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Brooks v. Colvin

United States District Court, Fourth Circuit

September 19, 2013

RHONDA P. BROOKS, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant

REPORT AND RECOMENDATION

James G. Welsh U.S. Magistrate Judge

Rhonda P. Brooks brings this civil action challenging a final decision of the Commissioner of the Social Security Administration (“the agency”) denying her application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, as amended (“the Act”), 42 U.S.C. §§ 401 et seq. Jurisdiction of the court is pursuant to 42 U.S.C. § 405(g).

On February 16, 2011 the plaintiff filed her claim for DIB alleging a period of disability starting on January 2, 2009. (R. 13, 47, 163, 165, 167, 177). It was denied initially (R. 88-97), then on reconsideration (R. 98-107), and again by written decision following an administrative hearing held on May 11, 2012 (R. 12-28, 32-87). With the Appeals Council denial of her subsequent review request (R. 1–5), the unfavorable written decision (R. 13-28) of the administrative law judge (“ALJ”) now stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981.

Along with her Answer (docket #6) to the plaintiff’s Complaint (docket #3), the Commissioner has filed a certified copy of the Administrative Record (“R.”) (docket #7) which includes the evidentiary basis for the findings and conclusions set forth in the Commissioner’s final decision. Each party has filed a motion for summary judgment and supporting memorandum (docket # 11, 19-20, 23); no request was made for oral argument, [2] and by standing order the certified administrative record and cross-motions for summary judgment are before the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. Standard of Review

The court's review in this case is limited to determining whether the factual findings of the Commissioner are supported by substantial evidence and whether they were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. “It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” of the evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642). The court is “not at liberty to re-weigh the evidence … or substitute [its] judgment for that of the [ALJ].” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal quotation marks omitted). The ALJ's conclusions of law are, however, not subject to the same deferential view and are to be reviewed de novo. Island Creek Coal Company v. Compton, 211 F.3d 203, 208 (4th Cir. 2000).

II. The ALJ’s Decision

In his written determination (R. 13-28) that the plaintiff was not entitled to disability benefits during the relevant period under consideration, the ALJ found she met the Act’s insured status requirements only through June 30, 2010, that the evidence did not show that she engaged in decisionally significant work activity during the period from her alleged onset date (January 2, 2009) until her date last insured (June 30, 2010). (R. 15-16).

During this decisionally relevant period, the ALJ next determined that the plaintiff’s severe [3] impairments included “at least in combination” obesity, diabetes mellitus with neuropathy, and “questionably” fibromyalgia. (R. 16). He then determined that these impairments did not meet or medically equal a listed[4] impairment, and he further found she neither had an impairment nor a combination of impairments that functionally equaled the listings pursuant to 20 C.F.R. §§ 404.1524(d) and 404.1520b. (R. 18-19).

Continuing to follow the agency’s sequential consideration[5] of her claim, the ALJ then assessed the functional extent of the plaintiff's medically-related impairments. Based on his review of the full record, the ALJ concluded that the plaintiff retained the residual functional capacity[6] to perform a limited range of light work activity that involved no more than four hours of standing or walking, occasional postural activities, and the avoidance of even moderate exposure to extreme temperatures, wetness and workplace hazards. (R. 19-25. see also R. 75, 79-82). With these functional limitations, the ALJ then further concluded that the plaintiff was neither precluded from performing her past relevant work as an Avon sales representative and clerical assistant nor from performing a number of light and sedentary jobs, including jobs such as cashier, ticket taker, telephone solicitor, and order clerk. (R. 25-27).

III. Summary and Recommendation

In the plaintiff’s brief supporting her motion for summary judgment, she attacks the ALJ’s decision on multiple grounds. She argues that the ALJ inappropriately relied on an internet definition of fibromyalgia as the basis for his second-step finding that this condition was only “questionably” severe[7] (R. 16) and also as a basis for his discount of her testimony concerning the nature and extent of this condition. (Docket #11, pp 2-7). She takes issue with the ALJ’s statement that she did not have a “clearly established work ethic” (R. 15) and argues that this was essentially an ad hominem argument made a gratuitous basis for the rejection of her testimony. (Docket #11, pp 8-10). As part of the ALJ’s assessment of her mental health condition, she takes issue with his conclusion that her daily activities were only “mild[ly limit[ed] during the decisionally relevant period.[8] (Docket #11, pp 10-12). Additionally, the plaintiff assigns error to the ALJ’s rejection of two treating physician opinions, to his attendant failure to included their opinions in relevant part in his hypothetical question to the vocational witness, and to his “trivialize[ation]” of this treating source evidence by “substituting his own opinion for theirs. (Docket #11 pp 12-13, 14-16, 16-17).

