3:10-cv-02871 | D.S.C. | Feb 10, 2012
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
DAVID F. BRATCHER, JR., ) Civil Action No. 3:10-2871-RBH-JRM
)
Plaintiff, )
)
v. )
) REPORT AND RECOMMENDATION
MICHAEL J. ASTRUE, COMMISSIONER )
OF SOCIAL SECURITY )
)
Defendant. )
)
This case is before the Court pursuant to Local Civil Rules 73.02(B)(2)(a) and 83.VII.02, et
seq., DSC, concerning the disposition of Social Security cases in this District. Plaintiff brought this
action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance
Benefits (“DIB”).
ADMINISTRATIVE PROCEEDINGS
Plaintiff filed an application for DIB on December 29, 2006, alleging disability as of June 12,
2006. Plaintiff’s claim was denied initially and upon reconsideration. Plaintiff then requested a
hearing before an Administrative Law Judge (“ALJ”). A video hearing was held on October 16,
2009, at which Plaintiff, represented by counsel, appeared and testified. On December 8, 2009, the
ALJ issued a decision denying benefits and finding that Plaintiff was not disabled. The ALJ, after
hearing the testimony of a vocational expert (“VE”), concluded that work exists in the national
economy which Plaintiff could perform.
Plaintiff was thirty-nine years old at the time of the ALJ’s decision. He has an eighth grade
education, and past relevant work as a saw mill worker. Tr. 24, 111-112, 120-125. Plaintiff alleges
disability due to status post lower extremity crush injury and lumbar degenerative disc disease. Tr.
12, 111.
The ALJ found (Tr. 12-19):
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2011.
2. The claimant has not engaged in substantial gainful activity since June
12, 2006, the alleged onset date (20 CFR 404.1571 et seq.)
3. The claimant has the following severe impairments: status post lower
extremity crush injury and lumbar degenerative disc disease (20 CFR
404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) further restricted
by: no climbing, crawling, or balancing; occasional crouching and
stooping; the option to sit or stand at will; no exposure to hazards;
and, no operation of foot pedals or vehicles.
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7. The claimant was born on October 16, 1970 and was 35 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563).
8. The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (See SSR 82-41 and 20 CFR
Part 404, Subpart P, Appendix 2).
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10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from June 12, 2006 through the date of this decision (20
CFR 404.1520(g)).
The Appeals Council denied the request for review in a decision issued September 9, 2010.
Tr. 1-4. Accordingly, the ALJ’s decision became the final decision of the Commissioner. Plaintiff
filed this action in the United States District Court on November 5, 2010.
The only issues before this Court are whether correct legal principles were applied and
whether the Commissioner's findings of fact are supported by substantial evidence. Richardson v.
Perales, 402 U.S. 389" date_filed="1971-05-03" court="SCOTUS" case_name="Richardson v. Perales">402 U.S. 389 (1971); Blalock v. Richardson, 483 F.2d 773" date_filed="1972-08-28" court="4th Cir." case_name="Rachel R. Blalock v. Elliot L. Richardson, Secretary of the Department of Health, Education and Welfare">483 F.2d 773 (4th Cir. 1972). Under 42 U.S.C.
§§ 423(d)(1)(A) and 423(d)(5) pursuant to the Regulations formulated by the Commissioner, Plaintiff
has the burden of proving disability, which is defined as “the inability to do any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a).
MEDICAL RECORD
On June 12, 2006, Plaintiff was admitted to the hospital after his legs were caught between
two hydraulic presses at work. X-rays revealed a green stick fracture to his right fibula and a
possible subtle greenstick fracture to his left fibula. Examinations showed that Plaintiff had good
pulses in both feet, minimal swelling, intact sensation, and the ability to move his toes. Plaintiff was
released from the hospital on June 15, at which time it was noted that he could be up and about as
tolerated with the use of a walker. Tr. 259-265.
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On June 18, 2006, Plaintiff was treated at the emergency room for pain in his calves and feet.
It was noted he had done well for the first days after his discharge from the hospital, but was
experiencing severe pain. Examination revealed that Plaintiff had bruising below his knees, mild
edema, tenderness to his lower legs, normal sensation to touch, normal motor function in both legs,
and intact circulation. Ultrasound testing showed no signs of blood clots and x-rays were noted to
show an acute, non-displaced right fibular fracture. Plaintiff was prescribed different pain
medication and advised to stay off his feet until he followed up with his doctor. Tr. 240-250.
On June 22, 2006, Dr. James Yates, Jr., an orthopaedist, examined Plaintiff. It was noted that
x-rays of Plaintiff’s legs were satisfactory, showing only “minimal” fractures and that Plaintiff could
bear weight as tolerated on crutches. Tr. 172. On July 2, 2006, Plaintiff was treated in the
emergency room for symptoms of narcotic withdrawal. He said his leg pain had been somewhat
manageable. The physician noted that Plaintiff was getting good results from treatment and
prescribed pain and other medications. Tr. 236-239. Dr. Yates noted on July 3, 2006, that MRIs of
Plaintiff’s calves were “basically unremarkable for any significant problem with his legs.” He
recommended physical therapy and walking with weight bearing with crutches. Tr. 171; see 167.
On July 12, 2006, Plaintiff obtained a second opinion from Dr. A Jay Preslar, III, an
orthopaedist. Examination revealed that Plaintiff had intact sensation to light touch, good pulses and
capillary refill in both feet, good strength in plantar flexion and dorsiflexion bilaterally, and no
evidence of compartment syndrome. Some upper thigh pain was noted, as well as positive straight
leg raise testing at 45 degrees on the right and 70 degrees on the left. X-rays showed minimally
displaced midshaft fibular fractures of both legs, good alignment, good interval healing, and no
complication of the fractures. Dr. Preslar noted that Plaintiff was progressing as expected, and
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assured Plaintiff that swelling was normal and would gradually resolve. He recommended aggressive
physical therapy and prescribed pain medications. Tr. 167-169. On July 13, 2006, an MRI of
Plaintiff’s lumbar spine was overall age appropriate with “[n]o acute or subacute compression
deformity. Straightening of the lumbar lordosis. Mild disk dehydration and spondylosis at L4-5"
Tr. 233-235. On July 28, 2006, Dr. Preslar noted that Plaintiff was making slow improvement and
the MRI of his lower back looked good. It was noted that Plaintiff had mild swelling of his right leg
and bilateral ankle stiffness. Dr. Preslar opined that Plaintiff should be “much more aggressive with
physical therapy” and should be “out of the wheel chair” within two weeks. Tr. 166.
