LEON DE RODRIGUEZ v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DORIS LEON DE RODRIGUEZ, )

)

Plaintiff, )

)

v. ) 1:18CV715

)

NANCY A. BERRYHILL, )

Acting Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Doris Leon de Rodriguez, brought this action

pursuant to the Social Security Act (the “Act”) to obtain judicial

review of a final decision of Defendant, the Commissioner of Social

Security, denying Plaintiff’s claim for Disability Insurance

Benefits (“DIB”). (Docket Entry 1.) The Court has before it the

certified administrative record (cited herein as “Tr. __”), as well

as the parties’ cross-motions for judgment (Docket Entries 9, 11;

see also Docket Entry 10 (Plaintiff’s Memorandum); Docket Entry 12

(Defendant’s Memorandum)). For the reasons that follow, the Court

should enter judgment for Defendant.

1 The United States Senate confirmed Andrew M. Saul as the Commissioner of Social

Security on June 4, 2019, and he took the oath of office on June 17, 2019.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul

is substituted for Nancy A. Berryhill as the Defendant in this suit. Neither the

Court nor the parties need take any further action to continue this suit by

reason of the last sentence of section 205(g) of the Social Security Act, 42

U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff filed an application for DIB alleging a disability

onset date of November 1, 2014. (Tr. 140-46.) Plaintiff later

amended her alleged disability onset date to December 21, 2014, her

50th birthday. (Tr. 171.) Upon denial of that application

initially (Tr. 53-62) and on reconsideration (Tr. 64-73), Plaintiff

requested a hearing de novo before an Administrative Law Judge

(“ALJ”) (Tr. 87-88). Plaintiff, her attorney, an interpreter, and

a vocational expert attended the hearing. (Tr. 35-52.) By

decision dated June 30, 2017, the ALJ determined that Plaintiff did

not qualify as disabled under the Act. (Tr. 9-31.) On June 19,

2018, the Appeals Council denied Plaintiff’s request for review

(Tr. 1-5), making the ALJ’s ruling the Commissioner’s final

decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the [] Act through December 31, 2018.

2. [Plaintiff] has not engaged in substantial gainful

activity since November 1, 2014, the alleged onset date.

3. [Plaintiff] has the following severe impairments:

ankylosing spondylosis (variously diagnosed as HLA-B27

spondyloarthropathy); and obesity.

. . . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

2

. . . .

5. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . except that

[Plaintiff] may stand for 6 hours, and walk for 6 hours

in an 8-hour day for no more than 1 hour at a time before

taking no more than 2 minutes to adjust position and

resume or take a new position; she may lift and carry 20

pounds occasionally and 10 pounds frequently; [Plaintiff]

may frequently climb stairs and never climb ladders; she

may frequently stoop, kneel, crouch and crawl; and

[Plaintiff] must avoid concentrated exposure to hazards.

. . . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . . .

10. Considering [Plaintiff’s] age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [Plaintiff] can perform.

. . . .

11. [Plaintiff] has not been under a disability, as

defined in the [] Act, from November 1, 2014, through the

date of this decision.

(Tr. 17-26 (internal citations omitted).)2

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

2 The ALJ failed to acknowledge in his decision that Plaintiff amended her

alleged onset date from November 1, 2014, to December 21, 2014. (See Tr. 15, 17,

26.) However, that error remains harmless under the circumstances presented by

this case, as a finding that Plaintiff did not qualify as disabled from November

1, 2014, to June 30, 2017, also encompasses a finding that she did not so qualify

from December 21, 2014, to June 30, 2017.

3

of [the Court’s] review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

the Court “must uphold the factual findings of the ALJ [underlying

the denial of benefits] if they are supported by substantial

evidence and were reached through application of the correct legal

standard.” Hines, 453 F.3d at 561 (internal brackets and quotation

marks omitted). “Substantial evidence means ‘such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.