After reviewing all of the evidence of record, including both the medical evidence and testimony, and for the reasons discussed below in relation to these arguments, it is RECOMMENDED that the Commissioner's decision be AFFIRMED, the Commissioner’s motion for summary judgment be GRANTED, the plaintiff’s motion for summary judgment be DENIED, and this cause STRICKEN from the docket of the court.

IV. Evidence Summary

Age, Education & Vocational Profile

At the time she alleges her disability began (January 2, 2009), the plaintiff was forty years of age.[9] (R. 13, 163, 167, 205). She had a high school education[10] (R.178), and her work history shows that between January 1988 and January 2009 she worked as a self-employed Avon make-up sales representative and clerical assistant (R. 26, 45-47, 178, 234). As generally performed this work is classified as unskilled and exertionally light.[11] (R. 77). At the hearing, the plaintiff additionally identified volunteer work she had performed in the past as a “dorm mom” at a church-related summer youth camp. (R. 71-72, 78-79). The vocational witness described this work as skilled and exertionally anywhere between sedentary and light. (R. 77).

Medical

The plaintiff’s medical history shows that none of her diverse ongoing medical issues and concerns required any inpatient care more recently that March 2003. (R. 672, 674, 678). This history also shows that she was diagnosed with “lumbago” in 2004 and has been morbidly obese for many years. (R. 38, 236, 732-633, 635). Between August 2006 and the end of December 2008, these records show that she was seen on only eleven occasions by her primary care providers at Carillion Associated Physicians[12] (R. 236-278) and was treated conservatively for “a plethora” of mostly recurrent health-related issues. (R.271). The ailments she reported included abdominal pain, dark urine, tiredness, mood swings, lack of appetite, worries about her ovary and liver, “borderline” diabetes mellitus, pelvic and back pain, low back pain, hip pain, headaches, night sweats, chronic generalized fibromyalgia pain, abdomen and breast soreness, rapid heart rate, face and chest skin rash, bilateral foot pain and spasms, right lower quadrant pain, bilateral foot and leg pain and burning sensation, stomach sores, elevated blood pressure, abdomen and chest skin lesions, hair loss, back and breast rash, side pain, “shakes, ” pain in her private area, difficulty urinating, abdominal sores, and stress related to family issues. (R. 236-278).

As the Commissioner pointed-out in her brief, “[t]he evidence relevant to Plaintiff’s claim falls within the period of January 2, 2009 through June 30, 2010.” (Docket #20, p 3). During this decisionally relevant period, the plaintiff was seen by her primary care providers on nine occasions, principally for review of her chronic pain and peripheral neuropathic complaints, medication management or stress issues related primarily to the premature death of her husband in 2008. (R. 58, 280-321). As the ALJ’s decision points-out in significant detail, the treatment notes of her primary care providers consistently record the fact that the plaintiff was fully oriented, alert, and demonstrated an anxious affect with no sign of any cognitive or memory problem. (R. 16-17). Also during this relevant period, in April 2010 the plaintiff was seen by Michael Valente, D.O., at Shenandoah Valley Neurological Associates for a neurologic examination and assessment of her reported severe pain and paresthesia in her limbs. (R. 343).

Based on the plaintiff’s self-reported medical history (R. 343), the results of an EMG study (R. 350-351) and Dr. Valente’s clinical examination (R. 344), he concluded that the peripheral neuropathy was “likely due to diabetes, ” that the left hand paresthesia and EMG results were “suggestive” of moderate-degree carpal tunnel syndrome (“CTS”), and that her nocturnal foot restlessness was possibly restless legs syndrome and/or associated features of her peripheral neuropathy (R. 344-345. In addition to recommending a CTS splint for her left wrist, he suggested Lyrica for pharmacologic treatment of the plaintiff’s neuropathic and fibromyalgic pain. (R.345).

