THORPE v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DARRYL D. THORPE, )

Plaintiff,

v. 1:19CV893

ANDREW SAUL,

Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Darryl D. Thorpe (‘Plaintiff’) brought this action pursuant to Section 205(g)

of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial

review of a final decision of the Commissioner of Social Security denying his claim for

Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed ctoss-

motions for judgment, and the administrative record has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed his application for DIB on May 26, 2010, alleging a disability

onset date of June 14, 2008. (Tr. at 136, 350-58.)! His claim was denied initially (Tr. at 119-

20, 175-77), and that determination was upheld on reconsideration (Tr. at 121-32, 180-81).

Thereafter, Plaintiff requested an administrative heating de novo before an Administrative

Law Judge (“ALJ”). (Tr. at 182-83.) Plaintiff and an impartial vocational expert testified at

* Transcript citations refer to the Administrative Record [Doc. #7].

the subsequent video hearing, at which Plaintiff appeared pro se on November 29, 2012. □□□□

at 136.) Following the hearing, ALJ concluded that Plaintiff was not disabled within the

meaning of the Act. (Ir. at 145.) However, on June 19, 2014, the Appeals Council remanded

the case for a new hearing. (Ir. at 150-52.) Accordingly, Plaintiff, still appearing pro se, testified

at a second administrative heating on May 27, 2015. (Tr. at 156.) Following this heating, the

ALJ again concluded that Plaintiff was not disabled. (Tr. at 166.) On June 26, 2015, the

Appeals Council remanded the case for a second time, noting that the second AL] applied the

wrong date last insured (“DLI”) and failed to adjudicate Plaintiffs claims for the entite petiod

at issue. (Ir. at 173.)

Plaintiff, represented by an attorney, appeared and testified at a third administrative

hearing on April 17, 2018. (Tr. at 18.) The third AL], applying the correct DLI of September

30, 2015, determined that Plaintiff was not disabled within the meaning of the Act. (Tr. at

28.) On June 28, 2019, the Appeals Council denied Plaintiffs request for review, thereby

making the ALJ’s conclusion the Commissionet’s final decision for putposes of judicial review.

(I'r. at 1-6.)

Il LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the 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 if they ate supported by substantial evidence and were reached through application of the

cotrect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) Gnternal

quotation 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 mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) Gnternal citations and quotation marks omitted). “Tf there is

evidence to justify a refusal to direct a verdict were the case before a juty, then there is

substantial evidence.” Hunter, 993 F.2d at 34 Gnternal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL}].” 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before

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

AL]’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “‘inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impaitment which can be

expected to tesult in death or which has lasted or can be expected to last for a continuous

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C-F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked duting the alleged period

of disability; (2) had a severe impaitment; (3) had an impairment that met ot equaled the

requitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation 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 carties his or her butden at the first two steps, and if

the claimant’s impairment meets or equals a “listed impaitment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “[ijfa claimant’s impaitment is not sufficiently severe to equal or

exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional

2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI), established by Title I] of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSD), established by ‘Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq,, provides benefits to

indigent disabled persons. The statutory definitions and the regulations promuleated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

capacity (RFC’).” Id. at 179.3 Step four then requires the AL] 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, which “requites the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, 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 Government cannot catty its

“evidentiaty 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.

Ill. DISCUSSION

In the present case, the AL] found that Plaintiff had engaged in “substantial gainful

activity” during the period from his alleged onset date of June 14, 2008 through his DLI of

September 30, 2015. Specifically, Plaintiff had returned to his former work as an electtical

helper from September 16, 2013 to May 1, 2014, at SGA levels for the fourth quarter of 2013

and the first quarter of 2014. (Tr. at 20, 472.) However, the AL] further determined that

3 “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 requite 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

houts 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 (¢.2., pain).”

Hines, 453 F.3d at 562-63.

Plaintiff had at least twelve consecutive months of no work and that Plaintiff therefore met

his burden at step one of the sequential evaluation process. (Tr. at 20-21.) At step two, the

ALJ further determined that Plaintiff suffered from the following severe impairments:

degenerative disc disease of the lumbar spine; degenerative disc disease of the

cervical spine, status post fusion in the remote past; and left eye blindness[.]