1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of more than a mere scintilla of evidence but may be

somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d

171, 176 (4th Cir. 2001) (internal citations and quotation marks

omitted). “If there is evidence to justify a refusal to direct a

verdict were the case before a jury, then there is substantial

evidence.” Hunter, 993 F.2d at 34 (internal quotation marks

omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

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determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Social Security Commissioner].” Mastro, 270 F.3d at

176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the reviewing court], therefore, is not whether [the claimant] is

disabled, but whether the ALJ’s finding that [the claimant] is not

disabled is supported by substantial evidence and was reached based

upon a correct application of the relevant law.” Craig v. Chater,

76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means 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 a continuous period of not less than 12 months.’” Id.

(quoting 42 U.S.C. § 423(d)(1)(A)).3 “To regularize the

3 The Act “comprises two disability benefits programs. [DIB] . . . provides

benefits to disabled persons who have contributed to the program while employed.

The Supplemental Security Income Program provides benefits to indigent disabled

persons. The statutory definitions and the regulations . . . for determining

disability governing these two programs are, in all aspects relevant here,

substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations

5

adjudicative process, the Social Security Administration has . . .

detailed regulations incorporating longstanding medical-vocational

evaluation policies that take into account a claimant’s age,

education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2

(4th Cir. 1999).4 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

omitted).

4 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, the “claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.5 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. Id. at

179-80. However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the claimant’s RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary

5 “RFC is a measurement of the most a claimant can do despite [the claimant’s]

limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations

require RFC to reflect claimant’s “ability to do sustained work-related physical

and mental activities in a work setting on a regular and continuing basis . . .

[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”

(internal emphasis and quotation marks omitted)). The RFC includes both a

“physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as

“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658

F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers

all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,

pain).” Hines, 453 F.3d at 562-63.

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burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.6

B. Assignments of Error

Plaintiff contends that the Court should overturn the ALJ’s

finding of no disability on these grounds:

(1) the ALJ “failed to evaluate properly the treating

rheumatologist’s opinion as required by 20 C.F.R. § 404.1527(c) and

Fourth Circuit case law” (Docket Entry 10 at 4 (bold font omitted

and standard capitalization applied)); and

(2) the ALJ “failed to provide adequate reasons for rejecting

Plaintiff’s description of her symptoms” (id. at 9 (bold font

omitted and standard capitalization applied)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 12 at 4-18.)

1. Treating Rheumatologist’s Opinion

Plaintiff first faults the ALJ for failing to properly

evaluate the opinion of Plaintiff’s treating rheumatologist, Dr.

George Kernodle. Based on a diagnosis of

spondyloarthropathy/ankylosing spondylitis, Dr. Kernodle provided

6 A claimant thus can establish disability via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

the claimant’s favor, whereas, on the second path, the claimant must prevail at

steps one, two, four, and five. Some short-hand judicial characterizations of

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

review does not proceed to the next step.”).

8

a functionality assessment, dated November 12, 2015, in which he

opined that Plaintiff could stand or walk for less than 2 hours in

an 8-hour day and rarely carry 10 or 20 pounds in the same span.

(Tr. 489.) Dr. Kernodle later expanded on this assessment in a

letter dated February 23, 2017, attributing Plaintiff’s

restrictions to “pain in her spine . . . both at rest . . . and

with motion which limits her ability to lift/bend/walk regularly.

She also has limited motion of her spine.” (Tr. 803.) Dr.

Kernodle treated Plaintiff for spondyloarthropathy beginning on

June 9, 2015. (See Tr. 442-48.) On August 7, 2015, Dr. Kernodle

noted that Plaintiff tested positive for HLA-B27, an indicator of

spondyloarthropathy, and that Plaintiff’s “MRI showed inflamation

of the thoracic spine consistent with spondyloarthropathy.” (Tr.

438-41.)

