# BOWLIN v. O'MALLEY

> District Court, M.D. North Carolina · March 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10254506

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 5, 2024
- **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

STEPHEN B., )
)
Plaintiff, )
)
v. ) 1:22CV 1026
)
MARTIN J. O7MALLEY;,! )
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Stephen B. (“Plaintiff”) brought this action pursuant to Section 205(g) of the
Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a
final decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits (“DIB”) under Title II of the Act. The Parties have filed ctoss-motions
for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on July 5, 2019, alleging a disability
onset date of August 1, 2017. (Tr. at 20, 214-20.)? Plaintiffs application was denied initially
(Tr. 73-84, 99-102) and upon reconsideration (Tr. at 85-98, 106-13). Thereafter, Plaintiff

December 20, 2023, Martin J. O’Malley was sworn in as Commissioner of Social Security, replacing Acting
Commissioner Kilolo Kyakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.
O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken
to continue this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C. §
405(g).
? Transcript citations refer to the Sealed Administrative Record [Doc. #4].

requested an administrative heating de novo before an Administrative Law Judge (“ALJ”).
(Tr. at 114-15.) On February 1, 2022, Plaintiff, along with his non-attorney representative,
attended the subsequent video hearing, at which Plaintiff and an impartial vocational expert
testified. (Ir. at 20, 36-72.) Following the hearing, the ALJ concluded that Plaintiff was not
disabled within the meaning of the Act (Tr. at 30-31), and on September 29, 2022, the Appeals
Council denied Plaintiff's request for review of that decision, thereby making the AL]’s
conclusion the Commissionet’s final decision for purposes of judicial review (Tr. at 1-6).
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
cortect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets
and 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)
(internal quotation omitted). “It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(internal brackets and quotation omitted). “If there is evidence to justify a refusal to direct a

verdict were the case before a jury, then there is substantial evidence.” Hunter, 993 F.2d at 34
(internal quotation omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation omitted). “Where conflicting
evidence allows teasonable 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 (internal brackets
and quotation 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).
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
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

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 ef seg., provides benefits to
disabled persons 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 ef seg., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 CFR. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

“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 carries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impaitment” at step three, the claimant is
disabled. Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but
falters at step three, Le., “[i]f a claimant’s impaitment 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

+ “REC is a measurement of the most a claimant can do despite [the clatmant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations requite RFC to reflect clatmant’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 omitted).
The REC 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 AL] only after [the ALJ] considers
all relevant evidence of a clatmant’s impaitments and any related symptoms (¢.g, pain).” Hines, 453 F.3d at
562-63.

that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “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 clatmant is able to perform other work considering both [the claimant’s RFC]
and [the clatmant’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 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.
IW. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since his alleged onset date, August 1, 2017. The ALJ therefore concluded that
Plaintiff met his burden at step one of the sequential evaluation process. (Tr. at 22.) At step
two, the ALJ further determined that Plaintiff suffered from the following severe impairments:
Degenerative Disc Disease (DDD) of the Cervical and Lumbar Spine; Lumbar
Radiculopathy; Mononeuropathy of the Bilateral, Upper Extremities and the
Bilateral, Lower Extremities (Right>Left); Migraine Headaches and Obesity|.]
(Ir. at 22.) The ALJ found at step three that none of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 23-25.) Therefore, the AL] assessed
Plaintiffs RFC and determined that he could perform sedentary work with the following, non-
exertional limitations:
[Plaintiff] can frequently push/pull with the bilateral, lower extremities. [He]
can frequently push/pull with the bilateral, upper extremities. [He] can

