Britt v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No. 7:18-CV-107-FL

JUANITA BRITT, )

)

Plaintiff, )

)

v. ) ORDER

)

ANDREW SAUL, )

Commissioner of Social Security, )

)

Defendant. )

This matter is before the court on the parties’ cross motions for judgment on the pleadings.

(DE 25, 30). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United

States Magistrate Judge Robert B. Jones, Jr., entered memorandum and recommendation (“M&R”),

wherein it is recommended that the court deny plaintiff’s motion, grant defendant’s motion, and

affirm defendant’s decision. Plaintiff timely filed objections to the M&R, and the issues raised are

ripe for ruling. For the reasons that follow, the court adopts the M&R as its own, grants defendant’s

motion, denies plaintiff’s motion, and affirms defendant’s final decision.

BACKGROUND

On June 30, 2014, plaintiff protectively filed an application for disability insurance benefits

and supplemental security income. In both applications, plaintiff alleged disability beginning June

5, 2014. The claims were denied initially and upon reconsideration. Plaintiff filed a request for

hearing before an administrative law judge (“ALJ”), who, after a January 12, 2017, hearing where

a vocational expert (“VE”) appeared and testified, denied plaintiff’s claims by decision entered

March 30, 2017. Following the ALJ’s denial of her applications, plaintiff timely filed a request for

review, and the Appeals Council denied plaintiff’s request for review, leaving the ALJ’s decision

as defendant’s final decision. Plaintiff then filed a complaint in this court on June 13, 2018, seeking

review of defendant’s decision.

COURT’S DISCUSSION

A. Standard of Review

The court has jurisdiction under 42 U.S.C. § 405(g) to review defendant’s final decision

denying benefits. The court must uphold the factual findings of the ALJ “if they are supported by

substantial evidence and were reached through application of the correct legal standard.” Craig v.

Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence [is] . . . such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971) (quotations omitted). The standard is met by “more than a mere scintilla of

evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).

In reviewing for substantial evidence, the court is not to “re-weigh conflicting evidence, make

credibility determinations, or substitute [its] judgment” for defendant’s. Craig, 76 F.3d at 589.

“A necessary predicate to engaging in substantial evidence review is a record of the basis

for the ALJ’s ruling,” including “a discussion of which evidence the ALJ found credible and why,

and specific application of the pertinent legal requirements to the record evidence.” Radford v.

Colvin, 734 F.3d 288, 295 (4th Cir. 2013). An ALJ’s decision must “include a narrative discussion

describing how the evidence supports each conclusion,” Monroe v. Colvin, 826 F.3d 176, 189 (4th

Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)), and an ALJ “must build

an accurate and logical bridge from the evidence to his conclusion.” Id. (quoting Clifford v. Apfel,

227 F.3d 863, 872 (7th Cir. 2000)).

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To assist it in its review of defendant’s denial of benefits, the court may “designate a

magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and

recommendations for the disposition [of the motions for judgment on the pleadings].” See 28 U.S.C.

§ 636(b)(1)(B). The parties may object to the magistrate judge’s findings and recommendations,

and the court “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). The court does

not perform a de novo review where a party makes only “general and conclusory objections that do

not direct the court to a specific error in the magistrate’s proposed findings and recommendations.”

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and timely filed objection,

the court reviews only for “clear error,” and need not give any explanation for adopting the M&R.

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis,

718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject,

or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

The ALJ’s determination of eligibility for Social Security benefits involves a five-step

sequential evaluation process, which asks whether:

(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a

medical impairment (or combination of impairments) that are severe; (3) the

claimant’s medical impairment meets or exceeds the severity of one of the

impairments listed in [the regulations]; (4) the claimant can perform [his or her] past

relevant work; and (5) the claimant can perform other specified types of work.

