Roseberry v. Colvin

Filing 13

MEMORANDUM OPINION finding that the Commissioner's decision is supported by substantial evidence; affirming the final decision of the Commissioner; and dismissing this matter from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 5/2/2016. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
LENA SUZANNE ROSEBERRY,
Plaintiff,
v.

Case No.: 3:15-cv-04895

CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of the Social
Security Administration (hereinafter the “Commissioner”) denying Plaintiff’s
application for supplemental security income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383f. This case is presently before the Court on the
parties’ motions for judgment on the pleadings as articulated in their briefs. (ECF Nos.
11, 12). Both parties have consented in writing to a decision by the United States
Magistrate Judge. (ECF Nos. 7, 8). The Court has fully considered the evidence and the
arguments of counsel. For the reasons that follow, the Court FINDS that the decision
of the Commissioner is supported by substantial evidence and should be affirmed.
I.

Procedural History
Plaintiff Lena Suzanne Roseberry (“Claimant”) filed an application for SSI benefits

on October 28, 2011, alleging a disability onset date of April 15, 2008, due to “right foot
injury, back pain, leg pain, kidney stones, [and] depression.” (Tr. at 141, 160). The Social
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Security Administration (“SSA”) denied Claimant’s application initially and upon
reconsideration. (Tr. at 75-79, 80-82). Claimant subsequently requested an
administrative hearing, and on September 11, 2012, the SSA mailed to Claimant a
written notice explaining the hearing process, including Claimant’s right to
representation at the hearing, along with a publication by the SSA regarding a claimant’s
right to representation in social security proceedings. (Tr. at 83-87). Claimant’s initial
hearing was held on June 14, 2013 before the Honorable Charlie Andrus, Administrative
Law Judge (“ALJ Andrus”). (Tr. at 45-72). At the hearing, ALJ Andrus informed
Claimant of her right to representation, and Claimant indicated that she understood her
right to representation, but wished to proceed without a representative. (Tr. at 47-52).
Before concluding the hearing, ALJ Andrus referred Claimant for two consultative
medical evaluations. (Tr. at 69). ALJ Andrus left the employ of the SSA before a decision
in Claimant’s case was issued; accordingly, a supplemental hearing was held on October
29, 2013 before the Honorable Andrew J. Chwalibog (“the ALJ”). (Tr. at 12, 28-44). Prior
to the supplemental hearing, the SSA sent a Notice of Hearing to Claimant, which again
attached the SSA’s publication regarding a claimant’s right to representation. (Tr. at 11421). At the supplemental hearing, Claimant confirmed that she wished to proceed
without representation. (Tr. at 30). By written decision dated December 17, 2013, the
ALJ determined that Claimant was not entitled to benefits. (Tr. at 12-23). The ALJ’s
decision became the final decision of the Commissioner on February 11, 2015, when the
Appeals Council denied Claimant’s request for review. (Tr. at 1-3).
On April 16, 2015, 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 subsequently filed an Answer and a Transcript of the Proceedings on
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June 25, 2015. (ECF Nos. 9 & 10). Thereafter, the parties filed their briefs in support of
judgment on the pleadings. (ECF Nos. 11 & 12). Accordingly, this matter is ripe for
resolution.
II.

Claimant’s Background
Claimant was 41 years old at the time of her alleged onset of disability and 47

years old at the time of the administrative hearings. (Tr. at 32, 47, 54, 141). She has a
GED and is able to communicate in English. (Tr. at 56, 159, 161). Claimant previously
worked as a cabin housekeeper and supervisor for a state park and as a home health
aide. (Tr. at 161, 178).
III.

Summary of ALJ’s Findings
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden

of proving disability, 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 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. § 416.920.
The first step in the sequence is determining whether a claimant is currently engaged in
substantial gainful employment. Id. § 416.920(b). If the claimant is not, then the second
step requires a determination of whether the claimant suffers from a severe impairment.
Id. § 416.920(c). If severe impairment is present, the third inquiry is whether this
impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of
the Administrative Regulations No. 4. Id. § 416.920(d). If the impairment does, then the
claimant is found disabled and awarded benefits.
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However, if the impairment does not, the adjudicator must determine the
claimant’s residual functional capacity (“RFC”), which is the measure of the claimant’s
ability to engage in substantial gainful activity despite the limitations of his or her
impairments. Id. § 416.920(e). After making this determination, the next step is to
ascertain whether the claimant’s impairments prevent the performance of past relevant
work. Id. § 416.920(f). If the impairments do prevent the performance of past relevant
work, then the claimant has established a prima facie case of disability, and the burden
shifts to the Commissioner to establish, as the final step in the process, that the claimant
is able to perform other forms of substantial gainful activity, when considering the
claimant’s remaining physical and mental capacities, age, education, and prior work
experiences. Id. § 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th
Cir. 1983). The Commissioner must establish two things: (1) that the claimant,
considering his or her age, education, skills, work experience, and physical shortcomings
has the capacity to perform an alternative job, and (2) that this specific job exists in
significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d. 572,
574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the SSA “must follow a special
technique at every level in the administrative review.” 20 C.F.R. § 416.920a. First, the
SSA evaluates the claimant’s pertinent signs, symptoms, and laboratory results to
determine whether the claimant has a medically determinable mental impairment. If
such impairment exists, the SSA documents its findings. Second, the SSA rates and
documents the degree of functional limitation resulting from the impairment according
to criteria specified in 20 C.F.R. § 416.920a(c). Third, after rating the degree of
functional limitation from the claimant’s impairment(s), the SSA determines the
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severity of the limitation. A rating of “none” or “mild” in the first three functional areas
(activities of daily living, social functioning, and concentration, persistence or pace) and
“none” in the fourth (episodes of decompensation) will result in a finding that the
impairment is not severe unless the evidence indicates that there is more than minimal
limitation in the claimant’s ability to do basic work activities. 20 C.F.R. § 416.920a(d)(1).
Fourth, if the claimant’s impairment is deemed severe, the SSA compares the medical
findings about the severe impairment and the rating and degree and functional
limitation to the criteria of the appropriate listed mental disorder to determine if the
severe impairment meets or is equal to a listed mental disorder. 20 C.F.R. §
416.920a(d)(2). Finally, if the SSA finds that the claimant has a severe mental
impairment, which neither meets nor equals a listed mental disorder, the SSA assesses
the claimant’s residual function. 20 C.F.R. § 416.920a(d)(3).
In this case, the ALJ determined that Claimant satisfied the first inquiry because
she had not engaged in substantial gainful activity since October 24, 2011. (Tr. at 14,
Finding No. 1). Under the second inquiry, the ALJ found that Claimant suffered from
the severe impairments of vision loss and low back problems. (Id., Finding No. 2). The
ALJ also considered Claimant’s allegations of plantar fasciitis, nephrolithiasis, leg pain,
tailbone pain, headaches, anxiety (Post Traumatic Stress Disorder or “PTSD”), and
depression; however, he found that these impairments were non-severe. (Tr. at 14-17).
At the third inquiry, the ALJ concluded that Claimant’s impairments, either
individually or in combination, did not meet or equal the level of severity of any
impairment contained in the Listing. (Tr. at 17, Finding No. 3). Consequently, the ALJ
determined that Claimant possessed the RFC to:

