“An impairment that manifests only some of those criteria [in a listing], no matter how severely, does not qualify.”
How later courts described this case
- “An impairment that manifests only some of those criteria [in a listing], no matter how severely, does not qualify.”
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SABRINA ANETTE LEARSON, )
)
Plaintiff, )
)
v. ) 1:19CV878
)
ANDREW SAUL, )
Commissioner of Social )
Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sabrina Anette Learson, brought this action pro se
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of the Commissioner of Social Security
(the “Commissioner”) denying her claim for Disability Insurance
Benefits (“DIB”) under Title II of the Act. (See Docket Entry 2.)
Defendant has filed the certified administrative record (Docket
Entry 11 (cited herein as “Tr. __”)), and both parties have moved
for judgment (Docket Entries 13, 14; see also Docket Entry 15
(Defendant’s Memorandum)). For the reasons that follow, the Court
should enter judgment for Defendant.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
June 12, 2014. (Tr. 312-13.) Upon denial of that application
initially (Tr. 196-210, 228-31) and on reconsideration (Tr. 211-27,
233-36), Plaintiff filed a request for a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 237-39). At the hearing,
which Plaintiff, her non-attorney representative, and a vocational
expert (“VE”) attended, Plaintiff amended her onset date to June
13, 2013. (Tr. 409.) The ALJ subsequently issued a decision
finding Plaintiff did not qualify as disabled under the Act from
her amended onset date of June 13, 2013, through the date she last
remained insured for DIB, June 30, 2015. (Tr. 35-51.)
Plaintiff requested review of the ALJ’s decision with the
Appeals Council (Tr. 303-06, 450-54) and, on June 1, 2017, the
Appeals Council issued a “Notice of Appeals Council Action,”
informing Plaintiff that it had granted Plaintiff’s request for
review (Tr. 307-11). In that Notice, the Appeals Council advised
Plaintiff that 1) “[t]he hearing decision . . . inaccurately stated
that the date [Plaintiff] w[as] last insured for [DIB] was June 30,
2015 (Finding 1)” but that Plaintiff’s “certified earnings record
show[ed] that [Plaintiff] w[as] actually insured . . . through
September 30, 2015” (Tr. 308), 2) “[t]he Appeals Council [wa]s
satisfied that the [ALJ] considered the . . . evidence that related
to the period after June 2015” (id.), 3) “the Appeals Council
propose[d] to update the Listing 12.04 and Listing 12.06 paragraph
B criteria findings made in the hearing decision” to comply with
regulatory changes that went into effect on January 17, 2017, after
the ALJ’s decision, see Revised Medical Criteria for Evaluating
Mental Disorders, 81 Fed. Reg. 66137 (Sept. 26, 2016) (id.), and 4)
2
“[t]he Council further propose[d] to adopt the remaining findings
in the hearing decision . . . and find that [Plaintiff] ha[d] not
been under a disability at any time from June 13, 2013, . . .
through September 30, 2015” (Tr. 309). The Appeals Council’s
Notice further advised that Plaintiff had 30 days from the date of
the Notice to submit “a statement about the facts and the law . . .
or additional evidence” meeting the Council’s standards for new
evidence as stated in the Notice. (Id.) Plaintiff submitted a
statement and additional evidence (Tr. 99-195, 436-45), her non-
attorney representative sent in a letter brief (Tr. 446-49), “and
the Appeals Council considered them” (Tr. 22).1 On August 4, 2017,
the Appeals Council issued a “Notice of Appeals Council Decision
Unfavorable” (Tr. 19-21), enclosing a Decision (in accord with its
earlier Notice of proposed action) that Plaintiff did not qualify
as disabled under the Act from June 13, 2013, to September 30, 2015
(Tr. 22-28), and advising Plaintiff that “[t]he enclosed decision
[wa]s the final decision of the Commissioner” (Tr. 19).
On October 4, 2017, Charles E. Binder (an attorney at the same
firm as Plaintiff’s non-attorney representative) faxed a request to
the Appeals Council for a 60-day extension of time for Plaintiff to
file an action for judicial review (Tr. 8-13), premised upon the
1 The Appeals Council found a portion of Plaintiff’s additional evidence
“not relevant to a claim for disability” (Tr. 22), some of that “evidence d[id]
not show a reasonable probability that it would change the outcome of the
decision” (Tr. 22-23), and the remainder of that “evidence d[id] not relate to
the period at issue” in the ALJ’s decision (Tr. 23). As a result, the Appeals
Council “did not consider and exhibit th[at] evidence.” (Tr. 22, 23.)
3
attorney’s inability, “despite [his firm’s] diligent attempts by
telephone and regular mail, . . . to reach [Plaintiff] to discuss
the option of appealing [her] claim in federal court” (Tr. 8, 12).
On December 6, 2017, the Appeals Council issued a letter extending
the time for Plaintiff to file a civil action for 30 days from the
date Plaintiff received a copy of the letter (Tr. 5-6) and
informing Plaintiff that the Appeals Council would “assume that
[Plaintiff] received th[e] letter 5 days after the date on [the
letter] unless [she] show[ed] [the Appeals Council] that [she] did
not receive it within the 5-day period” (Tr. 5).
Plaintiff, proceeding pro se, filed a complaint in this Court
on April 27, 2018, see Learson v. Berryhill, No. 1:18CV348, Docket
Entry 2 (M.D.N.C. Apr. 27, 2018); however, Plaintiff failed to
answer the question on the form complaint asking her the date on
which she “receive[d] notice that the Commissioner’s decision was
final,” which “[wa]s likely the date on which [she] received notice
from the . . . Appeals Council that [her] appeal was denied,” id.
at 3 (italics omitted). The Commissioner filed a “Motion to
Dismiss Plaintiff’s Complaint” and a Brief in support on grounds of
untimeliness, see Learson, Docket Entries 9, 10 (M.D.N.C. July 3,
2018), after which the Clerk of Court sent Plaintiff a notice under
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of her right to
respond to the Commissioner’s Motion to Dismiss, see Learson,
Docket Entry 11 (M.D.N.C. July 5, 2018). Plaintiff did not file a
4
response. See id., Docket Entries dated July 3, 2018, to Oct. 1,
2018. On October 1, 2018, the undersigned recommended conversion
of the Commissioner’s Motion to Dismiss to a motion for summary
judgment due to the Commissioner’s reliance on documents outside of
the pleadings, see Learson v. Berryhill, No. 1:18CV348, 2018 WL
4717973, at *3 (M.D.N.C. Oct. 1, 2018) (unpublished), and further
recommended dismissal of the action on grounds of untimeliness
“without prejudice to Plaintiff’s right to file a new action if she
receive[d] a second extension of the statute of limitations from
the Commissioner,” id. at *5. Plaintiff did not file objections
to the Recommendation, see Learson, Docket Entries dated Oct. 1,
2018, to Oct. 25, 2018, and the Court dismissed the action without
prejudice, see id., Docket Entry 14 (M.D.N.C. Oct. 25, 2018)
(Biggs, J.).
On May 24, 2019, Plaintiff wrote to the Appeals Council
seeking a second extension of time to file a civil action in this
Court challenging the Commissioner’s denial of DIB. (Tr. 2-4.)
The Appeals Council granted Plaintiff’s request and extended the
time for her to file a civil action in this Court for 30 days from
the date on the letter (August 5, 2019). (Tr. 1.) Plaintiff then
filed the instant Complaint on August 29, 2019. (Docket Entry 2.)