The ALJ gave only partial weight to Dr. Kernodle’s opinion,

saying that Dr. Kernodle “overstated the extent of [Plaintiff’s]

limitations.” (Tr. 24.) However, Plaintiff insists that

“[a]dherence to the relevant regulations and Fourth Circuit [c]ase

law would result in according great weight to the opinion of the

rheumatologist who had treated Plaintiff for three years.” (Docket

Entry 10 at 9.) Plaintiff further maintains that the evidence the

ALJ relied on in affording Dr. Kernodle’s opinion little weight

does not actually contradict his opinion of Plaintiff’s

limitations. (Id. at 7.) In addition, Plaintiff argues that the

9

ALJ essentially “cherry picked” evidence to contradict Dr.

Kernodle’s opinion even though the record as a whole offered ample

evidence to support it. (Id. at 5 (citing Lewis v. Berryhill, 858

F.3d 858 (4th Cir. 2017)).) Lastly, Plaintiff contends that the

ALJ failed to take proper account of the length of Dr. Kernodle’s

relationship with Plaintiff, and that the ALJ failed to “create an

accurate and logical bridge from the evidence to his conclusions

regarding the medical and testimonial evidence.” (Id. (citing

Brown v. Commissioner Soc. Sec. Admin., 873 F.3d 251 (4th Cir.

2017), and Monroe v. Colvin, 826 F.3d 176 (4th Cir. 2016)).)

Plaintiff’s arguments miss the mark.

The treating source rule generally requires an ALJ to give

controlling weight to the opinion of a treating source regarding

the nature and severity of a claimant’s impairment. See 20 C.F.R.

§ 404.1527(c)(2). Not all treating sources merit the same

deference, however, as the nature and extent of each treatment

relationship tempers the weight an ALJ gives an opinion. See 20

C.F.R. § 404.1527(c)(2)(ii). Moreover, as subsections (2) through

(4) of the rule describe in detail, a treating source’s opinion,

like all medical opinions, deserves deference only if well

supported by signs and medical findings and consistent with the

other substantial evidence in the case record. See 20 C.F.R.

§ 404.1527(c)(2)-(4). “[I]f a physician’s opinion is not supported

by clinical evidence or if it is inconsistent with other

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substantial evidence, it should be accorded significantly less

weight.” Craig, 76 F.3d at 590. However, an ALJ “has the

obligation to consider all relevant medical evidence and cannot

simply cherrypick facts that support a finding of nondisability

while ignoring evidence that points to a disability finding.”

Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425

(7th Cir. 2010)).

Here, the ALJ based his decision to afford Dr. Kernodle’s

opinion partial weight on several treatment notes, along with other

evidence in the record, that the ALJ deemed inconsistent with

Doctor Kernodle’s opinion, which he proffered in the format of a

single-page, sparsely-annotated checkbox form. (See Tr. 804.) In

that regard, the ALJ cited three treatment notes that he found

inconsistent with Dr. Kernodle’s opinion that Plaintiff suffered

from extreme limitations, including one from Dr. Kernodle himself.

(See Tr. 24-25.) First, the ALJ recited that, during a visit on

September 29, 2016, Plaintiff’s primary care provider, Dr. Neelam

Khan, recorded that Plaintiff denied both pain and stiffness in her

neck and joints, and that “Dr. Khan reported that Humira was

helpful.” (Id.) The ALJ also observed that, on November 7, 2016,

Plaintiff acknowledged that “she did not feel poorly, she reported

that she felt better, and she offered no new complaints.” (Tr.

25.) The ALJ finally pointed out that, the following day, Dr.

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Kernodle himself declared that Plaintiff “was doing much better

with Humira.” (Id.)

Moreover, earlier in the decision, the ALJ cited other

evidence in the record showing that Plaintiff had generally good

function, including other treatment notes and Plaintiff’s own

statements about her activities of daily living. (See Tr. 22-24.)

