“If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
How later courts described this case
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
- “‘[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.’” (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005))
- “Ultimately, it is the duty of the [ALJ] reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SONYA ODUM EMERSON, )
)
Plaintiff, )
)
v. ) 1:21CV307
)
KILOLO KIJAKAZI, )
Acting Commissioner of )
Social Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sonya Odum Emerson, brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”) to obtain
judicial review of a final decision of Defendant, the Acting
Commissioner of Social Security, denying Plaintiff’s claim for
Disability Insurance Benefits (“DIB”). (Docket Entry 1.)
Defendant has filed the certified administrative record (Docket
Entry 8 (cited herein as “Tr. __”)), and both parties have moved
for judgment (Docket Entries 11, 14; see also Docket Entry 12
(Plaintiff’s Memorandum); Docket Entry 15 (Defendant’s
Memorandum)). For the reasons that follow, the Court should enter
judgment for Defendant.
1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I. PROCEDURAL HISTORY
Plaintiff applied for DIB (Tr. 245-56), alleging a disability
onset date of September 19, 2018 (see Tr. 245, 250). Upon denial
of that application initially (Tr. 110-25, 147-51) and on
reconsideration (Tr. 126-46, 155-63), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 164-65).
Plaintiff, her attorney, and a vocational expert (“VE”) attended
the hearing. (Tr. 81-109.) The ALJ subsequently ruled that
Plaintiff did not qualify as disabled under the Act. (Tr. 56-71.)
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-7, 240-44, 363-68), thereby making the ALJ’s ruling
the Commissioner’s final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2024.
2. [Plaintiff] has not engaged in substantial gainful
activity since September 19, 2018, the alleged onset
date.
. . .
3. [Plaintiff] has the following severe impairments:
degenerative disc disease, degenerative joint disease of
the bilateral shoulders, chronic obstructive pulmonary
disease, asthma, obesity, attention deficit hyperactivity
disorder, depressive disorder, [and] anxiety disorder.
. . .
4. [Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
2
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5. . . . [Plaintiff] has the residual functional
capacity to perform light work . . . except lifting 20
pounds occasionally and 10 pounds frequently; sitting for
6 hours, standing for 6[]hours, walking for 6 hours[,
and] push[ing] or pull[ing] as much as [she] can lift or
carry; frequently reaching overhead to the left, and
frequently reaching overhead to the right; climbing ramps
and stairs frequently, never climbing ladders, ropes, or
scaffolds, stoop frequently, kneel frequently, crouch
frequently, crawl frequently; occasional exposure to
dust, odors, fumes and pulmonary irritants. [Plaintiff]
may perform simple, routine and repetitive tasks but not
at a production rate pace, perform simple work-related
decisions, [and] interact with supervisors, coworkers,
and the public frequently.
. . .
6. [Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff]’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from September 19, 2018,
through the date of this decision.
(Tr. 61-71 (bold font and internal parenthetical citations
omitted).)
3
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 shown entitlement to relief under the extremely
limited review standard.
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks omitted). “Substantial evidence means ‘such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (internal citations and quotation marks
omitted). “If there is evidence to justify a refusal to direct a
4
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 reviewing court], therefore, is
not whether [the claimant] is disabled, but whether the ALJ’s
finding that [the claimant] is not disabled is supported by
substantial evidence and was reached based upon a correct
application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
5
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. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps: “The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3 A finding adverse to the claimant at any of
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).
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).
6
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 residual functional capacity
(‘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 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
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.
7
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 argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he Functional Capacity Evaluation (‘FCE’) performed on
August 7, 2020 is new and material evidence that necessitates
remand for further consideration of the RFC and vocational
testimony” (Docket Entry 12 at 5 (bold font and single-spacing
omitted)); and
2) “[t]he ALJ’s failure to properly evaluate [Plaintiff]’s
pain and other symptoms is harmful error that prevented the ALJ
from properly account [sic] for their impact on [Plaintiff]’s RFC”
(id. at 13 (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.”).
8
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (Docket Entry 15 at 10-22.)
1. Evidence Submitted to Appeals Council
Plaintiff’s first assignment of error maintains that “[t]he
[FCE] performed on August 7, 2020 is new and material evidence that
necessitates remand for further consideration of the RFC and
vocational testimony.” (Docket Entry 12 at 5 (bold font and
single-spacing omitted).) More specifically, Plaintiff notes that
she submitted the FCE to the Appeals Council (see id. (referencing
Tr. 10-12)), but that the Appeals Council “concluded that ‘[the
FCE] d[id] not show a reasonable probability that it would change
the outcome of the [ALJ’s] decision’” (id. (quoting Tr. 2)).
Plaintiff further points out that “the valid conclusions of the FCE
revealed a restriction to the sedentary exertional range along with
additional postural and manipulative limitations” and “would
support the addition of an RFC limitation that would all [sic] her
to alternate between sitting and standing frequently throughout the
workday.” (Id. at 6.) According to Plaintiff, new evidence
submitted to the Appeals Council “(1) must be ‘relevant to the
determination of disability at the time the application was first
filed and not merely cumulative’ and (2) material to the extent
that the [Commissioner]’s decision ‘might reasonably have been
different’ had the new evidence been before her.’” (Id. (quoting
Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985)).) Plaintiff
9
additionally concedes that she must make “a showing of ‘good cause
for [her] failure to submit the evidence when the claim was before
the [Commissioner,]’” and that she “‘must present to the [ Court]
at least a general showing of the nature of the new evidence.’”
(Id. (quoting Borders, 777 F.2d at 955) (internal quotation marks
omitted) .) In Plaintiff’s view, “[t]he FCE satisfies all four of
the requirements necessary to establish that it is new and material
evidence.” (Id.)
As an initial matter, Plaintiff’s reliance on Borders misses
the mark, as that case predated the passage of regulations
governing the Appeals Council’s consideration of new evidence in
1987. See 20 C.F.R. § 404.970 (providing that, “[ilf new and
material evidence is submitted, the Appeals Council shall consider
the additional evidence only where it relates to the period on or
before the date of the [ALJ’s] hearing decision”) (version
effective from Feb. 9, 1987 until Jan. 16, 2017)). The SSA has
since amended that regulation twice, and the latest version,
effective December 16, 2020, provides as follows:
(a) The Appeals Council will review a case .. . if-
(5) Subject to paragraph (b) of this section, the Appeals
Council receives additional evidence that is new,
material, and relates to the period on or before the date
of the hearing decision, and there is a reasonable
probability that the additional evidence would change the
outcome of the decision.
