Bilotta v. Saul

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

DOCKET NO. 5:18-cv-00121-FDW-DSC

ANTONIO BILOTTA, )

)

Plaintiff, )

)

vs. )

) ORDER

NANCY A. BERRYHILL, )

Acting Commissioner of Social Security, )

)

Defendant. )

)

THIS MATTER is before the Court on Plaintiff’s Motion for Summary Judgment (Doc.

No. 12) and Defendant’s Motion for Summary Judgment (Doc. No. 16). Pursuant to 28 U.S.C.

§ 636 (b)(1)(B), these motions were referred to the Magistrate Judge David Cayer for issuance of

a Memorandum and Recommendation (“M & R”) for disposition (Doc. No. 19). The M & R

respectfully recommends Plaintiff’s Motion for Summary Judgment be denied, Defendant’s

Motion for Summary Judgment be granted, and the Commissioner’s decision be affirmed. After

Plaintiff filed objections to the M & R (Doc. No. 20) and Defendant rested on the memorandum

previously filed with this Court (Doc. Nos. 17, 21), this matter is now ripe for review.

For the reasons set forth, the Court OVERRULES Plaintiff’s objections (Doc. No. 20),

ACCEPTS and ADOPTS the M & R (Doc. No. 19), DENIES Plaintiff’s Motion for Summary

Judgment (Doc. No. 12), GRANTS Defendant’s Motion for Summary Judgment (Doc. No. 16),

and AFFIRMS the Commissioner’s decision.

I. BACKGROUND

Plaintiff does not lodge any specific objections to the procedural history and factual

background or standard of review. Having conducted a careful review of these portions of the

M & R, the Court finds the M & R’s treatment thereof is correct and supported by the record. See

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.

R. Civ. P. 72 advisory committee note) (holding when there is no objection, “a district court need

not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on

the face of the record in order to accept the recommendation”). Thus, the portions of the M & R

titled “Procedural History” and “Standard of Review” are adopted and incorporated by reference

as if fully set forth herein. (Doc. No. 19, p. 1-4). Because the procedural posture before this Court

is different than that of the magistrate judge, the Court provides a short review of the applicable

legal authority for reviewing an M & R.

II. STANDARD OF REVIEW

A. Review of the Commissioner’s Determination

Pursuant to the Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), this Court’s

review of a final decision of the Commissioner of Social Security is limited to: (1) whether

substantial evidence supports the Commissioner’s decision, Richardson v. Perales, 402 U.S. 389,

390, 401 (1971), and (2) whether the Commissioner applied the correct legal standards, 42 U.S.C.

§ 405(g); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Rhyne v. Astrue, 3:09–cv–412–

FDW–DSC, 2011 WL 1239800, at *2 (W.D.N.C. Mar. 30, 2011). Furthermore, “it is not within

the province of a reviewing court to determine the weight of evidence, nor is it the court’s function

to substitute its judgment for that of the Secretary if his decision is supported by substantial

evidence.” Hays, 907 F.2d at 1456; see also Rhyne, 2011 WL 1239800 at *2.

Substantial evidence is “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 that a reasonable mind

would accept as adequate to support a conclusion.” Smith v. Heckler, 782 F.2d 1176, 1179 (4th

Cir.1986) (alteration in original) (quoting Richardson, 402 U.S. at 401). Thus, if this Court finds

the Commissioner applied the correct legal standards and his decision is supported by substantial

evidence, the Commissioner’s determination may not be capriciously overturned.

B. Review of the Memorandum and Recommendation

In this case, the M & R recommended: (1) Plaintiff’s Motion for Summary Judgment be

denied; (2) Defendant’s Motion for Summary Judgment be granted; and (3) the Commissioner’s

determination be affirmed. (Doc. No. 19, p. 1). The M & R found there was “substantial evidence

to support the ALJ’s evaluation of the record and his ultimate determination that Plaintiff was not

disabled.” Id. at 7–9.

The Federal Magistrate Act states a district court “shall make a de novo determination of

those portions of the report or specific proposed findings or recommendations to which objection

is made.” 28 U.S.C. § 636(b)(1); see also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). De

novo review is not required, however, “when a party makes general and conclusory objections that

do not direct the court to a specific error in the magistrate’s proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see also Diamond, 416

F.3d at 315. Objections to an M & R must specifically identify portions of the report and the basis

for those objections. Fed. R. Civ. P. 72(b). Furthermore, “a general objection to a magistrate

judge’s findings is not sufficient—‘a party must object to the [magistrate’s] finding or

recommendation . . . with sufficient specificity so as reasonably to alert the district court of the

true ground for the objection.’” United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008)

(alteration in original) (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)).