In August 2006, Plaintiff underwent physical therapy. As of August 1, it was noted that
Plaintiff could walk twenty feet, but used a wheelchair for community locomotion. The therapist
opined that Plaintiff had a good prognosis for reaching his goal of returning to his prior level of
function. Tr. 182-183. Plaintiff continued to attend physical therapy through 2006. Tr. 184-210.
On August 2, 2006, Plaintiff went to the emergency room complaining of back pain after
running out of medication several days earlier. Examination revealed that Plaintiff was in no acute
distress and had intact pulses, intact sensation and capillary refill, no extremity edema or tenseness
of the calf compartments, no mid-low-back or midline tenderness to palpation. Pain medication was
prescribed. Tr. 230-232.
On August 17, 2006, Plaintiff was examined by Dr. Benjamin Wall, a physical medicine
rehabilitation specialist, for complaints of significant pain. Examination revealed that Plaintiff was
alert, oriented, and had no mental deficits. He had normal alignment of his back, low back
tenderness, an antalgic gait using crutches, limited extension of his back, and the ability to flex
forward to touch his fingers to his knees. Straight leg raise testing was negative. Plaintiff had intact
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and symmetric motor function, normal reflexes, and intact sensation except for some diminished
sensation in his right ankle. Dr. Wall prescribed medications and physical therapy. Tr. 340-342.
On August 28, 2006, Dr. Patrick Boylan, in practice with Dr. Wall, examined Plaintiff for complaints
of burning leg pain. Examination showed that Plaintiff had symmetric leg reflexes, full strength, and
no atrophy or swelling of his legs. An electrodiagnostic study of his legs was normal. Tr. 339.
In Early September 2006, a nurse adjusted Plaintiff’s medications after he complained of
blisters in his mouth. Plaintiff had an antalgic gait using crutches. Later in September, Dr. Wall
wrote that Plaintiff could bear full weight without crutches and was able to wear shoes, and that he
had improved lumbar motion with some tightness and pain to palpation. Plaintiff reported that
physical therapy helped, but he still had low back pain. Dr. Wall noted that Plaintiff’s medications
improved his overall function and quality of life without any significant side effects. Tr. 335-336.
On October 11, 2006, Dr. Wall noted that Plaintiff had intact cognition, and no short-term
memory deficits. Plaintiff had tight back muscles, but could flex forward until his fingertips were
within six inches of his toes and extend normally (albeit with some pain). Dr. Wall adjusted
Plaintiff’s medications and prescribed a transcutaneous electrical nerve stimulation (“TENS”) unit.
He opined that Plaintiff “should be able to move to sedentary work with frequent breaks for position
changes and stretching as long as he is allowed to continue [physical therapy].” Tr. 216-217, 333-
334. After Plaintiff complained in November 2006 that his medications were making him lethargic,
Dr Wall adjusted his medications (reduced narcotic medication). It was noted that Plaintiff had an
antalgic gait and increased pain with back motion. Tr. 331-332.
On December 7, 2006, Plaintiff reported that his medications helped take the edge off, but
he still had pain. Tightness and tenderness in his paraspinal muscles was noted. Dr. Wall adjusted
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his medications (increased narcotic medication). Tr. 329-330. In January 2007, Dr Wall’s
examination revealed that Plaintiff had pain to palpation of his legs and ankles, but no significant
edema. Dr. Wall adjusted Plaintiff’s medications and suggested that a surgically-placed stimulator
might help Plaintiff’s pain. Tr. 327-328. In February and March 2007, Dr. Wall adjusted Plaintiff’s
medications. Tr. 325-326, 323-324.
Later in March 2007, Plaintiff was examined by Dr. Regina Roman, D.O. He complained of
low back and lower extremity pain, as well as swelling in his legs at the end of the day. He said he
spent much of the day lying down, no longer drove, and did very little walking. He was able to go
to the grocery store with his wife twice a week and do activities of daily living. Dr. Roman’s
examination revealed that Plaintiff was alert, oriented, and in no acute distress, but had slow
mentation; his gait was slow, but he had normal stance and posture; he had full range of motion in
his knees, hips, and ankles; his low back had some reduced range of motion, but no abnormal
curvature, tenderness to palpation, or muscle spasm; and straight leg raise testing was negative. It
was noted that Plaintiff was able to get on and off the examination table without difficulty, could
slowly heel and toe walk and tandem walk, and could flex his knees to fifty degrees with some pain.
Plaintiff’s deep tendon reflexes were normal; he had intact pulses; and he had no muscle atrophy,
edema, or joint effusion. Dr. Roman thought that Plaintiff might need assistance with funds due to
“extensive sedating medications.” Tr. 286-289.
On March 29, 2007, Plaintiff reported that his energy level was better since his medication
change, with no worsening of pain. Dr. Wall noted that Plaintiff’s medications afforded him
improved function and quality of life with no significant side effects. Tr. 321-322. This notation
concerning Plaintiff’s medications was repeated on April 26, 2007. Tr. 319-320.
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In May 2007, Plaintiff reported that he benefitted from his medications, but not as much as
he would like. Dr. Wall noted that Plaintiff had an appropriate affect, no short-term memory deficits,
and low back tenderness and tightness with limited motion. Tr. 317-318. Plaintiff continued to see
Dr. Wall in June and July 2007. Tr. 313-316.
On May 7, 2007, Dr. Charles Fitts, a State agency physician, opined that Plaintiff had the
physical residual functional capacity (“RFC”) to perform medium work. Tr. 290-297. On May 17,
2007, State psychological consultant Dianne Byrd opined that Plaintiff had no medically
determinable psychological impairment. Tr. 298.