occasionally climb tramps and stairs, but can never climb ladders, ropes, and
scaffolds. [He] can frequently balance and stoop and can occasionally crouch
and crawl. [He] can frequently reach in all directions, including overhead, with
the bilateral, upper extremities. [He] can work in an environment with a
moderate noise level. [He] can occasionally work in direct sunlight. [He] can
occasionally work in and around vibration, as well as in and around dust, odors,
fumes and pulmonary irritants. [He] can never work at unprotected heights and
can occasionally work around moving, mechanical parts. [He] requires the
option to sit/stand, every fifteen minutes, while remaining on task.
(Tr. at 25.) At step four of the analysis, the AL] found, based on the above RFC and the
vocational expert’s testimony, that Plaintiff was unable to perform any of his past relevant
work. (Ir. at 29.) However, the ALJ determined at step five that, given Plaintiffs age,
education, work experience, RFC, and the testimony of the vocational expert as to these
factors, he could perform other jobs available in significant numbers in the national economy.
(Tr. at 29-30.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act.
(Tr. at 31.)
Plaintiff now contends that the ALJ erred in two respects when assessing Plaintiffs
RFC. Specifically, he argues that the ALJ (1) failed to “explain why she did not include an
[RFC] accommodation for leg elevation or reclining” and (2) failed to “account for Plaintiffs
time off task and the absences he would incur . . . due to his recurrent migraine headaches.”
(PL’s Br. [Doc. #8] at 1.) In both instances, Plaintiff chiefly argues that the ALJ erred in
finding Plaintiffs statements regarding the limiting effects of his impairments less than fully
consistent with the medical evidence and other evidence of record.
Under the applicable regulations, the ALJ’s decision must “contain specific reasons for
the weight given to the tndividual’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
IT and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304 (Oct.
25, 2017) (“SSR 16-3p”); see_also 20 C.F.R. § 404.1529. Moreover, in Arakas_v.
Commissioner, Social Security Administration, 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit
clarified the procedure an AL] must follow when assessing a claimant’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 vor required 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 AL] 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.
983 F.3d at 95; see also Hines, 453 F.3d at 564-65; Shelley C. v. Comm’r of Soc. Sec. Admin.,
61 F.4th 341, 361-62 (4th Cir. 2023) (“The Fourth Circuit has long held that while there must
be objective medical evidence of some condition that could reasonably produce the pain, there
need not be objective evidence of the pain itself or its intensity. Indeed, because pain is not
readily susceptible of objective proof, the absence of objective medical evidence of the
intensity, severity, degree or functional effect of pain is not determinative.” (internal brackets,
ellipsis, emphasis, and quotations omitted)).

In the present case, at the administrative hearing, Plaintiff testified that he stopped
working as a town maintenance water operator in 2017. The job involved heavy lifting and
driving machinery, and Plaintiff explained that, because of his neuropathy, he “kept falling
when [he] would get off of the machinery” and “it was just too difficult for [him] to continue.”
(Tr. at 48-49.) When asked why he could not work, Plaintiff testified that his back pain from
his pats interarticularis fracture required him “to take frequent breaks for a few minutes up to
a couple of hours” and that when he worked, he also “had to take a few days off a month, two
to three days off, for migraines.” (Tr. at 50,59.) Plaintiff further testified that his neuropathy
causes his legs to go numb, that it is very painful to sit for long periods, and that, because of
his back injury, he “[has] to elevate [his] legs waist high, almost in a laying position,” to alleviate
pain. (Tr. at 51.) Ifhe sits with his feet straight down, it hurts his back and causes his legs to
go numb, so he has to “sit almost in a laying position with [his] feet straight out.” (Tr. at 54.)
Plaintiff testified that he spends his time either laying on the sofa or in bed. (Tr. at 54-55.)
PlaintifPs neuropathy is worse in his right leg, and it is more likely than his left to “give out”
while he is standing or walking. (Tr. at 56.) In terms of positional changes, Plaintiff testified
that he could only sit for “[p]robably 10 minutes, 15 minutes at the most” and that “[1]t would
be very painful if it [was] longer than that.” (Tr. at 60.) He explained that, during the 30-
minute video hearing, he had his “legs stretched out straight in from of [him] on the couch”
and was leaning on the couch arm, “almost in a laying position.” (Tr. at 60-61.)
Plaintiff also testified that his neurologist prescribed Tramadol for his pain, including
migraine pain. (Tr. at 51.) He reported that his migraines occur “every couple of weeks” on
average, from “one a week to maybe one every two weeks” and that they “last approximately

