529(a) and 416.929(a) (2012) If such an impairment is established, then the intensity and
persistence of the pain or symptoms and the extent to which they affect a claimant’s ability to work
must be evaluated. Craig v. Chater, 76 F.3d at 595. When a claimant proves the existence of a
medical condition that could cause the alleged pain or symptoms, “the claimant’s subjective complaints
[of pain] must be considered by the Secretary, and these complaints may not be rejected merely
because the severity of pain cannot be proved by objective medical evidence.” Mickles v. Shalala, 29
F.3d 918, 919 (4th Cir. 1994). Objective medical evidence of pain should be gathered and considered,
but the absence of such evidence is not determinative. Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir.
1990). In Hines v. Barnhart, 453 F.3d 559, 565 n.3 (4th Cir. 2006) (citing Craig v. Chater, 76 F.3d at
595), the Fourth Circuit stated:
Although a claimant’s allegations about her pain may not be discredited solely because
they are not substantiated by objective evidence of the pain itself or its severity, they
need not be accepted to the extent they are inconsistent with the available evidence,
including objective evidence of the underlying impairment, and the extent to which
that impairment can reasonably be expected to cause the pain the claimant alleges she
suffers.
A claimant’s symptoms, including pain, are considered to diminish his capacity to work to the

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extent that alleged functional limitations are reasonably consistent with objective medical and other
evidence. 20 C.F.R. §§ 404.1529(c)(4) and 416.929(c)(4) (2012). Additionally, the Regulations
provide that:
[w]e will consider all of the evidence presented, including information about your prior
work record, your statements about your symptoms, evidence submitted by your
treating, examining, or consulting physician or psychologist, and observations by our
employees and other persons. . . . Factors relevant to your symptoms, such as pain,
which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms.
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief
of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms
(e.g., lying flat on your back, standing for 15 or 20 minutes every hour,
sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain
or other symptoms.
20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) (2012).
SSR 96-7p repeats the two-step regulatory provisions:
First, the adjudicator must consider whether there is an underlying medically
determinable physical or mental impairment(s)--i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory diagnostic techniques--that
could reasonably be expected to produce the individual’s pain or other symptoms. *
* * If there is no medically determinable physical or mental impairment(s), or if there
is a medically determinable physical or mental impairment(s) but the impairment(s)
could not reasonably be expected to produce the individual’s pain or other symptoms,
the symptoms cannot be found to affect the individual’s ability to do basic work
activities.

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Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual’s pain or other symptoms has been
shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of
the individual’s symptoms to determine the extent to which the symptoms limit the
individual’s ability to do basic work activities. For this purpose, whenever the
individual’s statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the individual’s statements based
on a consideration of the entire case record.
SSR 96-7p, 1996 WL 374186 (July 2, 1996). SSR 96-7p specifically requires consideration of the
“type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to
alleviate pain or other symptoms” in assessing the credibility of an individual’s statements.
Significantly, SSR 96-7p requires the adjudicator to engage in the credibility assessment as early as
step two in the sequential analysis; i.e., the ALJ must consider the impact of the symptoms on a
claimant’s ability to function along with the objective medical and other evidence in determining
whether the claimant’s impairment is “severe” within the meaning of the Regulations. A “severe”
impairment is one which significantly limits the physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1520(c) and 416.920(c).
Craig and SSR 96-7p provide that although an ALJ may look for objective medical evidence
of an underlying impairment capable of causing the type of pain alleged, the ALJ is not to reject a
claimant’s allegations solely because there is no objective medical evidence of the pain itself. Craig,
76 F.3d at 585, 594; SSR 96-7p (“the adjudicator must make a finding on the credibility of the
individual’s statements based on a consideration of the entire case record”). For example, the
allegations of a person who has a condition capable of causing pain may not be rejected simply
because there is no evidence of “reduced joint motion, muscle spasms, deteriorating tissues [or]
redness” to corroborate the extent of the pain. Id. at 595. Nevertheless, Craig does not prevent an ALJ
from considering the lack of objective evidence of the pain or the lack of other corroborating evidence