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[P]erform light work as defined in 20 CFR 416.967(b) except and [sic] can
sit six to eight hours without interruption, can only stand four hours out
of an eight-hour day, but only 45 minutes without interruption, can walk
two hours out of an eight-hour day, but only 20 minutes without
interruption. The claimant can frequently reach, handle, finger, feel, push
and pull bilaterally, can frequently operate foot controls bilaterally, can
occasionally climb ladders scaffolds [sic], and can frequently climb ramp
[sic] or stairs, balance, stoop, kneel, crouch, crawl. She has limited depth
perception (no acute binocular vision) and limited fields of vision. The
claimant should avoid concentrated exposure to vibration, hazards, fumes,
odors, gases, and pollutants.
(Tr. at 17-21, Finding No. 4). Based upon the RFC assessment, the ALJ determined at
the fourth step that Claimant was unable to perform any past relevant work. (Tr. at 2122, Finding No. 5). Under the fifth and final inquiry, the ALJ reviewed Claimant’s prior
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 22-23, Finding Nos. 6-9).
The ALJ considered that (1) Claimant was born in 1966 and was defined as a younger
individual on the date that the application was filed; (2) she had at least a high school
education and could communicate in English; and (3) transferability of job skills was
not material to the disability determination given that the Medical-Vocational Rules
supported a finding that the Claimant was “not disabled,” regardless of her job skills.
(Tr. at 22, Finding Nos. 6-8). Given these factors, Claimant’s RFC, and the testimony of
a vocational expert, the ALJ determined that Claimant could perform jobs that existed
in significant numbers in the national economy. (Id., Finding No. 9). At the light,
unskilled level, Claimant could work as a routing clerk or price marker, and at the
sedentary, unskilled level, Claimant could work as a retail order clerk or inspector. (Tr.
at 22-23). Therefore, the ALJ concluded that Claimant had not been disabled as defined
in the Social Security Act from October 24, 2011 through the date of the ALJ’s decision.
(Tr. at 23, Finding No. 10).
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IV.

Claimant’s Challenges to the Commissioner’s Decision
Claimant raises two challenges to the Commissioner’s decision. First, Claimant

alleges that the ALJ failed to adequately advise her of “the benefits of obtaining legal
representation in her Social Security case.” (ECF No. 11 at 5). While Claimant
acknowledges that she was advised of her right to representation at the first
administrative hearing by ALJ Andrus, she contends that the ALJ failed to thoroughly
explain her right to representation at the supplemental hearing. (Id.) Claimant asserts
that the ALJ’s offer to allow Claimant to obtain representation if she felt “in over her
head” during the supplemental hearing was insufficient to meet the ALJ’s duty to ensure
that Claimant understood the benefits of legal representation. (Id. at 5-6). Claimant
argues that she was “grossly ill-prepared to represent herself” as evidenced by “her
failure to mention all of her impairments and request assistance obtaining additional
medical evidence.” (Id. at 6).
Second, Claimant maintains that the ALJ failed to adequately develop the record.
(Id.) Claimant insists that the ALJ possessed a heightened duty to develop the record
because she was unrepresented. (Id. at 6-7). Claimant asserts that the ALJ made several
references to medical evidence missing from the record, including podiatry consultation
notes from Dr. Stinehour, notes from psychological counselor David Clay, and treatment
records concerning Claimant’s allegation of headaches. (Id. at 7). Claimant contends
that the ALJ should have inquired of her whether the record was complete and
subsequently obtained any other relevant medical information. (Id.) Moreover,
Claimant argues that the ALJ erred by failing to question Claimant regarding her mental
impairments diagnosed by consultative examiner Emily Wilson, M.A. (Id.)
In contrast, the Commissioner responds that Claimant knowingly and
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intelligently waived her right to representation at both the initial and supplemental
hearings. (ECF No. 12 at 9). The Commissioner notes that Claimant was advised of her
right to representation at both hearings and in three mailings sent to her prior to those
hearings. (Id.) The Commissioner argues that Claimant has offered no evidence
suggesting that she was incapable of understanding her decision to waive
representation. (Id.) Moreover, the Commissioner asserts that Claimant had no
difficulty understanding the hearing procedure and that Claimant stated in her Adult
Function Report that she was able to understand and follow instructions. (Id.) In
addition, the Commissioner contends that Claimant cannot establish that prejudice
resulted from any error by the ALJ in advising her of the right to representation. (Id. at
10).
With respect to Claimant’s second challenge, the Commissioner responds that
both ALJ Andrus and the ALJ thoroughly questioned Claimant and repeatedly asked her
whether she suffered from any other ailments that would affect her ability to work. (Id.)
As for the purportedly missing medical evidence, the Commissioner points out that
Claimant has not presented those records to the Court, and the Commissioner questions
whether such records even exist. (Id.) Furthermore, the Commissioner insists that any
additional medical records would not have changed the outcome of Claimant’s case. (Id.
at 11). On the subject of Claimant’s foot impairment, the Commissioner notes that
Claimant was not being treated for foot problems at the time of the supplemental
hearing and that x-rays of Claimant’s feet taken in September 2013 showed only mild
osteoarthritis. (Id.) Additionally, the medical opinion evidence confirms that Claimant
is able stand for at least four hours in an eight-hour workday and walk for at least two
hours in an eight-hour workday. (Id.) Regarding any absent mental health treatment
8

records, the Commissioner emphasizes that Claimant stated in her October 2011
disability report that she was not receiving mental health treatment and Claimant
reiterated the same at her July 2013 examination with William E. Waltrip, M.D. (Id. at
12). The Commissioner also asserts that Ms. Wilson’s psychological findings were mostly
unremarkable and that two state agency psychologists opined that Claimant’s mental
impairments were nonsevere. (Id.) Lastly, in relation Claimant’s allegation of
headaches, the Commissioner argues that Claimant did not testify she suffered from
headaches at the administrative hearings. (Id. at 13). Moreover, the Commissioner
contends that Claimant did not mention headaches during two consultative
examinations and never mentioned headaches during her appointments at Ebenezer
Medical Outreach. (Id.)
V.

Relevant Medical Records
The Court has reviewed the transcript of proceedings in its entirety including the

