Angenita M. v. Kijakazi

Shiva V. Hodges United States Magistrate Judge

REPORT AND RECOMMENDATION

Shiva V. Hodges United States Magistrate Judge

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.

I. Relevant Background

A. Procedural History

On April 22, 2020, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on March 24, 2020. Tr. at 102, 230-38, 239-45. Her applications were denied initially and upon reconsideration. Tr. at 147-50, 164-67, 168-71. On October 4, 2021, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Ronald Fleming. Tr. at 43-85 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 26, 2021, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 24-42. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on August 10, 2022. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 51 years old at the time of the hearing. Tr. at 48. She completed high school. Tr. at 355. Her past relevant work (“PRW”) was as a. housekeeper and childcare provider. Tr. at 53-54. She alleges she has been unable to work since April 22, 2020.Tr. at 53, 268.

Following the hearing, Plaintiff amended her alleged onset date to April 22, 2020. Tr. at 268.

2. Medical History

Plaintiff presented to the emergency room (“ER”) at Aiken Regional Medical Center on October 31, 2019. Tr. at 378. She complained of a onemonth history of burning and tingling in her feet and a pulling sensation in her back and left lower leg. Id. The attending physician assessed foot pain and neuropathy, prescribed Gabapentin, and advised Plaintiff to follow up with her primary care provider within two to four days. Tr. at 380.

Plaintiff followed up from the ER visit on November 4, 2019. Tr. at 396. Her weight had decreased by eight pounds from her prior visit to 334 pounds. Id. Her blood glucose was 90 mg/dL. Id. The treatment note reflects a medical history of pre-diabetes mellitus, hypertension, degenerative joint disease, obesity, neuropathy, and left knee surgery. Id. Plaintiff denied improvement in the numbness in her feet. Id. Nurse practitioner Elizabeth Seal (“NP Seal”) ordered x-rays of Plaintiff's lumbar spine that showed mild disc space narrowing at L4-5. Tr. at 389, 396.

On January 27, 2020, Plaintiff reported no relief from extra strength Tylenol and indicated she had taken her last Valsartan dose the prior Saturday. Tr. at 394. NP Seal indicated Plaintiff was scheduled for “How To Read a Label” class in March, presumably to help her better manage her diet. Id.

Plaintiff's weight had decreased by two pounds to 334 pounds during a follow up visit on March 9, 2020. Tr. at 393. Her blood glucose was 98 mg/dL. Id.

Plaintiff presented to Shaun A. Nguyen, M.D. (“Dr. Nguyen”), for a consultative exam on September 12, 2020. Tr. at 404-08. She reported difficulty managing her blood pressure, worsening pain of the left knee with a history of surgery in 1988, borderline diabetes, and tingling and numbness in her bilateral feet. Tr. at 404. Dr. Nguyen noted Plaintiff was able to walk to the exam room without a cane, step on a three-inch scale, use a stapler in both hands, pick up a penny with both hands, and get on and off the exam table. Tr. at 406. Plaintiff was 5'3” tall and weighed 352 pounds. Id. Her blood pressure was elevated at 165/100 mmHg. Id. Dr. Nguyen recorded mostly normal observations on exam, except for 20/40 bilateral visual acuity with glasses, tenderness of the thoracolumbar spine from T8 to L4, tenderness of the left knee, tandem gait not intact due to obesity, inability to perform toewalk and heel-walk due to tingling pain and numbness in the feet, inability to hop or perform full squat due to left knee pain and tingling and numbness in feet, lumbar flexion to 90 degrees with thoracolumbar pain, straight-leg raising to 45 degrees bilaterally due to tightness, right knee flexion to 150 degrees, and left knee flexion to 100 degrees due to pain. Tr. at 406-07. He assessed class III obesity with a body mass index (“BMI”) of 62.3 kg/m,2 reduced visual acuity, uncontrolled hypertension, left knee pain with limited range of motion (“ROM”), thoracolumbar pain, and self-described tingling and numbness in feet, likely secondary to diabetes mellitus. Tr. at 407-08.

On October 2, 2020, state agency medical consultant Ronald Collins, M.D., reviewed the record and assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; and occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. Tr. at 90-92, 98-100. A second medical consultant, Susan Luberoff, M.D., assessed the same physical RFC at the reconsideration level. Compare Tr. at 90-92 and 98-100, with Tr. at 112-15 and 127-30.