In the final decision of the Commissioner in this matter, the
Appeals Council made the following findings:
1. [Plaintiff] met the special earnings requirements of
the Act on June 13, 2013, the date [Plaintiff] stated she
5
became unable to work, and met them through September 30,
2015.
[Plaintiff] has not engaged in substantial gainful
activity since June 13, 2013.
2. [Plaintiff] has the following severe impairments:
lumbar degenerative disc disease, bilateral degenerative
osteoarthritis of the knees, obesity, depression,
anxiety, and attention-deficit-hyperactivity disorder
[(“ADHD”)], but does not have an impairment or
combination of impairments which is listed in, or which
is medically equal to an impairment listed in 20 CFR Part
404, Subpart P, Appendix 1.
3. [Plaintiff]’s combination of impairments results in
the following limitations on her ability to perform work-
related activities: sedentary, unskilled work except that
[Plaintiff] cannot push or pull on leg controls, walk on
slippery or uneven terrain, and climb ropes, ladders, or
scaffolds; unable to handle dangerous balancing such as
on beams; occasionally climb ramps and stairs with a
handrail, stoop, kneel, crouch, and crawl; must avoid
exposure to hazards such as unprotected heights and
dangerous, unshielded machinery; can perform simple,
routine, repetitive tasks in a static environment with
infrequent changes; is capable of occasional, superficial
interaction with coworkers and supervisors, and rare,
meaning less than 5% of the day, and superficial
interaction with the public.
4. [Plaintiff]’s alleged symptoms are not consistent
with and supported by the evidence of record for the
reasons identified in the body of this decision.
5. [Plaintiff] is unable to perform past relevant work
as a packager, route sales representative, substitute
teacher, special education teacher and truck driver.
. . .
7. If [Plaintiff] had the capacity to perform the full
range of the sedentary exertional level, 20 CFR 404.1569
and Rule 201.21, Table No. 1 of 20 CFR Part 404, Subpart
P, Appendix 2, would direct a conclusion of not disabled.
Although [Plaintiff]’s exertional and nonexertional
impairments do not allow her to perform the full range of
the sedentary exertional level, using the above-cited
6
Rule as a framework for decisionmaking, there are a
significant number of jobs in the national economy, which
she could perform, including: addresser, [Dictionary of
Occupational Titles (“DOT”)] number 209.587-010; eye
glass polisher, [DOT] number 713.684-038; and charge
account clerk, [DOT] number 205.367-014.
8. [Plaintiff] is not disabled as defined in the . . .
Act at any time from June 13, 2013, the [amended] alleged
onset date, through September 30, 2015, [Plaintiff]’s
date last insured.
(Tr. 24-25.)
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 [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 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,
7
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (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) (brackets and internal
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, as
adopted by the 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
[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),
8
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)).2 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
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.
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 [RFC] to (4) perform [the
claimant’s] past work or (5) any other work.” Albright v.
2 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
omitted).
9
Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th
Cir. 1999).3 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
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 [RFC].” Id. at 179.4 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. See id. at 179-80. However, if the
3 “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).
4 “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.
10
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 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
567.5
B. Assignments of Error
Plaintiff asserts that the Court should overturn the Appeals
Council’s finding of no disability on these grounds:
1) “[t]he ALJ erred in not properly reviewing [Plaintiff]’s
medical records for evidence that meets or equals the listed
impairments” (Docket Entry 13 at 6 (bold font and single-spacing
omitted));
2) “[t]he ALJ erred by utilizing evidence that proceeded [sic]
the onset of [Plaintiff]’s disability” (id. at 7 (bold font and
single-spacing omitted));
5 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.”).
11
3) “[t]he ALJ assigned inappropriate weight to physician
opinions and evidence” (id. at 8 (bold font and single-spacing
omitted));
4) “[t]he ALJ erred in his evaluation of medical evidence and
his recall of hearing testimony” (id. at 9 (bold font and single-
spacing omitted));
5) “[t]he ALJ erred in not fully developing the record for
[Plaintiff]’s mental health impairments” (id. at 10 (bold font and
single-spacing omitted)); and
6) “[t]he ALJ questioned [Plaintiff]’s credibility in regards
to the symptoms of her impairments and disregarded relevant
evidence” (id. at 11 (bold font and single-spacing omitted)).6
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (See Docket Entry 15 at 15-27.)
1. Listings Analysis
In Plaintiff’s first assignment of error, she maintains that
“[t]he ALJ erred in not properly reviewing [Plaintiff]’s medical
records for evidence that meets or equals the listed impairments.”
(Docket Entry 13 at 6 (bold font and single-spacing omitted).) In
particular, Plaintiff contends that the ALJ should have found that
6 Although Plaintiff’s issues on review attribute error solely to the ALJ
(see Docket Entry 13 at 6-11), the Appeals Council issued the Commissioner’s
final decision in this matter (see Tr. 22-28). In so doing, the Appeals Council
adopted all of the ALJ’s findings (except those regarding the date last insured)
and updated the ALJ’s paragraph B criteria findings regarding listings 12.04 and
12.06. (See Tr. 24.) Accordingly, this Recommendation will refer to the ALJ
when discussing Plaintiff’s assignments of error unless the discussion involves
the paragraph B criteria of Listings 12.04 and 12.06.
12
her knee impairment met the requirements of Listing 1.02 (“Major
dysfunction of a joint”). (Id. (referencing 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 1.02).) Plaintiff further faults the ALJ for
“substitut[ing] his own expertise against that of a treating
physician” by discounting the opinions of treating psychiatrist Dr.
Ajay Veeragandham and treating counselor Tara Russian in
determining whether Plaintiff’s mental impairments met or equaled
the requirements of Listings 12.04 (“Depressive, bipolar, and
related disorders”) and 12.06 (“Anxiety and obsessive-compulsive
disorders”). (Id. at 6-7 (citing Balsamo v. Chater, 142 F.3d 75,
81 (2d Cir. 1998), Tr. 819-28, and referencing 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, §§ 12.04, 12.06).) Those contentions fall
short.7
“Under Step 3, the [SSA’s SEP] regulation states that a
claimant will be found disabled if he or she has an impairment that
‘meets or equals one of [the] listings in appendix 1 of [20 C.F.R.
Pt. 404, Subpt. P] and meets the duration requirement.’” Radford
v. Colvin, 734 F.3d 288, 293 (4th Cir. 2013) (quoting 20 C.F.R.
§ 404.1520(a)(4)(iii)) (internal bracketed numbers omitted). “The
7 Plaintiff challenges the ALJ’s omission of Plaintiff’s “herniated nucleus
pulposus, spinal stenosis, and degenerative joint disease of the knees with
complete collapse” from the ALJ’s step two severity determination and step three
listings analysis. (Docket Entry 13 at 6.) That argument fails because the ALJ
acknowledged that Plaintiff had significant spine and knee impairments by finding
that she suffered from severe “lumbar degenerative disc disease” and “bilateral
degenerative osteoarthritis of the knees.” (Tr. 41.) Moreover, in the portion
of the decision in which the ALJ discussed the RFC, he expressly discussed that
“imaging revealed degenerative disc disease in [Plaintiff’s] lumbar spine with
disc protrusion, and osteoarthritis in both of her knees.” (Tr. 45 (citing,
inter alia, Tr. 667, 671-72, 692-93).)
13
listings set out at 20 CFR [P]t. 404, [S]ubpt. P, App[’x] 1, are
descriptions of various physical and mental illnesses and
abnormalities, most of which are categorized by the body system
they affect. Each impairment is defined in terms of several
specific medical signs, symptoms, or laboratory test results.”
Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote
and parentheticals omitted). “In order to satisfy a listing and
qualify for benefits, a person must meet all of the medical
criteria in a particular listing.” Bennett, 917 F.2d at 160
(citing Zebley, 493 U.S. at 530, and 20 C.F.R. § 404.1526(a)); see
also Zebley, 493 U.S. at 530 (“An impairment that manifests only
some of those criteria [in a listing], no matter how severely, does
not qualify.”).
a. Listing 1.02A8
To meet the requirements of Listing 1.02A, a claimant must
show “gross anatomical deformity (e.g., subluxation, contracture,
bony or fibrous ankylosis, instability) and chronic joint pain and
stiffness with signs of limitation of motion or other abnormal
motion . . ., and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankylosis”
involving “one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), [and] resulting in inability to ambulate
8 Plaintiff does not argue that she suffers from a gross anatomical
deformity that results in an “inability to perform fine and gross movements
effectively” as required by Listing 1.02B. (See Docket Entry 13 at 6-7.)
14
effectively, as defined in [Section] 1.00B2b,” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.02A. The cross-referenced regulatory
section, in turn, states that “[i]nability to ambulate effectively
means an extreme limitation of the ability to walk . . . defined
generally as having insufficient lower extremity functioning to
permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper
extremities,” id., § 1.00B2b(1) (emphasis added) (internal
parenthetical citation omitted). According to Plaintiff, “[t]he
record presents evidence that she meets [Listing 1.02A’s]
requirements of gross anatomical deformity, chronic joint pain,
stiffness with signs of limitation of motion, [and] medically
acceptable imaging of joint narrowing and bony destruction,” as
well as that Plaintiff “display[ed] her difficulty in ambulating by
the use of her cane for standing and walking.” (Docket Entry 13 at
6.)
With regard to Listing 1.02A, the ALJ stated as follows:
Particular attention was given to [Listing 1.02A].
However, the specified criteria required of the [L]isting
was not demonstrated by the available medical evidence.
Specifically, the [L]isting requires gross anatomical
deformity and chronic joint pain and stiffness with signs
of limitation of motion or other abnormal motion of the
affected joint(s), and finding on appropriate medically
acceptable imaging of joint space narrowing, bony
destruction or ankylosis of the affected joint. The
[L]isting also requires involvement of one major
peripheral weight-bearing joint resulting in inability to
ambulate effectively as defined in [Section]
1.00(B)(2)(b). In this case, the evidence does not
15
demonstrate that [Plaintiff] has the degree of difficulty
in ambulating as defined in [Section] 1.00(B)(2)(b).
(Tr. 41-42 (emphasis added).) Thus, as the above-quoted discussion
makes clear, the ALJ focused on the “inability to ambulate
effectively” requirement of Listing 1.02A, and found that the
record evidence did not show that Plaintiff’s knee impairment
caused the requisite degree of difficulty in ambulation.
Plaintiff’s reliance on her alleged cane usage to satisfy the
“inability to ambulate effectively” requirement fails for two
reasons. (Docket Entry 13 at 6.) First, the ALJ did not find that
the medical evidence supported Plaintiff’s need for a cane:
[D]espite testifying that she needed a cane, [Plaintiff]
did not produce a prescription for a cane and the need
for a cane contradicts her physical therapy notes.
Moreover, [c]onsultative [e]xaminer Dr. Alan Cohen found
that [Plaintiff] did not need a cane. Consistent with
Dr. Cohen’s finding, [Plaintiff] demonstrated normal gait
and station on multiple occasions. Straight leg raising
was negative and she had full muscle strength. Moreover,
at one time, her range of motion was normal. [Plaintiff]
also reported relief from aches and pains with the use of
one of her medications. Notably, despite complaints of
chronic knee pain, . . . on at least one occasion,
[Plaintiff] complained only of low back pain. She also
testified that the treatment for her knees provided
relief. During her [c]onsultative [e]xamination, the
examiner found that [Plaintiff] had normal range of
motion in her knees. Further, at one time, [Plaintiff]
reported that her low back pain did not extend into
either lower extremity.
(Tr. 45-46 (internal citations omitted).) Plaintiff did not
challenge the above-quoted analysis by the ALJ of Plaintiff’s need
for a cane (see Docket Entry 13), and the record supports the ALJ’s
assertions in that regard.
16
Second, the regulations provide examples of ineffective
ambulation, which include “the inability to walk without the use of
a walker, two crutches or two canes,” “the inability to walk a
block at a reasonable pace on rough or uneven surfaces,” and “the
inability to climb a few steps at a reasonable pace with the use of
a single hand rail.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 1.00(B)(2)(b) (emphasis added). Thus, even if Plaintiff’s knee
(or other) impairment necessitated the use of one cane, that would
not “limit[] the functioning of both upper extremities,” id.,
§ 1.00B2b(1) (emphasis added), as required for an inability to
ambulate effectively. See McAuley v. Colvin, No. 7:12CV311, 2013
WL 7098724, at *9 (E.D.N.C. Dec. 13, 2013) (unpublished) (holding
that “an inability to ambulate effectively means an inability to
ambulate without the use of a device that requires both upper
extremities” and thus that the claimant’s “use of a cane d[id] not
bring [the claimant] within the ambit of [a listing requiring an
inability to ambulate effectively]” (emphasis in the original)).
b. Listings 12.04 and 12.06
With regard to Listings 12.04 and 12.06, Plaintiff faults the
ALJ for “substitut[ing] his own expertise against that of a
treating physician” by discounting the opinions of treating
psychiatrist Dr. Ajay Veeragandham and treating counselor Tara
Russian in determining whether Plaintiff’s mental impairments met
or equaled the requirements of Listings 12.04 and 12.06. (Docket
17
Entry 13 at 6-7 (citing Balsamo, 142 F.3d at 81, Tr. 819-28, and
referencing 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04,
12.06).) Those contentions fail to warrant relief.
Effective on January 17, 2017, the Commissioner made
substantial revisions to the criteria for evaluating mental
disorders in the Listing of Impairments. See https://www.
federalregister.gov/documents/2016/09/26/2016-22908/revised-
medical-criteria-for-evaluating-mental-disorders (last visited July
21, 2020). As relevant to this case,9 to meet the paragraph B
criteria of revised Listings 12.04 and 12.06, a claimant must show
“[e]xtreme limitation of one, or marked limitation of two, of the
following areas of mental functioning:
1. Understand, remember, or apply information[;]
2. Interact with others[;]
3. Concentrate, persist, or maintain pace[; and]
4. Adapt or manage oneself.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.06B (internal
citations omitted) (emphasis added).
As mentioned above, the Appeals Council made its own paragraph
B criteria findings in order to conform those findings to the 2017
regulatory revisions. In that regard, the Appeals Council found
9 The ALJ and Appeals Council both apparently assumed, without explicitly
finding, that Plaintiff’s mental impairments satisfied the paragraph A criteria
of Listings 12.04 and 12.06 (see Tr. 24, 42), and Plaintiff did not raise any
arguments directed at the ALJ’s findings with respect to the paragraph C criteria
(see Docket Entry 13).
