United States District Court, N.D. West Virginia
November 30, 2016
CRUCITA VAYE KENDLE, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION/OPINION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
Vaye Kendle (“Plaintiff”) brought this action
pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Defendant, Commissioner of the
Social Security Administration (“Defendant”),
denying Plaintiff's claim for disability insurance
benefits (“DIB”) under Title II of the Social
Security Act. The matter is awaiting decision on cross
motions for summary judgment and has been referred to the
undersigned United States Magistrate Judge for submission of
proposed findings of fact and recommended disposition. 28
U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); L.R.
Civ. P. 9.02.
filed an application for DIB on August 22, 2012, alleging
disability beginning on July 7, 2012. Plaintiff's
application was denied at the initial level on March 29,
2013, and at the reconsideration level on September 12, 2013.
Plaintiff thereafter requested a hearing, which
Administrative Law Judge (“ALJ”) John T. Molleur
held on November 8, 2013. Plaintiff was represented by H. K
Carpenter at the hearing (but is represented by attorney Jan
Dils, generally). Plaintiff and Patricia G. McFann,
Vocational Expert (“VE”), testified at the
hearing. The ALJ entered a decision on November 21, 2014
finding Plaintiff was not disabled. Plaintiff appealed this
decision to the Appeals Council. On January 11, 2016, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
testified as to her personal information at the
administrative hearing on November 4, 2014. She was born on
July 5, 1957, and was fifty-seven (57) years old at the time
of the hearing (R. 64). She was currently married, and lived
with her husband in Middlebourne, West Virginia. Id.
She graduated from high school, her highest level of
Relevant Medical History Summary
1. Carpal Tunnel and hand issues
was diagnosed with carpal tunnel as early as February 10,
2006 as per records from Plastic Surgery, Inc., noting on
that date that she has “mild intermittent carpal tunnel
symptoms still” (R. 443). She was searching for
employment that she would be able to do with her restrictions
from carpal tunnel, and was “hopeful to either get a
new job or vocational training.” Id. At her
next visit on October 10, 2006, notes indicate that she
“tried pizza making for a while but that was too hard
on her hands.” Id. She was currently working
in receiving at Cabela's and apparently conveyed that she
was hoping to get a housekeeping job. Id.
next visit to Plastic Surgery on February 15, 2008 found
Plaintiff employed “working with homebound mentally
challenged patients, ” that she “seem[ed] to like
that a lot” (R. 443). However, her carpal tunnel
symptoms were exacerbated at this visit despite having had
three injections, and an EMG showed slowing of the right
median nerve (R. 444). Dr. Kappell recommended decompression
surgery. Id. Plaintiff underwent decompression
surgery on her right arm on August 19, 2008, and on her left
arm on November 20, 2008 (R. 445).
16, 2009, Plaintiff sustained an impacted pilon fracture at
the base of her left “small” (presumably, pinky)
finger, with pain primarily in the PIP joint (R. 446-47).
Doctors inserted pins, and Plaintiff had a dynamic traction
splint applied (R. 448). Physical therapy for the finger was
also recommended, though Plaintiff did not ultimately attend
because she was doing well, and her finger was functional as
of October 1, 2009 (R. 452). As of December 3, 2009, Dr.
Ms. Kendle is . . . making beautiful progress with motion in
the small finger up to 203 degrees active motion and 218
passive . . . no limitations in function except occasionally
coins can slip through the ulnar side of her fist. I think we
can discharge her to follow up as needed at this point. She
is going to continue her exercises at home and if she has any
trouble she knows to call and we will be happy to see her
anytime. (R. 453).
Neurodiagnostics Report and Neurological issues
October 5, 2011, Dr. Srini Govindan reviewed Plaintiff's
polysomnograph and conducted a neurological examination, the
results of which both largely appeared normal (R. 297).
However, Dr. Govindan recommended a Titration PSG study in
regard to apneas; he also noted that Plaintiff's
condition had worsened since a prior polysomnograph in May
2008, and she still complained of memory problems and
tiredness (R. 297-8).
gain saw Dr. Govindan on November 7, 2013 because her
migraines were getting worse (R. 485). Neurological problems
included “gait balance disturbance, headache, [and]
migraine;” Plaintiff exhibited decreased sensation in
her left leg, and decreased reflexes generally (R. 488).
Depression and Anxiety
February 7, 2012, Plaintiff was seen by Gary Nichols, M.D.
reporting with a history of GERD, irritable bowel syndrome,
hypertension, deep vein thrombosis, low back pain, general
anxiety disorder, COPD, constipation, sleep apnea, and IgA
deficiency (R. 377). She complained of worsening depression
and anxiety symptoms, pursuant to increasing social stressors
at home and family problems. Id. She had been
experiencing crying episodes, irritability, trouble sleeping,
and low appetite over the past two months. Id. Dr.
Nichols observed her demeanor as “pleasant, ” but
also “tearful at times.” Id. She was
already taking the maximum dose of Cymbalta at that time, as
well as Klonopin three times a day. Id. She had
tried Zoloft in the past, but it had no effect; Dr.
Nichols' treatment plan was to wind down her Cymbalta
dosage and switch to Prozac. Id.
March 8, 2012, she was seen by Liz Harshberger at Crittenton
Services, Inc. pursuant to anxiety and depression:
[S]he has been depressed since her mother died about 3 years
ago. Additional stressors have been the death of her uncle,
marital problems (with some physical abuse), and conflicts
with her husband's family. She has the following
symptoms: depression, anxiety, poor appetite with weight loss
of 21 pounds, sleep difficulties, irritability, poor
concentration, low self esteem, decreased energy, withdrawal
from others, decreased interest in activities.
(R. 478). Assessments indicated that Plaintiff often cried
and felt anxious, depressed, irritable, withdrawn, hopeless
and short tempered (R. 469-70). She reported conflict
(arguments with her husband and his family), trouble
concentrating, and low self esteem. Id. She reported
suffering from insomnia and chronic back and leg pain (R.
470). “Somatic concerns and anxiety [were] moderately
severe, ” and that “depression, guilt, and
hostility are at moderate” (R. 476). Clinical
impressions included “Major Depressive Disorder,
recurrent, moderate, ” problems with primary support
group (Axis IV), and moderate symptoms or difficulty in
social impairment, occupational, or social functioning (Axis
V) (R. 474-75). Treatment strategies identified at that
assessment included participation in therapy twice monthly -
addressing grief issues, self esteem, ways to manage mood,
and marital problems - as well as cognitive behavioral
returned to Dr. Nichols on April 10, 2012 (R. 375). She
reported no side effects from switching to Prozac, but
although her mood is good in the morning (rated 8/10), it is
much worse in the evening (3/10), and she has a great deal of
irritability. Id. Dr. Nichols adjusted her Prozac
dosage with a follow-up in four months for depression and
anxiety. Id. Her follow-up on August 8, 2012 is
incomplete as only half the page has scanned in the medical
record, but from what is visible, it appears to provide no
new information (R. 373).
Left leg issues: pain, instability, and numbness.
January 19, 2012, Plaintiff had an x-ray on her left ankle
following a recent fall. Radiologist Phillip Strohl, M.D.
reviewed her images and observed:
The bones are slightly osteopenic. I believe there is a Mach
band overlying the medial aspect of the lateral malleolus
related to superimposed tibial structures. There is a small
bony density adjacent to the lateral aspect of the calcaneus.
This is concerning for a small avulsion fracture at the
origin of the extensor digitorum brevis muscle. Clinical
follow-up is suggested.
(R. 520). Plaintiff reported that she was working as a home
health aide when her knee “went out” as she was
going down her client's stairs, causing her ankle to
twist (R. 524). Her client caught her when she fell.
Id. On January 31, 2012, Plaintiff had another x-ray
of her left ankle as suggested by Dr. Strohl to check for
fracture; Radiologist Terry Shank, M.D. observed that the
tibiotalar joint was intact with no evidence of fracture seen
(R. 527). However, the x-ray did note “mild
spurring” and degenerative changes at the
tarsal-metatarsal joints. Id.
was seen by Michael Shramowiat, M.D. at the Mountaineer Pain
Relief and Rehabilitation Centers beginning on February 2,
2012, for electrodiagnostic studies of the left lower
extremity (R. 313). The studies were ordered pursuant to a
recent left malleolar fracture and ongoing low back pain.
Id. Results of an electromyography
(“EMG”) showed left tibial and peroneal
neuropathy. Id. Dr. Shramowiat's treatment plan
included prescriptions for Norco and Flexeril, icing the
affected areas, and a TENS unit. Id.
March 6, 2012, a third x-ray of Plaintiff's left ankle
showed mild soft tissue swelling (R. 533). Dr. Strobl
recommended further evaluation of the persistent left ankle
pain through a nuclear medicine bone scan, a CT, or an MRI.
April 12, 2012, Plaintiff returned complaining of neck and
low back pain in the past month, as well as her ongoing
chronic left lower extremity pain (R. 312). A physical
On exam, the patient has painful cervical paravertebral
region. Muscle tightness of the upper trapezius
"'him have trigger points. There is some lower
lumbar paravertebral and paraspinal muscle tlghtn1iss and
tenderness. Upper extremity strength is 515.
Brachioradialis reflexes . Sensation is intact.
On exam, right lower extremity strength is 5/5 and left is
4/5. There is pain at extension of the left knee. Pain to
palpitation over the knee. She has slightly decreased flexion
and extension of the knee. The patient has swelling over the
medial and lateral aspect of the ankles on the lower foot.