medical records in evidence, but has confined its summary of Claimant’s treatment
records and evaluations to those entries most relevant to the issues in dispute.
A. Treatment Records
On June 10, 2008, Claimant presented to Ebenezer Medical Outreach
complaining of left foot pain following a surgery in April 2008 performed by Dr.
Stinehour. (Tr. at 284). Claimant’s physical examination was normal, and she was
assessed with left foot pain. (Id.) Claimant was prescribed Ultram for her pain. (Id.)
Claimant returned to Ebenezer Medical Outreach on September 3, 2008
complaining of low back pain, low stomach pain, and frequent urination. (Tr. at 288).
Upon examination, Claimant exhibited some costovertebral angle tenderness. (Id.) She
was advised to increase her fluid intake. (Id.)
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On October 7, 2008, Claimant was examined by Sara Lowe, RN, FNP, at Ebenezer
Medical Outreach for complaints of pain in both feet and sleep disruption due to pain.
(Tr. at 289-90). A review of systems was unremarkable other than plantar fasciitis of the
right foot. (Tr. at 289). Claimant reported she had visited her podiatrist that day, who
recommended that Claimant undergo surgery on her right foot the following week. (Id.)
Nurse Lowe recorded that Claimant had the same surgery on her left foot in March 2008,
with good results and pain relief. (Id.) Claimant was assessed with benign hypertension,
resolved urinary tract infection, seasonal allergies, and right plantar fasciitis. (Id.)
Claimant received prescriptions for Ultram, Allegra, and Singulair. (Tr. at 289-90).
On February 3, 2009, Claimant informed Nurse Lowe that she had visited the
emergency room two days prior to her appointment complaining of back pain. (Tr. at
291). Claimant was informed at the emergency room that she had kidney stones, and she
was given Lortab 5 for her pain. (Id.) At her appointment with Nurse Lowe, Claimant
reported experiencing right flank pain that hurt with any movement. (Id.) Claimant
requested a prescription for pain medication. (Id.) Nurse Lowe recorded that there was
no costovertebral angle tenderness to palpation; however, Claimant complained of pain
with any movement. (Id.) Claimant was diagnosed with nephrolithiasis (a fourcentimeter stone in right kidney) as revealed by a CT scan taken the previous day. (Id.)
Nurse Lowe advised Claimant to return to the emergency room if she required additional
pain medication. (Id.) Nurse Lowe also noted that she would attempt to schedule an
appointment for Claimant with a urologist. (Id.) Claimant was notified on February 11
of an appointment with Dr. Wyner, urologist, scheduled for March 4, 2009. (Tr. at 293).
On April 21, 2009, Claimant called Ebenezer Medical Outreach reporting a recent
hospital visit due to kidney stones. (Tr. at 295). Claimant requested a prescription for
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Phenergan because ibuprofen made her feel nauseous, and the prescription was written.
(Id.)
Claimant returned to Ebenezer Medical Outreach on July 28, 2009 for follow-up
and medication refills. (Tr. at 296-97). Claimant indicated that she was following with
Dr. Wyner for her kidney stones and that she still had some kidney stones which had not
passed. (Tr. at 296). A physical examination was normal with the exception of mild
bilateral lower leg edema and a right eye prosthesis. (Id.) Claimant’s mental status
examination was normal. (Id.) Claimant was assessed with allergic rhinitis, edema of the
lower extremities, leg pain, status post foot surgery for plantar fasciitis, and
nephrolithiasis. (Id.) Nurse Lowe prescribed Allegra, Singular, Ultram, Rhinocort, and
Hydrochlorothiazide.1 (Tr. at 297).
On March 16, 2010, Claimant again treated with Nurse Lowe. (Tr. at 303-04).
Claimant reported prior surgery to her right foot; however, she continued to experience
pain in both feet, right worse than left. (Tr. at 303). She indicated that the pain was
present when sitting and was exacerbated with walking. (Id.) In addition, she stated that
the pain was unlike her prior foot pain as the pain was present on the top of the feet.
(Id.) Nurse Lowe recorded that Claimant’s physical examination was normal other than
right foot pain with dorsiflexion and plantar flexion. (Id.) Claimant’s mental
examination was normal. (Id.) Nurse Lowe diagnosed Claimant with allergic rhinitis,
benign hypertension, right foot pain, and history of nephrolithiasis. (Id.) Claimant was
referred to Dr. Stinehour for a podiatry examination. (Tr. at 304).
On April 6, 2010, Claimant was examined by Dr. Stinehour for right foot pain.
On August 18, 2009, Claimant completed a medical history form for the West Virginia Breast & Cervical
Screening Program in preparation for a mammogram. (Tr. at 249). Under personal medical history and
problem section, Claimant noted headaches.

