ROCKRIVER v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SARAH ROCKRIVER, )

)

Plaintiff, )

)

v. ) 1:18CV954

)

ANDREW M. SAUL, )

Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Sarah Rockriver, 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.) Defendant has filed the certified

administrative record (Docket Entry 7 (cited herein as “Tr. __”)),

and both parties have moved for judgment (Docket Entries 10, 12;

see also Docket Entry 11 (Plaintiff’s Memorandum); Docket Entry 13

(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 applied for DIB, alleging a disability onset date

of October 15, 2009. (Tr. 178-83.) Upon denial of that

application initially (Tr. 69-87, 114-17) and on reconsideration

(Tr. 88-110, 120-27), Plaintiff requested a hearing de novo before

an Administrative Law Judge (“ALJ”) (Tr. 128-30). Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 36-68.) The ALJ subsequently determined that Plaintiff did

not qualify as disabled under the Act. (Tr. 15-29.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-

6, 14, 329-76), and Plaintiff filed an action in this Court seeking

judicial review of the Commissioner’s final decision denying

benefits, see Rockriver v. Colvin, No. 1:15CV811, Docket Entry 1

(M.D.N.C. Sept. 30, 2015).

While Plaintiff’s civil action remained pending, she filed a

second application for DIB on November 16, 2015, alleging

disability since June 18, 2014. (Tr. 1855-56.) Following denials

of Plaintiff’s second DIB application initially (Tr. 1715-34) and

on reconsideration (Tr. 1735-55), Plaintiff requested a hearing

before an ALJ (see Tr. 1761 (showing “October 31, 2016” as likely

date of Plaintiff’s request for hearing, although erroneously

referring to that date as filing date of Plaintiff’s second DIB

claim)). In the meantime, pursuant to the Commissioner’s Motion

2

to Remand under Sentence Four of 42 U.S.C. § 405(g), Rockriver,

Docket Entry 14 (M.D.N.C. June 6, 2016), the Court remanded

Plaintiff’s first claim for DIB to the Commissioner for further

administrative proceedings, including reevaluation of the

treatment notes and opinions from Drs. John C. Pittman and Thomas

M. Motyka, Rockriver, 2016 WL 5957567 (M.D.N.C. Oct. 12, 2016)

(unpublished) (Peake, M.J.), recommendation adopted, slip op.

(M.D.N.C. Feb. 14, 2017) (Tilley, S.J.). The Appeals Council then

entered an Order remanding Plaintiff’s first DIB claim to an ALJ

for further consideration of the opinions of Drs. Pittman and

Motyka, Plaintiff’s Lyme disease, and maximum residual functional

capacity. (Tr. 1756-62.) The Appeals Council also noted that its

remand of Plaintiff’s first DIB claim rendered her second such

claim “duplicative,” and ordered the ALJ to “consolidate the claims

files.” (Tr. 1761.)

A different ALJ held a new hearing, which Plaintiff, her

attorney, and a VE attended. (Tr. 1636-84.) Following the

hearing, the ALJ determined that Plaintiff did not qualify as

disabled at any time from October 15, 2009, to the date of the

ALJ’s decision on July 24, 2018. (Tr. 1611-27.) Plaintiff then

filed the instant action seeking judicial review of the ALJ’s

decision in this Court.2

2 “[W]hen a case is remanded by a [f]ederal court for further consideration,

the decision of the [ALJ] will become the final decision of the Commissioner

3

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] meets the insured status requirements

of the . . . Act through December 31, 2018.

2. [Plaintiff] has not engaged in substantial gainful

activity since her alleged onset date of October 15,

2009.

. . .

3. [Plaintiff] has the following severe impairments:

degenerative disc disease; hypertension; hypotension;

breast cancer; recurrent Lyme disease; bacterial/viral

infections; babesiosis; vertigo; polyneuropathy;

myofascial muscle pain; fibromyalgia; chronic fatigue

syndrome; chronic pain syndrome; insomnia; depressive

disorder; and anxiety disorder.

. . .

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.

. . .

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

capacity to perform light work . . . except she can

frequently push/pull and operate foot and hand controls

with the lower and upper extremities; occasionally climb

ramps or stairs; never ladders, ropes or scaffolds;

occasionally balance, stoop, kneel, crouch, and crawl;

frequently reach, reach overhead, handle objects, and

finger bilaterally; have occasional exposure to extreme

heat and vibration; have occasional exposure to

after remand on [a claimant’s] case unless the Appeals Council assumes

jurisdiction of the case. The Appeals Council may assume jurisdiction based on

written exceptions to the decision of the [ALJ] which [a claimant] file[s] with

the Appeals Council or based on its authority . . . to assume jurisdiction of

[a claimant’s ] case even though no written exceptions have been filed.” 20

C.F.R. § 404.984. Here, the record reflects neither that Plaintiff filed

written exceptions to the ALJ’s decision with the Appeals Council nor that the

Appeals Council assumed jurisdiction of her case under its own authority.

