United States District Court, S.D. West Virginia, Charleston Division
November 3, 2016
ALICE R. CASTO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert, United States Magistrate Judge
action seeks a review of the decision of the Commissioner of
the Social Security Administration
(“Commissioner”) denying Plaintiff's
application for a period of disability and disability
insurance benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §§ 401-433. The
matter is assigned to the Honorable Thomas E. Johnston,
United States District Judge, and was referred to the
undersigned United States Magistrate Judge by standing order
for submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). Presently pending before the Court are the
parties' briefs wherein they both request judgment in
their favor. (ECF Nos. 14, 15).
fully considered the record and the arguments of the parties,
the undersigned United States Magistrate Judge respectfully
RECOMMENDS that the presiding District Judge
DENY Plaintiff's request for judgment on
the pleadings, (ECF No. 14); GRANT
Defendant's request to affirm the decision of the
Commissioner, (ECF No. 15); and DISMISS this
action from the docket of the Court.
February 8, 2011, Plaintiff Alice R. Casto
(“Claimant”) protectively filed an application
for DIB, alleging a disability onset date of December 1, 2010
due to multiple endocrine neoplasia, osteopenia,
hypercalcemia, GERD, depression, diabetes, blood clots, and
varicose veins. (Tr. at 251-58, 325). The Social Security
Administration (“SSA”) denied Claimant's
application initially and upon reconsideration. (Tr. at
126-36, 138-44). Claimant subsequently filed a request for an
administrative hearing. (Tr. at 145-46). An initial hearing
was held on July 13, 2012 before the Honorable James P.
Toschi, Administrative Law Judge (“ALJ Toschi”).
(Tr. at 69-96). ALJ Toschi issued a decision determining that
Claimant was not disabled as defined in the Social Security
Act. (Tr. at 14). However, the Appeals Council remanded the
case for further consideration due to the fact that ALJ
Toschi's decision was based upon a date last insured of
December 31, 2010, rather than the correct date of December
31, 2011. (Id.). Therefore, a second administrative
hearing was held on April 29, 2014 before the Honorable H.
Munday, Administrative Law Judge (“the ALJ”).
(Tr. at 33-68). By written decision dated June 6, 2014, the
ALJ likewise found that Claimant was not disabled as defined
in the Social Security Act. (Tr. at 11-32). The ALJ's
decision became the final decision of the Commissioner on
September 14, 2015, when the Appeals Council denied
Claimant's request for review. (Tr. at 1-7).
timely filed the present civil action seeking judicial review
pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The
Commissioner subsequently filed an Answer opposing
Claimant's complaint and a Transcript of the
Administrative Proceedings. (ECF Nos. 7, 8). Thereafter,
Claimant filed a Brief in Support of Judgment on the
Pleadings, (ECF No. 14), and the Commissioner filed a Brief
in Support of Defendant's Decision, (ECF No. 15), to
which Claimant filed a reply. (ECF No. 16). Consequently, the
matter is fully briefed and ready for resolution.
was 54 years old on her alleged disability onset date and 55
years old on her date last insured. (Tr. at 251). She
communicates in English and completed one year of college, as
well as obtained a cosmetology degree. (Tr. at 324, 326).
Claimant previously worked as a master instructor at a beauty
school. (Tr. at 326).
Summary of the ALJ's Decision
42 U.S.C. § 423(d)(5), a claimant seeking disability
benefits has the burden of proving a disability. See
Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir.
1972). A disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable impairment which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
Social Security Regulations establish a five-step sequential
evaluation process for the adjudication of disability claims.
If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and
benefits are denied. 20 C.F.R. § 404.1520. The first
step in the sequence is determining whether a claimant is
currently engaged in substantial gainful employment.
Id. § 404.1520(b). If the claimant is not, then
the second step requires a determination of whether the
claimant suffers from a severe impairment. Id.
§ 404.1520(c). If severe impairment is present, the
third inquiry is whether this impairment meets or equals any
of the impairments listed in Appendix 1 to Subpart P of the
Administrative Regulations No. 4 (the “Listing”).
Id. § 404.1520(d). If the impairment does, then
the claimant is found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must determine the claimant's residual
functional capacity (“RFC”), which is the measure
of the claimant's ability to engage in substantial
gainful activity despite the limitations of his or her
impairments. Id. § 404.1520(e). After making
this determination, the fourth step is to ascertain whether
the claimant's impairments prevent the performance of
past relevant work. Id. § 404.1520(f). If the
impairments do prevent the performance of past relevant work,
then the claimant has established a prima facie case
of disability, and the burden shifts to the Commissioner to
demonstrate, as the fifth and final step in the process, that
the claimant is able to perform other forms of substantial
gainful activity, when considering the claimant's
remaining physical and mental capacities, age, education, and
prior work experiences. 20 C.F.R. § 404.1520(g); see
also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983). The Commissioner must establish two things: (1) that
the claimant, considering his or her age, education, skills,
work experience, and physical shortcomings has the capacity
to perform an alternative job, and (2) that this specific job
exists in significant numbers in the national economy.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir.
claimant alleges a mental impairment, the SSA “must
follow a special technique at every level in the
administrative review, ” including the review performed
by the ALJ. 20 C.F.R. § 404.1520a. First, the ALJ
evaluates the claimant's pertinent signs, symptoms, and
laboratory results to determine whether the claimant has a
medically determinable mental impairment. Id. §
404.1520a(b). If such impairment exists, the ALJ documents
his findings. Second, the ALJ rates and documents the degree
of functional limitation resulting from the impairment
according to criteria specified in 20 C.F.R. §
404.1520a(c). Third, after rating the degree of functional
limitation from the claimant's impairment(s), the ALJ
determines the severity of the limitation. A rating of
“none” or “mild” in the first three
functional areas (activities of daily living, social
functioning, and concentration, persistence or pace) and
“none” in the fourth (episodes of decompensation)
will result in a finding that the impairment is not severe
unless the evidence indicates that there is more than minimal
limitation in the claimant's ability to do basic work
activities. Id. § 404.1520a(d)(1). Fourth, if
the claimant's impairment is deemed severe, the ALJ
compares the medical findings about the severe impairment and
the rating and degree and functional limitation to the
criteria of the appropriate listed mental disorder to
determine if the severe impairment meets or is equal to a
listed mental disorder. Id. § 404.1520a(d)(2).
Finally, if the ALJ finds that the claimant has a severe
mental impairment, which neither meets nor equals a listed
mental disorder, the ALJ assesses the claimant's residual
function. Id. § 404.1520a(d)(3).
the ALJ determined as a preliminary matter that Claimant met
the insured status requirements for disability insurance
benefits through December 31, 2011. (Tr. at 16, Finding No.
1). At the first step of the sequential evaluation, the ALJ
confirmed that Claimant had not engaged in substantial
gainful activity since December 1, 2010, her alleged
disability onset date. (Id., Finding No. 2). At the
second step of the evaluation, the ALJ found that Claimant
had the following severe impairments: “multiple
endocrine neoplasia type 1 (MEN-1), history of deep vein
thrombosis (DVT), and mild lumbar facet arthropathy.”
(Tr. at 16-18, Finding No. 3). The ALJ considered and found
non-severe Claimant's diabetes mellitus, varicose veins,
osteopenia, chronic obstructive pulmonary disease
(“COPD”), major depressive disorder,
post-traumatic stress disorder (“PTSD”), and
bipolar disorder. (Tr. at 17).
the third inquiry, the ALJ found that Claimant did not have
an impairment or combination of impairments that met or
medically equaled any of the impairments contained in the
Listing. (Tr. at 18-19, Finding No. 4). Accordingly, the ALJ
determined that Claimant possessed:
[T]he residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except she could perform
occasional balancing, stooping, crouching and climbing of
ramps and stairs, but never kneel, never crawl, and never
climb ladders, ropes, or scaffolds. She could have no
exposure to hazardous conditions including unprotected
heights and moving machinery.