On June 7, 2007, Plaintiff underwent a psychological evaluation with Dr. John Riley, a
psychologist, to determine if he was a good candidate for the surgical implantation of a pain
stimulator as recommended by Dr. Wall. Dr. Riley recommended against placement because Plaintiff
was still very sedentary, his reported subjective improvement had not translated into any
commensurate functional improvement, and he did not report benefit from the TENS unit. Tr. 356-
358. The same day, Dr. T. Kern Carlton noted Plaintiff had a somewhat flat affect, a mildly antalgic
gait, slightly decrease lumbar range of motion with pain, stiff ankles, and tenderness of his legs.
Plaintiff’s sensation was intact to pinprick and he had intact symmetrical reflexes, full (5/5) strength,
intact pulses, and no pitting edema. Plaintiff was able to walk on his heels and toes with discomfort,
but straight leg raise testing was negative. Dr. Carlton opined that placement of the stimulator was
reasonable, but also discussed more conservative measures. Tr. 353-356.
On July 30, 2007, Plaintiff was admitted to a four-week chronic pain rehabilitation with
physical therapy almost daily. Tr. 350, 379-398, see Tr. 351-352. Dr. Carlton’s examination during
this program revealed that Plaintiff had no lumbar tenderness, intact sensation, normal temperatures
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in his lower extremities, minimal or no swelling, and negative straight leg raise testing. Tr. 367-377.
On August 6, Plaintiff was noted to be progressing and was able to do a thirty-minute workout on
the treadmill. Tr. 374. Dr. Carlton administered a trigger point injection and nerve block in
Plaintiff’s back (Tr. 343-344, 372-373), which Plaintiff reported helped his back and foot pain (Tr.
369, 371). On August 23, 2007, Dr. Carlton noted that Plaintiff had completed his functional
restoration program. Dr. Carlton wrote that Plaintiff experienced significant gains in function and
marked improvement in the swelling of his feet, although he continued to have pain. IQ testing
resulted in a verbal IQ score of 67, performance score of 83, and full score of 72, which was an
improvement over previous testing. It was recommended that Plaintiff exercise and lose weight. Tr.
347, 348-349, 399.
During this same time period, Dr. Riley noted that Plaintiff was making functional gains and
had improved mood and affect. Tr. 359-363. On August 13, Plaintiff told Dr. Riley he exacerbated
his pain by driving home (from Charlotte) to Conway, South Carolina, over the weekend to take his
son back to school and attend to his home. Tr. 361. Dr. Riley noted that Plaintiff remained active
at exercising and improving relaxation. Tr. 360-361. On August 21, 2007, Dr. Riley discussed with
Plaintiff “his consideration of appropriate plans and options to return to some type of work, in an
effort to ensure his best chances for long-term physical and psychological well[-]being.” Dr. Riley
also stated he did not see any need for continued psychological assistance. Tr. 359.
On August 27, 2007, Dr. Carlton noted that Plaintiff was tolerating his medications well
without side effects. Tr. 366. On September 7, 2007, Dr. Carlton noted that Plaintiff denied any side
effects from Methadone other than constipation. Examination revealed good pulses, negative straight
leg raise testing, no lumbar tenderness, slightly decreased lumbar range of motion, and nearly full
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motion of his ankles and toes. Dr. Carlton opined that Plaintiff had reached maximum medical
improvement and assessed impairment ratings of five percent for his low back and fifteen percent
for each foot. Tr. 378.
On October 17, 2007, Dr. William Cain, a State agency physician, reviewed the evidence and
opined that Plaintiff could perform light exertional work with standing/walking or sitting about six
hours each in an eight-hour workday; occasional climbing of ramps/stairs, balancing, stooping,
kneeling, crouching, and crawling; no climbing of ladders/ropes/scaffolds; and no exposure to
hazards. Tr. 400-407. Dr. Mark Williams, a State agency psychologist, reviewed Plaintiff’s records
and completed a Psychiatric Review Technique form and a Mental RFC Assessment form on October
24, 2007. He opined that Plaintiff had, at most, moderate mental limitations and retained the ability
to understand and recall simple instructions and carry out simple tasks. Tr. 408-425.
Dr. Gregory Kang examined Plaintiff on January 3, 2008. Dr. Kang noted that Plaintiff was
alert and oriented, had positive back extension and facet maneuvers on the left, tender left low back
muscles, limited lumbar flexion, intact cranial nerves, 5/5 strength, intact sensation, normal reflexes,
no color changes, no hair loss, and no swelling of his legs. Dr. Kang adjusted Plaintiff’s medications
and noted that he was “allowing [Plaintiff] to return to sedentary activities.” Tr. 450-451. On
January 28, 2008, Plaintiff reported improvement since the medication adjustment with no significant
side-effects. Dr. Kang noted that Plaintiff was alert with no signs of cognitive impairment. Plaintiff
had decreased range of motion of his lower back, but an intact neurological status. Tr. 449.
On February 25, 2008, Plaintiff reported to Dr. Kang that he had continued pain and some
swelling. Examination revealed tenderness of his calves, but no swelling or color changes. Tr. 448.
Plaintiff reported he had a rough week with radiating low back pain and difficulty walking and
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changing positions on March 24, 2008. Dr. Kang assessed degenerative disc disease of Plaintiff’s
back and noted that Plaintiff was in some distress, had reduced range of his low back, and no
neurological changes. Tr. 447. On April 24, 2008, Plaintiff was noted to be in some distress with
poor range of motion of his back, slight swelling of his right ankle and calf, tenderness to palpation,
but intact knee and ankle reflexes. Plaintiff reported no side effects from his medications. Dr. Kang
recommended an epidural injection. Tr. 446.
On May 22, 2008 Plaintiff reported some relief from his medications without side effects.
He was noted to be alert with fluent speech, intact knee reflexes, and decreased range of motion of
his low back. Dr. Kang noted, “I don’t have much more to offer him. Epidural injections may
relieve some pain but again has not been authorized.” Tr. 445. Thereafter, Plaintiff underwent two
epidural steroid injections in his low back. Tr. 439, 442. In July 2008, Dr. Kang said Plaintiff’s pain
was better after the injections, but Plaintiff continued to complain of leg pain. Dr. Kang said that he
did not have much more to offer Plaintiff other than continued palliative care. Tr. 438.