1

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(Tr. at 259). Claimant’s varicosities and temperature gradient were within normal limits.
(Id.) Dr. Stinehour assessed Claimant with a possible stress fracture of the right foot,
and ordered an x-ray of Claimant’s right foot. (Id.) Claimant returned to Dr. Stinehour
on May 4, 2010 for complaints of pain on the top of her right foot. (Tr. at 260). Claimant
was given a cortisone shot for neuropathy. (Id.)
On November 9, 2010, Claimant returned to Nurse Lowe. (Tr. at 236-37).
Claimant complained of allergy symptoms, cough, headache, sinus congestion, nerves,
insomnia, and fatigue. (Tr. at 236). She also reported experiencing symptoms of
depression, including frequent “crying spells” during the previous four months. (Id.)
Claimant indicated she was willing to talk to a counselor. (Id.) A review of systems was
negative for back pain or abdominal pain. (Id.) Nurse Lowe’s physical examination
findings were unremarkable, other than post-nasal drip. (Id.) Claimant was assessed
with benign hypertension, acute sinusitis, history of nephrolithiasis, and depressive
disorder. (Id.) Nurse Lowe prescribed Levaquin and Celexa, and she referred Claimant
to David Clay, psychological counselor. (Tr. at 237).
Claimant again visited Nurse Lowe on May 17, 2011 with complaints of headache
and sinus pressure. (Tr. at 311). A review of systems was negative other than depression,
sinus pressure, and jaw tenderness. (Id.) Nurse Lowe noted that Claimant had an
artificial right eye, had 20/20 vision in her left eye, and treated with Dr. Gregory
Browning for any eye issues. (Id.) A physical examination was negative other than sinus
tenderness. (Id.) Claimant was assessed with allergic rhinitis, benign hypertension,
depression, and acute sinusitis. (Tr. at 311-12).
On December 6, 2011, Nurse Lowe saw Claimant for a follow-up regarding
Claimant’s depression, tailbone pain, and chronic sinusitis. (Tr. at 238). Claimant
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complained of depression and pain in her tailbone, which had been ongoing for the prior
month. (Id.) Claimant stated that she experienced tailbone pain when sitting and that
the pain worsened upon rising from a seated position. (Id.) In addition, Claimant
reported suffering from sinus pressure, headache, facial and teeth pain, and left earache.
(Id.) Upon physical examination, Claimant appeared to be in no acute distress. (Id.)
Claimant exhibited sinus tenderness along with diffuse tenderness in her bilateral
cervical anterior chains. (Id.) Claimant was assessed with acute upper respiratory
infection, depressive disorder, and pain in the sacrum/coccyx area. (Id.) Nurse Lowe
prescribed Celexa, Clarinex, Singulair, Ultram, and Rhinocort Aqua. (Tr. at 239). She
also ordered x-rays of Claimant’s sacrum/coccyx area. (Id.)
Claimant presented to Cabell Huntington Hospital on January 12, 2012 for an xray of her sacrococcygeal spine. (Tr. at 235). James K. Watson, M.D., interpreted the xrays to be within normal limits. (Id.)
On May 8, 2012, Claimant reported to Nurse Lowe that she was experiencing
worsening pain in her right foot. (Tr. at 412). She also continued to have pain in her
tailbone area, which had been ongoing for six months and continued to increase. (Id.)
Claimant indicated that standing after sitting for any length of time caused her
“unbearable” pain. (Id.) She also stated that she had ridden horses for several years, but
she could no longer participate in that activity due to pain. (Id.) Claimant informed
Nurse Lowe that Ultram and Tylenol did not offer much relief. (Id.) A physical
examination was unremarkable, except that Claimant was unable to move the fifth digit
on her right foot. (Id.) Nurse Lowe assessed Claimant with allergic rhinitis, mixed
hyperlipidemia, benign hypertension, continued pain in the sacrum/coccyx area, right
foot pain status post-surgery on both feet, and depressive disorder. (Tr. at 412-13).
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Claimant’s medication regimen remained unchanged, and Nurse Lowe referred
Claimant for orthopedic and podiatry consultations. (Tr. at 413).
Claimant again treated with Nurse Lowe on May 21, 2013. (Tr. at 416-17).
Claimant reported experiencing fatigue for the previous four months. (Tr. at 416).
Claimant informed Nurse Lowe that she was out of Celexa, but she wanted to restart
taking it because it helped with her depression in the past. (Id.) In addition, Claimant
remarked that she was having some vision changes and needed an eye examination. (Id.)
Claimant also reported increased pain and stiffness in the joints of her hands, shoulders,
hips, knees, and feet. (Id.) Claimant told Nurse Lowe that she had difficulty holding on
to the steering wheel when driving, making the bed, washing dishes, and carrying out
her activities of daily living. (Id.) She expressed constant feelings of being tired and
generally unwell. (Id.) Upon examination, Nurse Lowe observed severe tenderness in
the distal and proximal interphalangeal joints of both hands; however, Claimant
exhibited no wrist pain and retained full range of motion in her wrists. (Id.) Nurse Lowe
recorded that finger flexing caused Claimant discomfort and that Claimant had minor
Heberden’s nodes on several fingers. (Id.) Claimant was assessed with allergic rhinitis,
chronic depression, and increased multiple joint pain and stiffness. (Id.) Nurse Lowe
noted that she had questions about the etiology of Claimant’s joint pain and stiffness.
(Id.)
On July 25, 2013, Claimant presented to Dr. Browning for an eye examination.
(Tr. at 458-59). He noted that Claimant suffered an injury to her right eye when she was
nine years old, which resulted in a detached retina and loss of her eye. (Tr. at 458). With
best correction, Claimant had 20/20 distant vision and 20/20 near vision in her left eye.
(Id.) Without correction, Claimant retained 20/20-1 distant vision and 20/40 near
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vision in her left eye. (Id.) Claimant was diagnosed with dry eye and blepharitis;
however, Dr. Browning indicated that Claimant had no ocular disability due to retained
OS function. (Id.)
Claimant presented to Cabell Huntington Hospital on September 4, 2013 for xrays of her hands, bilateral feet, and bilateral wrists. (Tr. at 479-81). Joshua Gibson,
M.D., recorded that the x-rays of Claimant’s hands revealed osteoarthrosis diffusely in
the interphalangeal joints; however, no acute fracture, dislocation, or erosions were
seen. (Tr. at 479). Dr. Gibson noted that the x-rays of Claimant’s wrists showed mild
osteoarthrosis with no fracture or dislocation, and Claimant’s carpal rows were intact.
(Tr. at 481). As for Claimant’s feet, the x-rays revealed mild osteoarthrosis, but no acute
fraction or dislocation. (Tr. at 480). Claimant’s bone mineralization was within normal
limits. (Id.)
B. Consultative Examinations and Opinion Evidence
On February 23, 2012, Emily E. Wilson, M.A., completed a Mental Status
Examination of Claimant for the West Virginia Disability Determination Service. (Tr. at
319-25). Claimant reported that she had numerous limitations that prevented her from
working, including an inability to stand or sit for extended periods due to pain in her
tailbone, problems being around people, and panic attacks. (Tr. at 319). Claimant stated
that she could drive, but only if someone rode with her given the loss of her right eye.
(Tr. at 320, 322). Claimant indicated that her anxiety began when she was stabbed in
the eye with a pencil at age nine. (Tr. at 320). She had not worked since 2006 or 2007
as a result of foot surgery and pain in her right foot due her toes being “out of line.” (Id.)
Regarding mental health treatment, Claimant reported symptoms of anxiety, including
difficulty controlling worry, fatigue, and sleep disturbances. (Id.) In addition, Claimant
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chronicled symptoms of depression, such as fatigue, sleep and appetite disturbances,
weight loss and gain, feelings of guilt, inability to “have fun,” strange thoughts, and
temper issues. (Tr. at 321). She explained that these symptoms made her very agitated.
(Id.) Claimant stated that she had not participated in counseling; however, she had taken
psychotropic medications in the past. (Id.) Claimant also stated that she experienced
daily headaches, with more severe headaches occurring three to four times each month.
(Id.) With respect to activities of daily living, Claimant reported that she performed most
activities independently, including caring for her hygiene and cooking. (Tr. at 322). On
a typical day, Claimant described getting out of bed, letting her dog out, awaking her
grandson, performing light chores, and cooking for her family. (Id.) Claimant expressed
that she did not attend social gatherings. (Id.)
Upon examination, Ms. Wilson recorded that Claimant was cooperative and
interacted appropriately with good eye contact except when talking about her family and
ex-husband, which caused her to become tearful. (Id.) Claimant exhibited relevant and
coherent speech, and she was oriented in all spheres. (Tr. at 322-23). Ms. Wilson noted
that Claimant’s mood was anxious and depressed, and her affect was consistent with her
mood. (Tr. at 323). Claimant’s thought process, thought content, perception, insight,
and judgment were within normal limits. (Id.) Ms. Wilson observed that Claimant’s
concentration and immediate, recent, and remote memory were also within normal
limits. (Id.) As to psychomotor activity, Claimant appeared fidgety, restless, and
guarded; she clasped her hands tightly enough that her knuckles were white. (Id.) Ms.
Wilson opined that Claimant’s pace and persistence were within normal limits. (Id.)
With respect to social activity, Ms. Wilson recounted that Claimant’s interactions during
the examination were normal and that Claimant reported speaking with her cousin daily.
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(Id.) Claimant also stated that she was very close with her husband. (Id.) Ms. Wilson
diagnosed Claimant with PTSD and panic disorder with agoraphobia. (Id.) Ms. Wilson
based her diagnosis of PTSD on Claimant’s multiple traumatic experiences as a child
and an adult, and Claimant’s remarks during the examination concerning feelings of
numbness or impending doom. (Id.) The diagnosis of panic disorder resulted from
Claimant’s reports of “spells” of panic and persistent fears of suffering a panic attack.
(Id.) Ms. Wilson concluded that Claimant’s prognosis was poor given the chronic nature
of her symptoms. (Id.) Ms. Wilson opined that Claimant would be able to manage any
benefits that she may receive. (Id.)
On February 29, 2012, Robert Nold, M.D., examined Claimant’s physical
condition for the West Virginia Disability Determination Service. (Tr. at 327-32).
Claimant complained of low back pain for the preceding six months that radiated into
her hips and down her legs, with her right leg experiencing more pain than her left. (Tr.
at 327). She also reported coccydynia and lumbar pain as well as a history of kidney
stones. (Id.) Claimant reported undergoing a lithotripsy; however, she continued to
suffer from right flank pain, occasional hematuria, episodes of urinary incontinence, and
episodes of being unable to urinate. (Id.) In addition, Claimant informed Dr. Nold that
she had a prosthetic right eye due to an injury as a child. (Id.) She also described a history
of anxiety and depression. (Id.)
Upon physical examination, Claimant appeared to be in no acute distress. (Tr. at
328). Dr. Nold observed that Claimant did not wear corrective lenses and that her
Snellen acuity examination result was 20/25. (Id.) Claimant’s cervical spine exhibited a
full range of motion. (Id.) Claimant’s abdomen was soft, her kidneys were nonpalpable,
and her bowel sounds were normal. (Id.) Dr. Nold noted no cyanosis, clubbing, or edema
17

