Bingaman v. Berryhill

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:18-CV-216-DCK

TERESA D. BINGAMAN, )

)

Plaintiff, )

)

v. ) ORDER

)

NANCY A. BERRYHILL, )

Acting Commissioner of Social Security, )

)

Defendant. )

)

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Judgment On

The Pleadings” (Document No. 14) and Defendant’s “Motion For Summary Judgment”

(Document No. 16). The parties have consented to Magistrate Judge jurisdiction pursuant to 28

U.S.C. § 636(c), and these motions are ripe for disposition. After careful consideration of the

written arguments, the administrative record, and applicable authority, the undersigned will direct

that Plaintiff’s “Motion For Judgment On The Pleadings” (Document No. 14) be denied; that

Defendant’s “Motion For Summary Judgment” (Document No. 16) be granted; and that the

Commissioner’s decision be affirmed.

I. BACKGROUND

Plaintiff Teresa D. Bingaman (“Plaintiff”), through counsel, seeks judicial review of an

unfavorable administrative decision on her application for disability benefits. (Document No. 1).

On or about October 24, 2014, Plaintiff filed an application for a period of disability and disability

insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 405, alleging an

inability to work due to a disabling condition beginning August 1, 2013. (Transcript of the Record

of Proceedings (“Tr.”) 13, 177-178). The Commissioner of Social Security (the “Commissioner”

or “Defendant”) denied Plaintiff’s application initially on or about March 5, 2015, and again after

reconsideration on or about June 30, 2015. (Tr. 13, 93-96, 101-108). In its “Notice of

Reconsideration,” the Social Security Administration (“SSA”) included the following explanation

of its decision:

The medical evidence shows that your condition is not severe

enough to be considered disabling. Despite your back pain and

discomfort, you are able to sit, stand, walk and move your arms

without significant loss of control or muscle weakness. The medical

evidence does not indicate that you have a condition that can be

considered totally disabling at this time. We realize your condition

keeps you from doing any of your past jobs, but it does not keep you

from doing less demanding work. Based on your age, education,

and past work experience, you can do other work. It has been

decided, therefore, that you are not disabled according to the Social

Security Act.

(Tr. 101).

Plaintiff filed a timely written request for a hearing on July 7, 2015. (Tr. 13, 109). On

April 10, 2017, Plaintiff appeared and testified at a hearing before Administrative Law Judge Paul

Goodson (the “ALJ”). (Tr. 13, 31-68). In addition, Karl S. Weldon, a vocational expert (“VE”),

and Daniel A. Bridgman, Plaintiff’s attorney, appeared at the hearing. Id.

The ALJ issued a partially unfavorable decision on June 13, 2017. (Tr. 9-11, 13-26). On

August 3, 2017, Plaintiff filed a request for review of the ALJ’s decision, which was denied by the

Appeals Council on February 21, 2018. (Tr. 1-3, 157). The ALJ decision became the final decision

of the Commissioner when the Appeals Council denied Plaintiff’s review request. (Tr. 1).

Plaintiff’s “Complaint” seeking a reversal of the ALJ’s determination was filed in this

Court on April 24, 2018. (Document No. 1). On August 30, 2018, the parties consented to

Magistrate Judge jurisdiction in this matter. (Document No. 11).

Plaintiff’s “Motion For Judgment On The Pleadings” (Document No. 14) and Plaintiff’s

“Summary Of The Case” (Document No. 15) were filed October 30, 2018; and Defendant’s

“Motion For Summary Judgment” (Document No. 16) and “Memorandum In Support Of

Defendant’s Motion For Summary Judgment” (Document No. 17) were filed November 29, 2018.

Plaintiff declined to file a reply brief, and the time to do so has lapsed. See Local Rule 7.2 (e).

Based on the foregoing, the pending motions are now ripe for review and disposition.

II. STANDARD OF REVIEW

The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review

of a final decision of the Commissioner to: (1) whether substantial evidence supports the

Commissioner’s decision; and (2) whether the Commissioner applied the correct legal standards.

Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.

1990).

The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the

evidence or to substitute its judgment for that of the Commissioner – so long as that decision is

supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v.

Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.

2012). “Substantial evidence has been defined as ‘more than a scintilla and [it] must do more than

create a suspicion of the existence of a fact to be established. It means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.’” Smith v. Heckler, 782 F.2d

1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).

Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and

to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599

(4th Cir. 1979) (“This court does not find facts or try the case de novo when reviewing disability

determinations.”); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that

it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the

medical evidence, and that it is the claimant who bears the risk of nonpersuasion.”). Indeed, so

long as the Commissioner’s decision is supported by substantial evidence, it must be affirmed even

if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841

(4th Cir. 1982).

III. DISCUSSION

The question before the ALJ was whether Plaintiff was under a “disability” as that term of

art is defined for Social Security purposes, at any time between August 1, 2013 and the date of his

decision.1 (Tr. 13, 26). To establish entitlement to benefits, Plaintiff has the burden of proving

that she was disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S.