(Tr. at 19-25, Finding No. 5). At the fourth step, the ALJ
found that through the date last insured, Claimant was
capable of performing her past relevant work as a
“master instructor/technical instructor/administrative
assistant.” (Tr. at 25-26, Finding No. 6). Therefore,
the ALJ found that Claimant was not disabled as defined in
the Social Security Act and was not entitled to benefits.
(Tr. at 27, Finding No. 7).
Claimant's Challenges to the Commissioner's
raises two challenges to the Commissioner's decision.
First, Claimant contends that the ALJ's assessment of
Claimant's credibility is insufficient under SSR
96-7p and 20 C.F.R. § 404.1529 because the
ALJ does not provide reasons for her credibility findings
that are sufficiently specific to make clear the weight that
the ALJ gave to Claimant's statements and the reasons for
that weight. (ECF No. 14 at 13). On this point, Claimant
argues that the ALJ's credibility assessment contains
boilerplate language without any actual analysis of
Claimant's allegations and testimony. (ECF No. 16 at 3).
second challenge, Claimant asserts that the ALJ's step
two finding that Claimant's mental impairments were
non-severe was not based on substantial evidence as
Claimant's records showed more than de minimis
mental impairments that impacted her work activities. (ECF
No. 14 at 14). Claimant contends that the ALJ failed to
discuss or consider any of the psychologists' opinions.
(Id.). Further, Claimant argues that the ALJ
“cherry pick[ed]” information from the report of
consultative psychologist, Cynthia Spaulding, M.A., contrary
to Ms. Spaulding's overall findings and the other record
evidence, including the psychological opinions and
Claimant's statements. (Id. at 15). In addition,
Claimant argues that to the extent that the ALJ relied on the
opinions of the non-examining state agency psychologists, her
reliance was misplaced because neither psychologist had the
benefit of reviewing Ms. Spaulding's report and the
agency consultants were operating under the assumption that
Claimant's date last insured was December 31, 2010, not
December 31, 2011. (ECF No. 16 at 3).
response to Claimant's challenges, the Commissioner
maintains that Claimant has not proven that she is disabled
under the Act. (ECF No. 15 at 13). Regarding the credibility
assessment, the Commissioner argues that the ALJ specifically
stated that she considered the factors enumerated in 20
C.F.R. § 404.1529(c) and SSR 96-7p, and she was not
required to specifically discuss each factor. (ECF No. 15 at
16-17). Moreover, the Commissioner argues that the ALJ's
decision demonstrates sufficient development of the record
and explanation of findings to permit meaningful review.
(Id. at 17). Lastly, the Commissioner argues that
the ALJ's credibility determination is supported by
substantial evidence, pointing to the ALJ's analysis of
Claimant's lack of mental health treatment, her daily
activities, and the opinion evidence. (Id. at
the ALJ's finding that Claimant's mental impairments
were non-severe, the Commissioner identifies the fact that
the ALJ applied the special technique outlined in 20 C.F.R.
§ 404.1520a and determined that Claimant had only
“mild” restrictions in the first three functional
areas and “none” in the fourth areas; thus, the
Commissioner argues that the ALJ permissibly determined that
Claimant does not have a severe mental impairment.
(Id. at 13-14). The Commissioner also asserts that
the ALJ's determination is supported by the opinions of
the non-examining state agency psychologists. (Id.
at 15). The Commissioner argues that Claimant's reliance
on Ms. Spaulding's opinion and Claimant's own
statements is unconvincing as the ALJ explained that Ms.
Spaulding's opinion was inconsistent with the other
evidence and Claimant's statements were not credible.
(Id. at 15-16). Overall, the Commissioner argues
that Claimant is asking the court to re-weigh the evidence,
which is improper. (Id. at 16).
Relevant Medical History
undersigned has reviewed all of the evidence before the
Court. The medical records and opinion evidence most relevant
to this PF & R are summarized as follows.
August 9, 2010, Claimant presented to the office of her
primary care provider, Richard E. Cain, M.D., for a regular
follow-up appointment. (Tr. at 464-65). She reported
generally doing well, although she was having some
gastrointestinal symptoms. (Tr. at 464). She continued to
have low back pain, but her radicular left leg pain was
better. Claimant had no psychiatric symptoms. Dr. Cain
assessed Claimant with stable hyperlipidemia, low back pain,
MEN-1 syndrome, and reflux symptoms. Dr. Cain scheduled
Claimant for an endoscopy, ordered blood work and a CT scan
to check the MEN-1 syndrome, and provided her with stretching
exercises for her back. (Id.). A CT scan of
Claimant's abdomen and pelvis taken later in August
showed multiple non-obstructing kidney stones, a benign cyst
of the kidney, cholelithiasis, and diffuse fatty infiltration
of the liver. (Tr. at 454). Claimant also underwent a
colonoscopy and esophagogastroduodenoscopy on October 13,
2010, which revealed internal hemorrhoids and a rectal polyp,
but were otherwise unremarkable. (Tr. at 442).
returned for a regularly scheduled visit with Dr. Cain on
October 26, 2010. (Tr. at 462-63). Once again, Claimant
reported doing well, although she was experiencing increased
stress due to family health concerns. (Tr. at 462).
Nonetheless, Dr. Cain felt that Claimant was psychologically
stable. He assessed her with hyperlipidemia, stable reflux,
stable MEN-1, and vitamin D deficiency. For Claimant's
insomnia and stress, Dr. Cain decided to keep Claimant on
Citalopram (brand name- Celexa). (Id.). She was
instructed to return in two to three months.
February 22, 2011, Claimant saw Dr. Cain for regular
follow-up. (Tr. at 460). She was doing “o.k.” in
general, but reported hurting all over, including joint and
muscle pains, and experiencing trouble at work and having to
cut back on her hours. (Id.). She was stable
psychologically and her review of systems and physical
examination were normal. (Id.). Dr. Cain questioned
if Claimant's hyperlipidemia medications were causing her
muscle soreness. (Id.). Claimant was also assessed
to have stable reflux, an unspecified syndrome relating to
her abdomen and pelvis, myalgias, vitamin D deficiency, and
low back pain. (Id.). Claimant was given
prescriptions for Vicodin and Robaxin to try for her low back
pain. (Id.). Dr. Cain planned to see Claimant again
in two to three months. (Id.).
April 12, 2011, Claimant saw Dr. Cain for right ear pain and
flu-like symptoms. (Tr. at 459). Her review of systems was
otherwise stable, but she stated that she still had some
right-sided abdominal and flank pain. (Id.). She was
diagnosed with otitis and an upper respiratory infection.
(Id.). Claimant was noted to be stable
psychologically, but was given a referral to “Dr. Kathy
Karr for depression.” (Id.).
April 16, 2011, Claimant pursued testing ordered by Dr. Cain
relating to her complaints of headaches and left-sided
abdominal pain and a history of kidney stones. A MRI of
Claimant's brain was unremarkable. (Tr. at 432). A CT
scan of her abdomen and pelvis showed chronic scarring and
non-obstructing calcification in the inferior pole of the
left kidney, a 4.2 cm right renal cyst without significant
change, cholelithiasis without evidence of cholecystitis, and
fatty infiltration of the liver. (Tr. at 433).
April 27, 2011, Claimant had another regular follow-up
appointment with Dr. Cain. (Tr. at 458). She reported that
her left flank pain was gone, but she still had some
left-sided pain anteriorly under the ribs, which was not meal
related. (Id.). She also reported increasing stress
and irritability. (Id.). The review of her systems
and physical examination were normal. (Id.). Her
hyperlipidemia, esophageal reflux, palpitations, and MEN-2
syndrome were noted to be stable. (Id.).
Her low back pain was improved, although she reported that
she still had some symptoms and pain when sitting; she was
instructed to continue performing stretching exercises.
(Id.). Regarding her left flank pain, the CT scan
showed a non-infected kidney; therefore, Dr. Cain planned to
continue to monitor the issue. As far as her depressive
disorder, Claimant reported mood swings and irritability, but
no suicidal or homicidal thoughts. (Id.). Dr. Cain
increased her dose of Citalopram from 20 mg to 40 mg and
stated that he would schedule her to see a counselor.
