# FREEZE v. KIJAKAZI

> District Court, M.D. North Carolina · September 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10254200

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KIMBERLY FREEZE, )
)
Plaintiff, )
)
v. ) 1:21CV275
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security,! )
)
Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Kimberly Freeze (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed applications for Disability Insurance Benefits and
Supplemental Security Income Benefits on February 20, 2019 and February 5, 2019,
respectively, alleging a disability onset date of July 25, 2018 in both applications. (I'r. at 17,

1 Kilolo Kijakazi was appointed 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).

301-09.) Her applications were denied initially (Tr. at 94-125, 206-10) and upon
reconsideration (T'r. at 126-205, 217-30). Thereafter, Plaintiff requested an administrative
hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 235-36.) Plaintiff, along
with her attorney and an impartial vocational expert, attended the subsequent telephonic
heating on April 27, 2020. (Ir. at 17.) The AL] ultimately concluded that Plaintiff was not
disabled within the meaning of the Act (Ir. at 27), and, on February 4, 2021, the Appeals
Council denied Plaintiffs request for review of the decision, thereby making the AL]’s
conclusion the Commissionet’s final decision for purposes of judicial review. (I'r. at 1-6.)
II. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social secutity 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
AL] if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
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. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

* Transcript citations refer to the Sealed Administrative Record [Doc. #8].

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 matks omitted). “If 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 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to te-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” 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 correct 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 impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3

3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq,, provides benefits to
disabled petsons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), 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 promulgated by the Secretary for

“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 during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements 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 catries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant
is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a clatmant cleats steps one and two,
but falters at step three, te., “[i]f a claimant’s tmpairment is not sufficiently severe to equal or
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the AL] to assess whether, based on

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C-F.R. pt. 416 (SSI), governing these two programs ate,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
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 requite RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities tn 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 impaitments).” Hall, 658 F.2d at 265. “RFC is to be determined by the AL] only after

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
wotk, the analysis proceeds to the fifth step, which “requires 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 clatmant’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
“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.
Ill. DISCUSSION
In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date. The ALJ therefore concluded that Plaintiff met her
burden at step one of the sequential evaluation process. (Tr. at 19-20.)° At step two, the ALJ
further determined that Plaintiff suffered from the following severe impairments:
histoty of migtaine headaches; degenerative disc disease; osteoarthritis; and
obesity|[-]
(Ir. at 20-22.) The AL] found at step three that none of these impairments, individually or in
combination, met ot equaled a disability listing. (Tr. at 22.) Therefore, the ALJ assessed

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”
Hines, 453 F.3d at 562-63.
5 Despite this finding, the AL] noted at step one that Plaintiffs intermittent work as a Registered Nurse and
English teacher in 2018 and 2019 “appear[ed] to rise to the level of substantial gainful activity.” (Ir. at 20.)
Nevertheless, the ALJ “continue[d] with the remaining steps of the sequential evaluation for the periods after
[Plaintiff] earned SGA.” (T'r. at 20.)

Plaintiffs RFC and determined that she could perform medium work with further limitations.
Specifically, the AL] found that Plaintiff
can petform frequent, but not constant overhead teaching; and can tolerate
frequent, but not constant, exposure to extteme cold, pulmonary irritants, such
as dust, fumes, odors, and gases, and work place hazards, such as unprotected
heights and dangerous machinery.
(Tr. at 22.) Based on this determination and the testimony of a vocational expert, the ALJ
determined at step four of the analysis that Plaintiff remained capable of performing her past
televant work as a Registered Nurse and as a Hospice Nurse. (Ir. at 25.) In addition, the AL]
made an alternative finding at step five that, given Plaintiffs age, education, work experience,
RFC, and the testimony of the vocational expert as to these factors, she could perform other
jobs available in significant numbers in the national economy. (Tr. at 26-27.) Therefore, the
AL) concluded that Plaintiff was not disabled under the Act. (It. at 27.)
Plaintiff now challenges the ALJ’s decision in two respects. First, she argues that the
AL} failed to “provide a logical bridge between the evidence and her conclusions” regarding
the impact of Plaintiff's migraine headaches on her RFC. (PL’s Br. [Doc. #12] at 5.) Second,
she contends that the ALJ failed to properly consider the effects of Plaintiffs depression and
anxiety. In particular, she argues that the AL] erred in (1) finding these impairments non-
sevete at step two of the sequential analysis and (2) failing to account for limitations from
mental impairments when formulating the RFC assessment. (PL.’s Br. at 16.) After conducting
a thorough review of the record, the Court concludes that the AL] provided sufficient
explanation for her determinations, and that substantial evidence supports the ALJ’s
conclusions.