Nine days before expiration of her insured, the plaintiff was seen for a “routine follow-up” for her diabetes, high blood pressure, peripheral neuropathy, fibromyalgia, and a “recent[]” episode of hair loss; at that time she reported that Lyrica had “helped” and that she was “now able to get out of the house and do more.” (R.316). On examination, her vital signs were all “regular;” she was alert and talkative; she was in no apparent distress, and she exhibited no signs of any mood, thought or memory difficulty; however, she remained morbidly obese, and she continued to have a persistent plaque-like dermatitis lesion on the bottom of her left great toe, decreased sensation in both feet, a “slightly arthritic gait, ” a forearm rash, and diffuse muscle and joint pain. (R. 315-321).

More recent medical records, variously dated between July 19, 2010 and March 29, 2012, establish no decisionally relevant change in the plaintiff’s condition. She continued to see her primary care physicians and her neurologist regularly for “emotional support” (R. 340, 690) and for follow-up clinical management of her medications, diabetic-related lesion and neuropathy. (R. 322-343, 436-439, 443, 687-690, 694-698). Following an Apligraf treatment procedure to initiate a healing of the plaintiff’s diabetic ulcer on the plantar surface of her left foot, beginning in February 2011 she was seen regularlyat Augusta Health’s Wound Healing Clinic for follow-up treatment of this “small” superficial (“grade 1”) diabetic ulcer. (R. 451-581, 583, 585, 587, 589, 591, 593, 95, 597, 599, 601, 606). When discharged in October 26, 2011, the ulcer had “fully resolved with measurements of 0 cm length x 0 cm width x 0 cm depth.” (R.460, 469).

Physical and neurological examinations on February 9, 2011, likewise, suggested no decisionally relevant change in the plaintiff’s condition (R. 339-340). Records relating to her several emergency room visits in 2011 and 2012 document a variety of health-related complaints, including abdominal and chest pain, diarrhea, left foot swelling and pain, peripheral neuralgia, diabetic lesion treatment, urinary tract infection, nausea, urinary frequency, and oral pain. (R. 484-485, 493-494, 603-604, 612, 655, 657-659, 661-665, 667-669, 670, 672, 677, 679-680). None of these ER records, however, suggests a decisionally relevant disabling condition.

An EEG on April 24, 2011 was “normal” (R.605-607, 681). Other than noting the presence of degenerative disc disease at C/2-3, abdominal and chest X-rays on the same date demonstrated no heart or abdominal abnormality. (R. 614, 674, 678). In response to her complaints of left foot pain, X-ray views on January 28, 2012 showed only that the plaintiff exhibited a decreased plantar arch, a bone spur off the medical malleolus, and “mild” tissue swelling. (R. 608). The results of left lower extremity ultrasound imaging on October 9, 2011 and on January 28, 2012 disclosed no evidence of any deep vein thrombosis. (R. 608-609, 612-613). Similarly, the results of abdominal and pelvic CT scans on November 29, 2011 disclosed no ureteral or bladder stones and “no acute process” suggesting the source of her reported nausea. (R. 610).

Opinions

As part of the state agency’s consideration of the plaintiff’s claim, the record was twice reviewed by state agency physicians.[13] On May 3, 2011, Paul Frye, M.D., reviewed the record, assessed the nature and severity of the plaintiff’s impairment, identified her several exertional, postural and environmental limitations, and concluded that through her date last insured she retained the ability to perform a limited range work at the light and sedentary exertional level. (R.88-96). Pursuant to a second review by a state agency physician on July 13, 2011, William Amos, M.D., similarly concluded the plaintiff was not disabled and retained the functional ability to perform a range of work at the light and sedentary exertional level. (R. 98-106).

Responding to a question posed by the ALJ at the administrative hearing to Andrew Beale, Ed.D., this vocational witness testified that a hypothetical individual with the plaintiff’s vocational profile and with the ability to perform a modified range of light work (stand and walk only four hours during a normal work day, sit about six hours, perform only occasional postural activities, and avoid even moderate exposure to work place hazards)[14] would have the residual functional ability to perform work as a sales representative, clerical worker, cashier, ticket taker, and also a number of sedentary jobs, such as telephone solicitor.[15] (R. 76, 79-81, 136-137).