Slightly decreased in range of motion of the foot. There is
tenderness [over the medial and lateral aspect of the ankle
with some decreased range of motion]. She has two areas on
the lateral and medial aspect of the lower extremity that has
rashes. They are maculopapular and pruritic. LS nerve root
distribution has paresthesias. Some laxity over the left knee
to palpation and range of motion.
1. Neck pain. 723.1
2. Low back pain. 724.2
3. Pain in limb. 729.5
4. Dermatitis, left lower extremity.
(R. 311-12). Dr. Shramowiat ordered a bilateral cervical
paravertebral injection of Methyprednisolone and Lidocaine,
and a spinal X-ray. Id. Plaintiff was also referred
to an orthopedic specialist for an additional opinion as to
her left knee and left lower tibia fracture. Id.
Plaintiff was to have a follow-up visit at Mountaineer Pain
Relief in two months. Id. A fourth x-ray on April
17, 2012 was again relatively normal, and an MRI was again
suggested (R. 537).
Plaintiff returned early on May 29, 2012, complaining of
continued neck pain radiating to both shoulders and lower
extremity pain (R. 309). Dr. Shramowiat noted that Plaitniff
was seeing Dr. Krivchenia for the fracture, instability, and
chronic pain. She had also reported “fall[ing]
frequently, usually once daily, ” and had a large
bruise on her chest from one such fall. Id. At this
visit, Plaintiff had:
[S]ome discomfort with range of motion of the cervical spine.
There is bilateral occipital nerve tenderness. Tenderness and
tightness of the upper trapezius muscles. Upper extremity
strength is 5/5. Brachioradialis reflexes , Sensation
grossly intact. Lower extremity strength is 5/5 on the right
and 4/5 on the left. Pain with extension over the left knee.
Palpable tenderness over the entire knee. No effusion. Pain
with range of motion of the left ankle including a slight
decrease in dorsiflexion and eversion. Palpable tenderness on
the medial and lateral aspect of the left ankle. Decreased
sensation 15 nerve root distribution on the left. Negative
straight leg raise. Paresthesias on the right foot.
The patient has a contusion on the right lateral lower rib
cage region which is slightly tender to palpation.
Id. Dr. Shramowiat's assessment included neck
pain, greater occipital neuralgia, limb pain, osteoarthritis
of the knee, and history of left tibial fracture.
Id. He ordered bilateral occipital nerve blocks
containing Methylprednisolone and Lidocaine. At
Plaintiff's next visit, on June 7, 2012, Dr. Shramowiat
noted she had done well with the nerve blocks, but still
experienced left leg and low back pain (R. 308).
12, 2012, Plaintiff was seen by Dr. Edward McDonough at the
WVU Department of Orthopaedics (R. 301). Dr. McDonough
related the following history:
[O]n October 12, 2010, she fell while at work with her knee
flexed underneath her. She had no problems with her knee or
ankle prior to this injury. According to the patient, she was
diagnosed with a tibial plateau fracture, which went on to
heal; however, she continued to have complaints of pain and,
therefore, was provided with a corticosteroid injection,
which did not provide any relief in her pain, not even
temporarily. She was sent to physical therapy, was not really
making any progress in that and then in approximately January
of this year, she was walking when her knee buckled and she
sustained an ankle fracture. She apparently has been in a Cam
boot since then, as well as ambulating with a postoperative
knee brace. She continues to complain of buckling of her knee
even with straight ahead walking as well as chronic pain in
the knee, primarily around the anterior aspect of her knee.
She utilizes a cane for ambulation. She has noticed some
swelling. She reports her pain is constant. She also notices
some numbness down her whole leg from her thigh down to her
toes and this includes the anterior, medial, lateral, and
posterior aspects of her leg. She takes hydrocodone 10/325
mg, Flexeril and Relafen for her leg with continued
complaints. A lot of the pain in her ankle is located around
the medial side of her ankle.
Id. A radiograph on her knee was essentially
negative. Id. An MRI from Wetzel County Hospital
dated November 8, 2010 reported findings consistent with a
medial tibial plateau fracture. (R. 301-2). It further showed
a subacute anterior cruciate ligament (“ACL”)
tear involving the proximal and substance fibers, and mild
strain of the medial and lateral collateral ligaments (R.
302). Plaintiff also had a small Baker cyst “with
rupture noted with joint effusion and chondromalacia of the
medial compartment of the knee.” Id. Dr.
McDonough's assessment was left chronic ankle and knee
pain. Id. His treatment plan recommended
conservative treatment, noting Plaintiff's pain and
numbness, and opined that he did not think surgery was an
option for her. Id. Dr. McDonough recommended
physical therapy and a different knee brace. Id.
Medical History after July 7, 2012
August 2, 2012, Plaintiff was seen again at Mountaineer Pain
Relief with continued complaints of left leg pain and
occasional swelling in that limb (R. 307). Dr. Shramowiat
performed another physical examination:
Left lower extremity 415. Right lower extremity
strength is 5/5.
She has moderate effusion at the left knee. Pain at the end
range of extension at the left knee. Joint line tenderness
medially and laterally. Mild edema in the right lower
extremity. Pain with palpation in the calf and ankle but
Homan's negative. The patient has moderate muscle
tightness in the lumbar paravertebral region.
1. Osteoarthritis of the knee. 715.36
2. Low back pain. 724.2
3. Pain in limb. 729.5
Id. On September 4, 2012, she returned to
Mountaineer Pain Relief reporting “constant left lower
extremity pain, worst just above left knee and diffuse pain
throughout entire left ankle, ” and that her
“medication regimen decreases pain to an acceptable
level.” (R. 305). Her gait was antalgic, even with the
knee ankle foot orthosis (KAFO) ambulatory aide in place, and
there was “notable atrophy throughout left lower
extremity.” Id. Dr. Shramowiat referred
Plaintiff for physical therapy three times per week, for four
weeks. Id. Plaintiff was also to have two MRIs, one
on her lumbar spine and one on her left knee, as well as an
EMG on her left knee, which was covered by Worker's
Compensation (R. 306).
September 13, 2012, results of the EMG showed “slowed
left tibial and motor conduction velocity” and “a
left tibial neuropathy, ” relevant to ongoing pain and
numbness in her left leg and foot (R. 304, R. 318-21).
September 18, 2012, Plaintiff had the two MRIs conducted at
Sistersville General Hospital (R. 314). The report of the
spinal MRI, signed by radiologist Terry Shank, M.D.,
identified mild thinning of the intervertebral disc spaces
throughout the lumbar spine and mild facet hypertrophy at
¶ 4-5 and L5-S1. The report of the left knee MRI, signed
by radiologist Bernard Garrett, D.O., observed that
ligaments, cartilage, and tendons appeared intact (R. 315).
No altered signal was seen in the bone barrow, but some
altered signal was observed in the subchondral and posterior
aspect of the femoral condyle. Id. Radiologist
Garrett opined this was most likely due to degenerative
change or possibly old injury. Id. A small amount of
fluid was observed in the suprapatellar bursa and joint
September 27, 2012, Dr. Shramowiat reviewed an MRI of
Plaintiff's left knee dated September 18, 2012 (R. 303).
A physical examination revealed “severe joint pain
medially and laterally at the left knee, pain at the end
range of extension, moderate effusion at the left knee, [and
. . .] mild atrophy in the left calf from disuse.”
Id. At this visit, Dr. Shramowiat injected
Plaintiff's left knee joint again with Methylprednisolone
and Lidocaine. Id.
November 1, 2012, Plaintiff returned for a follow-up,
reporting neck pain and tightness (R. 440). She reported that
the injections she has received and the medications she takes
decrease the severity. Id. A physical examination
was normal, with the exception of mild restrictions on the
cervical range of motion. Id. Dr. Shramowiat's
assessment was neck pain pursuant to trapezius muscle spasms.
Id. She was again given another Methylprednisolone
and Lidocaine injection. Id. At this same visit, Dr.
Shramowiat also addressed her ongoing constant left lower
extremity pain, with Plaintiff reporting “constant pain
at the knee with shooting type pain as pointed to throughout
tibialis anterior region as well as diffuse pain throughout
entire left ankle” (R. 439). She also reported
instability of her left lower leg and related falls that
happen when she does not wear her brace. Id. At her
next appointment on January 2, 2013, nothing had changed (R.
February 27, 2013, Plaintiff reported her left leg pain was
increasing in frequency and severity, and medications that
used to work reasonably well now only
“intermittently” decreased pain to an acceptable
level (R. 437). She inquired about surgery, but the most
recent assessment a year ago indicated she was not a
candidate for surgery. Id. Her gait was antalgic;
Dr. Shramowiat observed decreased left knee strength, diffuse
tenderness of the left knee, and mild restrictions with knee
flexion an extension. Id. Dr. Shramowiat referred
Plaintiff to an orthopedic surgeon; she was awaiting
authorization for physical therapy at that time. Id.
next appointment on April 25, 2013, her leg pain and
instability remained unchanged; she again reported daily pain
that worsened with weight-bearing activities, and worsened at
night (R. 436). The referrals and authorizations Dr.
Shramowiat requested were denied by Workers' Compensation
on April 2, 2013, because Plaintiff was “at maximum
medical improvement with no need for further
treatment.” Id. Upon physical examination, her
gait was still antalgic, she still had tenderness throughout
left knee down to her left ankle, and her left leg strength
was decreased still at her hip and knee. Id. Dr.
Shramowiat noted Plaintiff was continuing to work with an
attorney to get her injuries and treatment addressed.
