JACKSON v. BERRYHILL

C/A No. 1:16-3220-BHH-SVH.

Sarah Jackson, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

United States District Court, D. South Carolina.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (SSID)
Nature of Suit: 864 Social Security: SSID Tit. XVI
Source: PACER


Attorney(s) appearing for the Case

Sarah Jackson, Plaintiff, represented by Paul Townsend McChesney , McChesney and McChesney.

Commissioner of Social Security Administration, Defendant, represented by Marshall Prince , US Attorneys Office.


REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

I. Relevant Background

A. Procedural History

On October 17, 2012, Plaintiff protectively filed an application for SSI in which she alleged her disability began on March 1, 2007. Tr. at 89 and 184-93. Her application was denied initially and upon reconsideration. Tr. at 108-11 and 112-13. On April 17, 2015, and October 16, 2015, Plaintiff had hearings before Administrative Law Judge ("ALJ") Gregory M. Wilson. Tr. at 35-61 and 604-42 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 12, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-34. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 26, 2016. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 56 years old at the time of the hearings. Tr. at 39. She completed high school. Id. She has no past relevant work ("PRW"). Tr. at 58. She alleges she has been unable to work since March 1, 2007. Tr. at 184.

2. Medical History

Plaintiff presented to ophthalmologist Stephen Bogan, M.D. ("Dr. Bogan"), for an evaluation on November 9, 2007. Tr. at 505. Dr. Bogan diagnosed severe glaucoma and cataracts and recommended cataract surgery. Tr. at 506.

On March 19, 2008, Dr. Bogan performed cataract extraction via phacoemulsification with intraocular lens implant to Plaintiff's right eye. Tr. at 495-96. He subsequently performed the same surgical procedure on Plaintiff's left eye on April 16, 2008. Tr. at 497-98.

On July 7, 2008, visual field testing showed slow responses and hazy view that was worse on the right than the left. Tr. at 500. Plaintiff reported no new complaints on August 20, 2008, and September 10, 2008. Tr. at 513-14 and 515-16.

Plaintiff presented to Todd Morton, Ph. D., for a consultative mental status examination on November 4, 2008. Tr. at 517-19. Dr. Morton observed Plaintiff to be casually dressed and adequately groomed; to have no unusual psychomotor activity; to be fully oriented and alert; to have intact short- and long-term memory; to be able to recall three items after a 10-minute delay; to be able to perform serial threes; to have clear, understandable, and well-organized speech; to be cooperative throughout the examination; and to have estimated intelligence in the low-average range. Tr. at 517. He noted Plaintiff appeared depressed and tearful; demonstrated a flat affect; and was mildly irritated at times. Id. Plaintiff reported symptoms of depression that included no energy, difficulty sleeping, little appetite, crying, anxiety around others, and avoidance of others. Id. She endorsed a history of depression and suicide attempts, but indicated she had improved significantly after participating in counseling. Id. She stated her symptoms had worsened following her mother's recent death. Tr. at 517-18. She indicated she typically stayed home during the day and did not pay attention to television or engage in household chores. Tr. at 518. Dr. Morton stated Plaintiff's activities of daily living ("ADLs") were "fairly restricted by some significantly severe symptoms of depression." Id. He noted she had "very low energy and difficulty persisting on task" and "might have difficulty relating with public or coworkers." Id. He indicated that Plaintiff had reported "very poor vision, which if accurate would interfere with her other work as well." Id.

On December 17, 2008, Gary E. Calhoun, Ph. D. ("Dr. Calhoun"), assessed Plaintiff to have mild restriction of ADLs, mild difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 538. He indicated in a mental residual functional capacity ("RFC") assessment that Plaintiff was moderately limited in her abilities to understand and remember detailed instructions; to carry out detailed instructions; and to interact appropriately with the general public. Tr. at 542-44.

On March 31, 2010, Dr. Bogan discussed surgery with Plaintiff and explained to her that he could not guarantee it would prevent further damage to her vision. Tr. at 452-53. Records from April 21, 2010, November 1, 2010, November 24, 2010, and March 28, 2011, reflect no significant changes. Tr. at 446-47, 448-49, 450-51, and 452.

On June 23, 2011, Plaintiff presented to Norden W. Davis, O.D. ("Dr. Davis"), for a consultative examination. Tr. at 555-56. Dr. Davis indicated Plaintiff's intraocular pressure was "too high" at 16 mmHg in her right eye and 17 mmHg in her left eye. Tr. at 555. He noted her visual field was abnormal, but her muscle function was normal. Id. He stated Plaintiff had useful binocular vision in all directions and normal color perception. Tr. at 556. He recommended Plaintiff undergo surgery, use glasses, and continue taking her medications. Tr. at 556.

On March 23, 2012, Plaintiff presented to the emergency room ("ER") at Upstate Carolina Medical Center ("UCMC") with abdominal pain, nausea, and vomiting. Tr. at 351. The attending physician indicated clinical impressions of acute gastritis, alcohol abuse, alcohol withdrawal syndrome, and hypokalemia. Tr. at 352.

Plaintiff indicated she was using her eye drops on April 27, 2012. Tr. at 442. She reported that she had experienced acute pain in her right eye that had lasted for a threeminute period during the prior week, but had not recurred. Id. Dr. Bogan indicated she would soon need to repeat visual field testing. Tr. at 443.

Plaintiff presented to the ER at UCMC on July 14, 2012, with complaints of weakness, headache, cough, congestion, nausea, and hypertension. Tr. at 342. The attending physician diagnosed essential hypertension, hypokalemia, and dehydration. Tr. at 345.