In the Spring of 2012, shortly before the administrative hearing, questionnaire responses by Dr. Valente and Dr. Martinez were submitted in support of the plaintiff’s DIB claim. (R. 694-698, 701-705). Based on the plaintiff lower extremity neuropathic and paresthetic condition, along with the attendant pain and sensory loss, Dr. Valente opined that the plaintiff was physically limited to low-stress, sedentary work activity that required no postural, handling or fingering activities, no activity that required more than “occasional[]” neck or head movement, and would likely necessitate the plaintiff’s inability to work more than four days each month. (R. 694-698). In his opinion emotional factors would not contribute either to the plaintiff’s symptoms or functional limitations. (R.685).

Dr. Martinez, on the other hand, felt that the plaintiff’s mental health issues – depression and anxiety – were significant work impairments; on the other hand, in his view her functional ability to move her neck and head was unimpaired. (R. 702, 704). Describing the plaintiff’s medical condition as a combination of a “severe” peripheral neuropathy, fibromyalgia, “mental strain, ” diabetes, “multi-level herniated discs” and attendant chronic low back and hip pain, Dr. Martinez opined that the plaintiff could stand no longer than 5 minutes at any one time, should do no walking, could lift less than 10 pounds only “occasionally, ”should never or rarely perform any postural activity, and was significantly limited in her ability to reach, handle or perform fine manipulations. (R. 701-704).

V. Analysis

A.

Inter alia, the plaintiff asserts on appeal that the ALJ erroneously “substituted” his opinion in determining her residual functional capacity during the decisionally relevant period for that of her treating physicians. This allegation of error, however, ignores the fact that these treating opinions were both rendered two years after the plaintiff’s insured status had expired. (R.24). Moreover, as the ALJ noted, neither doctor indicted that his opinion applied to the decisionally relevant period, “so the presumption is that they were current assessments” of her medical condition and physical limitations. (R.24). Without anchoring their conditions and limitations to the relevant period in question, both treating source assessments are entitled to little, if any, weight. “[A]lthough medical opinions [dated] after the date last insured may sometimes be probative to a disability determination, these medical opinions must relate back to the relevant period and offer a retrospective opinion on the past extent of an impairment.” Brown v. Astrue, 2013 U.S. Dist. LEXIS 23896, *43 (DSC. Jan. 31, 2013) (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987).

As the ALJ outlined in his decision, in addition to the absence of such a retrospective opinion by either Dr. Valente or Dr. Martinez, their opinions were also inconsistent with the medical record. He took note of the fact that there was no physical examination indicative of a disabling condition before her date last insured. (R.24). He noted the fact that the plaintiff’s pain management and other treatment during that period were generally routine “without [any] ongoing treatment by a rheumatologist, endocrinologist, pain management, or mental health specialist. (R.24). He found the plaintiff’s statements regarding the severity of her limitations both inconsistent with the treatment record and in large measure the basis for the 2012 treating source opinions, “rather than a basis on objective findings and diagnostic test results. (R, 24-25). He observed that Dr. Valente had seen the plaintiff only once before her insured status expired, and among other things he specifically noted that the results of Dr. Valente’s psychological, musculoskeletal, [and] neurological examinations were within normal limits, ” excepting only for decreased sensation in both lower extremities. (R. 24, 343-345).

B.

Equally without merit is the plaintiff’s claim of error on the basis of what she contends to be an exhibition of “bias” and the denial of fair consideration on the part of the ALJ in his assessment of certain of her health-related issues and her credibility. As support for this claim, she points to the ALJ’s use of a self-selected internet source for his decisional definition of fibromyalgia and to three specific statements she contends were unsupported conclusions. In addition to her claim that the ALJ improperly relied on an internet source for a medical definition and thereby became “an expert witness, in lieu of having a rheumatology physician present at the hearing” (docket #11, p 3), she argues that bias and fundamental unfairness are also evident from the ALJ’s failure to set-out adequate evidentiary bases for his conclusion that her fibromyalgic condition was only “questionably” severe, that her work history was not indicative of a “clearly established work ethic, ” and that her daily activities were only “mildly limit[ed]” during the decisionally relevant period (docket #11, pp 3-4, 8-12).