General objections include those that merely restate or reformulate arguments a party has made

previously to a magistrate judge. See Jackson v. Astrue, No. 1:09–cv–467, 2011 WL 1883026

(W.D.N.C. May 17, 2011); Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004) (“A

general objection, or one that merely restates the arguments previously presented is not sufficient

to alert the court to alleged errors on the part of the magistrate judge. An ‘objection’ that does

nothing more than state a disagreement with a magistrate’s suggested resolution, or simply

summarizes what has been presented before, is not an ‘objection’ as that term is used in this

context.”). “Examining anew arguments already assessed in the [M & R] would waste judicial

resources; parties must explain why the [M & R] is erroneous, rather than simply rehashing their

prior filings and stating the report’s assessment was wrong.” Hendrix v. Colvin, No. 5:12–cv–

01353, 2013 WL 2407126, at *4 (D.S.C. June 3, 2013). “General or conclusive objections result

not only in the loss of de novo review by the district court, but also in the waiver of appellate

review.” Brock v. Colvin, No. 2:13–cv–0039–FDW–DSC, 2014 WL 5328651, at *3 (W.D.N.C.

Oct. 20, 2014) (quoting Thompson v. Covenant Transp., Inc., No. 1:07-cv-275, 2008 WL 4372789,

at *6 (W.D.N.C. Sept. 22, 2008)).

III. ANALYSIS

Plaintiff objects to the M & R on three grounds: (1) the ALJ erred in not finding Bilotta is

illiterate; (2) the ALJ cannot rely on vocational expert (“VE”) testimony in conflict with the

Dictionary of Occupational Titles (“DOT”) without first obtaining an explanation; and (3) the

Residual Functional Capacity (“RFC”) assessment is unexplained and incomplete. (Doc. No. 20).

The Court reviews these objections de novo.

A. Objection to the M & R Concerning Determination of Plaintiff’s Educational Level

Plaintiff’s first objection is the M & R incorrectly affirmed the ALJ’s determination that

Plaintiff had a marginal education rather than being illiterate. Id. at 1–2. Findings regarding

Plaintiff’s educational level are pertinent to step five of the sequential evaluation when the ALJ

looks to the medical-vocational guidelines to determine whether Plaintiff has the ability to perform

other work in the national economy. See generally Coffman v. Bowen, 829 F.2d 514, 518 (4th

Cir. 1987). The Commissioner will “consider someone illiterate if the person cannot read or write

a simple message such as instructions or inventory lists even though the person can sign his or her

name. Generally, an illiterate person has had little or no formal schooling.” 20 C.F.R.

§ 404.1564(b)(1). A claimant with a “marginal education,” by contrast, has “ability in reasoning,

arithmetic, and language skills which are needed to do simple, unskilled types of jobs.” 20 C.F.R.

§ 404.1564(b)(2). “[F]ormal schooling at a 6th grade level or less” is generally considered a

marginal education. Id. The Regulations provide an individual’s education level will generally

be classified as his years of formal schooling, unless there is contradictory evidence. See 20 C.F.R.

§ 404.1564(b).

Upon review of all the evidence in the record, the Court finds substantial evidence supports

the ALJ’s finding that Plaintiff is of marginal education. Plaintiff testified that he started but did

not complete the third grade, suggesting Plaintiff has a “marginal education” pursuant to 20 C.F.R.

§ 404.1564(b)(2). (Tr. 72). Moreover, Plaintiff stated in a Disability Report that he can read and

understand English and can write more than his name in English. (Tr. 389); see Joines v. Colvin,

3:14–cv–00396–MOC, 2015 WL 1249579, at *10 (W.D.N.C. Mar. 18, 2015) (holding the ALJ’s

determination was supported by substantial evidence where the claimant reported formal schooling

and stated in a disability report that he was able to read and understand English and write more

than his name in English despite testifying to the contrary). Evidence in the record also revealed