On July 17, 2012, Plaintiff presented to Spartanburg Regional Emergency Center with complaints of headache, dizziness, and lightheadedness. Tr. at 384. A computed tomography ("CT") scan of Plaintiff's brain indicated no acute intracranial process. Tr. at 374. A chest x-ray was normal. Tr. at 393.

Plaintiff presented to Roland Rogers, M.D. ("Dr. Rogers"), on September 26, 2012. Tr. at 398. She indicated she had been out of blood pressure medication for a month-and-a-half and was experiencing severe headaches. Id. She stated her prior physician had advised her to obtain magnetic resonance imaging ("MRI") to determine the source of her headaches. Id. Dr. Rogers noted that Plaintiff's blood pressure was 141/89 mmHg, but indicated no additional abnormalities. Tr. at 398-99. He informed Plaintiff of the cost of an MRI and recommended that she instead obtain a CT scan. Tr. at 400.

Plaintiff reported no change to her vision on October 16, 2012. Tr. at 407. Dr. Bogan indicated Plaintiff had glaucoma in both eyes; that her vision was "out of focus," that the severity was "barely noticeable," and that the duration was "a few seconds." Id. He noted Plaintiff had 20/30 +2 visual acuity in her right eye and 20/30 visual acuity in her left eye. Tr. at 408. He indicated Plaintiff's adjusted intraocular pressure was 14 mmHg in her bilateral eyes. Id. His diagnostic impressions were primary angle-closure glaucoma, wide-angle glaucoma, severe stage glaucoma, pseudophakia, and cataract. Tr. at 409. Dr. Bogan indicated Plaintiff was "[a]t risk of continuing to lose" visual acuity. Id. He stated Plaintiff needed surgery, but would have to wait until she could qualify for insurance. Id.

On October 29, 2012, Plaintiff reported occasional headaches, but indicated her hypertension was well-controlled. Tr. at 396. Dr. Rogers noted no abnormalities on examination. Tr. at 396-97. He prescribed Fioricet and Vistaril and instructed Plaintiff to continue her current treatment plan and lifestyle modifications for hypertension. Tr. at 397.

On January 15, 2013, Plaintiff reported using her eyedrops as directed. Tr. at 412. She complained of some soreness in her eyes and indicated she felt like her eyeballs were swelling. Id. Dr. Bogan observed Plaintiff's uncorrected visual acuity to be 20/30 +2 in her right eye and 20/25 — in her left eye. Id. He noted Plaintiff had adjusted intraocular pressure of 14 mmHg in her right eye and 13 mmHg in her left eye. Id. He assessed wide-angle glaucoma, severe stage glaucoma, pseudophakia, cataract, vitreous liquefaction, and blepharitis. Tr. at 413.

State agency physician Joseph Geer, M.D. ("Dr. Geer"), reviewed the record and completed a physical RFC assessment on March 13, 2013. Tr. at 71-74. He found that Plaintiff could occasionally lift and carry 50 pounds; could frequently lift and carry 25 pounds; could stand and/or walk for about six hours in an eight-hour workday; could sit for about six hours in an eight-hour workday; could frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; could never climb ladders, ropes, or scaffolds; was limited to occasional near and far acuity; and should avoid even moderate exposure to hazards. Tr. at 71-74.

State agency consultant Xanthia Harkness, Ph. D. ("Dr. Harkness"), completed a psychiatric review technique form ("PRTF") on March 14, 2013. Tr. at 70. She considered Listing 12.09 for substance addiction disorders and found that Plaintiff had no restriction of ADLs, no difficulties in maintaining social functioning, and no difficulties in maintaining concentration, persistence, or pace. Id. Dr. Harkness noted that Plaintiff had a diagnosis of alcohol abuse and reported current use, but was not severely limited. Id. A second state agency consultant Larry Clanton, Ph. D. ("Dr. Clanton"), reached the same conclusion on May 24, 2013. Tr. at 82.

Plaintiff reported her vision was unchanged on April 16, 2013. Tr. at 419. Dr. Bogan indicated Plaintiff's glaucoma caused her eyes to be "out of focus" for "a couple of minutes" on an infrequent basis. Tr. at 419. He noted Plaintiff's uncorrected visual acuity was 20/30 -1 in her right eye and 20/25 -2 in her left eye. Tr. at 420. He indicated Plaintiff's adjusted intraocular pressure was 19 mmHg in her right eye and 18 mmHg in her left eye. Id. His diagnostic impressions were wide-angle glaucoma, severe stage glaucoma, pseudophakia, cataract, vitreous liquification, and unspecified blepharitis. Tr. at 420-21. Dr. Bogan noted that he provided Plaintiff with contact information for the Commission for the Blind. Tr. at 421.

On June 21, 2013, state agency medical consultant Matthew Fox, M.D. ("Dr. Fox"), indicated that Plaintiff had the physical RFC to occasionally lift and carry 50 pounds; frequently lift and carry 25 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; and must avoid even moderate exposure to hazards. Tr. at 83-83. He found that glaucoma was a severe impairment, but assessed no visual limitations. Tr. at 84 and 85.

On August 6, 2013, Plaintiff indicated she had not started Methazolamide tablets because she did not know how to obtain them. Tr. at 461. Dr. Bogan indicated Plaintiff's glaucoma caused her bilateral vision to be "out of focus" for "a couple of minutes" at a time. Id. He stated "comes and goes" for the timing of the symptoms. Id. Dr. Bogan noted that Plaintiff's ocular pressure had increased and explained that it needed to be lowered to prevent vision loss. Tr. at 462. He recommended surgery, but indicated Plaintiff did not have insurance. Id.