Before addressing the plaintiff’s individual allegations of bias and lack of fundamental fairness, [16] it must be recognized that any assessment of such an allegation must begin with “a presumption that [the ALJ is] unbiased.” Schweiker v. McClure, 456 U.S. 188, 195-96 (1982) (discussing ALJs who decide Medicare Part B claims). This presumption, however, may be rebutted if the plaintiff demonstrates that the ALJ “displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 566 (1994). See also Davis v. Astrue, 2011 U.S. Dist. LEXIS 83200, *7-8 (NDWVa. July 28, 2011) (applying Liteky and Schweiker in the Social Security context). Moreover, “ even when the ALJ improperly considers evidence that is irrelevant or speculative, remand is not warranted so long as the improper considerations do not infect the remainder of the credibility analysis which is supported by substantial evidence. Eiker v. Astrue, 2013 U.S. Dist. LEXIS 68843, *12 (DMd. May 15, 2013), 190 Soc. Sec. Rep. Service 350.

In the instant case, the ALJ’s observations about which the plaintiff complains demonstrate neither a cognizable deep-seated and unequivocal antagonism nor any other prejudice that would render a fair judgment impossible. See Liteky v. United States, 510 U.S. at 550, 555-56.

For example, with respect to her contention that the ALJ improperly considered her lifetime earnings in determining her credibility, the ALJ found that the plaintiff’s lifetime earnings record was below the amount necessary to establish a presumptive SGA[17] and was “not indicative of an individual with a clearly established work ethic.” (R.15, 26 n.5). While such a meager earnings record may not always be indicative of a poor work ethic, the plaintiff has offered no explanation for her derisory earnings history.[18] Under these circumstances, the ALJ's reference to the plaintiff’s earnings record (R. 15) does not indicate a biased evaluation of her credibility. Instead, it takes notice of the fact that the plaintiff has demonstrated essentially no historical inclination, motivation or need to seek and sustain remunerative employment activity in any meaningful capacity, even prior to the onset of her allegedly disabling symptoms. See Kandel v. Astrue, 2010 U.S. Dist. LEXIS 31335, *53-54 (NDWVa. Mar. 31, 2010).

Based on a fundamental misunderstanding of its context and without any evidentiary support, the plaintiff separately asserts ALJ bias on the basis of his “mild limitation” (R. 17) finding. As the Commissioner correctly points-out in her memorandum (docket # 20, p 13), this rating was made as a part of the ALJ’s necessary assessment of the plaintiff’s mental ability to function, 20 C.F.R. § 404.1520a, and it does not the plaintiff’s physical ability to function as she erroneously argues at length (docket # 11, pp 10-11).

Equally lacking in merit is the plaintiff’s assertion that ALJ’s use of the word “questionably” in relation to her fibromyalgic pain-related complaints. First and foremost, assuming arguendo that the ALJ in fact erred by so describing this syndrome, he accepted the fibromyalgia[19] diagnosis for decisional consideration, and he identified it as one of the plaintiff’s severe impairments. (R.16). Thus, any error is effectively moot and warrants no discussion.

Furthermore, fibromyalgia “poses particular challenges to credibility analyses due to the limited objective medical evidence.” Gavigan v. Barnhart, 261 F.Supp.2d 334, 340 (Dmd. 2003). Speaking to this very same fact finding challenge, the Seventh Circuit has appropriately observed, The “cause or causes [of fibromyalgia] are unknown; there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for [its] presence or severity … and —the only symptoms that discriminates between it and other diseases of a rheumatic character— multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir.1996).

The record in the case now before the court for review lacks this trigger-point, or other generally recognized, assessment to support a clinical diagnosis of fibromyalgia.[20] Therefore, the ALJ’s expression of a question about the fibromyalgia diagnosis was decisionally reasonable, and it appropriately expressed a healthy dose of decisional skepticism. By any standard, however, it neither served to deny her a fair hearing nor was it an inappropriate expression bias or animus.