A. Migtaine headaches
Plaintiff first argues that the ALJ failed to conduct a proper function-by-function
analysis of Plaintiffs migraine symptoms and their effect on her RFC. As Social Security
Ruling (“SSR”) 96-8p instructs, “[t]he RFC assessment must first identify the individual’s
functional limitations or testtictions and assess his or her work-related abilities on a function-
by-function basis,” including the functions listed in the regulations. SSR 96-8p: Policy
Interpretation Ruling Titles I] and XVI: Assessing Residual Functional Capacity in Initial
Claims, 1996 WL 374184, at *1. “Only after such a function-by-function analysis may an ALJ
exptess RFC in terms of the exertional levels of work.” Monroe v. Colvin, 826 F.3d 176, 179
(4th Cir. 2016) (internal quotations and citations omitted). Further, the “RFC assessment must
include a nattative discussion describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
obsetvations).” SSR 96-8p, 1996 WL 374184, at *7. An ALJ must “both identify evidence
that supports his conclusion and build an accurate and logical bridge from [that] evidence to
his conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis omitted).
The Fourth Citcuit has noted that a per se rule requiring remand when the ALJ does not
perform an explicit function-by-function analysis “is inappropriate given that remand would

ptove futile in cases where the AL] does not discuss functions that are ‘irrelevant or
uncontested.”’ Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v.
Asttue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). Rather, remand may be appropriate
“whete an ALJ fails to assess a claimant’s capacity to perform relevant functions, despite

conttadictory evidence in the record, or where other inadequacies in the AL]’s analysis
frustrate meaningful review.” Mascio, 780 F.3d at 636 (quoting Cichocki, 729 F.3d at 177).
The court in Mascio concluded that remand was appropriate because it was “left to guess
about how the ALJ arrived at his conclusions on [the claimant’s| ability to perform relevant
functions” because the AL] had “said nothing about [the claimant’s] ability to perform them
for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did not
address. Mascio, 780 F.3d at 637.
Here, Plaintiff argues that the ALJ’s failure to properly explain how the RFC
assessment adequately addresses limitations relating to her migraine headaches renders her
decision unsupported by substantial evidence. In her decision, the ALJ discusses at length the
evidence in the record, including the evidence regarding Plaintiff's migraines, and concludes
that, “[iJn limiting the [Plaintiff] to medium work, with additional environmental limitations,
the [ALJ] has adequately accounted for the Plaintiffs history of migraine headaches.” (Tr. at
24.) ‘Those environmental limitations include limited exposure to extreme cold, pulmonary
irritants, and workplace hazards. In reaching this conclusion, the ALJ relied on various factors
including the record’s failure to substantiate Plaintiffs subjective complaints regarding the
impact of her migraines on her RFC.
With respect to the ALJ’s evaluation of Plaintiffs allegations regarding her symptoms,
under the applicable regulations the ALJ’s decision must “contain specific reasons for the
weight given to the individual’s symptoms, be consistent with and supported 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, at *10
(Oct. 25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. Moreover, in Arakas v. Comm’
of Soc. Sec., 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit recently clarified the procedure an
ALJ must follow when assessing a clatmant’s statements:
When evaluating a claimant’s symptoms, ALJs must use the two-step
framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029
(Mar. 16, 2016). First, the ALJ must determine whether objective medical
evidence presents a “medically determinable impairment” that could reasonably
be expected to produce the claimant’s alleged symptoms. 20 C.F .R.
§ 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.
Second, after finding a medically determinable impairment, the AL] must assess
the intensity and persistence of the alleged symptoms to determine how they
affect the claimant’s ability to work and whether the claimant is disabled. See 20
C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,
objective evidence is mot requited to find the claimant disabled. SSR 16-3p, 2016
WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always
be measuted objectively through clinical or laboratory diagnostic
techniques.” Id. at *4. Thus, the ALJ must consider the entire case record and
may “not disregard an individual’s statements about the intensity, persistence,
and limiting effects of symptoms solely because the objective medical evidence
does not substantiate” them. Id. at *5.
Arakas, 983 F.3d at 95-96. Thus, the second part of the test requires the ALJ to consider all
available evidence in order to evaluate “the intensity and persistence of the claimant’s
[symptoms], and the extent to which [they] affects [her] ability to work.” Craig, 76 F.3d at
595. ‘This approach facilitates the AL]’s ultimate goal, which is to accurately determine the
extent to which PlaintifPs pain or other symptoms limit her ability to perform basic work
activities. Relevant evidence for this inquiry includes Plaintiffs “medical history, medical signs,
and laboratory findings,” Craig, 76 F.3d at 595, as well as the following factors set out in 20
C.F.R. § 416.929(c)(3) and 20 C.F.R. § 404.1529:
(1) [Plaintiffs] daily activities;