On March 25, 2014, Plaintiff complained that her eyes felt tired all the time and were sensitive to light on some days. Tr. at 458. She reported regular use of Lumigan, Combigan, and Azopt. Id. Dr. Bogan indicated Plaintiff's glaucoma was characterized by both eyes being "out of focus" for "couple of minutes." Id. He noted "comes and goes" with respect to the timing of symptoms. Id. He indicated Plaintiff's uncorrected visual acuity was 20/25 -2 in her bilateral eyes and that her adjusted intraocular pressure was 13 mmHg in her right eye and 15 mmHg in her left eye. Tr. at 459. Dr. Bogan explained to Plaintiff that she would need to lower her ocular pressure because of severe glaucoma and visual field abnormalities. Tr. at 460. He recommended Ahmed Glaucoma Valve implantation, particularly for Plaintiff's left eye. Id. However, Plaintiff indicated she could not pursue the procedure until she qualified for insurance. Id.

Plaintiff presented to Gaffney Medical Center ("GMC") on April 28, 2014, with bilateral hand pain and swelling. Tr. at 468. Troy Mitchell, ARNP/PA ("Mr. Mitchell"), observed Plaintiff to have a small amount of soft tissue swelling and moderate tenderness to palpation in her hands. Tr. at 469. He indicated the tenderness was most pronounced at the posterior aspect of the second and fourth metacarpals and in the third metacarpal of Plaintiff's right hand and in the anterior and posterior aspects of the second, third, and fourth metacarpals of her left hand. Id. Tinel's and Allen tests were negative bilaterally. Id. Plaintiff demonstrated grossly intact sensation, but decreased motor strength in her bilateral hands. Id. Mr. Mitchell diagnosed acute cephalgia, arthralgia, osteoarthritis pain, and hypertension. Id. Plaintiff received 100 mg of Ultram and an intravenous dose of Solumedrol. Tr. at 464. She was discharged with a right wrist splint. Id.

On June 17, 2014, Plaintiff reported blurred vision while watching television. Tr. at 477. Dr. Bogan indicated Plaintiff's uncorrected visual acuity was 20/25 -3 in her right eye and 20/30 +2 in her left eye. Tr. at 477. He stated Plaintiff's adjusted intraocular pressure was 15 mmHg in her right eye and 18 mmHg in her left eye. Tr. at 478. Dr. Bogan recommended Plaintiff use the punctal occlusion procedure to make her eye drops more effective. Tr. at 479. He discussed glaucoma surgery and selective laser trabeculoplasty for intraocular pressure control, but Plaintiff indicated she could not proceed with either because she had no insurance. Id.

Plaintiff presented to GMC on October 13, 2014, with a right-sided headache and increased pain in the joints of her bilateral fingers and hands. Tr. at 481. She indicated she had been out of blood pressure medication for two weeks. Id. The attending physician observed Plaintiff to be tender in her metacarpophalangeal joints and to have mild swelling in her proximal interphalangeal joints. Tr. at 482. She diagnosed acute cephalgia and joint pain in the bilateral hands. Id.

On October 14, 2014, Plaintiff reported a one-week history of head and neck pain. Tr. at 473. She described it as a throbbing pain that originated in the center of her forehead and extended to the back of her neck. Id. She indicated she had been using the punctal occlusion procedure and eye drops. Id. Dr. Bogan stated Plaintiff's glaucoma presented constant symptoms in her bilateral eyes. Id. He noted Plaintiff's uncorrected visual acuity was 20/25 in both eyes and her adjusted intraocular pressure was 19 mmHG in her right eye and 18 mmHg in her left eye. Tr. at 474. He recommended Plaintiff continue punctal occlusion, discontinue smoking, and persist in her efforts to obtain coverage for surgery. Tr. at 475.

Plaintiff complained of frequent eye watering on February 3, 2015. Tr. at 489. Dr. Bogan indicated glaucoma caused Plaintiff's eyes to be "out of focus" for a "couple of minutes" duration and that the problem "comes and goes." Id. He noted Plaintiff's uncorrected visual acuity was 20/25 -2 in both eyes and her adjusted intraocular pressure was 23 mmHg in her right eye and 22 mmHg in her left eye. Tr. at 490. He indicated Plaintiff's ocular pressure had increased because she had been out of Azopt for a week. Tr. at 491. He ordered her to restart Azopt in combination with Combian and Lumigan. Id. He noted Plaintiff had decreased her consumption of caffeine, but needed to discontinue smoking. Id.

Plaintiff returned to Dr. Bogan and reported that she had yet to receive Azopt on February 12, 2015. Tr. at 565. She complained of a headache and indicated her left eye had been red, sore, painful, and watering since the prior day. Id. Dr. Bogan recommended hot compresses and lid compressions and gave Plaintiff a sample of Systane for blepharitis. Tr. at 567.

On May 29, 2015, Dr. Bogan observed Plaintiff to have uncorrected visual acuity of 20/40 in her right eye and 20/30 -1 in her left eye. Tr. at 581. He indicated her adjusted intraocular pressure was 21 mmHg in both eyes. Tr. at 582. He again advised Plaintiff of the need for surgery, and she again declined the surgery because she lacked insurance. Tr. at 583.