two to three days.” (Tr. at 51, 58.) When he has a migraine, it affects his vision, hearing, and
balance. (Tr. at 51.) He experiences dizziness, blurred vision, and sensitivity to light and
sound. (T'r. at 58.) Loud noises, ditect sunlight, and positional changes, such as bending over,
can trigger Plaintiffs migraines. (Ir. at 61-62.) He testified that when he experiences one of
these headaches, he must stay home, take medications such as Tramadol, Excedrin, and Advil,
and sleep as much as possible over the two-to-three-day period until the headache subsides.
(Tr. at 58.) When he was still working, he would have to take two to three days off of work
each month for migraines. (Tr. at 50.) He also testified that he had been referred to a
neurologist for his migraines, but that he could not afford to go (Tr. at 61.)
Notably, the AL]’s decision contains no account of Plaintiff's subjective complaints as
presented through hearing testimony and no discussion of his daily activities. Instead, in
undertaking the two-step analysis of Plaintiffs symptoms, the AL] stmply found:
After careful consideration of the evidence, I find that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent
with the medical and other evidence in the record for the reasons explained in
this decision.
As for the claimant’s statements, including his testimony at the hearing about
the intensity, persistence and limiting effects of his symptoms, they are
inconsistent because the objective findings in this case fail to provide strong
support for the claimant’s allegations of disabling symptoms and limitations
resulting from his above stated severe impaitments.

(Tr. at 26 (emphasis added).) ‘Thus, by the ALJ’s own explanation, the only reason for rejecting
Plaintiffs testimony was the lack of objective findings to provide support for his allegations

of disabling symptoms, but without any discussion of his testimony and his reported pain-
related symptoms.
The ALJ does summarize Plaintiffs treatment notes, and in doing so he does recount
some of Plaintiffs subjective complaints to his doctors reflected in the treatment notes. (Tr.
at 26-27.) ‘These treatment notes include an MRI reflecting “a disc protrusion at C4-C5,
indenting the ventral thecal sac,” an EMG showing “electrodiagnostic evidence of multiple
mononeuropathy involving the upper limbs and right lower extremity, suggestive of sensory
motor axonal and demyelinating peripheral neuropathy involving the distal limbs,” and an x-
ray showing degenerative disc disease and a significant amount of facet joint arthritis in the
lumbar spine. (Tr. at 26; see also Tr. at 309, 315, 338-39, 361.) The treatment notes also
reflect Plaintiffs ongoing history of migraines with associated nausea, and his treating
physician’s notations that the migtaines were impacting his functioning, with multiple failed
treatments in the past. (Ir. at 27, 337, 355-56, 365, 370, 376, 381, 385, 441, 486, 496, 515-16,
519.) The ALJ also acknowledged that the treatment records reflect occasions of lumbar and
cetvical tenderness and Plaintiffs appearing uncomfortable with guarded movements. (I'r. at
27, 486-89, 518, 522-23,.) However, the AL]’s summary of the medical records also repeatedly
concludes that “objective signs upon examination . .. were normal” (Tr. at 26), “signs were
again normal at examination” (Ir. at 26), “objective signs were unremarkable” (Tr. at 27),
“objective signs were normal” (Tr. at 27), “[o]nce again, the objective signs were normal,” (Tt.
at 27), and “other objective signs were normal” (Tr. at 27).°

5 These objective findings relate to Plaintiffs “gait, station, range of motion, reflexes, and sensation.” (It. at
26.
10