25, 2013, Plaintiff returned to Mountaineer Pain Relief still
complaining of chronic neck pain that radiated between her
shoulders and was worse on the left; she also reported
stiffness and crepitus in her spine (R. 428). A physical
examination revealed decreased cervical range of motion,
cervical paravertebral tenderness, and moderate bilateral
trapezius muscle tightness and tenderness. Id.
Methylprenisolone and Lidocaine injections were again
returned again on October 22, 2013 after her knee gave out on
her, causing her to fall and hit her head on the linoleum
floor, resulting in headaches, increased neck pain, and
increased upper left arm pain (R. 425). Plaintiff reported
headaches in the back of her head that radiate to the frontal
region bilaterally, as well as dizziness and changes in
vision (R. 423). Zomig, which used to alleviate her
headaches, was not helping the headaches she had since her
fall (R. 425). A physical examination revealed mild
restrictions in cervical range of motion and moderate
tenderness over the greater occipital nerves, as well as
moderate tightness and tenderness of the trapezius muscle.
Id. Dr. Shramowiat diagnosed cephalgia, status post
fall; greater occipital neuralgia, neck pain, and left
cervical radiculopathy, for which Plaintiff was given double
her usual dose of injections. Id. Her problems with
her left leg continued unabated from the last visit (R. 423).
On November 5, 2013, results of a urine screen on October 22,
2013 - apparently done periodically for Plaintiff because she
was prescribed strong narcotic pain relievers - showed that
she was taking her Hydrocodone but had not taken the
Hydromorphone (R. 432). A note indicating that office
personnel had notified Plaintiff to take her medications as
prescribed was handwritten on this screen. Id.
Subsequent screens showed that Plaintiff was consistently
taking prescription-strength pain medications.
appointment on December 18, 2013, Plaintiff reported that her
headaches had subsided, but her left knee pain and
instability continued unabated (R. 422). A physical
examination was essentially the same, with Plaintiff
reporting discomfort throughout the range of motion testing.
Id. On March 6, 2014, Plaintiff continued to
complain of daily neck pain of varying intensity with
intermittent pain radiating to her shoulders, moreso in her
left shoulder (R. 420). Chronic left knee pain and
instability continued unabated. Id. On May 5, 2014,
Dr. Shramowiat observed that she had difficulty walking and
could only walk short distances (R. 419). Moderate to severe
muscle tightness in the thoracic paravertebral region and
crepitus at the left knee were also present. Id. No
changes were noted at her next visit on July 3, 2014 (R.
August 26, 2014, Dr. Shramowiat again noted constant and
chronic low back and neck pain, osteoarthritis and pain in
her left knee, and numbness in her left leg. (R 417) She
requested a referral to a surgeon for a consult. Id.
An x-ray of Plaintiff's sacrum and coccyx, pursuant to
“two falls recently with tailbone pain, ” showed
no fractures but calcified pelvic phleboliths (R. 616). An
x-ray dated September 14, 2012 of Plaintiff's right foot
showed “abnormal appearance of the distal
interphalangeal joint of the second digit;” showing a
dislocated distal phalanx but no fracture (R. 618).
October 14, 2014, Plaintiff was seen by Heidi Rusk, PA-C who
reviewed x-rays of both knees and diagnosed osteoarthritis of
the left knee, for which she received another injection (R.
637). Physical therapy for knee strengthening and
conditioning was also recommended; the provider told
Plaintiff that “many of the symptoms going down the
leg, and likely the leg weakness, is coming from her low back
and not her knee.” Id. Plaintiff's most
recent documented visit to Dr. Shramowiat at Mountaineer Pain
Relief was consistent with prior visits; Plaintiff continued
to have constant and chronic low back pain, neck pain, and
left knee pain (R. 639). Doctor Shramowiat also noted that
Plaintiff saw Dr. Herriott the day prior; he gave her an
injection in her knee, and was “going to try to hold on
surgery on the left knee at this time” (presumably,
“hold off on”). Id.
November 14, 2012, results of a Ventilatory Function test
showed a normal FEV1 but reduced FEV1/FVC ratio, leading to a
diagnosis of “minimal obstructive airways disease -
peripheral airway” (R. 324).
February 20, 2013, Frank Bettoli, Ph.D. of Parkersburg
Psychological Services conducted a consultative evaluation of
the Plaintiff (R. 328). Dr. Bettolli noted that she walked
with the assistance of her cane and wore a brace on her knee
(R. 330). Plaintiff's appearance, attitude/behavior,
demeanor, and mood were appropriate. Id.
Plaintiff's thought process was “somewhat expansive
and tangential, ” while her thought content was
“generally relevant, though as times irrelevant and
with excessive detail.” Id. She has had
suicidal thoughts in the past, though denied having them at
present. Id. Immediate memory and recent memory was
“mildly deficient, ” while remote memory was
“fair” (R. 331). Although her persistence and
pace were within normal limits, her concentration was poor.
Id. Social functioning was within normal limits
during the evaluation. Id. Outside the evaluation,
Plaintiff reported spending time with a friend and sometimes
with family; she enjoys spending time with her children and
Bettoli diagnosed Major Depressive Disorder, recurrent,
severe without psychotic features (R. 331). His diagnosis was
based on “intermittent periods of acute depression
lasting up to several weeks at a time, ” elaborating:
These periods involve depressed and sad moods, anhedonia,
decreased energy and social isolation, insomnia and decreased
appetite, ruminative thinking, and suicidal ideation. There
is no clear evidence of any mixed or manic episodes. Crucita
did report that she sometimes hears indistinct voices of a
male and a female or two children playing. It was not clear
whether these occur exclusively within the course of a
Id. Dr. Bettoli also observed that Plaintiff
“displayed some characteristics which may be indicative
of an attention deficit disorder, ” elaborating:
During the interview, she was impulsive and tangential,
tended to interrupt, and had difficulty containing her verbal
responses. She also did not do very well with the
concentration portion of the Mental Status Examination.
However, based upon this interviewer's current
information, an additional diagnosis of ADHD was not merited.
Id. Dr. Bettoli believed Plaintiff was capable of
managing her finances. Id.
DIB at Initial Level
February 25, 2013, Karl G. Hursey performed a review of
mental and emotional factors only (R. 86). Reviewer Hursey
found Plaintiff had mild restriction of activities of daily
living; moderate difficulties in maintaining social
functioning, moderate difficulties in maintainin
concentration, persistence, or pace; and no repeated episodes
of decompensation (R. 85). Sustained concentration and
persistence limitations were moderately limited in ability to
carry out detailed instructions, ability to maintain
attention and concentration for extended periods, ability to
interact appropriately with the general public, and ability
to work in coordination with or in proximity to others
without being distracted by them. (R. 89). Social interaction
limitations were moderately limited in ability to interact
appropriately with the general public, and ability to get
along with coworkers or peers without distracting them or
exhibiting behavioral extremes. Id. Reviewer Hursey
found that “Claimant can manage structured interactions
with supervisors, co-workers, and the public in a
non-adversarial environment.” (R. 90) He observed that
Plaintiff “shows some severe mental /emotional
impairments that produce mild and moderate functional
limitations; however Clmt retains the mental /emotional
capacity to carry out simple, routine tasks within the
limitations identified above and within any physical
limitations that might be found.” Id.
November 21, 2012, Saima Noon found the following exertional
limitations: occasionally lifting or carrying 25 pounds;
frequently lifting or carrying 10 pounds; stand or walk for 6
hours in an 8 hour workday; sit for 6; unlimited pushing and
pulling, excluding limitations for lifting and carrying. (R.
87). She opined Plaintiff could occasionally climb ramps,
stairs, ladders, ropes, and scaffolds (R. 87); and
occasionally balance, stoop, kneel, crouch, and crawl (R.
88). Reviewer Noon found Plaintiff could perform past
relevant work of “driver.” Id. She
posited environmental limitations of avoiding concentrated
exposure to extreme cold, vibration, fumes, odors, dusts,
gases, poor ventilation, machinery, and heights, with
unlimited exposure to extreme heat, wetness, humidity, and
DIB at Reconsideration Level
September 5, 2013, Frank Roman, Ed.D. concurred with Reviewer
Hursey, finding mild restriction of activities of daily
living, as well as moderate difficulties in maintaining
concentration, persistence, or pace, and moderate
difficulties in maintaining social functioning. More
specifically, the mental RFC detailed sustained concentration
and persistence limitations in that Plaintiff was moderately
limited in ability to carry out detailed instructions,
ability to maintain attention and concentration for extended
periods, and ability to work in coordination with or in
proximity to others without being distracted by them. (R.
104). As to Plaintiff's social interaction limitations,
she was moderately limited in ability to interact
appropriately with the general public, and ability to get
along with coworkers or peers without distracting them or
exhibiting behavioral extremes (R. 105).
September 6, 2013, Ativa M. Lateef, M.D.'s physical RFC
found medically determinable impairments that can be expected
to produce pain or other symptoms, though statements about
intensity, persistence, and functionally limiting effects of
symptoms were not substantiated by OME alone (R. 101).
Plaintiff was found partially credible, considering her adult
function report and activities of daily living. Dr. Lateef
found the following exertional limitations: occasionally
lifting or carrying 25 pounds; frequently lifting or carrying
10 pounds; standing or walking for 4 hours in an 8 hour
workday; siting for 6 hours; and unlimited pushing and
pulling, excluding limitations for lifting and carrying. (R.