Plaintiff presented to Mary Black Health System Gaffney on July 18, 2015, with a needle-like sensation in her feet and legs. Tr. at 590. She indicated she had first noticed the feeling two weeks prior. Id. She also endorsed joint pain and numbness in her hands. Tr. at 591. The attending physician diagnosed arthritis and peripheral neuropathy. Tr. at 594.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

i. April 17, 2015

At the hearing on April 17, 2015, Plaintiff testified that she lived with a male friend. Tr. at 40-41. She stated she had last worked as a cook in a seafood restaurant in 2011. Tr. at 41-42. She indicated she would batter and fry fish, but denied having to read order tickets or cut and clean the fish. Tr. at 42.

Plaintiff testified that her vision had worsened over the prior six-month period. Tr. at 43. She endorsed blurred vision while watching television. Id. She indicated her vision problems prevented her from using a computer. Tr. at 44. She stated she was able to differentiate between coins on a table. Tr. at 44-45. She indicated she was able to read newspaper headlines, but could not read the articles. Tr. at 45. She testified she was able to walk around her house without bumping into items, but indicated she would have difficulty seeing small objects. Tr. at 50. She indicated she visited the store with a friend because she was unable to see the prices of items. Tr. at 51. She stated Dr. Bogan had recommended eye surgery. Tr. at 44.

Plaintiff testified that she typically experienced three to four headaches per week as a result of increased pressure in her eyes. Tr. at 43-44. She stated her headaches were accompanied by neck pain and immobility. Tr. at 44. She indicated she took Tylenol for her headaches, but claimed it was not always effective. Id.

Plaintiff testified that she sometimes experienced dizziness as a result of high blood pressure, but indicated her blood pressure was controlled when she was able to obtain medication. Tr.at 45 and 46. She endorsed arthritis and swelling in her bilateral hands. Tr. at 46-47. She stated Dr. Welch had given her a brace that she wore at night. Tr. at 47.

Plaintiff stated she could lift a 10-pound bag of groceries if her hands were not swollen. Tr. at 48-49. She indicated she attempted to walk half a mile each day, but would stop to rest before she completed it. Tr. at 49. She estimated she could stand in one spot for five minutes. Id. She indicated she would typically sit for no more than 15 minutes at a time. Tr. at 51.

Plaintiff indicated she had used alcohol in the past on a social basis, but had not used it during the prior nine-month period. Tr. at 48. She stated she smoked less than a pack of cigarettes each day. Id. She indicated she was able to wash dishes, make her bed, clean and iron her clothes, sweep, take out the trash, and clean the kitchen and living room. Tr. at 52, 54, and 55. She stated she could do some cooking, but her roommate would "set the burners" and add salt to the food. Id. She denied visiting restaurants and movie theaters, but indicated she attended church nearly every Sunday. Tr. at 52-53.

ii. October 16, 2016

Plaintiff testified that her doctor had recommended she obtain eye surgery to treat glaucoma. Tr. at 632-33. She stated she had no insurance, assets, or access to a medical provider who could perform the surgery. Tr. at 633. She indicated she did not qualify for Medicaid because she did not have small children and had not been declared disabled. Id.

b. Vocational Expert Testimony

i. April 17, 2015

Vocational Expert ("VE") Benson Hecker reviewed the record and testified at the hearing. Tr. at 57-60. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift 50 pounds occasionally and 25 pounds frequently; could stand for six hours in an eight-hour workday; could walk for six hours in an eight-hour workday; could never climb ladders, ropes, or scaffolds; could never be exposed to hazards; could frequently climb, balance, stoop, kneel, crouch, and crawl; could perform no work that required fine visual discrimination; would be limited to jobs that did not have reading as a primary criterion; could occasionally read; would have limited near and far acuity and field of vision; could not work with objects smaller than a dime; and could not perform jobs that required peripheral vision as a primary component. Tr. at 58-59. The VE testified that the hypothetical individual would be able to perform no work. Tr. at 59.

For a second hypothetical question, the ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who could lift 50 pounds occasionally and 25 pounds frequently; could stand for six hours in an eight-hour workday; could walk for six hours in an eight-hour workday; could never climb ladders, ropes, or scaffolds; could never be exposed to hazards; could frequently climb, balance, stoop, kneel, crouch, and crawl; would have limited near and far acuity; and could not work with objects the size of a needle and thread. Tr. at 59. The VE testified that there would be no jobs that could accommodate those restrictions. Id.

For a third hypothetical question, the ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who could lift 50 pounds occasionally and 25 pounds frequently; could stand for six hours in an eight-hour workday; could walk for six hours in an eight-hour workday; could never climb ladders, ropes, or scaffolds; should avoid concentrated exposure to hazards; could frequently climb, balance, stoop, kneel, crouch, and crawl; and would have limited near and far acuity. Tr. at 59-60. The VE testified that the restrictions would not allow for performance of any jobs. Tr. at 60.

ii. October 16, 2015

VE Robert E. Brabham, Jr., reviewed the record and testified at the hearing. Tr. at 634-40. The ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who could lift 50 pounds occasionally and 25 pounds frequently; could stand for six hours in an eight-hour workday; could walk for six hours in an eight-hour workday; could sit for six hours in an eight-hour workday; could frequently climb, balance, stoop, and kneel; could occasionally crouch and crawl; could never climb ladders, ropes, and scaffolds; could never be exposed to moving equipment and machinery; and could not perform reading as a primary job function. Tr. at 635-36. He asked if the individual would be able to perform any jobs. Tr. at 636. The VE identified medium jobs with a specific vocational preparation ("SVP") of two as a janitor, Dictionary of Occupational Titles ("DOT") number 323.687-010, with 122,000 positions in the national economy; a packer, DOT number 920.587-018, with more than 40,000 positions in the national economy; and a laundry worker, DOT number 369.687-026, with over 280,000 positions in the national economy. Tr. at 636-37.