Johnson v. Barnhart, 434 F.3d 650, 653 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The

burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the

Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

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In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ

found that plaintiff had not engaged in substantial gainful activity since June 5, 2014. At step two,

the ALJ found that plaintiff had the following severe impairments: irritable bowel syndrome

(“IBS”), bone spurs, bilateral plantar fasciitis, and major depressive disorder. However, at step

three, the ALJ further determined that these impairments were not severe enough, either individually

or in combination, to meet or medically equal one of the listings in the regulations.

Before proceeding to step four, the ALJ determined that during the relevant time period

plaintiff had the residual functional capacity (“RFC”) to perform light work, subject to the following

additional limitations: never climb ladders, ropes, or scaffolds; occasionally kneel, crouch, crawl,

climb ramps/stairs, balance, and stoop; avoid all exposure to hazardous machinery and unprotected

heights; frequent bilateral gross and fine manipulation; sitting or standing as desired, such as in

bench work occupations; and, mentally, plaintiff is limited to simple, routine tasks with occasional

interaction with the public and co-workers, and occasional over the shoulder supervision. At step

four, the ALJ concluded plaintiff was unable to perform any past relevant work. At step five, the

ALJ determined that there are jobs that exist in significant numbers in the national economy that

plaintiff can perform. Thus, the ALJ concluded that plaintiff was not disabled under the terms of

the Social Security Act.

B. Analysis

Plaintiff objects to the magistrate judge M&R 1) finding no error in the ALJ’s assessment

of medical evidence from plaintiff’s treating and examining physicians, 2) finding evidence

sufficient for meaningful review of the ALJ’s RFC determination, and 3) finding no error in the

hypothetical question posed to the VE. The court will address each objection in turn below.

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1. The ALJ’s Evaluation of Evidence from Treating and Examining Physicians

Plaintiff argues first that the magistrate judge “erroneously concluded that the Claimant’s

medical evidence from Claimant’s treating and examining physicians do not constitute an opinion,

therefore are not entitled to be weighed,” arguing that the ALJ is required to consider all relevant

evidence in the record” and that “records from Claimant[’s] treating and examining physician are

. . . required to be evaluated and weighed.” (DE 36 at 3-4).

Regardless of the source, the ALJ must evaluate every medical opinion received. 20 C.F.R.

§§ 404.1527(c), 416.927(c). In general, the ALJ should give more weight to the opinion of an

examining medical source than to the opinion of a non-examining source. Id. §§ 404.1527(c)(l),

416.927(c)(l). Additionally, more weight is generally given to opinions of treating sources, who

usually are most able to provide “a detailed, longitudinal picture” of a claimant’s alleged disability,

than non-treating sources such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2).

However, the ALJ is required to assign weight to medical opinions, not medical evidence.

20 C.F.R. §§ 404.1527(c), 416.927(c). Medical opinions are defined as “statements from acceptable

medical sources that reflect judgments about the nature and severity of [plaintiff’s] impairment(s),

including [plaintiff’s] symptoms, diagnosis and prognosis, what [plaintiff] can still do despite

impairment(s), and [plaintiff’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).

Plaintiff does not direct the court’s attention to specific medical opinions the ALJ failed to

evaluate and weigh, and instead directs the court generally to the following:

The physicians from Southeastern Regional Physician Service on September 6, 2011

assessed claimant with chronic pain in her right foot and ankle; standing made her

pain worse. (A.R. 421-22, 412), with bilateral foot pain with plantar fasciitis, without

any long-lasting benefit. (A.R.408-410) In January 2014 she was assessed with

chronic fatigue, abdominal pain, [gastroesophageal reflux disease (“GERD”)],

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irritable bowel syndrome (A.R. 444, 442) and constipation, and rectal bleeding.

(A.R. 439-441) (A.R. 478-479).