102-103). Dr. Lateef opined Plaintiff could occasionally
climb ramps, stairs, but never climb ladders, ropes, or
scaffolds; she could occasionally balance, stoop, kneel,
crouch, and crawl (R. 103). Environmental limitations
consisted of avoiding concentrated exposure to extreme cold,
vibration, fumes, odors, dusts, gases, and poor ventilation,
and avoiding all exposure to machinery and heights, with
unlimited exposure to extreme heat, wetness, humidity, and
noise. Id. Dr. Lateef found Plaintiff could perform
“manager fast food service” as general performed
in national economy (R. 107).
testified as to her personal information at the
administrative hearing on November 4, 2014. She was born on
July 5, 1957, and was fifty-seven (57) years old at the time
of the hearing (R. 64). She was currently married, and lived
with her husband in Middlebourne, West Virginia. Id.
She graduated from high school, her highest level of
next testified as to her work history. She was employed by
Mentor Management as an in-home aide to the mentally
handicapped (R. 65). She was unable to continue in that work
because she could not perform requirements such as going up
and down steps and vacuuming. Id. She was employed
in the latter part of 2012 by Cathy Parsons Consulting, where
she escorted truck drivers for well companies (R. 66). She
could not continue that work because it involved 1) long
hours driving and she was not able to take occasional breaks
from sitting because the drivers were on a schedule, and 2)
driving a manual transmission which required frequent
engagement of the clutch with her left leg, in which she has
no feeling due to permanent nerve damage. Id. The
issues with her leg were due to an on-the-job injury, and
were covered at that time on a temporary basis by a
worker's compensation plan and settlement (R. 67).
also attempted to find other work she could perform,
considering restaurant work because she had enjoyed that type
of work in the past (R. 67). However, concerns about having
to lift heavy things, especially those that were hot off the
stove, scared Plaintiff because she has had carpal tunnel
surgery in both hands and her wrists were very weak.
Id. She was worried about this because she had
dropped even “small kettles” at home when trying
to move them, and items in a commercial kitchen would be at
least as heavy, or often, heavier. Id.
carpal tunnel in her wrists that also forced her to stop
working in 2007 at another job, at Simonton Building
Products, where she made sash:
That's where I got carpal tunnel the last time and they
said they could no longer let me work because, you know, the
doctor refused to do the surgery because I would go straight
back to there and it would redo it all over again. And he
said that he would not do the surgery and Simonton's
saying, well, we can't use you.
(R. 68). Plaintiff had tried to get a different position
within Simonton that she would be able to perform, but
Simonton did not grant her an interview even after she
applied to be a phone operator there. Id. Prior to
her employment with Simonton, Plaintiff had also worked at
PPG Cafeteria with the Compass Group, where she helped run
the kitchen, and prepared and served food (R. 68-9).
next testified as to the problems and impairments she
experienced with her leg:
Q: [A]s far -- at what part of your leg do you not have any
A: I don't have it in the lower -- basically it's the
whole leg but the, the one that hurts the worst is from the
knee on down to my, my toes.
Q: Well, when you say no feeling at all, I mean, that, that
kind of give me the impression that when you stand up you
can't feel your foot on the ground.
A: . . .[T]otally honest with you, I barely feel it, if I
feel it all. I have arthritis in there.
Q: How are you able to walk on it then?
A: Walk very carefully.
Q: Do you have a cane?
A: Yes, I do.
Q: Did you bring it with you today?
A: It's in the car. I was just parked across the road.
(R. 69). Representative for the Plaintiff then asked
clarifying questions. Plaintiff elaborated that it was
specifically leg and back pain that necessitated taking
breaks in driving, which was problematic in her work for
Parsons Consulting as a driver escort (R. 70). She does still
drive, but has to drive an automatic, and has to take a
ten-minute break if she drives for longer than one (1) hour
(R. 71). She testified that her left leg gives her trouble
when walking not just in terms of pain and numbness, but also
“goes out” on her. Id. Her leg causes
her to spend most of her day sitting. Id. She does
what she can of housework and appointments she has to keep,
but is limited. Id. In terms of housework, she
can't vacuum or stand at the sink to do dishes.
Id. To compensate, she had to buy a dishwasher.
as an in-home aide required her to do the kinds of household
activities that she has difficulty with, because it was her
job to help her clients with dishes, laundry, sweeping, and
mopping (R. 72). She wears a leg brace which she puts on
first thing in the morning and takes off before going to bed.
in the hearing, the ALJ further inquired of Plaintiff as to
her prior work as an order clerk. Plaintiff was employed on a
seasonal basis by Cabela's, from August through December
of 2004 and 2005 to assist with duck season and the Christmas
season (R. 74). Plaintiff also clarified that she worked at
the pizza restaurant for about five months when she had to
leave because her husband had triple bypass surgery and she
could not manage both work and caring for him (R. 75).
Patricia McFann, an impartial vocational expert
(“VE”), also testified at Plaintiff's
administrative hearing. The VE testified that Plaintiff's
work as a mental retardation aide is light and semiskilled
with a Specific Vocational Preparation (“SVP”): 3
(R. 73). The VE also noted that Plaintiff did a lot of
sitting in her last assignment, but that “you can't
always get the job as a companion and just be seated all the
time” (R. 73-4). Plaintiff's previous work as an
assistant manager for a pizza business is light and skilled
with an SVP: 5 (R. 74). Plaintiff's previous work as a
cafeteria cook and worker is medium and skilled, with an SVP:
6. Id. Plaintiffs previous work as a sash fabricator
in the window industry is medium and skilled, with an SVP: 5.
Id. Plaintiff's previous work as an order clerk
is light and semiskilled with an SVP: 3. Id.
then asked the VE the following hypothetical:
All right. Let's assume a person of the claimant's
age, education, and work background. Such a person is limited
to light work as defined in the regulations. They should
avoid ropes, ladders, or scaffolds. They can climb ramps and
stairs only occasionally and perform other postural
activities only frequently. There should be no work at
unprotected heights, no concentrated exposure to dust, fumes,
gases, poor ventilation, noxious odors, (INAUDIBLE)
inertants, no concentrated exposure extremes of cold or to
vibrations. I'm sorry. Let's modify that a little bit
with the postural activities and limit only to no, no
crawling there, no crawling, ropes, ladders, or scaffolds,
occasional ramps, stairs, and (INAUDIBLE). HA: I can't
understand you, Judge. I'm sorry. Q I'm too far away
from the mic. I'm modifying the -- what I earlier said in
the hypothetical to be no ropes, ladders, scaffolds, also, no
crawling, occasional ramps and stairs and other postural
activities only frequently. Is such a person able to perform
the claimant's past work?
(R. 76). The VE opined that such an individual would be able
to employed as a companion, which is light and semiskilled
with an SVP of 3, and also as an order clerk, which is light
and semiskilled. Id. The ALJ then added a limitation
to this hypothetical: if the individual should have no more
than occasional forceful gripping or twisting with either
hand, and no more than frequent handling and fingering with
either hand. The VE testified that both jobs would still be
feasible, and that there would be no skills that would
transfer from those jobs into sedentary with the same
restrictions (R. 77).
counsel then inquired of the ALJ, based on Exhibits 5F and
11F, if that hypothetical individual could not tolerate
constant contact with others and was reduced to only frequent
contact with others, if companion work would still be
feasible (R. 77). The VE stated that it would; however, less
than frequent contact with others would eliminate companion
work. Id. Counsel then revised the hypothetical
posed to the VE:
ATTY: Okay. Ms. McFann, I also want to look at the same
hypothetical I just gave you but I want to remove the
socials. So go back to -- reset to the -- where we just were.
The limitation regarding handling and fingering, that was
less than frequent. If that was occasional, would that still
allow for those light level jobs? VE: Not, not the jobs
Id. That concluded the administrative hearing.
Work History Reports and Pain Questionnaires
Work History Report
October 13, 2012, Plaintiff completed a work history report
with the help of her husband, Earl. From 1986 to 2001, she
worked in food service; (R. 218). From 2001 to 2006, she
worked for Simonton Windows as a sash fabricator.
Id. In this position, she walked, stood, sat,
handled large and small objects, and reached all day (R.
223). She frequently llisted ten (10) pounds, and lifted as
much as twenty (20) pounds at times. Id. From 2006
to 2007, she worked for Defelice's Pizza as an assistant
manager (R. 221). Per day, she walked, stood, kneeled,
reached, grasped, wrote and handled small objects for eight
(8) hours; she sat for one (1) hour. Id. She lifted
less than ten (10) pounds frequently, but lifted as much as
twenty (20) pounds at times. Id. In this position,
she supervised, hired, and fired employees. Id. From
2007 to 2012, she worked for REM in assisted living three
days per week, supervising mentally challenged persons and
sitting for ten (10) to twelve (12) hours per day (R. 220).
In July 2012, she drove an escort vehicle, which required her
to sit for twelve (12) hours a day (R. 219). On July 22,
2013. Plaintiff completed a second Work History Report that
was essentially consistent with her previous Work History
Report (R. 269).
October 13, 2012, Plaintiff completed a Pain Questionnaire
with the help of her husband, Earl. (R. 230). Plaintiff
reported constant pain in her back, knee, ankle and hip, and
described it as aching, stabbing, burning, stinging,
cramping, and throbbing (R. 226). The pain she experienced
was frequently a “10” on a scale of 1-10, was
worsened by changing weather and physical activity.
Id. She began taking Hydrocodone and Flexeril, which
would relieve the pain only some of the time (R. 227). Side
effects of these medications included an inability to stay
awake and function normally. Id.