In August 2008, Plaintiff was noted to have experienced some relief from injections, but still
had pain below his knees somewhat relieved by medications. Dr. Kang’s examination revealed that
Plaintiff had decreased range of motion of his low back, leg tenderness, and no color changes or
swelling. Tr. 437. After administering a third epidural injection in Plaintiff’s low back in October
2008, Dr. Kang noted in November 2008 that injections had helped and Plaintiff had pretty good pain
control with no significant side effects. Tr. 432.
In January 2009, Plaintiff reported he injured his neck and shoulder in an automobile
accident. Dr. Kang’s examination revealed decreased neck range of motion, muscle tenderness, and
an unchanged low back examination. Tr. 431. Plaintiff reported inadequate pain control and
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intermittent swelling in his legs in February 2009. He did not have significant medication side-
effects. Dr. Kang’s examination showed tenderness over Plaintiff’s lower legs, decreased range of
motion of the low back, and no color changes. Tr. 430. In March 2009, Plaintiff reported better pain
control and no medication side effects except for a headache that lasted about an hour. Tr. 429. In
April 2009, Plaintiff reported better pain control with some breakthrough pain. Dr. Kang noted that
Plaintiff was alert, had fluent speech, painful back range of motion, and had an unchanged lower
extremity examination. Tr. 428. In May 2009, Plaintiff reported adequate pain control with some
residual pain. Dr. Kang’s examination was essentially unchanged. Tr. 427. Plaintiff’s attorney
provided a form which directed Dr. Kang to circle “Yes” or “No” to the following questions:
1. Does this patient suffer from chronic and severe persistent back, leg, and hip
pain, DDD, numbness, tingling, bilateral lower extremities crush injuries,
severe depression and anxiety, as a result of his medical conditions?
2. If yes, do these conditions affect his ability to sustain any gainful
employment?
3. Would it be reasonable to assume he would miss at least 5-6 days a month due
to his medical conditions from any work environment?
4. Have the above restrictions been present since, at least, June 12, 2006, the
date the patient last attempted to work)?
Tr. 426. On June 16, 2009, Dr. Kang circled “Yes” as to each of these questions. Tr. 426.
After the ALJ’s decision, Plaintiff submitted additional records to the Appeals Council. In
July 2009, Plaintiff said his left-sided low back and hip pain returned causing difficulty with walking
and daily activities. Dr. Kang noted that the effects of Plaintiff’s injection six months earlier had
worn off. Examination revealed that Plaintiff was alert and had fluent speech; tenderness, pain, and
reduced range of motion in his low back; and altered sensation in his lower extremities without
change. Tr. 456. Another injection was performed in August 2009, and it was later noted that the
injection helped and Plaintiff did not have significant medication side-effects. Plaintiff was alert and
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oriented and had fluent speech, slightly decreased flexion and extension of his back, and tenderness
in his calves and tibia. Tr. 455. In October 2009, Plaintiff complained of radiating back pain. Dr.
Kang noted that Plaintiff was in moderate distress, used a cane to walk, but had intact cranial nerves,
low back tenderness, and no neurological deficits or cognitive impairment. Plaintiff’s medications
were adjusted. Tr. 454.
HEARING TESTIMONY
Plaintiff testified that he was hurt at work in June 2006, and continued to have problems with
his legs, feet, and back. He described constant pain in his left low back that radiated into his foot and
was not completely relieved by medication or lying down. See Tr. 26-31. Plaintiff stated that
injections from Dr. Kang caused him to be bedridden for two or three days, and helped only very
little. Tr. 35-36. He also stated that his right leg and foot were painful, and he had constant
numbness in his legs. Tr. 27-28. Plaintiff complained that sitting put pressure on the lower part of
his back and a shooting pain on the right down to his legs. Tr. 29. Plaintiff estimated he could sit
no more than fifteen to twenty minutes before having to get up. Tr. 29-30. He also said he had
difficulty standing, walking, bending, stooping, squatting, and balancing, and could walk at most
fifteen to twenty minutes before having to sit down. Tr. 30-34. He said the most he could lift was
a gallon of milk, but even that caused low back pain. Tr. 35. Plaintiff first testified that he would
lie down pretty much all day, but later said he could lie down for no more than forty-five minutes
before having to get up and change positions. Tr. 31, 36-37.
Plaintiff said that his medication caused side effects including daily headaches and dizziness
that came on about ten minutes after he took his medications and lasted about twenty minutes. Tr.
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31-32, 33. He said he could drive if it was an emergency situation, but otherwise did not drive. Tr.
32-33. Plaintiff said he had trouble sleeping and was up and down all night. Tr. 37.
DISCUSSION
Plaintiff alleges that the ALJ: (1) erred by failing to give adequate weight to the opinion of
his treating physician (Dr. Kang); (2) failed to evaluate his IQ and its effect on his ability to engage
in sedentary work activity; (3) failed to give proper consideration to his testimony regarding the
severity of his symptoms which are caused by medically determinable impairments; and (4) erred by
not giving proper consideration to the testimony of the VE that there are no jobs available in the local
or national economy that he can perform due to the severity of his mental and physical impairments.
The Commissioner argues that substantial evidence1 supports the final decision that Plaintiff was not
disabled within the meaning of the Social Security Act.
A. Treating Physician
Plaintiff argues that the ALJ erred in failing to accord controlling weight to the
opinion of Dr. Kang, his treating physician since 2008. The Commissioner contends that the ALJ
reasonably evaluated Dr. Kang’s opinion and discounted it.
1
Substantial evidence is:
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.”
Shively v. Heckler, 739 F.2d 987" date_filed="1984-08-28" court="4th Cir." case_name="James Kenneth SHIVELY, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee">739 F.2d 987, 989 (4th Cir. 1984); Laws v. Celebreeze, 368 F.2d 640" date_filed="1966-10-21" court="4th Cir." case_name="Charles M. Laws v. Anthony J. Celebrezze, Secretary of Health, Education and Welfare">368 F.2d 640, 642 (4th
Cir. 1966). It must do more, however, than merely create a suspicion that the fact to be established
exists. Cornett v. Califano, 590 F.2d 91" date_filed="1978-12-27" court="4th Cir." case_name="Barbara M. Cornett v. Joseph A. Califano, Jr., Secretary of Health, Education and Welfare">590 F.2d 91, 93 (4th Cir. 1978).