For example, the ALJ noted:

• Dr. Francisco Naveira’s “observ[ation] that

[Plaintiff’s] reported pain symptoms were not

compatible with exhibited behavior” (Tr. 22; see

also Tr. 732);

• a treatment note from a chiropractic examiner,

dated February 18, 2015, that recognized

Plaintiff’s “ability to lift had improved within

normal limits when she raised her arms” and that

Plaintiff’s “[r]ange of motion and function were

full otherwise” (Tr. 23; see also Tr. 384);

• Plaintiff’s presentation at Alamance Regional

Medical Center on July 24, 2015, as “in no acute

distress” (Tr. 23; see also Tr. 425-27);

• Plaintiff’s presentation at Cone Health

(erroneously referred to by the ALJ as Alamance

Regional Medical Center) on June 25, 2016, as “well

appearing and in no acute distress,” as well as

Plaintiff’s denial of lower extremity weakness and

demonstration of stable gait (Tr. 23-24; see also

Tr. 773); and

• Plaintiff’s own report that she “shops in stores

for food and personal hygiene items, she makes

homemade soups and prepares meals 2 to 3 times a

week, she goes to church, the health center and the

pharmacy, and she does laundry” (Tr. 24 (citing a

Function Report dated January 21, 2015 (Tr. 184-

92))).

12

The ALJ’s evaluation of the state agency medical consultants’

opinions provides further support for his decision to discount Dr.

Kernodle’s opinion. (See Tr. 24.) Although the ALJ accorded

“significant weight” to the consultants’ “overall conclusions that

[Plaintiff wa]s not disabled because the clinical record show[ed]

good function with treatment,” the ALJ assigned “little weight” to

the consultants’ opinions that Plaintiff remained capable of

performing “a full range of medium work . . ., because [the

consultants] did not examine [Plaintiff ] and [] did not adequately

consider her complaints of pain.” (Id.) Thus, the ALJ’s light RFC

(see Tr. 20) reasonably resolved the conflict between Dr.

Kernodle’s extreme, sub-sedentary opinions and the consultants’

medium-level RFC opinions, see McNeill v. Berryhill, No.

1:16CV1081, 2017 WL 1184187, at *10 (M.D.N.C. Mar. 29, 2017)

(unpublished) (finding no error in ALJ’s evaluation of opinion

evidence where, “by adopting a light-exertion RFC, the ALJ struck

a balance between the state agency physicians’s medium-exertion RFC

and the less-than-sedentary-exertion limitations opined by [the

claimant’s treating physicians]”), recommendation adopted, slip op.

(M.D.N.C. Apr. 24, 2017) (Eagles, J.).

Additionally, in keeping with 20 C.F.R. § 404.1527(c)(2), the

ALJ acknowledged Dr. Kernodle’s status as a specialist with

opinions entitled to due weight. (See Tr. 24.) The ALJ then went

on to explain why he found Dr. Kernodle to have overstated

13

Plaintiff’s limitations due to the lack of consistency between

those restrictions and the rest of the record, as well as

Plaintiff’s documented improvement on medication. (See id.); see

also 20 C.F.R. § 404.1527 (c) (4). The ALJ supported his finding

with the evidence discussed above, which a reasonable mind could

accept as grounds to discount Dr. Kernodle’s restrictive, checkbox

opinion. See Hunter, 993 F.2d at 34.

Plaintiff further contends that the ALJ ran afoul of Brown by

failing to give greater weight to Dr. Kernodle’s opinion (see

Docket Entry 10 at 5 (citing Brown, 873 F.3d 251)), noting that he

had treated Plaintiff for “three years” (id. at 9). In that

decision, the United States Court of Appeals for the Fourth Circuit

found that the ALJ erred in “dismissing the opinions of those who

had examined and treated [the claimant] dozens of times over many

years.” Brown, 873 F.3d at 268. Here, though, the earliest

treatment note from Dr. Kernodle, labeled “[i]nitial consult” (Tr.

442), dates to June 19, 2015 (see Tr. 442-48), approximately five

months and a handful of visits before Dr. Kernodle rendered his

opinion on Plaintiff’s limitations (see Tr. 489), reflecting a

treatment relationship far less extensive than that considered in

Brown. Therefore, this factor does not militate decisively in

favor of giving Dr. Kernodle’s opinion controlling weight, and does

not vitiate the ALJ’s decision.