137, 146 n.5 (1987).

The Social Security Administration has established a five-step sequential evaluation

process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:

(1) whether claimant is engaged in substantial gainful activity -

if yes, not disabled;

(2) whether claimant has a severe medically determinable

physical or mental impairment, or combination of

impairments that meet the duration requirement in §

404.1509 - if no, not disabled;

(3) whether claimant has an impairment or combination of

impairments that meets or medically equals one of the

listings in appendix 1, and meets the duration requirement -

if yes, disabled;

1 Under the Social Security Act, 42 U.S.C. § 301, the term “disability” is defined as an: 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. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (quoting 42 U.S.C.

§ 423(d)(1)(A)).

(4) whether claimant has the residual functional capacity

(“RFC”) to perform her/his past relevant work - if yes, not

disabled; and

(5) whether considering claimant’s RFC, age, education, and

work experience he/she can make an adjustment to other

work - if yes, not disabled.

20 C.F.R. § 404.1520(a)(4)(i-v).

The burden of production and proof rests with the claimant during the first four steps; if

claimant is able to carry this burden, then the burden shifts to the Commissioner at the fifth step to

show that work the claimant could perform is available in the national economy. Pass, 65 F.3d at

1203. In this case, the ALJ determined at the fifth step that Plaintiff was not disabled between

August 1, 2013 and February 9, 2017. (Tr. 24-26). However, the ALJ determined that Plaintiff

was disabled as of February 9, 2017, the date her age category changed. Id.

First, the ALJ determined that Plaintiff had not engaged in any substantial gainful activity

since August 1, 2013, her alleged disability onset date. (Tr. 15). At the second step, the ALJ found

that “lumbar degenerative disk disease, post fusion May of 2014; osteoarthritis; and chronic

obstructive pulmonary disease” were severe impairments.2 (Tr. 16). At the third step, the ALJ

determined that Plaintiff did not have an impairment or combination of impairments that met or

medically equaled one of the impairments listed in 20 C.F.R. 404, Subpart P, Appendix 1. (Tr.

16).

Next, the ALJ assessed Plaintiff’s RFC and found that she retained the capacity to perform

light work activity, with the following limitations:

2 The determination at the second step as to whether an impairment is “severe” under the regulations is a

de minimis test, intended to weed out clearly unmeritorious claims at an early stage. See Bowen v. Yuckert,

482 U.S. 137 (1987).

occasionally climb ramps and stairs; never climb ladders, ropes and

scaffolds; should avoid concentrated exposure to temperature

extremes, humidity, pulmonary irritants, unprotected heights and

unprotected machinery. The claimant is able to occasionally stoop,

bend, squat, and kneel; and must have the ability to alternate

between sitting and standing, once per hour, while remaining on

task. The claimant requires the use of a cane for ambulation,

standing, and balancing.

(Tr. 17). In making his finding, the ALJ stated that he “considered all symptoms and the extent to

which these symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and

96-7p.” Id.

At the fourth step, the ALJ held that Plaintiff could not perform her past relevant work as

an assistant manager and executive housekeeper. (Tr. 24). At the fifth and final step, the ALJ

concluded based on the testimony of the VE and “considering the claimant’s age, education, work

experience, and residual functional capacity” that jobs existed in significant numbers in the

national economy that Plaintiff could perform. (Tr. 24). Specifically, the VE testified that

according to the factors given by the ALJ, occupations claimant could perform included a ticket

taker, information clerk, and office helper. (Tr. 25). Therefore, the ALJ concluded that Plaintiff

was not under a “disability,” as defined by the Social Security Act, at any time between August 1,

2013 and February 9, 2017. In addition, the ALJ concluded that Plaintiff was disabled beginning

February 9, 2017 through the date of his decision, June 13, 2017. (Tr. 14, 25-26).

Plaintiff on appeal to this Court makes the following assignments of error: (1) the ALJ

failed to perform “special-technique” analysis; (2) the ALJ made an improper credibility

assessment; (3) the RFC is not supported by substantial evidence; and (4) the ALJ failed to assign

weight to several medical opinions. (Document 15, p. 5). The undersigned will discuss each of

these contentions in turn.

A. Special Technique Analysis

In the first assignment of error, Plaintiff argues the ALJ failed to evaluate her mental

impairments using the special technique analysis as required in regulation 20 C.F.R. § 404.1520a

and pursuant to Patterson v. Berryhill, 846 F.3d 656 (4th Cir. 2017):

Under the special-technique regulation, if the ALJ determines that a

mental impairment exists, he “must specify the symptoms, signs,

and laboratory findings that substantiate the presence of the

impairment(s) and document [his] findings.” Id. § 404.1520a(b)(1).