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The medical opinion of a treating physician is entitled to controlling weight if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2) and
416.927(d)(2); Mastro v. Apfel, 270 F.3d 171" date_filed="2001-07-05" court="4th Cir." case_name="Patricia A. Mastro v. Kenneth S. Apfel, Commissioner of Social Security, No">270 F.3d 171, 178 (4th Cir. 2001). Thus, “[b]y negative implication,
if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585" date_filed="1996-02-23" court="4th Cir." case_name="Ronda S. CRAIG, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee">76 F.3d 585,
590 (4th Cir. 1996). Under such circumstances, “the ALJ holds the discretion to give less weight to
the testimony of a treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel,
270 F.3d 171" date_filed="2001-07-05" court="4th Cir." case_name="Patricia A. Mastro v. Kenneth S. Apfel, Commissioner of Social Security, No">270 F.3d at 178 (citing Hunter v. Sullivan, 993 F.2d 31" date_filed="1993-05-05" court="4th Cir." case_name="William HUNTER, Plaintiff-Appellant, v. Louis W. SULLIVAN, Etc., Defendant-Appellee">993 F.2d 31, 35 (4th Cir.1992)).
Under § 404.1527, if the ALJ determines that a treating physician's opinion is not entitled to
controlling weight, he must consider the following factors to determine the weight to be afforded the
physician's opinion: (1) the length of the treatment relationship and the frequency of examinations;
(2) the nature and extent of the treatment relationship; (3) the evidence with which the physician
supports his opinion; (4) the consistency of the opinion; and (5) whether the physician is a specialist
in the area in which he is rendering an opinion. 20 C.F.R. § 404.1527. Social Security Ruling 96-2p
provides that an ALJ must give specific reasons for the weight given to a treating physician's medical
opinion. SSR 96-2p.
The ALJ’s decision to discount Dr. Kang’s opinion is supported by substantial evidence. In
part, the ALJ discounted Dr. Kang’s opinion that Plaintiff would miss at least five to six days of work
per month because it was on a check-off form with no elaboration beyond the “yes” or “no” answer
options. Opinions that are supported by an explanation are entitled to more weight than those that
are not. See 20 C.F.R. § 404.1527(d)(3)(“The better an explanation a source provides for an opinion,
15
the more weight we will give that opinion.”); see also Crane v. Shalala, 76 F.3d 251" date_filed="1996-02-14" court="9th Cir." case_name="50 Soc.Sec.Rep.Ser. 134 v. Donna Shalala">76 F.3d 251, 253 (9th Cir.
1996)(ALJ permissibly rejected psychologist’s reports because they were check-off reports that did
not contain any explanation of the bases of their conclusions);Mason v. Shalala, 994 F.2d 1058" date_filed="1993-06-01" court="3rd Cir." case_name="Harold MASON, Appellant, v. Donna E. SHALALA, Secretary of Health & Human Services, Appellee">994 F.2d 1058, 1065
(3rd Cir.1993); O'Leary v. Schweiker, 710 F.2d 1334" date_filed="1983-06-30" court="8th Cir." case_name="Charlotte M. O'Leary v. Richard S. Schweiker, Secretary of Health and Human Services">710 F.2d 1334, 1341 (8th Cir.1993).
The ALJ also properly discounted Dr. Kang’s opinion as it was inconsistent with his own
treatment notes. See 20 C.F.R. § 404.1527(d)(4)(“The more consistent the opinion is with the record
as a whole, the more weight we will give to that opinion”); Craig, 76 F.3d 585" date_filed="1996-02-23" court="4th Cir." case_name="Ronda S. CRAIG, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee">76 F.3d at 590 (finding that the
ALJ properly discounted treating physician’s opinion in part because the physician’s “own medical
notes” did not support the opinion). Dr. Kang’s notes generally showed that although Plaintiff
complained of ongoing pain, tenderness in his back and legs, and limited range of motion in his back,
he was alert and had fluent speech, 5/5 strength, intact cranial nerves, intact sensation, normal
reflexes, minimal or no swelling, and no cognitive impairment. See, e.g., 427, 428, 430-432, 444-
445, 448-451. His notes consistently showed that Plaintiff was benefitting from his medications and
not experiencing any significant medication side-effects. See, e.g., Tr. 430, 432, 445-446, 449.
The ALJ also noted that Dr. Kang previously stated that Plaintiff was allowed to “return to
sedentary activities.” Tr. 17, see Tr. 451. Plaintiff argues that the “returning to sedentary activities
statement from the doctor is not the same as the social security administration[’]s definition of
sedentary work” because the general definition of sedentary is “to sit or rest a great deal” and the
regulatory definition of sedentary work requires standing and walking. Plaintiff’s Brief at 7.
Although sedentary work may require some standing and walking, however, does not mean that it
does not involve sitting “a great deal.” The regulatory definition of sedentary work specifically notes
that “[a]lthough a sedentary job is one which involves sitting, a certain amount of walking and
16
standing is often necessary.” 20 C.F.R. § 404.1567; see also SSR 83-10 (noting that sedentary work
requires only occasional (“from very little up to one-third of the time”) walking or standing).2
Plaintiff appears to argue that the ALJ erred because he did not “detail” the required factors
listed in § 404.1527. While 20 C.F.R. § 404.1527(d) provides that the ALJ will consider these
factors, there is not a requirement that the ALJ expressly articulate them in the decision. See 20
C.F.R. § 404.1527(d).3
Medical evidence from Plaintiff’s other treating and examining physicians also supports the
ALJ’s decision. In September 2006 (three months after Plaintiff’s accident), Dr. Wall noted that
Plaintiff was able to wear shoes and bear full weight without crutches (Tr. 16, 335). In October 2006,
Dr. Wall noted that Plaintiff should be able to move to sedentary work as long as he was allowed
frequent breaks for position changes and stretching, and was allowed to continue physical therapy.
Tr. 217. Dr. Wall also noted that Plaintiff benefitted from his medications without significant
side-effects. Tr. 322. Although pain and limited range of motion of Plaintiff’s back was noted,
examinations by Dr. Wall and other medical personnel in his practice revealed that Plaintiff could
walk independently; was alert and fully oriented with no mental deficits (due to pain or any other
2
It should also be noted that the ALJ limited Plaintiff to sedentary work with the option to
stand and sit at will. Tr. 14.
