United States District Court, W.D. Virginia, Harrisonburg Division
MARKITA D. NELSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
C. Hoppe United States Magistrate Judge
Markita D. Nelson (“Nelson”) asks this Court to
review the Commissioner of Social Security's
(“Commissioner”) final decision denying her
applications for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”), 42 U.S.C. §§
401-434, 1381-1383f. The case is before me by the
parties' consent under 28 U.S.C. § 636(c)(1). Having
considered the administrative record, the parties' briefs
and oral arguments, and the applicable law, I find that the
Commissioner's decision is supported by substantial
Standard of Review
Social Security Act authorizes this Court to review the
Commissioner's final decision that a person is not
entitled to disability benefits. See 42 U.S.C.
§ 405(g); 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 Administrative Law Judge (“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).
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 Universal Camera Corp. v. NLRB, 340 U.S.
474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d
231, 236 (4th Cir. 1984). 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)). 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).
person is “disabled” if he or she is unable to
engage in “any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for 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), 416.905(a). 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 Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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.
filed for DIB and SSI on March 19, 2012, alleging disability
caused by depression, blood clots in her left leg, attention
deficit hyperactive disorder, Human Immunodeficiency Virus
(“HIV”), and bipolar disorder. Administrative
Record (“R.”) 368-69, 376-83, 409, 413, ECF No.
9. She alleged an onset date of October 17, 2010, at which
time she was twenty-seven years old. R. 368, 376, 409.
Disability Determination Services (“DDS”), the
state agency, denied her claims at the initial, R. 124-34,
135-45, and reconsideration stages, R. 155-68, 169-82.
10, 2014, Nelson appeared with counsel at an administrative
hearing before ALJ Brian B. Rippel. R. 83-119. Nelson
testified that she worked fifteen to thirty-five hours per
week as a sandwich maker at Burger King from September 2012
to August 2013. R. 90-91, 99. This job required her to stand
for four to five hours a day, which caused swelling in her
legs and pain. R. 99. She left that job and began working
full-time as a certified nursing assistant
(“CNA”) because she thought it would be easier on
her legs than working at Burger King. Id. Nelson had
one patient, who she assisted in showering, getting up and
down, walking to the bathroom, cooking, and cleaning. R. 101.
In November 2013, Dr. Gray “put [her] off of
work” because Nelson felt that she might drop a patient
when her arms or hands went weak or her legs gave out or
hurt. R. 89-90. She did not seek other work because of her
physical problems, including weakness in her arms and legs
and pain in her back and neck. R. 92-93. She also experienced
numbness in her hands. R. 94. Thurner-May syndrome caused her
legs to swell, and a stent placed in her left leg in 2012
made the swelling worse. R. 93. Her legs swelled even when
she was sitting, and she could not walk with a cane because
she would drop it. R. 97. Nelson also had trouble holding
plates, cups, and her laptop computer, all of which she had
dropped. R. 97- 98. She could no longer engage in everyday
activities with her children, do housework, or cook. R. 93,
96. Nelson took Gabapentin for nerve pain, but it caused her
vision to become blurry and her arms and hands to go numb. R.
94, 116. She took Dilaudid, Oxycodone, and morphine, but they
just made her tired and dizzy and did not help her pain. R.
94. Although she did not take them the day of the hearing,
Nelson had been prescribed Amitryptyline and Tramadol. R. 95.
Those medications “knocked [her] out” or put her
to sleep. R. 95. Side effects from her pain medications
prevented her from being able to cook for her children, and
it took her hours to clean a single room in her house because
she had to take breaks to rest. R. 95-96. She could stand for
five minutes before needing to sit. R. 100. After taking pain
medications, Nelson could not stand at all because she would
fall. Id. She had experienced leg pain for years,
but it was getting worse. R. 99. After Nelson testified, a
vocational expert also testified regarding the nature of her
past work and her ability to perform other jobs in the
national and local economies. See R. 102-16.
Rippel denied Nelson's claim in a written decision issued
on July 24, 2014. R. 71- 82. He found that Nelson had severe
impairments of HIV seroconversion, history of leukopenia and
thrombocytopenia, venous system disorder status post left
iliac stenting, mild L5-S1 arthropathy, and history of
May-Thurner Syndrome. R. 73. Although Nelson had been
diagnosed with bipolar disorder, attention deficit
hyperactivity disorder, and post-traumatic stress disorder,
the ALJ deemed them non-severe. R. 74. The ALJ then
determined that none of Nelson's impairments, alone or in
combination, met or medically equaled the severity of a
listed impairment. R. 74-77. As to Nelson's residual
functional capacity (“RFC”),  she could perform
medium work with the additional limitations that she
could occasionally push/pull and perform foot controls with
her left lower extremity and frequently stoop and crouch. R.
77. Given this RFC, Nelson could not return to her past
relevant work, but she could perform other jobs in the
national and local economies as identified by the vocational
expert. R. 81-82. Therefore, the ALJ determined that Nelson
was not disabled. R. 82. The Appeals Council denied
Nelson's request for review, R. 1-4, and this appeal
challenges the ALJ's credibility assessment Pl. Br. 5-11,
ECF No. 14. Nelson argues that pain in her left lower
extremity prevents her from performing the physical demands
of medium work, interferes with her ability to concentrate,
and would affect her work attendance.
regulations set out a two-step process for evaluating a
claimant's allegation that she is disabled by symptoms,
such as pain, caused by a medically determinable impairment.
Fisher v. Barnhart, 181 F.App'x 359, 363 (4th
Cir. 2006) (citing 20 C.F.R. § 404.1529). The ALJ must
first determine whether objective medical
evidence shows that the claimant has a medically
determinable impairment that could reasonably be expected to
cause the kind and degree of pain alleged. 20 C.F.R. §
404.1529(a)-(b); see also Craig, 76 F.3d at 594. If
the claimant clears this threshold, then the ALJ must
evaluate the intensity and persistence of the claimant's
pain to determine the extent to which it affects her physical
or mental ability to work. SSR 16-3p, 2016 WL 1119029, at *4
(Mar. 16, 2016); see also Craig, 76 F.3d at 595.
cannot reject the claimant's subjective description of
her pain “solely because the available objective
medical evidence does not substantiate” that
description. 20 C.F.R. §§ 404.1529(c)(2),
416.929(c)(2). Nonetheless, a claimant's allegations of
pain “need not be accepted to the extent they are
inconsistent with the available evidence, including objective
evidence of the underlying impairment, and the extent to
which that impairment can reasonably be expected to cause the
pain the claimant alleges she suffers.” Craig,
76 F.3d at 595. The ALJ must consider all the evidence in
the record, including the claimant's other statements,
her daily activities, her treatment history, any
medical-source statements, and the objective medical
evidence, id. (citing 20 C.F.R. § ...