The ALJ must also document “a specific finding as to the degree of

limitation in each of” the four areas of functional limitation listed in

§ 404.1520a(c)(3). Id. § 404.1520a(e)(4). In the first three areas of

functional limitations—(a) activities of daily living, (b) social

functioning, and (c) concentration, persistence, or pace—the ALJ

must rate the degree of limitation using “the following five-point

scale: None, mild, moderate, marked, and extreme.” Id. §

404.1520a(c)(4). The ALJ must rate the fourth functional area—(d)

episodes of decompensation—using “the following four-point scale:

None, one or two, three, four or more.” Id. Next, the ALJ must

determine if the mental impairment is severe, and if so, whether it

qualifies as a listed impairment. Id. § 404.1520a(d).

(Document No. 15, p. 5) (quoting Patterson, 846 F.3d 656, 659 (4th Cir. 2017)). Thus, Plaintiff

asserts, if the ALJ finds there is a mental impairment, the ALJ must evaluate it under the special-

technique regulation pursuant to Patterson. (Document 15, p. 6). According to Plaintiff, the record

shows she has suffered from chronic anxiety since 2012, has been prescribed Xanax, which

Plaintiff believes to have caused memory loss, and has difficulty concentrating. Id. Additionally,

the State agency consultant, Dr. Janis Heffron, Ph.D., concluded that Plaintiff has “mild difficulties

in maintaining concentration, persistence, or pace.” (Document 15, p.6) (citing Tr. 22). Plaintiff

argues that despite evidence of chronic anxiety, the ALJ failed to “consider the effects of

[Plaintiff’s] mental impairment of anxiety, even if non-severe, and to properly evaluate her anxiety

using the special-technique” which is “in plain error and harmful to this Court’s ability to

meaningful review of the decision.” (Document 15, p.6) (citing Tr. 16).

In response, Defendant argues that the ALJ relied upon the opinions of the State agency

physicians who evaluated Plaintiff’s mental impairments pursuant to the special technique

analysis. Defendant explains further:

[A]lthough the ALJ did not cite to the special technique in his

decision, the ALJ considered the opinions of the State Agency

physicians, who in fact, evaluated Plaintiff’s mental impairment

pursuant to the special technique. (Tr. 22, 69-78, 80-90). Here, the

state agency consultants Janis Heffron, Ph.D. and Mark Berkowitz,

Psy.D. opined that Plaintiff had no restriction of activities of daily

living; no difficulties in maintaining social functioning; mild

difficulties in maintaining concentration, persistence or pace; and no

repeated episodes of decompensation, each of extended duration

(Tr. 22, 69-78, 80-90). The ALJ assigned these opinions significant

weight (Tr. 22). The ALJ’s reliance upon the opinions of State

Agency medical experts was within his purview and a proper

application of the Commissioner’s regulations.

(Document 17, pp. 4-5).

Defendant then distinguishes the present case from Patterson. (Document 17, p. 5-6). First,

Defendant asserts that the plaintiff in Patterson was found to have severe physical and mental

impairments, unlike the present case where Plaintiff’s anxiety was found to be a non-severe

impairment according to medical evidence. (Document 17, p. 5) (citing Tr. 16). In the present case,

the ALJ noted that Plaintiff’s anxiety was controlled; she was noted as compliant with medication;

her symptoms were stable with no side effects; she denied any severe anxiety attacks; and she

denied fatigue, suicidal ideation and depression. (Document 17, p. 5) (citing Tr. 16, 73, 85, 267-

268, 274-277, 293, 300, 583-585, 591, 601, 604, 629, 632, 726-727, 730, 737, 764). Defendant

contends “if a symptom can be reasonably controlled by medication or treatment, it is not

disabling.” (Document 17, p. 5) (quoting Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)).

Second, Defendant points out that the ALJ in Patterson did not evaluate the severity of Patterson’s

mental impairments in accordance with the special technique, nor did he document application of

the special technique in his decision as required by the regulation. (Document 17, p. 6) (citing 20

C.F.R. § 404.1520a(e)). In the present case, however, the ALJ cited to and gave great weight to

the State Agency physicians, who evaluated Plaintiff’s anxiety pursuant to the special technique.

(Document 17, p. 6) (citing Tr. 22, 69-78, 80-90).

Finally, Defendant argues that any error here is “harmless” and notes that the Fourth Circuit

will not remand a matter due to a harmless error. (Document 17, p. 6) (citing Camp v. Massanari,

22 Fed. Appx. 311, 2001 WL 1658913, at *1 (4th Cir. 2001)). Defendant claims that Plaintiff has

failed to show she was harmed by the ALJ’s error and that a correction of the error might lead to

a different conclusion. (Document 17, p. 6) (citing Newton v. Apfel, 209 F.3d 448, 458 (5th Cir.

2000)).