(Tt. at 21.) The ALJ next found at step three that none of Plaintiffs impairments, individually

ot in combination, met or equaled a disability listing. (Tr. at 21.) Therefore, the ALJ assessed

PlaintifPs RFC and determined that, through his DLI, Plaintiff had the RFC to perform light

work with the following, additional limitations:

[Plaintiff] can stand and walk for six hours out of an eight-hour workday. He

can sit for six hours out of an eight-hour workday. He can occasionally balance,

stoop, crouch, kneel, crawl and climb ramps and stairs. He cannot climb

ladders, ropes, or scaffolds. He can frequently reach overhead bilaterally. He

should avoid even moderate exposure to hazards such as unprotected heights.

He should not do work that requires exceptional depth perception or stereopsis.

(Tr. at 21.) Based on this determination and the testimony of a vocational expert, the ALJ

determined at step four of the analysis that Plaintiff was unable to perform any of his past

relevant work. (Ir. at 26.) However, at step five, the AL] found that, given Plaintiffs age,

education, work experience, and RFC, he could perform other jobs available in the national

economy. (It. at 27-28.) Therefore, the AL] concluded that Plaintiff was not disabled under

the Act. (Tr. at 28.)

Plaintiff now contends that substantial evidence fails to support the ALJ’s RFC

assessment “for the period of May, 2014 through his date last insured.” (Pl’s Br. [Doc. #13]

at 1.) Specifically, Plaintiff argues that the AL] failed to properly consider “subjective

complaints of pain as a basis for disability during that period .... despite his pain complaints

being supported by medical evidence.” (PI.’s Br. at 1, 9.) Plaintiff does not challenge the

ALJ’s decision for the period through May 1, 2014, in light of his return to his past work for

over seven months in 2013-2014, but Plaintiff nevertheless contends that the ALJ failed to

ptoperly consider his pain after May 1, 2014 through his DLI on September 30, 2015.

Under the applicable regulations, the ALJ’s decision must “contain specific reasons for

the weight given to the individual’s symptoms, [such as pain,] be consistent with and suppotted

by the evidence, and be clearly articulated so the individual and any subsequent reviewer can

assess how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling 16-

3p, Titles I] and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL

5180304 (Oct. 25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. ‘The AL] should not

reject a claimant’s statements “about the intensity and persistence of [his] pain or other

symptoms or about the effect [his] symptoms have on [his] ability to work solely because the

available objective medical evidence does not substantiate [his] statements.” 20 C.F-.R.

§ 404.1529(c)(2). Thus, “subjective evidence of pain intensity cannot be discounted solely

based on objective medical findings.” Lewis v. Bertyhill, 858 F.3d 858, 866 (4th Cir. 2017);

see also Arakas v. Commissioner, 983 F.3d 83, 96-97 (4th Cir. 2020). However, it is also

undisputed that a plaintiffs “symptoms, including pain, will be determined to diminish [his]

capacity for basic work activities [only] to the extent that [his] alleged functional limitations

and testrictions due to symptoms, such as pain, can reasonably be accepted as consistent with

the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). Thus,

objective medical evidence and other evidence in the tecord ate “crucial to evaluating the

intensity and persistence of a claimant’s pain and the extent to which it impairs [the] ability to

work” and “[ajlthough a claimant’s allegations about... pain may not be discredited solely

because they ate not substantiated by objective evidence of the pain itself or its severity, they

need not be accepted to the extent they are inconsistent with the available evidence, including

objective evidence of the underlying tmpairment, and the extent to which that impairment can

reasonably be expected to cause the pain the claimant alleges [ ]he suffers.” Hines, 453 F.3d

at 565 n.3 (quoting Craig, 76 F.3d at 595); see also SSR 16-3p (“[O]bjective medical evidence

is a useful indicator to help make reasonable conclusions about the intensity and persistence

of symptoms, including the effects those symptoms may have on the ability to perform work-

related activities ... .””). According to the regulatory guidance:

If an individual’s statements about the intensity, persistence, and limiting effects

of symptoms are consistent with the objective medical evidence and the other

evidence of record, we will determine that the individual’s symptoms are more

likely to reduce his or her capacities to perform work-related activities... In

contrast, if an individual’s statements about the intensity, persistence, and

limiting effects of symptoms ate inconsistent with the objective medical

evidence and the other evidence, we will determine that the individual’s

symptoms ate less likely to reduce his or her capacities to perform work-related

activities. ...

SSR 16-3p.