(Id.). Dr. Cain also noted that Claimant reported
that her friends were concerned that she was bipolar, but he
did not think she had the typical symptoms of that condition
and would monitor it. (Id.). Overall, Dr. Cain
planned to see Claimant in a month unless she had problems
prior to her next appointment. (Id.).
23, 2011, Claimant saw Dr. Cain for follow-up. (Tr. at 531).
She still had left flank pain, but was feeling much better.
(Id.). Her osteoarthritis and MEN-1 syndrome were
stable. (Id.). She also had some asthma and allergy
symptoms that were improved with Singular. (Id.).
Dr. Cain planned to see Claimant again in four months.
November 7, 2011, Claimant presented to Dr. Cain after
noticing a lump on her right axilla. (Tr. at 528). She
reported “working up a deer” the day prior.
(Id.). She stated that her right flank pain was
still present and severe at times, but she otherwise had
stable arthritic symptoms. (Id.). Dr. Cain's
impression was that Claimant suffered from hyperlipidemia for
which she was to get follow-up blood work; a new right
shoulder soft tissue mass, which could possibly be a cyst or
muscle irritation for which she was to get an ultrasound; and
right flank pain. (Id.).
November 12, 2011, Claimant presented for an ultrasound of
the palpable mass in her right shoulder. (Tr. at 515). The
ultrasound showed a nonvascular well-circumscribed mass that
was most likely a lipoma. (Id.). Regarding
Claimant's complaint of abdominal pain, an ultrasound
showed cholelithiasis without evidence of cholecystitis, a
5.4 cm simple right renal cyst that had increased in size,
and diffuse fatty infiltration of the liver. (Tr. at 516-17).
November 22, 2011, Claimant followed up with Dr. Cain. (Tr.
at 527). She reported that she was doing “about the
same;” she still had left flank pain and some reflux
symptoms. (Id.). The lipoma on her right shoulder
was improved and not causing pain at the time of her
appointment. (Id.). Claimant still had headaches,
which she attributed to sinus issues and stress.
(Id.). Her right renal cyst was larger, but not
causing pain. (Id.). Her asthma was improved with
Singular. (Id.). Dr. Cain documented that
Claimant's left flank pain was of undetermined etiology,
as her ultrasound and CT scan were normal; he questioned if
it was musculoskeletal. (Id.). Finally, Dr. Cain
noted that he would continue to monitor Claimant's MEN-1
syndrome. (Id.). Dr. Cain planned to see Claimant
again in two to three months. (Id.).
Evaluation and Opinion Evidence
March 16, 2011, Fulvio Franyutti, M.D., completed a physical
RFC form. (Tr. at 397-404). Dr. Franyutti opined that
Claimant was capable of light work with additional postural
and environmental limitations (Tr. at 398-99, 401). He found
Claimant to be partially credible, noting that as far as
activities of daily living, Claimant reported being unable to
move without pain, unable to do housework due to pain, had
problems with all areas of abilities, and could not walk far
without stopping to rest. (Tr. at 404). However, Claimant
also had no problems with personal care, prepared small
meals, drove, went out alone, and shopped in stores.
same date, Philip E. Comer, Ph.D., completed a Psychiatric
Review Technique form. (Tr. at 414-27). Dr. Comer concluded that
Claimant had non-severe depression related to a general
medical condition. (Tr. at 414, 417). He rated her with only
mild restriction in activities of daily living; maintaining
social functioning; and maintaining concentration,
persistence, or pace. (Tr. at 424). Further, Claimant had no
episodes of decompensation of extended duration and no
evidence of “paragraph C” criteria. (Tr. at
Comer noted that Dr. Cain's records reflected a past
history of depression, but no current diagnosis or treatment
for depression. (Tr. at 426). As far as activities of daily
living, Dr. Comer stated that Claimant reported sleeping a
lot and not being able to do housework due to pain, as well
as having no hobbies, trouble getting along with others,
problems in all areas of abilities, a history of being fired
for “cussing people out, ” and fearing death.
(Id.). However, as noted by Dr. Franyutti, Claimant
also had no problems with personal care, prepared small
meals, drove, went out alone, shopped once a week, and spent
time with her family. (Id.). Dr. Comer concluded
that Claimant's statements were reasonably consistent
with the other evidence in her file and were credible from
her perspective; however, Dr. Comer stated that Claimant
appeared to have the mental/emotional capacity for work-like
activity in a work environment that could accommodate her
physical limitations. (Id.).
April 13, 2011, Jeff Boggess, Ph.D., reviewed the relevant
evidence and affirmed Dr. Comer's psychiatric assessment.
(Tr. at 428). Dr. Boggess did not review any evidence in
addition to the file that Dr. Comer reviewed. (Id.).
On the same date, Caroline Williams, M.D., affirmed Dr.
Franyutti's prior assessment, noting that there was no
new medical evidence in the file; Claimant alleged no change
in conditions; no new illnesses, injuries, or limitations;
and no change in pain medications. (Tr. at 430).
1, 2011, licensed psychologist Cynthia Spaulding, M.A.,
performed a consultative evaluation of Claimant. (Tr. at
478-87). Claimant complained of excessive sleeping; apathy;
mood changes; short term memory issues; and flashbacks about
childhood trauma. (Tr. at 478). She also reported that all of
her family members suffer from MEN-1 like her and she watched
her mother, brother, and nephew suffer before their death.
(Id.). She was observed to cry while explaining the
family history regarding MEN-1, and she also expressed guilt
for passing the illness to her children, although her mother
was the first person diagnosed with the disorder.
(Id.). Ms. Spaulding documented that Claimant had
not received any mental health treatment, noting that Dr.
Cain referred Claimant for mental health treatment, but the
clinician did not accept her insurance. (Tr. at 479).
reported to Ms. Spaulding that she had been diagnosed with
MEN-1 fifteen years earlier and stated that she suffered from
low calcium which affected her short term memory, frequent
headaches lasting for days at a time, and back pain.
(Id.). Claimant reported working primarily as a
cosmetologist at a beauty school, but stated that she
currently only performed filing at that job because she could
not remember how to cut hair. (Tr. at 480). Claimant's
full scale IQ was assessed to be 88 on the Wechsler Adult
Intelligence Scale for Adults - Fourth Addition
(“WAIS-IV”) and the results were deemed to be
valid. (Tr. at 480-81). Claimant was oriented, alert, and she
exhibited normal affect, eye contact, and speech, but her
mood was noted as depressed. (Tr. at 482). Her immediate and
remote memory were within normal limits, but her recent
memory was severely impaired as evidenced by her ability to
recall 1 out of 4 previously presented words after 5 minutes.
(Id.). Her judgment and persistence were normal, but
her attention and concentration were moderately impaired
based on her score of 6 on the Digit Span Subtest of the
WAIS-IV. (Id.). Claimant displayed appropriate
social skills and eye contact, but she was very emotional
during the assessment. (Id.). She reported working
20 hours per week, although she set her own hours depending
on how she was feeling and sometimes could not work at all.
(Id.). She stated that she recently attended a baby
shower; however, she reported that she did not participate in
social activities during the winter and was no longer
attending religious services. (Id.).
a typical day, Claimant stated that she drank water,
showered, made the bed, cooked for her husband, did laundry,
cleaned, and took care of her dogs and birds. (Id.).
She also reported sleeping 12 to 14 hours per day.
(Id.). Ms. Spaulding diagnosed Claimant with
recurrent, severe major depressive disorder without psychotic
features and secondary PTSD. (Id.). The diagnosis of
depression was based upon the fact that Claimant was crying
during the evaluation and the fact that she reported
excessive sleeping, irritability, hopelessness, guilt,
withdrawal, and intermittent suicidal ideations. (Tr. at
483). The diagnosis of PTSD was based on Claimant's
history of traumas and her current symptoms of flashbacks,
affective instability, hyper vigilant behavior, and
Ms. Spaulding opined that Claimant had no restriction in
understanding and remembering simple instructions, but mild
restriction in carrying out simple instructions and making
judgments on simple work-related decisions. (Tr. at 484).