4

pulmonary irritants such as dusts, odors, fumes, and

gases and to poorly ventilated areas; have no exposure

to unprotected heights; and have occasional exposure to

hazardous machinery or hazardous moving mechanical

parts. [Plaintiff’s] work is limited to simple, routine

and repetitive tasks but not at a production rate pace;

simple work-related decisions; and frequent interaction

with the public, co-workers and supervisors. She would

be off task up to, but not including, 10% of the time in

an eight-hour workday, in addition to normal breaks

(with normal breaks defined as a 15 minute morning and

afternoon break and a 30 minute lunch break).

. . .

6. [Plaintiff] has no 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, at any time since October 15,

2009, the alleged onset date of disability.

(Tr. 1616-27 (bold font and internal parenthetical citations

omitted).)

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 of . . . review of [such a] decision . . . is extremely

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

5

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,

“a reviewing 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 brackets 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

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

6

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 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

7

adjudicative process, the Social Security Administration has . . .

promulgated . . . 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. Commissioner of 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

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

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

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

8

determines if the 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 RFC] and [the

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

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.

9

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

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

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 asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ engaged in cherry-picking and inconsistent

logic to give the long time treating doctor’s [sic] little weight”

(Docket Entry 11 at 7 (bold font and single-spacing omitted and

standard capitalization applied)); and

2) “[t]he ALJ fails to build a logical bridge between the RFC

assigned and the disjointed recitation of [Plaintiff’s] medical

history” (id. at 31 (bold font and single-spacing omitted and

standard capitalization applied)).

Defendant contends otherwise and seeks affirmance of the

ALJ’s decision. (See Docket Entry 13 at 4-21.)

6 A claimant thus can qualify as disabled 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.”).

10

1. Treating Physicians’ Opinions

In Plaintiff’s first assignment of error, she contends that

“[t]he ALJ engaged in cherry-picking and inconsistent logic to

give the long time treating doctor’s [sic] little weight.” (Docket

Entry 11 at 7 (bold font and single-spacing omitted and standard

capitalization applied).) More specifically, Plaintiff asserts

that the ALJ erred in according little weight to the opinions of

Drs. Thomas M. Motyka and John C. Pittman because 1) “[t]he ALJ’s

medical narrative is based on cherry-picked evidence in violation

of Lewis[ v. Berryhill, 858 F.3d 858 (4th Cir. 2017)] and Brown[

v. Commissioner of Soc. Sec. Admin., 873 F.3d 251 (4th Cir. 2017)]”

(Docket Entry 11 at 11), 2) “[t]he medical source opinions of Dr.

Motyka and Dr. Pittman are supported by their medical records”

(id. at 24 (standard capitalization applied)), 3) “[t]he ALJ failed

to provide any nexus between [Plaintiff’s] normal range of motion

and muscle testing, [her] tick-borne illness, and the assessed

limitations” of Drs. Motyka and Pittman (id. at 26 (standard

capitalization applied)), 4) the ALJ failed to acknowledge that

Plaintiff’s pain “was [] not in control at times” (id. at 27

(standard capitalization applied)), and 5) “[t]he ALJ’s citation

to Dr. [Kathy K.] Yu’s letter ignores the plain language of the

letter” (id. at 28 (standard capitalization applied)). As

11

discussed in more detail below, Plaintiff has failed to demonstrate

an entitlement to reversal or remand.

On November 30, 2011, Dr. Motyka completed a “Medical Source

Statement Concerning the Nature and Severity of an Individual’s

Physical Impairment” (“Motyka/Pittman MSS”) (Tr. 1607-10) on which

he opined that Plaintiff “ha[d] not been capable of performing

sustained sedentary work on a regular and continuing basis, i.e.,

8 hours a day, 5 days a week, or an equivalent work schedule” (Tr.

1607) since April of 2008 (Tr. 1609), and that granting Plaintiff

“the freedom to alternate sitting and standing during the work

day” would not have changed his aforementioned opinion (Tr. 1608).

Dr. Motyka further indicated that Plaintiff’s “pain and/or other

subjective symptoms” would “[n]ot [s]ignificant[ly]” impact her

“ability to maintain attention and concentration for extended

periods,” but would have a “[m]oderately [s]evere” impact on her

“ability to perform activities within a schedule, maintain regular

attendance and be punctual,” and a “[s]evere” impact on her

“ability to complete a normal workday and workweek without

interruptions from medically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest

periods.” (Tr. 1609.) On April 5, 2014, Dr. Pittman stated: “I

agree with the about [sic] medical status assessment.” (Tr. 1610.)