C.

Similarly unpersuasive is the plaintiff’s assertion that the ALJ committed reversible error by relying on an internet sourced definition of fibromyalgia.[21] Such reliance suggests no “deep-seated and unequivocal antagonism that would render [a] fair judgment impossible.” See Liteky, 510 U.S. at 566. Instead of requiring a clinical diagnosis to be based on the identification of a certain minimum number of trigger (tender) points, the ALJ’s selected definition allows for a diagnosis simply on the basis of “patient experiences.” (R. 16, n.1). Given this totally subjective diagnostic definition, it is understandable why the ALJ described the plaintiff’s pain-related condition as “questionably fibromyalgia.” His reliance on this totally subjective criterion and his associated reference to the plaintiff’s fibromyalgic syndrome as “questionably” severe is equally evident when the ALJ’s definition is compared to the 1990 American College of Rheumatology (“ACR”) diagnostic criteria, [22] which are discussed in Social Security Ruling (“SSR”) 12-2p. These criteria included tender point site-testing, digital palpitation (approximately to 9 lbs. force), and exclusion by imaging and other laboratory tests “(for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor)” that could account for the individual’s symptoms and signs of fibromyalgia. This reliance by the ALJ on totally subjective criteria and his associated reference to the plaintiff’s fibromyalgic syndrome as “questionably” severe also evident when compared to the 2010 ACR diagnostic criteria, [23] which are also discussed in the same SSR. Even under the significantly relaxed 2010 ACR definition the diagnostic criteria include (1) evidence of the exclusion of other disorder that could account for the individuals signs or symptoms of fibromyalgia, (2) a history of widespread pain —that is, “pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)— that has persisted (or that persisted) for at least 3 months [and which] pain may fluctuate in intensity and may not always be present, ” and (3) [r]epeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems …, waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.” Thus, on its face the plaintiff’s objection to a most favorable diagnostic definition of fibromyalgia, one based solely on her experiences, is most difficult to understand. Moreover, since the ALJ accepted and considered fibromyalgia as a severe condition, at most, the ALJ’s reference to, and use of, an internet definition is harmless error. For the same reason, any mistake by the ALJ in entering a partially incorrect online citation is at most harmless error. He provided the basic internet address (www.rheumatology.org) for the ACR and a means to access its publications. Simply because information, such as the ACR description of fibromyalgia, is available on the internet (in addition to print format) does not destroy the reliability of either format under Fed.R.Evid. 803.18. See Damon v. Hukowicz, 2013 U.S. Dist. LEXIS 112551, *23 (DMass. 2013) .

D.

To the extent the plaintiff’s argument on appeal more generally suggests some impermissible bias by the ALJ on the basis of his credibility assessment, it too is without merit. “[I]n light of the longitudinal record as a whole, ” the ALJ’s concluded that her testimony concerning “the intensity, persistence and limiting effects of those symptoms are not entirely credible.” (R.21). The longitudinal record, as summarized in the Medical section above more than adequately confirms the ALJ’s credibility assessment. The objective medical evidence simply does not support either the degree of severity or the degree of functional limitation claimed by the plaintiff in her testimony.

Furthermore, on review it must be recognized that there is no presumption of truthfulness for a claimant's subjective complaints. Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). Rather, “[t]he ALJ must make [his] credibility determination based upon all the evidence in the record.” Holler v. Chater 1996 U.S. App. LEXIS 10850, *15 (4th Cir. May 9, 1996), and the relevant factors to be considered in evaluating credibility “include consistency in the claimant's statements, medical evidence, medical treatment history, and the adjudicator's observations of the claimant, ” Smith v. Astrue, 457 Fed.Appx. 326. 329 (4th Cir. 2011) (citing SSR 96-7p).

Although an ALJ may not simply disregard a claimant's subjective complaints of pain or other subjective symptoms, he may view discrepancies with the medical record “as probative of exaggeration.” Pepper v. Colvin, 712 F.3d 351, 368-369 (EDVa. 2013).