(11) The location, duration, frequency, and intensity of [Plaintiffs] pain or
other symptoms;
(iii) Precipitating and ageravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
[Plaintiff] take[s] or [has] taken to alleviate [her] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff] receives] or [has] received
for relief of [her] pain or other symptoms;
(vi) | Any measures [Plaintiff] use[s] or [has] used to relieve [her] pain or other
symptoms (e.g., lying flat on [her] back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vit) Other factors concerning [Plaintiffs] functional limitations and
resttictions due to pain or other symptoms.
In the present case, as instructed by the regulations, the ALJ considered the entire case
record and explained the reasons for deviating from Plaintiff's statements regarding the impact
of her headache symptoms on her ability to work. The AL] reviewed the medical evidence,
Plaintiffs testimony, and other record evidence, such as Plaintiffs activities, in considering
Plaintiffs subjective complaints. She then concluded that the extent to which Plaintiff's
migraine symptoms limited her ability to work was not as extensive as Plaintiff alleged. In
particular, the ALJ found as follows:
[Plaintiff] has . .. been diagnosed with a history of migraine headaches. [She]
has reported migraines since she was 18-years old. [Plaintiff] alleged daily
migraines for a month after a motor vehicle accident in July 2018. She noted
that they tapered off after the first 30 days. She has also reported doing
extensive research into her conditions. She did not receive physical therapy or
vestibular therapy after her accident. A head CT and brain MRI wete
notmal....
On examination, [Plaintiff] generally presents with the following mostly normal
findings: intact cranial nerves, intact processing speed, attention within normal
ranges, intact sensation, alert, answer[s] questions appropriately, and oriented
.... [She] has received mostly conservative treatment, including prescribed
Botox, melatonin, Zonisamide, bulabital, cambia, and hydrocodone. [Plaintiff]
has been noted as practicing yoga. [She] has also been noted as cating for her
mother. [Plaintiff] has reported improvement in her headaches with Botox
injections, including a greater than 50% reduction in her headaches. In March
2019, [Plaintiff] reported that her headaches were becoming less frequent.
10

Neutopsychological testing suggested possible symptom exaggeration.
Additionally, [Plaintiff] has failed to report at additional neurological
appointments. Ryan Conrad, M.D., noted in September 2019, that he did not
“really understand why she is seeing me. She has filed for disability twice and
has been tutned down, seems to want to be on disability from what I can gather
and it seems she has been seeing doctors for this.” In limiting [Plaintiff] to
medium work, with additional environmental limitations, the undersigned has
adequately accounted for [Plaintiffs] history of migraine headaches.
(Tr. at 23-24) (citing Tr. at 437, 730, 731, 2451). More generally, the ALJ noted that “[t]here
ate many inconsistencies throughout the record. For example, [Plaintiff's] neuropsychological
exam... suggested that she was exaggerating her symptoms and that her self-reported mood
disorder should be interpreted with caution. [Treatment records] further noted that [Plaintiff]
‘wanted to be on disability.” (Tr. at 23) (citing Tr. at 731, 2451). Overall, the AL] concluded
that Plaintiffs impairments were “less limiting than alleged.” (Tr. at 23.)
Thus, the AL] here gave multiple reasons for finding Plaintiffs migraines less limiting
that Plaintiff alleged. First, the AL) noted significant credibility issues regarding Plaintiffs
claims, based on the inconsistencies in the record and the assessment of both Dr. Harris and
Dr. Contad. On this point, the ALJ noted that Dr. Hartis’s “[n]europsychological testing
suggested possible symptom exaggeration.” (Ir. at 24, 729-34.) Specifically, Dr. Harris
included a symptom validity test as part of the neuropsychological testing, and Plaintiffs
“performance actoss a stand-alone symptom validity measute was well below expectation and
suggestive of possible symptoms exaggeration.” (Tr. at 731.) In addition, the ALJ also noted
that “Ryan Conrad, M.D. noted in September 2019, that he did not ‘really understand why she
is seeing me. She has filed for disability twice and has been turned down, seems to want to be

on disability from what I can gather and it seems she has been seeing doctors for this.”” (Ir.
at 24, 2451). The AL] expressly telied on these assessments in evaluating the credibility of
11