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Next, Plaintiff asserts that the ALJ should not have relied on

Dr. Khan’s treatment note of September 29, 2016, because of a

letter from Dr. Khan explaining that the treatment note erroneously

repeated one of the entries in the “Review of Systems” section from

previous visits. (Docket Entry 10 at 7 (citing Tr. 806).)

Accordingly, Plaintiff contends, the ALJ incorrectly relied on the

sections in which Plaintiff denied neck or joint pain. (Id.)

However, Dr. Khan’s letter refers only to one entry on the

treatment note under the sub-heading “Social History” which reads

“Functional: No physical disability and activities of daily living

were normal.” (Tr. 806.) The ALJ acknowledged this error earlier

in his decision (Tr. 22) and did not rely on that section of the

treatment note in evaluating Dr. Kernodle’s opinion (Tr. 24).

Instead, the ALJ cited to the section relating to Plaintiff’s

reported neck and joint pain and stiffness. (Id.) Unlike the

“Functional” section of the treatment notes from Dr. Khan’s office,

the “Review of Systems” section containing Plaintiff’s complaints

of neck and joint pain and stiffness changed from visit to visit,

indicating that Dr. Khan had actively noted those complaints during

previous visits. (See, e.g., Tr. 426, 428, 432, 435, 677.)

Plaintiff also argues that the ALJ “mischaracterized” Dr.

Khan’s treatment note from November 7, 2016, and “claimed it showed

that Plaintiff was doing well and feeling fine.” (Docket Entry 10

at 7-8.) But the ALJ simply used the descriptions of Plaintiff’s

15

conditions exactly as they appear in the treatment note, saying

that Plaintiff “did not feel poorly” (apparently referring to an

entry in the “Review of Systems” section of the note which varied

on previous visits to Dr. Khan’s office (see, e.g., Tr. 428, 432,

435, 677, 687)), as well as that “she reported that she felt

better, and she offered no new complaints” (referring to the

“Reason for Visit” section of the note, which reads in relevant

part, “Pt is feeling better, offers no new complaints” (Tr. 692)).

Regarding Dr. Kernodle’s treatment note from November 8, 2016,

Plaintiff contends that, although “[t]he note does document

improvement from Humira, [it] does not indicate that Plaintiff

would be able to stand and walk six hours in an eight-hour work

day, which was the ALJ’s finding of [RFC].” (Docket Entry 10 at

8.) Further, Plaintiff cites a letter from Dr. Kernodle dated

February 23, 2017, written two months after the treatment note in

question, in which (according to Plaintiff) Dr. Kernodle “still

felt that Plaintiff had the same limitations she had had in

November 2015 when he wrote his first opinion.” (Id. (citing Tr.

803-04).) In fact, in that letter, Dr. Kernodle did not expressly

readopt his earlier restrictions. (See Tr. 88.) Rather,

Plaintiff’s counsel requested Dr. Kernodle to explain why

Plaintiff’s spine condition caused “such severe limitations.”

(Id.) Dr. Kernodle responded by writing generally of

spondyloarthritis but said of Plaintiff specifically only that she

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“has pain in her spine . . . both at rest (night) and with motion

which limits her ability to lift/bend/walk regularly - she also has

limited motion of her spine.” (Tr. 803.) Moreover, like the

opinion he rendered in November of 2015, Dr. Kernodle appeared to

base his opinion of Plaintiff’s limitations primarily on her

subjective reports of pain. (Id.) Therefore, the ALJ’s findings

on the consistency of Plaintiff’s subjective complaints of pain,

discussed more fully below, appropriately factored into the ALJ’s

assessment Dr. Kernodle’s opinion. As noted, the ALJ pointed to

specific evidence in the record, including in Dr. Kernodle’s own

treatment notes, that showed improvement (see Tr. at 21-24) and

that described Plaintiff’s condition as in the “mild case range”

(Tr. 22 (referencing Tr. 802)), contradicting her subjective

reports.