12

The ALJ accorded the Motyka/Pittman MSS “little weight” based

upon the following analysis:

The[ Motyka/Pittman MSS’s] opinions are not supported by

explanations and are not consistent with the medical and

other evidence in the record, as described [earlier in

the ALJ’s decision]. [Plaintiff] generally had full

range of motion, a normal gait, and intact strength.

Moreover, at points in the record, she reported that her

medication was effective in controlling her pain. Of

note, on November 30, 2011, Dr. Motyka assessed

[Plaintiff] as well nourished and not in acute distress,

with supple neck, soft abdomen, intact

judgement/insight, appropriate mood/affect, and full

range of motion in the upper and lower extremities.

Finally, the [ALJ] notes the observations of Dr. Yu that

[Plaintiff] did not seem to have any difficulty sitting,

standing, walking, handling objects, hearing, or

speaking during Dr. Yu’s interactions with her.

(Tr. 1625 (internal citations omitted).)

a. Cherry-Picked Evidence

Plaintiff first contends that the ALJ’s finding that the

Motyka/Pittman MSS’s opinions lacked “consisten[cy] with the

medical and other evidence in the record” (id.) resulted from the

ALJ’s cherry-picking of evidence unfavorable to Plaintiff. (See

Docket Entry 11 at 12-24.) With respect to Dr. Motyka, Plaintiff

asserts that “[t]he ALJ’s medical narrative dance[d] around,

largely ignoring . . . or neglecting the[] content” of Dr. Motyka’s

medical records. (Id. at 12 (referencing Tr. 1620-23).) In

particular, Plaintiff faults the ALJ for “cherry-pick[ing] range

of motions exams and allegedly ‘unremarkable’ exams” (id. at 13)

while “ignor[ing]” repeated notations of “fatigue and exhaustion”

13

and Plaintiff’s “high-risk” opioid use evidenced in Dr. Motyka’s

records (id. at 18). Regarding Dr. Pittman, Plaintiff maintains

that “[t]he ALJ’s discussion cherry-picks mentions of improvement

while largely ignoring the actual content of the records reflecting

significant ups and downs in [Plaintiff’s] symptoms.” (Id. at

19.) Plaintiff provides extensive, chronological summaries of

what she terms the “actual findings” (id. at 13, 19) of Drs. Motyka

and Pittman that Plaintiff believes support the restrictions on

the Motyka/Pittman MSS (see id. at 13-18, 19-23). Plaintiff

contends that “the ALJ also cherry-picked other parts of the

record, neglecting to mention many favorable findings from other

providers and from [Plaintiff’s] own testimony.” (Id. at 30

(citing Tr. 1212, 1274, 1653, 1660-61, 1668-69).) Plaintiff’s

arguments in this regard fail for two reasons.

First, Plaintiff misinterprets this Court’s standard of

review. The Court must determine whether the ALJ supported his

analysis of the Motyka/Pittman MSS with substantial evidence,

defined as “more than a mere scintilla of evidence but . . .

somewhat less than a preponderance,” Mastro, 270 F.3d at 176

(brackets and internal quotation marks omitted), and not whether

other record evidence weighs against the ALJ’s analysis, Lanier v.

Colvin, No. CV414–004, 2015 WL 3622619, at *1 (S.D. Ga. June 9,

2015) (unpublished) (“The fact that [the p]laintiff disagrees with

14

the ALJ’s decision, or that there is other evidence in the record

that weighs against the ALJ’s decision, does not mean that the

decision is unsupported by substantial evidence.”).

The ALJ here buttressed his finding that the medical evidence

did not support the restrictions on the Motyka/Pittman MSS by

pointing to largely normal objective findings on examination

throughout the relevant time period in this case, such as intact

sensation, full strength, normal muscle bulk and tone, only

sporadic instances of tenderness to palpation, normal gait, full

deep tendon reflexes, intact coordination, full range of motion in

all joints, lack of edema, good pulses, as well as negative

straight leg raises, Holter monitor test, and knee x-rays. (See

Tr. 1620-22; see also Tr. 425-27, 442-43, 481, 557-58, 808, 905-

82, 996-97, 1172, 1213, 1418-44, 1518-59, 1947-48, 1990, 2001,

2017-18, 2032-33, 2046, 2058-59, 2072.) The ALJ also afforded

“substantial weight” (Tr. 1623) to the opinions of all four state

agency medical consultants of record, who each opined that

Plaintiff remained capable of performing a reduced range of light

work (see Tr. 1623-24; see also Tr. 81-82, 103-05, 1727-28, 1747-

49). Moreover, the ALJ assigned “[s]ubstantial weight” to the

opinions of both consultative medical examiners, Drs. Lydia Vognar

and Jairon Downs (Tr. 1624), who each, after thorough and generally

normal examinations, placed no limits on Plaintiff’s ability to

15

sit, no to mild limitation on Plaintiff’s ability to lift and

carry, and mild to moderate limitations on Plaintiff’s ability to

stand, walk, and engage in postural activities (see Tr. 1194-99,

1893-1903). The ALJ’s analysis thus supplies substantial evidence

to support his assignment of “little weight” to the less-than-

sedentary restrictions on the Motyka/Pittman MSS (Tr. 1625).