22, 2013. Plaintiff completed a second Pain Questionnaire
that was essentially consistent with her previous Pain
Questionnaire, with the addition of neck and hand pain (R.
Adult Function Report
October 13, 2012, Plaintiff completed an Adult Function
Report. In the Report, Plaintiff stated that her knee and
ankle give out without warning; she also has severe
depression, COPD, and an immune deficiency (R. 211). As for
her daily activities, Plaintiff reported watching TV and
trying to do housework “as [she] can” (R. 212).
She reported taking care of meals and clothing, while her
husband has to wash dishes and helps with clothing.
Id. Plaintiff and her husband jointly care for their
pets. Id. Before her medical issues, she was able to
do almost anything she wished to, which is no longer the
case. Id. Her sleep is affected by sleep apnea.
personal care, Plaintiff reported that she is able to feed
herself without difficulty. However, she has difficulties
getting dressed, and must sit down in order to dress herself.
Id. Her leg prevents her from bathing as often as
she needs to, and causes difficulty getting to, and up from,
the toilet. Id. Plaintiff cannot vacuum, mop, or do
any yard work due to her leg. (R. 213). Plaintiff checked
“No” to the question “When going out, can
you go out alone?” but clarified that “usually,
[her] daughter in law will go with [her].” Id.
She is able to drive, and shops for groceries once a week.
Id. Although she can count change and write checks,
Plaintiff reported difficulty keeping bills in order and
balancing a checkbook, which has caused her to overdraw her
hobbies include watching television and making jewelry, which
she does daily (R. 214). She used to do things with her
husband that she can no longer do, such as hunting, riding
ATVs, watching NASCAR races, and shopping. Id.
social activities, Plaintiff reports that she does not spend
time with others and does not go places on a regular basis
(R. 214). She needs to be reminded of doctor's
appointments. Id. She argues with her husband due to
her depression, and no longer socializes (R. 215).
reports that her conditions affect her ability to stand, sit,
walk, kneel, squat, bend, lift, reach, climb stairs, and talk
(R. 215). Her memory, concentration, and understanding, as
well as her ability to concentrate, follow instructions, and
get along with others are also affected. Id. She
cannot lift her grandchildren or walk 100 yards without
stopping to rest for at least five minutes before resuming.
Id. She can pay attention “maybe 10 or ten
minutes, ” has trouble finishing what she starts, and
gets confused with both written and spoken instructions.
gets along “fine” with authority figures, but
reports being fired or laid off from a job because of
problems getting along with an employee who called her names
(R. 216). She does not handle stress well, but fares better
with changes in her routine. Id. She reports hearing
voices and noises when home alone. Id.
has used crutches, a walker, and a wheelchair in the past,
but not presently; now, she uses a cane and a brace on her
leg daily (R. 216). Her current medications included
Hydrocodone for pain and Trazodone, both of which have side
effects (R. 217). Plaintiff reported that the Hydrocodone
makes her extremely sleepy and irritable, while the Trazodone
makes her fight sleep. Id.
22, 2013. Plaintiff completed a second Adult Function Report
which was mostly consistent with her previous Adult Function
Report with a few additions (R. 253). She was having
difficulty sleeping and reported numbness in her feet.
Id. She cut her hair short to make it easier to
manage, reported having trouble shaving her legs, needing
help getting dressed on occasion, and being unable to feed
herself or use the toilet without help. Id. She
wrote that her husband now paid the bills because she could
not concentrate (R. 266). Plaintiff reported being afraid
that she would die in her sleep, which caused her to fight
sleep (R. 267). As to abilities, “is hard lift or
anything else due to leg going numb or tingling Has caused me
to fall cannot concentrate due to pain” [sic] (R. 266).
She could not recall her medications. (R. 268).
attached Patient Profile Report from Phillips Pharmacy shows
medications prescribed to Plaintiff in April and May 9, 2013,
included Hydrocodone, Cyclobenzaprine, Celebrex, Fluoxetine,
Spiriva, Ranitidine, Spironolactone, Trazodone, Metoprolol,
Simvastatin, Proair, Clonazepam, Losartan, Zomig, and Advair
(R. 277). This was largely consistent with Claimant's
Medications form, which included Hydrocodone and
Cyclobenzaprine for pain; Spiriva, Qvar, and Proair for COPD;
Ranitidine for heartburn; Metoprolol, Spironolactone, and
Losartan Potassium for blood pressure, Patroprazole for acid
reflux, Klonopin for anxiety, Trazodone for sleep,
Simvastatin for cholesterol, Fluoxetine for depression, and
Potassium (R. 293-4).
THE FIVE STEP EVALUATION PROCESS
disabled under the Social Security Act, a claimant must meet
the following criteria:
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. . . .
'[W]ork which exists in the national economy' means
work which exists in significant numbers either in the region
where such individual lives or in several regions of the
42 U.S.C. § 423(d)(2)(A) (2004). The Social Security
Administration uses the following five-step sequential
evaluation process to determine whether a claimant is
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled.
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments
that is severe and meets the duration requirement, we will
find that you are not disabled.
(iii) At the third step, we also consider the medical
severity of your impairments(s). If you have an impairment(s)
that meets or equals one of our listings . . . and meets the
duration requirement, we will find that you are disabled.
[Before the fourth step, the [RFC] of the claimant is
evaluated “based on all the relevant medical and other
evidence in your case record . . . ."]
(iv) At the fourth step, we consider our assessment of your
[RFC] and your past relevant work. If you can still do your
past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of
your [RFC] and your age, education, and work experience to
see if you can make an adjustment to other work. If you can
make an adjustment to other work, we will find that you are
not disabled. If you cannot make an adjustment to other work,
we will find that you are disabled.
20 C.F.R. § 404.1520 (2015); 20 C.F.R. § 416.920
(2012). In steps one through four, the burden is on the
claimant to prove that he or she is disabled and that, as a
result of the disability, he or she is unable to engage in
any gainful employment. Richardson v. Califano, 574
F.2d 802, 804 (4th Cir. 1978). Once this is proven, the
burden of proof shifts to the Government during step five to
demonstrate that jobs exist in the national economy that the
claimant is capable of performing. Hicks v. Gardner,
393 F.2d 299, 301 (4th Cir. 1968). If the claimant is
determined to be disabled or not disabled at any of the five
steps, the process will not proceed to the next step. 20
C.F.R. § 404.1520; 20 C.F.R. § 416.920.
THE ADMINISTRATIVE LAW JUDGE DECISION
the five-step sequential evaluation process described above,
the ALJ made the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful
activity since July 7, 2012, the alleged onset date (20
CF'R 404.1571 et seq.).
3. The claimant has the following severe impairments:
obesity, degenerative disc disease of the lumbar spine,
status-post left tibia fracture with left tibial neuropathy,
chronic obstructive pulmonary disease (COPD), and carpal
tunnel syndrome status-post release (20 CF'R
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 and 404.1526).
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) except she must avoid ropes, ladders, and
scaffolds. She could climb ropes and scaffolds occasionally
and could perform all other postural activities frequently.
She could not work around unprotected heights. She must avoid
concentrated exposure to dusts, fumes, gases, and poor
ventilation. She must avoid concentrated exposure to
vibrations and extremes of cold. She could not perform
crawling. She could perform no more than occasional forceful
gripping or twisting of the bilateral upper extremities, and
no more than frequent fingering and handling with the
bilateral upper extremities.
6. The claimant is capable of performing past relevant work
as a companion and an order clerk. This work does not require
the performance of work-related activities precluded by the
claimant's residual functional capacity (20 CFR
7. The claimant has not been under a disability, as defined
in the Social Security Act, from July 7, 2012, through the
date of this decision (20 CFR 404.1520(1)). (R. 45-53).
Scope of Review
reviewing an administrative finding of no disability the
scope of review is limited to determining whether “the
findings of the Secretary are supported by substantial
evidence and whether the correct law was applied.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Substantial evidence is “such relevant evidence
as a reasonable mind might accept to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). Elaborating on this
definition, the Fourth Circuit has stated that substantial
evidence “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 jury
verdict were the case before a jury, then there is
‘substantial evidence.'” Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984)
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1968)). In reviewing the Commissioner's decision,
the reviewing court must also consider whether the ALJ
applied the proper standards of law: “A factual finding
by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.”
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
Contentions of the Parties
argues in her Memorandum of Support of her Motion for
Judgment on the Pleadings that:
1. The ALJ's finding Ms. Kendle's mental impairment
to be a non-severe impairment is not supported by substantial
2. The ALJ failed to comply with 20 C.F.R. § 404.1527 in
evaluating the medical opinions of record.
3. The ALJ's pain analysis and credibility findings were
not in compliance with regulatory and case law.
(ECF No. 13). The Commissioner contends:
1. Substantial evidence supports the ALJ's conclusion
that Plaintiff's mental impairments did not significantly
limit her ability to perform basic work activities, and
therefore were not severe.
2. Substantial evidence supports the ALJ's evaluation of
the medical opinion evidence.
3. Substantial evidence supports the ALJ's conclusion
that Plaintiff's subjective complaints were only
partially credible (ECF No. 16-1).
Issue of Medical Opinion (Weight)
C.F.R. § 404.1527 defines a “medical
opinion” as “statements from physicians or
psychologists . . . that reflect judgments about the nature
and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite
impairment(s), and your physical and mental
restrictions.” Here, there are numerous medical
opinions in the record. Plaintiff's pain specialist, Dr.
Shamrowiat, is a treating physician due to his longitudinal
and frequent treatment of Plaintiff over the past few years.