On November 3, 2020, Plaintiff informed NP Seal she was seeking disability because she found it difficult to work with her extreme obesity. Tr. at 427. She indicated she was “[w]illing to work on weight loss, but f[ound] it hard to remain focused” and requested that NP Seal prescribe Adipex. Id. NP Seal declined Plaintiff's request, as she was unwilling to prescribe a controlled substance or diet pill. Id. However, she agreed to prescribe Topamax, an “off-label medication” that would “support a decrease in appetite.” Id.

Plaintiff weighed 343 pounds and had a BMI of 60.8 kg/m2 on December 7, 2020. Tr. at 420. NP Seal noted Plaintiff had gained 10 pounds. Id. Plaintiff reported she was unable to tolerate Topamax, as it caused her nausea at night. Tr. at 421. She continued to endorse knee and foot pain. Id. NP Seal recorded mostly normal findings on exam, aside from obesity, joint tenderness and swelling, and tight hamstrings. Tr. at 421-22. Plaintiff admitted she was not doing daily hamstring stretches even though they provided some relief. Tr. at 422. NP Seal informed Plaintiff that her body aches would not improve unless she lost about 150 pounds and that her problems would only worsen if she did not make changes. Id. She indicated Plaintiff's chronic kidney disease (“CKD”) was within normal limits (“WNL”), her hypertension was controlled, and she was not on medication for neuropathy. Id. She continued Plaintiff on a 50 mg dose of Topamax in the morning, but discontinued the evening dose. Tr. at 424.

On March 17, 2021, Plaintiff's creatinine level was slightly elevated, but she admitted to not drinking as much water as she should. Tr. at 416. NP Seal indicated Plaintiff's creatinine level would likely improve with hydration. Id. She assessed stage III CKD, controlled essential hypertension, fatigue, neuropathy, obesity, and prediabetes. Tr. at 416-17. She noted Plaintiff was not on medication for neuropathy. Tr. at 416. She advised Plaintiff of a need to control her cravings and modify her behavior as she reacted to stress. Id.

On April 5, 2021, Plaintiff complained of pain in her feet and left knee and difficulty breathing when active. Tr. at 452. NP Seal noted positive wheezing and indicated Plaintiff had an appointment to see Dr. Eaves. Id.

On May 4, 2021, Plaintiff complained of wheezing and indicated the treatment she received for asthma had worsened her symptoms. Tr. at 450. She also endorsed severe gastroesophageal reflux disease (“GERD”). Id. NP Seal advised Plaintiff to eat smaller meals and to avoid lying down after eating. Id. She wrote the following:

Long discussion of the consequences of obesity including worsening reflux, laryngeal edema, [obstructive sleep apnea (“OSA”)] (which she has and has not been able to afford treatment), eventual pulmonary hypertension and right sided heart failure. Essentially she is killing herself with her appetite. She said the Topamax has helped reduce her eating; she is eating less and her clothes are getting looser. She was seeing Dr. Eaves and losing weight at his weight loss clinic but cannot afford to stay with the program. It helped her control her eating with the structured eating plan. She has scheduled an appointment to see Dr. Eaves about [shortness of breath] and dyspnea on exertion; both symptoms consistent with right sided heart failure.

Id. She stopped Plaintiff's asthma medication and prescribed Pantoprazole for GERD. Id. She encouraged Plaintiff to drink more water to address slightly elevated creatinine. Id.

On August 9, 2021, NP Seal instructed Plaintiff to stop Topamax and to replace it with Bupropion HCl. Tr. at 447. She also prescribed Proventil for asthma. Id.

On September 21, 2021, Plaintiff reported she had declined to take Bupropion because she feared it would cause weight gain. Tr. at 445. She indicated she was continuing to take Topamax. Id. She admitted she was powerless to control her overeating and agreed to check into Overeaters Anonymous. Id. NP Seal noted Plaintiff's creatinine level was slightly elevated. Id. She indicated Plaintiff was not taking medication for neuropathy. Id. She prescribed Victoza to lower Plaintiff's blood sugar. Id. She stated Plaintiff needed a sleep study to assess OSA. Tr. at 446. She noted Plaintiff was taking Proventil for asthma and changed her to Dexilant for GERD. Id. She also assessed generalized anxiety disorder or depression and physical deconditioning due to obesity with dyspnea on exertion with normal stress test. Id.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing, Plaintiff testified she was 5'3” tall, weighed 335 pounds, and was right-handed. Tr. at 49. She indicated she was single, had no children, and lived with her mother in her mother's mobile home. Id. She said she received food stamps and had no source of income. Id. She admitted she had a driver's license and drove as little as necessary, usually once or twice a week. Tr. at 50. She said she could read and write “a little bit” and could pay bills if she had the money. Tr. at 51.