The undersigned finds Defendant’s argument persuasive. In considering Plaintiff’s mental

impairments, the ALJ explains, “her anxiety symptoms were stable on current medication, with no

side effects noted, and were generally assessed as controlled. See, for example, Exhibits 1F at

pages 2, 9, 8F at pages 64, 74, 10F at pages 49, 59.” (Tr. 19). The ALJ explains further:

The record indicates that the claimant also suffers from anxiety

(Exhibit 10F at page 8; noted as controlled; Exhibit 8F at page 56,

the claimant was noted as compliant with medication and denied any

severe anxiety attacks) … I have considered all symptoms and the

extent to which these symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence,

based on the requirements of 20 C.F.R. 404.1529 16 and SSR 96-4p

and SSR 16-3.

(Tr. 16).

Additionally, it is important to reiterate Defendant’s argument that the State Agency

medical experts, who were afforded great weight by the ALJ, evaluated Plaintiff’s mental

impairments using the special technique analysis and found the following: Plaintiff had no

restriction of activities of daily living; no difficulties in maintaining social functioning; mild

difficulties in maintaining concentration, persistence or pace; and no repeated episodes of

decompensation, each of extended duration. (Tr. 22, 69-78, 80-90).

The undersigned finds that the ALJ adequately considered Plaintiff’s history, relevant

evidence, and functional limitations in reaching his determination of mental impairment severity.

B. Credibility Analysis

In the second assignment of error, Plaintiff argues the ALJ performed an improper

credibility analysis and that the ALJ’s symptom evaluation finding fails to consider the factors

listed in 20 C.F.R. § 404.1529(c) when evaluating Plaintiff’s subjective complaints. (Document

15, pp.7-9). First, Plaintiff argues the ALJ placed an improper burden on the Plaintiff to

substantiate her pain intensity with objective findings. (Document 15, p. 7). In Lewis v. Berryhill,

858 F.3d 858, 866 (4th Cir. 2017), the court held that once objective medical evidence shows a

condition that could reasonably produce the alleged symptoms, the ALJ may not require the

claimant to provide objective medical evidence to support the intensity of the pain. Plaintiff asserts

that the ALJ cited to evidence, a vast majority of which supported Plaintiff’s claims, and

determined that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of

[her] symptoms are not fully supported for the reasons explained in this decision.” (Document 15,

p. 8) (citing Tr. 22). However, Plaintiff argues, the ALJ never specifically explained which

complaints he found to be credible or not credible and failed to explain what he relied on in

determining credibility. (Document 15, p. 8) (citing Tr. 22, 16-24).

Plaintiff assumes the ALJ erroneously relied on Plaintiff’s testimony regarding her daily

activities, such as performing housekeeping chores, cleaning her room, doing dishes, taking out

the trash, personal grooming, taking medications, and shopping. (Document 15, p. 8). Plaintiff

argues that performing chores and maintaining personal hygiene cannot preclude a finding of

disability. (Document 15, pp. 8-9) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998))

(“Disability claimants should not be penalized for attempting to lead normal lives in the face of

their limitations.”).

Second, Plaintiff argues the ALJ ignored hundreds of pages of medical evidence that

support Plaintiff’s claims and that the ALJ inadequately explained his reasons for denying

Plaintiff’s benefits given her extensive medical history. (Document 15, p. 10) (citing Tr. 18-24).

Plaintiff claims the ALJ cited to several medical opinions that should support a finding of severe

impairment, but instead, the ALJ erroneously viewed these findings as “normal,” ignoring

abnormal findings such as spinal surgeries, steroid epidurals, physical therapy, prescription

narcotics, and the use of a TENS unit. (Document 15, pp. 10-11).

In response, Defendant concedes that the ALJ may not have explicitly discussed the factors

in 20 C.F.R. § 404.1529(c) within the specific context of Plaintiff’s symptom evaluation

discussion; however, Plaintiff argues, the ALJ’s decision must be read as a whole. (Document 17,

p. 7) (citing to Eason v. Colvin, 2013 WL 4858636, *7 (E.D.N.C. Sept. 11, 2013)). Defendant

goes on to discuss at great length the plethora of evidence the ALJ considered in evaluating

Plaintiff’s allegations, including Plaintiff’s testimony, examination findings and observations,

treatment records, and objective medical evidence and opinions. (Document 17, pp. 7-14)

(citations omitted).

In addressing Plaintiff’s argument regarding the ALJ’s consideration of daily activities,

Defendant explains:

The ALJ specifically noted that Plaintiff’s ability to engage in these

activities appeared inconsistent with the severity of her allegations

(Tr. 22). “The only fair manner to weigh a subjective complaint…

is to examine how [it] affects the routine of life.” Mickles v. Shalala,

29 F.3d 918, 921 (4th Cir. 1994) (Hall, J. concurring) (Claimant

performed a wide range of housework). This being the case, the

relevance of daily activities to the determination of both credibility

and disability is beyond dispute. See, e.g., Craig v. Chater, 76 F.3d

585, 590 (4th Cir. 1996); Hunter v. Sullivan, 993 F.2d 31, 35 (4th

Cir. 1992); Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir.