10
(b) The Appeals Council will only consider additional
evidence under paragraph (a)(5) of [ S]ection [404.970]
if [the claimant] show[s] good cause for not informing
[the SSA] about or submitting the evidence [no later than
five business days before the date of the scheduled ALJ
hearing] as described in § 404.935 because:
(1) [The SSA’s] action misled [the claimant];
(2) [The claimant] had a physical, mental,
educational, or linguistic limitation(s) that
prevented [him or her] from informing [the
SSA] about or submitting the evidence earlier;
or
(3) Some other unusual, unexpected, or
unavoidable circumstance beyond [the
claimant’s] control prevented [him or her]
from informing [the SSA] about or submitting
the evidence earlier. Examples include, but
are not limited to:
(i) [The claimant] w[as] seriously
ill, and [his or her] illness
prevented [him or her] from
contacting [the SSA] in person, in
writing, or through a friend,
relative, or other person;
(ii) There was a death or serious
illness in [the claimant’s]
immediate family;
(iii) Important records were
destroyed or damaged by fire or
other accidental cause;
(iv) [The claimant] actively and
diligently sought evidence from a
source and the evidence was not
received or was received less than 5
business days prior to the hearing;
or
(v) [The claimant] received a
hearing level decision on the record
11
and the Appeals Council reviewed
[that] decision.
20 C.F.R. § 404.970 (2020) (emphasis added) .°® Thus, the new
regulation adds two requirements to a claimant’s burden to have new
evidence considered by the Appeals Council in connection with a
request for review: a claimant must show (1) good cause for the
failure to submit the evidence in question at least five business
days prior to the date of the ALJ’s hearing pursuant to 20 C.F.R.
§ 404.935, and (2) a reasonable probability of a different
outcome.’
The Commissioner defends the Appeals Council’s refusal to
consider the FCE on three grounds. First, the Commissioner
° Evidence submitted to the Appeals Council is:
° “new if it is not part of the [administrative record] as of
the date of the [ALJ’s] decision”;
e “material if it is relevant, i.e., involves or is directly
related to issues adjudicated by the ALJ”; and
° ‘“relate[d] to the period on or before the date of the hearing
decision if the evidence is dated on or before the date of the
hearing decision, or .. . post-dates the hearing decision but
is reasonably related to the time period adjudicated in the
hearing decision.”
Hearings, Appeals, and Litigation Law Manual (“HALLEX”), § I-3-3-6B.2
(“Additional Evidence”) (May 1, 2017), available at https://www.ssa.gov/
OP_home/hallex/I-03/I-3-3-6.html.
7 Long-standing Fourth Circuit law defined “material” as a reasonable
possibility the new evidence would have changed the outcome of the case. see
Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); Wilkins v. Secretary, Dep’t
of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Thus, the new version
of Section 404.970 increases a claimant’s burden from showing a reasonable
possibility to a reasonable probability, and makes the obligation to show a
reasonable probability of a different outcome an additional requirement to
showing materiality.
12
contends that the FCE, although dated after the ALJ’s decision,
does not qualify as “new,” because “Plaintiff was represented by
counsel and had every opportunity to obtain such documentation
during the relevant period and prior to her administrative
hearing.” (Docket Entry 15 a 13 (emphasis supplied by
Commissioner) (citing Fagg v. Chater, No. 95-2097, 106 F.3d 390
(table), 1997 WL 39146, at *2 (4th Cir. Feb. 3, 1997)
(unpublished), Evangelista v. Secretary of Health & Human Servs.,
826 F.2d 136, 140 (1st Cir. 1987), and Spencer v. Commissioner of
Soc. Sec. Admin., Civ. No. 16-1735, 2017 WL 1379605, at *11 (D.S.C.
Jan. 31, 2017) (unpublished)).) Second, the Commissioner
implicitly argues that Plaintiff has failed to make a showing of
good cause for the late submission of the FCE. (See id. at 12
(noting that Plaintiff failed to explain, either in her submission
to the Appeals Council or in her Memorandum to this Court, “why she
did not obtain the FCE before her ALJ hearing” (citing Tr. 365-
68)).) Third, the Commissioner maintains that the Court should
credit the Appeals Council’s finding “that [Plaintiff’s] late-
submitted evidence [did not] create[] ‘a reasonable probability
that it would change the outcome of the [ALJ’s] decision.’” (Id.
at 14 (quoting 20 C.F.R. 404.970(a)(5)).)
13
a. New Evidence
The Commissioner contends that the FCE, although dated after
the ALJ’s decision, does not qualify as “new,” because “[e]vidence
is ‘new’ only if it was ‘not in existence or available to the
claimant at the time of the administrative proceeding’” (Docket
Entry 15 at 13 (emphasis supplied by Commissioner) (quoting
Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990))), and “Plaintiff
was represented by counsel and had every opportunity to obtain such
documentation during the relevant period and prior to her
administrative hearing” (id. (emphasis supplied by Commissioner)
(citing Fagg, 1997 WL 39146, at *2, Evangelista, 826 F.2d at 140,
and Spencer, 2017 WL 1379605, at *11)). The SSA’s updates to the
Hearings, Appeals, and Litigation Law Manual (“HALLEX”), enacted to
assist the Appeals Council with implementation of the newer
versions of Section 404.970, belie the Commissioner’s argument.
Evidence submitted to the Appeals Council qualifies as “new if it
[wa]s not part of the [administrative record] as of the date of the
[ALJ’s] decision.” HALLEX, § I-3-3-6B.2 (“Additional Evidence”)
(May 1, 2017), available at https://www.ssa.gov/OP_home/
hallex/I-03/ I-3-3-6.html. In light of that definition, which does
not depend on the “availability” of the evidence, the FCE, created
on August 7, 2020 (see Tr. 10-12), clearly qualifies as “new.”
14
Thus, this factor would not have provided the Appeals Council with
a basis to reject the FCE.
b. Good Cause
Although the Commissioner did not expressly argue that
Plaintiff failed to show good cause for the late submission of the
FCE to the Appeals Council, she both adverted to the good cause
requirement of Section 404.970(b) (see Docket Entry 15 at 11) and
asserted that Plaintiff failed to explain, either in her filings
with the Appeals Council or in her Memorandum to this Court, “why
she did not obtain the FCE before her ALJ hearing” (id. at 12
(citing Tr. 365-68)). The Court could interpret those two
statements together as an implicit argument that Plaintiff failed
to make a showing of good cause for the late submission of the FCE.
The Appeals Council, in denying Plaintiff’s request for
review, remarked as follows:
[Plaintiff] submitted [the FCE], dated August 7, 2020 (3
pages), and records from Cone Health-Alamance Regional
Medical Center, dated July 3, 2020 through August 7, 2020
(43 pages). [The Appeals Council] find[s] this evidence
does not show a reasonable probability that it would
change the outcome of the [ALJ’s] decision. [The Appeals
Council] did not exhibit this evidence.
(Tr. 2 (emphasis added).)® Thus, the Appeals Council did not
expressly find that Plaintiff lacked good cause for failing to
Plaintiff does not argue that the remaining 43 pages of the evidence she
submitted to the Appeals Council constitute new and material evidence warranting
remand. (See Docket Entry 12 at 5-13.)
15
submit the FCE in a timely manner to the ALJ but rather found that
the FCE did not establish a reasonable probability of a different
outcome. (See id.)
Courts across the country disagree on whether a federal court
on judicial review can consider whether good cause for the late-
submitted evidence exists when the Appeals Council did not cite
lack of good cause as its basis for rejecting the evidence.