Plaintiff stated she had last worked in June 2020. Tr. at 51. She subsequently indicated she was uncertain as to that date, and her earnings record showed some earnings into the second quarter of 2020. Tr. at 51-52. She indicated she had provided housekeeping and childcare services to Talmadge Wilkins from 2012 to 2020. Tr. at 53-54. She said she did laundry, climbed stairs, cared for children, and lifted 10-20 pounds in the job. Tr. at 54. She confirmed that she previously performed the same type of work for Michael and Cynthia Smith. Id.

Plaintiff testified she had neuropathy in her feet that was treated with Gabapentin and arthritis pain medication. Id. She said Gabapentin did not relieve her symptoms. Id. She stated she experienced sharp, needle-like pain, burning, swelling, and numbness in her feet. Tr. at 54-55. She said she had difficulty bending and lifting due to middle back pain. Tr. at 55-56. She rated her back pain as a six on a 10-point scale and said she took Tylenol for it. Tr. at 56. She denied having participated in physical therapy or received injections to her back, as she lacked insurance. Tr. at 57.

Plaintiff stated she experience left knee pain and required a bandage on the knee when she walked. Id. She said if she neglected to use the bandage, her knee popped, gave out, and caused her to fall. Id. She clarified that she used a spandex bandage and a knee brace at times. Id. She denied having been examined by a surgeon or undergone magnetic resonance imaging (“MRI”) to her back. Tr. at 58. She indicated she had undergone x-rays to her knees, but upon further questioning, she stated the x-rays had been performed when she had knee surgery in the 1980s. Id.

Plaintiff denied taking medication for CKD. Tr. at 59. She said her blood pressure medication caused her to use the restroom frequently. Id. She confirmed that she experienced shortness of breath due to asthma. Id. She indicated she used inhalers that helped a little. Tr. at 60. She denied having undergone breathing tests. Tr. at 65.

Plaintiff estimated she could sit for a couple of hours before needing to stand. Tr. at 61. She said she could stand for a couple of minutes to wash dishes. Id. She stated she could lift and carry about 20 pounds. Tr. at 62. She indicated she could reach down to pick up an item from the ground. Id. She denied being able to kneel on one knee, squat, and crawl. Tr. at 63. She indicated she was able to independently perform self-care activities. Id. She said she did a little cooking and washed her dishes. Id. She confirmed her abilities to vacuum, mop, and sweep, but indicated she sat down after performing these tasks. Id. She stated she was able to do laundry, but sat between tasks. Id. She said she shopped for groceries with help from her sister and niece. Tr. at 64. She denied going out regularly and indicated she watched an online church service. Id. She stated on a typical morning, she woke and sat on the edge of her bed to allow her pain to decrease before she took a shower. Id.

Plaintiff confirmed that she had no medical insurance, received treatment through a free clinic, had not undergone diagnostic testing, and had limited access to medications. Tr. at 65-66. She explained she had stopped working because of pain in her feet and knees. Tr. at 66. She stated her pain was worse when she was on her feet, and she had to be on her feet to cook. Tr. at 67. She indicated she informed her employer that she could no longer do the job. Id.

Plaintiff testified her shortness of breath required her to sit down in the middle of and in between household chores. Tr. at 68. She said she had to sit to rest for a while after showering. Id. She denied improvement in her shortness of breath with use of Advair and Proventil. Tr. at 69.

Plaintiff indicated she would consider undergoing gastric bypass surgery if she had Medicare coverage. Id. She said she had been trying to change her eating habits and do more chores around her house. Id.

Plaintiff confirmed that she sometimes used a motorized cart in the store. Tr. at 70. She said she would get in and out of the cart while she was shopping, as she sometimes wanted to walk. Id. She stated she could walk halfway down a grocery aisle before she would need to rest. Tr. at 71.

Plaintiff stated she would have difficulty performing a job that required she handle money and make change. Tr. at 72. She said she had poor ability to spell. Id. She indicated she could not use a computer. Id. She indicated she typically sat with her legs elevated due to swelling in her ankles. Id.