1986)(Claimant performed several activities including cooking,

washing dishes, and generally taking care of the house).

(Document 17, p. 8).

The undersigned finds the ALJ performed a proper symptom evaluation in which he

considered a variety of factors required by 20 C.F.R. § 404.1529(c) and substantial evidence

supports his findings. See (Tr. 17-22). The undersigned is not persuaded that the ALJ ignored

“hundreds of pages” of medical evidence. See (Document 15, p. 10). Rather, it appears the ALJ

conducted a thorough review of the testimony, medical reports, record evidence, examination

findings and observations, and opinion evidence. (Tr. 17-23). The ALJ adequately considered the

evidence and explained his reasoning as to why the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not “fully supported” by the record. See

(Tr. 22). It is not for the Court to re-weigh the evidence.

C. RFC

In the third assignment of error, Plaintiff argues that the ALJ’s RFC determination is not

supported by substantial evidence because the ALJ failed to explain how he factored into the RFC

the limitations imposed by Plaintiff’s pain. (Document 15, p. 11-13). First, Plaintiff asserts that

the ALJ’s RFC directly contradicts the record, which contains “hundreds of pages” documenting

Plaintiff’s inability to perform light work due to pain and limitations. (Document 15, p. 12).

Specifically, Plaintiff repeatedly reported difficulty walking, standing, and sitting, as well as

difficulty moving from a seated position to a standing position. (Document 15, p. 12) (citing Tr.

332, 375, 458, 646-47, 806, 808, 809-11, 818). Plaintiff claimed her pain was worse with walking

and standing and nothing alleviated the pain. Id. Plaintiff claims these findings directly contradict

the ALJ’s RFC determination that the Plaintiff can perform “light work” which “requires a good

deal of walking or standing.” (Document 15, p. 12).

Second, Plaintiff argues the ALJ’s RFC determination failed to account for any non-

exertional limitations such as concentration, persistence, and pace. (Document 15, p. 12). As

evidence of Plaintiff’s memory loss and difficulty concentrating, Plaintiff provides examples from

the testimony where Plaintiff pauses and is unable to complete sentences or recall specific

information. (Document 15, p. 13) (citing Tr. 43). Additionally, Plaintiff testified that she gets “a

little confused” while shopping at Walmart because she is “in so much pain.” (Tr. 60). Plaintiff

contends that this testimony, coupled with Plaintiff’s chronic anxiety and prescribed psychiatric

and narcotic medications, requires the ALJ to account for non-exertional limitations, and the ALJ

failed to do so. (Document 15, p. 13) (Tr. 16-24).

In response, Defendant argues that the ALJ followed all relevant legal procedures in

determining the RFC and that substantial evidence supports the ALJ’s RFC evaluation that

Plaintiff could do light work with enumerated limitations. (Document 17, p. 16). Once again, the

Defendant describes in great detail the ALJ’s analysis and observes the following:

As cited supra, there is a plethora of evidence to support Plaintiff’s

ability to do light work with enumerated limitations. Specifically,

the record shows that she currently uses a cane; her family doctor

managed her mental health symptoms, and her medication had

recently been changed because she had short-term memory loss with

Xanax; she reported that she was now on Lexapro; she testified that

she did not have difficulty with breathing, except for her cold; she

continued with physical therapy that began immediately after the

fusion surgery; that her pain was at a level of six to eight, with

medication; and that she took hydrocodone for three years and a

muscle relaxer for approximately three to four years; she had

essentially normal findings; her COPD was controlled with

medication; she had no acute breathing episodes; she had quit

smoking; her anxiety symptoms were stable on medication, with no

side effects noted, and were generally assessed as controlled; that

her treating physician, Alfred Rhyne, M.D., assessed Plaintiff at

maximum medical improvement, with twelve percent disability

rating assigned to the lumbar spine; she was released to return to

work, but restricted to no lifting of more than thirty pounds and no

excessive lifting, bending, or twisting; after her lumbar epidural

steroid injections, she reported improvement in her ability to

perform activities of daily living, improved leg pain, and improved

ability to ambulate, following the injections; by January 2017, her

examinations, findings and observations were generally consistent;

she had 5/5 strength throughout both lower extremities; and

essentially normal findings, mild degenerative changes.

(Document 17, p. 16).

Defendant further explains that the ALJ considered Plaintiff’s ability to accomplish daily

activities such as laundry, yard work, dusting, taking out the trash, shopping, doing dishes, taking

care of her dog, taking medications without reminders, cooking, paying bills, counting change,

handling her checking and savings account, watching television, spending time with her family,

and going to dinner with her husband. (Document 17, p. 17) (citing Tr. 16). Defendant argues that

“the ability to accomplish these types of tasks on a daily basis demonstrates a level of functionality

commensurate with a determination that Plaintiff is capable of performing light work in an

employment setting.” (Document 17, p. 17).