The record includes his treatment records, but does not
contain a specific opinion as to disability from Dr.
Shamrowiat with regard to Plaintiff's limitations or
ability to work. However, to the extent that his records
reflect opinions as to nature and severity, symptoms,
diagnosis, and treatment, those opinions are from a treating
physician and must be analyzed as such. The same is true for
Dr. Nichols, though not a specialist. The regulations,
specifically 20 C.F.R. § 404.1527(c), discuss how the
ALJ weighs treating source medical opinions:
How we weigh medical opinions. Regardless of its
source, we will evaluate every medical opinion we receive.
Unless we give a treating source's opinion controlling
weight under paragraph (c)(2) of this section, we consider
all of the following factors in deciding the weight we give
to any medical opinion:
(1) Examining relationship. Generally we give more
weight to the opinion of a source who has examined you than
to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since these
sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your
impairment(s) is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the]
case record, we will give it controlling weight. When we do
not give the treating source's opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i)
and (c)(2)(ii) of this section, as well as the factors in
paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the opinion. We will always
give good reasons in our notice of determination or decision
for the weight we give your treating source's opinion.
(i) Length of the treatment relationship and the
frequency of examination. Generally, the longer a
treating source has treated you and the more times you have
been seen by a treating source, the more weight we will give
to the treating source's medical opinion. When the
treating source has seen you a number of times and long
enough to have obtained a longitudinal picture of your
impairment, we will give the source's opinion more weight
than we would give it if it were from a non treating source.
(ii) Nature and extent of the treatment
relationship. Generally, the more knowledge a treating
source has about your impairment(s) the more weight we will
give to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and extent
of examinations and testing the source has performed or
ordered from specialists and independent laboratories.
(3) Supportability. The more a medical source
presents relevant evidence to support an opinion particularly
medical signs and laboratory findings, the more weight we
will give that opinion. The better an explanation a source
provides for an opinion the more weight we will give that
opinion. Furthermore, because nonexamining sources have no
examining or treating relationship with you, the weight we
will give their opinions will depend on the degree to which
they provide supporting explanations for their opinions. We
will evaluate the degree to which these opinions consider all
of the pertinent evidence in your claim, including opinions
of treating and other examining sources.
(4) Consistency. Generally, the more consistent an
opinion is with the record as a whole, the more weight we
will give to that opinion.
(5) Specialization. We generally give more weight to
the opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a source
who is not a specialist.
(6) Other factors. When we consider how much weight
to give a medical opinion, we will also consider any factors
you or others bring to our attention, or of which we are
aware, which tend to support or contradict the opinion. For
example, the amount of understanding of our disability
programs and their evidentiary requirements that an
acceptable medical source has, regardless of the source of
that understanding, and the extent to which an acceptable
medical source is familiar with the other information in your
case record are relevant factors that we will consider in
deciding the weight to give to a medical opinion.
it is not binding on the Commissioner, a treating
physician's opinion is entitled to great weight and may
be disregarded only if persuasive contradictory evidence
exists to rebut it. See Coffman v. Bowen, 829 F.2d
514, 517 (4th Cir. 1987). Such opinions should be accorded
great weight because they “reflect an expert judgment
based on a continuing observation of the patient's
condition over a prolonged period of time.”
Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir.
1983). In Craig v. Chater, however, the Fourth
Circuit further elaborated on this rule:
Circuit precedent does not require that a treating
physician's testimony “be given controlling
weight.” Hunter v. Sullivan, 993 F.2d 31, 35
(4th Cir. 1992). In fact, 20 C.F.R. §§
404.1527(c)(2) and 416.927(d)(2) (emphasis added) both
[i]f we find that a treating source's opinion on the
issue(s) of the nature and severity of [the] impairment(s) is
well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record, we will
give it controlling weight.
By negative implication, if a physician's opinion is not
supported by clinical evidence or if it is inconsistent with
other substantial evidence, it should be accorded
significantly less weight.
76 F.3d 585, 590 (4th Cir. 1996). In addition,
“[n]either the opinion of a treating physician nor the
determination of another governmental entity are binding on
the Secretary.” DeLoatch v. Heckler, 715 F.2d
148, 150 n.1 (4th Cir. 1983). Thus, “[t]he treating
physician rule is not absolute.” See Hines v.
Barnhart, 453 F.3d 559, 563 n.2 (4th Cir. 2006).
Fourth Circuit has also noted that a court “cannot
determine if findings are supported by substantial evidence
unless the Secretary explicitly indicates the weight given to
all of the relevant evidence.” Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). An
ALJ's failure to do this “approaches an abdication
of the court's ‘duty to scrutinize the record as a
whole to determine whether the conclusions reached are
rational.'” Arnold v. Sec'y of Health, Ed.
& Welfare, 567 F.2d 258, 259 (4th Cir. 1977)
(quoting Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Cir. 1974)). Here, the ALJ's opinion lacks the proper
weight analysis for Plaintiff's treating physicians, as
Dr. Shramowiat is a treating physician, the ALJ was required
to explain how much weight was afforded to his opinion and
why, reviewing the relevant factors, which he did not
sufficiently do. Apart from a general conclusion that the
medical evidence was, in the ALJ's lay opinion,
“weak, ” - which as discussed in more detail
below, the undersigned finds unsupported by substantial
evidence - his documented longitudinal opinions about the
nature and severity of Plaintiff's issues, especially
with her left leg and accompanying pain, as well as his
diagnosis, were not analyzed and weighed according to the
appropriate legal standard.
record contained three psychological opinions: two from state
agency reviewers Karl G. Hursey, M.D., and Frank Roman,
Ed.D., and one Consultative Evaluation opinion from Frank
Bettoli, Ph.D. As to the agency reviewers, the ALJ stated in
his opinion that:
The undersigned has considered the findings of State agency
consultants Karl G. Hursey, M.D., and Frank Roman, Ed.D.
(Exhibits IA and 3A), who found the claimant to have moderate
limitations in social functioning and concentration,
persistence and pace, but noted the claimant had the mental
and emotional capacity to carry out simple, routine tasks
(Exhibits 1A and 3A).
These findings are afforded some weight. While the doctors
retain significant program knowledge and an expertise in
mental health, evaluations of "moderate"
limitations are simply not supported by the medical evidence
in Plaintiff's daily activities were found to be mild by
reviewers Hursey and Roman. The only evidence cited by the
reviewers relevant to credibility was that “[Plaintiff]
is able to leave home when needed, for example to manage
shopping or appointments. AFR states does not go out alone
but drove herself to CE.” In the absence of any other
cited evidence, this appears to be the sole basis for finding
Plaintiff partially credible in terms of mental symptoms, and
in part supports finding mild - as opposed to any greater -
limitations in daily activities on mental (not physical)
grounds. (R. 85, 101). Dr. Bettoli was unable to address
daily activities with Plaintiff due to time constraints (R.
331), leaving the state agency reviewers' opinions of
mild limitations undisputed by any other professional
Sustained concentration and persistence limitations
Bettoli found Plaintiff's persistence and pace to be
within normal limits, but found concentration to be poor.
Reviewers Hursey and Roman, who both reviewed Dr.
Bettoli's consultative examination report, concurred that
Plaintiff was “moderately limited in ability to carry
out detailed instructions, ability to maintain attention and
concentration for extended periods, ability interact
appropriately with the general public, and ability to work in
coordination with or in proximity to others without being
distracted by them (R. 89; R. 104). Reviewer Hursey cited to
specific evidence to support the cognitive findings, noting
that Plaintiff has “relatively frequent functional
difficulties [due to] cognitive problems, ” her
concentration was “notably poor” at the
consultative examination, and she “may have difficulty
with routine tasks from time to time [due to] memory
problems” (R. 86). Dr. Roman affirmed these findings
Social interaction limitations
Bettoli conducted a consultative examination and diagnosed
“Major depressive disorder, recurrent, severe, without
psychotic features” (R. 331). His diagnosis was based
on “intermittent periods of acute depression lasting up
to several weeks at a time, ” involving
“depressed and sad moods, anhedonia, decreased energy
and social isolation, insomnia and decreased appetite,
ruminative thinking, and suicidal ideation.”
Id. He also observed that Plaintiff “displayed
some characteristics which may be indicative of an attention
deficit disorder, ” including being “impulsive
and tangential, ” interrupting, and having difficulty
containing her verbal responses; but he could not make a
diagnosis of ADHD based upon his current information.
Id. Plaintiff also performed poorly on the
concentration portion of the mental status examination.
Id. Dr. Bettoli's prognosis was as follows:
Regarding her mental and emotional functioning, Crucita does
have periods of significant depression which would reasonably
interfere with her ability to attend work and also to perform
appropriately if she were in attendance. She has managed to
benefit in the past from psychotherapy and was strongly
encouraged to do so. She may make additional improvements by
doing so. By her report, she has in recent months been
utilizing a combination of medications, which help her in
managing her depression effectively.
(R. 332). Reviewers Hursey and Roman considered Dr.