Compare, e.g., Sewell v. Commissioner, SSA, No. 20-1409, 2021 WL
3871888, at *5 (10th Cir. Aug. 31, 2021) (unpublished) (holding the
plaintiff lacked good cause for late submission even though Appeals
Council did not cite any reason for not considering new evidence),
cert. denied sub nom., Sewell v. Kijakazi, No. 21-795, 2022 WL
199400 (U.S. Jan. 24, 2022), Y.E.L. v. Kijakazi, No. 20CV4892, 2021
WL 5998442, at *3 (N.D. Cal. Dec. 20, 2021) (unpublished)
(considering whether the plaintiff had shown good cause for non-
compliance with five-day rule despite fact that “Appeals Council
did not cite lack of good cause as a reason for declining [the
plaintiff]’s additional evidence”), Zimmerman v. Commissioner of
Soc. Sec. Admin., No. CV-19-575, 2021 WL 4129448, at *18-19 (D.
Ariz. Sept. 10, 2021) (unpublished) (finding good cause lacking
notwithstanding Appeals Council’s rejection of new evidence as
chronologically irrelevant and immaterial), and Howell v. Saul, No.
2:18CV1323, 2019 WL 3416613, at *11 (D.S.C. July 10, 2019)
(unpublished) (deeming good cause wanting notwithstanding Appeals
16
Council’s reasonable probability and chronological relevance
rationales), recommendation adopted, 2019 WL 3413244 (D.S.C. July
29, 2019) (unpublished), with, e.g., Arndt v. Kijakazi, No.
4:19CV98, 2021 WL 5905646, at *6 (N.D. Ind. Dec. 14, 2021)
(unpublished) (noting that “the [Appeals] Council never stated that
it was dismissing the evidence for a lack of good cause[ and,
t]hus, the [c]Jourt will not affirm on those grounds”), Dara L. v.
Saul, No. 1:19CV104, 2021 WL 1169653, at *4 n.4 (D. Utah Mar. 26,
2021) (unpublished) (“Where the Appeals Council did not reject the
evidence for failure to establish good cause for missing the [five-
day] deadline, the court does not reach this issue.”), Rankin v.
Saul, No. 1:19CV1195, 2020 WL 702749, at *22 (D.S.C. Feb. 12, 2020)
(unpublished) (refusing to address Commissioner’s good cause
argument where Appeals Council found evidence “not new and
material”), and Emmons v. Saul, Civ. No. 19-102, 2020 WL 376708, at
*5 (D.N.M. Jan. 23, 2020) (unpublished) (declining to consider
whether the plaintiff had good cause for failing to submit
additional evidence earlier, where Appeals Council rejected
additional evidence based on lack of chronological relevance).
Here, Plaintiff made no arguments directed at establishing
good cause before the Appeals Council (see Tr. 365-68) or in her
brief to this Court (see Docket Entry 12), the Commissioner, at
least implicitly, argued lack of good cause in support of her
Motion for Judgment on the Pleadings (see Docket Entry 15 at 11-
17
12), and Plaintiff did not submit a Reply and thus did not raise
the Appeals Council’s “reasonable probability” rationale as a
barrier to the Court’s consideration of good cause. Moreover, the
Appeals Council did not expressly waive the good cause requirement
in any of its notices to Plaintiff (see Tr. 2, 8 (advising
Plaintiff that she “must show good cause for why [she] missed
informing [the SSA] about or submitting [the FCE] earlier”
(emphasis added))). See Vahey v. Saul, Civ. No. 18-350, 2019 WL
3763436, at *6 n.6 (D. Haw. Aug. 9 2019) (unpublished) (“As far as
the [c]ourt can tell, the Appeals Council did not explicitly waive
the good cause requirement as it did for some claimants after the
new [version of Section 404.970] went into effect.”}. Under such
circumstances, the Court should follow the reasoning of cases like
Sewell, Y.F.L., Zimmerman, and Howell, and assess whether Plaintiff
has shown good cause under Section 404.970 for the untimely
submission of the FCE.
Although Plaintiff does not explicitly offer any good-cause
argument to this Court (see Docket Entry 12 at 5-13), she did
assert that the FCE “was not available prior to the hearing as the
assessment was not conducted until after the hearing” (id. at 12).
The Court could construe that statement as an argument that the
fact that the FCE did not yet exist at the time of the ALJ’s
decision on June 26, 2020, qualifies as “an unavoidable
circumstance” preventing timely submission under Section
18
404.970(b)(3). Many courts, however, have rejected such an
argument. See, e.g., Frasca v. Commissioner of Soc. Sec., No. CV
20-10194, 2021 WL 4077540, at *8 (D.N.J. Sept. 8, 2021)
(unpublished) (holding that “a plaintiff must go beyond stating
that evidence is new in order to fulfill the good cause
requirement”); Marquez v. Saul, No. 1:20CV110, 2021 WL 2073510, at
*5 (D.N.M. May 24, 2021) (unpublished) (“[T]hat [the new] opinions
were dated after the ALJ’s decision . . . on [its] face [does not]
present the sort of ‘unusual, unexpected, or unavoidable
circumstance[s] beyond [the plaintiff’s] control’ that would
warrant waiver of the Commissioner’s evidentiary-submission
deadlines.”); Smith v. Berryhill, No. CV 1:18-337, 2019 WL 1549036,
at *21 (D.S.C. Mar. 6, 2019) (unpublished) (“[The p]laintiff may
not use the date of the [new evidence], which was [crea]ted after
the hearing and days before the ALJ’s decision was rendered, to
automatically qualify as a good cause exception because it
undermines the purpose of the rule.”), recommendation adopted, 2019
WL 1533171 (D.S.C. Apr. 9, 2019) (unpublished); Scherer v.
Berryhill, No. 2:17CV53, 2018 WL 3069205, at *3 (N.D.W. Va. Apr. 4,
2018) (unpublished) (“Nothing in the record indicates that there
was any reason [the treating physician]’s findings were not
presented to the ALJ other than the fact that the assessments had
not yet taken place . . . . This is not one of the circumstances
provided by [Section 404.970(b)] that would constitute good cause
19
thereby allowing the Appeals Council to consider such evidence.”),
recommendation adopted, 2018 WL 1960531 (N.D.W. Va. Apr. 26, 2018)
(unpublished).
Moreover, Plaintiff’s argument glosses over the fact that
Plaintiff had ample opportunity, following her application for DIB,
to obtain an FCE in a timely manner, if she wished to obtain such
an evaluation to buttress her claim, but simply failed to do so.
Plaintiff filed her application for DIB on November 12, 2018 (see
Tr. 245-56), and first retained her hearing counsel in connection
with her request for reconsideration on July 9, 2019 (see Tr. 152-
53). On March 16, 2020, the ALJ notified Plaintiff and her counsel
that he would hear Plaintiff’s case on June 4, 2020 (see Tr. 181-
209), which notice expressly cautioned her that, “[i]f [she was]
aware of or ha[d] more evidence, such as recent records, reports,
or evaluations, [she] must inform [the ALJ] about it or give it to
[him] no later than 5 business days before the date of [her]
hearing[,]” as well as that, “[i]f [she] d[id] not comply with
th[at] requirement, [the ALJ] m[ight] decline to consider the
evidence” (Tr. 183 (underscoring added) (bold font omitted)).
Plaintiff acknowledged receipt of that notice on March 18, 2020.