3
To the extent Plaintiff is arguing that remand is required because the ALJ did not strictly
follow the proper sequence in evaluating Dr. Kang’s opinion (by not first determining whether Dr.
Kang’s opinion was entitled to controlling weight), any error is harmless. See Mickles v. Shalala,
29 F.3d 918" date_filed="1994-07-18" court="4th Cir." case_name="Nannie MICKLES, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Defendant-Appellee">29 F.3d 918, 921 (4th Cir.1994)(finding an ALJ's error harmless where the ALJ would have reached
the same result notwithstanding an error in his analysis); Stout v. Commissioner Soc. Sec., 454 F.3d
1050, 1055 (9th Cir. 2006)(mistakes that are “nonprejudicial to the claimant or irrelevant to the
ALJ’s ultimate disability conclusion” are harmless error); Allen v. Barnhart, 357 F.3d 1140" date_filed="2004-02-04" court="10th Cir." case_name="Allen v. Barnhart">357 F.3d 1140, 1145
(10th Cir. 2004)(noting the principle of harmless error applies to Social Security disability cases).
The ALJ specifically stated that he was according Dr. Kang’s opinion little weight and he specifically
discussed his reasons for discounting this opinion.
17
cause); and had normal reflexes, full strength, no atrophy, and no significant swelling. Tr. 216-217,
318, 320, 327-328, 329-330, 332, 339.
Although Dr. Roman noted that Plaintiff had slow mentation, limited back range of motion,
and a slow gait, she found that Plaintiff was alert, oriented, and in no acute distress; had normal
stance and posture; full range of motion of his knees and hips; normal reflexes; intact pulses; negative
straight leg raise testing; no atrophy or edema; and the ability to get on and off the examination table
without difficulty, walk on his heels and toes, and tandem walk. Tr. 287-289. Dr. Carlton noted
Plaintiff had a mildly antalgic gait, slightly stiff ankles, and leg tenderness, but he had 5/5 strength,
intact sensation, symmetrical reflexes, intact pulses, no edema, negative straight leg raise testing,
minimal or no swelling, and the ability to walk on his heels and toes. Tr. 354, 367, 372-378. In
September 2007, Dr. Carlton opined that Plaintiff was at maximum medical improvement and
assessed impairment ratings of only five percent of Plaintiff’s low back pain and fifteen percent for
each foot. See, e.g., Loving v. Department of Health & Human Servs., 16 F.3d 967" date_filed="1994-02-28" court="8th Cir." case_name="Roy LOVING, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SECRETARY, Defendant-Appellee">16 F.3d 967, 968 (8th Cir.
1994)(workers’ compensation disability rating of five percent, claimant found not disabled); Stephens
v. Heckler, 766 F.2d 284" date_filed="1985-06-21" court="7th Cir." case_name="Wendell L. Stephens, Sr. v. Margaret Heckler, Secretary of Health and Human Services">766 F.2d 284, 285 (7th Cir. 1985)(thirty percent workers’ compensation disability rating,
claimant found not disabled); Waters v. Gardner, 452 F.2d 855" date_filed="1971-12-17" court="9th Cir." case_name="Ann E. Waters v. John W. Gardner, Secretary of Health, Education and Welfare of the United States of America">452 F.2d 855, 858 (9th Cir. 1971)(majority of
doctors rated the claimant’s disability at less than thirty percent, claimant found not disabled).
Objective medical evidence (as cited by the ALJ) also supports the ALJ decision. See Tr. 15,
17. In 2006, an electrodiagnostic study of Plaintiff’s legs was normal (Tr. 16, 33), an MRI of his legs
was normal (Tr. 171), and an MRI of his lumbar spine revealed “overall age appropriate” findings
(Tr. 15, 235).
18
Additionally, the ALJ’s decision is supported by the opinions of the State agency medical and
psychological consultants who found that Plaintiff was capable of unskilled light work. See Tr. 400-
407, 408-425. See 20 C.F.R. §§ 404.1527(f)(2) and 416.927(f)(2); SSR 96-6p ("Findings of fact
made by State agency ... [physicians ]... regarding the nature and severity of an individual’s
impairments must be treated as expert opinion of non-examining sources at the [ALJ] and Appeals
Council level of administrative review.").
B. Mental Impairment/Listings
Plaintiff argues that the ALJ erred by failing to properly find that his verbal IQ of 67
effected his ability to engage in gainful work activity. He argues that the ALJ’s determination that
his chronic brain syndrome (Plaintiff reported to Dr. Riley that he had a penetrating head injury at
age 5) was non-severe is an error. Plaintiff also appears to argue that the ALJ erred in failing to find
that he met or equaled the Listing of Impairments, 20 C.F.R. Pt. 404. Subpt. P., App. 1, at
§ 12.05(C). He argues that the ALJ erred by finding that his mental IQ was not limiting based on his
having worked a job that paid $18 per hour where he has less than a ninth grade education and a
Verbal IQ of 67-68. Plaintiff argues that it was error not to consider how the combination of his
physical and mental problems affected his ability to engage in sedentary jobs. The Commissioner
argues that the ALJ’s intellectual functioning was reasonably evaluated, the ALJ reasonably
evaluated the medical evidence in assessing Plaintiff’s RFC, and the ALJ properly considered
Plaintiff’s combination of impairments.
It is the claimant’s burden to show that he or she had a severe impairment. See Bowen v.
Yuckert, 482 U.S. 137" date_filed="1987-06-08" court="SCOTUS" case_name="Bowen v. Yuckert">482 U.S. 137, 146 n. 5 (1987). A non-severe impairment is defined as one that does not
19
"significantly limit [a claimant’s] physical or mental ability to do basic work activities." 20 C.F.R.
§ 404.1521(a). "Basic work activities" are defined as:
The abilities and aptitudes necessary to do most jobs. Examples of these include --
(1) Physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work
situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b). An impairment is "not severe" or insignificant only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be expected to
interfere with the individual's ability to work, irrespective of age, education, or work experience.
Evans v. Heckler, 734 F.2d 1012" date_filed="1984-05-21" court="4th Cir." case_name="Martin W. EVANS, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Appellee">734 F.2d 1012, 1014 (4th Cir. 1984).