Last, Defendant argues that the ALJ evaluated the Plaintiff’s impairments and reviewed

the entire medical record. (Document 17, p. 17). Defendant asserts the ALJ did not ignore

abnormal findings, but instead, fully considered the record, including both favorable and

unfavorable results, noting Plaintiff’s course of treatment, treatment modalities, physical and

mental examination results, diagnostic test results, and medical opinions. (Document 17, p. 17)

(Tr. 17-24).

The undersigned finds that the ALJ reviewed substantial evidence in the record and

properly considered both physical and mental impairments in determining that Plaintiff could

perform light work activity with enumerated limitations. See (Tr. 17). The ALJ goes on to describe

in extensive detail, citing to numerous parts of the record, the specific medical evidence that

supports this opinion:

Examination findings and observations were generally consistent,

and in January of 2017 included good affect and appearance; no

swelling or edema; good peripheral pulses in all extremities; intact

cranial nerves; brisk deep tendon reflexes in the knees and right

Achilles tendon and 2+ in the left Achilles tendon; decreased

sensory at L4-S1 on the right and at L5-S1 distribution on the left to

light touch and pinprick; and 5/5 strength throughout both lower

extremities. Exhibit 11F at page 1. Straight leg raise testing was

positive; tenderness with palpation over the lumbar facet joint line,

PSIS juncture, sacroiliac joint, sciatic notch regions, and lumbar

paraspinals was found and an antalgic gait pattern and ambulation

with the assistance of a cane were found. Exhibit 11F at pages 1…

The claimant was compliant with medication, and her Hydrocodone

was increased, as needed, for severe pain. Exhibit 11F at page 2.

Recommendations included an aquatic therapy program and that the

claimant continue to utilize the TENS unit. Exhibit 11F at page 2.

(Tr. 21).

In addition, Defendant persuasively argues that:

[P]laintiff’s assertion is an improper request for this Court to

reweigh the evidence. Craig v. Chater, 76 F.3d 585, 589 (4th Cir.

1996) (“In reviewing for substantial evidence, we do not undertake

to reweigh conflicting evidence, make credibility determinations, or

substitute our judgment for that of the [ALJ].”). The determination

of the claimant’s RFC is an administrative decision that is reserved

for the Commissioner. 20. C.F.R. § 404.1527(d)(2). “[T]here is no

rigid requirement that the ALJ specifically refer to every piece of

evidence in his decision.” Reid v. Comm’r of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206,

1211 (11th Cir. 2005)). Rather, the ALJ’s decision “must ‘contain a

statement of the case, in understandable language, setting forth a

discussion of the evidence, and stating the Commissioner’s

determination and reason or reasons upon which it is based.” Id.

(quoting 42 U.S.C. § 405(b)(1)).

(Document 17, p. 15).

As pointed out by the Defendant, the ALJ amply supported his decision by citing to

Plaintiff’s statements, mental health evaluations, treatment records, pain medication, and objective

medical findings (Tr. 17-24). The ALJ, therefore, properly considered and discussed Plaintiff’s

physical and mental impairments and satisfied the statutory requirements.

D. Medical Opinions

In the fourth and final assignment of error, the Plaintiff argues that the ALJ failed in

properly assigning weight to the opinions of medical providers. (Document 15, p. 13). First, the

Plaintiff argues that the ALJ failed to adequately explain his reasons for assigning differing

weights to various medical opinions as required under Monroe. (Document 15, p. 14). For

example, in assigning significant weight to non-examining State Agency Drs. Janis Heffron, Ph.D

and Mark Berkowitz, Psy.D., the ALJ explains they “are familiar with disability rules and

definitions and had the opportunity to review the then existing medical record” and their opinions

are “generally consistent with the mode of treatment and with the claimant’s testimony.”

(Document 15, p. 14) (citing Tr. 22). Plaintiff argues that this type of reasoning for assigning

differing weights to these opinions is “extremely conclusory and without adequate explanation.”

(Document 15, p. 14).

Second, Plaintiff argues the ALJ failed to “assign or discuss weight to the opinions of five

treating physicians: Drs. John Lang, Martin Henegar, David Wiercisiewski, Scott Otis, and

Herman Gore; and two physical therapists, Casey E. Hall and Lauren C. Waldron.” (Document 15,

p. 16) (citing Tr. 22-23). Plaintiff claims the aforementioned “opinions” of treating physicians

should have been assessed and assigned weight, but instead, the ALJ only assigned weight to three

medical opinions, only one of which, Dr. Alfred Rhyne, M.D., was an examining physician.

(Document 15, pg. 16).

In response, Defendant argues that the ALJ properly evaluated the treating physician’s

opinions and that substantial evidence supports the ALJ’s decision. (Document 17, pp. 18-21). In

assigning “some weight” to Dr. Alfred Rhyne, M.D., Defendant notes the ALJ’s decision-making

process:

The ALJ stated that Alfred Rhyne, M.D., who treated Plaintiff for

her workers compensation injury, opined on multiple occasions to

work restrictions such as no lifting of greater than twenty-five

pounds and no excessive bending, lifting, and twisting; he assessed

Plaintiff at maximum medical improvement, on July 31, 2013, with

a twelve-percent disability rating assigned to the lumbar spine.