(See Tr. 210-11.) At the end of the hearing, the ALJ inquired on
the record whether Plaintiff’s counsel believed “[t]he record[ wa]s
complete[,]” to which Plaintiff’s counsel responded “[i]t is” (Tr.
107), and neither Plaintiff nor her counsel requested the ALJ to
20
hold the record open for the submission of additional evidence (see
Tr. 107-08). As the above-described facts make clear, Plaintiff
had over one and half years to obtain an FCE and submit it to the
ALJ in a timely manner, but did not do so. Those facts simply do
not demonstrate “unusual, unexpected, or unavoidable
circumstance[s] beyond [Plaintiff or her hearing counsel’s]
control,” 20 C.F.R. § 404.970(b)(3).9
Finally, Plaintiff makes no argument that she “actively and
diligently sought evidence from a source and the evidence was not
received” under 20 C.F.R. § 404.970(b)(3)(iv). (See Docket Entry
12.) That consideration also undercuts any claim to good cause in
this context. See Marquez, 2021 WL 2073510, at *5 (“[N]othing in
the record indicates when [the plaintiff] first requested th[e new]
statement from [her treating physician], [or] what efforts she made
to ensure that it was timely submitted to the Commissioner before
the ALJ’s hearing. In other words, there is no indication in the
9 The SSA’s notice of final rule regarding the revisions to Section 404.970
make clear that the five-day rule would apply to neither 1) “evidence of ongoing
treatment, which was unavailable at least 5 business days before the hearing,”
nor 2) additional evidence “a new representative” sought to introduce if the “new
representative c[ould] show that a prior representative did not adequately uphold
his or her duty to the claimant.” Ensuring Program Uniformity at the Hearing and
Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987-
01, 90991 (Dec. 16, 2016) (emphasis added). Here, however, the FCE does not
qualify as “evidence of ongoing treatment,” id., because it constituted a one-
time evaluation by a non-treating physical therapist (see Tr. 10-12). Moreover,
Plaintiff’s current counsel, who submitted the FCE to the Appeals Council (see
Tr. 365-68), failed to argue that, in not procuring an FCE prior to the ALJ’s
hearing, Plaintiff’s hearing counsel “did not adequately uphold . . . her duty
to [Plaintiff],” 81 Fed. Reg. at 90991. (See Tr. 363-64, 365-68; see also Docket
Entry 12.)
21
record that the [plaintiff] ‘actively and diligently’ sought [the
treating physician]’s opinions on mental limitations but was
nonetheless unable to procure them before the deadline to do so.”
(internal citations and some quotation marks omitted)); Howell,
2019 WL 3416613, at *11 (D.S.C. July 10, 2019) (unpublished)
(finding good cause lacking where the “[p]laintiff [alleg]ed only
that he had difficulty in obtaining additional testing and
treatment; [and he] did not explain, however, how he was suddenly
able to pay for and obtain the electrodiagnostic examination only
two (2) months after the ALJ’s unfavorable decision”).
In sum, Plaintiff has not demonstrated good cause under
Section 404.970(b) for her failure to inform the ALJ about or to
submit to the ALJ the FCE at least five business days prior to the
ALJ’s hearing. As such, the Appeals Council did not err in
rejecting the FCE.
c. Reasonable Probability
Even assuming, arguendo, that the Appeals Council’s
“reasonable probability” rationale precludes this Court from
finding Plaintiff lacked good cause for the untimely submission of
the FCE, Plaintiff still could not prevail, as the Appeals Council
did not err in rejecting the FCE because it “d[id] not show a
reasonable probability that it would change the outcome of the
[ALJ’s] decision” (Tr. 2).
22
On August 7, 2020, Physical Therapist Michael Sherk (“PT
Sherk”) conducted an FCH of Plaintiff’s physical functional
capacity. (Tr. 10-12.) As a result of the evaluation, PT Sherk
concluded that Plaintiff’s overall level of ability “[fe]J11[]
within the [s]edentary range” (Tr. 10), including the ability to
lift and carry seven pounds occasionally (see Tr. 11-12), push 12
pounds and pull 10 pounds occasionally (see Tr. 12), sit frequently
(see id.), and stand and walk occasionally (see id.). With regard
to postural movements, PT Sherk found that Plaintiff could
occasionally climb stairs and could balance on level surfaces, but
could never kneel or crouch, and could not balance on uneven
surfaces. (See id.)*® Concerning manipulative functions, PT Sherk
opined that Plaintiff remained able to handle, finger, and feel
constantly, reach at the waist frequently, and reach below the
waist occasionally. (See id.) In addition, PT Sherk observed that
Plaintiff had an antalgic gait and made “[n]umerous position
changes during standing/seated tolerance testing.” (Tr. 10.)
Plaintiff “contends that the FCE is extremely relevant and
material to the determination of disability since it is an
evaluation based on comprehensive testing to determine
[Plaintiff]’s physical abilities; the evaluation also evaluates the
© Due to Plaintiff’s self-limiting behavior due to reported pain, PT Sherk
could not assess Plaintiff’s maximum ability to crouch. (See Tr. 12.)
23
reliability of [her] complaints of pain and the extend [sic] of
limitation/disability she may experience secondary to her pain,
other related symptoms and her impairments.” (Docket Entry 12 at
6-7.) Plaintiff further notes that “the FCE is the only opinion
evidence and assessment related to [Plaintiff]’s physical and
exertional capacity in the file provided by an examining provider”
(id. at 11) and “directly contradicts the RFC conclusions reached
by the ALJ regarding [Plaintiff]’s exertional and postural
limitations” (id. at 7).
Although the FCE constitutes the only medical opinion evidence
submitted by Plaintiff and conflicts with the ALJ’s light-exertion
RFC (compare Tr. 10-12, with Tr. 64), those facts alone do not
compel the conclusion that the FCE raises a reasonable probability
of a different outcome in Plaintiff’s case. As discussed in more
detail below, the ALJ’s decision, including his evaluation of the
medical opinions of record, discusses substantial evidence relevant
to an analysis of the FCE under the factors in 20 C.F.R.
§ 404.1520c(c), and that evidence defeats Plaintiff’s reasonable
probability argument.
The applicable regulation explains, under the factor
“[c]onsistency,” that, “[t]he more consistent a medical
opinion[] . . . is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical
opinion[] . . . will be.” 20 C.F.R. § 404.1520c(c)(2). Here, the
24
ALJ’s discussion of the medical evidence included the following
pertinent findings that lack consistency with the FCE:
• on July 31, 2018, Plaintiff advised her
orthopedist, Dr. Wayne Keeling, that she “had a
history of lower back pain for over a year, but
that it would fluctuate between ‘good and bad
days’” (Tr. 66 (quoting Tr. 488)), and Dr. Keeling
“found that [Plaintiff] exhibited tenderness of the
mid lower back with no paresthesia, [] nearly full
range of motion[,] . . . negative [] straight leg
raise, normal reflexes, normal muscle tone, and
normal coordination” (id. (citing Tr. 493, 498));
• on August 22, 2018, Dr. Keeling “found that
[Plaintiff]’s thoracic and lumbar spine had normal
alignment, but that [her] lumbar spine was tender
to palpation; however, she had normal strength and
tone” (id. (citing Tr. 506));
• “[d]uring [a] consultation with [] neurosurgeon
[Dr. Neelesh C. Nundkumar on September 12, 2018],
[Plaintiff] stated that the pain [wa]s worst when
she [wa]s laying down, and [that she] actually
ha[d] minimal pain when she was up walking” (Tr.