Second, Plaintiff overemphasizes the significance of the

evidence she claims the ALJ ignored. Dr. Motyka’s notations of

fatigue, numbness, weakness, stiffness, vertigo, and pain upon

which Plaintiff relies (see Docket Entry 11 at 13-19), do not

constitute objective findings on examination but rather

Plaintiff’s subjective reports of symptoms (see Tr. 905-82, 1418-

44, 1518-59). The objective portions of Dr. Motyka’s treatment

notes reflect normal gait, strength, pulses, reflexes, Babinski

tests, straight leg raising tests, and range of motion (see id.),

with only one finding of decreased knee range of motion (see Tr.

1553), one notation of difficulty rising from a squat (see Tr.

955), and some findings of tenderness to palpation (see Tr. 913,

917, 949, 961, 970, 1518, 1521, 1524, 1527, 1530, 1533, 1536, 1539,

1542, 1545, 1548).

Plaintiff additionally maintains that the ALJ “ignored” the

fact that Dr. Motyka’s records reflected Plaintiff’s “need[] to

take extremely high doses of narcotics for pain control,” at levels

16

“well above the high-risk level set by the [Centers for Disease

Control], meaning that [Plaintiff] was actually at an elevated

risk for death as a result of [her pain] medications.” (Docket

Entry 11 at 18 (citing Tr. 1439, and https://www.

cdc.gov/drugoverdose/pdf/guidelines_at-a-glance-a.pdf (webpage no

longer accessible but similar material found at https://www.

cdc.gov/drugoverdose/pdf/calculating_total_daily_dose-a.pdf (last

visited Mar. 3, 2020)).) That argument misses the mark, because

the ALJ expressly recognized multiple times in his decision that

Plaintiff sought treatment with pain management specialists and

did not trivialize that treatment or characterize it as

“conservative.” (See Tr. 1621 (noting that Plaintiff “engaged in

pain management treatment throughout th[e] period” from early 2010

to September 2011, that she “continued [in] pain management” for

the remainder of 2011, and “received a cortisone injection in the

knee” in December 2011, and “continued to report to integrative

medicine for pain management” in 2012), 1622 (discussing

Plaintiff’s repeat “bilateral knee injections for her pain in

October 2012” and “follow up with her pain management specialist”

thereafter).) Notably, after Dr. Motyka changed his practice to

holistic medicine and would no longer prescribe opioids for

Plaintiff (see Tr. 2013), she successfully weaned herself off of

Oxycodone at the urging of a new pain management specialist in

17

2015 (see Tr. 1652, 2014, 2028), thus undercutting Plaintiff’s

claim of a “need to take extremely high doses of narcotics for

pain control” (Docket Entry 11 at 18 (emphasis added).

Furthermore, other than Dr. Pittman’s examinations of

Plaintiff on March 2, 2010, and November 20, 2012, which described

Plaintiff as “well[-]developed, “focused,” and “in no acute

distress” (see Tr. 557-58, 1489-90), Dr. Pittman’s treatment notes

do not document any objective findings from physical examinations

beyond Plaintiff’s vital signs (see Tr. 514-91, 767-96, 1009-60,

1388-1415, 1453-1516, 1919-43). Instead, those notes contain

lengthy summaries of Plaintiff’s subjective reports of symptoms

and responses to prior treatment regimes. (See id.)7

Plaintiff further objects to the ALJ’s failure to expressly

discuss a treatment note from Dr. Shawnee D. Weir, an

endocrinologist, who “noted the presence of muscle weakness and

that [Plaintiff] was having trouble walking” (Docket Entry 11 at

30 (citing Tr. 1212)), a note from Dr. Julia G. Warren Ulanch who

“found [Plaintiff] was suffering from significant exhaustion and

fatigue” (id. (citing Tr. 1274)), and various statements by

Plaintiff during the hearing regarding the impact of her symptoms

on her functioning (id. (citing Tr. 1653, 1660-61, 1668-69)). As

7 Of the 27 total treatment notes from Dr. Pittman, 12 reflect consultation only

by telephone rather than in-person office visits. (See Tr. 514-91, 767-96,

1009-60, 1388-1415, 1453-1516, 1919-43.)

18

an initial matter, an ALJ need not discuss every finding in each

piece of evidence in making an RFC determination, see Reid v.

Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)

(citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)),

particularly with a substantially voluminous treatment record, as

exists here. More significantly, Dr. Weir did not find muscle

weakness and trouble walking during her examination of Plaintiff

but merely recorded Plaintiff’s subjective complaints of those

symptoms in the “History of Present Illness” and “Review of

Systems” portions of Dr. Weir’s treatment note. (Tr. 1211-14.)

Similarly, Dr. Ulanch did not find significant exhaustion and

fatigue on examination of Plaintiff, but rather documented

Plaintiff’s complaints of those symptoms in the “History of Present

Illness” and “Review of Systems” portions of Dr. Ulanch’s treatment

note. (Tr. 1274-77.)

As for Plaintiff’s testimony, Plaintiff criticizes the ALJ

for “neglecting to mention many favorable findings,” such as

Plaintiff’s statements that fatigue caused her “to hire help for

housework and child care,” that she performed daily activities “in

short increments,” and that, “when she was taking [intravenous]

antibiotics (over the course of several years from 2010 through

2013), she was spending much of her time lying down with an IV in

her arm.” (Docket Entry 11 at 30 (citing Tr. 1653, 1660-61, 1668-

19

69).) With regard to the latter testimony, Plaintiff observes

that “[i]t is not clear how the ALJ expected [Plaintiff] to work

with an IV in her arm for a substantial part of the day.” (Id. at

30-31.)

Respecting Plaintiff’s IV use from 2010 to 2013, as the

Commissioner notes (see Docket Entry 13 at 10-11 n.4), throughout

that time period, Plaintiff variously characterized her ability to

engage in daily activities as “ok,” “adequate,” “good,” and “not

limited by pain”, as well as advised Dr. Motyka that symptom relief

from medications enabled her to garden, crochet, walk one mile per

day, and “work,” without any mention of her IV impeding those

endeavors (see Tr. 448, 908, 915, 919, 922, 930, 932, 936, 939,

942, 946, 949, 952, 954, 960, 963, 967, 978, 1418, 1423, 1438,

1533, 1536, 1548, 1555, 1558). Moreover, records from Dr. Pittman

reflect that he placed a PICC line in Plaintiff’s arm on March 19,

2012 (see Tr. 1014), that Plaintiff had the PICC line removed on

June 13, 2012 (see Tr. 1407), that Dr. Pittman reattached the PICC

line in October 2012 (see Tr. 1498), and removed it again on May

15, 2013 (see Tr. 1459), thus undermining Plaintiff’s claim that

“over the course of several years from 2010 through 2013[], she

was spending much of her time lying down with an IV in her arm”

(Docket Entry 11 at 30 (emphasis added); see also Tr. 1668-69.)8

8 Significantly, numerous physicians stated their disagreement with Dr.

Pittman’s use of intravenous antibiotics to treat Plaintiff’s Lyme disease

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As to the remainder of testimony Plaintiff claims the ALJ

“ignored,” the ALJ ultimately found that Plaintiff’s “statements

concerning the intensity, persistence and limiting effects of

[her] symptoms [we]re not entirely consistent with the medical and

other evidence of record” (Tr. 1620), and Plaintiff has not

challenged the ALJ’s finding in that regard (see Docket Entry 11).

Simply put, the ALJ did not cherry-pick the record evidence

to support his discounting of the Motyka/Pittman MSS.

b. Supportability of the Motyka/Pittman MSS

Next, Plaintiff contests the ALJ’s rationale for concluding

that the opinions in the Motyka/Pittman MSS lacked any supporting

explanations. (See Docket Entry 11 at 24 (citing Tr. 1625).)

According to Plaintiff, both doctors “repeatedly recognized [that

Plaintiff] had problems with activities of daily living as a result

of pain and exhaustion from her tick borne illness[ which] directly

supports their opinions that [Plaintiff] could not sustain work

due to an inability to get through the workday without having to

take an unreasonable number of rest breaks.” (Id. at 24-25.)

Plaintiff further maintains that “[t]he ALJ’s criticism of [Drs.

symptoms. (See Tr. 451 (containing Dr. Motyka’s notation that he “disagree[d]

w[ith Dr. Pittman’s] treatment but w[ould] provide pain m[anagemen]t [for

Plaintiff] while [Dr. Pittman] treats [Plaintiff]”), 810 (reflecting infectious

disease specialist Dr. Lisa Hightow’s recommendation that Plaintiff discontinue

all antibiotics due to lack of evidence of any bacterial infections and noting

that her antibiotics dosing carried risk of toxic effect including liver damage

and resistance to antibiotics), 948 (documenting Dr. Motyka’s advice that

Plaintiff wean off all antibiotics).)

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Motyka and Pittman], although misplaced as to their opinions, could

properly be applied to [Drs. Vognar and Downs] on whom the ALJ

placed great weight.” (Id. at 25.) Plaintiff faults Dr. Vogner

for failing to “explain why Plaintiff could be expected to sit

normally in an eight-hour workday; why her walking limitations are

‘mild’; and what Dr. Vogner even means by ‘mild.’” (Id.