The ALJ then includes a summary of medical opinions and prior administrative
findings, but the ALJ did not fully accept the opinions of the state agency physicians based on
the need to consider “subsequent evidence presented at the hearing,” although there is no
discussion of the subsequent testimony presented at the hearing. The ALJ also found
“somewhat persuasive” an opinion from Plaintiffs treating providers that Plaintiff was unable
to sit for prolonged periods (Tr. at 28, 523), but the ALJ discounted that opinion by again
noting that Plaintiffs “physical examinations were routinely within normal limits.” (Tr. at 28.)
From this discussion, the only apparent reason the AL] gave for discounting Plaintiffs
symptoms is a lack of objective evidence. As noted above, the ALJ generally asserts that
Plaintiffs “statements concerning the intensity, persistence and limiting effects of [his]
symptoms ate not entitely consistent with the medical and other evidence in the record for
the reasons explained in this decision.” (Ir. at 26.) She then states that Plaintiffs “statements,
including his testimony at the hearing about the intensity, persistence and limiting effects of
his symptoms . . . are inconsistent because the objective findings in this case fail to provide
strong support for [Plaintiffs] allegations of disabling symptoms and limitations resulting from
his... severe impairments.” (T't. at 26 (emphasis added).) Having made this assertion, the
ALJ was required under the relevant regulations, rulings, and case law to make further findings
and consider the record as a whole. See SSR 16-3p, 2017 WL 5180304, at *5 (providing that
the SSA “will not 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’); see also
20 C.F.R. § 416.929(c)(1)-@). Here, the AL] failed to follow this directive, and instead

11

ptovided no discussion or analysis for discounting Plaintiffs testimony, other than the
conclusory references to objective findings and normal objective signs. She failed to consider
the entire case record, and instead disregarded Plaintiffs statements about the intensity,
petsistence, and limiting effects of symptoms solely by reference to a lack of objective
evidence, without providing any other reasons for deviating from Plaintiffs statements
regarding the impact of his symptoms on his ability to work.
Moreover, although the AL failed to directly discuss any of Plaintiffs testimony in her
decision, the RFC assessment clearly accounts for some of Plaintiffs alleged limitations. For
example, the ALJ limited Plaintiff to occasional work in direct sunlight and provided the
option to alternate between sitting and standing every fifteen minutes while remaining on task.
(See Tr. at 25.) However, the ALJ’s analysis of the evidence provides no discernable basis for
accepting these restrictions while omitting others. Notably, concerning Plaintiffs migraines,
the ALJ points to no evidence (1) that Plaintiffs headache symptoms were adequately
controlled through treatment or (2) addressing Plaintiffs assertion that, in the course of his
ptevious work, he “had to take a few days off a month” due to migraines. (Tr. at 50.) While
this degree of absenteeism was tolerated in Plaintiffs previous job, the ALJ determined that
Plaintiff could no longer perform this work (Tr. at 29), and the vocational expert testified that
missing even two days per month would preclude other jobs available in the national economy
(Tr. at 67). See Woody v. Kijakazi, No. 22-1437, 2023 WL 5745359, at *1 (4th Cir. Sept. 6,
2023) (holding that “the ALJ erred by not making specific finding regarding how often [the
claimant] would be absent from work due to the frequency and severity of her headaches”
where the vocational expert testified that more than one absence per month would preclude

12

full time employment and claimant reported having headaches “about once a week” despite
treatment).
Ultimately, the ALJ was required to consider the entire record, rather than objective
findings alone, when discounting Plaintiffs statements regarding his pain, and the AL] was
requited to sufficiently explain the basis for her findings in the decision itself. See SSR 16-3p,
2017 WL 5180304, at *10 (“The determination or 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.”) As set out above, the ALJ failed
to provide such an explanation in the present case, and the Court cannot attempt to rely on
reasoning that the ALJ did not provide.
IT IS THEREFORE ORDERED that the Commissioner’s decision finding no
disability is REVERSED, and that the matter is REMANDED to the Commissioner under
sentence four of 42 U.S.C. § 405(g). The Commissioner is directed to remand the matter to
the ALJ for further consideration of Plaintiffs claim. Defendant’s Dispositive Brief [Doc.
#10] is DENIED, and Plaintiffs Dispositive Brief [Doc. #8] is GRANTED to the extent set
out herein. However, to the extent Plaintiff seeks an immediate award of benefits, his Motion
is DENIED.
This, the 5 day of March, 2024.
___/s/ Joi Elizabeth Peake __
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254506. Public record. Not legal advice.