66-67 (citing Tr. 804) (emphasis added)), and Dr.
Nundkumar “noted that [medical] imaging d[id] not
demonstrate any neural compression, [but] primarily
degenerative disc disease” (Tr. 67 (referencing Tr.
810) (stray quotation mark and comma omitted));
• Dr. Nundkumar “recommended injection therapy, and
informed [Plaintiff] that she was not a candidate
based on the imaging for surgery” (id. (citing Tr.
810));
• “[a] physical examination [on October 17, 2018] at
the pain management clinic showed that
[Plaintiff]’s muscle tone and strength were intact,
but she had restrict[ed] range of motion in her
lumbar spine, but unrestricted range of motion in
her cervical spine” as well as “a normal gait” (id.
(citing Tr. 592)) and, on November 12, 2018,
Plaintiff “denied any acute onset joint swelling,
redness, loss of range of motion, or weakness” (id.
(citing Tr. 604));
25
• Plaintiff’s “self-reported levels of pain were
inconsistent with clinical observations, and the
[pain management] clinic noted . . . that the
severity of [her] pain level would be in the mild
to moderate category” (id. (emphasis added) (citing
Tr. 597, 765, 788)).
The ALJ’s discussion of the above-described findings makes clear
that the FCE would not have changed the outcome of the ALJ’s
decision.
The ALJ also found “persuasive” (Tr. 68) the state agency
medical consultants’ opinions that Plaintiff remained capable of
medium exertion work, i.e., lifting, carrying, pushing, and pulling
up to 50 pounds occasionally and 25 pounds frequently, with
additional postural, manipulative, and environmental restrictions
(see Tr. 119-21, 138-40). Plaintiff challenges the ALJ’s analysis
of the state agency medical consultants’ opinions on two grounds:
she asserts that the ALJ 1) failed to indicate “how persuasive” he
found the initial-level consultant’s opinions, and 2) “conclude[d]
that the opinion of [the reconsideration-level consultant wa]s
‘persuasive[,]’” but neither “adopt[ed] a medium RFC or a majority
of the other postural or environmental limitations” nor
“explain[ed] the basis for the discrepancies between his RFC
findings and the ‘persuasive’ RFC findings of the non examining
[s]tate [a]gency [medical] consultants.” (Docket Entry 12 at 11
(citing Tr. 68).)
26
The initial- and reconsideration-level consultants issued
identical opinions regarding Plaintiff’s RFC (compare Tr. 119-21,
with Tr. 138-40), and the ALJ discussed the initial-level
consultant’s opinion, as well as expressly noted the fact that the
reconsideration-level consultant agreed with the initial-level
consultant’s opinion (see Tr. 68). Thus, regardless of the ALJ’s
use of the singular term “opinion” when assessing persuasiveness,
the ALJ clearly analyzed both opinions together and found them both
persuasive. (Tr. 68.)
Regarding the difference between the consultants’ RFC and the
ALJ’s RFC, the ALJ found Plaintiff’s statements about her symptoms
“not entirely consistent with the medical evidence” (Tr. 65
(emphasis added)) and thus appeared to give Plaintiff’s testimony
that she could only lift five pounds (see Tr. 92) some benefit of
the doubt in reducing the consultants’ opined RFC from the medium
level of exertion (50 pounds occasionally, 25 pounds frequently
(see Tr. 119, 139)) to the light level (20 pounds occasionally, 10
pounds frequently (see Tr. 64)). That decision by the ALJ actually
favors Plaintiff, see Newsome v. Astrue, Civ. No. 11-1141, 2012 WL
2922717, at *6 (S.D. Ill. July 17, 2012) (unpublished) (“[I]t is
difficult to see how [the] plaintiff was prejudiced by the fact
that the ALJ assessed her with less ability to stand/walk than [the
consulting neurologist] did.” (emphasis in original)), and does not
provide any support for the notion that the ALJ would have found
27
the sedentary-level FCE opinions persuasive. Moreover, although
other minor differences exist between the consultants’ RFC and the
ALJ’s RFC (compare Tr. 119-21, 138-40, with Tr. 64), an ALJ’s
decision to find an opinion persuasive does not compel him to adopt
all of the limitations in that opinion, see Bennett v. Colvin, No.
3:13CV1176, 2015 WL 153950, at *13 (M.D. Tenn. Jan. 12, 2015)
(unpublished) (holding that “ALJ who accords ‘great weight’ to an
opinion is not required to adopt that opinion wholesale”); Newsome,
2012 WL 2922717 at *6 (noting that, merely because ALJ “gave ‘great
weight’ to [consultative neurologist’s] opinion[,] d[id] not mean
[the ALJ] was required to adopt it wholesale”) .'!
Two other factors under Section 404.1520c undermine
Plaintiff’s argument that the FCE raises a reasonable probability
of a different outcome. The regulations indicate that the opinion
source’s relationship with Plaintiff bears on the overall
persuasiveness of the opinion. See 20 C.F.R. § 404.1520c(c) (3).
In this case, PT Sherk conducted a one-time evaluation to assess
Plaintiff for disability. As a result, PT Sherk lacked the
‘| The ALJ’s RFC contains lesser restrictions on balancing, stooping,
crawling, and exposure to hazards than the consultants’ RFC. (Compare Tr. 64,
with Tr. 119-21, 138-40). Plaintiff, however, makes no argument that the ALJ’s
incorporation into the RFC of all of the consultants’ limitations would have
precluded the three jobs cited by the VE and adopted by the ALJ at step five of
the SEP. (See Docket Entry 12.) Nor could Plaintiff have made such an argument,
as none of those jobs requires balancing, stooping, crawling, or exposure to
hazards in excess of that opined by the consultants. See Dictionary of
Occupational Titles, No. 323.687-014 (“Cleaner, Housekeeping”), 1991 WL 672783
(G.P.O. 4th ed. rev. 1991) (“DOT”), DOT, No. 207.685-014 (“Photocopying-Machine
Operator”), 1991 WL 671745, and DOT, No. 209.687-026 (“Mail Clerk”), 1991 WL
671813.
28
longitudinal relationship with Plaintiff and knowledge of her
impairments’ history that a treating source typically would
possess. In that same vein, other than the remarks that Plaintiff
“report[ed] falling on stairs in July of 2018 resulting in chronic
[complaints of] neck/back pain,” and that Plaintiff “[was] being
treated at [p]ain [m]anagement by Dr. Naveira” (Tr. 11), PT Sherk
did not manifest any further familiarity with the other evidence of
record, see 20 C.F.R. § 404.1520c(c)(5).