On February 23, 2012 Cape Fear Podiatry Associate’s diagnosed claimant with

plantar fasciitis, release spurs, and acute spur syndrome in February 2012 (A.R. 434),

and recommended a heel lift. (A.R. 431-434) On February 23, 2012 she was

prescribed a quarter heel lift and dancer pad. (A.R. 433) She was seen on May 29,

2012 for bilateral foot pain. (A.R. 429) On July 12, 2012 Dr. Thompson added on

additional pad, longitudinal arch, and heel lift. (A.R. 406) Dr. Ricotta diagnosed

claimant with plantar fasciitis, Achilles tendonitis, capsulate mid foot and gave

ankle-foot orthosis. (A.R. 453)

(DE 36 at 5).

A review of these records reveal they do not contain medical opinions or judgments on

plaintiff’s symptoms, diagnosis, or prognosis but instead reflect plaintiff’s subjective symptoms, the

results of examinations and objective testing, and diagnoses themselves. None of these records

provide statements from medical sources that reflect judgments about the nature and severity of

plaintiff’s impairment, only that such impairments exist. See Graham v. Berryhill, No.

7:18-CV-22-FL, 2019 WL 1272545, at *5-6 (E.D.N.C. Jan. 10, 2019), report and recommendation

adopted, No. 7:18-CV-22-FL, 2019 WL 1270933 (E.D.N.C. Mar. 19, 2019) (finding a physician’s

record of examination reflecting the claimant’s subjective symptoms, the results of objective testing,

and diagnoses but containing no judgments regarding prognosis, limitations, or severity was not a

medical opinion that the ALJ was required to discuss); Hose v. Colvin, No. 1:15CV00662, 2016 WL

1627632, at *4 (M.D.N.C. Apr. 22, 2016) (internal citation omitted) (reasoning that a radiologist’s

conclusion that a MRI revealed that the plaintiff had multiple impairments was not a medical

opinion because it did not offer “‘judgments about’ Plaintiff’s ‘prognosis,’ what she ‘can still do

despite her impairments’ or her ‘physical or mental restrictions’”); Phillips v. Colvin, No

3:13-CV-307-MOC, 2014 WL 1713788, at *6 (W.D.N.C. Apr. 30, 2014) (finding where there is no

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“medical conclusion or opinion concerning the impact of such diagnosis—either by expressing an

opinion as to the impact on plaintiff’s ability to do work-related activities or perform daily

activities—such is not a medical opinion within the meaning of 20 C.F.R. § 416.927(a)(2)”); see also

Welch v. Colvin, 566 F. App’x 691, 693–94 (10th Cir. 2014) (“none of the physicians Ms. Welch

identifies provided medical opinions about her that, given her impairments, the ALJ was required

to weigh. Rather, each physician simply diagnosed her impairments and in some cases recommended

treatment for them.”).

More specifically, and consistent with plaintiff’s representations above, physicians from

Southeastern Regional Physician Service multiple times assessed plaintiff with “pain/foot or ankle”

or “pain in limb,” with “chronic bilateral foot pain” and reported plaintiff’s own subjective

complaints; however, no information in the form of medical opinion is offered. (See Tr. at 408-410,

412, 421-22). Likewise, plaintiff was assessed with chronic fatigue, abdominal pain, GERD, IBS,

constipation, and rectal bleeding, all of which were discussed by the ALJ, (see id. at 45, 47-49), but

these assessments contain no form of medical opinion, (see id. at 439-442, 444, 477-479).

Regarding records from Cape Fear Podiatry Associate, these also provide diagnosis and

treatment plan including use of various foot inserts, but no judgments are offered about the nature

and severity of plaintiff’s impairments, including plaintiff’s symptoms, diagnosis, and prognosis,

what plaintiff can still do despite impairments, or plaintiff’s physical or mental restrictions. (See

id. at 426-435, see also id. at 432 (“The patient’s diagnosis is that she has a disorder of her plantar

fascia.”)). Likewise, as stated by plaintiff, Dr. Ricotta diagnosed claimant with plantar fasciitis,

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Achilles tendonitis, and capsulate mid foot and provided plaintiff with an ankle-foot orthosis, but

provided no judgment about the nature and severity of plaintiff’s impairments. (Id. at 453).1

Plaintiff additionally argues that the “ALJ erred by not assigning weight to claimant’s

treating and examining physician statement, diagnosis and opinion in determining claimants’ severe

impairments” and determination of her RFC. (DE 36 at 4). However, plaintiff does not offer

specific statements, diagnosis, or opinions from the record beyond those cited and discussed above.