In the present case, a thorough review of the AL]’s decision and the record as a whole

reveals that the ALJ properly considered the medical evidence and other evidence of Plaintiffs

impairments and limitations and explained that determination in the decision. Rather than

explaining what, if any, additional functional limitations are required based on these records,

Plaintiff simply asserts that evidence supports a finding of total disability under the Act.

However, as Defendant correctly notes, whether the ALJ could have reached a different

conclusion based on the evidence is irrelevant. The sole issue before the Court is whether

substantial evidence supports the ALJ’s decision. See Blalock v. Richardson, 483 F.2d 773,

775 (4th Cir. 1972) (“[IJhe language of § 205(g) precludes a de novo judicial proceeding and

requires that the court uphold the Sectetary’s decision even should the court disagtee with

such decision as long as it is supported by ‘substantial evidence.”’).

Here, the ALJ reviewed the medical evidence, the opinion evidence, Plaintiffs

testimony, and the record, and explained his analysis of Plaintiffs subjective complaints:

[This ALJ] has considered the claimant’s subjective complaints with regard to

pain, precipitating and ageravating factors, medications and other treatment,

and any functional restrictions and claimant’s daily activities (20 CFR 404.1529).

The claimant’s statements concerning his impaitments and their impact on his

ability to work are not entitely supported in light of the degtee of medical

treatment requited, discrepancies between the claimant’s assertions and

information contained in the documentary reports, the medical history, the

findings made on examination, the claimant’s assertions concerning his ability

to work, and the reports of the reviewing, treating and examining physicians.

The central issue is not whether the claimant has back and neck pain ot left eye

blindness, but whether the symptoms were so severe as to be disabling before

the DLI. In the present case, it is emphasized that the claimant testified that his

left eye blindness did not preclude him from working in the past. Moreover, the

claimant reported doing electrical work at the SGA level in 2013 and 2014 and

even having the ability to carry a 500-pound spool of wire despite alleging

disabling back pain since 2008. In addition, the claimant received little to no

regular treatment for his back between December 2011 and Match 2014.

The above factors detract from the consistency of the claimant’s allegations

concerning the severity of his symptoms. The foregoing evidence does indicate

that the claimant had some abnormalities that were likely to impose some

functional limitations. However, the undersigned concludes that these findings

were not indicative of any intractable condition that would have precluded the

claimant from performing a reduced range of light work activity for 12

consecutive months prior to the expiration of his date last insured. The claimant

has a treatment history that fails to demonstrate a condition of the degree of

severity alleged.

(Tr. at 25-26.) The AL] thus included an extended analysis and specific reasoning regarding

the evaluation of Plaintiff's symptoms, including the minimal treatment record over the seven

years at issue, the relatively benign findings on examinations, Plaintiffs ability to return to his

ptior work in 2013 and 2014, and the inconsistency with Platntiff continuing to claim total

disability since 2008 even while able to return to his prior work, including apparent heavy

lifting.

In challenging this determination, Plaintiff's main assertion appears to be that his back

pain worsened after an April 2014 injury, that the AL] mischaracterized the medical evidence

of Plaintiffs worsening back condition as “scant,” and that his consistent reports of increased

back pain, along with occasional positive straight leg raise results and findings on a February

2015 CT’ Urogtam, are enough to mandate remand. (Pl.’s Br. at 10-13) (citing ‘T’r. at 23).

However, it is undisputed that Plaintiff claims to have been disabled since 2008, but he did

not have any medical treatment from December 2011 to March 2014, and it is this lack of

treatment for over two years that the AL] specifically referred to as a “scant amount of

treatment.” (Tr. at 23.) In addition, it is undisputed that Plaintiff returned to his prior work

from September 2013 to May 2014, which the ALJ found “undermines [Plaintiffs] allegations

that he has been totally disabled since the June 2008 alleged onset date.” (T'r. at 20-21.)

Moreover, with respect to the medical records and imaging after May 2014, the ALJ

considered those medical records at length. As the AL]’s decision reflects, Plaintiff continued

working for “two months after allegedly injuring his back” (Tr. at 20), and he waited four

weeks after his April 2014 back injury to seek any medical treatment. (Tr. at 23.) Ata visit in

May 2014, Plaintiff reported the gradual onset of leg numbness since his accident, but his

clinical findings were benign and lumbar x-ray results showed no compression fractures and

with osteophytosis and slight narrowing of the disc space at L5-S1, mirroring Plaintiffs prior

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2010 MRI reflecting degenerative disc disease, most severe at L5-S1. (Tr. at 23-24, 1060, 1066,

1069-70, 566.) As noted above, and as the AL] discussed at length, Plaintiff was able to return

to his prior work as an electrician’s helper in 2013 and early 2014 despite the degenerative disc

disease teflected in the 2010 MRI. (Tr. at 20-21, 23-24, 25-26, 566.)