18
that Plaintiff “had[] mild limitations in understanding,
remembering, or applying information; moderate limitation in
interacting with others; moderate limitations in concentrating,
persisting, or maintaining pace; and moderate limitations in
adapting or managing herself.” (Tr. 24.) In support of those
findings, the Appeals Council noted that Plaintiff “drives,
prepares meals, and takes care of her daughter; is cooperative with
her medical providers and gets along with people in all
professions; has good judgment and insight; has good attention and
intact memory but is easily distractible and has trouble falling
asleep; and is studying for a college degree.” (Id.)
Plaintiff’s argument misses the mark, because Dr. Veeragandham
and Counselor Russian did not offer opinions regarding whether
Plaintiff’s mental conditions met or equaled the requirements of
Listings 12.04 and 12.06. (See Tr. 819-28.) Consistent with that
fact, neither the ALJ nor the Appeals Council had cause to address
(and therefore did not discount) Dr. Veeragandham and/or Counselor
Russian in analyzing whether Plaintiff’s mental impairments met or
equaled those Listings. (See Tr. 24, 42.)
In short, Plaintiff has not established reversible error with
respect to the ALJ’s and Appeal Council’s listings determinations.
2. Consideration of Pre-Onset Evidence
Next, Plaintiff asserts that “[t]he ALJ erred by utilizing
evidence that proceeded [sic] the onset of [Plaintiff]’s
19
disability.” (Docket Entry 13 at 7 (bold font and single-spacing
omitted).) In particular, Plaintiff maintains that she suffered an
on-the-job injury in October 2012 and “sought treatment under
Work[ers] Compensation with Dr. Zane Walsh,” including “successful
treatment with physical therapy,” which Plaintiff “chose to end
. . . in February of 2013.” (Id.) Plaintiff notes that she “did
not return to Dr. Walsh until . . . an assessment of her
limitations for the Cumberland County Department of Social Services
[(‘DSS’)] Work-First Program in January 2015,” but that her then-
attorneys “submitted [all] of the medical records from Dr. Walsh,
rather than only submitting the [DSS] notes.” (Id.) As a result,
Plaintiff faults the ALJ for “overlook[ing] the dates [of the
treatment notes] and rel[ying] heavily on the notes [from Dr. Walsh
preceding Plaintiff’s disability onset date] in [the ALJ’s]
decision at least a half dozen times.” (Id.)
Plaintiff’s contentions fail for two reasons. First, the
regulations direct the Commissioner to develop a claimant’s medical
history “for at least the 12 months preceding the month in which
[the claimant files an] application.” 20 C.F.R. § 404.1512(a), (d)
(emphasis added), and thus the regulations clearly anticipate the
ALJ’s consideration of some pre-onset evidence. Second, Plaintiff
informed her treatment providers that her on-the-job injury in
October 2012, as well as a motor vehicle accident in May 2013 (also
preceding the onset date), triggered her disabling back pain.
20
(See, e.g., Tr. 562, 645, 656.) Accordingly, the extent to which
Plaintiff responded to treatment and physical therapy following her
on-the-job injury holds relevance to the determination of her
functional limitations arising from her back impairment during the
period of adjudication.
In sum, Plaintiff’s second issue on review fails as a matter
of law.
3. Evaluation of Opinion Evidence
In Plaintiff’s third assignment of error, she contends that
“[t]he ALJ assigned inappropriate weight to physician opinions and
evidence.” (Docket Entry 13 at 8 (bold font and single-spacing
omitted).) In that regard, Plaintiff objects to the ALJ’s
assessment of the opinions of 1) the state agency psychological
consultants, 2) the state agency medical consultants, 3) Dr.
Veeraghandam, 4) Counselor Russian, and 5) Dr. Walsh. (Id. at 8-
9.) However, as discussed below, the ALJ did not err with respect
to his analysis and weighing of any of those opinions.
a. State Agency Psychological Consultants
Plaintiff contends that “[g]reat weight was given to the State
Agency Psychological Consultant SXR,” but that “th[e SXR]
assessment never occurred” and “the only contact she ha[d] with a
state agency was a basic physical examination that did not include
a mental health assessment.” (Id. at 8 (referencing Tr. 47).)
However, Plaintiff confuses Dr. Cohen’s consultative medical
21
examination (see Tr. 654-58), which he performed on behalf of “SXR
Medical LLC” (Tr. 656), and the mental severity and RFC analyses
provided by the non-examining state agency psychological
consultants, who offered opinions based on their review of the
record (see Tr. 201-02, 205-07, 218-19, 222-24). The ALJ here did
accord “great weight” to the state agency psychological
consultants’ opinions, specifically crediting their opinion that
Plaintiff remained capable of simple, routine, and repetitive tasks
(“SRRTs”) (Tr. 47), and incorporated a limitation to SRRTs, as well
as restrictions on workplace changes and social interaction, into
the RFC (see Tr. 44).
Although, as a general matter, opinions from an examining
source warrant more weight than those from a non-examining source,
see 20 C.F.R. 404.1527(c)(1), non-examining state agency
consultants constitute “highly qualified physicians, psychologists,
and other medical specialists who are also experts in Social
Security disability evaluation[,]” 20 C.F.R. § 404.1527(e)(2)(I).
Thus, the ALJ could permissibly credit the opinions of the
non-examining state agency psychological consultants, who rendered
their opinions without the benefit of a full record, over those of
even a treating psychiatrist, to the extent the consultants’
opinions remain consistent with the evidence received subsequent to
their opinions. See Lapeer v. Astrue, No. 5:08CV256, 2009 WL
2487038, at *7 (E.D.N.C. Aug. 13, 2009) (unpublished). Plaintiff’s
22
psychiatric treatment with Dr. Veeragandham, including the findings
on mental status examinations, remained consistent both before and
after the state agency psychological consultants offered their
opinions in October and November of 2014. (Compare Tr. 503-26,
660-63, 788-89, with Tr. 772-87, 834-53.) Plaintiff has thus not
provided the Court with a basis to disturb the ALJ’s analysis of
the state agency psychological consultants’ opinions.
b. State Agency Medical Consultants
Plaintiff additionally challenges the ALJ’s assignment of
“[g]reat weight . . . to the findings [of the state agency medical
consultants] that [Plaintiff] could sit for 6 hours and
occasionally stoop, crouch, and crawl given that [Plaintiff]
reported relief with medication, had some generally normal range of
motion findings, even in her knees[,] and had a normal gait.”
(Docket Entry 13 at 8 (referencing Tr. 47, 204, 220-21).)
According to Plaintiff, “[t]h[o]se findings were derived from a
very basic examination [by Dr. Cohen] that was not thorough enough
to determine [Plaintiff]’s limitations,” and the ALJ “also referred
to [Plaintiff’s] self-report that various positions helped relieve
some pain, a physician’s note that d[id] not indicate any of
[Plaintiff]’s abilities and physician notes that preceded her
disability.” (Id.)
As an initial matter, Plaintiff makes no effort to explain why
Dr. Cohen’s examination “was not thorough enough to determine
23
[Plaintiff]’s limitations” (id.). (See id.) Moreover, contrary to
Plaintiff’s conclusory claim, Dr. Cohen’s assessment contained all
of the standard components of a consultative physical evaluation,
including the chief complaint/history of present illness (see Tr.
656), current medications (see id.), social history (see id.),
family history (see id.), review of systems (see id. at 656-57),
and a physical examination of all of Plaintiff’s major body systems
(see Tr. 657-58), including range of motion testing (see Tr. 654).
Dr. Cohen additionally took x-rays of Plaintiff’s lumbar spine.