Based upon this, the ALJ assigned some weight to this opinion. The

ALJ opined that Dr. Rhyne examined Plaintiff and was familiar with

her symptoms and functioning, as of the time of his treatment.

However, Dr. Rhyne’s opinion did not provide a specific, function-

by-function assessment of Plaintiff’s ability to perform work-related

tasks transferable to a residual functional capacity assessment for

disability purposes. (Tr. 23, 462-491).

(Document 17, p. 20). Defendant acknowledges that a claimant’s treating physician is entitled to

great weight, but only if it is both supported by sufficient clinical findings and is consistent with

other evidence. 20 C.F.R. § 404.1527(d)(2). See also Bogle v. Sullivan, 998 F.2d 342, 346-48 (6th

Cir. 1993) (citing Young v. Sec’y of HHS, 925 F.2d 146, 151 (6th Cir. 1990).

Second, Defendant argues “that although Plaintiff received treatment from each of these

physicians and physical therapists, they did not provide an opinion for the ALJ to evaluate and

thus, this argument has no merit.” (Document 17, p. 20). Defendant further argues that though “the

record is replete with treatment notes, chief complaints, impressions, medical history, surgical

notes, diagnosis, diagnostic findings and medical assessments” from Drs. Lang, Henegar,

Wiercisiweski, Otis, and Gore, “this evidence does not represent an opinion and, as such, the ALJ

was under no duty to assign any weight to this evidence.” (Document 17, p. 21). Defendant also

contends that the same argument holds true for physical therapists Casey Hall and Lauren Waldron,

neither of whom provided an opinion. (Document 17, p. 21). See 20 C.F.R. §§ 404.1513(d) and

416.913 (d); and Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996)(noting a therapist does not

qualify as an “acceptable medical source” under the regulations and, as an “other source,” such an

opinion is entitled to significantly less weight).

In this case, it appears the ALJ has properly considered relevant treatment records and

opinion evidence in reaching his determination of Plaintiff’s ability to perform light work. In

assigning significant weight to State Agency Drs. Heffron and Berkowitz, the ALJ reasoned:

As State agency consultants, Drs. Heffron and Berkowitz are

familiar with disability rules and definitions and had the opportunity

to review the then existing medical record as of the date of their

respective assessments. In addition, these opinions are generally

consistent with the mode of treatment and with the claimant’s

testimony. For example, the claimant testified to some memory loss

with Xanax, and that her medication was changed to Lexapro by her

primary care provider. Examination findings generally included that

the claimant’s memory, attention, and concentration were intact.

See, for example, Exhibit 1F at pages 3, 11, 31, 35, 40, 2F at page

8, 3F at pages 12, 17, 18, 8F at pages 58, 66, 10F at pages 4, 5, 15,

49, 13F at page 3.

(Tr. 22).

Later in the decision, in assigning less weight to State Agency consultants Evelyn Jimenez-

Medina, M.D., and Martin Rubinowitz, M.D., the ALJ explained:

I accord some weight to these opinions. Drs. Jimenez-Medina and

Rubinowitz have program knowledge. However, they did not

examine the claimant. Moreover, the overall record revealed the

claimant had specialized treatment. Exhibit 11F. In addition, the

overall record demonstrated lesser functioning than [that] opined by

these consultants. For example, the claimant was assessed as at

maximum medical improvement, with a twelve percent disability

rating assigned to the lumbar spine, and work restrictions included

no excessive lifting, bending, or twisting. Exhibit 6F at page 1.

(Tr. 23).

The above excerpts indicate an adequate explanation by the ALJ, citing substantial

evidence in the record. (Tr. 22-24).

The undersigned notes that the ALJ cited extensively to the treatment records of other

treating physicians, including Dr. Henegar and Dr. Wiercisiewski. For example, in considering Dr.

Henegar’s treatment, the ALJ notes:

Treatment records of 2014 demonstrate that the claimant’s

symptoms progressively worsened, despite prolonged conservative

treatment that included physical therapy, and she had severe back

pain that radiated primarily to her right leg, with some left leg

symptoms, as well. Exhibit 3F at pages 17, 45. She underwent an

L4-L5, L5-S1 transforaminal lumbar interbody fusion (TLIF) on

August 25, 2014. Exhibit 2F at page 3. She remained intact, with

good strength in her bilateral lower extremities. Exhibit 2F at page

3. Her pain was controlled with oral medication. Exhibit 2F at page

3. Discharge summary notes of August 29, 2014 state the claimant’s

oxygen saturation level was 92 percent; that her respirations were

non-labored; her neck was supple and non-tender; she was alert,

with normal sensory functioning; intact cranial nerves; and had 5/5

strength, with no drift or dysmetria. Exhibit 2F at page 5. She

participated in a course of physical therapy. Exhibit 3F at page 14.