Plaintiff's claims of debilitating symptoms from migraines, and in concluding that Plaintiffs
“4mpairments ate less limiting than alleged.” (T'r. at 23-24.)
Second, the ALJ noted that the evidence in the medical records did not support
Plaintiffs claims of disabling symptoms. The AL] noted that “[a] head CT’ and a brain MRI

were notmal” and the examinations generally reflect “mostly normal findings: intact cranial

netves, intact processing speed, attention within normal ranges, intact sensation, alert, answer
questions appropriately, and oriented.” (Tr. at 24, 438, 446, 515, 609, 651, 731-32, 736, 748,
2463.) Third, the AL} noted that Plaintiff received mostly conservative treatment, which is
not consistent with the degtee of debilitating symptoms Plaintiff alleged. (Ir. at 24, 494, 748.)
Fourth, the ALJ further noted that Plaintiff failed to take advantage of other available and
recommended treatment, including by failing to report for additional neurological
appointments and failing to seek out physical therapy or vestibular treatment that was
recommended by Dr. Harttis. (Tr. at 23-24, 732.) Fifth, the AL] noted that the medical records
teflected a significant improvement in her migraines with medication, with a substantial
reduction in frequency. (Tr. at 24, 702-04, 734, 741, 743.)
Sixth, the AL] noted Plaintiffs activities despite her claim of disabling migraines,
including practicing yoga, driving long distances, using the internet including for doing
extensive reseatch into her conditions, vatious crafts, and caring for her family. Medical
records reflect that Plaintiff told providers she took care of her elderly mother, disabled sister,
and schizophrenic son. (Tt. at 23-24, 516.) In addition, the ALJ noted that Plaintiff worked

as a nutse from November 2018 to January 2019 at Cabarrus Gastroenterology, during the
petiod of claimed disability, but left to file for unemployment, and she continued to take

12

Continuing Education to renew her RN license in 2019. (Tr. at 20, 23-24.) Plaintiff contends
that the ALJ failed to include or consider qualifying statements regarding her activities.
However, as noted by Defendant, the ALJ did consider and include the qualifying statements
regarding her activities, including her alleged difficulties remembering and concentrating, panic
attacks while driving, and difficulties with dizziness (Ir. at 23), but still found that Plaintiffs
activities wete inconsistent with her claim of disabling migraines.
The ALJ also considered the opinion evidence of the State Agency physicians, who
opined that Plaintiff was capable of medium work with environmental limitations. (It. at 24.)
Plaintiff does not point to any contrary opinion evidence from her physicians that her
migtaines ate disabling or otherwise cause work-related limitations.° Although Plaintiff
contends that the AL] should have included limitations in the RFC to account for work breaks
ot absences related to her migtaines, the AL] gave multiple reasons to conclude that the
evidence did not support the severity of symptoms claimed by Plaintiff, as set out above. The
AL} ultimately concluded that Plaintiffs history of migraine headaches was adequately
accounted fot with the limitation to medium work with additional environmental limitations.
Those environmental limitations include limitations on exposure to extreme cold, pulmonary
irritants including odors, and workplace hazards such as unprotected heights and dangerous
machinety, which is consistent with Plaintiffs testimony that her migraines varied depending
on “the weather” and “scents,” as well as her concerns of dizziness. (Tr. at 22, 70.)

® Plaintiff does point to a family leave form covering a brief two-week period from July 26, 2018 to August 6,
2018, immediately after her vehicle accident. (Tr. at 601-02.) However, soon after, her doctor signed a “return
to work” form on August 23, 2018, opining that Plaintiff could be released to work at “full, unrestricted duty.”
(Tt. at 625.)
13

Thus, the ALJ explained the basis for the decision sufficiently to allow the Court to
follow the reasoning, and substantial evidence supports that determination. 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) (“[I]he language of § 205(g) precludes a de novo
judicial proceeding and requires that the court uphold the Secretaty’s decision even should the
coutt disagree with such decision as long as it is supported by ‘substantial evidence.”’).
B. Anxiety and Depression
Plaintiff next contends that the AL]’s erred at step two of the sequential analysis in
finding that Plaintiff's anxiety and depression wete non-sevete impairments. (Pl.’s Br. at 16.)
She futther contends that the AL]’s failure to account for these impairments at later steps
tenders the RFC unsupported by substantial evidence. At step two, the ALJ identified four

sevete impairments: “history of migraine headaches; degenerative disc disease; osteoarthritis;
and obesity.” (Ir. at 20.) The AL] further identified six additional physical impairments as
non-severe, along with the two mental impairments now in question. (Tr. at 20.) In finding
that Plaintiffs depression and anxiety did not cause more than minimal limitations in her
ability to perform basic work activities, the ALJ noted that, while Plaintiff presented with
“anxious affect and abnormal mood” at times, her examinations revealed “mostly normal
findings,” and her treatment has been conservative, “including psychotherapy and prescribed
alprazolam, Xanax, Lamictal, and Cymbalta,” and she had “significant activities of daily living.”
(Tr. at 24.)