Contrary to Plaintiff’s assertion, the ALJ did not cherry pick

evidence to support a disability finding while ignoring evidence

that points to disability. To the contrary, he considered the

record as a whole, including documented evidence of improvement,

and found substantial evidence that contradicted Dr. Kernodle’s

opinion. Therefore, the ALJ’s decision to afford Dr. Kernodle’s

opinion partial weight comports with the relevant regulations and

with Craig.

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2. Plaintiff’s Description of Her Symptoms

Plaintiff next asserts that the ALJ failed to provide adequate

reasons for rejecting Plaintiff’s description of her symptoms.

(See Docket Entry 10 at 9.) At her hearing with the ALJ, Plaintiff

testified that she can stand for a maximum of half an hour before

needing to lie down to relieve her pain. (See Tr. 37.) Plaintiff

further testified that she experiences pain in her whole body,

including her hands, shoulders, neck, hips, and legs. (See Tr.

39.) According to Plaintiff, the ALJ incorrectly relied on the

same faulty treatment notes he used to give partial weight to Dr.

Kernodle’s opinion, and “fail[ed] to provide a clear explanation

for essentially rejecting Plaintiff’s description of her symptoms,

violat[ing] Monroe.” (Docket Entry 10 at 9-10 (citing Monroe, 826

F.3d at 176).) Finally, Plaintiff argues that, because the ALJ

found that “Plaintiff could perform light work on [H]umira, then

the logical extension of this premise is that she was unable to

perform light work before.” (Docket Entry 13 at 3-4.)

Social Security Ruling 16-3p, Titles II and XVI: Evaluation of

Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,

2017) (“SSR 16-3p”) (consistent with the Commissioner’s

regulations) adopts a two-part test for evaluating a claimant’s

statements about symptoms. See SSR 16-3p, 2017 WL 5180304, at *3;

18

see also 20 C.F.R. § 404.1529.? First, the ALJ “must consider

whether there is an underlying medically determinable physical or

mental impairment(s) that could reasonably be expected to produce

an individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL

5180304, at *3. A claimant must provide “objective medical

evidence from an acceptable medical source to establish the

existence of a medically determinable impairment that could

reasonably be expected to produce [the] alleged symptoms.” Id.

Objective medical evidence consists of medical signs (“anatomical,

physiological, or psychological abnormalities established by

medically acceptable clinical diagnostic techniques”) and

laboratory findings “shown by the use of medically acceptable

laboratory diagnostic techniques.” Id.

Upon satisfaction of part one by the claimant, the analysis

proceeds to part two, which requires an assessment of the intensity

and persistence of the claimant’s symptoms, as well as the extent

to which those symptoms affect his or her ability to work. See id.

at *4, In making that determination, the ALJ must “examine the

7 Applicable to ALJ decisions on or after March 28, 2016, the Social Security

Administration superceded Social Security Ruling 96-7p, Policy Interpretation

Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims, 1996 WL

374186 (July 2, 1996) (“SSR 96-7p”"), with SSR 16-3p. The new ruling

“eliminat[es] the use of the term ‘credibility’ from... sub-regulatory policy,

as [the] regulations do not use this term.” Id. at *1. The ruling “clarif[ies]

that subjective symptom evaluation is not an examination of the individual’s

character,” id., and “offer[s] additional guidance to [ALJs] on regulatory

implementation problems that have been identified since [the publishing of] SSR

96-7p,” id. at *1l n.1. The ALJ’s decision in this case postdates the effective

date of SSR 16-3p (see Tr. 26) and, thus, this Recommendation will apply SSR

16-3p to Plaintiff’s argument regarding the ALJ’s subjective symptom evaluation.