In the case now before the court, the ALJ acknowledged the plaintiff’s description of her acute, chronic and diffuse pain, “spells [that] could last from 3 weeks to 3 months, ” and “ulcers all over her body” (R.20), and he recounted the medical evidence, much of which suggested significantly less symptomology and functional limitation (R.21-24). In light of these discrepancies, the ALJ was patently not wrong to find that the plaintiff had exaggerated her limitations, and any claim of bias based on the ALJ’s credibility assessment totally without merit.

E.

This recommendation that the Commissioner's final decision be affirmed, however, does not suggest that the plaintiff is totally free of pain and other subjective discomfort or does not have health issues. On review, the objective medical record simply fails to demonstrate that her condition during the decisionally relevant period was of sufficient severity to result in total disability from all forms of substantial gainful employment within the meaning of the Social Security Act. The decision for the court to make in this case is "not whether the [plaintiff] is disabled, but whether the ALJ's finding of no disability is supported by substantial evidence." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (citing Craig v. Chater, 76 F.3d at 589).

Likewise, it is the province of the Commissioner, not the court, to resolve conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

VI. Proposed Findings of Fact

As supplemented by the above summary and analysis and on the basis of a careful examination of the full administrative record, the undersigned submits the following formal findings, conclusions and recommendations:

1. The plaintiff was 41 years of age at the time her insured status expired;
2. The plaintiff has a high school education; her past relevant work was primarily as an Avon sales representative, and she has not engaged in substantial gainful activity since her alleged disability onset date;
3 The plaintiff has the following severe impairments (at least in combination): obesity, diabetes mellitus with neuropathy, and questionably fibromyalgia;
4. The plaintiff does not have an impairment, or combination of impairments, that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 5. The plaintiff does not have an impairment or combination of impairments that functionally equals a listed impairment;
6. The ALJ neither erred nor inappropriately consulted an ACR internet site for information relative to the ACR diagnostic criteria for fibromyalgia;
7. Assuming arguendo error on the part of the ALJ in consulting the ACR internet site, the error was mooted by the ALJ’s full decisional consideration of fibromyalgia as one of the plaintiff’ severe impairments;
8. The ALJ’s decision exhibits no evidence or cognizable suggestion of bias or the denial of fundamentally fair consideration;
9. The ALJ’s description of the plaintiff’s fibromyalgia as “questionably” severe is not error and is supported by substantial evidence;
10. The ALJ’s statements that the plaintiff’s earnings history is “lackluster” and is not indicative of an individual with a clearly established work ethic, ” is not error and is supported by substantial evidence;;
11. The ALJ’s finding that, as applicable to her mental health, the plaintiff’s activities of daily living were only “mild[ly] limit[ed] is not error and it is supported by substantial evidence;
12. The ALJ's credibility assessment is supported by substantial evidence;
13. The ALJ did not err in making the finding that the record failed to demonstrate that the treating source opinions of Drs. Valente and Martinez, both dated in 2012, were not retrospective opinions applicable to the decisionally relevant period;
14. The ALJ did not err in making the finding that no treating source had opined that the plaintiff was physically more limited than that set forth in his residual functional capacity finding prior to her date last insured;
15. The ALJ’s hypothetical question to the vocational witness fairly set forth the plaintiff’s limitations during the decisionally relevant period;
16. The plaintiff has not been disabled, as defined in the Social Security Act, from her alleged disability onset date (January 2, 2009) through her date last insured (June 30, 2010);
17. Substantial evidence in the record supports the Commissioner's final decision, and it is free of legal error;
18. The plaintiff has not met her burden of proving a disabling condition on or before her date last insured; and
19. The final decision of the Commissioner should be affirmed.

VI. Directions to Clerk

The clerk is directed to transmit the record in this case immediately to the presiding district judge and to transmit a copy of this Report and Recommendation to all counsel of record.

VII. Notice to the Parties

Both sides are reminded that, pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, they are entitled to note objections, if any they may have, to this Report and Recommendation within fourteen (14) days hereof. Any adjudication of fact or conclusion of law rendered herein by the undersigned to which an objection is not specifically made within the period prescribed by law may become conclusive upon the parties. Failure to file specific objections pursuant to 28 U.S.C. § 636(b)(1) as to factual recitals or findings as well as to the conclusions reached by the undersigned may be construed by any reviewing court as a waiver of such objections.


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