in Claimant’s extremities, and he recorded that Claimant’s extremities appeared grossly
symmetrical without evidence of atrophy. (Id.) Muscle bulk and tone of the extremities
were normal. (Id.) Claimant could flex and extend her knees and elbows without
difficulty. (Id.) Dr. Nold observed no swelling, redness, or tenderness of Claimant’s
joints. (Id.) Claimant could ambulate in a normal fashion, and Claimant retained full
range of motion in her peripheral joints. (Id.) Dr. Nold recorded that Claimant’s bilateral
fist grip strength was 5/5. (Id.) Claimant’s lumbar spine was able to flex forward sixty
degrees and laterally flex twenty degrees on both sides. (Tr. at 329). A straight leg raising
test in the seated position measured ninety degrees bilaterally while the same test in the
supine position was sixty degrees bilaterally. (Id.) Dr. Nold noted that Claimant did not
use an assistive device to aid in ambulation and that her gait was normal. (Id.)
Claimant’s cranial nerves were grossly intact, and her motor strength was 5/5 in all
muscle groups. (Id.) Claimant exhibited difficulty walking on her heels and toes due to
a prior foot issue. (Id.) She was able to tandem walk without issue, and she could
perform one-half of a full knee squat without pain. (Id.) Dr. Nold recorded that
Claimant’s deep tendon reflexes were 1+ and equal bilaterally. (Id.) Claimant was fully
oriented with normal mood and affect, and Dr. Nold found that Claimant related
adequately to him. (Id.)
Dr. Nold diagnosed Claimant with low back pain, history of kidney stones, right
eye injury with prosthetic eye on the right, history of foot problems, and history of
anxiety and depression. (Id.) Dr. Nold opined that Claimant’s primary problem was low
back pain and coccydynia. (Id.) Dr. Nold remarked that Claimant’s back pain was likely
the result of “wear and tear.” (Id.) He noted that Claimant had difficulty bending and
would likely have issues in a work setting with bending and lifting items over thirty to
18

thirty-five pounds due to decreased mobility and low back pain. (Id.) Dr. Nold noted that
Claimant reported right foot problems; however, there was no clear etiology for the
problems. (Id.) Claimant exhibited a normal range of motion in her right foot during the
examination, but she was unable to perform the heel or toe walk due to foot pain. (Id.)
Dr. Nold determined this limitation might cause difficulty for Claimant in climbing up
and down a ladder, traversing a number of stairs, or walking for an extended distance
(over one block or so). (Id.) Dr. Nold also explained that Claimant may be limited in
work activities that would require vision in both eyes. (Tr. at 330). Other than those
specific limitations outlined by Dr. Nold, he concluded that Claimant appeared to be
functionally intact. (Id.)
On March 9, 2012, Rosemary L. Smith, Psy.D., completed a Psychiatric Review
Technique. (Tr. at 333-46). Dr. Smith found that Claimant’s impairments of affective
disorder (depression) and anxiety-related disorders (panic disorder and PTSD) were
nonsevere. (Tr. at 333, 336, 338). Dr. Smith opined that Claimant had mild limitation
in activities of daily living, maintaining social functioning, and maintaining
concentration, persistence, or pace. (Tr. at 343). Dr. Smith also observed that Claimant
had no episodes of decompensation of extended duration. (Id.) She noted that the
evidence did not establish the presence of the paragraph “C” criteria for Listings 12.04
and 12.06. (Tr. at 344). In the Consultant’s Notes section of the form, Dr. Smith
indicated that Claimant had no prior psychiatric or outpatient treatment other than
prescriptions from her primary care physician. (Tr. at 345). Dr. Smith summarized Ms.
Wilson’s evaluation of Claimant and noted that a diagnosis of depression was supported
by the record evidence, even though Ms. Wilson had not provided that diagnosis in her
evaluation. (Id.) Dr. Smith acknowledged that Claimant had alleged problems with
19

memory and concentration in her Adult Function Report; however, Dr. Smith opined
that Claimant’s allegations were not entirely credible based on the results of the
consultative examination and her activities of daily living. (Id.) Consequently, Dr. Smith
determined that Claimant did not suffer from significant limitations in the areas of
memory and concentration. (Id.) Lastly, Dr. Smith concluded that there was no evidence
that Claimant experienced significant functional limitations as a result of any mental
impairment. (Id.)
On March 13, 2012, Uma Reddy, M.D., completed a Physical Residual Functional
Capacity Assessment. (Tr. at 347-54). Dr. Reddy listed Claimant’s primary diagnoses as
back strain and right foot injury with secondary diagnoses of kidney stones and loss of
right eye. (Tr. at 347). As to exertional limitations, Dr. Reddy found that Claimant could
occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds,
stand or walk about six hours in an eight-hour workday, and sit about six hours in an
eight-hour workday. (Tr. at 348). Dr. Reddy also indicated that Claimant retained
unlimited ability to push or pull. (Id.) With respect to postural limitations, Dr. Reddy
determined that Claimant could occasionally climb ramps, stairs, ladders, ropes, and
scaffolds; balance; stoop; kneel; crouch; and crawl. (Tr. at 349). Dr. Reddy concluded
that Claimant had no manipulative limitations. (Tr. at 350). Regarding visual
limitations, Dr. Reddy determined that Claimant possessed limited depth perception
and field of vision; however, Claimant was unlimited with near acuity, far acuity,
accommodation, and color vision. (Id.) Claimant had no communicative limitations. (Tr.
at 351). As for environmental limitations, Dr. Reddy opined that Claimant could have
unlimited exposure to extreme cold, extreme heat, wetness, humidity, and noise. (Id.)
However, Dr. Reddy indicated that Claimant should avoid concentrated exposure to
20

vibration, fumes, odors, dusts, gases, poor ventilation, and hazards, such as machinery
or heights. (Id.)
In discussing Claimant’s symptoms, Dr. Reddy noted that Claimant had reported
she could not stand or sit for long periods and could only lift approximately ten pounds
due to back pain. (Tr. at 352). Dr. Reddy wrote that Claimant was a forty-five-year-old
well-built female with a history of back strain and pain as well as a right foot injury that
caused her some pain. (Id.) Dr. Reddy opined that Claimant was partially credible since
there was medical evidence supportive of her alleged limitations; however, Claimant did
not meet any listing limitations. (Id.) In addition, Dr. Reddy concluded that Claimant’s
kidney stones and loss of her right eye were not disabling. (Id.) Dr. Reddy found that
Claimant’s reported activities of daily living evidenced she could perform light work.
(Id.) In the Additional Comments section of the form, Dr. Reddy summarized Dr. Nold’s
findings, a January 2012 x-ray of Claimant’s sacrococcygeal spine, and a December 2011
treatment record from Ebenezer Medical Outreach. (Tr. at 354). Dr. Reddy noted that
her findings concerning Claimant’s limitations were not significantly different from Dr.
Nold’s findings. (Tr. at 353).
Debra Lilly, Ph.D., completed a Psychiatric Review Technique on May 12, 2012.
(Tr. at 358-71). Dr. Lilly opined that Claimant’s depressive disorder, panic disorder, and
PTSD were not severe impairments. (Tr. at 358, 361, 363). Dr. Lilly also determined that
Claimant’s diagnoses of panic disorder and PTSD, which were assigned by Ms. Wilson,
were not supported by Claimant’s treatment notes. (Tr. at 363). Similar to Dr. Smith,
Dr. Lilly found that Claimant was mildly limited in activities of daily living, maintaining
social functioning, and maintaining concentration, persistence, or pace. (Tr. at 368). Dr.
Lilly noted that Claimant had no episodes of decompensation of extended duration. (Id.)
21