19

entire case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.” Id. Where

relevant, the ALJ will also consider the following factors in

assessing the extent of the claimant’s symptoms at part two:

1. Daily activities;

2. The location, duration, frequency, and intensity of

pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of

any medication an individual takes or has taken to

alleviate pain or other symptoms;

5. Treatment, other than medication, an individual

receives or has received for relief of pain or other

symptoms;

6. Any measures other than treatment an individual uses

or has used to relieve pain or other symptoms (e.g.,

lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual’s

functional limitations and restrictions due to pain or

other symptoms.

Id. at *7-8. The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms

solely because the objective medical evidence does not substantiate

the degree of impairment-related symptoms alleged by the

individual.” Id. at *5 (emphasis added).

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When evaluating a claimant’s subjective complaints about their

symptoms, however, the ALJ need not take those complaints “‘at face

value.’” Squires v. Colvin, No. 1:16CV190, 2017 WL 354271, at *5

(M.D.N.C. Jan. 24, 2017) (unpublished) (quoting Ramos-Rodriguez v.

Commissioner of Soc. Sec., Civ. No. 11-1323 (SEC), 2012 WL 2120027,

at *3 (D.P.R. June 11, 2012) (unpublished)), recommendation

adopted, slip op. (M.D.N.C. Mar. 6, 2017) (Schroeder, J.).

Furthermore, the ALJ must consider the effectiveness of treatment

when evaluating subjective symptoms. See 20 C.F.R.

§ 404.1529(c)(3)(iv).

Here, the ALJ sufficiently explained his decision to discount

Plaintiff’s description of her symptoms. First, the ALJ correctly

laid out the two-step process for evaluating a claimant’s symptoms.

(See Tr. 20.) Next, he outlined Plaintiff’s relevant medical

history, including mild diagnostic findings and improvement on

medication. (See Tr. 21-23.) The ALJ then expressly discussed

Plaintiff’s testimony regarding her pain, her trouble with both

sitting and standing for long periods of time, and her trouble

carrying a gallon of milk. (See Tr. 23.) Ultimately, the ALJ

found that, although Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms . . ., [her] statements concerning the intensity,

persistence and limiting effects of these symptoms [we]re not

entirely consistent with the medical evidence and other evidence in

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the record . . . .” (Id.) He supported that finding with the

following substantial evidence:

The record shows a history of treatment for

spondyloarthropathy. However, a light [RFC] is

appropriate in this case because the recent record shows

improvement with medication. Specifically, notes of

September 26, 2016 showed good function. [Plaintiff]

denied neck pain and neck stiffness, she denied muscle

aches, she denied joint pain and joint stiffness, and she

denied anxiety or sleep disturbance. Dr. Khan reported

that Humira was helping [Plaintiff’s] spondylitis. She

had better pain control, she slept better, and she denied

stress or anxiety. Follow-up notes of November 7, 2016

were just as positive. In review of symptoms,

[Plaintiff] reported that she was not feeling poorly.

She denied headache, facial pain, joint pain, joint

stiffness, and sleep disturbance. Dr. Kernodle reported

the following day that [Plaintiff] was doing much better

on Humira. She denied morning stiffness and site

reactions. Lateral bending was good, [her] hips moved

well, her shoulders moved well, and there were no knee

effusions. Of note, [Plaintiff] was not always compliant

with treatment. Dr. Kernodle reported on September 8,

2016, that [Plaintiff] was in a good deal of chronic

pain. However, she had come off her medications because

she was worried about side effects. Dr. Kernodle

encouraged her to resume medications.

Other exam notes show generally good function. A

chiropractic examiner reported on February 18, 2015 that

[Plaintiff’s] ability to lift had improved within normal

limits when she raised her arms. She reported 2/10 using

the visual analog scale. Range of motion and function

were full otherwise. [Plaintiff] denied malaise on July

24, 2015, and she presented in no acute distress.

[Plaintiff] presented to Alamance Regional Medical Center

on June 25, 2016, as well-appearing and in no acute

distress. She denied lower extremity weakness, [her]

gait was stable, and her mood and affect were normal.