Plaintiff's attorney asked the VE to consider an individual of Plaintiff's vocational profile who could perform no work that required fine visual discrimination; could engage in no more than occasional reading of commonly-sized reading material; could not see small objects on a table well enough to handle them rapidly; could not see well enough to avoid ordinary hazards in the work environment, such as doors ajar, boxes on the floor, and approaching people or vehicles; and could only perform tasks that required occasional near and far acuity, accommodation, and depth perception. Tr. at 638-39. He asked if the individual would be able to engage in any competitive employment. Tr. at 639. The VE stated there would be no work that an individual with those limitations could perform. Tr. at 640.

c. Medical Expert Testimony

Medical expert ("ME") Lawrence T. Reese, M.D. ("Dr. Reese"), reviewed the record and testified at the hearing on October 16, 2015. Tr. at 609-32. Dr. Reese stated he was an ophthalmologist. Tr. at 610. He described Plaintiff's visual impairments as being "centered around her visual field loss from her glaucoma." Tr. at 611. He stated Plaintiff had reduced visual field in both eyes as a result of progressive open-angle glaucoma. Id. He indicated he had received "summary fields" and indicated they were "a little bit hard to read," but were legible. Id. He noted the November 2014 test showed field loss above the horizontal in one quadrant of the left eye and field loss below the horizontal in the right eye. Tr. at 612. He stated Plaintiff's visual impairments did not meet or equal a Listing. Id. Dr. Reese indicated that Plaintiff could see above the horizontal fairly well with one eye and below the horizontal with the other eye. Tr. at 612-13. He indicated an individual with Plaintiff's visual problems should not climb ladders or scaffolds, be exposed to heights, or be in a workplace with moving forklifts. Tr. at 613. He stated Plaintiff should be able to read, but indicated it would be a little difficult for her. Id. He stated Plaintiff should not crouch or crawl. Id. He explained that Plaintiff's good areas of vision in each eye would fill in for her bad areas of vision. Tr. at 617-18. He confirmed that an individual with Plaintiff's test results would not function as well at reading and fine discrimination as an individual with healthy eyes, but indicated he could not speculate as to how impaired the individual would be in her ability to perform these actions. Tr. at 621-22. He stated he would have been able to give a more definitive answer if he had observed Plaintiff during the testing. Tr. at 622.

2. The ALJ's Findings

In his decision dated November 12, 2015, the ALJ made the following findings of fact and conclusions of law:

1. The claimant has not engaged in substantial gainful activity since October 17, 2012, the application date (20 CFR 416.971 et seq.). 2. The claimant has the following severe impairments: glaucoma, headaches, and hypertension (20 CFR 416.920(c)). 3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c). She can lift 50 pounds occasionally and 25 frequently. She can sit, stand and walk for six hours in an eight hour workday. She can frequently climb, balance, stoop and kneel. She can occasionally crouch and crawl. She can never climb ladders, ropes or scaffolds. She should never be exposed to hazards such as moving machinery or the use of equipment at work such as a forklift. She also cannot perform a job where reading would be the primary function of the job, such as proofreading. 5. The claimant has no past relevant work (20 CFR 416.965). 6. The claimant was born on July 20, 1958 and was 54 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed. The claimant subsequently changed age category to advanced age (20 CFR 416.963). 7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964). 8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968). 9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969, and 416.969(a)). 10. The claimant has not been under a disability, as defined in the Social Security Act, since October 17, 2012, the date the application was filed (20 CFR 416.920(g)).

Tr. at 14-27.

II. Discussion

Plaintiff alleges the Commissioner erred in improperly evaluating the medical opinions of record. The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:

the inability 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 at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;2 (4) whether such impairment prevents claimant from performing PRW;3 and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 416.920(a), (b); Social Security Ruling ("SSR") 82-62, 1982 WL 31386 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

Plaintiff argues the ALJ rejected opinions from her treating physician and the examining psychologist without considering that the opinions were consistent with one another and supported by the objective diagnostic evidence. [ECF No. 19 at 15]. The Commissioner maintains that substantial evidence supported the weight the ALJ accorded to the medical opinions of record. [ECF No. 20 at 5].

ALJs must carefully consider medical source opinions of record. SSR 96-5p, 1996 WL 374183, at *2 (1996). The regulations direct that they accord controlling weight to treating physicians' opinions that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 416.927(c)(2). If a treating source's opinion is not wellsupported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, even if the ALJ determines the treating source's opinion is not entitled to controlling weight, he must proceed to weigh it, along with all other medical opinions of record, based on the factors in 20 C.F.R. § 416.927(c), which include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the provider offering the opinion. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996).

The regulations provide guidance in weighing the relevant factors in 20 C.F.R. § 416.927(c). ALJs should give some deference to a treating source's opinion, even if it is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record. 20 C.F.R. § 416.927(c)(2); see also SSR 96-2p, 1996 WL 374188, at *3 (1996). Nevertheless, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001), citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). Medical opinions that are adequately explained by the medical source and supported by medical signs and laboratory findings should be accorded greater weight than uncorroborated opinions. 20 C.F.R. § 416.927(c)(3). "[T]he more consistent an opinion is with the record as a whole, the more weight the Commissioner will give it." Stanley v. Barnhart, 116 F. App'x 427, 429 (4th Cir. 2004), citing 20 C.F.R. § 416.927(d) (2004).4 Finally, medical opinions from specialists regarding medical issues related to their particular areas of specialty should carry greater weight than opinions from physicians regarding impairments outside their areas of specialty. 20 C.F.R. § 416.927(c)(5).