(See Tr. 655.) More significantly, the ALJ relied on multiple
sources as support for his assignment of great weight to the state
agency medical consultants’ opinions regarding Plaintiff’s ability
to sit, stoop, crouch, and crawl (see Tr. 47 (citing “Hearing
Testimony,” and Tr. 455, 654-58, 830-33)), including Plaintiff’s
own hearing testimony that some of her medications helped to
relieve her pain (see Tr. 70-71), as well as normal findings on
examination by Dr. Walsh on February 28, 2013 (see Tr. 455), Dr.
Cohen on October 1, 2014 (see Tr. 656-57), and Dr. Charles S.
Haworth, a neurosurgeon who evaluated Plaintiff on February 27,
2015 (see Tr. 830-33).
In sum, the ALJ supplied substantial evidence to support the
assignment of “great weight” to the state agency medical
consultants’ opinions (Tr. 47).
24
c. Dr. Veeragandham/Counselor Russian
Plaintiff next argues that, although “[t]he ALJ admitted to
the severity of [Plaintiff]’s mental health, [he] only gave little
weight to the opinions of her treating psychiatrist Dr.
Veeraghandam and her mental health therapist [Counselor] Russian.”
(Docket Entry 13 at 8.) According to Plaintiff, “[t]he opinion,
diagnosis, and medical evidence tendered by a treating physician
should be accorded considerable weight.” (Id. (citing Wilson v.
Heckler, 734 F.2d 513, 518 (11th Cir. 1984)).)
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) (“[T]reating sources . . . provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”). The rule also
recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords an opinion. See 20 C.F.R. § 404.1527(c)(2)(ii). Moreover,
as subsections (2) through (4) of the rule describe in great
detail, a treating source’s opinion, like all medical opinions,
25
deserves deference only if well-supported by medical signs and
laboratory 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 substantial evidence, it should
be accorded significantly less weight.” Craig, 76 F.3d at 590
(emphasis added).
The ALJ analyzed the opinions from Dr. Veeragandham and
Counselor Russian as follows:
The [ALJ] gave little weight to the opinions of
[Counselor] Russian, [Plaintiff]’s therapist, and Dr. []
Veeraga[ndham], [Plaintiff]’s treating psychiatrist. The
[ALJ] observes that [Plaintiff]’s regular therapy for at
least two years was consistent with [Plaintiff]’s
diagnoses and a finding of severe mental health
impairments. However, the [ALJ] observes that
particularly [Counselor] Russian, but also Dr.
Veeraga[ndham], noted that [Plaintiff] reported an
inability to work, rather than stating that they were
specifically finding that [Plaintiff] was unable to work.
There was no evidence that [Plaintiff] was completely
unable to work due to her mental health. For instance,
there were many normal findings as discussed above, and
[Plaintiff] herself indicated her mental health concerns
were largely situational. Similarly, there was no
support for marked limitations in the areas of
concentration, socialization, or adapt[at]ion. First, as
noted, many observations were based on [Plaintiff]’s
self-reports. Second, marked limitations were
inconsistent with [Plaintiff]’s improvement with
medication, the fact that she ceased therapy, and her
statement that she felt “okay” most of the time.
Further, [Plaintiff] reported that she could socialize
with her peers and that she got along with people in many
professions. There was also no support for a finding
that [Plaintiff] would have missed multiple days per
month due to her mental health, especially given that as
of February 2016, [Plaintiff] had improved such that she
enrolled in classes and moved into her own apartment.
26
The [ALJ] also observes that [Plaintiff] continued to
care for her minor child.
(Tr. 46-47 (emphasis added) (internal citations omitted).) The ALJ
provided multiple reasons to discount the opinions of Dr.
Veeragandham and Counselor Russian in accordance with the
regulations, including a lack of support from Dr. Veeragandham’s
own records and inconsistency with the record as a whole. See 20
C.F.R. § 404.1527(c)(2)-(4); Craig, 76 F.3d at 590. Plaintiff has
thus not shown that the ALJ erred by failing to accord controlling
weight to those opinions.
Plaintiff also specifically challenges the ALJ’s observation,
emphasized above, that Dr. Veeragandham and Counselor Russian based
their opinions in large part on Plaintiff’s subjective reports that
she remained unable to work rather than objective findings.
(Docket Entry 13 at 8-9.) In that regard, Plaintiff argues that
“[t]he ALJ based his decision on a note from [Counselor] Russian
that stated, ‘Reports limited ability to work due to medical
conditions, i.e. knees, back problems,’” but that “[t]he note
clearly states that [Plaintiff] reports an[] inability to work due
to physical impairments, and is not a report of [Plaintiff]’s
mental health status.” (Id. (referencing Tr. 818).)
The “note” in question appears in a Mental Impairment
Questionnaire completed by Counselor Russian on June 15, 2015.
(See Tr. 824-28.) In response to the question, “Does [Plaintiff]
experience episodes of decompensation or deterioration in a work or
27
work-like setting which causes [her] to withdraw from the situation
and/or experience an exacerbation of symptoms?” Counselor Russian
marked the box for “Yes” and stated: “[Plaintiff] has a [history]
of isolation in work settings, per [Plaintiff’s] report.
[Plaintiff] currently reports limited ability to work due to
medical conditions, ie - knees, back problems.” (Tr. 826 (emphasis
added).)
Plaintiff’s criticism of the ALJ’s observation of Counselor
Russian’s reliance on Plaintiff’s subjective symptom reports fails
for two reasons. First, contrary to Plaintiff’s argument,
Counselor Russian’s statement in question does constitute “a report
of [Plaintiff]’s mental health status” (Docket Entry 13 at 9),
because Counselor Russian only treated Plaintiff for mental
impairments and only offered opinions regarding Plaintiff’s mental
functional limitations. (See Tr. 818, 824-29.) Second, in a “To
Whom It May Concern” letter from Counselor Russian, she explained
the connection between Plaintiff’s physical impairments and mental
impairments:
[Plaintiff] has been attending psychotherapy since
1/8/15, approx. every other week. She was referred to
therapy by her psychiatrist she has been seeing here,
since 6/5/13, due to Major Depressive Disorder,
Generalized Anxiety Disorder and ADHD. The focus of
sessions is on decreasing depressive symptoms,
irritability and anxiety, using cognitive behavioral
therapy. [Plaintiff] has reported having a very
difficult time lately due to worsening medical conditions
which have exacerbated her psychiatric issues.
[Plaintiff] reports inability to perform most work
28
related tasks due to her medical problems. [Plaintiff]
will benefit from ongoing psychotherapy.
(Tr. 818 (emphasis added).)8 In other words, Counselor Russian
relied not only on Plaintiff’s report of “worsening medical
conditions,” but also on Plaintiff’s report that those conditions
“exacerbated her psychiatric issues.” (Id.)9
d. Dr. Walsh
Plaintiff also finds fault with the ALJ’s decision to afford
“some weight” to a functional evaluation that Dr. Walsh conducted
for the DSS in April 2015. (Docket Entry 13 at 9 (referencing Tr.
711-12).) In that regard, Plaintiff asserts that the ALJ “ignored
medical evidence” from that evaluation and, although he “found the
result of the [evaluation] unacceptable, . . . he relied heavily on
the physical therapy notes from Dr. Walsh’s office that preceded
the onset of [Plaintiff]’s disability.” (Id.)
On April 6, 2015, Dr. Walsh completed a “Report of Medical
Examination” for the DSS (see Tr. 711-12), on which he diagnosed
Plaintiff with degenerative disc disease of the lumbar spine since
May 2013 and deemed Plaintiff’s prognosis “[f]air” (Tr. 711). Dr.