Plaintiff had been able to fill out written psychological testing in English and had been able to

testify at several examinations in English without the aid of an interpreter. (Tr. 16). Furthermore,

despite Plaintiff’s allegations of not being able to read and write, his formal educational level, and

the results of psychometric testing, Plaintiff performed skilled work as a tile setter for twenty

years.1 (Tr. 15–16); see 20 C.F.R. §§ 404.1564(a), 416.964(a) (“Past work experience and the

kinds of responsibilities you had when you were working may show that you have intellectual

abilities, although you may have little formal education.”). Although the Court acknowledges

there is evidence in the record to the contrary, “it is not the province of this court to reweigh the

evidence before the Commissioner, but instead only to ensure application of the correct legal

standards and that the Commissioner’s decision is supported by substantial evidence.” Joines,

2015 WL 1249579, at *10; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“[T]he

threshold for such evidentiary sufficiency is not high”). Thus, Plaintiff’s first objection is

OVERRULED.

B. Objection to the M & R Concerning SSR 00–4p

Plaintiff’s second assignment of error is the ALJ erred by not evaluating the inconsistency

between the VE’s testimony and the DOT information, and the ALJ’s failure to explain and resolve

the conflict constitutes reversible error. (Doc. No. 20, p. 2–3).

Social Security Ruling (“SSR”) 00–4p provides the ALJ will rely on both the DOT and the

VE testimony to determine whether a claimant can find work in the national economy suited to his

RFC. Fisher v. Barnhart, 181 F. App’x 359, 365 (4th Cir. 2006). Noting the sources are typically

consistent, SSR 00–4p nonetheless provides that when there is an apparent unresolved conflict

1 The Regulations provide:

Skilled work requires qualifications in which a person uses judgment to determine the machine and

manual operations to be performed in order to obtain the proper form, quality, or quantity of material

to be produced. Skilled work may require laying out work, estimating quality, determining the

suitability and needed quantities of materials, making precise measurements, reading blueprints or

other specifications, or making necessary computations or mechanical adjustments to control or

regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract

ideas at a high level of complexity.

20 C.F.R. § 404.1568(c).

between VE evidence and the DOT, an ALJ must (1) inquire, on the record, whether the VE’s

testimony conflicts with the DOT, and (2) if an apparent conflict exists, obtain a reasonable

explanation for the apparent conflict. Pearson v. Colvin, 810 F.3d 204, 207–08 (4th Cir. 2015)

(citing SSR 00–4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). Simply asking the VE if her

testimony is consistent and receiving an affirmative answer will not satisfy the ALJ’s obligation

under SSR 00–4p. Id. at 208-09. Rather, an “ALJ independently must identify conflicts between

the [VE’s] testimony and the [DOT],” id. at 209, and “explain the resolution of the conflict

irrespective of how the conflict was identified,” SSR 00-4p, 2000 WL 1898704, at *4.

During the hearing, the VE offered four occupations in response to the hypothetical

question from the ALJ that found Plaintiff capable of performing “medium work” with some

additional limitations. (Tr. 60–61). The ALJ then asked the VE which of the “medium work” jobs

would be available if Plaintiff were limited to jobs “with no requirement to read or write in

English,” and the VE identified three jobs—cleaner II (DOT #919.687-014), dining room attendant

(DOT #311.677-018), and laundry laborer (DOT #361.687-018). (Tr. 62). However, the DOT

indicates all three jobs are “Language Level 1,” which require reading 95–120 words per minute

and recognize the meaning of 2,500 two- or three-syllable words. See (Doc. Nos. 13–2, 13–4, 13–

8) (Dictionary of Occupational Titles entries for all jobs identified by vocational expert).2 Plaintiff

now argues the VE’s testimony as to the level of literacy and language proficiency required for the

jobs available to Plaintiff are inconsistent with the levels required by the DOT. (Doc. No. 20 at

2–3).

2 The Court notes Doc. No. 13-8 is not the entry for DOT #919.687-014, but rather is the entry for DOT # 909.687-

014, “Laborer, General.” See (Doc. No. 13-8). Nonetheless, DOT #919.687-014, Cleaner II, also requires reading

95-120 words per minute and the ability to recognize the meaning of 2,500 two- or three-syllable words. See

DOT # 919.687-014, 1991 WL 687897.