Additionally, plaintiff has failed to allege any specific error of assessment made by the ALJ such

as what additional impairments should have been considered severe and how any error prejudiced

plaintiff.

Thus, the ALJ did not err in evaluation of plaintiff’s treating and examining physicians.2

2. The ALJ’s RFC Determination

An individual’s RFC is the capacity she possesses despite the limitations caused by physical

or mental impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l). The RFC is based on all

relevant medical and other evidence in the record and may include a claimant’s own description of

limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Where a

claimant has numerous impairments, including non-severe impairments, the ALJ must consider their

cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v.

1 Plaintiff briefly argues that “[t]his medical evidence is contrary to finding by the ALJ [that plaintiff

has] no problem with ability to ambulate without any devices.” (DE 36 at 5). However, the ALJ did not so find and

instead found as follows: “The claimant’s musculoskeletal impairments do not meet the severity of Listing 1.06 because

they do not result in the inability to ambulate effectively as defined in 1.00B2b. The evidence of record demonstrates

the claimant’s ability to ambulate without any devices. (Tr. at 45). Evidence cited by the ALJ post-date the above

evidence cited by plaintiff from Dr. Ricotta.

2 Even if the ALJ did err in failing to weigh these sources, the error is harmless because the medical

evidence contained in these sources is consistent with the ALJ’s determination that plaintiff has the RFC to perform light

work.

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Brown, 872 F.2d 56, 59 (4th Cir. 1989) (citations omitted) (“[I]n determining whether an

individual’s impairments are of sufficient severity to prohibit basic work related activities, an ALJ

must consider the combined effect of a claimant’s impairments.”). The RFC “‘must first identify

the individual’s functional limitations or restrictions and assess his or her work-related abilities on

a function-by-function basis, including the functions’ listed in the regulations.” Colvin, 780 F.3d

at 636 (citation omitted). However, the Court of Appeals for the Fourth Circuit has rejected “a per

se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis.”

Mascio, 780 F.3d at 636. Rather, the court explained that “[r]emand may be appropriate . . . where

an ALJ fails to assess a claimant’s capacity to perform relevant functions, despite contradictory

evidence in the record, or where other inadequacies in the ALJ’s analysis frustrate meaningful

review.” Id. (citations omitted).

Here, the court finds consistent with the recommendation of the magistrate judge that

although the ALJ did not conduct a function-by-function analysis, the ALJ’s RFC discussion is

sufficient for the court to conduct a meaningful review. Plaintiff’s only specific objection to the

magistrate judge’s recommendation is that the “ALJ failed to properly assess the claimant[’s]

capacity to perform work function, despite contradictory evidence in the record which frustrates

meaningful review, as required by [Monroe].” (DE 36 at 6-7).3 However, review of the evidence

provided by plaintiff does not support plaintiff’s argument.

First, plaintiff offers the functional reports from Southeastern Lifestyle Center for

Rehabilitation. (Tr. at 686-708). Plaintiff argues her physician there 1) opined that plaintiff was not

able to work due to her pain level, 2) prescribed plaintiff a night splint for her right foot because her

3 Plaintiff also asserts that the “ALJ did not cite specific medical facts or nonmedical evidence.” (DE

36 at 7). However, review of the ALJ’s RFC determination reveals otherwise. (Tr. at 47-48).