Plaintiff testified she spent half of a typical day sitting and reclining and the other half of the day walking around, doing chores, and alternating between sitting and getting up. Tr. at 73-74. She said she spent two to three hours a day performing household chores. Tr. at 74. She indicated her prior work as a housekeeper had required her to work from 6:00 AM to 5:00 PM and to be on her feet for most of this time. Tr. at 75. She indicated she could presently stand and be on her feet for less than half a day. Id.

b. Vocational Expert Testimony

Vocational Expert (“VE”) Kenneth Boaz reviewed the record and testified at the hearing. Tr. at 76-83. The VE categorized Plaintiff's PRW as a general house worker, Dictionary of Occupational Titles (“DOT”) No. 301.474-010, requiring medium exertion per the DOT and light exertion as performed, and a specific vocational preparation of 3. Tr. at 76. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work with standing and walking four hours in an eight-hour day and sitting six hours in an eight-hour day; occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing and stooping; no kneeling, crouching, or crawling; and avoidance of concentrated exposure to extreme heat, humidity, fumes, odors, dust, gases, and poor ventilation. Tr. at 77. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs the hypothetical person could perform. Tr. at 78. The VE identified light jobs as a laundry folder, DOT No. 369.687-018, a bottling line inspector, DOT No. 920.687-042, and a sales attendant, DOT No. 299.677010, with 42,000, 165,000, and 210,000 positions in the national economy, respectively. Id.

The ALJ asked the VE if any of the jobs he identified had a reasoning level above two. Id. The VE testified the job of sales attendant would require a reasoning level of three. Tr. at 78. The ALJ asked the VE to provide another example with a reasoning level of two. Id. The VE identified the job of agricultural produce sorter, DOT No. 529.687-186, requiring light exertion and having 19,000 positions in the national economy. Id.

For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile and to assume the individual would be limited to sedentary work with two hours of standing and walking; occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing and stooping; no kneeling, crouching, or crawling; avoidance of concentrated exposure to extreme heat, humidity, fumes, odors, gases, and poor ventilation; a reasoning level of two; would be off-task for 20% of the workday; and would miss three days of work per month. Id. He asked if there would be work the individual could perform. Id. The VE testified the time off-task and number of absences would preclude all work in the national economy. Id.

Plaintiff's counsel called the VE's attention to the fact that the ALJ had specified in the first hypothetical question that the individual would be limited to standing and walking for four hours in an eight-hour workday. Tr. at 79. He asked the VE if he could confirm that the jobs he identified could be performed with that restriction. Id. The VE stated he had missed the standing and walking restriction. Id. He indicated the bottling line inspector could still be performed, but the sorter and folder positions could not. Id. The VE testified the individual would be able to perform work as a garment sorter, DOT No. 222.687-014, and a small products assembler, DOT No. 706.687-010, with 76,000 and 46,000 positions in the national economy, respectively. Tr. at 79-80. He explained that his testimony that the jobs could be performed with the four-hour standing restriction was based on his review of the DOT and his training, education, and experience that showed the jobs could be done either sitting or standing. Tr. at 80.

Plaintiff's counsel asked the VE to provide his impression as to whether the light occupational base would be eroded by limiting the individual to standing and walking for four hours in an eight-hour workday with environmental restrictions and limited kneeling and crouching. Id. The VE said he could not provide an exact number of light jobs that would be eroded, but conceded the restrictions limited the number of available jobs. Tr. at 81-82.

Plaintiff's counsel asked the VE if an individual would be considered off-task if she had to recline or elevate her feet for a significant portion of the day. Id. The VE stated those restrictions would preclude all work. Id.

Plaintiff's counsel asked the VE to indicate the impact of an individual's limited ability to read and inability to make change. Id. The VE stated the jobs he identified would not be affected because they had low math and reasoning levels and involved production, as opposed to dealing with the public. Tr. at 82-83.

The VE said his testimony was consistent with the DOT, but that he had provided information as to standing, acceptable time off-task, and absences based on his research, training, education, and experience. Tr. at 83.

2. The ALJ's Findings

In his decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2025.

2. The claimant has not engaged in substantial gainful activity since April 22, 2020, the alleged onset date ( 20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: neuropathy, degenerative disc disease of the lumbar spine, history of arthroscopic surgery to the left knee secondary to degenerative joint disease, chronic kidney disease stage III, asthma, obesity. ( 20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ( 20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except standing and walking no more than four hours in an eight-hour day. Sitting for six-hours in an eight-hour workday. The claimant can occasionally climb ramps and stairs but must avoid climbing ladders, ropes or scaffolds. He can occasionally balance and stoop, but [must] avoid kneeling,

crouching, or crawling. The claimant must avoid concentrated exposure to extreme heat, humidity, fumes, odors, dusts, gases and poor ventilation. Finally, the claimant must avoid jobs that require more than a level two reasoning ability.