The ALJ must "always give good reasons" for the weight he accords to the opinion of the claimant's treating medical source. 20 C.F.R. § 416.927(c)(2). If the ALJ issues a decision that is not fully favorable, "the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). This court should not disturb an ALJ's determination as to the weight to be assigned to a medical source opinion "absent some indication that the ALJ has dredged up `specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).

1. Dr. Bogan's Opinion

On November 19, 2012, Dr. Bogan stated Plaintiff's central visual acuity in her better eye was 20/30 after best correction. Tr. at 402. He indicated that the widest diameter angle of the visual field of Plaintiff's better eye was 40 degrees. Id. He noted Plaintiff's visual field efficiency in her better eye, determined by kinetic perimetry was 0.6 degrees. Id. He stated the visual efficiency of Plaintiff's better eye after best correction was 54%. Id. He provided an opinion that, even with best correction, Plaintiff would be unable to perform work that required fine visual discrimination; anything more than occasional reading of commonly-sized reading material; good hand-eye coordination; seeing small objects on a table well enough to handle them rapidly; and the need to avoid ordinary hazards in the workplace, such as doors ajar, boxes on the floor, and approaching people or vehicles. Tr. at 402-03. He stated Plaintiff would be able to perform work that required binocular vision. Tr. at 402. He noted that Plaintiff's eye condition would occasionally impair her near acuity, far acuity, depth perception, and accommodation and would frequently impair her field of vision. Tr. at 403. He stated Plaintiff would have to rest her eyes occasionally if she were to attempt to work an eighthour day and five-day workweek. Id. He estimated that Plaintiff was impaired as described in his assessment in 2008, but indicated she was probably impaired before that date. Tr. at 403 and 404. Dr. Bogan indicated his opinion was supported by Plaintiff's diagnosis of glaucoma and vision and visual field testing. Tr. at 404.

In a letter dated March 25, 2015, Dr. Bogan referred Plaintiff's attorney to his earlier response. Tr. at 493. He stated Plaintiff had decreased vision in both eyes as a result of glaucoma. Id. He indicated Plaintiff also had increased eye pressure that had damaged her optic nerve and retina and caused loss of vision. Id. He stated Plaintiff's loss of vision had begun with loss of peripheral vision, but had spread to the center of her eye. Id. He noted that Plaintiff's history of uncontrolled glaucoma had seriously affected both her central and peripheral vision. Id. He indicated Plaintiff's current treatment had stabilized the condition "at a low level of visual function." Id.5

Plaintiff argues the ALJ did not give logical or legally-sufficient reasons for rejecting Dr. Bogan's opinion. [ECF No. 19 at 20]. She maintains the ALJ ignored the requirements of SSR 96-2p in giving greater weight to the non-treating, non-examining physician's opinion and did not acknowledge that Dr. Reese had indicated his opinion was somewhat hindered because he had not examined Plaintiff. Id. at 21-22. She contends the ALJ erred in comparing two different visual abilities to find her testimony was inconsistent with Dr. Bogan's opinion. Id. at 22. She claims her ADLs were not incompatible with Dr. Bogan's opinion. Id. at 22-23. She maintains the ALJ erred in considering that her eye condition had stabilized, but ignoring that it had stabilized at a low level of function. Id. at 24. Finally, she contends that Dr. Bogan cited sufficient objective findings to support his opinion. Id. at 26.

The Commissioner argues the ALJ adequately weighed Dr. Bogan's opinion in light of Dr. Reese's opinion. [ECF No. 20 at 5-6]. She maintains that the ALJ exercised his duties to weigh the evidence and to resolve the conflicts therein and that the court is not permitted to reweigh the evidence. Id. at 7-8.

The ALJ provided thorough summaries of Dr. Bogan's November 2012 opinion and March 2015 letter. Tr. at 20. He observed that Plaintiff had "a long history of receiving treatment from Dr. Bogan" and noted that he had been treating her for cataracts and glaucoma since 2008. See Tr. at 20 and 24; see also 20 C.F.R. § 416.927(c)(2). He also recognized Dr. Bogan's specialization. See Tr. at 24; see also 20 C.F.R. § 416.927(c)(5). He accorded "[l]imited weight" to Dr. Bogan's opinion based on its inconsistency with Dr. Reese's testimony and Plaintiff's testimony and reported ADLs. Tr. at 24.

Although the ALJ stated he considered the treatment relationship between Plaintiff and Dr. Bogan, his decision reflects little consideration of the supportability of Dr. Bogan's opinion in his own treatment records. See 20 C.F.R. § 416.927(c)(3). Dr. Bogan's records show Plaintiff's glaucoma caused more significant visual impairment over time. Compare Tr. at 407 (describing Plaintiff's vision as "out of focus," but being "barely noticeable" in severity and lasting for "a few seconds" at a time), with Tr. at 473 (describing Plaintiff's glaucoma symptoms as constant) and Tr. at 489 (indicating glaucoma caused Plaintiff's eyes to be "out of focus" for a "couple of minutes" at a time and occurred on an intermittent basis). In rendering his opinion, Dr. Bogan noted that Plaintiff's visual acuity in her better eye was 20/30 after best correction; that the widest diameter angle of the visual field of her better eye was 40 degrees; that the visual field efficiency of her better eye was 0.6 degrees; and that the visual efficiency of her better eye after best correction was 54%. Tr. at 402. Despite this objective evidence, the ALJ cited only Dr. Bogan's notation that Plaintiff's uncorrected vision was 20/30 +2 in her right eye and 20/30 in her left eye in October 2012 and stated Dr. Bogan had "provided no rational[e] or basis for his findings in 4F other than to list her diagnosis of glaucoma as the reason for his opinions." See Tr. at 25.