Walsh opined that Plaintiff’s lumbar impairment limited her to five
hours of sitting, three hours of standing, and one hour of walking,
8 Diane Lee, a psychologist, co-signed the note. (See Tr. 818.)
9 Dr. Veeragandham also relied on Plaintiff’s subjective reports on the
Mental Impairment Questionnaire by stating that Plaintiff’s “diagnosis was based
upon the [Diagnostic and Statistical Manual of Mental Disorders (‘DSM’)] and past
history that was reported.” (Tr. 821 (emphasis added).)
29
bending, lifting, and carrying per day, as well as that Plaintiff
should not lift more than 10 to 15 pounds occasionally. (Tr. 712.)
Dr. Walsh believed Plaintiff qualified as “a candidate for referral
to Vocational Rehabilitation.” (Id.)
The ALJ evaluated and weighed Dr. Walsh’s report as follows:
The [ALJ] gave some weight to the findings in [Dr.
Walsh’s report]. Many of the findings demonstrated that
[Plaintiff] was limited physically consistent with the
[RFC]. For instance, [Dr. Walsh] found that [Plaintiff]
could not lift more than 15 pounds and could not stand
for more than three hours. These findings were generally
consistent with [Plaintiff]’s obesity, degenerative disc
disease, and osteoarthritis in her knees. However, it
was clear that the [report] was not consistent with the
regulations and analysis used by the [SSA]. For example,
[Dr. Walsh] found that [Plaintiff] could only lift for
one[ ]hour total. This was not consistent with
[Plaintiff]’s consistent ability to care for her child,
or her improvement with physical therapy.
(Tr. 48 (internal citations omitted).)
In this analysis, the ALJ credited Dr. Walsh’s opinions that
Plaintiff could not lift more than 15 pounds or stand more than
three hours as consistent with the medical evidence (id.), and
incorporated even greater restrictions on lifting and standing into
the RFC (see Tr. 44). However, the ALJ discounted Dr. Walsh’s
opinion that Plaintiff could lift for only one hour because 1) the
SSA does not quantify how much of a workday claimants can engage in
lifting by the “hour” but rather using the terms “occasionally,”
“frequently,” and “constantly,” 20 C.F.R. § 404.1567 (providing
that SSA uses definitions from the DOT in describing exertional
requirements); see also DOT, App’x C (“Components of the Definition
30
Trailer”), § IV (“Physical Demands - Strength Rating (Strength)”),
1991 WL 688702 (G.P.O. 4th ed. rev. 1991) (providing definitions of
“occasionally,” “frequently,” and “constantly”), and 2) that
opinion lacked consistency with Plaintiff’s ability to care for her
young child and improvement in symptoms after physical therapy with
Dr. Walsh (and his staff). (Tr. 48.) Thus, in addition to noting
the different standards relied upon, the ALJ permissibly discounted
Dr. Walsh’s lifting opinion as inconsistent with the record as a
whole and as not supported by Dr. Walsh’s own treatment records,
see 20 C.F.R. § 404.1527(c)(2)-(4); Craig, 76 F.3d at 590.
In light of these considerations, Plaintiff has not
demonstrated reversible error arising out of the ALJ’s handling of
opinion evidence.
4. Formulation of RFC10
Plaintiff additionally maintains that “[t]he ALJ erred in his
evaluation of medical evidence.” (Docket Entry 13 at 9 (bold font
and single-spacing omitted).) In particular, Plaintiff asserts
that “[t]he ALJ did not fully develop the record for his [RFC]
assessment,” because “[t]he record presents an abundance of
evidence that attest[s] to [Plaintiff]’s inability to perform any
of the tasks [in the RFC] due to pain.” (Id.) Plaintiff further
10 Plaintiff breaks down her fourth assignment of error into two subparts
– subpart A dealing with the RFC and subpart B dealing with VE testimony. (See
Docket Entry 13 at 9-10.) Because those subparts deal with procedurally distinct
issues, this Recommendation discusses them as separate assignments of error.
31
faults the ALJ for “overlook[ing Plaintiff]’s use of a cane and her
use of narcotic pain medicine.” (Id. at 9-10.)
RFC measures the most a claimant can do despite any physical
and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.
§ 404.1545(a). An ALJ must determine a claimant’s exertional and
non-exertional capacity only after considering all of a claimant’s
impairments, as well as any related symptoms, including pain. See
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b). The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy). See 20 C.F.R. § 404.1567. Any non-exertional limitations
may further restrict a claimant’s ability to perform jobs within an
exertional level. See 20 C.F.R. § 404.1569a(c). An ALJ need not
discuss every 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)). However, “the ALJ must both identify evidence that
supports his [or her] conclusion and build an accurate and logical
bridge from that evidence to [that] conclusion.” Woods v.
Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (internal emphasis,
quotation marks, and brackets omitted).
32
The ALJ here sufficiently explained how he formulated the RFC
determination. (See Tr. 44-49.)11 The ALJ first reviewed the
medical evidence of record (see Tr. 45-46), making the following,
pertinent findings:
• “despite [Plaintiff’s] obesity and positive
findings [on examination], physical therapy
treatment notes indicated that [Plaintiff]’s
balance was intact both sitting and standing, that
she had no limp, [] that she had no complaints when
performing transfers[, and that her] recovery was
excellent” (Tr. 45; see also Tr. 455);
• Dr. Haworth “found [Plaintiff]’s condition did not
need surgical attention” (Tr. 45; see also Tr.
833);
• “despite testifying that she needed a cane,
[Plaintiff] did not produce a prescription for a
cane and the need for a cane contradicts her
physical therapy notes” (Tr. 45; see also Tr. 72,
78-79, 455-89);
• Dr. Cohen “found that [Plaintiff] did not need a
cane” (Tr. 45; see also Tr. 658) and “found that
[Plaintiff] had normal range of motion in her
knees” (Tr. 46; see also Tr. 654);
• Plaintiff “demonstrated normal gait and station on
multiple occasions,” “[s]traight leg raising was
negative[,] and she had full muscle strength” (Tr.
46 (citing Tr. 645-59, 715-16)); and
• Plaintiff “reported relief from aches and pains
with the use of one of her medications” and “also
testified that the treatment for her knees provided
relief” (id.; see also Tr. 70-71).
11 Plaintiff’s challenge to the RFC focuses on the impact of her pain on
her functional abilities. (See Docket Entry 13 at 9-10.) Accordingly, the
undersigned limits the discussion of the RFC to Plaintiff’s physical (as opposed
to mental) impairments.
33
That analysis supplies substantial evidence to support the RFC.
Moreover, in addition to the findings quoted above regarding
Plaintiff’s alleged need for a cane, the ALJ acknowledged that
Plaintiff’s “medication included at least one opioid.” (Tr. 45.)
Thus, the ALJ clearly did not “overlook[ Plaintiff]’s use of a cane
and her use of narcotic pain medicine” (Docket Entry 13 at 9-10).
In determining the RFC, the ALJ also evaluated Plaintiff’s
subjective complaints of back and knee pain; however, the ALJ
ultimately found that Plaintiff’s “allegations concerning the
intensity, persistence and limiting effects of [her] symptoms
[we]re not entirely consistent with the medical evidence and other
evidence” (Tr. 45), and, as discussed below in connection with
Plaintiff’s last assignment of error, the ALJ did not err in his
analysis of Plaintiff’s subjective complaints. Moreover, the ALJ
also considered and weighed the opinion evidence of record (see Tr.