The Court, however, finds the ALJ properly relied on the VE’s testimony. During the

hearing, the VE offered four medium level jobs in response to the hypothetical question from the

ALJ. (Tr. 61–62). The ALJ then asked the VE which of the medium level jobs would be available

if Plaintiff was limited to jobs “with no requirement to read or write in English,” and the VE

identified the three jobs noted above. (Tr. 62). The ALJ expressly asked the VE whether her

testimony was consistent with the DOT, and the VE stated it was. (Tr. 63). The VE explained

that while the DOT does not specifically address the ability to read or write in English per se, the

VE understood the ability to read and write in English was implied. Id. Based on the VE’s

testimony, the ALJ determined that although illiteracy “is not included in [Plaintiff’s [RFC] . . .

the jobs cited by the [VE] can be done without the ability to read and write in English.” (Tr. 20).

As the record shows, the ALJ directly questioned the VE about the consistency of her testimony

and the DOT, and the VE provided a sufficient explanation, appearing to rely on her prior relevant

experience as grounds for finding no conflict. See Fisher, 181 F. App’x at 365 (recognizing an

ALJ may rely on conflicting VE testimony if he finds it is based on the VE’s own experience in

job placement or career counseling (citing SSR 00-4p)). Accordingly, the Court finds the ALJ

satisfied SSR 00–4p and the ALJ’s step five analysis was proper.

Moreover, even assuming a conflict exits and the ALJ failed to explain and resolve such

conflict, a violation of said duty is harmless because the ALJ would have reached the same result

regarding disability. See Joines, 2015 WL 1249579, at *9 (citation omitted) (finding “the ALJ’s

failure to explain any reconciliation of a conflict is harmless because the ALJ would have reached

the same result regarding disability notwithstanding such error”). In Joines, the plaintiff alleged

the ALJ erred by failing to address the discrepancy between the VE’s testimony as to the level of

illiteracy and language proficiency required for the jobs available to him and the levels required

of those jobs by the DOT. Id. at *7. The court held, however, even assuming a conflict exists and

the ALJ had an obligation to address such conflict, any failure by the ALJ to explain reconciliation

of the conflict is harmless error. Id. at *9. There, as in the case at bar, the plaintiff’s argument

about the conflict between the VE’s expert testimony and the DOT was premised upon a finding

that Plaintiff is illiterate. See id.; (Doc. No. 20, p. 3) (“If a claimant cannot read or write in English,

then he cannot perform a job that requires the ability to read and write in English.”). However,

like in Joines, the ALJ in this case did not find Plaintiff to be illiterate or unable to communicate

in English. See Joines, 2015 WL 1249579, at *9–10; (Tr. 20). Rather, the ALJ found Plaintiff had

“marginal education” and “is able to communicate in English.”3 (Tr. 20). Given the ALJ did not

find Plaintiff was illiterate and unable to communicate in English, any discrepancy between the

DOT and the VE’s testimony regarding the impact of illiteracy on the jobs available to Plaintiff

would have had no impact on the ALJ’s ultimate determination of Plaintiff’s disability. Finding

any error committed by the ALJ pursuant to SSR 00–4p was harmless, the Court will not disturb

the ALJ’s decision. Accordingly, Plaintiff’s second objection is OVERRULED.

C. Plaintiff’s Objection to the M & R Concerning RFC Formulation

Plaintiff’s third objection is the M & R incorrectly affirmed the ALJ’s determination of

Plaintiff’s RFC. (Doc. No. 20, p. 3-5).

Plaintiff first argues the ALJ’s determination that Plaintiff could perform medium work

with the enumerated restrictions is not supported by substantial evidence. Id. at 3. The RFC is an

administrative assessment of “an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing basis” despite impairments and

3 The Court notes Plaintiff has failed to identify any apparent conflict between a limitation to “marginal education”

and the DOT requirements of the jobs identified by the VE. See Pearson, 810 F.3d at 209–10 (noting SSR 00–4p

requires ALJs to resolve any apparent conflict between a plaintiff’s RFC and the DOT definition of jobs recommended

by the VE).

related symptoms. SSR 96–8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R.

§ 404.1545(a)(1). SSR 96–8p requires the ALJ to consider “all the relevant evidence in the case

record,” including a claimant’s medical history and symptoms and laboratory findings, the effects

of treatment, reports of daily activity, recorded observations, medical source statements, and

objective effects of symptoms. SSR 96-8p, 1996 WL 374184, at *2, *5; see also 20 C.F.R.

§ 404.1545(a)(3). An ALJ must “include a narrative discussion describing how the evidence

supports each conclusion” in the plaintiff’s RFC, Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir.