6. The claimant is unable to perform any past relevant work ( 20 CFR 404.1565 and 416.965).

7. The claimant was born on April 2, 1970 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date ( 20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education ( 20 CFR 404.1564 and 416.964).

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).

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, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from April 22, 2020, through the date of this decision ( 20 CFR 404.1520(g) and 416.920(g)).

Tr. at 30-36.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ failed to properly evaluate Plaintiff's subjective allegations; and

2) the ALJ did not explain the RFC assessment in accordance with the requirements of SSR 96-8p.

The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:

the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. Part 404 subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).

A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

1. Subjective Symptom Evaluation

Plaintiff argues the ALJ failed to properly evaluate her subjective symptoms. [ECF No. 12 at 19]. She asserts the ALJ imposed an incorrect standard by rejecting her statements because they were not “evidenced in the record as a whole.” Id. at 20. She claims the ALJ failed to show that her complaints were inconsistent with the objective evidence. Id. at 21. She maintains the ALJ did not properly evaluate her statements in light of her providers' impressions as the effects of obesity and erred in referencing evidence of improvement in neuropathy. Id. at 21-22. She contends the ALJ failed to identify which statements he considered inconsistent with the other evidence. Id. at 22-23.

The Commissioner argues substantial evidence supports the ALJ's evaluation of Plaintiff's alleged symptoms. [ECF No. 14 at 14]. She maintains the ALJ's decision reflects his compliance with direction in 20 C.F.R. § 404.1529(a) and § 416.929(a) to consider “the extent to which [Plaintiff's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” Id. at 15. She asserts the ALJ relied on the state agency consultants' opinions, an absence of restrictions from the medical providers, Plaintiff's limited and conservative treatment, and benign physical exams to support his decision not to fully credit her allegations. Id. at 16.

“Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). After concluding the impairment could reasonably produce the symptoms the claimant alleges, the ALJ proceeds to the second step, which requires him to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)).

An ALJ “improperly increase[s]” the claimant's “burden of proof” where he requires the subjective description of symptoms to be verified by objective medical evidence. Lewis, 858 F.3d at 866. Thus, if an ALJ concludes a claimant has severe impairments that could reasonably cause the symptoms she alleges, the ALJ cannot reject the claimant's statements as to her functional limitations simply because they are not corroborated by enough clinical signs and laboratory findings.

This does not require the ALJ to accept every representation a claimant makes regarding the intensity, persistence, and limiting effects of her symptoms. Instead, the ALJ must consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence, including [the claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [her] symptoms affect [her].” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). The ALJ should examine “statements from the individual, medical sources, and any other sources that might have information about the claimant's symptoms, including agency personnel, as well as the factors set forth in [the] regulations,” SSR 16-3p, 2017 WL 5180304, at *6. Those factors are: (1) the claimant's activities of daily living (“ADLs”); (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) any precipitating or aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; (6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

“The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)). The ALJ must explain which of the claimant's alleged symptoms he found “consistent or inconsistent with the evidence in [the] record and how [his] evaluation of the individual's symptoms led to [his] conclusions.” SSR 16-3p, 2017 WL 5180304, at *8. “Courts have interpreted the explanation requirement as imposing a duty on the ALJ to “build an accurate and logical bridge” between the evidence and the conclusions as to the intensity, persistence, and limiting effects of the claimant's symptoms. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Afpel, 277 F.3d 863, 872 (7th Cir. 2000)).

Although the ALJ found Plaintiff's impairments “could reasonably be expected to cause the alleged symptoms,” he concluded her statements as to their intensity, persistence, and limiting effects were “not entirely consistent with the medical evidence and other evidence in the record” because “the severity of her impairments [was] not evidenced in the record as a whole.” Tr. at 33. He found “the evidence fail[ed] to establish the limiting effects of [Plaintiff's] impairments such that she is unable to engage in work activities on a sustained basis.” Tr. at 33. He concluded Plaintiff's impairments were “not as severe or limiting as alleged” and “would not preclude her from performing work within the parameters of the residual functional capacity noted above on a regular and continuing basis.” Tr. at 34. Thus, the ALJ rejected Plaintiff's allegations that she could not complete a normal workday and workweek on a regular and continuing basis and was limited to less than the reduced range of light work reflected in the RFC assessment.