There was no evidence establishing the paragraph “C” criteria for Listings 12.04 and
12.06. (Tr. at 369).
Dr. Lilly determined that the results of the consultative examination with Ms.
Wilson did not support the limitations in concentration and memory reported by
Claimant. (Tr. at 370). Dr. Lilly observed that, although Claimant reported that her
depression was worsening, Claimant had not visited the free clinic where she had
received care since December 2011. (Id.) Dr. Lilly remarked that Claimant’s treating
source diagnosed depression with no evidence that Claimant’s complaints had
increased. (Id.) Dr. Lilly also acknowledged that Claimant did not have any psychiatric
referrals or hospitalizations. (Id.) Ultimately, Dr. Lilly opined that “the preponderance
of the evidence reflect[ed] no severe functional deficits” and that Claimant was not
credible regarding the severity of her alleged mental symptoms. (Id.)
On May 16, 2012, Caroline Williams, M.D., completed a case analysis on
reconsideration. (Tr. at 380). Dr. Williams noted that Claimant alleged changes in her
condition; however, there were no changes made in Claimant’s medications when
compared to those reported initially. (Id.) Dr. Williams opined that the new medical
evidence in Claimant’s file did not reveal any significant findings that would change the
initial assessment. (Id.) Therefore, Dr. Williams affirmed Dr. Reddy’s March 2012
Physical RFC Assessment as written. (Id.)
On July 24, 2013, William E. Waltrip, M.D., completed a History and Physical for
the West Virginia Disability Determination Service. (Tr. at 461-64). Claimant reported
to Dr. Waltrip that she was scheduled for a mental health evaluation concerning her
depression, but she was not receiving treatment for her mental health at that time. (Tr.
at 461). With respect to her physical condition, Claimant indicated that she suffered
22

from plantar fasciitis of both feet for the previous three to four years. (Id.) Claimant
stated that undergoing surgery on both feet somewhat improved her symptoms. (Id.)
Claimant also asserted that she had attended physical therapy and obtained shoe inserts
for her foot condition; however, she was no longer using the inserts. (Id.) Claimant
described experiencing back pain for six to eight years, which radiated into her right
lower extremity, but was not constant. (Tr. at 462). Claimant reported that she was able
to walk for fifteen to twenty minutes, sit for thirty to forty-five minutes, and shop at the
mall and grocery stores. (Id.) Claimant stated that when seated, she frequently changed
positions in order to obtain some pain relief. (Id.) Claimant informed Dr. Waltrip that
she was not receiving treatment for her back pain at that time, and surgery had never
been recommended as a treatment option. (Id.) Dr. Waltrip noted that Claimant’s
radicular leg pain stemmed from her low back problem. (Id.) Claimant also explained
that she experienced occasional discomfort from kidney stone fragments that she had
not passed. (Id.)
On examination, Dr. Waltrip recorded that Claimant did not exhibit any signs of
memory loss. (Id.) He noted that Claimant possessed 20/50 vision in her left eye without
correction. (Id.) Claimant exhibited no limitation with range of motion in her neck. (Id.)
Dr. Waltrip observed no deformity, redness, or tenderness in Claimant’s extremities.
(Tr. at 463). Claimant’s extremities displayed no loss of muscle mass or tone. (Id.) Dr.
Waltrip recorded that Claimant was able to perform range of motion testing of the back
without limitation, and Claimant’s back exhibited no muscle tenderness or spasm. (Id.)
Dr. Waltrip remarked that Claimant did not use an assistive device for ambulation, and
her gait was normal. (Id.) Claimant’s joints displayed no deformity, heat, tenderness, or
redness. (Id.) Dr. Waltrip observed that Claimant could make a fist and that she
23

demonstrated good grip strength. (Id.) Claimant was also able to perform fine
manipulation without limitation. (Id.) Dr. Waltrip found that Claimant had no loss of
motor strength or loss of sensation to fine touch. (Id.) Claimant was able to walk heelto-toe and tandem. (Id.) In addition, she could walk on the tips of her toes and her heels.
(Id.) However, she was only able to perform a knee squat half of the way down. (Id.) Dr.
Waltrip recorded that Claimant’s deep tendon reflexes were present and normal. (Id.)
Dr. Waltrip’s impression included a history of bilateral plantar fasciitis, chronic
back pain with radiculopathy in the right lower extremity, a history of renal stones, a
prosthesis in right eye, and status post laparoscopic gallbladder surgery and
hysterectomy. (Id.) Dr. Waltrip remarked that Claimant’s primary mental health issue
was depression. (Tr. at 464). Dr. Waltrip opined that Claimant experienced minimal
limitation with walking, standing, and sitting. (Id.) He concluded that Claimant was able
to lift at least thirty pounds without limitation. (Id.) He found that Claimant possessed
no limitations with hearing, seeing, and speaking. (Id.) In addition, Dr. Waltrip
determined that Claimant could perform gross and fine manipulations. (Id.)
That same day, Dr. Waltrip completed a Medical Source Statement of Ability to
do Work-Related Activities (Physical). (Tr. at 465-70). He opined that Claimant could
frequently lift or carry up to twenty pounds, and occasionally lift or carry up to fifty
pounds; however, Claimant could never lift or carry anything over fifty pounds. (Tr. at
465). Dr. Waltrip determined that Claimant could sit for six to eight hours each day
without interruption, stand for forty-five minutes without interruption, and walk for
twenty minutes without interruption. (Tr. at 466). During an eight-hour workday,
Claimant could sit a total of six to eight hours, stand a total of four hours, and walk a
total of two hours. (Id.) Dr. Waltrip found that Claimant could frequently reach, handle,
24

finger, feel, push, and pull with either hand. (Tr. at 467). Claimant was also able to
frequently operate foot controls with either foot. (Id.) As to postural activities, Dr.
Waltrip opined that Claimant could frequently climb stairs or ramps, balance, stoop,
kneel, crouch, and crawl; Claimant could occasionally climb ladders or ramps. (Tr. at
468). Dr. Waltrip acknowledged that Claimant had a prosthetic right eye; however, he
opined that this did not cause a vision impairment. (Id.) With respect to environmental
limitations, Dr. Waltrip indicated that Claimant could have frequent exposure to
unprotected heights, moving mechanical parts, humidity, wetness, dust, odors, fumes,
pulmonary irritants, extreme heat, extreme cold, and vibrations. (Tr. at 469). Dr.
Waltrip also determined that Claimant could frequently operate a motor vehicle and be
exposed to loud noises. (Id.) Lastly, Dr. Waltrip opined as to Claimant’s ability to
perform various activities. (Tr. at 470). He concluded that Claimant could shop, travel
without a companion, ambulate without an assistive device, walk one block at a
reasonable pace on a rough or uneven surface, use public transportation, climb a few
steps at a reasonable pace with the use of a single hand rail, prepare simple meals, feed
herself, care for her personal hygiene, and sort, handle, or use paper or files. (Id.)
VI.

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

based upon an appropriate application of the law and is supported by substantial
evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In Blalock v.
Richardson, the United States Court of Appeals for the Fourth Circuit defined
“substantial evidence” to be:
[E]vidence which a reasoning mind would accept as sufficient to support
a particular conclusion. It consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance. If there is
25

evidence to justify a refusal to direct a verdict were the case before a jury,
then there is “substantial evidence.”
Blalock, 483 F.2d at 776 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)). This Court is not charged with conducting a de novo review of the evidence.
Instead, the Court’s function is to scrutinize the record and determine whether it is
adequate to support the conclusion of the Commissioner. Hays, 907 F.2d at 1456. When
conducting this review, the Court does not re-weigh evidence, make credibility
determinations, or substitute its judgment for that of the Commissioner. Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 2001) (citing Hays, 907 F.2d at 1456)). Moreover,
“[t]he fact that the record as a whole might support an inconsistent conclusion is
immaterial, for the language of § 205(g) ... requires that the court uphold the
[Commissioner’s] decision even should the court disagree with such decision as long as
it is supported by ‘substantial evidence.’” Blalock, 483 F.2d at 775 (citations omitted).
Thus, the relevant question for the Court is “not whether the claimant is disabled, but
whether the ALJ’s finding of no disability is supported by substantial evidence.” Johnson
v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (citing Craig, 76 F.3d at 589).
VII.