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as factors in his decision. The only analysis which Craig prohibits is one in which the ALJ rejects
allegations of pain solely because the pain itself is not supported by objective medical evidence.
The ALJ noted the requirements of the applicable law and Regulations with regard to assessing
pain, symptoms, and credibility. (Tr. at 14-15.) The ALJ found at the first step of the analysis that
Claimant’s “medically determinable impairments could reasonably be expected to cause the alleged
symptoms.” (Tr. at 15.) Thus, the ALJ made an adequate threshold finding and proceeded to consider
the intensity and persistence of Claimant’s alleged symptoms and the extent to which they affected
Claimant’s ability to work. (Tr. at 15-16.) At the second step of the analysis, the ALJ concluded that
“the [C]laimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual functional
capacity assessment.” (Tr. at 15.)
As indicated above, the ALJ’s credibility 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 *2 (July 2,
1996). The Court has determined that although the ALJ’s ultimate credibility determination is
supported by the evidence in the case record, her decision failed to set forth specific reasons for her
credibility finding. Thus, while the record supports the ALJ’s ultimate credibility determination, it is
not for the Court to surmise the ALJ’s reasoning or to substitute its opinion for that of the ALJ’s
opinion when her decision is bereft of sufficient reasons to support her credibility finding.
In assessing Claimant’s pain and credibility, the ALJ summarized Claimant’s activities when
she addressed her mental impairments. (Tr. at 13.) The ALJ, however, failed to acknowledge or
summarize Claimant’s testimony from the administrative hearing and failed to address many of the

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factors set forth in 20 C.F.R. §§ 404.1529(c)(4) and 416.929(c)(4). In fact, the ALJ’s analysis consists
of four one or two sentence paragraphs summarizing the evidence and a paragraph devoted to the
opinion evidence. Her analysis, at most consists of one page in length. (Tr. at 15-16.) The ALJ noted
the nature of Claimant’s physical impairments, including pneumonia, COPD, and mild emphysema
and that she was treated with oral antibiotics for pneumonia. (Tr. at 15.) The only other treatment
discussed was her treating physician’s repeated recommendation that she quit smoking, which she
failed to do. (Id.) The ALJ failed to mention that she was treated with other medications, including the
use of two inhalers and nightly oxygen. The ALJ also failed to acknowledge Claimant’s testimony that
she was unable to afford certain medications prescribed by Dr. Alkhankan. (Tr. at 40.) The ALJ failed
to discuss any precipitating or aggravating factors and pain relievers. Claimant testified that she was
unable to walk or stand longer than 10 to 15 minutes or one block, that she was unable to sit for more
than a short while due to back pain, that she had difficulty lifting due to pain in her back and hands,
could not breathe if she went up or down stairs, and had sleep difficulties. (Tr. at 41-43.) The Court
therefore finds that although the ALJ’s credibility analysis is ultimately supported by the substantial
evidence of record, it is not for the Court to make such a finding without having the benefit of the
ALJ’s explanation as to her assessment pursuant to the Regulations and SSR 96-7p. For this reason,
the Court finds that remand is necessary for the ALJ to explain her credibility assessment and resulting
RFC assessment.
After a careful consideration of the evidence of record, the Court finds that the Commissioner’s
decision is not supported by substantial evidence. Accordingly, by Judgment Order entered this day,

the Plaintiff’s Motion for Judgment on the Pleadings (Document No. 12.) is GRANTED,
Defendant’s Motion for Judgment on the Pleadings (Document No. 13.) is DENIED, the final
decision of the Commissioner is REVERSED,

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and this matter is REMANDED to the

Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further administrative
proceedings, and is DISMISSED from the active docket of this Court.
The Clerk of this Court is directed to send a copy of this Memorandum Opinion to counsel of
record.
ENTER: March 31, 2015.

R. Clarke VanDervort
United States Magistrate Judge

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