Consideration of the entirety of the ALJ’s decision thus makes
clear that, contrary to Plaintiff’s arguments, the FCE would not
have raised a reasonable probability of a different outcome in
Plaintiff’s claim. See Moseley v. Berryhill, Civ. No. 6:18-1389,
2019 WL 2107917, at *11-12 (D.S.C. Apr. 22, 2019) (unpublished)
(finding Appeals Council did not err in determining that new
evidence failed to raise reasonable probability of different
outcome, and noting that “elements of [the new psychiatric]
opinions [we]re refuted by evidence in the record before the ALJ”
and that, “although the ALJ did not have the opportunity to review
[the psychiatrist]’s [new] opinions, [the ALJ] relied on
substantial evidence in reaching his conclusion that would have
been relevant to the analysis of the opinion under 20 C.F.R. §[]
404.1527(c)”), recommendation adopted, 2019 WL 2106181 (D.S.C. May
14, 2019) (unpublished); Pittman v. Berryhill, No. 7:16CV356, 2017
WL 6502852, at *4 (E.D.N.C. Dec. 19, 2017) (unpublished) (finding
29
Appeals Council did not err in deeming FCE insufficient to show
reasonable probability of changing outcome of ALJ’s decision, where
“extreme limitations found in [the] FCE [we]re [] contradicted by
[a physician]’s assessment as well as [another physician]’s
treatment notes,” and the ALJ’s crediting of “[t]he state agency
physicians, who both found [the plaintiff] could perform work at
the light exertional level . . ., similarly cast[ed] doubt on the
accuracy of the FCE”).
Simply put, Plaintiff has not shown that the Appeals Council
erred in declining to consider the FCE because it “d[id] not show
a reasonable probability that it would change the outcome of the
[ALJ’s] decision” (Tr. 2).
2. Evaluation of Subjective Symptom Reporting
In Plaintiff’s second and final issue on review, she contends
that “[t]he ALJ’s failure to properly evaluate [Plaintiff]’s pain
and other symptoms is harmful error that prevented the ALJ from
properly account [sic] for their impact on [Plaintiff]’s RFC.”
(Docket Entry 12 at 13 (bold font and single-spacing omitted).) In
that regard, Plaintiff maintains that “the ALJ’s decision is
largely void of any explanation of the basis for his negative
conclusions regarding the consistency of the evidence and
[Plaintiff’s] statements regarding the impact of her impairment
related symptoms despite [the ALJ’s] statement that the ‘reasons
are explain [sic] in the decision.’” (Id. at 15 (quoting Tr. 65).)
30
Plaintiff additionally asserts that “the evidence the ALJ does
appear to rely on to support his negative conclusions is not
supported by substantial evidence of record.” (Id.) Plaintiff’s
arguments fail to carry the day.
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;
see also 20 C.F.R. § 404.1529. First, the ALJ “must consider
whether there is an underlying medically determinable physical or
mental impairment(s) that could reasonably be expected to produce
an individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL
5180304, at *3. A claimant must provide “objective medical
evidence from an acceptable medical source to establish the
existence of a medically determinable impairment that could
reasonably be expected to produce [the] alleged symptoms.” Id.
Objective medical evidence consists of medical signs (“anatomical,
physiological, or psychological abnormalities established by
medically acceptable clinical diagnostic techniques”) and
laboratory findings “shown by the use of medically acceptable
laboratory diagnostic techniques.” Id.
31
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
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.
32
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).
Plaintiff first challenges the ALJ’s observations that
Plaintiff’s “‘self-reported levels of pain were inconsistent with
clinical observations, and [that] the [pain management] clinic
noted in the record that the severity of [Plaintiff]’s pain level
would be in the mild to moderate category.’” (Docket Entry 12 at
15 (quoting Tr. 67) (internal parenthetical citation omitted).)
Although Plaintiff concedes that she “was at times observed to have
a reported level of pain that was inconsistent with clinical
observations,” she points to “other times that her reported levels
of pain were consistent with clinic observations.” (Id. (citing
Tr. 776, 984, 1008, 1039, 1054) (stray quotation mark and brackets
omitted).) Additionally, Plaintiff asserts that, even “when these
‘inconsistencies’ were recorded[,] it was observed that [Plaintiff]
still exhibited moderate pain” (id. at 15-16 (citing Tr. 597)) and
that, “[b]ased on the objective pain scale used by the pain
management specialist[,] . . . ‘moderate’ pain[ ] was described as
‘significantly interfering with activities of daily living,’”
including “‘difficult[y with] feed[ing], bath[ing], get[ting]
dressed, get[ting] on and off the toilet[, ] perform[ing] personal
33
hygiene function[s, or] . . . get[ting] in and out of bed or a
chair without assistance,’” as well as “‘[v]ery distracting’” (id.
at 16 (quoting Tr. 597)). According to Plaintiff, “[o]nly the
record at [Tr.] 765 notes ‘mild’ pain; the others [sic] treatment
records are generally consistent with moderate pain as described
above.” (Id.)
The ALJ did not err by stating that the pain management
clinic’s records noted that Plaintiff’s “self-reported levels of
pain were inconsistent with clinical observations” and that “the
severity of [her] pain level would be in the mild to moderate
category.” (Tr. 67 (emphasis added) (citing Tr. 597, 765, 788).)
Indeed, the three treatment records cited by the ALJ reflect that,
despite Plaintiff’s subjective complaints of pain at levels of 5/10
(see Tr. 597), 4/10 (see Tr. 765), and 5/10 (see Tr. 788), Dr.
Naveira rated Plaintiff’s pain at 3/10 (“Moderate”) (Tr. 597), 1/10
(“Mild”) (Tr. 765), and 2/10 (“Mild to Moderate”) (Tr. 788) on
those occasions. Furthermore, on the remaining occasions on which
Dr. Naveira deemed Plaintiff’s reported pain levels inconsistent
with his clinical observations, he rated Plaintiff’s pain as either
2/10 (“Mild to Moderate”) (Tr. 1023) or 3/10 (“Moderate”) (Tr. 746,
934, 944). Dr. Naveira did find Plaintiff’s self-reported pain
levels consistent with clinical observations on multiple occasions
(see Tr. 776, 984, 994, 1008, 1039, 1054), but on two of those
occasions, Plaintiff reported either 2/10 pain (“Mild to Moderate”)
34
(Tr. 994) or 3/10 pain (“Moderate”) (Tr. 776), which coheres with
the ALJ’s observation that Dr. Naveira rated Plaintiff’s pain “in
the mild to moderate category” (Tr. 67). In the remaining four
instances, Plaintiff reported her pain at either 4/10 (see Tr. 984)
or 5/10 (see Tr. 1008, 1039, 1054) and, although the clinic did not
assign a descriptor such as “Moderate” or “Severe” to those ratings
(see Tr. 984, 1008, 1039, 1054), they fall in between the clinic’s
“Moderate” rating of 3/10 (see, e.g., Tr. 934) and its description
of pain beginning at 6/10 as “severely limiting[ and] requiring
emergency care not usually available at an outpatient pain
management facility” (id. (emphasis added)). As the ALJ accurately
described Dr. Naveira’s pain level observations in the pain
management records the ALJ specifically cited (see Tr. 67 (citing
Tr. 597, 765, 788)), and none of the pain management records not
explicitly discussed by the ALJ conclusively establish pain at the
“severe” level (as defined by the clinic), Plaintiff has not shown
that the ALJ erred by noting that Dr. Naveira rated Plaintiff’s
pain “in the mild to moderate category” (Tr. 67).