Plaintiff has not met his burden of showing that his chronic brain syndrome was a severe
impairment. Dr. Manning noted that Plaintiff’s reading level was higher than expected based on
prior IQ testing. Tr. 13, 348. Dr. Williams, the State agency psychologist, specifically opined that
Plaintiff had borderline intellectual functioning, not mental retardation. Tr. 420. Examination by
Dr. Wall indicated that Plaintiff was alert, oriented, and had no mental deficits (see, e.g., Tr. 216,
321, 324, 325, 327-328, 329, 332, 335-336, 338). Dr. Riley did not note any problems with Plaintiff’s
cognition. See Tr. 359-363. Despite his IQ scores, Plaintiff was able to perform semiskilled or
skilled work for several years in the past . Tr. 37-38. Plaintiff testified that he worked as a lead man
20
with men working under him. Although he did not hire or fire these workers and did not keep
records, he said he was the head of them and checked on them. Tr. 39-40.
Even if the ALJ erred in not finding that Plaintiff’s mental impairment was severe, such error
is harmless here, as the ALJ considered all of Plaintiff’s impairments, both severe and non-severe
(see Tr. 19-20, 22), during the later steps of his disability determination. Although the Fourth Circuit
has not specifically addressed the issue here, other courts have found that an ALJ’s failure to find that
an impairment was severe was harmless error where the ALJ considered the impairment at the later
stages of analysis. See Hill v. Astrue, 289 F. App’x 289" date_filed="2008-08-12" court="10th Cir." case_name="Hill v. Astrue">289 F. App’x 289, 292 (10th Cir. 2008); Maziarz v. Secretary
of Health & Human Servs., 837 F.2d 240" date_filed="1987-08-31" court="6th Cir." case_name="Jerome MAZIARZ, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee">837 F.2d 240, 244 (6th Cir. 1987); Jones v. Astrue, No. 5:07-CV-452-FL,
2009 WL 455414 (E.D.N.C. Feb 23, 2009). Here, the ALJ specifically limited Plaintiff to unskilled
work in his hypothetical to the VE. Tr. 39. Plaintiff fails to show any additional limitations based
on his mental impairment that are supported by the record.
Plaintiff fails to show that he met or equaled the Listing at 12.05C, which requires that the
claimant show evidence of:
A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing additional and significant work-related limitation of
function.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C. The additional impairment under § 12.05C need not
of itself be disabling, since that would make the requirement meaningless. Branham v. Hecker, 775
F.2d 1271, 1273 (4th Cir. 1985). Section 12.05 further provides:
Mental retardation refers to a significantly subaverage general intellectual functioning
with deficits in adaptive behavior initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset of the impairment before age
22.
21
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. The Fourth Circuit has held that § 12.00 “expressly
define[s] mental retardation as ‘a lifelong condition.’” Branham v. Heckler, 775 F.2d at 1274.4
Even assuming that Plaintiff has shown that he had a valid verbal IQ score of 60 to 70 with
a physical or other mental impairment imposing additional and significant work-related limitation
of function,5 he fails to show deficits in adaptive behavior in adaptive behavior that initially
manifested prior to age 22.
Plaintiff argues that the ALJ erred in relying on his work history to disprove disability.
Although the Fourth Circuit has indicated the mere existence of a work history cannot be used to
determine if an impairment is disabling when the impairment is already presumptively disabling
under a listing, see Luckey v. U. S. Dep’t of Health & Human Servs., 890 F.2d 666" date_filed="1989-06-28" court="4th Cir." case_name="Luckey v. U.S. Department of Health & Human Services">890 F.2d 666, 669 (4th Cir.
1989), that is not the case here. An ALJ “may decline to accept a claimant's performance [on an IQ
test] where the claimant has demonstrated a work history inconsistent with those scores, or where
the claimant's performance in IQ testing is depressed ...” Robertson v. Barnhart, No. 4:06cv00022,
2006 WL 3526901, at * 2 (W.D. Va. Dec. 1, 2006)(unpublished).
C. Credibility
Plaintiff argues that the ALJ erred by not properly evaluating his testimony regarding
the severity of his symptoms. He argues that the reasons given by the ALJ to discount his credibility
4
Additionally, the ALJ specifically considered all of Plaintiff’s impairments and found that
Plaintiff did not have an impairment or combination of impairments that met or equaled a listing.
Tr. 14, see Tr. 12-18.
5
Although the ALJ did not specifically address the Listing at § 12.05C, any failure to do so
is harmless error, as Plaintiff fails to show that he met or equaled this Listing.
22
have been shown to have no bearing on his credibility. The Commissioner contends that the ALJ
reasonably evaluated the credibility of Plaintiff’s subjective complaints.
In assessing credibility and complaints of pain, the ALJ must: (1) determine whether there
is objective evidence of an impairment which could reasonably be expected to produce the pain
alleged by a plaintiff and, if such evidence exists, (2) consider a plaintiff's subjective complaints of
pain, along with all of the evidence in the record. See Craig v. Chater, 76 F.3d 585" date_filed="1996-02-23" court="4th Cir." case_name="Ronda S. CRAIG, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee">76 F.3d 585, 591-92 (4th Cir.
1996); Mickles v. Shalala, 29 F.3d 918" date_filed="1994-07-18" court="4th Cir." case_name="Nannie MICKLES, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Defendant-Appellee">29 F.3d 918 (4th Cir. 1994). Although a claimant's allegations about 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 the
impairment can reasonably be expected to cause the pain the claimant alleges he suffers. A claimant's
symptoms, including pain, are considered to diminish his or her capacity to work to the extent that
alleged functional limitations are reasonably consistent with objective medical and other evidence.
20 C.F.R. §§ 404.1529(c)(4) and 416.929(c)(4).
The ALJ properly considered Plaintiff’s credibility by using the two-part test outlined above
and considering the medical and non-medical record. At step one, the ALJ specifically found that
Plaintiff had medically determinable impairments that could have reasonably been expected to
produce some of the alleged symptoms. Tr. 15. At step two, the ALJ properly considered the
medical and non-medical evidence in determining that Plaintiff’s subjective allegations of limitations
during the relevant time period were not supported by the weight of the evidence. Tr. 15-18. The
ALJ specifically stated that he took Plaintiff’s allegations of pain into consideration by reducing his
23
RFC. Tr. 17-18. The medical record, as discussed above, supports the ALJ’s finding. The ALJ did
not base his credibility determination on the objective medical evidence alone.