Bettoli's consultative examination report findings on
social limitations, and both agreed that Plaintiff was
“moderately limited in her ability to interact
appropriately with the general public, and in her ability to
get along with coworkers or peers without distracting them or
exhibiting behavioral extremes” (R. 89). Reviewer
Hursey cited to specific evidence to support the social
findings, noting that Plaintiff “struggles to manage
basic social interactions or relationships effectively,
” she is “impulsive, tangential, to interrupt
[sic], and had difficulty containing her verbal responses,
all of which suggest clear difficulties in social pragmatics
and social interaction” (R. 85). Dr. Roman affirmed
these findings (R. 101).
three psychological reviewers/examiners thus agree in the
assessment of moderate cognitive limitations. The two agency
reviewers agreed that there were mild limitations in daily
activities; Dr. Bettoli did not address this, leaving theirs
as the only two professional opinions on the subject. As to
social functioning, Dr. Bettoli concluded this was within
normal limits based on Plaintiff's self-reports of her
interactions with only those few individuals closest to her -
her best friend, and her father, children, and grandchildren
(R. 331). However, reviewers Hursey and Roman, taking this
into consideration with the record as a whole, found moderate
limitations in social functioning because, beyond how well
she is able to interact with only those closest to her,
Plaintiff was “moderately limited in ability to
interact appropriately with the general public, and
ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes” (R.
89) (emphasis added). Further, Liz Harshberger with
Crittendon Services also found that Plaintiff had
“moderate symptoms or moderate difficulty in social
impairment, occupational, or social functioning” (R.
475). Thus, three out of four mental health specialists found
that Plaintiff had moderate limitations in social
functioning. The one who found social functioning to be
within normal limits, Dr. Bettoli, based that finding on only
a few of Plaintiff's closest and best relationships; it
was not based on her interactions in general. Under these
circumstances, and the record as a whole, the undersigned can
find no substantial evidence to support the ALJ's
decision to dismiss those opinions in favor of his own.
stated that Plaintiff âdoes well with authority figures and
has never been fired or laid off from a job for problems
getting along with others (Exhibits 11E and 12E)” (R.
46). In actuality, Plaintiff did report being fired or laid
off from a job for problems getting along with others - an
“employee calling me names I did not like” in her
Adult Function Report (AFR) on October 13, 2012 (R. 216).
Plaintiff apparently completed two subsequent AFRs, both of
which were dated on the same day - July 22, 2013 - and
answered “no” to this question (R. 259, R. 267).
However, given the ALJ's failure to inquire of Plaintiff
at the hearing as to the discrepancy, or any discernible
attempt to reconcile whether this was due to simple oversight
or difficulties in filling out forms - as Plaintiff's
poor concentration is well established by the record - this
conclusion also cannot be supported by substantial evidence.
opined that the record did not support more than mild mental
limitations because 1) Plaintiff had no “longitudinal
history of mental health treatment, ” and 2) her mental
status at the consultative examination was “relatively
normal” (R. 47). However, though it is true that
Plaintiff had no longitudinal treatment from a mental health
professional, the record clearly shows that she does
indeed have a longitudinal history of mental health
treatment for her depression, which is well
documented. She has been prescribed a variety of
antidepressants for years, and on occasion, her
antidepressant medications were changed or adjusted when her
current regimen was not helping (R. 356). As to her mental
status at the consultative examination, it is unclear from
the ALJ's opinion how her mood and appearance on one
particular day outweighs a record full of medical evidence to
support her ongoing major depressive disorder. As such, this
too is not supported by substantial evidence.
summary, none of the three psychological opinions are
required to be afforded controlling weight, since none of
them are treating psychologists. Dr. Nichols did treat
Plaintiff longitudinally for depression and prescribed her
medications, but he is not a specialist or psychologist, so
he also is not required to be afforded controlling weight.
“while an ALJ may not reject medical evidence for no
reason or for the wrong reason, see King v.
Califano, 615 F.2d 1018, 1020 (4th Cir.1980), an ALJ
may, under the regulations, assign no or little weight to a
medical opinion, even one from a treating source, based on
the factors set forth at 20 C.F.R. § 416.927(d), if he
sufficiently explains his rationale and if the record
supports his findings.” Ratliff v. Barnhart,
580 F.Supp.2d 504, 514 (W.D. Va. 2006). The ALJ states that
the agency reviewers have “significant program
knowledge and an expertise in mental health, ” but then
went on to say that “evaluations of
‘moderate' limitations simply are not supported by
the medical evidence of record” (R. 47). It is also
worth noting that although Dr. Nichols is indeed not a mental
health specialist, which the ALJ cites as supportive, Dr.
Nichols' diagnosis of Plaintiff's emotional problems,
for which he prescribed her antidepressants, was
confirmed by every other expert psychological opinion in
may not cross “the line between considering the
evidence of record and ‘playing doctor' by drawing
his own medical conclusions about [a plaintiff's] . . .
impairments.” Forquer v. Commissioner of Social
Security, No. 1:15CV57, 19 (N.D. W.Va. 2015), citing
Frank v. Barnhart, 326 F.3d 618, 621-22 (5th Cir.
2003) (noting that ALJ impermissibly made his own independent
medical assessments by drawing his own medical conclusions
from medical evidence of record). When all four psychological
opinions in the record, even those of agency reviewers and
consultative examiners - who have no relationship with the
Plaintiff and thus, unlike a treating source with an
established relationship, no possible motivation to assist a
finding of disability - are largely in agreement and are not
inconsistent with each other, as explained, an ALJ may not
disregard them all in favor of his own assessment without
substantial evidence for doing so, and without support from
the record, none of which are satisfied here.
Credibility Determination of Plaintiff's Subjective
determination of whether a person is disabled by pain or
other symptoms is a two-step process. See Craig v.
Chater, 76 F.3d 585, 594 (4th Cir. 1996); see
also 20 C.F.R. § 404.1529(c)(1); SSR 96-7p, 1996 WL
374186 (July 2, 1996). First, the ALJ must expressly consider
whether the claimant has demonstrated by objective medical
evidence an impairmentcapable of causing the degree and type of
pain alleged. See Craig, 76 F.3d at 594. Second,
once this threshold determination has been made, the ALJ
considers the credibility of the subjective allegations in
light of the entire record. Id.
Security Ruling 96-7p sets out some of the factors used to
assess the credibility of an individual's subjective
symptoms, including allegations of pain, which include:
1. The individual's daily activities; 2. The location,
duration, frequency, and intensity of the individual's
pain or other symptoms; 3. Factors that precipitate and
aggravate the symptoms; 4. The type, dosage, effectiveness,
and side effects of any medication the individual takes or
has taken to alleviate pain or other symptoms; 5. Treatment,
other than medication, the individual receives or has
received for relief of pain or other symptoms; 6. Any
measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or
her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and 7. Any other factors concerning the
individual's functional limitations and restrictions due
to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).
are a number of troubling aspects of the ALJ's rationale
with regard to Plaintiff's subjective complaints of pain
and credibility. As to the first factor, the ALJ's daily
activity analysis largely consisted of mere skepticism:
Although the claimant has described daily activities, which
are fairly limited, testifying to doing very little
throughout the day, two factors weigh against considering
these allegations to be strong evidence in favor of finding
the claimant disabled. First, allegedly limited daily
activities cannot be objectively verified with any reasonable
degree of certainty. Secondly, even if the claimant's
daily activities are truly as limited as alleged, it is
difficult to attribute that degree of limitation to the
claimant's medical condition, as opposed to other
reasons, in view of the relatively weak medical evidence and
other factors discussed in this decision.
(R. 51). What the ALJ meant exactly by “cannot be
objectively verified with any reasonable degree of
certainty” is not completely clear; further, how an ALJ
would “verify” a plaintiff's daily activities
is equally unclear. The ALJ appears to admit that
Plaintiff's daily activities are quite limited, but
simply declines to believe that they are in fact so limited -
or, in the alternative, that the reason they are so limited
is unrelated to her medical conditions. The ALJ does not
elaborate as to what “other reasons” he suspects
might be limiting Plaintiff's daily activities, nor does
he cite to any specific evidence to support this theory,
apart from a brief, general observation that the medical
evidence was “weak.” However, it is unclear how
the ALJ determined that Plaintiff did have medical
conditions that could reasonably be expected to cause the
symptoms alleged, but at the same time, that the medical
evidence was so weak as to discredit the symptoms alleged.
Commissioner does not argue, nor is there any requirement,
that a plaintiff's daily activities must be
“objectively verified” by the ALJ - though it is
still unclear what the ALJ meant by that statement - in order
to be deemed credible. Once a plaintiff has testified as to
what daily activities she does engage in, she is not required
to then also prove to an ALJ that she does not do more.
Rather, a correct statement of the law is that an ALJ may
find that a plaintiff's subjective complaints of pain are
less credible if the plaintiff's daily
activities contradict, or do not support, those
subjective complaints. Here, they do not, as the ALJ
the second factor, The ALJ stated that Plaintiff's claim
that she is “constantly” in severe pain is
“so extreme as to appear implausible.” The ALJ
appears to so conclude because she has not “providing
convincing details regarding factors which precipitate the
allegedly disabling symptoms, ” the third factor to be
evaluated (R. 51). However, at numerous points in the record,
she indicated that weight-bearing activity (R. 436, R. 636),
physical activity (R. 84, R. 100, R. 243, R. 248), and
changes in the weather (R. 84) makes her pain worse, and ice
and medications help (R. 100). It is unclear from the
ALJ's opinion why he finds those details unconvincing,
apart from mere skepticism. As such, it cannot be found to be
supported by substantial evidence, and further is
contradicted by the evidence of record.
the fourth factor, the record reveals that Plaintiff has been
taking strong prescription medications daily for the past few
years for the pain she experiences. The medications a
claimant takes is evidence relevant to a credibility
determination regarding allegations of pain. Kearse,
73 Fed.Appx. at *603 (taking only over-the-counter medications
such as Tylenol and Motrin for pain supported finding that
pain was not as severe as claimant alleged). Taking only mild
pain relievers, in absence of objective medical evidence to
support allegations of pain, and in conjunction with daily
activities that contradict those allegations, does not
support a finding of disability. Shively v. Heckler,
739 F.2d 987, 989-90 (4th Cir. 1984) (Extra
strength Tylenol and extra strength Excedrin, and a
prescription analgesic intended for mild to moderate pain,
did not sustain pain allegations alone without supporting
objective medical evidence).
ongoing and frequent visits to Dr. Shramowiat at the
Mountaineer Pain clinic are well documented, and she took
hydrocodone and hydropmorphone up to five times per
day to try to manage her pain (R. 441, R. 277).