(referencing Tr. 1199).) Plaintiff additionally complains that

Dr. Downs did “not even offer an opinion on whether [Plaintiff]

could sustain standing, walking or lifting, . . . [and failed to]

explain the functional consequences of [Plaintiff’s] chronic

fatigue.” (Id. (citing Tr. 1902-04).) Plaintiff thus argues that

the ALJ applied inconsistent logic in his “weighing of medical

source opinions.” (Id. at 26 (citing Majette v. Colvin, No.

5:15CV48, slip op. (E.D.N.C. Feb. 25, 2016) (unpublished)).)

As an initial matter, Plaintiff misinterprets the ALJ’s

finding that the Motyka/Pittman MSS itself lacked supporting

explanations (see Tr. 1625) as a finding that the treatment records

of Drs. Motyka and Pittman did not support the opinions on the

Motyka/Pittman MSS. (See Docket Entry 11 at 24-26.) However, as

discussed above, the ALJ also found that the Motyka/Pittman MSS

lacked “consisten[cy] with the medical and other evidence in the

record” (which includes the treatment records of Drs. Motyka and

22

Pittman) (Tr. 1625), and the ALJ supported that finding with

substantial evidence.

Moreover, unlike Drs. Motyka and Pittman, whose treatment

records did not contain objective medical findings that supported

their less-than-sedentary restrictions, Drs. Vognar and Downs each

conducted extensive physical examinations of Plaintiff, and

reported many normal objective findings which supported their mild

to moderate limitations on lifting, carrying, standing, walking,

and postural movements, such as intact pulses (see Tr. 1196, 1897),

normal gait without an assistive device (see Tr. 1197, 1897), no

muscle spasm (see id.), negative straight leg raise test (see Tr.

1197, 1898), largely normal sensation (see Tr. 1197, 1898),9 intact

coordination (see Tr. 1197, 1897), normal and symmetric reflexes

(see Tr. 1197-98, 1898), full range of motion (see 1198, 1900-01),

ability to heel, toe, and tandem walk and stand on one foot (see

Tr. 1198, 1899), and no joint swelling, effusion, erythema, or

deformity (see Tr. 1198, 1898). Furthermore, contrary to

Plaintiff’s allegation (see Docket Entry 11 at 25), Dr. Downs did

provide opinions on Plaintiff’s abilities to stand, walk, and lift,

opining that Plaintiff had no limitations on her ability to lift

and carry, and had mild to moderate limitations on her ability to

stand and walk (see Tr. 1902-03). Thus, the ALJ did not apply

9 Dr. Downs noted decreased sensation to light touch only in Plaintiff’s fingers

and toes. (See Tr. 1898.)

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inconsistent logic in his analysis of the opinion evidence of

record.

In the end, the ALJ correctly found that the Motyka/Pittman

MSS lacked any supporting explanations for its opinions. (See Tr.

1625.) The Motyka/Pittman MSS consists of a preprinted checkbox

form without diagnoses, symptoms, or prognosis. (See Tr. 1607-

10.) Significantly, in the section of the form requesting Drs.

Motyka and Pittman to “describe the aspects of the (1) medical

history; (2) clinical findings; (3) laboratory findings; (4)

diagnoses . . .; and (5) treatment prescribed with response, and

prognosis upon which you based your opinion of [Plaintiff’s]

functional limitations,” Dr. Motyka left that area blank, and Dr.

Pittman merely wrote that he “agree[d]” with Dr. Motyka’s opinions

without providing any basis for his agreement. (Tr. 1610.)

c. Nexus between Normal Examination Findings and

Motyka/Pittman MSS

Plaintiff additionally objects that the ALJ “cit[ed] to

various negative exam findings, including no acute distress,

supple neck, soft abdomen, intact judgment/insight, appropriate

mood/affect, and full range of motion in the upper and lower

extremities” as part of his rationale for rejecting the

Motyka/Pittman MSS. (Docket Entry 11 at 26 (citing Tr. 1625).)

In connection with that objection, Plaintiff points out that, “as

recognized by the Fourth Circuit in Lewis, normal exam findings

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are not a legitimate reason to discount the opinions of a treating

doctor unless the ALJ explains why the normal findings are relevant

to the claimant’s medical condition.” (Id. (citing Lewis, 858

F.3d at 869).) According to Plaintiff, she “is predominantly

disabled by the pain and fatigue of her chronic tick-borne illness

. . . [and r]ange of motion is relevant to orthopaedic issues,

not, generally, infectious diseases.” (Id. at 27.)