In addition, as noted by the ALJ, Plaintiff was instructed in May 2014 to follow up and

obtain an updated MRI, yet he failed to do so. (Tr. at 23-24, 1061.) Instead, Plaintiff did not

seek cate for another seven months, until December 2014, when he had an office visit at a

community health center and complained of worsening back pain and numbness in his feet

that he attributed to playing football in 1985. (Tr. at 795-96.) The AL] noted that the

treatment record for that visit reflects normal sensation on exam, and Plaintiff was referred

for a “lumbar spine x-ray as well as an electromyography and nerve conduction study. . . .

Again, however, there is no evidence the clatmant followed up with these instructions.” (Tr.

at 24, 795-98.)

Two months later, in February 2015, Plaintiff presented with severe left flank pain and

was diagnosed with kidney stones. (Tr. at 24, 1042-49.) In the course of his diagnosis, Plaintiff

underwent a CT Urogtam, which, along with utological findings, included imaging of his

lumbar spine. The documented impressions from this testing included “long-standing disc

disease at multiple levels including the lower thoracic region, L4-5 and L5-S1 where the most

severe disc disease is present.” (Tr. at 1030.) A “vacuum phenomenon” was also noted at L5-

S1. (Tr. at 1030.) Plaintiff now contends, without explanation, that the presence of a vacuum

phenomenon means that Plaintiff was disabled for the period from April 2014 to September

2015. (Pl’s Br. at 12.) However, nothing in the treatment record reflects any such concern

11

by Plaintiff's treating physicians or by the providers reviewing the imaging, and there is no

indication of concern or similar findings in Plaintiffs later treatment tecords even after

September 2015.4

Plaintiff's second heating was a few months later, on May 25, 2015, and at the hearing

Plaintiff acknowledged that he took no medications, other than occasional Advil, to control

his back pain. (Ir. at 79.) He also specifically acknowledged the dearth of recent medical

recotds supportive of his subjective complaints. (Tr. at 82.) On June 11, 2015, two weeks

after Plaintiff's second hearing and more than six months since his last treatment for back pain

in December 2014, Plaintiff again sought treatment for low back pain. That treatment reflects

that Plaintiff reported leg weakness, pain, and loss of function with “heavy lifting.” (Tr. at

741.) Plaintiff testified that he had been “on a bridge working, and [he] slipped and fell.” (Tr.

at 22, 113.) As recounted in the ALJ’s decision, “[t]he physical examination showed him to

have spinal tenderness in the lumbosacral atea, bilateral sacroiliac joint tenderness, and full

tange of motion of the hips with pain. [Plaintiff] also had 4/5 strength of the lower extremities

and positive straight leg raising bilaterally. He was diagnosed with lumbosacral radiculopathy

and recommended to follow up with a primary care physician.” (Tr. at 24) (citing Tr. at 740-

43).

* Plaintiff also contends that this imaging is consistent with Plaintiffs prior 2010 MRI, but the ALJ considered

that 2010 MRI, and Plaintiff does not challenge the ALJ’s analysis for the period prior to May 2014. In any

event, as discussed above, the AL]’s analysis did not rely on a lack of objective evidence or imaging but rather

on the nature of the treatment reflected in the record and the medical history, the findings made on

examinations, reports of reviewing, treating, and examining physicians, and discrepancies between Plaintiffs

claims and other evidence including his activities and his return to his prior work,

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In September 2015, just before his DLI, Plaintiff presented to yet another new

provider. Plaintiff exhibited low back tenderness and subjectively reported leg numbness and

that he was “not able to lift or bend.” (Tr. at 24) (citing Tr. at 747-48). The provider ordered

new x-tays of Plaintiffs lumbat and cetvical spine. (Ir. at 748.) Plaintiff was advised to

“follow proper lifting and walking techniques,” to exercise regularly, and to change positions

frequently. (Ir. at 756.)