The ALJ also failed to consider that Dr. Bogan's opinion was partially supported by Dr. Geer's RFC assessment. Compare Tr. at 72-73 (limiting Plaintiff to occasional near and far visual acuity with the bilateral eyes), with Tr. at 402 (indicating Plaintiff would be unable to perform work that required fine visual discrimination, more than occasional reading of commonly-sized reading material, and seeing small objects on a table well enough to handle them rapidly and would occasionally have impaired near and far visual acuity).

The ALJ's claim of inconsistency between Dr. Bogan's and Dr. Reese's opinions is not fully supported by the evidence of record. Although Dr. Bogan and Dr. Reese set forth different restrictions, Dr. Reese did not explicitly reject the restrictions Dr. Bogan indicated because neither Plaintiff's attorney nor the ALJ asked him to comment on those restrictions. Dr. Reese provided an opinion as to the expected restrictions for an individual with Plaintiff's visual field test results. See Tr. at 612 (imposing restrictions for no climbing of ladders or to heights; no work on scaffolds; avoidance of high-speed machinery and moving forklifts; reduced reading speed; and no crouching or crawling). However, he noted that his opinion was limited by the fact that he had not observed Plaintiff's performance during testing. See generally Tr. at 616-22. The following relevant exchange took place during the hearing:

Attorney: Based on the findings you have here, just focusing that for now on central visual acuity, is [it] possible that the person who has these test results, is going to function more poorly at reading and at fine discrimination than she would if she had healthy eyes. Dr. Reese: I wouldn't—now, it's a thing that you don't get is the semantics. I would say, not as well. Attorney: Right. Right, and how much more poorly is something that's hard for you to answer, I think is what you've also said? Dr. Reese: I would be speculating and I don't think it would be very significant, but then again I can't— Attorney: Okay. Dr. Reese: —something I can't measure, because a lot of it goes to effort. Attorney: Right. Right. Okay. If you had been the one to actually perform the eye examination on her, do you think you could have given a more definite answer there? Dr. Reese: Yeah, because I would be there watching her read the chart. I do everything myself in the office. I watch the patients read the chart— Attorney: Okay. Dr. Reese: —and when they're reading, I can get an idea of how quick they're going across the letters.

Tr. at 621-22. Dr. Reese further noted that Plaintiff "wouldn't be as fast" at reading or assembling parts as an individual who was "perfectly sighted," but indicated he was unable to specify how much slower she would be because he had not observed her. Tr. at 630-31. The restrictions that Dr. Bogan specified in his opinion (Tr. at 402-03) are not inconsistent with Dr. Reese's testimony to the extent that they suggest Plaintiff would not process visual stimuli as quickly as someone with normal vision.

While the ALJ cited Plaintiff's varied ADLs to support his decision to give limited weight to Dr. Bogan's opinion (Tr. at 24-25), he did not explain his reasons for finding them to be inconsistent with the specified restrictions. Plaintiff's ADLs were not inherently inconsistent with the restrictions Dr. Bogan assessed. Cf. Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006) (stating that "the record, when read as a whole," did not support the ALJ's finding that the plaintiff's purported limitations were inconsistent with his ADLs). The ALJ pointed out that Plaintiff had testified she was able to see the difference in coins on a table (Tr. at 24), but her ability to distinguish coins does not refute Dr. Bogan's opinion that she would have an impaired ability to rapidly handle small objects on a table. The ALJ noted Plaintiff's ability to perform various household and personal care tasks within her home (Tr. at 24), but her ability to avoid hazards while moving about in a familiar environment with only one other individual does not contradict Dr. Bogan's opinion that she would have trouble avoiding ordinary hazards in a less-familiar environment with others who may inadvertently create more hazards. The ALJ's reliance on Plaintiff's indication that she "probably could" walk around Walmart without assistance (Tr. at 25) provides weak support for his decision to discredit Dr. Bogan's opinion that she would have trouble avoiding ordinary hazards in a workplace— particularly in light of Plaintiff's indication that she did not usually visit stores without a friend's assistance. See Tr. at 50-51. Finally, the ALJ's reference to stabilization of Plaintiff's glaucoma (Tr. at 25) ignores Dr. Bogan's indication that her vision had stabilized at a low level of function (Tr. at 493).

In light of the foregoing, the undersigned recommends the court find the ALJ did not adequately consider the relevant factors in 20 C.F.R. § 416.927(c) in evaluating Dr. Bogan's opinion and did not adequately explain his reasons for according it light weight, as required by SSR 96-2p.

2. Dr. Morton's Opinion

Plaintiff argues the ALJ did not give adequate reasons for rejecting Dr. Morton's opinion. [ECF No 19 at 29-30]. She maintains the ALJ erred in discounting Dr. Morton's opinion based on her failure to obtain mental health treatment without having considered her reasons for not having pursued it. Id. at 30. She contends the Commissioner offers impermissible post-hoc rationale to support the ALJ's weighing of Dr. Morton's opinion. [ECF No. 21 at 7-8].