Plaintiff further maintains that her “inconsistent reporting
[of pain levels] is secondary to her lack of understanding of the
different pain scale utilized by her pain management provider”
(Docket Entry 12 at 16 (citing Tr. 788)), and faults the ALJ for
“fail[ing] to address the differing pain scale and the definition
of moderate pain supplied by the treatment provider” (id.).
35
Plaintiff also argues that the ALJ’s finding regarding the
inconsistency of Plaintiff’s pain complaints with the record
conflicts with “the pain management provider[’]s notes that suggest
that additional treatment interventions, such as a radiofrequency
ablation, are necessary because ‘[Plaintiff] has failed to respond
to conservative therapies and more invasive therapies’ on a
sustained basis.” (Id. at 16-17 (quoting Tr. 766) (internal
parenthetical citation omitted).)
Plaintiff’s repeated tendency to over-report her subjective
pain level (see Tr. 597, 746, 765, 788, 934, 944, 1023) actually
supports the ALJ’s finding that Plaintiff’s statements about the
intensity and limiting effects of her pain “[we]re not entirely
consistent with the medical evidence” (Tr. 65). Dr. Naveira’s
records reflect that he consistently instructed Plaintiff about the
clinic’s pain scale and advised her that her self-reported pain
levels did not adhere to that scale. (See Tr. 765, 788, 944.)
Thus, Plaintiff’s continued over-reporting of her pain level,
despite Dr. Naveira’s repeated instructions, suggests that those
inflated pain ratings resulted from something other than mere
misunderstanding of the clinic’s pain scale. Moreover, given that
the ALJ found Plaintiff’s degenerative disc disease a “severe”
impairment at step two of the SEP (Tr. 61) and included significant
exertional, postural, manipulative, and environmental limitations
in the RFC (see Tr. 64), Plaintiff has not shown how the ALJ’s
36
express discussion of the pain clinic’s definition of moderate pain
(see, e.g., Tr. 597 (describing “Moderate” pain as involving
significant interference with daily activities and difficulty with
self-care activities)) would result in a more favorable outcome in
her claim. Similarly, although Dr. Naveira recommended Plaintiff
undergo radiofrequency ablation to obtain “longer relief” of her
lower back pain than she obtained from lumbar facet block
injections (Tr. 767 (emphasis added)), that recommendation does not
negate the fact that Plaintiff consistently reported substantial
relief from her medications and injections (see Tr. 598, 777, 945,
995, 1009, 1024, 1056 (>50% benefit, “medication allows her to
accomplish basic [daily activities]” and “allow[s] for [an]
increase in [daily] activities”); see also Tr. 747 (75% relief
after injection lasting one week with gradual symptom return), 766
(75% relief after injection), 1023 (“Meloxicam is very
effective”)).
Plaintiff next faults the ALJ for “cit[ing] to records taken
out of context,” in that he cited to a “review of symptoms” in a
pain management record dated November 12, 2018 (Docket Entry 12 at
17 (citing Tr. 67 (in turn citing Tr. 604))), but ignored
“objective findings of decreased range of motion of the lumbar
spine, pain with movement, tenderness to palpation, bilateral facet
joint pain, [sacroiliac] and hip arthralgia and pain as well as
limited ambulation, antalgic gait and difficulty standing up
37
straight secondary to pain” (id. (citing Tr. 607)). By way of
further example, Plaintiff contends that “the ALJ fail[ed] to
explain how some of the findings [the ALJ] appear[ed] to cite to,
such as ‘normal range of motion of the thoracic spine’ or lack of
evidence of ‘acute onset of joint swelling, redness’” hold any
relevance to Plaintiff’s allegations regarding her cervical and
lumbar degenerative disc disease symptoms. (Id. (citing Tr. 68).)
Plaintiff’s argument ignores the ALJ’s express discussion of
the objective findings from the pain management record in question:
Physical examination of [Plaintiff]’s cervical and
thoracic spine showed that she had unrestricted range of
motion, and normal muscle strength and tone [(Tr. 606)].
[She] had decreased range of motion [of] her lumbar
spine, although her muscle tone and strength were intact
and stable [(Tr. 607)].
(Tr. 67.) Although the ALJ did not discuss all of the findings
from that examination, he labored under no obligation to do so, see
Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.
2014) (“‘[T]here is no rigid requirement that the ALJ specifically
refer to every piece of evidence in his decision.’” (quoting Dyer
v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005))), and he clearly
recognized that Plaintiff experienced lower back pain (see Tr. 66
(“The medical record indicates that [Plaintiff] has chronic back
pain.”)). As for the findings of “limited ambulation, antalgic
gait and difficulty standing up straight secondary to pain” (Docket
Entry 12 at 17 (citing Tr. 607)), those findings appeared once in
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the pain management records at the outset of Plaintiff’s treatment
(see Tr. 607) and did not recur in any of the other pain management
treatment notes (see Tr. 592, 752, 771, 784, 796, 940, 955-56, 990,
1002-03, 1014, 1031, 1046), with the exception of a notation of
“[a]ntalgic” posture (but “[u]nassisted” and “[r]elatively normal”
gait) on March 2, 2020 (Tr. 1063). The ALJ’s omission from his
discussion of such isolated findings does not render his decision
unsupported by substantial evidence.
Although Plaintiff faults the ALJ for “cit[ing] to records
taken out of context” (Docket Entry 12 at 17), Plaintiff’s
contentions regarding the ALJ’s alleged reliance on “‘normal range
of motion of the thoracic spine’” and the “lack of evidence of
‘acute onset of joint swelling, redness’” (id. (quoting Tr. 68))
fail to place those remarks in their proper context. When
providing his rationale for finding the state agency medical
consultants’ opinions persuasive, the ALJ reasoned as follows:
The [initial-level] state agency consultant supported her
[sic] opinion by citing to evidence in the medical record
and noting that[,] although [Plaintiff] ha[d] a history
of chronic pain, medical imaging showed mild degenerative
changes in her cervical spine, [and] she had unrestricted
range of motion in her lower extremity[;] although she
ha[d] multiple osteophytes and joint space narrowing in
her shoulder, [she wa]s able to complete activities of
daily living such as taking care of household chores[
and] driving, and [had] unrestricted range of motion in
her thoracic spine.
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(Tr. 68 (emphasis added) (referencing Tr. 122).)'* As the above-
quoted language makes clear, the ALJ merely pointed out the
consultant’s discussion of Plaintiff’s normal thoracic range of
motion at Dr. Naveira’s examination on November 12, 2018. (Id.;
see also Tr. 606-07 (also reflecting normal cervical, upper
extremity, and lower extremity range of motion).) As previously
discussed, the ALJ expressly recognized that Dr. Naveira found
Plaintiff’s lumbar spine range of motion reduced on that date.
(See Tr. 67 (citing Tr. 607).)