46-48) and, as detailed supra, Plaintiff has not shown error with
respect to the ALJ’s review of the opinions of record.
Simply put, Plaintiff’s contentions regarding the RFC do not
entitle her to reversal or remand.
5. Consideration of VE Testimony
Plaintiff next argues that “[t]he ALJ erred in his . . .
recall of hearing testimony” (Docket Entry 13 at 9 (bold font and
single-spacing omitted)), in that he “omitted pertinent testimony
from the [VE] in his decision” (id. at 10 (bold font and single-
34
spacing omitted)). More specifically, Plaintiff objects to the
ALJ’s failure to acknowledge the VE’s testimony in response to
three hypothetical questions reflecting “similar profiles to
[Plaintiff]” that Plaintiff “was unable to do past work and was
unable to do any other work in the national economy.” (Id. (citing
Tr. 84-88).)
At step five of the SEP, the ALJ may rely on the testimony of
a VE to determine whether a claimant can perform work that exists
in significant numbers in the national economy given the claimant’s
work-related limitations. See 20 C.F.R. §§ 404.1520(g),
404.1566(e). The VE’s opinions “must be in response to proper
hypothetical questions which fairly set out all of claimant’s
impairments.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
In this case, the ALJ first asked the VE a hypothetical
question containing restrictions that matched the RFC. (See Tr.
84-85, see also Tr. 44.) In response, the VE testified that,
although an individual with those restrictions could not perform
any of Plaintiff’s past work, three jobs existed conforming to the
hypothetical and available in significant numbers in the national
economy. (See Tr. 85.) The ALJ then inquired whether adding a
need for a cane would have any impact on the three cited jobs, and
the VE responded in the negative. (Id.) At that point, the ALJ
asked three more hypothetical questions containing restrictions
that the ALJ did not ultimately incorporate into the RFC – 1)
35
“[f]or at least two-thirds of the work day the individual cannot
maintain attention and concentration for extended periods, perform
activities within a schedule, work in coordination with others
without being distracted by them, complete a work day without
interruptions from psychological symptoms, accept instructions and
respond appropriately to criticism from supervisors and respond
appropriately to work place changes” (Tr. 86-87) (“Hypo 3”), 2)
“th[e] hypothetical individual . . . would be off-task 15 percent
of the work day or work week” (Tr. 87) (“Hypo 4”), and 3) “th[e]
hypothetical individual . . . would miss work twice a month, be
late twice a month or have to leave early twice a month, or any
combination of those three twice a month” (id.) (“Hypo 5”). The VE
responded that, for each of those hypothetical individuals, no work
existed. (See Tr. 87, 88.)
Contrary to Plaintiff’s assertions, the ALJ did not err by
failing to adopt the VE’s testimony in response to Hypos 3, 4, and
5, because “[b]y presenting a hypothetical, the ALJ was not making
findings of fact” and thus the ALJ could present multiple (and even
contradictory) hypotheticals to the VE and then later determine
which hypothetical “most closely fit the evidence of record.”
Davis v. Apfel, No. 97–1719, 1998 WL 559728, at *2 (4th Cir. Sept.
2, 1998) (unpublished). The ALJ modeled Hypo 3 after Dr.
Veeragandham’s marked limitations on the Mental Impairment
36
Questionnaire (compare Tr. 86-87, with Tr. 822),12 but the ALJ
ultimately gave “little weight” to Dr. Veeragandham’s opinions (Tr.
46) and, as discussed above, did not err in doing so. Regarding
Hypo 4, the ALJ and Appeals Council both found that Plaintiff’s
mental impairments caused only a moderate limitation in Plaintiff’s
ability to maintain concentration, persistence, or pace and neither
found that she would remain off-task for 15 percent of the workday.
(See Tr. 43.) With respect to Hypo 5, the ALJ expressly discounted
the opinions of Dr. Veeragandham and Counselor Russian that
Plaintiff’s mental impairments would cause her to miss multiple
days of work per month (see Tr. 823, 828), noting that, “as of
February 2016, [Plaintiff] had improved such that she enrolled in
classes and moved into her own apartment” and “continued to care
for her minor child” (Tr. 47).
Under those circumstances, Plaintiff has not shown that the
ALJ erred by disregarding the VE’s testimony in response to Hypos
3, 4, and 5. See Davis, 1998 WL 559728, at *2.
12 The ALJ mistakenly referred to Dr. Veeragandham’s Mental Impairment
Questionnaire as Exhibit “17F” (Tr. 87) when in fact the Questionnaire appears
at Exhibit 24F (see Tr. 819-23). Further, the ALJ included a limitation in Hypo
3 that, for two-thirds of the work day, the individual could not “accept
instructions and respond appropriately to criticism from supervisors” (Tr. 87),
whereas Dr. Veeragandham instead found marked limitation (meaning more than two-
thirds of the work day) in Plaintiff’s ability to “[g]et along with coworkers or
peers without distracting them” (Tr. 822). The two functional social abilities
appear next to one another on the Questionnaire (see id.) and thus the ALJ likely
mis-attributed Dr. Veeragandham’s marked limitation in getting along with others
to the ability to deal with instructions/criticism.
37
6. Discussion of Mental Health Evidence
Plaintiff additionally posits that “[t]he ALJ erred in not
fully developing the record for [Plaintiff]’s mental health
impairments.” (Docket Entry 13 at 10 (bold font and single-spacing
omitted).) In that regard, Plaintiff asserts that the “ALJ’s view
of [Plaintiff]’s concentration, socialization, and adaptation are
contradictory to [Plaintiff]’s homelessness in which [sic] she
suffered from again, just months after the hearing,” and that she
“showed marked difficulties in that her professors asked her to
take a break from school due to her mental status.” (Id. at 11.)
Plaintiff further notes that, “[a]lthough [she] stated in the
hearing testimony that she was no longer in school, []the ALJ []
repeatedly stated in the hearing decision that [Plaintiff] showed
improvement by attending classes.” (Id.) Plaintiff also points to
“several other incidences where [the] ALJ [] took [Plaintiff]’s
statements out of context, inferred his opinion of the evidence in
the record and ignored hearing testimony.” (Id. (citing Tr. 511,
517, 660, 662, 819-23, 824-28, 846).) Plaintiff’s arguments falter
for three reasons.
First, the record does not establish that Plaintiff suffered
from “homelessness” during the relevant period. (See Tr. 76
(reflecting Plaintiff’s testimony that she moved into a new
apartment with her daughter in October 2015), 374 (recording that,
after eviction in June 2014, Plaintiff began residing in an
38
apartment with her sister), 660 (indicating that Plaintiff moved
with her brother out of her sister’s house in October 2014), 662
(documenting that Plaintiff resided with her sister in September
2014), 836 (showing that, due to power cut-off at her apartment,
Plaintiff moved into a friend’s home in January 2016), 840
(referencing Plaintiff’s residence in a subsidized apartment in
November 2015), 842 (containing Plaintiff’s report that she lived
with a friend’s mother in October 2015), 844 (reporting Plaintiff’s
search for an apartment in September 2015). That evidence shows,
at most, that Plaintiff experienced housing instability during the
relevant period, rather than “homelessness.”
