United States District Court, Western District of Virginia, Harrisonburg Division
REBECCA G. HISE, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Joel C. Hoppe United States Magistrate Judge
Plaintiff Rebecca G. Hise asks this Court to review the Commissioner of Social Security’s (“Commissioner”) final decision denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401–434, 1381–1383f. Both parties have moved for summary judgment and filed briefs in support. (ECF Nos. 14, 15, 17, 18.) Hise makes four arguments on appeal. First, she argues that the Administrative Law Judge (“ALJ”) did not properly evaluate her fibromyalgia. Second, Hise argues that the ALJ misapplied the law when evaluating a non-acceptable medical source’s opinion on her functional limitations. Third, she argues that the ALJ did not properly consider her claims of pain. Fourth, Hise challenges the ALJ’s determination of her residual functional capacity ((“RFC”). Hise asks this Court to award benefits, or to remand for a “proper determination of medical equivalence” regarding her fibromyalgia.
This Court has the authority to decide Hise’s case under 42 U.S.C. §§ 405(g), 1383(c)(3), and her case is before me by referral under 28 U.S.C. § 636(b)(1)(b). (See ECF No. 19.) After carefully reviewing the administrative record, the parties’ briefs, and the applicable law, I find that the ALJ properly applied the law and that substantial evidence supports his decision that Hise is not disabled. Therefore, I RECOMMEND that this Court DENY Hise’s Motion for Summary Judgment (ECF No. 14), GRANT the Commissioner’s Motion for Summary Judgment (ECF No. 17), and DISMISS this case from the Court’s active docket.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner’s final determination that a person is not entitled to disability benefits. See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, ” id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–89 (1951). Ultimately, this Court must affirm the ALJ’s factual findings if “ ‘conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.’ ” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, “[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).
A person is “disabled” if he or she is unable engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a) (governing claims for DIB), 416.905(a) (governing adult claims for SSI). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460–62 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.
II. Procedural History
Hise protectively filed for DIB and SSI on January 21, 2010, alleging disability beginning January 1, 2007. (R. 48, 51.) At the time, she was 42 years old, had an 11th grade education, and had worked as a retail manager, cashier, and waitress. (See R. 48, 67; see also R. 30.) Hise said that she could not work anymore because of chronic back pain, “fibromyalgia throughout [her] whole body, ” depression, and anxiety. (R. 48, 51.) A state agency twice denied Hise’s application. (See R. 57, 68, 85, 100.)
On November 17, 2011, Hise appeared with counsel at an administrative hearing. (R. 24.) Hise testified as to her physical and mental impairments and the limits those impairments had on her daily activities. (See generally R. 32–40.) A Vocational Expert (“VE”) also testified as to the type of jobs Hise could perform given her age, work history, and functional limitations. (See generally R. 42–46.) In a written decision dated December 21, 2011, the ALJ found that Hise was not disabled after January 1, 2007. (R. 22.) He denied Hise’s application at Step Five. (See generally R. 16–22.)
At Step One, the ALJ found that Hise had not engaged in substantial gainful activity since January 1, 2007. (R. 16.) At Step Two, he found that Hise suffered from severe fibromyalgia, degenerative disc disease, carpal tunnel syndrome, bladder spasms/urinary disorder, pseudo-seizure disorder, gastrointestinal disorder, and obesity. (R. 16.) The ALJ also found that Hise’s depression and affective disorder were “non-severe” impairments. (R. 17.) At Step Three, the ALJ concluded that Hise did not have a severe impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18.) He compared Hise’s impairments to the criteria in Listings 1.02 (major dysfunction of a joint due to any cause), 1.04 (disorders of the spine), and 11.03 (non-convulsive epilepsy). (See id.)
Before reaching Step Four, the ALJ determined that Hise had the RFC to do sedentary work that allowed her to “alternate between sitting and standing.” (Id.) Specifically, the ALJ found that Hise could: (1) sit for 30 minutes at one time and for up to six hours in an eight-hour day; (2) stand for 10 minutes at a time; (3) frequently “handle and finger” objects with both hands; (4) frequently balance, crouch, and climb ramps and stairs; and (5) occasionally stoop, kneel, and crawl; but (6) “should avoid concentrated exposure to hazardous machinery and unprotected heights.” (Id.)