Plaintiff’s assertion regarding the ALJ’s reference to the
“lack of evidence of ‘acute onset of joint swelling, redness’”
(Docket Entry 12 at 17 (quoting Tr. 68)) fares no better. The ALJ
accurately observed that, on November 12, 2018, Plaintiff “denied
any acute onset joint swelling, redness, loss of range of motion,
or weakness” (Tr. 68 (emphasis added) (citing Tr. 604)) which,
12 The state agency medical consultant’s reference to “multiple osteophytes
and joint space narrowing in [Plaintiff’s] shoulder” (Tr. 122) refers to medical
records belonging to an individual other than Plaintiff mistakenly included in
the record at Exhibit 11, pages 9 through 13 (see Tr. 712-16). The ALJ also
cited that evidence as if it pertained to Plaintiff. (See Tr. 67 (noting that
Plaintiff “complained of bilateral shoulder pain, indicating that the pain
bec[a]me[] worse with activity such as reaching above shoulder level” (citing Tr.
712), that “[{aJn ultrasound of [Plaintiff]’s shoulder found severe degenerative
disease, multiple osteophytes and joint space narrowing” (citing Tr. 713), and
that Plaintiff “was provided with an injection, which helped for one week before
the pain returned” (citing Tr. 715); see also Tr. 61 (finding “degenerative joint
disease of the bilateral shoulders” a severe impairment at step two of SEP).)
Neither party alerted the Court to that error. (See Docket Entries 12, 15.) The
ALJ’s reliance on those misplaced records did not prejudice Plaintiff, however,
because the ALJ considered an additional impairment that Plaintiff did not
actually have in fashioning Plaintiff’s RFC. (See Tr. 64 (including restriction
to frequent bilateral overhead reaching in RFC), 68 (crediting state agency
medical consultants’ limitation to frequent bilateral overhead reaching) .)
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given Plaintiff’s complaints of back pain, neck pain, and lower
extremity pain (see Tr. 597-98), clearly hold relevance.
Plaintiff lastly “contends that the ALJ [] failed to evaluate
the extent to which [Plaintiff] performed [] daily activities by
ignoring her qualifying statements regarding these activities and
other evidence in the record that was consistent with her
allegations.” (Docket Entry 12 at 17 (quoting Woods v Berryhill,
888 F.3d 686, 694 (4th Cir. 2018), for proposition that “‘an ALJ
may not consider the type of activities a claimant can perform
without also consider[ing] the extent to which she can perform
them’”).) In that regard, Plaintiff notes that she “testified that
house cleaning activities, like vacuuming or dusting, ma[d]e her
pain worse[,] . . . [and] that she could ‘usually make it through
about 25 minutes of shopping before [she would] have to go to the
car’ if she had a shopping cart to lean over[, but] without the
shopping cart she could walk ‘maybe [about] 10 minutes.’” (Id. at
18 (quoting Tr. 90) (internal parenthetical citation omitted).)
Plaintiff additionally highlights her testimony describing a
typical day as follows:
“[I ]would get up, get a bite to eat, take [my] medicines
and then go to the recliner for about an hour. [I] would
try to fix one meal a day, eat and go back to the
recliner. If it gets too bad I’ll go lay down for a
while. I’ll get back up, I’ll try to clean the kitchen
up and then I’m just basically back in the recliner until
time to go to bed.”
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(Id. (purporting to directly quote, but actually paraphrasing Tr.
94-95).) Plaintiff further notes that “[h]er boyfriend did all the
yardwork, [and] helped with cooking and cleaning, driving her
places[, and] . . . checking to make sure she paid her bills and
managed her finances correctly.” (Id. at 19 (citing Tr. 95)
(internal parenthetical citation omitted).) According to
Plaintiff, “it is unclear how the activities the ALJ cites, even
without [Plaintiff’s] qualifying statements, support the ALJ’s
negative conclusions regarding the consistency of [Plaintiff’s]
allegations with the evidence of record.” (Id.) Those contentions
fall short for two reasons.
To begin, the ALJ’s mention of Plaintiff’s daily activities
occurred within the context of his evaluation of the state agency
medical consultants’ opinions. (See Tr. 68.) In that regard, the
ALJ noted that he found the initial-level state agency consultant’s
opinion “persuasive” because the “consultant supported her [sic]
opinion by citing to evidence in the medical record and noting that
[Plaintiff wa]s able to complete activities of daily living such as
taking care of household chores[ and] driving.” (Id.) Thus, the
ALJ did not directly rely upon Plaintiff’s daily activities to
discount her subjective symptom reporting. Moreover, to the extent
Plaintiff’s daily activities factored into the ALJ’s evaluation of
Plaintiff’s subjective complaints, the ALJ clearly did not rely
solely on Plaintiff’s daily activities, but rather cited them as
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one part of his overall analysis. (See Tr. 64-69 (reflecting ALJ’s
consideration of objective medical evidence, types and
effectiveness of Plaintiff’s treatment, and opinion evidence) .)
More significantly, however, the ALJ did not err by crediting
the consultant’s discussion of Plaintiff’s daily activities. The
record contains competing descriptions of Plaintiff’s ability to
engage in daily activities (compare Tr. 122 (initial-level state
agency medical consultant’s report that: “[Plaintiff] states she
does drive. [She] lives alone. She does have a boyfriend that
will frequently stay over at her home. [She] is able to take care
her [household] chores and cooking. [She] prepares mainly
microwavable meals, sandwiches, etc. ... [She d]loes not use any
[hand-held assistive devices]. [She] uses a push cart when grocery
shopping.” (emphasis added)), 310-17 (Function Report completed by
Plaintiff’s boyfriend reflecting that Plaintiff drives, prepares
meals daily if he does not cook for her, does laundry once per
week, and does a “little cleaning” without help), 533 (Plaintiff’s
listing of “[s]hopping” as “[l]eisure [a]ctivity” in psychological
assessment), and 598, 777, 945, 995, 1009, 1024, 1056 (Plaintiff’s
statements to Dr. Naveira that (“medication allows her □ to
accomplish basic [daily activities]” and “allow[s] for [an]
increase in [daily] activities”), with Tr. 90, 94-95, 97
(Plaintiff’s testimony describing limitations on meal preparation,
shopping, household chores, driving, and managing her finances),
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326-27, 336 (Plaintiff’s remarks on Disability Reports alleging
difficulty with household tasks), 845 (Plaintiff’s report to
consultative psychological examiner Dr. Julia Brannon that
Plaintiff’s boyfriend helps her cook and clean, and that dishes sit
in the sink for two to three days before she washes them)).
Plaintiff has not provided the Court with any basis to disturb the
ALJ’s crediting of the consultant’s reliance on statements
reflecting a greater ability to engage in such activities. See
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (“Ultimately,
it is the duty of the [ALJ] reviewing a case, and not the
responsibility of the courts, to make findings of fact and to
resolve conflicts in the evidence.”). Moreover, Plaintiff’s
ability to engage in such activities, even on a somewhat limited
basis, provides some support, along with the medical and opinion
evidence discussed by the ALJ, for the ALJ’s conclusion that
Plaintiff’s impairments did not prevent her from performing a
limited range of light work (see Tr. 64).
In short, Plaintiff’s second and final assignment of error
fails as a matter of law.
I I I . C O N C L U S I O N
Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 11) be denied, that Defendant’s
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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
April 4, 2022
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