Furthermore, [Plaintiff’s] daily activities show

generally good functionality. She shops in stores for

food and personal hygiene items, she makes homemade soups

and prepares meals 2 to 3 times a week, she goes to

church, the health center and the pharmacy, and she does

laundry.

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(Tr. 23-24 (internal citations omitted).) In addition, as

discussed above, the ALJ’s evaluation of the opinion evidence,

striking a balance between the medium-exertion RFC of the state

agency medical consultants and the sub-sedentary restrictions of

Dr. Kernodle (see Tr. 24-25), provides further support for the

ALJ’s discounting of Plaintiff’s allegations of disabling symptoms.

Given this record, Plaintiff’s contention that, like in

Monroe, the ALJ failed to connect the evidence with his conclusion

misses the mark. (See Docket Entry 10 at 10.) In that case, the

Fourth Circuit found an ALJ to have committed remandable error by

failing to explain how normal results from pulmonary and

respiratory tests or the intensity of the plaintiff’s sleep apnea

had any relevance to the plaintiff’s narcolepsy. See Monroe, 826

F.3d at 190. Here, in contrast, the evidence cited by the ALJ

correlates with Plaintiff’s symptoms. Plaintiff testified that she

could not stand for more than half an hour at a time and had

problems lifting and carrying things due to pain in her whole body,

including her hands, shoulders, elbows, neck, hips, and legs. (See

Tr. 37-39.) The ALJ reasonably concluded that evidence in the

medical record documenting no joint pain, malaise, or lower

extremity weakness and demonstrating stable gait, full range of

motion and function, and an ability to lift within normal limits

undermined Plaintiff’s testimony. The ALJ must examine all of the

evidence when evaluating the intensity and persistence of a

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claimant’s symptoms and the extent to which they limit a claimant’s

capacity for work. See 20 C.F.R. § 404.1529(c). In doing so here,

the ALJ found, and recited in his decision, substantial evidence to

support his analysis.

Finally, Plaintiff mischaracterizes the ALJ’s decision by

arguing that, because the ALJ found that “Plaintiff could perform

light work on [H]umira, then the logical extension of this premise

is that she was unable to perform light work before.” (Docket

Entry 13 at 3-4.) Although the ALJ did cite Plaintiff’s recent

improvement on medication as a contributing factor, he did not rely

exclusively on that improvement in formulating Plaintiff’s RFC.

(See Tr. 20-25.) To the contrary, the ALJ considered all of the

medical evidence of record, including treatment notes dating back

to February of 2012. (See Tr. 21.) As documented above, the ALJ

cited treatment notes that showed generally good function from as

early as February 18, 2015, more than 18 months before Plaintiff

began taking Humira, and less than two months after Plaintiff’s

amended onset date. (See Tr. 23; see also Tr. 384.) Elsewhere in

the RFC portion of the decision, the ALJ cited previous instances

of improvement on other medication (see Tr. 21, 22) and a period

during which Plaintiff “was not entirely compliant with treatment”

(Tr. 22). Simply put, Plaintiff’s recent improvement did not

represent the only evidence on which the ALJ relied in formulating

Plaintiff’s RFC.

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In sum, as the Commissioner correctly points out, the record

presents substantial evidence to support “‘two contrary

conclusions.’” (Docket Entry 12 at 17 (quoting Wines v.

Commissioner of Soc. Sec., 268 F. Supp. 2d 954, 960 (N.D. Ohio

2003)).) Given that circumstance, the Court must “uphold the

factual findings of the ALJ” where (as here) he “reached [them]

through application of the correct legal standard.” Hines, 453

F.3d at 561 (internal brackets and quotation marks omitted).

III. CONCLUSION

Plaintiff has not established an error warranting reversal or

remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for a

Judgement Reversing or Modifying the Decision of the Acting

Commissioner of Social Security, or Remanding the Case for a

Rehearing (Docket Entry 9) be denied, and that Defendant’s Motion

for Judgment on the Pleadings (Docket Entry 11) be granted, and

that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 26, 2020

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