Claimant was moderately limited in understanding and
remembering complex instructions and markedly limited in
carrying out complex instructions and making decisions on
complex work-related instructions. (Id.). In
support, Ms. Spaulding stated that Claimant had mood
disturbances and post-traumatic stress, which affected her
memory and judgment. (Id.). Further, Claimant had
mild restriction in interacting appropriately with the
public, supervisors, and co-workers, and was moderately
impaired in responding to usual work situations and changes
in routine work settings. (Tr. at 485). On these points, Ms.
Spaulding noted that Claimant's major depressive disorder
and PTSD affected her ability to interact with others and her
emotions quickly changed from one minute to the next.
7, 2011, Claimant was evaluated by Sushil M. Sethi, M.D.,
M.P.H., F.A.C.S. for the West Virginia Disability
Determination Service. (Tr. at 488-99). Claimant reported
that her MEN-1 syndrome was well stabilized, although she had
periodic stomach upset and diarrhea; she had no changes in
weight, blood transfusions, or inpatient treatment due to the
condition. (Tr. at 488). Her diabetes was well-controlled
without medication, her varicose veins were stable, and she
had no recurrence of blood clots. (Tr. at 488-89). Dr. Sethi
stated that Claimant's osteopenia was probably related to
menopause and was treated with calcium and vitamins. (Tr. at
depression, Claimant reported to Dr. Sethi that she suffered
from the condition most of her life, but it “came to
the surface” when her mother died 15 years prior.
(Id.). Her depression was “pretty well
stabilized” and she was not currently receiving any
counseling or treatment; her family doctor periodically gave
her medications for depression. (Id.). Claimant
reported working 40 hours a month. (Id.). On
physical examination, Claimant's review of systems was
normal. (Id.). She had no edema or cyanosis in her
lower extremities and no inflammation. (Id.). Her
gait was normal and her straight leg raising test was 80
degrees on both sides. (Tr. at 490). She had moderate
tenderness in her lumbar spine. (Id.). Dr.
Sethi's impression was that Claimant had MEN, a history
of parathyroidectomy, osteoporosis, hypercalcemia, gastric
reflux, situational depression, and diet-controlled diabetes
without medication or complications. (Id.). Her
ability to work at physical activities was moderately
limited, but her ability to hear, speak, and travel were
Sethi opined that Claimant could continuously lift up to 20
pounds and carry up to 10 pounds, frequently lift up to 50
pounds and carry up to 20 pounds, and occasionally lift up to
100 pounds and carry up to 50 pounds. (Tr. at 493). She could
sit for 6 hours in an 8-hour workday and stand and/or walk
for 4 hours; however, she could only sit for 4 hours and
stand and/or walk for 3 hours at one time without
interruption. (Tr. at 494). She could frequently use both
hands and feet, meaning up to two-thirds of the day. (Tr. at
495). She could frequently perform all postural activities
and frequently tolerate environmental conditions. (Tr. at
Claimant's first administrative hearing on July 13, 2012,
Judith Brendemuehl, M.D., testified regarding Claimant's
physical impairments. Dr. Brendemuehl testified that Claimant
had MEN-1 diagnosed through genetic testing, although
Claimant was asymptomatic. (Tr. at 74-75). Claimant had three
parathyroids removed on December 17, 2002, well before the
alleged onset of disability, and all testing was normal since
then and her disease remained inactive. (Tr. at 75-76).
Claimant had DVT, which was resolved in her right leg and
resolving in her left leg. (Tr. at 76). Claimant could
perform light work with postural and environmental
limitations. (Tr. at 77-79).
C. David Blair, Ph.D., also testified during the hearing. Dr.
Blair stated that Claimant had no psychiatric treatment other
than treatment with Celexa by Dr. Cain. (Tr. at 79). Dr.
Blair noted that Claimant complained of flashbacks during her
consultative exam with Ms. Spaulding, but that complaint did
not appear anywhere else in the record. (Tr. at 79). Dr.
Blair questioned Claimant's statement that she could not
remember how to cut hair because that would involve her long
term memory and something very severe would have to happen to
interfere with that type of memory. (Tr. at 80). Dr. Blair
noted that the tests which Ms. Spaulding performed,
especially those involving arithmetic, required a lot of
memory; Claimant received average arithmetic and coding
scores and a high average symbol search score, so her
performance indicated that her short term memory was
“working okay.” (Tr. at 80). Dr. Blair did not
feel that Ms. Spaulding provided enough information to show
that Claimant's test results were valid. (Tr. at 81). He
also disagreed that Claimant's attention and
concentration were moderately impaired, and disagreed that
Claimant had PTSD. (Tr. at 82-83). Dr. Blair found no
indication of functional operational memory problems or any
mental limitations. (Tr. at 83-85). Dr. Blair concluded that
the record did not support a diagnosis of mental issues other
than possible dysphoria and adjustment issues relating to
Claimant's physical condition. (Tr. at 84).
16, 2012, Claimant's husband, Stephan L. Casto, wrote a
letter to Claimant's non-attorney representative. (Tr. at
371). In that letter, Mr. Casto stated that he had been
present when Claimant vomits profusely when her “acid
medicine is out of adjustment” and “when she
spends days on the couch complaining that ‘her bones
hurt.'” (Id.). He further stated that
Claimant was in constant pain, which was managed most of the
time with drugs, and that she also had memory loss.
Scope of Review
issue before the Court is whether the final decision of the
Commissioner is based upon an appropriate application of the
law and is supported by substantial evidence. See Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In
Blalock v. Richardson, the Fourth Circuit Court of
Appeals defined “substantial evidence” to be:
[E]vidence which a reasoning mind would accept as sufficient
to support a particular conclusion. It consists of more than
a mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
“substantial evidence.” 483 F.2d 773, 776 (4th
Cir. 1973) (quoting Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966)). When examining the
Commissioner's decision, the Court does not conduct a
de novo review of the evidence to ascertain whether
the claimant is disabled. Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (citing Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)). Instead, the
Court's role is limited to insuring that the ALJ followed
applicable Regulations and Rulings in reaching his decision,
and that the decision is supported by substantial evidence.
Hays, 907 F.2d at 1456. If substantial evidence
exists, the Court must affirm the Commissioner's decision
“even should the court disagree with such
decision.” Blalock, 483 F.2d at 775.
The ALJ's Credibility Analysis
contends that the ALJ's decision does not provide
specific reasons for the ALJ's assessment of
Claimant's credibility. (ECF No. 14 at 13). She argues
that the decision contains boilerplate language without any
actual analysis of Claimant's allegations and testimony.
(ECF No. 16 at 3). The undersigned disagrees with
Claimant's contention for the following reasons.
to 20 C.F.R. § 404.1529, the ALJ evaluates a
claimant's report of symptoms using a two-step method.
First, the ALJ must determine whether the claimant's
medically determinable medical and psychological conditions
could reasonably be expected to produce the claimant's
symptoms, including pain. 20 C.F.R. § 404.1529(a). In
other words, “an individual's statements of
symptoms alone are not enough to establish the existence of a
physical or mental impairment or disability.” Social
Security Ruling (“SSR”) 16-3p, 2016 WL 1119029,
at *2 (effective March 16, 2016). Instead, there must exist
some objective “[m]edical signs and laboratory
findings, established by medically acceptable clinical or
laboratory diagnostic techniques” which demonstrate
“the existence of a medical impairment(s) which results
from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to
produce the pain or other symptoms alleged.” 20 C.F.R.
after establishing that the claimant's conditions could
be expected to produce the alleged symptoms, the ALJ must
evaluate the intensity, persistence, and severity of the
symptoms to determine the extent to which they prevent the
claimant from performing basic work activities. Id.
§ 404.1529(a). If the intensity, persistence, or
severity of the symptoms cannot be established by objective
medical evidence, the ALJ must consider “other evidence
in the record in reaching a conclusion about the intensity,
persistence, and limiting effects of an individual's
symptoms, ” including a claimant's own statements.