As part of his rationale to discount the Motyka/Pittman MSS,

the ALJ noted that “[Plaintiff] generally had full range of motion,

a normal gait, and intact strength,” and that, “[o]f note, on

November 30, 2011, Dr. Motyka assessed [Plaintiff] as well

nourished and not in acute distress, with supple neck, soft

abdomen, intact judgement/insight, appropriate mood/affect, and

full range of motion in the upper and lower extremities.” (Tr.

1625.) As the Commissioner argues (see Docket Entry 13 at 16),

regardless of the source of Plaintiff’s symptoms, i.e., orthopedic

impairments or infectious disease, findings of full range of

motion, normal gait, and intact strength, undermine Plaintiff’s

complaints of disabling stiffness, pain, and weakness (see, e.g.,

Tr. 51-57, 1655, 1657, 1660-62), as well as the sub-sedentary

restrictions on the Motyka/Pittman MSS (see Tr. 1607-10). The

relevance of those normal findings to Plaintiff’s subjective

symptoms distinguishes this case from Lewis, where the Fourth

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Circuit faulted an ALJ for relying on findings of a normal gait to

discount Plaintiff’s complaints of left shoulder pain, see Lewis,

858 F.3d at 869 (citing Monroe v. Colvin, 826 F.3d 176, 190 (4th

Cir. 2016) (“In citing ‘normal’ results from pulmonary and

respiratory tests and an EEG, the ALJ did not explain why he

believed these results had any relevance to the question of what

symptoms Monroe suffered from narcolepsy.”)).

d. Plaintiff’s Pain Control

Plaintiff also challenges the ALJ’s statement that, “‘at

points in the record,’ Plaintiff’s pain was controlled by

medication” as a basis for rejecting the Motyka/Pittman MSS. (See

Docket Entry 11 at 27 (quoting Tr. 1625).) According to Plaintiff,

“[t]he ALJ’s analysis ignores the fact that[,] even when

[Plaintiff’s] pain was controlled moderately well, her activities

were still frequently curtailed,” as well as “the fact that

[Plaintiff’s] pain was also not well controlled at various points

in time.” (Id.) Plaintiff points out that “[t]he Fourth Circuit

stated in Woods that “[a]n ALJ may not consider the type of

activities a claimant can perform without also considering the

extent to which she can perform them.” (Id. at 27-28 (quoting

Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (in turn

citing Brown, 873 F.3d at 263)).) Plaintiff contends that,

“[c]onsistent with th[at] reasoning, an ALJ cannot reject a

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treating doctor’s opinion based on [a] period of improvement

without also looking at periods of regression.” (Id. at 28.)

Plaintiff’s arguments overlook the key phrase in the ALJ’s

rationale – “at points in the record” - which clearly signifies

that the ALJ acknowledged that other periods of time existed when

Plaintiff’s pain medications did not control her pain effectively.

The ALJ’s discussion of the medical evidence also took account of

occasions when Plaintiff reported increases in her pain. (See Tr.

1620-22.) Moreover, the ALJ did not “ignore[] the fact that[,]

even when [Plaintiff’s] pain was controlled moderately well, her

activities were still frequently curtailed” (Docket Entry 11 at

27) as, notwithstanding “points in the record” where Plaintiff

experienced good pain control, the ALJ included significant

restrictions in the RFC to account for Plaintiff’s symptoms, such

as limitations on lifting, carrying, pushing, pulling, operating

hand/foot controls, climbing, balancing, stooping, kneeling,

crouching, crawling, reaching, handling, and fingering (see Tr.

1619).

e. Dr. Yu’s Letter

Plaintiff further faults the ALJ for relying on a “To Whom It

May Concern” letter dated April 10, 2012, from Dr. Yu, an

otolaryngologist who treated Plaintiff from May 2009 to December

2009 for tonsillitis and ear wax (Tr. 1143), as a reason to

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discount the Motyka/Pittman MSS. (See Docket Entry 11 at 28-29.)

In particular, Plaintiff takes issue with the ALJ’s reliance on

“the observations of Dr. Yu that [Plaintiff] did not seem to have

any difficulty sitting, standing, walking, handling objects,

hearing, or speaking during Dr. Yu’s interactions with her” (Tr.

1625). (See Docket Entry 11 at 28-29.) Plaintiff deems the ALJ’s

reliance on Dr. Yu’s letter “troubling,” because “Dr. Yu explicitly

stated [in the letter] that she did not evaluate [Plaintiff’s

mental or physical] abilities[,] . . . Dr. Yu specifically state[d]

her treatment was remote in time and for an unrelated issue [to

Plaintiff’s allegedly disabling impairments, as well as that] Dr.

Yu is an [otolaryngologist and] not a pain management specialist

or infectious disease doctor.” (Id. at 29.) According to

Plaintiff, the ALJ’s reliance on Dr. Yu’s letter runs counter to

the regulatory criteria an ALJ must consider in weighing medical

opinions (see id. (citing 20 C.F.R. § 404.1527(c))), and “looks

like a rationalization for a desired outcome rather than a

legitimate reason for rejecting the opinions of [Drs. Motyka and

Pittman]” (id. at 29).