The ALJ specifically considered Plaintiff’s response to treatment with medications as an
indicator that his symptoms were not as severe as alleged. Tr. 15. The record showed that Plaintiff’s
pain, while not completely alleviated, responded to medications. Tr. 16-17, see, e.g., Tr. 317 (noting
some benefit from medications); 369 (injection helped back for a while); 371 (nerve block helped
feet); 427 (adequate pain control); 428 (better pain control); 429 (better pain control); 432 (pretty
good pain control); 437 (injection helped back pain, getting some relief with other medications); 438
(back pain better after injection); 445 (getting some relief with medications); 448 (relief with
medication); 449 (improved pain control). Additionally, the ALJ properly discounted Plaintiff’s
credibility based on inconsistencies in information provided by Plaintiff (Tr. 17). See Mickles v.
Shalala, 29 F.3d 918" date_filed="1994-07-18" court="4th Cir." case_name="Nannie MICKLES, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Defendant-Appellee">29 F.3d at 930.6 Contrary to Plaintiff’s argument, the ALJ properly analyzed the side-effects
of Plaintiff’s medications as the record consistently reflected that Plaintiff was not experiencing any
significant side-effects. See, e.g., Tr. 320, 322, 336, 366, 429, 430, 432, 445-446, 449.
Citing Hines v. Barnhart, 453 F.3d 559" date_filed="2006-07-11" court="4th Cir." case_name="Jeffery Hines v. Jo Anne B. Barnhart, Commissioner of Social Security">453 F.3d 559, 565 (4th Cir. 2006, Plaintiff argues that he may rely
exclusively on subjective evidence to prove the second part of the credibility test. Plaintiff's reliance
on Hines v. Barnhart, 453 F.3d 559" date_filed="2006-07-11" court="4th Cir." case_name="Jeffery Hines v. Jo Anne B. Barnhart, Commissioner of Social Security">453 F.3d 559 (4th Cir. 2006) is misplaced. In Hines, a Fourth Circuit held
that, “[h]aving met his threshold obligation of showing by objective medical evidence a condition
6
The ALJ’s decision is also supported by Plaintiff’s activities of daily living. See Mastro v.
Apfel, 270 F.3d 171" date_filed="2001-07-05" court="4th Cir." case_name="Patricia A. Mastro v. Kenneth S. Apfel, Commissioner of Social Security, No">270 F.3d at 179 (claimant’s daily activities undermined her subjective complaints). Although
Plaintiff testified to reduced activities, the records indicate that he was able to independently care for
his personal needs, go to the grocery store with his wife twice a week, and walk for an hour (Tr. 287),
do a 30-minute workout on a treadmill (Tr. 374), and travel out of town to take his son to school (Tr.
361).
24
reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on
subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or
severe that it prevent[ed] him from working a full eight-hour day.” Id. at 565. The Court, however,
still acknowledged that “[o]bjective medical evidence of pain, its intensity or degree (i.e.,
manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle
spasm, or sensory or motor disruption), if available should be obtained and considered.” Id. at 564;
see id. at 565 n. 3. This is not a case where the absence of objective medical evidence of the
intensity, severity, degree, or functional effect of pain is determinative of the outcome. Although the
ALJ did not find that Plaintiff’s subjective complaints and pain were totally disabling, he accepted
Plaintiff’s subjective symptoms to the extent that they prevented him from performing more than
a reduced range of unskilled, sedentary work .
D. Hypothetical to the VE
Plaintiff alleges that the ALJ erred by not accepting the VE’s testimony in response
to a hypothetical question as to whether there would be any jobs that Claimant could perform
assuming that Dr. Kang’s limitations with regard to days missed was correct. The Commissioner
contends that the ALJ properly found that there were jobs in the national economy that Plaintiff could
perform with his RFC, and that the ALJ was not required to accept the VE’s response to the
additional hypothetical question because it included limitations that the ALJ found were not
supported by the record.
In order for a VE's opinion to be relevant or helpful, it must be based upon a consideration
of all the other evidence on the record and must be in response to hypothetical questions which fairly
set out all of the plaintiff's impairments. Walker v. Bowen, 889 F.2d 47" date_filed="1989-10-31" court="4th Cir." case_name="George W. WALKER, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services, Defendant-Appellee">889 F.2d 47, 50 (4th Cir. 1989). The
25
questions, however, need only reflect those impairments that are supported by the record. Chrupcala
v. Heckler, 829 F.2d 1269" date_filed="1987-09-28" court="3rd Cir." case_name="John Chrupcala v. Margaret M. Heckler, Secretary of Health and Human Services">829 F.2d 1269, 1276 (3d Cir. 1987).
Here, the ALJ was not required to include additional limitations proposed by Plaintiff’s
counsel (Dr. Kang’s limitations with regard to the number of days of work Plaintiff would miss)
because the ALJ did not find these limitations to be credible and/or supported by the record. See Lee
v. Sullivan, 945 F.2d 689, 698-94 (4th Cir. 1991)(noting that a requirement introduced by claimant’s
counsel in a question to the VE "was not sustained by the evidence, and the vocational expert’s
testimony in response to the question was without support in the record."); Chrupcala, supra.
CONCLUSION
Despite Plaintiff's claims, he fails to show that the Commissioner's decision was not based
on substantial evidence. This Court may not reverse a decision simply because a plaintiff has
produced some evidence which might contradict the Commissioner's decision or because, if the
decision was considered de novo, a different result might be reached.
This Court is charged with reviewing the case only to determine whether the findings of the
Commissioner were based on substantial evidence, Richardson v. Perales, supra. Even where a
plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the
Commissioner's findings must be affirmed if substantial evidence supported the decision, Blalock
v. Richardson, supra. The Commissioner is charged with resolving conflicts in the evidence, and this
Court cannot reverse that decision merely because the evidence would permit a different conclusion.
26
Shively v. Heckler, supra. It is, therefore,
RECOMMENDED that the Commissioner's decision be affirmed.
Joseph R. McCrorey
United States Magistrate Judge
February 10, 2012
Columbia, South Carolina
27