SSR 16-3p, 2016 WL 1119029, at *5-*6. In evaluating a
claimant's statements regarding his or her symptoms, the
ALJ will consider “all of the relevant evidence,
” including (1) the claimant's medical history,
signs and laboratory findings, and statements from the
claimant, treating sources, and non-treating sources, 20
C.F.R. § 404.1529(c)(1); (2) objective medical evidence,
which is obtained from the application of medically
acceptable clinical and laboratory diagnostic techniques,
id. § 404.1529(c)(2); and (3) any other
evidence relevant to the claimant's symptoms, such as
evidence of the claimant's daily activities, specific
descriptions of symptoms (location, duration, frequency and
intensity), precipitating and aggravating factors, medication
or medical treatment and resulting side effects received to
alleviate symptoms, and any other factors relating to
functional limitations and restrictions due to the
claimant's symptoms. Id. § 404.1529(c)(3);
see also Craig, 76 F.3d at 595; SSR 16-3p, 2016 WL
1119029, at *4-*7. In Hines v. Barnhart, the Fourth
Circuit stated that:
Although a claimant's allegations about her pain may not
be discredited solely because they are not substantiated by
objective evidence of the pain itself or its severity, they
need not be accepted to the extent they are inconsistent with
the available evidence, including objective evidence of the
underlying impairment, and the extent to which that
impairment can reasonably be expected to cause the pain the
claimant alleges he suffers.
453 F.3d at 565 n.3 (citing Craig, 76 F.3d at 595).
The ALJ may not reject a claimant's allegations of
intensity and persistence solely because the available
objective medical evidence does not substantiate the
allegations; however, the lack of objective medical evidence
may be one factor considered by the ALJ. SSR 16-3p, 2016 WL
1119029, at *5.
16-3p provides further guidance on how to evaluate a
claimant's statements regarding the intensity,
persistence, and limiting effects of his or her symptoms. For
example, the Ruling stresses that the consistency of a
claimant's own statements should be considered in
determining whether a claimant's reported symptoms affect
his or her ability to perform work-related activities.
Id. at *8. Likewise, the longitudinal medical record
is a valuable indicator of the extent to which a
claimant's reported symptoms will reduce his or her
capacity to perform work-related activities. Id. A
longitudinal medical record demonstrating the claimant's
attempts to seek and follow treatment for symptoms may
support a claimant's report of symptoms. Id. On
the other hand, an ALJ “may find the alleged intensity
and persistence of an individual's symptoms are
inconsistent with the overall evidence of record, ”
where “the frequency or extent of the treatment sought
by an individual is not comparable with the degree of the
individual's subjective complaints, ” or “the
individual fails to follow prescribed treatment that might
improve symptoms.” Id.
“it is not sufficient for [an ALJ] to make a single,
conclusory statement that ‘the individual's
statements about his or her symptoms have been
considered' or that ‘the statements about the
individual's symptoms are (or are not) supported or
consistent.' It is also not enough for [an ALJ] simply to
recite the factors described in the regulations for
evaluating symptoms. The determination or decision must
contain specific reasons for the weight given to the
individual's symptoms, be consistent with and supported
by the evidence, and be clearly articulated so the individual
and any subsequent reviewer can assess how the [ALJ]
evaluated the individual's symptoms.” Id.
at *9. SSR 16-3p instructs that “[t]he focus of the
evaluation of an individual's symptoms should not be to
determine whether he or she is a truthful person”;
rather, the core of an ALJ's inquiry is “whether
the evidence establishes a medically determinable impairment
that could reasonably be expected to produce the
individual's symptoms and given the adjudicator's
evaluation of the individual's symptoms, whether the
intensity and persistence of the symptoms limit the
individual's ability to perform work-related
activities.” Id. at *10.
considering whether an ALJ's evaluation of a
claimant's reported symptoms is supported by substantial
evidence, the Court does not replace its own assessment for
those of the ALJ; rather, the Court scrutinizes the evidence
to determine if it is sufficient to support the ALJ's
conclusions. In reviewing the record for substantial
evidence, the Court does not re-weigh conflicting evidence,
reach independent determinations as to the weight to be
afforded to a claimant's report of symptoms, or
substitute its own judgment for that of the Commissioner.
Hays, 907 F.2d at 1456. Because the ALJ had the
“opportunity to observe the demeanor and to determine
the credibility of the claimant, the ALJ's observations
concerning these questions are to be given great
weight.” Shively v. Heckler, 739 F.2d 987, 989
(4th Cir. 1984).
the ALJ performed the two-step process. First, the ALJ
thoroughly discussed Claimant's alleged symptoms and
statements regarding her abilities and activities, including
Claimant's purported issues with lifting, standing,
walking, and sitting, as well as her alleged memory
impairment, excessive sleeping, depression, and social
problems. (Tr. at 19-20). However, the ALJ noted some
inconsistencies in Claimant's statements such as her
testimony that she had trouble using her hands and arms, but
she helped “put up” a deer in November 2011. (Tr.
at 20); see SSR 16-3p, 2016 WL 1119029, at *8 (the
consistency of a claimant's own statements should be
considered in determining whether a claimant's reported
symptoms affect his or her ability to perform work-related
activities.). The ALJ further stated that Claimant
“confusingly” reported that she did not take any
medications for her depression after she took one sample
anti-depressant from her doctor and could not function for
three days; however, she also testified that she was on
Celexa since 2000 or 2001. (Id.). In addition, the
ALJ pointed out that when Claimant was questioned what her
limiting factors were during the relevant time frame, she
responded: “I don't know, ” stating that she
was in pain, but she did not know if it was depression or
the ALJ concluded that while Claimant's medically
determinable impairments could reasonably be expected to
cause the alleged symptoms, her statements concerning the
intensity, persistence, and limiting effects of these
symptoms were not entirely credible. (Tr. at 20-21). The ALJ
noted that the objective findings, treatment notes, and
findings on physical examinations did not support disabling
limitations; further, the ALJ cited that Claimant made
statements throughout the course of treatment, which
demonstrated that she was not as limited as alleged. (Tr. at
ALJ's performed an exhaustive discussion of the medical
evidence in her decision. The ALJ considered not only
Claimant's treatment records within the relevant period
of December 1, 2010 through December 31, 2011, but the ALJ
also thoroughly discussed her analysis of Claimant's
treatment record which preceded and followed that period.
Regarding Claimant's allegations of depression, the ALJ
noted that Claimant was referred to a counselor, but never
pursued treatment. Claimant suggested her lack of
psychological care was due to a lack of insurance; however,
Claimant's husband undermined that assertion by reporting
that he provided her with health insurance. (Tr. at 21).
Further, the ALJ noted that Claimant did not consistently
complain of mental health issues during the twelve-month
period prior to her date last insured. As an example, the ALJ
referenced Dr. Cain's office note in February 2011 in
which he documented that Claimant was stable psychologically.
Claimant's physical complaints, the ALJ acknowledged that
Claimant had a history of DVT, but emphasized that Claimant
was placed on an anticoagulant, Coumadin, without
complications. Moreover, her subsequent records reflected
that she was stable, feeling much better, and was even noted
as “very active.” (Tr. at 21-22). As for
Claimant's MEN-1 syndrome, the ALJ indicated that prior
to Claimant's alleged onset date, an
esophagogastroduodenoscopy (EGD) showed internal hemorrhoids
and a rectal polyp, but was otherwise unremarkable. (Tr. at
21). Further, the ALJ cited that following Claimant's
date last insured, her MEN-1 was described as stable. (Tr. at
22). Regarding back pain, the ALJ noted that Claimant
reported in the month before her alleged onset date that she
was “doing okay” and her low back pain radicular
symptoms were improved. (Tr. at 21). The ALJ acknowledged
that within the relevant time frame, in February 2011,
Claimant was given prescriptions to “try” for
back pain, although Claimant presented in no acute distress.
(Tr. at 22). However, the ALJ identified that in April 2011,
Claimant's low back pain was improved and continued to be
improved following her date last insured. (Id.).