The ALJ's explanation for his assessment of Plaintiff's subjective allegations appropriately reflects his consideration of relevant evidence in the record as a whole. He acknowledged Plaintiff's allegations that she could not “engage in work activities for a sustained period” due to “consistent pain,” had neuropathy in both of her legs that caused “sharp needles” and burning sensations, had “difficulty ambulating in the morning and loss of sensation in her feet,” had “back pain that ma[de] it impossible to bend,” experienced dyspnea, and needed to “elevate her legs when she [was] sitting.” Tr. at 33. He cited records reflecting Plaintiff's complaints of pain in her lower back, numbness and tingling in her lower extremities, and pain in her left knee and foot. Tr. at 33. However, he pointed out contrary evidence that included her denials of back pain during an October 2019 evaluation and shortness of breath and wheezing on multiple occasions. Id. He referenced Plaintiff's abilities to drive, independently ambulate without an assistive device, and independently perform ADLs. Id. He noted Plaintiff had not sought ER treatment for asthma attacks. Id.

In addition to discussing the objective evidence, the ALJ relied on the examining medical providers' impressions, an absence of statements as to functional limitations, and the type of treatment Plaintiff received in reaching his conclusions. He noted NP Seal described only “mild” findings on x-rays of Plaintiff's lumbar spine, encouraged her to “drink more water” upon discovering her occasional elevated creatinine levels, and indicated her CKD was WNL. Id. While Plaintiff correctly notes NP Seal advised her that she was “killing herself with her appetite,” NP Seal did so in the context of warning Plaintiff what would happen if she failed to stop overeating, not as an indication of functional limitations or an impression that she had a terminal diagnosis. See Tr. at 450. Therefore, the ALJ did not err in failing to address this statement.

The ALJ referred to the ER physician's impression that Plaintiff's neuropathy was improved and stable in October 2019. Id. (referencing Tr. at 380). Plaintiff correctly points out that this note of stability and improvement preceded her alleged disability onset date. [ECF No. 12 at 22]. However, the ALJ did not ignore and specifically addressed Plaintiff's continued complaints of neuropathic pain in her feet. See Tr. at 32, 33. A few treatment notes after November 2019 reflect Plaintiff's complaints of pain and numbness in her feet. Tr. at 396, 404, 452. However, NP Seal's records show Plaintiff was not taking medication for neuropathy, made no effort to address the symptoms, and reported no associated functional limitations. See Tr. at 416, 422, 445, 450. Given the evidence as a whole, the ALJ did not err in noting stability and improvement in the November 2019 treatment note as evidence contrary to Plaintiff's allegations.

The ALJ observed that Dr. Nguyen “offered no opinion as to [Plaintiff's] work functioning capacity,” but that he had considered Dr. Nguyen's findings. Tr. at 34. He further noted Plaintiff had received “rudimentary and effective treatment,” and her medical providers had not recommended more aggressive treatment such as gastric bypass or back, knee, or bariatric surgery. Tr. at 33, 34.

The ALJ's decision reflects appropriate consideration of “whether there [were] any inconsistencies in the evidence and the extent to which there [were] any conflicts between [Plaintiff's] statements and the rest of the evidence” in accordance with 20 C.F.R. § 404.1529 and § 416.929. He provided the requisite logical bridge between the evidence and his conclusion that Plaintiff's symptoms were not as limiting as she alleged. Therefore, the undersigned recommends the court find substantial evidence supports the ALJ's evaluation of Plaintiff's statements as to the intensity, persistence, and limiting effects of her pain and other symptoms.

2. RFC Assessment

Plaintiff argues the ALJ did not assess her RFC in accordance with SSR 96-8p. [ECF No. 12 at 10-19]. She maintains the ALJ did not explain how her lower extremity problems and obesity would allow her to meet the standing and walking requirements of light work. Id. at 12-18. She asserts the ALJ misrepresented evidence from the consultative exam to support his conclusion that the findings were inconsistent with her allegations. Id. at 15. She contends the ALJ did not adequately consider the extent to which her obesity affected her other impairments and their treatment and limited her RFC. Id. at 16-18.

The Commissioner argues substantial evidence supports the ALJ's evaluation of Plaintiff's obesity and leg pain. [ECF No. 14 at 7-13]. She asserts Plaintiff challenges the ALJ's finding that she could stand and walk for four hours during an eight-hour workday, but does not dispute that she could lift and carry 20 pounds occasionally and 10 pounds frequently, as consistent with light work. Id. She contends substantial evidence supports the ALJ's conclusion that Plaintiff could stand and walk for four hours in an eight-hour workday. Id. at 7-8. However, she argues that even if it did not, the VE's testimony confirmed that all the identified jobs could be performed in a seated position. Id. at 8-10. She maintains the ALJ relied on the state agency medical consultants' findings, Plaintiff's limited and conservative treatment history, and physical exam findings to support the RFC assessment. Id. at 10. She claims the ALJ considered Plaintiff's obesity in accordance with SSR 19-2p and points out that her BMI during the period she was working was comparable to her BMI during the relevant period. Id. at 11-12.