Discussion
A. The ALJ’s Explanation of Claimant’s Right to Representation
Claimant argues that the ALJ failed to adequately explain to her the benefits of

obtaining legal representation at the supplemental hearing. (ECF No. 11 at 5). A claimant
possesses a statutory right to counsel at an administrative proceeding under the Social
Security Act. Stahl v. Comm’r of Soc. Sec. Admin., No. 2:07cv19, 2008 WL 2565895, at
*5 (N.D.W.Va. June 26, 2008) (citing 42 U.S.C. § 406; 20 C.F.R. § 404.971). To give
effect to this right, “a claimant must be adequately informed of her right to counsel and

26

the availability of free counsel.” Id. On the subject of advising a claimant of her right to
representation, the SSA’s Hearings, Appeals, and Litigation Law Manual (“HALLEX”)2
explains:
If the claimant is unrepresented, the ALJ will ensure on the record that the
claimant has been properly advised of the right to representation and that
the claimant is capable of making an informed choice about
representation.
The ALJ is not required to recite specific questions regarding the right to
representation or the claimant's capacity to make an informed choice
about representation. However, below are examples of questions the ALJ
could ask an unrepresented claimant on the record:
• Did you receive the hearing acknowledgement letter and its enclosure(s)?
• Do you understand the information contained in that letter, specifically
concerning representation?
HALLEX I-2-6-52(B), Advisement of Right to Representation.
Nevertheless, a claimant is not required to be represented by counsel at a Social
Security proceeding, and “lack of representation by counsel is not by itself an indication
that a hearing was not full and fair.” Sims v. Harris, 631 F.2d 26, 27-28 (4th Cir. 1980);
see also Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980) (stating “the Secretary has
no duty to insist that claimant have counsel” in social security proceeding). In other
words, lack of representation at an administrative hearing “is not in itself reason to upset
the [Commissioner’s] decision.” Marsh, 632 F.2d at 300. Instead, a remand based on
the absence of counsel is proper only “where the absence of counsel created clear
HALLEX is a “manual in which the Associate Commissioner of Hearings and Appeals conveys guiding
principles, procedural guidance and information to the office of Hearings and Appeals (OHA) staff.”
Melvin v. Astrue, 602 F. Supp. 2d 694, 699 (E.D.N.C. 2009). “The Fourth Circuit has not addressed
whether a violation of HALLEX rules constitutes reversible error.” Pearson v. Colvin, No. 2:14-cv-26, 2015
WL 3757122, at *30 (N.D.W.Va. June 16, 2015); see also Way v. Astrue, 789 F. Supp. 2d 652, 665 (D.S.C.
2011) (stating that Fourth Circuit has not decided “whether the Commissioner is bound by HALLEX.”).
The SSA’s Program Operations Manual System (“POMS”) similarly contains a section addressing an ALJ’s
duty to advise a claimant of her right to representation. POMS GN 03910.030, Advising Claimants
Regarding Right to Representation.
2

27

prejudice or unfairness to the claimant.” Sims, 631 F.2d at 28; see also Berry v. Astrue,
No. 1:08-cv-5, 2009 WL 50072, at *13 (W.D. Va. Jan. 7, 2009).
In this case, Claimant was adequately advised of her right to representation at the
administrative hearing stage, and she knowingly and intelligently waived that right.
Prior to the administrative hearing before ALJ Andrus, Claimant was mailed a letter
from the SSA informing her of her right to representation with an attached pamphlet
explaining what a representative may do, how to choose a representative, and how much
a representative may charge. (Tr. at 83-87). Also attached to the letter was a list of
resources for obtaining a representative. (Tr. at 88-89). Additionally, before Claimant’s
first hearing, she was mailed a Notice of Hearing letter that again explained she
possessed a right to representation. (Tr. at 101). The SSA pamphlet detailing the right to
representation was also attached to that letter. (Tr. at 106-07). Claimant confirmed that
she received these letters at her initial administrative hearing. (Tr. at 47). Likewise, prior
to the supplemental hearing, Claimant was sent a Notice of Hearing letter explicating
the right to representation and enclosing the SSA’s right to representation pamphlet.
(Tr. at 115, 120-21).
At Claimant’s initial administrative hearing, ALJ Andrus thoroughly informed
Claimant of her right to representation. (Tr. at 47). To the extent that Claimant could
not afford an attorney to represent her, ALJ Andrus advised her that many of the
attorneys in the area took similar cases on a contingency fee basis. (Tr. at 48). ALJ
Andrus also notified Claimant that there was the possibility that a representative from
the West Virginia Legal Aid Society may represent her without charge. (Tr. at 48-49).
Next, ALJ Andrus explained to Claimant that a representative could obtain her medical
records, ensure that she did not forget to testify about specific impairments, and make
28

legal arguments at the hearing. (Tr. at 49-50). ALJ Andrus then assured Claimant that
whether she was represented would not alter his decision and that he would not be
“angry” with Claimant if she wanted time to obtain a representative. (Tr. at 50-51). After
ALJ Andrus’s detailed description of the right to representation, Claimant testified that
she understood that right. (Tr. at 52). When ALJ Andrus inquired whether Claimant
wished to obtain a representative, Claimant replied, “No, that’s okay.” (Id.) At her
supplemental hearing, Claimant confirmed that she wished to proceed without
representation. (Tr. at 30). The ALJ notified Claimant that if she wished to obtain a
representative at any point during the supplemental hearing, then she would be
permitted to do so. (Id.) Claimant acknowledged that she understood, and never
requested an opportunity to find a representative during the supplemental hearing. (Id.)
The ALJ also informed Claimant about the hearing process and how he would determine
whether Claimant was disabled. (Tr. at 30-31).
Given the numerous letters and pamphlets that Claimant received explaining her
right to representation, the thorough explanation of Claimant’s right to representation
at her initial hearing, and Claimant’s assertion on two separate occasions that she did
not wish to have a representative, the Court FINDS that Claimant’s waiver of her right
to representation was knowing and intelligent. See Mayes v. Astrue, No. 3:08-cv-922,
2010 WL 3835595, at *6 (S.D.W.Va. Sept. 7, 2010) (finding claimant knowingly waived
right to representation where SSA provided claimant with list of organizations who
could provide him with free representation and administrative law judge twice informed
claimant of right to representation in person), report and recommendation adopted by
2010 WL 3835597 (S.D.W.Va. Sept. 28, 2010). There is no evidence that Claimant did
not understand her right to representation; on the contrary, Claimant confirmed at the
29

initial hearing that she understood her right after ALJ Andrus’s careful commentary.
Moreover, there is also no evidence that Claimant suffered from an intellectual disability
that prevented her from appreciating the consequences of her decision to waive her right
to representation. In fact, Claimant testified that she earned a GED; remarked in her
Adult Function Report that she was able to follow written instructions “pretty good” and
spoken instructions “alright”; and indicated at the supplemental hearing that she was
able to understand what she read, possessed “good” writing ability, and understood
basic math concepts. (Tr. at 33, 173).
The circumstances of this case are a far cry from those where the Fourth Circuit
has determined that the absence of counsel required remand. For example, in Walker v.
Harris, 642 F.2d 712, 714 (4th Cir. 1981), the claimant had a fourth-grade education and
provided a “barely-coherent, rambling monologue,” during her nineteen-minute
administrative hearing. The Fourth Circuit noted that the administrative law judge
“made no effort to focus [the claimant’s] testimony on relevant matters,” instead the
administrative law judge “simply waited for [the claimant] to exhaust herself and then
concluded, ‘Do you think that about covers your problems?’” Id. Accordingly, the Court
had “no difficulty concluding that the administrative law judge failed in her duty
‘scrupulously and conscientiously (to) probe into, inquire of, and explore for all the
relevant facts’ in this case involving an unrepresented, poorly-educated pro se claimant.”
Id. (quoting Gold v. Sec’y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)).
Similarly, in Sims, the Fourth Circuit concluded that the claimant suffered
prejudice from a lack of representation where “[i]t required over seven pages of
transcript to establish claimant's name, age and address for the record,” and the
claimant “was confused about how to object to the medical evidence in her file and nearly
30