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pain got progressively worse, and 3) upon discharge of plaintiff, assessed plaintiff’s state from the

beginning of treatment to the conclusion as unchanged, (DE 36 at 6). Review of these records do

indicate assessment that plaintiff’s status was unchanged and that plaintiff was given a night splint;

however, there is no indication plaintiff was given a night splint because of increasing pain, and the

only record evidence regarding plaintiff’s inability to work is found in the subjective section of the

assessment and was not a determination made by a medical professional. Here, record evidence

reveals plaintiff’s condition was unchanged over the course of her treatment at this center and that

she was given a night splint for her foot, but this is not inconsistent with the ALJ’s RFC

determination that “an exertional restriction to light work, with additional postural limitations and

a sit/stand option will accommodate the claimant’s bilateral foot pain and IBS symptoms.” (Tr. at

47).

Similarly, plaintiff provides records from Premier Behavioral Services, Inc., where plaintiff

was assessed with depression, anxiety, PTSD, and fatigue and found to have difficulty sleeping,

social withdrawal, lack of concentration, and stress stemming from other people. (Tr. 667-680).

However, plaintiff does not indicate how the ALJ failed to incorporate limitations stemming from

this assessment or how this assessment is inconsistent with the ALJ’s RFC determination.

In the RFC determination, the ALJ discussed plaintiff’s limitations from mental impairments.

(Tr. at 47-49). The ALJ acknowledged that in July 2016, plaintiff sought treatment for increased

mental health issues and reported that her main source of stress was other people. (Id. at 48, 668).

As a result, the ALJ imposed in the RFC social limitations to occasional interaction with the public

and coworkers and occasional over-the-shoulder supervision. (Id. at 47-49). The ALJ discussed that

plaintiff later sought treatment for increasing symptoms of depression and noted her memory

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examination measured one out of three objects at five minutes, her insight and judgment were fair,

and she could not correctly spell the word “world” backwards. (Id. at 49, 754, 757). The ALJ also

cited treatment records from October and November 2016, which indicated plaintiff presented with

appropriate mood and affect and denied emotional concerns, and treatment records from December

2016 indicating plaintiff’s psychotropic medications were increased and adjusted to address

complaints of feeling tired and unmotivated. (Id. at 49, 506-07). The ALJ concluded plaintiff’s

symptoms from depression demonstrated a need for limitation to simple, routine tasks. (Id. at 49).

Plaintiff further argues that Dr. Locklear, who treated her at Premier Behavior, diagnosed

her as disabled. (DE 36 at 6). However, the cited evidence is in the employment history section of

a form, and the “Disabled” box is checked. (Tr. at 670). Other options were “Retired,”

“Homemaker,” “Student,” and “Living in Institution.” (Id.). Here, there is no indication that Dr.

Locklear made a medical judgment that plaintiff was disabled but rather the record indicates plaintiff

so reported.4

In formulating the RFC, the ALJ discussed the relevant evidence, explained how he

accounted for plaintiff’s limitations from her impairments, and cited substantial evidence in support

of the RFC determination. Therefore, the ALJ committed no reversable error in the RFC

determination.

3. ALJ’s Hypothetical to the VE

4 Records from January 8, 2018, through February 19, 2018, which post-date the ALJ’s March 30, 2017

decision, indicate that plaintiff had a calcaneal spur resection and Achilles tendon repair of the right foot on February

16, 2018. (Tr. at 13-38). The Appeals Council determined these records did not relate to the period at issue, (id. at 7),

and plaintiff has not challenged that determination. Thus, the court does not address plaintiff’s references to these

records.

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The ALJ may utilize a VE at steps four and five “to assist the ALJ in determining whether

there is work available in the national economy which this particular claimant can perform.” Walker

v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE’s opinion to be “relevant or helpful,” it must

be given in response to a proper hypothetical question. Id. A proper hypothetical question “fairly

set[s] out all of claimant’s impairments” that are supported by the record. Id.