“Even after this date,” as the ALJ noted, “the evidence does not support the existence

of significant[ly] worsening back or neck pain. For example, in November 2015, .. . [a]

physical examination showed tenderness to palpation along the low back, limited range of

motion of the spine, and bilateral positive straight leg raise.” (Ir. at 24) (citing Tr. at 789-94).

“In April 2016, however, the claimant once again exhibited normal range of motion of the

spine, ... normal range of motion of the lower extremities, and normal strength and tone of

the bilateral upper and lower extremities.” (T'r. at 24) (citing Tr. at 808-09). He was advised

to avoid “heavy lifting” but otherwise to “[m]aintain notmal activities” and exercise 30 minutes

5 times a week. (Tr. at 809.)

Throughout his hearings, Plaintiff asserted that he could no longer perform the heavy

lifting required in the course of his previous work (Tr. at 43-44, 72-73, 112), and the ALJ

agreed with this contention at step four of her analysis (Tr. at 26) (finding that Plaintiff could

not perform his past medium and heavy exertional work). Plaintiff now contends that

° At that visit in November 2015, Plaintiff reported that he couldn’t tun ot lift weights “like [he] used to.” (Tr.

at 790.) Similarly, at a visit a few weeks later, Plaintiff noted that he “can’t lift any heavy objects” due to pain,

al that his pain is aggravated by “[hleavy lifting.” (Ir. at 783.) He was again teferted for an MRI. (Tr. at

13

increased pain from April 2014 forward also made it “impossible for him to perform work in

the light work category.” (PI.’s Br. at 14.) As documented in the ALJ’s decision, Plaintiff

clearly experienced pain and radicular symptoms from his lumbar degenerative disc disease.

However, the record contains little to no evidence of limitations precluding him performing

the limited range of light work identified by the ALJ.° Moreover, the ALJ was entitled to tely

on Plaintiffs sporadic and very consetvative treatment history in discounting his reports of

debilitating pain and leg numbness during the time period at issue. See Seacrist v. Weinberger,

538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the responsibility of the Secretary

and not the courts to teconcile inconsistencies in the medical evidence, and that it is the

claimant who beats the tisk of nonpersuasion.”).

In sum, based on the evidence before het, which included not only Plaintiffs pain

complaints, but also a sparse and largely conservative treatment history during the time period

at issue, the ALJ concluded that Plaintiff remained capable of a limited range of light work

through September 30, 2015.’ After a thorough review of the record, the Court finds no basis

to disturb this conclusion. Plaintiff essentially asks the Court to reconsider and re-weigh the

evidence presented. However, it is not the function of this Court to te-weigh the evidence or

reconsider the AL]’s determinations if they ate supported by substantial evidence. As noted

® Although Plaintiff further testified both in 2015 and 2018 that he used a cane due to his back pain and leg

numbness, even if such a limitation were included, the vocational testimony indicated that cane use would not

preclude the jobs identified at step five of the sequential analysis, including the mail clerk position set out by

the AL] as a representative occupation. (Tr. at 81-82, 102-03, 109-10.)

Plaintiff eventually had an updated lumbar MRI in Februaty 2018, overt two years after the end of the relevant

period, reflecting multi-level degenerative disc disease with L4-L5 and L5-S1 disc bulge and with severe

neutroforaminal narrowing (Tr. at 915-16), but this is similar to the 2010 MRI which reflected degenerative disc

disease most pronounced at L5-S1. (Tt. at 565-66.) In any event, there is no indication of what may have

changed in the 29 months between the end of the relevant period in September 2015 and the MRI in February

2018, nor is there any evidence of additional limitations beyond those included in the RFC.

14

above, “[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant

is disabled, the responsibility for that decision falls on the [AL].” Hancock, 667 F.3d at 472

(quotation omitted). Thus, the issue before the Court is not whether a different fact-finder

could have drawn a different conclusion, or even “whether [Plaintiff] is disabled,” but rather,

“whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence

and was reached based upon a correct application of the relevant law.” Craig, 76 F.3d at 589.

Here, the AL] reviewed the evidence, explained her decision, explained the reasons for her

determination, and that determination is supported by substantial evidence in the record.

Plaintiff has not identified any errors that require remand, and Plaintiff's Motion for Judgment

on the Pleadings should therefore be denied.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding

no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings [Doc.

#12] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #15] be

GRANTED, and that this action be DISMISSED with prejudice.

This, the day of March, 2021.

___/s/ Joi Elizabeth Peake

United States Magistrate Judge

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