Hydrocodone is a prescription-strength Schedule II controlled
substance and opioid pain medication designed to treat severe
pain. The ALJ did not address this directly,
relying primarily instead on his own determination that the
medical evidence was “weak, ” and mere skepticism
of Plaintiff's subjective complaints of pain. Thus, this
factor was largely ignored. To the extent that the ALJ
implies Plaintiff is simply malingering, the undersigned
finds that there is no substantial evidence to support that
conclusion. The record demonstrates that Plaintiff's left
leg consistently demonstrated slightly decreased strength
than her right, and there was some atrophy of her left leg.
Further, in his opinion, the ALJ explicitly recognized that
“some mild atrophy about the left leg and some reduced
strength in that leg, characterized as a 4/5, is documented
in the record, ” and that “motor loss (atrophy
with associated muscle weakness)” is a factor to
consider (R. 48). This objective medical evidence
demonstrates that Plaintiff is not using her left leg as much
as her right, and supports her subjective complaints of pain
as the reason.
Commissioner argues in support of the ALJ's skepticism by
noting that Plaintiff did not bring her cane inside to the
hearing (R. 69). This is unpersuasive for a number of
reasons. First, Plaintiff must wear a brace on her left leg
in order to help stabilize her knee and reduce falls, which
she testified to wearing daily, and has been documented as
wearing at many points throughout the record to numerous
doctor appointments. The fact that she did not also use her
cane in addition to wearing her knee brace to walk a
very short distance from her car, “just parked across
the road” from the hearing, is neither substantial
evidence of anything, nor persuasive (R.69), especially in
light of Plaintiff's left knee instability and resulting
falls which are well documented in the record.
the fifth factor, the ALJ recognized that in Plaintiff's
left leg and knee, objective medical evidence identified 1) a
medial tibial plateau fracture, 2) atrophy near the calf, 3)
decreased strength, 4) tibial neuropathy, and 5)
osteoarthritis (R. 50). He also found that Plaintiff's
numerous identified left leg issues and impairments
“could reasonably be expected to cause the alleged
symptoms” (R. 49).
the ALJ then discounted one of those findings, the medial
tibial plateau fracture because “Orthopedist Barry
McDonough, M.D., found no need for invasive measures, finding
conservative therapy to be the best option” (R. 50).
That is at best an incomplete characterization of Dr.
McDonough's statement, and at worst, simply inaccurate.
In fact, the entirety of what Dr. McDonough actually noted
was that “There is some irregularity seen on the MRI
with her ACL; however, with her complaints of pain and
numbness, we think the best option for her would be
conservative treatment” (R. 302) (emphasis added). It
is clear to the undersigned that Dr. McDonough recommended
conservative treatment not because he saw no need or medical
basis for more, but because, in light of the totality of
Plaintiff's problems and condition, he was hesitant to do
more. Further, Dr. McDonough was not the only medical
provider in the record to have reached this conclusion. Dr.
Herriott was also considering surgery on Plaintiff's left
knee, but as of October 2014, was “going to try to hold
[off] on surgery on the left knee at this time” (R.
undersigned can find no evidence, certainly no substantial
evidence, in the record to support an assertion that either
doctor's hesitance to proceed with surgery was because it
was unwarranted based on medical evidence (or lack thereof)
alone. The record also reveals that Plaintiff continued to
inquire about surgery after being told it was not the best
option for her, which can reasonably support only an
inference that the treatment she had received had
not been successful in controlling her symptoms (R.
437). Coupled with her ongoing pain treatment, the record
fairly suggests only that it had not. Coupled with the
numerous other identified issues of Plaintiff's left leg,
the undersigned cannot intuit how the ALJ purports that the
objective medical evidence does not support Plaintiff's
complaints or is “weak.” Further, the undersigned
cannot agree that the treatment Plaintiff received was
“routine and conservative” in nature, and to the
extent that some of it could have been, not all of it was. In
addition to an apparently constant pain medication regimen,
Plaintiff also received countless regular and frequent
injections in her left leg as well as her back and neck; she
went to physical therapy, and she was given nerve blocks for
pain. The entirety of her treatment suggests fairly only that
she received practically every possible treatment except
surgery, and that doctors considered surgery but were
hesitant to do so based on her condition. The treatment
Plaintiff underwent hardly appears routine and conservative
as a whole.
short, to the extent that the ALJ suggests Plaintiff was
simply malingering with regard to the pain she experiences
and the effects that pain has on her, he appears to base this
largely on interpretations of select pieces of evidence,
divorced from context, that do not hold up to scrutiny. The
undersigned cannot find that conclusion to be supported by
as to obesity, the ALJ stated that “The record
identifies a diagnosis of obesity, and documents height and
weight findings to establish a body mass index to support the
same (Exhibits 3F, 7F, 8F, and I SF). However, this
condition is not considered to exacerbate the claimant's
other conditions to Listing level severity.” However,
that conclusory statement lacked any further explanation or
elaboration as to why, and thus the undersigned
cannot find it to be supported by substantial evidence. While
in this case the argument is not necessarily that Plaintiff
meets a specific listing, the ALJ's own opinion indicates
that obesity is a very relevant consideration when it comes
to Plaintiff's left knee, which is central to both the
case and the ALJ's determination especially as to
stated that “Someone with obesity and arthritis
affecting a weight-bearing joint may have more pain and
limitation than might be expected from arthritis alone”
(R. 48). The record clearly shows that Plaintiff was
diagnosed with osteoarthritis in her left knee, which the ALJ
explicitly recognized (R. 51). Despite that, and despite
significant evidence in the record that shows Plaintiff has
fallen numerous times due to her left knee “giving
out” on her, sometimes sustaining serious injury and
hospital visits as a result, the undersigned cannot find
anything in the ALJ's opinion to suggest that this was
considered and if so, how it was considered and rejected. It
is also documented in the record that Plaintiff fell in
precisely one such fashion and for that reason in performance
of her job as a home health aide, for which she received
workers' compensation benefits. As the ALJ himself
concedes, obesity is directly relevant to Plaintiff's
left knee osteoarthritis, especially as it supports her
subjective complaints, yet he does not address it or explain
why. Further, it appears to the undersigned that beyond
credibility, this may also be a relevant consideration under
listing 1.04,  especially given Plaintiff's ongoing
documented antalgic gait and neurological abnormalities.
reasons herein stated, I accordingly recommend
Defendant's Motion for Summary Judgment be
DENIED, and the Plaintiff's Motion for
Summary Judgment be GRANTED and this matter
be REMANDED for the reasons stated forth
extent that the ALJ's credibility determination of
Plaintiff was based on an incorrect application of the law
and was not supported by substantial evidence, new
credibility findings must accordingly be made that are based
on substantial evidence. Each medical opinion must be
analyzed and weighed according to the factors mandated, and
the ALJ provide substantial evidence, apart from his own lay
opinion, to explain any opinion or source that is afforded
less weight. Once done, the five-step process must be
party may, within fourteen (14) days after being served with
a copy of this Report and Recommendation, file with the Clerk
of the Court written objections identifying the portions of
the Report and Recommendation to which objection is made, and
the basis for such objection. A copy of such objections
should also be submitted to the Honorable John P. Bailey,
United States District Judge. Failure to timely file
objections to the Report and Recommendation set forth above
will result in waiver of the right to appeal from a judgment
of this Court based upon such Report and Recommendation. 28
U.S.C. § 636(b)(1); United States v. Schronce,
727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S.
1208 (1984); Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
Clerk of the Court is directed to provide an authenticated
copy of this Report and Recommendation to counsel of record.
 Certain (few) portions of
Plaintiff's medical records consist of notes regarding
issues not relevant here, such as eye examinations,
doctor's visits for colds, urinary tract infections,
nasal staph infections, bacterial vaginosis, mammograms, etc.
To the extent that those portions of Plaintiff's medical
records are not germane to the issues now before the Court,
they have been excluded from this review.
 Step one is fulfilled here. The ALJ in
his decision stated that Plaintiff's “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms . . .” (R. 49). Thus, the
Court addresses only Step Two.
 “In reaching his credibility
determination, The ALJ found that although Kearse suffered
from impairments that could cause some of the alleged
symptoms, the objective medical evidence did not support the
alleged severity. An extensive analysis of the objective
medical evidence revealed that Kearse did not begin to
complain of headaches.
 Zohydro ER (hydrocodone bitartrate) -
Drug Summary. Retrieved October 25, 2016 from Physicians'
Desk Reference Online (PDR.net):
 “Other miscellaneous conditions
that may cause weakness of the lower extremities, sensory
changes, areflexia, trophic ulceration, bladder or bowel
incontinence, and that should be evaluated under 1.04
include, but are not limited to, osteoarthritis
. . . In these cases, there may be gait difficulty and
deformity of the lower extremities based on neurological
abnormalities, and the neurological effects are to be
evaluated under the criteria in 11.00ff” (emphasis