Moreover, Plaintiff has not shown that her housing instability
caused her to suffer marked limitations in concentration,
socialization, and adaptation. To the contrary, as the Appeals
Council noted, Plaintiff “drives, prepares meals, and takes care of
her daughter; is cooperative with her medical providers and gets
along with people in all professions; has good judgment and
insight; has good attention and intact memory but is easily
distractible and has trouble falling asleep; and is studying for a
college degree” (Tr. 24).
Second, the fact that Plaintiff’s “professors asked her to
take a break from school due to her mental status” (Docket Entry 13
at 11) does not mandate a finding of marked restrictions in
concentration, socialization, and adaptation. Plaintiff’s asserted
39
inability to focus and/or concentrate on her coursework (see, e.g.,
Tr. 75, 80-81, 521) may show that Plaintiff had some limitations in
concentration and adaptation; however, as discussed above, the
Appeals Council relied upon other substantial evidence of record to
find only moderate limitations in those areas of mental
functioning, as well as socialization. (See Tr 24.) Moreover,
notwithstanding Plaintiff’s inability to fully complete her
studies, the ALJ did not err by “stat[ing] in the hearing decision
that [Plaintiff] showed improvement by attending classes” (Docket
Entry 13 at 11), because even the desire to enroll in collegiate
classes, the ability to apply for and gain acceptance to such
classes, and the successful completion of at least one year of
collegiate coursework (see Tr. 505) supplies evidence that
Plaintiff’s mental impairments did not cause marked limitations in
concentration, socialization, and adaptation.
Third, although Plaintiff refers generally to “several other
incidences where [the] ALJ [] took [Plaintiff]’s statements out of
context, inferred his opinion of the evidence in the record and
ignored hearing testimony,” she provides no explanation of which of
her statements the ALJ “took out of context,” which evidence the
ALJ made inferences about, and which hearing testimony the ALJ
ignored. (Docket Entry 13 at 11 (citing Tr. 511, 517, 660, 662,
819-23, 824-28, 846).) Even given the liberal construction due pro
se pleadings, see Haines v. Kerner, 404 U.S. 519, 520 (1972),
40
Plaintiff’s conclusory assertion fails to point the Court to a
specific error by the ALJ.
For these reasons, Plaintiff’s challenge to the ALJ’s
evaluation of the mental health evidence fails.
7. Analysis of Plaintiff’s Subjective Symptom Reporting
Lastly, Plaintiff contends that “[t]he ALJ questioned
[Plaintiff]’s credibility in regards to the symptoms of her
impairments and disregarded relevant evidence.” (Docket Entry 13
at 11 (bold font and single-spacing omitted).) According to
Plaintiff, she “submitted evidence that shows she was reprimanded
for and ultimately fired for taking time out of work to go to
appointments” (id.), but that “the ALJ stated that there was no
support for a finding that multiple days per month would be missed
from work” (id. at 12 (referencing Tr. 47)). Additionally,
Plaintiff points out that the ALJ “overlooked” Plaintiff’s “hearing
testimony that knee injections did not completely relieve her
pain[, ] that pain medications were only somewhat effective on her
pain level[, and] that she was in need of knee replacements.”
(Id.)
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;
41
see also 20 C.F.R. § 404.1529.13 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
13 Applicable to ALJ decisions on or after March 28, 2016, the SSA
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.” SSR 16-3p, 2017 WL 5180304, 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 *1 n.1. The ALJ’s decision in this case postdates the effective
date of SSR 16-3p (see Tr. 51) and, thus, this Recommendation will apply SSR
16-3p to Plaintiff’s argument regarding the ALJ’s subjective symptom evaluation.
42
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).
43
When evaluating a claimant’s subjective complaints about
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.).
Here, the ALJ expressly discussed Plaintiff’s testimony that
“she experiences back pain all day every day” (Tr. 45; see also Tr.
68), “that she has back spasms and that her back pain radiates into
her legs” (Tr. 45; see also Tr. 68-69), “that she has to lie down
to relieve pain” (Tr. 45; see also Tr. 374), “that she has
arthritis in both of her knees[,] and that she is in constant pain,
with the left worse than the right” (Tr. 45; see also Tr. 69), as
well as that she can sit, stand, and walk for less than five
minutes and lift no more than a magazine (Tr. 45: see also Tr. 71-
73). However, as discussed above, the ALJ found Plaintiff’s
statements not fully consistent with the record evidence. (See Tr.
44.)
Plaintiff submitted a written warning she received on May 27,
2014, from her last employer for violations of the employer’s
attendance policies (see Tr. 428-29), which she contends
contradicts the ALJ’s finding that the record did not support the
opinions of Dr. Veeragandham and Counselor Russian that Plaintiff’s
44
mental impairments would cause her to miss multiple days of work
per month (see Docket Entry 13 at 11-12 (referencing Tr. 47, 823,
828); see also Tr. 64-65 (reflecting Plaintiff’s testimony that her
most recent employer terminated Plaintiff’s employment because she
attended one to two doctor’s appointments per week)). However, the
warning actually reflects that the employer reprimanded Plaintiff
for calling out ten minutes before her shift start time and for
failing to use the employer’s 24-hour call-in line, as well as that
Plaintiff missed work on two occasions for unidentified reasons
and, on three other occasions, missed work for reasons other than
medical appointments or illness, i.e., oversleeping and attending
court. (See Tr. 428.) In total, the warning reflects that
Plaintiff attended five appointments over an approximately six-week
period from April 14, 2014, to May 27, 2014 (and missed only
partial days on each occasion), a rate of less than one appointment
per week. Moreover, Plaintiff conflates missing time from work for
medical appointments and missing entire days of work because her
mental symptoms render her unable to perform her job duties. Dr.
Veeragandham and Counselor Russian did not opine that Plaintiff
would miss work because of medical appointments but rather because
her mental symptoms would cause her to miss work. The ALJ found
that the record lacked support for those opinions in light of the
Plaintiff’s re-enrollment in classes in February 2016, recent move
45
into a new apartment, and continuing ability to care for her minor
child. (See Tr. 47.)
Finally, contrary to Plaintiff’s contentions, the ALJ did not
“overlook[]” Plaintiff’s “hearing testimony that knee injections
did not completely relieve her pain[, ] that pain medications were
only somewhat effective on her pain level[, and] that she was in
need of knee replacements” (Docket Entry 13 at 12). The ALJ noted
that Plaintiff’s knee “injections [we]re helpful in relieving the
pain” (Tr. 45 (emphasis added)) and that “the treatment for
[Plaintiff’s] knees provided relief” (Tr. 46 (emphasis added)), but
did not find that those treatments totally or completely alleviated
Plaintiff’s pain. Indeed, the ALJ acknowledged that, despite
Plaintiff’s “treatment for chronic pain, including opioids and
injections, . . . she experienced pain such that she was neither
able to lift more than 10 pounds occasionally, nor walk and stand
without limitation.” (Id. (emphasis added).) Furthermore, the
record contains only Plaintiff’s statements that she needs knee
replacements (see Tr. 71; see also Tr. 744, 776, 778 (reflecting
Plaintiff’s reports that orthopedist advised that obesity precluded
knee replacements)), and lacks any recommendations or opinions from
medical providers that Plaintiff’s knee impairment warranted
replacements.
Accordingly, Plaintiff’s final assignment of error entitles
her to no relief.
46
III. CONCLUSION
Plaintiff has not established errors warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s motion entitled
“Plaintiff Reply Brief in Support of Motion for Summary Judgment”
(Docket Entry 13) be denied, that Defendant’s Motion for Judgment
on the Pleadings (Docket Entry 14) be granted, and that this action
be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 27, 2020
47