14

At step two, the ALJ also included a discussion of the four broad functional ateas of
mental functioning set out in the regulations for evaluating mental impairments, commonly
known as “patagraph B” criteria. These functional areas are understanding, remembering and
applying instructions; interacting with others; concentrating, persisting, or maintaining pace;
and adapting ot managing oneself. In the present case, the AL] concluded that Plaintiff had
mild limitations in each of these areas. The AL] included the following explanation of her
findings regarding Plaintiffs mental functioning:
[Plaintiff] alleged that she has difficulties remembering and concentrating.
However, on mental status examination, [Plaintiff] generally presents with
mostly normal findings, including alert, oriented, cooperative, normal judgment,
appropriately dressed, well-groomed, good hygiene, good eye contact, intact
absttact reasoning, good insight, normal gait, normal behavior, normal mood,
and normal affect. Additionally, [Plaintiff] reports that she is able to live with
her family, use the internet, use social media, reseatch medical treatment, craft,
take care of plants, basket weave, make jewelty, vacuum for shott periods, read,
and drive a car. [Plaintiff] also reported working after the alleged onset date, as
well as attempting to work as an English as a second language instructor. She
noted that she helps take care of her son who has been diagnosed with
schizophrenia. In addition, [Plaintiff] took her continuing education courses
for her RN license in early 2019, and then renewed het RN license in November
of 2019.
(Tr. at 21) (citing Tr. at 438, 470, 507, 515, 518, 593, 660, 667, 736, 748, 763, 2373, 2435, 2436,
2444, 2454, 2456, 2462). The ALJ, citing 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1),
concluded that “[b]ecause [Plaintiffs] medically detetminable mental impaitments cause no
more than ‘mild’ limitation in any of the functional ateas and the evidence does not otherwise
indicate that there is more than a minimal limitation in [her] ability to do basic work activities,
they are nonseverte.” (Tr. at 21.)
In making these findings, the AL] further noted that “[t]he limitations identified in the
“paragraph B” criteria are not [an RFC] assessment,” and that the mental RFC “assessment
15

used at steps 4 and 5 of the sequential analysis requires a more detailed assessment.” (I't. at
21.) The ALJ then further discussed Plaintiffs mental impairments in setting the RFC, and
set out het reasons for discounting Plaintiffs statements concerning the limiting effects of her
symptoms. (See Tr. at 23.)
Plaintiff contends that the ALJ erred by finding Plaintiffs mental impairments non-
sevete and by failing to include them in the RFC. Plaintiff notes that the ALJ relied on
Plaintiffs activities but failed to consider Plaintiffs testimony qualifying her abilities to engage
in those activities. Plaintiff also contends that it was error for the AL] to rely on the normal
examination findings, without considering the contraty findings including in particular the
assessments and neuropsychological testing by Dr. Harris. Finally, the ALJ points to the
opinions of the State Agency psychological consultants, who found moderate limitations in

some ateas and limited Plaintiff to “simple work.” Plaintiff argues that including these
limitations would have precluded her teturn to past work and/or transferability of skills
resulting in a finding of disability.
However, the AL] provided multiple reasons and extensive explanation for reaching
her conclusions. First, the AL] noted significant credibility issues regarding Plaintiffs claims,
based on the inconsistencies in the record and the assessments of both Dr. Harris and Dr.
Conrad. On this point, the ALJ noted that Plaintiffs “neuropshychological exam indicated
that it was suggested that she was exaggerating her symptoms and that her self-reported mood
disorder should be interpreted with caution.” (I'r. at 23, 729-34.) Specifically, as noted above,
Dr. Hattis included a symptom validity test as part of the neutropsychological testing, and
Plaintiffs “performance across a stand-along symptom validity measure was well below