2016) (quotations omitted), and discuss which evidence the ALJ found credible and why, see id.

at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Once the ALJ performs a

function-by-function analysis, only then may an ALJ express the RFC of the exertional levels of

light, medium, heavy, and very heavy. See SSR 96-8p, 1996 WL 374184, at *1.

Here, as the M & R notes and a review of the record confirms, the ALJ considered all the

relevant medical evidence, as well as Plaintiff’s own allegations regarding his symptoms and daily

activities. (Tr. 17–19). Importantly, the ALJ gave several reasons, citing to the record, for

discrediting Plaintiff’s allegations that he was unable to perform the requisite jobs functions. Id.

The ALJ also evaluated Plaintiff’s credibility in determining Plaintiff’s RFC as required by

Mascio. Ultimately, the ALJ concluded Plaintiff was limited to medium work as defined in 20

C.F.R. § 404.1567(c) with additional limitations. (Tr. 17). Accordingly, the Court finds the ALJ’s

RFC assessment complies with SSR 96-8p and is supported by substantial evidence.4

4 Plaintiff appears to suggest that because the ALJs in 2013 and 2015 limited Plaintiff to light work, and because there

was no additional evidence before the ALJ in 2017, the ALJ erred in limiting Plaintiff to medium work in 2017. See

(Doc. No. 20 at 3). However, nothing in the regulations, see 20 C.F.R. § 416.1477(b), nor in the Appeals Council’s

remand order, (Tr. 202), diminished the ALJ’s statutory authority to reweigh the evidence before her and make

findings of fact after remand. Thus, to the extent Plaintiff argues the ALJ’s deviation from the 2013 and 2015 RFC

determinations warrants remand, the Court rejects the argument.

The Court also rejects Plaintiff’s assertion that the M & R relied on the Commissioner’s

post hoc rationalizations in support of the ALJ’s RFC determination. See (Doc. No. 20, p. 4).

Rather, the M & R, as noted above, explained how substantial evidence in the record supported

the RFC determination, discussing how the ALJ cited to both medical and opinion evidence—

including some of Plaintiff’s own allegations—that Plaintiff was capable of performing medium

work with some limitations.

Next, Plaintiff argues the ALJ erred in failing to consider Plaintiff’s obesity when

formulating his RFC. (Doc. No. 20, p. 4-5). The ALJ has a duty to evaluate the intensity and

persistence of a claimant’s symptoms. See 20 C.F.R. § 404.1529(c). However, that duty does not

extend to conjecture as to the impact of claimant’s symptoms. Rather, the claimant has the burden

of furnishing evidence supporting the existence of a condition and the effect of such a condition

on his ability to work on a sustained basis. See 20 C.F.R. §§ 404.1512(a), 404.1545(a)(3); see also

Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Yet, Plaintiff has failed to do more than suggest

the ALJ should have speculated as to how his obesity has impaired his ability to work. See (Doc.

No. 20, p. 5). However, SSR 02–1p prohibits the ALJ from engaging in guesswork. SSR 02–1p,

2002 WL 34686281, at *6 (Sept. 12, 2002). SSR 02–1p expressly provides

“[W]e will not make assumptions about the severity or functional effects of obesity

combined with other impairments. Obesity in combination with another impairment

may or may not increase the severity or functional limitations of the other

impairment. We will evaluate each case based on the information in the case

record.”

Id. at *6 (emphasis added). As SSR 02–1p makes clear, it is not the mere presence of an

impairment such as obesity which determines disability, but rather the effect the impairment has

on the claimant’s ability to function and perform work-related tasks.

Here, Plaintiff alleges no facts and points to no evidence in the record to support his

position that his obesity places significant limitations on his ability to work. Because Plaintiff has

not identified how his obesity has limited him to a greater extent than the ALJ found, he has failed

to carry his burden. See Brown v. Astrue, No. JKS–09–1792, 2011 WL 129006, at *2 (D. Md.

Jan.14, 2011) (“Having identified no evidence to suggest that his obesity caused greater limitations

than the ALJ assigned, [the plaintiff] has shown no basis for remand.”).