The ALJ did not reversibly err by including Dr. Yu’s letter

among his reasons for discounting the Motyka/Pittman MSS. First,

the ALJ accurately restated the substance of Dr. Yu’s letter,

expressly acknowledging that Dr. Yu made her “observations” that

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Plaintiff did not “seem” to have any difficulty sitting, standing,

etc., during Dr. Yu’s “interactions” with (and not treatment of)

Plaintiff. (Tr. 1625.) Second, the ALJ clearly did not treat Dr.

Yu’s letter as a medical opinion, as he did not separately assign

any weight to her statement. (See Tr. 1623-25.) Third, although

Dr. Yu’s letter certainly does not constitute the most compelling

reason to discount the Motyka/Pittman MSS, the ALJ gave four other

reasons for that conclusion, all supported by substantial

evidence. (See Tr. 1625.) Thus, even if the ALJ erred by including

Dr. Yu’s letter among his reasons for discounting the

Motyka/Pittman MSS, that error qualifies, at most, as harmless

under the circumstances. See generally Fisher v. Bowen, 869 F.2d

1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of

administrative law or common sense requires us to remand a case in

quest of a perfect opinion unless there is reason to believe that

the remand might lead to a different result”).

In short, Plaintiff’s first assignment of error fails as a

matter of law.

2. Consideration of Plaintiff’s Fatigue

In her second and final assignment of error, Plaintiff argues

that “[t]he ALJ fail[ed] to build a logical bridge between the RFC

assigned and the disjointed recitation of [Plaintiff’s] medical

history.” (Docket Entry 11 at 31 (bold font and single-spacing

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omitted and standard capitalization applied).) More specifically,

Plaintiff contends that “[o]ne of her primary complaints [wa]s

fatigue that prevent[ed] her from getting through a workday without

having to take a substantial number of rest breaks[,]” but that

“[t]he ALJ never specifically explain[ed] how [Plaintiff’s]

fatigue [wa]s being accommodated in his RFC” in violation of Mascio

v. Colvin, 780 F.3d 632 (4th Cir. 2015). (Id. at 31-32.) Although

Plaintiff acknowledges that the ALJ “included a variety of

limitations on weight and various exertional maneuvers” in the

RFC, Plaintiff asserts that “none of th[ose] limitations . . .

would allow [Plaintiff] to take extra rest breaks during the day.”

(Id. at 32 (citing Tr. 1619).) Plaintiff points out that the VE

testified that “employers do not provide breaks beyond the standard

15 minutes in the morning and afternoon and 30 minutes for lunch”

or “typically accommodate employees who need to lie down during

the workday.” (Id. (citing Tr. 1679-81).) That argument fails to

establish an entitlement to relief for three reasons.

First, the ALJ expressly acknowledged Plaintiff’s complaints

of fatigue during his discussion of the medical evidence. (See

Tr. 1620 (noting Plaintiff’s trip to emergency room with complaints

of, inter alia, fatigue), 1622 (discussing Plaintiff’s

consultation with endocrinologist for fatigue, reports of low

energy to pain management specialist and mental health care

30

professional, and complaint of exhaustion to Dr. Downs), 1623

(documenting Plaintiff’s report of fatigue to consultative

psychological examiner Dr. Vincent Maginn).) Second, the ALJ

accorded “[s]ubstantial weight” to the opinions of the state agency

medical consultants who reviewed Plaintiff’s claim prior to the

first ALJ’s decision (Tr. 1623-24), who each limited Plaintiff to

light work with environmental limitations specifically due to her

complaints of fatigue (see Tr. 81-82, 103-05).10 The ALJ also

assigned “substantial weight” to Drs. Vognar and Downs (Tr. 1624),

who found that Plaintiff’s symptoms, including her fatigue, caused

only mild to moderate limitations on her ability to perform certain

work-related activities (see Tr. 1199, 1902-03). Notably, the

ALJ’s RFC also includes a limitation to light work with postural

and environmental restrictions. (See Tr. 1619.) Third, the ALJ

included the limitation in the RFC that Plaintiff would remain

off-task for up to but not including 10 percent of the workday in

addition to normal breaks (see id.), which clearly captures

Plaintiff’s complaints of fatigue to the extent the ALJ found those

complaints consistent with the record.

In sum, Plaintiff’s second assignment of error fails as a

matter of law.

10 The reconsideration-level consultant added postural restrictions due to

Plaintiff’s “fatigue and malaise.” (Tr. 104.)

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III. CONCLUSION

Plaintiff has not established any errors warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

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

Judgment on the Pleadings (Docket Entry 10) be denied, that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld_______

L. Patrick Auld

United States Magistrate Judge

March 3, 2020

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