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expectation and suggestive of possible symptoms exaggeration.” (Ir. at 731.) Plaintiffs
depression and anxiety findings were based on “self-reported mood measures” to be
“fnterpreted with caution.” (Tr. at 731.) The ALJ also relied on Dr. Conrad’s assessment that
Plaintiff was seeing doctors because she “seems to want to be on disability.” (Tr. at 23, 2451.)
In addition, the ALJ noted specific instances that reflected a lack of credibility, such as Plaintiff
reporting “spending an entire month in bed,” when the remainder of the evidence in the
tecotd showed otherwise, including medical appointments scheduled during that time. (I'r. at
21.)
Second, the ALJ telied on the examination records reflected “mostly normal” mental
status examinations including “alert, oriented, cooperative, normal judgment, appropriately
dressed, well-groomed, good hygiene, good eye contact, intact abstract reasoning, good
insight, normal gait, normal behavior, normal mood, and normal affect.” (Ir. at 21.) Plaintiff
points to other records showing depression and anxiety and related symptoms, particularly the
assessments and related limitations from Dr. Harris. However, as noted above, the AL]
specifically addressed Dr. Harris’ assessment and relied on Dr. Harris’ warning that Plaintiffs
“self-reported mood disorder” which included the anxiety and depression assessment, should
be considered with caution and reflected symptom exaggeration.
Third, the ALJ relied on Plaintiffs activities, including living with her family, using the
internet, using social media, researching medical treatment, crafting, taking care of plants,
basket weaving, making jewelry, vacuuming for shore periods, reading, and driving a car. (Tr.
at 21; see also Tr. at 2443.) The AL] also referenced Plaintiffs continued work activity after
the alleged onset date and her ability to care for her son who has been diagnosed with

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schizophrenia, as well as her decision to take continuing education courses and renew her RN
license in September 2019. (Tr. at 21.) The ALJ reasonably relied on the evidence in the
record reflecting that Plaintiff maintained the mental abilities required for these activities. The
AL) also noted Plaintiffs qualifying testimony that she had panic attacks when driving and
difficulty remember and concentrating due to a traumatic brain injury (Tr. at 23), but the ALJ
also noted that there was “no objective medical abnormality related to a traumatic brain
injuty,” with a “negative head CT” and “normal neurological examination findings.” (Tr. at
21-22.) ‘Thus, the ALJ considered Plaintiffs testimony regarding those activities, and
addressed those contentions in the context of the evidence in the record.
Finally, the AL] considered the evidence again in making a determination that the State
agency psychological consultants’ opined mental limitations were unpersuasive (Tr. at 24).
The State agency psychologists found Plaintiff had some moderate limitations in the
“patagtaph B” functional areas and opined that, as a result, she was “limited to understanding
and remembering short and simple instructions, sustaining sufficient attention to complete
simple routine tasks with normal breaks, working in a setting with minimal social demands,
and managing a stable work assignment in a setting with minimal changes in routine.” (Tr. at
24.) The ALJ found that these opinions were not persuasive because they were “inconsistent
with, and unsupported by, [Plaintiffs] mostly normal progtess reports, activities of daily living,
treatment history, and examination findings.” (Tr. at 24-25.) Those findings are further
explained throughout the decision, as discussed at length above, and notably the ALJ relied

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on the reports from Plaintiffs physicians Dr. Harris and Dr. Conrad as part of that
determination and explanation.’
Plaintiff essentially asks the Court to reconsider and re-weigh the evidence presented.
However, it is not the function of this Court to re-weigh the evidence or reconsider the AL]’s
determinations if they are supported by substantial evidence. As noted 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 ALJ.” 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 AL]’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. Hete,
the ALJ reviewed the evidence, explained her decision, and clearly explained the reasons for
her determination. That determination is supported by substantial evidence in the record.
Plaintiff has not identified any errors that require remand, and Plaintiff's Motion to Reverse
the Decision of the Commissioner should therefore be denied.
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that PlaintifPs Motion for Summary Judgment [Doc. #11] be

To the extent Plaintiff contends that a finding limiting her to simple work would render her disabled because
she could not return to her past work or have transferrable skills, Defendant has noted that such a finding
would not have rendered her disabled under the Grids, and has further noted that the ALJ made an alternative
finding that Plaintiff would be able to perform the requirements of unskilled work such as Store Laborer, Hand
Packager, and Dining Room Attendant. (Ir. at 26-27.) The Court need not consider that issue further, given
that there is substantial evidence supporting the AL]’s determination as discussed above.
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DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #13] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 1st day of September, 2022.
/s/ Jot Elizabeth Peake
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254200. Public record. Not legal advice.