The ALJ must base the RFC assessment on all the relevant evidence in the record. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). It should reflect the ALJ's “consider[ation] of all allegations of physical and mental limitations or restrictions.” SSR 96-8p, 1996 WL 374184, at *5. The ALJ should identify the claimant's functional limitations and restrictions and evaluate her remaining capacities for work-related activities. Id. at *2. He must consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work on a regular and continuing basis, “mean[ing] 8 hours a day, for five days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *2, *7; see also 20 C.F.R. §§ 404.1545(a)(4), (b), 416.945(a)(4), (b).

The ALJ must include a narrative discussion of the restrictions in the RFC assessment that cites specific medical facts, such as medical signs and laboratory evidence, and non-medical evidence, including ADLs and observations, and “explain[s] how any material inconsistencies or ambiguities in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7. “The RFC assessment must include a discussion of why symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id.

SSR 19-2p guides ALJs in evaluating cases involving obesity. The SSR provides that “[o]besity in combination with another impairment(s) may or may not increase the severity or functional limitations of the other impairment(s).” Id. SSR 19-2p, 2019 WL 2374244, at *2. In assessing the RFC of a claimant with a severe impairment of obesity, the ALJ must consider “the effect obesity has upon the person's ability to perform routine movement and necessary physical activity within the work environment.” Id. at *4.

The ALJ found Plaintiff had the RFC to perform a reduced range of light work involving “standing and walking no more than four hours in an eight-hour day” and [s]itting for six hours in an eight-hour workday.” Tr. at 32. He imposed postural restrictions for no kneeling, crouching, crawling, or climbing of ladders, ropes, or scaffolds and only occasional balancing, stooping, and climbing of ramps and stairs. Id. He also included environmental and reasoning restrictions. Id. He conceded that Plaintiff “exhibit[ed] some ongoing functional limitations,” but felt she was “able to perform certain tasks with appropriate treatment and medication management.” Tr. at 34.

The ALJ considered persuasive the state agency medical consultants' opinions that Plaintiff could perform light work, Tr. at 34. He incorporated the restrictions the state agency medical consultants indicated in their RFC assessments as to lifting and carrying, sitting, balancing, stooping, and climbing ramps and stairs, but found Plaintiff was further limited in that he could engage in standing and walking for four, as opposed to six hours, in an eight hour workday and could do no kneeling, crouching, crawling, or climbing of ladders, ropes, or scaffolds, as opposed to engaging in those activities on an occasional basis. Compare Tr. at 32, with Tr. at 90-92, 98-100. In addition to the state agency consultants' opinions, the ALJ pointed to mild findings on x-rays of Plaintiff's lumbar spine, Dr. Nguyen's observations during the consultative exam, and the evidence discussed above as supporting the RFC assessment. Tr. at 33-34.

Plaintiff argues the ALJ failed to address Dr. Nguyen's assessment that she could not perform a tandem gait and that such evidence was contrary to his finding she could engage in standing and walking for four hours in an eight-hour day. [ECF No. 12 at 15]. The undersigned appreciates that “[a]n ALJ has the obligation to consider all relevant evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding,” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). However, that is not what occurred here. The ALJ noted positive and negative findings that included “signs of tenderness throughout the thoracolumbar spine,” “no signs of swelling,” “some limitation during a straight leg raise assessment,” no use of an assistive device, inability to perform a full squat, and Plaintiff's abilities to ambulate independently, step on and off a scale, and get on and off an exam table.” Tr. at 33, 34.

Although the ALJ did not reference every one of Dr. Nguyen's findings, he was not required to do so. The ALJ specifically noted he had “considered the evidence of record in its entirety even if not specifically mentioned in this decision,” Tr. at 27, and stated he had considered Dr. Nguyen's findings and discussed them throughout the determination, Tr. at 34. The Fourth Circuit has directed district courts to accept an ALJ's statement that he has considered the whole record, “absent evidence to the contrary.” Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (“[O]ur general practice, which we see no reason to depart from here, is to take a lower tribunal at its word when it declares that it has considered a matter.”)). “While the Commissioner's decision must ‘contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based,' 42 U.S.C. § 405(b)(1), ‘there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.'” Id. (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam”).