Progress notes from her first post-operative visit state the claimant

walked with a slow and steady gait. Exhibit 3F at page 14. She

reported, at her second post-operative visit, that she was

significantly improved. Exhibit 3F at page 10. However, she

experienced a setback in her recovery because of a fall. Exhibit 3F

at page 10.

Treatment notes dated March 10, 2015 state the claimant continued

to have constant pain following the lumbar fusion in August of 2014.

Exhibit 3F at page 33. She reported exacerbation of symptoms with

sitting; occasional radiation to her leg, with right knee pain;

intermittent spasms and twitching in the right leg; and persistent

weakness in the right leg. Exhibit 3F at page 33. However, the

claimant felt that her symptoms were improving. Exhibit 3F at page

33. Examination revealed improved gait and station; improved

strength and sensation in the right leg; intact cerebellar function and

coordination; and intact cranial nerves. Exhibit 3F at page 33. X-

rays showed good construct position and good alignment, with no

evidence of complication. Exhibit 3F at page 33. Progressive

improvement was noted, and the claimant was released for follow

up as needed. Exhibit 3F at page 34.

(Tr. 20).

The ALJ goes on to cite to more records from Dr. Wiercisiewski:

Nerve/EMG studies of May 16, 2014 revealed electrodiagnostic

evidence of mild chronic radiculopathy at the right L5/S1 levels; no

electrodiagnostic evidence of a peripheral neuropathy in the right

lower extremity; and no other significant electrodiagnostic findings.

Exhibit 3F at pages 3-4.

(Tr. 21).

EMG/Nerve conduction studies on May 21, 2015 showed

electrodiagnostic evidence of a mild chronic radiculopathy at the

right L5/S1 levels; no electrodiagnostic evidence of a peripheral

neuropathy in the right lower extremity; and no other significant

electrodiagnostic findings. Exhibit 9F at page77.

(Tr. 22).

It appears to the undersigned that the ALJ thoroughly considered the recommendations and

treatments from all treating physicians and adequately discussed Plaintiff’s medical records.

Finally, if there is any error for failing to explicitly assign weight to the treatment records

of these five treating physicians, the undersigned finds it to be a harmless error for it does not

affect the substantial rights of the parties. See 20 C.F.R. § 498.224. The Fourth Circuit has

generally found an ALJ’s error is harmless when he “conducted the proper analysis in a

comprehensive fashion,” “cited substantial evidence to support his finding,” and would have

unquestionably “reached the same result notwithstanding his initial error.” Mickles v. Shalala, 29

F.3d 918, 921 (4th Cir. 1994).

Here, the records from Drs. Henegar, Wiercisiewski, and Gore suggest the Plaintiff

responded well to surgery and, therefore, assigning weight to them would have been

inconsequential to the outcome of the disability finding. Treatment records from Dr. Henegar show

Plaintiff improved and healed progressively without evidence of complication and was doing

better than she was prior to the operation. (Tr. 385). Plaintiff was encouraged to exercise and

continue stretching (Tr. 363, 366). Dr. Gore recommended Plaintiff undergo an aquatic therapy

program to help strengthen her lower extremities and to help lose weight (Tr. 807). He also

suggested a trial spinal cord stimulator, however, the Plaintiff was not interested in pursuing any

more surgery. (Tr. 811). Plaintiff requested additional injections to provide pain relief, however,

Dr. Gore decided to hold off on injections for a period of time. (Tr. 811). Lastly, Dr. Gore

recommended Plaintiff continue home exercises and stretching and prescribed a TENS unit to help

reduce pain. (Tr. 811). Based on the foregoing reasons, it is clear the ALJ would have reached the

same result had he assigned weight to additional treating physicians, and thus, the error is harmless.

The undersigned is persuaded that the ALJ thoroughly considered all medical opinions in

the record together with the rest of the relevant evidence and, thus, is satisfied that substantial

evidence supports the ALJ’s decision. As noted above, Plaintiff declined to file a Reply brief

addressing the Commissioner’s briefing. See Local Rule 7.2(e).

IV. CONCLUSION

The undersigned finds that there is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion,” and thus substantial evidence supports the

Commissioner’s decision. Richardson v. Perales, 402 U.S. 389, 401 (1971); Johnson v. Barnhart,

434 F.3d 650, 653 (4th Cir. 2005). As such, the undersigned will direct that the Commissioner’s

decision be affirmed.

IT IS, THEREFORE, ORDERED that: Plaintiff's “Motion For Judgment On The

Pleadings” (Document No. 14) is DENIED; the Defendant’s “Motion For Summary Judgment”

(Document No. 16) is GRANTED; and the Commissioner’s determination is AFFIRMED.

SO ORDERED.

Signed: May 21, 2019

David C. Keesler es

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