# Bingaman v. Berryhill

> District Court, W.D. North Carolina · May 22, 2019

URL: https://www.frixlaw.com/law-library/cases/10254586

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** May 22, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254586

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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
Tlettead Otatac MAanwiatenta Tnsdnn 16 ag Bi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254586. Public record. Not legal advice.