Overall, the ALJ concluded from her analysis of the evidence
that Claimant's conditions were treated conservatively
and well-controlled with only medications prescribed by her
primary care physician. (Tr. at 23-24).
addition to the medical evidence, the ALJ considered
Claimant's activities of daily living in assessing her
credibility. The ALJ noted that “while Claimant has
attempted to minimize her activities of daily living, there
is no basis for this in the record.” (Tr. at 23). The
ALJ highlighted Claimant's testimony that she drove to
visit her grandchildren and helped feed them, as well as a
medical record prepared after Claimant's date last
insured stating that she was “very active.” (Tr.
at 24). Further, the ALJ examined Claimant's statements
during her consultative examination that she attended a baby
shower; regularly cleaned and cared for her pets; did
laundry, made beds, and cooked for her husband; and worked 20
hours per week. (Id.). The ALJ was clear that she
found Claimant's activities of daily living to reflect a
higher level of functioning than alleged by Claimant. (Tr. at
24, 25). In addition, the ALJ found that the record revealed
no adverse side effects from treatment or medication that
would prevent Claimant from performing competitive work on a
regular and continuous basis. (Tr. at 23).
evaluating Claimant's reported symptoms and limitations,
the ALJ also considered and weighed the available opinion
evidence. She afforded great weight to the opinions
of the non-examining state agency physicians who found that
Claimant was limited to light level work with additional
postural limitations, finding that the opinions were
generally consistent with the evidence of record. (Tr. at
23). The ALJ also agreed with the state agency
psychologists' assessments that Claimant did not have any
disabling mental conditions and was only mildly functionally
limited due to mental impairments.
further considered the opinions of the examining experts. The
ALJ noted Ms. Spaulding's finding that Claimant had
marked and moderate mental limitations; however, the ALJ
ultimately decided to assign Ms. Spaulding's opinions no
weight on the basis that the opinions were inconsistent with
the other medical evidence. (Tr. at 24). Specifically, the
ALJ pointed to the fact that Claimant's treatment records
showed that her conditions were under good control with only
medication prescribed by her primary care physician, her
activities of daily living indicated a higher level of
functioning than she alleged, and Claimant never pursued any
formal mental health treatment or counseling. (Id.).
evaluated the opinion of Dr. Sethi from his consultative
physical examination, but only gave Dr. Sethi's opinions
partial weight as the ALJ found that Claimant's severe
impairments, as evidenced by objective findings, physical
examination, and activities of daily living established that
Claimant was more limited than Dr. Sethi found. (Tr. at 24).
The ALJ also considered the written statement of
Claimant's husband, which provided that Claimant was in
constant pain that was most of the time managed with drugs,
and that she experienced memory loss. (Id.).
However, the ALJ gave no weight to this statement as
Claimant's husband was inherently an interested party in
the outcome of the claim and his statement was inconsistent
with Claimant's reported activities of daily living.
addition, the ALJ reviewed Dr. Brendemuehl's testimony
from Claimant's July 2012 administrative hearing, which
included the opinion that Claimant was capable of light work
with some postural limitations and a restriction to avoid
heights and hazardous machinery. (Tr. at 24). The ALJ gave
Dr. Brendemuehl's opinion great weight, concluding that
it was consistent with the treatment records indicating that
Claimant was stable prior to the date last insured, the
unremarkable findings on physical examination, and activities
of daily living. (Tr. at 24-25). The ALJ also reviewed and
gave great weight to Dr. Blair's testimony from the same
administrative hearing, in which he opined that Claimant did
not have a mental limitation or even a psychological
diagnosis. The ALJ found that such testimony was consistent
with the other evidence, including the fact that
Claimant's conditions were controlled with conservative
treatment requiring only medication prescribed by her primary
care provider and without formal mental health care. (Tr. at
25). Finally, the ALJ discussed the prior determinations by
ALJ Toschi and stated that she gave his decision great
weight, noting that Claimant had not produced additional
evidence after ALJ Toschi's decision that established a
finding of disability prior to the date last insured.
(Id.). The ALJ concluded that Claimant's
collective record, objective evidence, treatment notes,
physical and mental examinations, and her activities of daily
living discussed throughout the ALJ's decision
demonstrated that Claimant's impairments were not
disabling. (Id.). Therefore, the ALJ determined that
Claimant's subjective complaints and alleged limitations
were not fully persuasive in light of the other evidence of
alleges that the ALJ focused only on objective evidence,
discounting Claimant's statements without analysis. (ECF
No. 14 at 13). This argument is without merit. The ALJ
contrasted Claimant's allegations not only with the
objective evidence, but also with Claimant's own
contradictory statements, her activities of daily living, and
the numerous sources of opinion evidence. The ALJ was
explicitly clear in her decision that Claimant's
allegations of disabling symptoms were belied by all of the
evidence, including her conservative treatment,
well-controlled conditions, lack of formal mental health
treatment, lack of adverse side effects, activities of daily
living, and the non-examining expert opinions. (Tr. at
19-25). Furthermore, as stated by the ALJ, there is no
medical source statement indicating that Claimant was
disabled during the relevant period. (Tr. at 25). The ALJ was
not required to discuss each factor described in 20 C.F.R.
§ 404.1529(c) or SSR 16-3p; instead, the ALJ was obliged
to supply logical reasons grounded in substantial evidence to
support the weight that she assigned to Claimant's
statements regarding the intensity, persistence, and limiting
effects of her symptoms. See Bailey, 2015 WL
9595499, at *19; Murdock v. Colvin, No. 5:14CV40,
2014 WL 9866441, at *3 (W.D. N.C. Nov. 19, 2014). Ultimately,
the ALJ did just that.
not the province of this court to “re-weigh conflicting
evidence, reach independent determinations as to the weight
to be afforded to a claimant's report of symptoms, or
substitute its own judgment for that of the
Commissioner.” Hays, 907 F.2d at 1456. In this
case, the undersigned finds substantial support for the
ALJ's credibility analysis. Claimant's treatment
records during the relevant period fail to support
Claimant's allegations regarding the intensity,
persistence, and severity of her symptoms. As noted by the
ALJ, Claimant was treated conservatively and her conditions
were well-controlled with only medications prescribed by her
primary care provider, Dr. Cain. Claimant's treatment
consisted of regularly scheduled follow-up appointments with
Dr. Cain, other than a few visits when she presented with
flu-like symptoms, or noticed a lipoma in her shoulder, or
when she went in for testing ordered by Dr. Cain. (Tr. at
432, 458-60, 515, 527-28, 531). Claimant had no
hospitalizations or emergency room visits and her records
fail to reflect any concerns which were severe enough for her
to present to Dr. Cain other than as indicated.
there is substantial support for the ALJ's finding that
Claimant's records failed to support the degree of
symptoms and limitations alleged. During the relevant period,
Claimant often reported flank and/or abdominal pain, but her
ultrasounds and CT scans showed no changes and Dr. Cain
stated that the source of the pain was of undetermined
etiology. (Tr. at 433, 516-17, 527). Claimant also complained
of low back pain in February 2011, but it is not documented
in her succeeding records until April 27, 2011 when she
stated that it was improved, although she still had some
symptoms and pain when sitting. (Tr. at 458-60).
Claimant's MEN-1, reflux, and arthritis were either not
mentioned or indicated to be stable with the exception of
“some reflux symptoms” in November 2011. (Tr. at
432, 458, 460, 527, 531). Claimant reported “hurting
all over, ” including joint and muscle pains in
February 2011, but she did not mention those symptoms again.
(Tr. at 432, 458-60, 515, 527-28, 531). No issues were noted
regarding Claimant's hyperlipidemia. (Id.).
Claimant complained of headaches on only a couple of
occasions and attributed them to sinus issues or stress;
also, the MRI of her brain was unremarkable. (Tr. at 432,
527). Finally, regarding Claimant's alleged mental
impairments, Claimant complained of depression on only a
couple of occasions during the relevant period and was
treated conservatively by Dr. Cain; as the ALJ noted to be
significant, Claimant never sought formal mental health
only is the ALJ's analysis of the treatment record
supported by substantial evidence, but the ALJ analyzed the
various statements made by Claimant, all of the expert
opinions, Claimant's daily activities, and the prior
decision in Claimant's case. The ALJ provided a
well-supported analysis for the weight that she assigned to
each piece of evidence. For all of the reasons discussed
above, the undersigned FINDS that the
ALJ's decision complies with 20 C.F.R. § 404.1529
and SSR 16-3p and is supported by substantial evidence.