Finally, Plaintiff argues the ALJ erred in drawing adverse inferences about the frequency

of his treatment without considering the reasons for the infrequency. (Doc. No. 20, p. 5). Pursuant

to 20 C.F.R. §§ 404.1530 and 416.930, a claimant cannot be found disabled if he does not follow

prescribed treatment without good reasons. 20 C.F.R. §§ 404.1530, 416.930. However, an ALJ

“will not find an individual’s symptoms inconsistent with the evidence in the record on this basis

[failure to follow prescribed treatment] without considering possible reasons he or she may not

comply with treatment or seek treatment consistent with the degree of his or her complaints.” SSR

16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017) (rescinding and superseding SSR 96-7 (SSR 96–

7p, 1996 WL 374186 (July 2, 1996)), which previously stated an ALJ “must not draw any

inferences about an individual’s symptoms and their functional effects from a failure to seek or

pursue regular medical treatment without first considering any explanations,” such as the inability

to afford treatment and lack of access to free or low-cost medical services).5 A claimant’s failure

to obtain medical treatment that he cannot afford cannot justify an inference that his condition was

5 The Court notes SSR 96-7 was rescinded and replaced by SSR 16-3p on March 28, 2016 and applied to all

decisions issued on or after that date. See SSR 16-3p, 2017 WL 5180304, at *1. Although Plaintiff applied for

benefits in 2012, (Doc. No. 13, p.3), the decision from which he appeals to this Court was issued on December 5,

2017, after being remanded from the Appeals Council on October 14, 2016. (Tr. 22, 109). As both dates fall after

March 28, 2016, SSR 16-3p is properly applied here. In any event, both rulings articulate substantively the same

point as pertains to this order—the ALJ must not draw inferences about a claimant’s symptoms based solely on the

fact that the claimant did not seek treatment.

not as severe as he alleges. Mickles v. Shalala, 29 F.3d 918, 929–30 (4th Cir. 1994) (citations

omitted).

Here, however, the ALJ draws no adverse inferences about the severity of Plaintiff’s

symptoms from his failure to seek treatment.6 Compare Craig v. Colvin, No. 2:13-cv-27-BO, 2014

WL 2039591, at *3 (E.D.N.C. May 8, 2014) (determining the ALJ did not comply with the

requirements of SSR 96 –7p because the ALJ failed to consider the plaintiff’s ability to afford

surgery before concluding the plaintiff’s failure to have the recommended surgery suggested the

plaintiff’s “symptoms are not as intractable as alleged”), and Wright v. Astrue, No. 1:10-cv-250,

2011 WL 6179943, at *4 (W.D.N.C. Dec. 13, 2011) (noting the ALJ’s finding that Plaintiff’s

failure to receive mental health treatment “suggest[ed] that [Plaintiff’s] mental health condition is

controlled with medication” was an error because the ALJ failed to consider any explanations from

the plaintiff) (alteration in original), with Sturm v. Colvin, No. 6:13-1097-MGL, 2014 WL

3809495, at *10 (D.S.C. July 30, 2014) (holding an ALJ’s mere observation that Plaintiff

scheduled a medical procedure and never rescheduled was appropriate and did not constitute an

adverse inference). Rather, the ALJ merely observes there were no treatment records from

February 2010 to March 2012.7 (Tr. 19). The Court finds this observation was appropriate,

particularly considering Plaintiff has the burden of producing evidence showing he has a severe

impairment and showing how severe the impairment is during the time Plaintiff alleges he is

disabled. See 20 C.F.R. §§ 404.1512(a), 416.912(a). Accordingly, Plaintiff’s third objection is

OVERRULED.

6 In fact, the ALJ acknowledges Plaintiff’s inability to afford medical treatment. (Tr. 17).

7 The Court similarly finds that the ALJ’s comment about Plaintiff’s employment during that period, see (Tr. 19),

was merely an observation, particularly in light of the fact that Plaintiff himself testified that he had worked during

that period. See (Tr. 39–40).

IV. CONCLUSION

IT IS THEREFORE ORDERED that Plaintiff's Objections (Doc. No. 20) to the M □ R

are OVERRULED; the M & R (Doc. No. 19) is AFFIRMED and ADOPTED for the reasons set

forth herein; Plaintiffs Motion for Summary Judgment (Doc. No. 12) is DENIED; Defendant’s

Motion for Summary Judgment (Doc. No. 16) is GRANTED; and the Commissioner’s decision is

AFFIRMED.

IT IS SO ORDERED.

September 12, 2019

Frank D. Whitney é +3

Chief United States District Judge ~“#*’

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