all of her own testimony concerning her medical problems was directionless and
generally incoherent.” 631 F.2d at 28. The Court also emphasized that the administrative
law judge “was unfamiliar with claimant's former job duties and medical ailments and
his inquiries failed to establish the nature of either with any specificity.” Id.
Finally, the Court held in Marsh that the claimant was prejudiced by the absence
of counsel where the claimant was illiterate, stopped attending school two months into
the first grade, and “was completely unschooled on the requirements for proving his
case.” 632 F.2d at 296, 299. The Court observed that the claimant exhibited an “obvious
lack of understanding of the evidence necessary to develop the critical issues” in his case.
Id. at 300. The Court reasoned that the claimant was prejudiced by the absence of
counsel because counsel would have obtained treatment records from the claimant’s
treating physicians, developed information about the claimant’s epilepsy and the side
effect of his epilepsy medications, acquired an electroencephalogram of the claimant,
and objected to the administrative law judge’s hypothetical question to the vocational
expert that relied on incomplete evidence. Id.
Here, Claimant possessed a GED, was able to read and write, and provided
coherent and relevant testimony related to her impairments at both hearings. She
indicated at her initial hearing that she understood her right to representation, and she
waived that right at both administrative hearings. Nothing in the record suggests that
Claimant was incapable of a knowing and voluntary waiver or that Claimant was
confused about the hearing process or the consequences of waiving her right to
representation. Therefore, Claimant’s first challenge to the Commissioner’s decision
fails.

31

B. The ALJ’s Duty to Develop the Record
Next, Claimant contends that the ALJ failed to fully develop the record. (ECF No.
11 at 6-7). Claimant insists that the ALJ’s duty to develop the record was heightened
because she was unrepresented during the administrative hearing process. (Id. at 7). In
particular, Claimant asserts that the ALJ failed to inquire of Claimant whether the
record was complete and subsequently obtain relevant medical records, including any
records from Dr. Stinehour, psychological counselor David Clay, and any treater who
documented Claimant’s complaints of headaches. (Id.) In addition, Claimant argues that
the ALJ erred when he failed to ask Claimant about the mental impairments diagnosed
by Ms. Wilson during the administrative hearing. (Id.)
An ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783
F.2d 1168, 1173 (4th Cir. 1986). In the case of an unpresented claimant, an ALJ has “a
duty to assume a more active role in helping [the] claimant[] develop the record,” Craig,
76 F.3d at 591 (quoting Sims, 631 F.2d at 28), and must adhere to a “heightened duty of
care and responsibility.” Crider v. Harris, 624 F.2d 15, 16 (4th Cir. 1980) (quoting
Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980)) (markings omitted). The
Fourth Circuit has explained that an ALJ should “scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts, being especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are elicited.”
Marsh, 632 F.2d at 299 (citations and markings omitted). An ALJ may develop the
record by subpoenaing and questioning witnesses, requesting records, or arranging
physical or mental examinations or tests for the claimant. Fleming v. Barnhart, 284 F.
Supp. 2d 256, 272 (D. Md. 2003).

32

An ALJ’s failure to adequately develop the record warrants remand where the
failure results in prejudice or unfairness to the claimant. Sims, 631 F.2d at 28; Brown v.
Shalala, 44 F.3d 931, 935 (11th Cir. 1995); Mann v. Astrue, No. 5:07-201, 2008 WL
906346, at *17 (S.D.W.Va. Mar. 31, 2008). 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.
2000) (citations omitted).
In this case, the record was adequately developed by ALJ Andrus and the ALJ.
After the initial hearing, ALJ Andrus requested Claimant’s treatment records from
Ebenezer Medical Outreach, and he also referred Claimant for two consultative medical
evaluations, which she attended. (Tr. at 69, 458-59, 461-64, 476). In addition, physical
and mental examinations performed for the West Virginia Disability Determination
Service and state agency consultants’ opinions were already contained in Claimant’s file
at the time of her administrative hearings. (Tr. at 319-25, 327-32). Furthermore, at the
administrative hearings, the administrative law judges comprehensively questioned
Claimant about her education, past work, daily activities, impairments, and physical
limitations. Claimant’s hearings lasted a total of approximately one hour. ALJ Andrus
also repeatedly asked Claimant toward the end of the initial hearing whether there was
anything else that Claimant wanted to add concerning her ability to “do things.” (Tr. at
62-63). Near the end of the supplemental hearing, the ALJ likewise twice offered
Claimant the opportunity to discuss any other health problems that were not addressed
during her testimony. (Tr. at 39, 43). Lastly, the ALJ asked the vocational expert a
hypothetical question favorable to Claimant at the supplemental hearing (though, the
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ALJ did not ultimately adopt the limitations contained in the question). (Tr. at 43).
Based on the foregoing facts, under the circumstances of this case, the undersigned
FINDS that the administrative law judges collectively fulfilled their duty to fully and
fairly develop the administrative record.
Furthermore, even assuming arguendo, that the record could have been more
fully developed, Claimant has not established that she was prejudiced by the ALJ’s error.
Indeed, Claimant has failed to demonstrate to the Court that (1) additional medical
evidence exists that the ALJ failed to obtain and (2) that the evidence would have
altered the result of the proceeding. Claimant merely speculates as to the beneficial
nature of any additional treatment records; however, “[m]ere conjecture or speculation
that additional evidence might have been obtained in the case is insufficient to warrant
a remand.” Binion v. Shalala, 13 F.3d 243, 246 (7th Cir. 1994). Claimant’s failure to
provide the purported medical records precludes any claim that such evidence would
have prompted the ALJ to find additional physical or mental limitations affecting
Claimant’s ability to work. Furthermore, insofar as Claimant specifically alleges that the
ALJ should have obtained additional treatment notes concerning Claimant’s foot
problems and mental impairments, the administrative record contains sufficient
evidence related to those issues in the form of treatment records, evaluation findings,
and medical opinion evidence, all of which the ALJ thoroughly reviewed in his written
decision. (Tr. at 15-21). Finally, to the extent that Claimant insists that the ALJ should
have developed her allegation of headaches, Claimant did not testify that she suffered
from headaches at either administrative hearing, nor did she claim that she experienced
headaches in her SSI application. (Tr. at 160). Moreover, as the ALJ recognized,
Claimant’s report of headaches to Ms. Wilson indicates that her headaches are often not
34

severe (Claimant rated the pain as a three out of ten), and Claimant’s most painful
headaches occur intermittently (three or four times each month).3 (Tr. at 15, 321). For
these reasons, the undersigned FINDS that Claimant has not demonstrated that she
was prejudiced by any deficiency in the ALJ’s development of the record. Thus,
Claimant’s second challenge to the Commissioner’s decision is unconvincing.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision IS supported by substantial evidence. Therefore, by Judgment
Order entered this day, the final decision of the Commissioner is AFFIRMED and this
matter is DISMISSED from the docket of this Court.
The Clerk of this Court is directed to transmit copies of this Order to counsel of
record.
ENTERED: May 2, 2016

Claimant’s complaints of headaches typically coincided with reports of sinus pressure. (Tr. at 236, 238,
311).
3

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