In making this determination, the ALJ considered the extent to which Hise’s impairments and symptoms could “reasonably be accepted as consistent with the objective medical evidence and other evidence” in her record. (R. 19.) He also considered Hise’s testimony and opinions from her physician assistant, a consultative physician, and a state-agency source. (R. 19–20.) The ALJ found that Hise’s impairments could reasonably cause her symptoms, but that Hise’s description of those symptoms’ intensity, persistence, and limiting effects was “not credible to the extent that [it was] inconsistent with the above residual functional capacity assessment.” (R. 20–21.) He also found Hise’s credibility “questionable due to her repeat [sic] non-compliance and failure to make sincere efforts to rehabilitate.” (R. 21.)
At Step Four, the ALJ concluded that Hise could not return to her past jobs as a waitress, retail cashier, or hotel desk clerk. (Id.) The VE testified that each of these jobs involved “light” work, which is more physically demanding that “sedentary” work. (R. 41–42.) At Step Five, the ALJ concluded that Hise could still perform certain “unskilled” sedentary occupations such as inspector, assembler, and packager. (R. 22.) The ALJ based this conclusion on his assessment of Hise’s RFC and the testimony of the VE. (Id.) Thus, he found that Hise was not disabled between January 1, 2007, and December 21, 2011. (R. 22–23.) The Appeals Council declined to review the ALJ’s decision (R. 1, 4), and this appeal followed.
Hise makes four arguments on appeal. First, regarding her fibromyalgia and back pain, she argues that the ALJ “refused to consider medical equivalency and failed to obtain a medical expert opinion on the issue of equivalency.” (Pl. Br. 10.) Second, Hise argues that the ALJ misapplied the law when evaluating a physician assistant’s opinion on her functional limitations. (Id. 11–12.) Third, she argues that the ALJ did not properly consider her claims of pain. (Id. 12– 13.) Finally, Hise argues challenges the ALJ’s RFC determination. (Id. 13–16.)
A. Medical Equivalency
Hise first argues that the ALJ erred at Step Three when he “failed to obtain a medical opinion and [to] fully analyze medical equivalence for her Fibromyalgia in accordance with [Social Security Ruling] 99-2p.” (Pl. Br. 9.) Social Security Ruling 99-2p, 1999 WL 271569 (Apr. 30, 1999), provides guidance on how to evaluate claims that an applicant is disabled by Chronic Fatigue Syndrome (“CFS”). A footnote to that ruling says that there “is considerable overlap of symptoms between CFS and Fibromyalgia . . ., ” id. at *3 n.3, and it indicates that the presence of trigger points may substantiate a diagnosis of Fibromyalgia, but it provides minimal additional guidance on how to evaluate the latter condition.
Hise argues that her diagnoses of fibromyalgia and disc herniation,  as well as one positive straight-leg test in January 2011, are “sufficient to support a finding of medical equivalence” for the criteria in Listing 1.04, Disorders of the Spine. (Pl. Br. 9-10.) A person is necessarily disabled by a disorder of the spine (e.g., degenerative disc disease) if that disorder “result[s] in compromise of a nerve root . . . or the spinal cord” with:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthsia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in [§] 1.00B2b. 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04. Hise bears the burden of producing “medical findings .. . supported by medically acceptable clinical . . . diagnostic techniques” showing that her fibromyalgia and back pain are “at least equal in severity, ”
20 C.F.R. §§ 404.1526(a), 416.926(a), “to all the criteria, ” Sullivan v. Zebley, 493 U.S. 521, 531 (1990), in Listing 1.04. She also must establish that her combined impairments render her unable to perform any gainful activity, not just substantial gainful activity. Zebley, 493 U.S. at 532. Importantly, Hise cannot establish medical equivalence merely “by showing that the overall functional ...