The ALJ's Step Two Finding that Claimant's Mental
Impairments Were Non-Severe
second challenge, Claimant asserts that the ALJ's step
two finding that Claimant's mental impairments were
non-severe was not based on substantial evidence as
Claimant's records showed more than de minimis
mental impairments that impacted her work activities. (ECF
No. 14 at 14). Claimant contends that the ALJ failed to
discuss or consider any of the psychologists' opinions;
“cherry pick[ed]” information from consultative
psychologist Ms. Spaulding's report; and, to the extent
that the ALJ relied on the opinions of the state agency
psychologists, her reliance was misplaced because neither of
them had the benefit of reviewing Ms. Spaulding's report
and were operating under the assumption that Claimant's
date last insured was December 31, 2010. (Id. at
14-15; ECF No. 16 at 3).
second step of the sequential evaluation process, the ALJ
determines whether the claimant has an impairment or
combination of impairments that is severe. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment is considered “severe” if it
significantly limits a claimant's ability to do
work-related activities. 20 C.F.R. §§ 404.1521(a),
416.921(a); SSR 96-3p, 1996 WL 374181, at *1. “[A]n
impairment(s) that is ‘not severe' must be a slight
abnormality (or a combination of slight abnormalities) that
has no more than a minimal effect on the ability to do basic
work activities.” SSR 96-3p, 1996 WL 374181, at *1
(citing SSR 85-28, 1985 WL 56856). Basic work activities
include walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, handling, seeing, hearing,
speaking, remembering simple instructions, understanding
simple instructions, carrying out simple instructions, using
judgment, interacting appropriately with co-workers, and
dealing with changes in a routine work setting. 20 C.F.R.
§§ 404.1521(b), 416.921(b). The claimant bears the
burden of proving that an impairment is severe, Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983), and does
this by producing medical evidence establishing the condition
and its effect on the claimant's ability to work.
Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th
mere presence of a condition or ailment is not enough to
demonstrate the existence of a severe impairment. Moreover,
to qualify as a severe impairment under step two, the
impairment must have lasted, or be expected to last, for a
continuous period of at least twelve months, 20 C.F.R. §
416.909, and must not be controlled by treatment, such as
medication. Gross v. Heckler, 785 F.2d 1163, 1166
(4th Cir. 1986). If the ALJ determines that the claimant does
not have a severe impairment or combination of impairments, a
finding of not disabled is made at step two, and the
sequential process comes to an end. On the other hand, if the
claimant has at least one impairment that is deemed severe,
the process moves on to the third step. “[T]he step-two
inquiry is a de minimis screening device to dispose of
groundless claims.” Smolen v. Chater, 80 F.3d
1273, 1290 (9th Cir.1996) (citing Bowen v. Yuckert,
482 U.S. 137, 153-54, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987));
see also Felton-Miller v. Astrue, 459 F.App'x
226, 230 (4th Cir. 2011) (“Step two of the sequential
evaluation is a threshold question with a de minimis severity
the ALJ found that Claimant alleged, or the record reflected,
a history of major depressive disorder, PTSD, and bipolar
disorder. (Tr. at 17). When assessing the severity of
Claimant's mental impairments, the ALJ considered
Claimant's lack of formal mental health treatment; her
normal judgment and social skills; her memory and
concentration, which Dr. Blair deemed to be adequate; and
Claimant's ability to work 20 hours per week, attend a
baby shower, clean, make beds, do laundry, and take care of
pets. (Id.). Also, the ALJ referenced Dr. Cain's
record that Claimant did not have the typical symptoms of
bipolar disorder and noted that bipolar disorder was not
mentioned elsewhere in Claimant's records.
(Id.). The ALJ used the special technique to assess
Claimant's mental impairments, considering the four broad
functional areas known as the “paragraph B”
criteria. The ALJ found that Claimant had only mild
limitations in activities of daily living; social
functioning; and concentration, persistence, or pace; and she
had no episodes of decompensation of extended duration. (Tr.
at 18). In the first category, the ALJ cited Claimant's
activities of daily living such as, inter alia,
shopping, driving, cooking, and cleaning. (Id.). In
the second category, the ALJ recounted that Claimant's
social skills were normal during her consultative examination
and she attended a baby shower. (Id.). In the third
category, the ALJ noted Claimant's reports of driving,
being able to pay attention a lot, and working 20 hours per
week. (Id.). Ultimately, the ALJ determined that
Claimant's mental impairments were non-severe as they did
not cause more than minimally vocationally related
limitations. (Tr. at 17-18).
challenge to the ALJ's step two analysis contends that
the ALJ failed to discuss relevant evidence regarding her
mental impairments and what little she did discuss, she
“cherry pick[ed]” information without accounting
for conflicting findings. Claimant's argument undoubtedly
focuses only on step two of the ALJ's analysis while
discounting all of the ALJ's discussion of the evidence
in her subsequent credibility analysis and RFC finding. As
stated in the preceding section of this PF & R, the ALJ
thoroughly discussed Claimant's treatment records and
every piece of opinion evidence, carefully explaining her
rationale for the weight that she assigned to the opinions.
The ALJ cited that Claimant never received any formal mental
health treatment and her mental health allegations did not
appear to be consistently present during the twelve- month
period prior to the date last insured. (Tr. at 21). The ALJ
also repeatedly discussed the fact that Claimant's
activities of daily living indicated that she functioned at a
much higher level than she alleged. (Tr. at 23). The ALJ
assigned great weight to the opinions of the state agency
psychologists who found that Claimant did not have any
disabling mental conditions and was only mildly functionally
limited due to mental impairments; the ALJ noted that these
opinions were supported by the fact that Claimant was treated
conservatively with medications from Dr. Cain and never saw a
mental health professional. (Id.). The ALJ further
considered Ms. Spaulding's opinions from her consultative
evaluation that Claimant had marked and moderate mental
limitations; however, the ALJ ultimately decided to assign
Ms. Spaulding's opinions no weight, explaining that the
opinions were inconsistent with the other medical evidence.
(Tr. at 24). Specifically, the ALJ pointed to the fact that
Claimant's treatment records showed that her conditions
were under good control with only Celexa prescribed by her
primary care physician, her activities of daily living
indicated a higher level of functioning than she alleged, and
Claimant never pursued any formal mental health treatment or
counseling. (Id.). The ALJ further stated that she
assigned great weight to the testimony of Dr. Blair that
Claimant's record did not support a mental limitation or
even a psychological diagnosis; again, the ALJ relied on
evidence substantiating that Claimant's mental health
conditions were controlled by conservative treatment, and she
did not pursue counseling or care from a specialist in
psychology or psychiatry. (Id.).
the ALJ did not include all of the above-cited analysis
specifically at step two, it is included in her decision and
readily allows the court to meaningfully analyze whether her
step two decision is supported by substantial evidence. The
undersigned finds the ALJ's determination regarding the
severity of Claimant's mental impairments to be
well-reasoned, as explained above, and supported by
substantial evidence. Claimant's treatment records
indicate that Dr. Cain referred Claimant to a counselor for
depression in April 2011, although she was noted to be stable
psychologically. (Tr. at 459). Later that month, Claimant
reported irritability and mood swings; Dr. Cain increased her
dosage of Celexa and stated that he would schedule her to see
a counselor. (Tr. at 458). However, Claimant never pursued
that treatment. Otherwise, during the relevant period,
Claimant's treatment record is unremarkable in terms of
mental health concerns. The evidence supports the ALJ's
assessment that Claimant's treatment was conservative and
her psychological complaints were well-controlled.
as opinion evidence, Dr. Comer stated in March 2011 that
Claimant had non-severe depression related to a general
medical condition and only mild functional limitations,
including only a mild limitation in maintaining
concentration, persistence, or pace. (Tr. at 414, 417, 424).