The ALJ addressed Plaintiff's ability to engage in work-related activities on a regular and continuing basis. Tr. at 33. He wrote: “the claimant has not experienced persistent issues related to her physical [impairments], which severely affect her capacity to perform work activities for a continuous period.” Tr. at 34.

The ALJ noted “to the extent that the claimant's weight has affected her ability to perform certain work functions,” he “ha[d] considered those limitations when determining her residual functional capacity.” Tr. at 31-32. He stated her BMI higher than 60 served as “evidence of her severe obesity.” Tr at 33. He wrote: “Yet, although she is obese, the evidence fails to establish significant limitations associated with her weight, and no evidence of aggressive treatment such as gastric bypass or bariatric surgery suggested by a medical provider.” Tr. at 34.

The ALJs conclusions as to the effects of obesity on Plaintiff's other impairments and her RFC are supported by the record. Although NP Seal's records reflect several impairments that are associated with obesity, they do not suggest these impairments are complicated or impose functional limitations. See generally Tr. at 393-403, 415-40, 444-53 (reflecting diagnoses of prediabetes with normal or mildly elevated blood glucose on multiple exams, controlled hypertension, uncomplicated asthma, and unspecified polyneuropathy without use of medications). NP Seal's records also fail to document any suggestion for surgical treatment, as she repeatedly encouraged Plaintiff to focus on behavioral modification to prevent overeating. See Tr. at 416, 422, 445, 450.

NP Seal assessed OSA, but specifically noted Plaintiff had not undergone a sleep study. See Tr. at 445, 450. A diagnosis alone does not establish a medically-determinable impairment. See 20 C.F.R. §§ 404.1521, 416.921 (providing a medically-determinable impairment “must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques” and “must be established by objective medical evidence from an acceptable medical source”).

Although the ALJ could have provided a more thorough explanation for finding Plaintiff could perform light work with walking limited to four hours in an eight-hour workday, the narrative discussion generally reflects his weighing of Plaintiff's statements, the objective evidence, and the medical opinions in reaching this conclusion. Therefore, the undersigned recommends the court find the ALJ's RFC assessment to be supported by substantial evidence.

In the alternative, the undersigned recommends the court find harmless any error in the ALJ's RFC analysis. “While the general rule is that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained, reversal is not required where the alleged error clearly had no bearing on the procedure used or the substance of the decision reached.” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004). Errors are usually regarded as harmless where the ALJ conducted the proper analysis, cited substantial evidence to support his finding, and “would have reached the same conclusion notwithstanding [his] initial error.” Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994).

Errors in assessing a claimant's RFC are rarely harmless because they usually lead to errors at steps four and five. See Patterson v. Commissioner of Social Security Administration, 846 F.3d 656, 658 (4th Cir. 2017) (stating “we hesitate to declare the error here harmless because it implicates the validity of so many of the ALJs conclusions”). However, this case presents the rare scenario where any error in assessing Plaintiff's ability to stand during an eight-hour day did not lead to error in subsequent steps.

Plaintiff challenges the ALJ's assessment of her standing and walking ability in the RFC assessment. She testified she was capable of lifting 20 pounds, Tr. at 62, consistent with maximum lifting and carrying required in light work. She does not contest the ALJ's finding that she could meet the lifting requirements of light work or the postural, environmental, and mental restrictions he included in the RFC assessment. As discussed above, the ALJ thoroughly explained his conclusion that Plaintiff could perform work on a regular and continuing basis.

It is not clear from Plaintiff's brief or her testimony exactly how long she alleges she could stand and walk in an eight-hour workday. Her testimony was somewhat inconsistent, as she stated she could stand for only a couple of minutes to wash dishes, but later indicated she spent two to three hours per day performing household chores and could spend less than half the day on her feet. Tr. at 74-75. As the Commissioner notes, the latter statement is generally consistent with the RFC assessment.

Nevertheless, if we are to interpret Plaintiff's argument to be that she is incapable of standing for four hours in an eight-hour workday, the result is the same. Relying on the VE's testimony, the ALJ concluded at step four that Plaintiff could not perform her PRW. Tr. at 34-35. The VE testified the three alternative jobs he identified and the ALJ relied on at step five could be performed sitting or standing. Tr. at 36, 80. Therefore, if the ALJ had included greater standing and walking restrictions in the RFC assessment, Plaintiff would still be able to perform the jobs the ALJ relied on to support the step five finding that she was not disabled.

Because the ALJ conducted the proper analysis, cited substantial evidence to support his step five finding, and would have reached the same result even if he had found Plaintiff's standing and walking limited to the extent she alleged, the undersigned recommends the court find substantial evidence supports his decision.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).