The Commissioner argues that substantial evidence supports the ALJ's weighing of Dr. Morton's opinion. [ECF No. 20 at 8]. She contends that the ALJ considered that Dr. Morton had rendered his opinion in 2008 and that Plaintiff had obtained no subsequent mental health treatment. Id. She maintains that the ALJ considered Dr. Morton's findings in limiting Plaintiff to unskilled work. Id.

The ALJ summarized Dr. Morton's opinion and the restrictions he set forth. Tr. at 15 and 21. He gave "[l]imited weight" to Dr. Morton's opinion because it "was issued years before," and Plaintiff had received no subsequent treatment. Tr. at 25. He noted that Plaintiff's ADLs had "not been significantly affected by her mental condition" and cited specific evidence of Plaintiff's ADLs. Tr. at 21-22.

The ALJ considered the relevant factors in 20 C.F.R. § 416.927(c) in evaluating Dr. Morton's opinion. He noted the examining relationship, Dr. Morton's specialization, and the supportability of his opinion in examination notes. See Tr. at 15 (citing Dr. Morton's observations and findings) and 21 (noting that Dr. Morton had evaluated Plaintiff in November 2008 for a mental status examination and referring to his findings); see also 20 C.F.R. § 416.927(c)(1), (3), and (5). However, he found that the limitations Dr. Morton indicated were inconsistent with the record as a whole. See Tr. at 21 (indicating Plaintiff had "received virtually no mental health treatment" since 2008 and that her ADLs had "not been significantly affected by her mental condition"); see also 20 C.F.R. § 416.927(c)(4).

The undersigned is not persuaded by Plaintiff's argument that the ALJ erred in considering her failure to obtain mental health treatment during the relevant period.6 An ALJ cannot deny benefits based on a lack of medical treatment without considering the reason for the lack of treatment and cannot deny benefits simply because an individual failed to obtain treatment she could not afford. See SSR 96-7p, 1996 WL 374186, at *7 (1997); Gordon v. Schweiker, 725 F.3d 231, 237 (4th Cir. 1984). However, the record does not suggest Plaintiff failed to obtain mental health treatment because she could not afford it. Instead, it is consistent with the ALJ's finding that Plaintiff did not obtain mental health treatment because she did not experience severe symptoms during the relevant period.7

The ALJ determined that Plaintiff's level of functioning was inconsistent with the limitations Dr. Morton indicated and a finding that her mental impairments were severe. See Tr. at 14-15, 21-22, and 25. He found that Plaintiff had mild limitation in ADLs because she lived with a friend; engaged in household chores that included doing laundry, making her bed, ironing her clothes, cooking, sweeping, and taking out the trash; reported no difficulty in caring for her personal needs; and engaged in hobbies that included fishing, watching television, gardening, sewing, and reading large print. Tr. at 14-15. He determined she had mild limitation in social functioning because she attended church, visited the store, and maintained a friendship. Tr. at 15. He found that she had mild limitation in concentration, persistence, or pace because she was able to handle her financial affairs; reported no trouble with memory, concentration, or following directions; and demonstrated intact memory, was able to recall objects after a delay, and could perform serial threes during Dr. Morton's testing. Id.

The undersigned also finds unavailing Plaintiff's argument that Dr. Morton's opinion was consistent with Dr. Bogan's opinion. Dr. Morton's indication that Plaintiff's "poor vision" would interfere with her work was based solely on her report, and he did not specify how her poor vision would affect her ability to work. See 20 C.F.R. § 416.927(c)(3). In the absence of an explanation as to how Plaintiff's poor vision "would interfere with her other work," Dr. Morton's opinion is no more consistent with Dr. Bogan's opinion than it is with the ALJ's RFC assessment because both acknowledge that Plaintiff's visual impairments would impose restrictions.

In light of the foregoing, the undersigned recommends the court find that substantial evidence supported the ALJ's decision to give limited weight to Dr. Morton's opinion.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.

IT IS SO RECOMMENDED.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

FootNotes


1. Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this lawsuit.
2. The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
3. In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 416.920(h).
4. The version of 20 C.F.R. § 416.927 effective March 26, 2012, redesignated 20 C.F.R. § 416.927(d)(4) as 20 C.F.R. § 416.927(c)(4).
5. Plaintiff submitted a third opinion statement dated June 29, 2016, to the Appeals Council. Tr. at 602. He indicated Plaintiff's "severe loss of peripheral vision" would be "a constant obstacle for her and would slow her performance of any activity." Id. He stated Plaintiff would have "difficulty accurately manipulating small objects at a table top in front of her." Id. He indicated his conclusions were based on field testing and the appearance of Plaintiff's optic nerve. Id. He explained that Plaintiff had lost vision in the lower half of her right eye through the center of her vision and had lost "almost the whole upper half of her vision and some of her lower as well." Id.
6. The relevant period in this case ran from Plaintiff's filing date of October 17, 2012, through November 12, 2015, the date of the ALJ's decision. See 20 C.F.R. § 416.305(a) (providing that an individual is not eligible for SSI for any period prior to the date on which the application was filed).
7. On June 27, 2011, SSA employee Donna Donahue noted in a claim communication that the disability examiner had asked Plaintiff about her prior allegation of depression and that Plaintiff had stated she was having difficulty with processing her mother's death at the time of the prior claim and felt that depression was no longer an issue. Tr. at 101. Although Plaintiff had alleged mental impairments in earlier applications, she stated in the instant application that she was unable to work as a result of glaucoma, high blood pressure, and headaches. Tr. at 220. She did not allege she was unable to work as a result of a mental impairment. See id. Furthermore, she did not allege any functional limitations as a result of a mental impairment in her testimony. See Tr. at 43-47.

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