In April 2011, Dr. Boggess affirmed Dr. Comer's
assessment. (Tr. at 428). In June 2011, Ms. Spaulding
performed a consultative evaluation, which found more severe
restrictions. Ms. Spaulding opined that Claimant had severe
recurrent major depressive disorder and secondary PTSD, as
well as severely impaired recent memory and moderately
impaired attention and concentration. (Tr. at 482). Ms.
Spaulding assessed that Claimant was moderately impaired in
understanding and remembering complex instructions and
responding to usual work situations and changes in routine
work settings. (Tr. at 484-85). She further found that
Claimant was markedly impaired in carrying out complex
instructions and making decisions on complex work-related
decisions. (Tr. at 484). However, at Claimant's first
administrative hearing, Dr. Blair disputed Ms.
Spaulding's findings regarding Claimant's memory.
Specifically, Dr. Blair testified that Claimant's average
scores regarding arithmetic and coding and high average score
on the symbol search test indicated that Claimant's short
term memory was w o r k i n g “ o k a y . ” (T r
. a t 8 0) . H e a l s o d i s a g r e e d that
Claimant's attention and concentration were moderately
impaired, and he did not feel that Claimant had PTSD. (Tr. at
82-83). In fact, Dr. Blair did not find any indication of
functional operational memory problems, any mental
limitations, or even a psychological diagnosis. (Tr. at
83-85). Dr. Blair added that Ms. Spaulding did not provide
enough information to establish that the results of her
testing were valid. (Tr. at 81).
the objective evidence, which fails to establish severe
mental limitations, there are two sources of evidence-and
only two sources-potentially indicating that Claimant had
severe mental impairments during the relevant time period:
(1) Claimant and (2) Ms. Spaulding. The ALJ carefully
considered, compared, and contrasted the statements of both
of these sources with the other evidence of record and
reconciled the conflicts. First, the ALJ found Claimant to be
non-credible for the reasons discussed earlier in this
PF&R, and the undersigned found the credibility
assessment to be supported by substantial evidence. Second,
the ALJ contemplated and ultimately gave no weight to Ms.
Spaulding's opinions that Claimant had moderate and
marked mental limitations, finding that the opinion of marked
limitation, in particular, was disproportionate to the other
evidence of record. (Tr. at 24). Further, the ALJ rejected
Ms. Spaulding's conclusions on the grounds that
Claimant's record indicated that her conditions were
under good control with medication, her activities of daily
living revealed that she functioned at a higher level than
she alleged, and she never pursued any formal mental health
undersigned recognizes that Claimant takes issue with the
ALJ's decision to the extent that the ALJ relied on the
opinions of Drs. Comer and Boggess, stating that those
non-examining experts did not have the benefit of Ms.
Spaulding's subsequent consultative evaluation and were
operating under the assumption that Claimant's date last
insured was December 31, 2010. The undersigned does not find
this argument to be persuasive. The ALJ weighed all of the
evidence in this matter, including the opinion evidence. She
afforded great weight to the opinions of the non-examining
state agency experts, but did not give them controlling or
exclusive weight. Furthermore, although Drs. Comer and
Boggess did not have the benefit of reviewing Ms.
Spaulding's report, Dr. Blair did review it and
specifically disagreed with Ms. Spaulding's findings. The
ALJ assigned Dr. Blair's opinion great weight on the
basis that it was consistent with the evidence. (Tr. at 25).
As noted, Dr. Blair opined that Claimant did not have any
functional operational memory problems, any mental
limitations, or even a psychological diagnosis. (Tr. at
the undersigned finds no merit to Claimant's suggestion
that Drs. Comer and Boggess's opinions were invalid
because they were based upon the incorrect date last insured.
The ALJ considered many pieces of evidence through the
correct date last insured. The opinions of Drs. Comer and
Boggess were only some of the pieces of evidence which the
ALJ evaluated regarding Claimant's mental impairments;
they were not alone determinative. Additionally, the ALJ
found their findings to be consistent with the overall
evidence through the correct date last insured. Indeed, other
than Ms. Spaulding's report, the record does not contain
medical findings relevant to the period between December 31,
2010 and December 31, 2011 that demonstrates any significant
change in Claimant's mental health condition. Therefore,
it was not error for the ALJ to assign substantial weight to
those opinions. See Hampton v. Colvin, No.
1:14-CV-24505, 2015 WL 5304294, at *22 (S.D. W.Va. Aug. 17,
2015), report and recommendation adopted,
No. CV 1:14-24505, 2015 WL 5304292 (S.D. W.Va. Sept. 9, 2015)
(“[T]the timing of a consultant's opinion is not
the critical issue. Whether the consultant's opinion is
entitled to weight rests on whether any significant change
occurred in the claimant's condition after issuance of
the consultant's opinion that reasonably would affect its
the undersigned FINDS that the ALJ's
analysis of Claimant's mental impairments is
well-reasoned and supported by substantial evidence. The
record in this matter fails to establish that Claimant
suffered any severe mental conditions or functional
limitations. Aside from Ms. Spaulding's single divergent
evaluation, Claimant's record of treatment and opinion
evidence is largely unremarkable in terms of psychological
concerns; rather, her file focuses primarily on
Claimant's physical symptoms and conditions.
Claimant's record, as well as her activities of daily
living, supports the ALJ's finding that her mental
impairments were non-severe.
Recommendations for Disposition
on the foregoing, the undersigned United States Magistrate
Judge respectfully PROPOSES that the
presiding District Judge confirm and accept the findings
herein and RECOMMENDS that the District
Judge DENY Plaintiff's request for
judgment on the pleadings, (ECF No. 14);
GRANT Defendant's request to affirm the
decision of the Commissioner, (ECF No. 15); and
DISMISS this action from the docket of the
parties are notified that this “Proposed Findings and
Recommendations” is hereby FILED, and
a copy will be submitted to the Honorable Thomas E. Johnston,
United States District Judge. Pursuant to the provisions of
Title 28, United States Code, Section 636(b)(1)(B), and Rules
6(d) and 72(b), Federal Rules of Civil Procedure, the parties
shall have fourteen days (filing of objections) and three
days (mailing) from the date of filing this “Proposed
Findings and Recommendations” within which to file with
the Clerk of this Court, specific written objections,
identifying the portions of the “Proposed Findings and
Recommendations” to which objection is made, and the
basis of such objection. Extension of this time period may be
granted by the presiding District Judge for good cause shown.
to file written objections as set forth above shall
constitute a waiver of de novo review by the
District Court and a waiver of appellate review by the
Circuit Court of Appeals. Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); 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). Copies of such objections shall be provided
to the opposing party, Judge Johnston, and Magistrate Judge
Clerk is directed to file this “Proposed Findings and
Recommendations” and to provide a copy of the same to
counsel of record.
 The SSA recently provided guidance for
evaluating a claimant's report of symptoms in the form of
SSR 16-3p. In doing so, the SSA rescinded SSR 96-7p, 1996 WL
374186, which Claimant relied on in her brief. The
undersigned finds it appropriate to consider Claimant's
first challenge under the more recent Ruling as it “is
a clarification of, rather than a change to, existing
law.” Matula v. Colvin, No. 14 C 7679, 2016 WL
2899267, at *7 n.2 (N.D. Ill. May 17, 2016); see also
Morris v. Colvin, No. 14-CV-689, 2016 WL 3085427, at *8
n.7 (W.D.N.Y. June 2, 2016).
 Claimant was diagnosed with MEN-1 via
genetic testing. (Tr. at 633). MEN-1 is characterized by the
presence of benign and sometimes malignant tumors of the
parathyroid, pancreas, and pituitary, lipomas (benign skin
tumors consisting of fat), facial angiofibromas, and
sometimes other signs. (Tr. at 852). It is unclear why this
record references MEN-2.
 A lipoma is a benign tumor consisting
of mature fat cells. Mosby's Medical Dictionary, 9th
edition. © 2009, Elsevier.
 This assessment was only for the
period of December 1, 2010 through December 31, 2010.
 Claimant does challenge the weight
that the ALJ assigned to the opinion evidence.