Here, the ALJ posed the following hypothetical:

Assume a hypothetical individual of the Claimant’s age and education with the past

jobs described. Further assume this individual is limited to light exertion. Never

climb ropes, ladders, or scaffolds. Occasional kneel, crouch, crawl; climb ramps,

stairs; balance and stoop. Avoid all exposure to hazardous machinery and

unprotected heights. Work would be limited to simple, routine tasks with occasional

interaction with the public and coworkers and occasional over-the-shoulder

supervision. Frequent bilateral gross and fine manipulation. And this individual

would be able to perform the job either sitting or standing as desired, such as in

benchwork occupations.

(Tr. at 95).

Plaintiff argues that the “only apparent mental or non-exertional limitations included in the

ALJ’s hypothetical questions” is a limitation that plaintiff would be “limited to simple routines,

repetitive tasks,” and also that “[t]here were numerous other limitations in the case record not

included in the questions by the ALJ” to the VE, citing “occasional numbness in right foot,” “pain

with range of motion,” “difficulty concentration and fatigue,” “social withdrawal, lack of

concentration, stress in other people.” (DE 36 at 7).5

5 Plaintiff also cites to her hypothyroidism; however, as stated by the ALJ and not challenged by

plaintiff, “[t]reatment notes indicate that her hypothyroidism is stable.” (Tr. 45). Plaintiff also argues that the ALJ

should have incorporated in the hypothetical to the VE that plaintiff “was advised to apply ice to her knee two times a

day, for 15 minutes at a time” and record evidence regarding plaintiff’s lack of improvement following medical care.

(DE 36 at 7). These appear not to be impairments to incorporate into the hypothetical but treatment instructions and

assessments. Notwithstanding, these limitations were a part of the hypothetical where the VE was asked about light

exertion with additional postural limitations and a sit/stand option. (Tr. 47, 95).

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The ALJ fairly set out plaintiff’s impairments in the hypothetical posed to the VE. First,

plaintiff’s argument as to the mental and non-exertional limitations included in the ALJ’s

hypothetical questions is inaccurate as well as plaintiff’s argument that the ALJ did not address

plaintiff’s social-interaction limitations. The ALJ included in the hypothetical to the VE

social-interaction limitations and several postural limitations, all of which are aimed at addressing

plaintiff’s nonexertional limitations. (Tr. at 95); see 20 C.F.R. §§ 404.1569a, 416.969a (providing

examples of nonexertional limitations, including “difficulty functioning because you are nervous,

anxious, or depressed” and “difficulty performing the manipulative or postural functions of some

work such as reaching, handling, stooping, climbing, crawling, or crouching.”).

Additionally, the ALJ accounted for plaintiff’s moderate difficulty in interacting with others

by imposing a limitation to only occasional contact in the RFC and in the hypothetical to the VE,

(Tr. at 46, 48, 95), and plaintiff has not suggested what further limitation is appropriate. The ALJ

found plaintiff was only mildly limited in the other functional areas, (id. at 46), and imposed a

limitation to simple, routine work to account for her depression and memory deficits, (id. at 49).

The Fourth Circuit has determined that a limitation to simple, routine, and repetitive tasks in the

hypothetical does not account for an individual moderately limited in her ability to maintain

concentration, persistence, or pace. Mascio, 780 F.3d at 638. Here, plaintiff’s ability to maintain

concentration, persistence, or pace was only mildly limited, and plaintiff has failed to suggest why

the limitation in the hypothetical to simple, routine tasks is insufficient or in what other way the

hypothetical posed was deficient.

In sum, the ALJ included in the hypothetical to the VE all the limitations supported by the

record as determined by the RFC analysis.

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CONCLUSION

Based on the foregoing, upon careful review of the M&R and the record, the court ADOPTS

the M&R as its own. Plaintiff's motion for judgment on the pleadings (DE 25) is DENIED, and

defendant’s motion for judgment on the pleadings (DE 30) is GRANTED. The clerk of court is

DIRECTED to close this case.

SO ORDERED this the 30th day of September, 2019.

C; W. FLANAGWN

United States District Judge

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