# SHEPHERD v. KIJAKAZI

> District Court, M.D. North Carolina · February 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10653649

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

ROBIN ROBINSON SHEPHERD, )
)
Plaintiff, )
)
v. ) 1:20CV966
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security,! )
)
Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Robin Robinson Shepherd (‘Plaintiff’) brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to
obtain judicial review of a final decision of the Commissioner of Social Security denying her
claim for Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have
filed cross-motions for judgment, and the administrative record has been certified to the Court
for review.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for DIB on January 3, 2018, alleging a
disability onset date of September 30, 2015. (Tr. at 13, 180-82.)? Her claim was denied initially

' Kilolo Kijakazi was appointed as the Acting Commissioner of Social Security on July 9, 2021. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew M. Saul
as the Defendant in this suit. Neither the Court nor the parties need take any further action to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
* Transcript citations refer to the Administrative Record [Doc. #11].

(Tr. at 81-92, 107-10), and that determination was upheld on reconsideration (Tr. at 93-106,
114-17). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at 118-21.) Plaintiff attended the subsequent video
hearing on May 30, 2019, at which time Plaintiff requested that the hearing be postponed for
Plaintiff to obtain counsel. (Tr. at 13.) The ALJ granted Plaintiff's request, and, on November
20, 2019, both Plaintiff and an impartial vocational expert appeared and testified at the
rescheduled video hearing, during which Plaintiff was represented by an attorney. (Tr. at 13.)
Following the hearing, ALJ concluded that Plaintiff was not disabled within the meaning of
the Act from September 30, 2015 (the Alleged Onset Date) through December 31, 2017 (the
Date Last Insured). (Tr. at 22.) On August 27, 2020, the Appeals Council denied Plaintiffs
request for review, thereby making the AL]’s conclusion the Commissioner’s final decision
for purposes of judicial review (Tr. at 1-6).
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a juty, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
AL]’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous
petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A))?
“The Commissionet uses a five-step ptocess to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant
is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,
but falters at step three, ie., “[i]f.a claimant’s impairment is not sufficiently severe to equal or
exceed a listed impaitment,” then “the ALJ must assess the claimant’s tesidual functional

Gadl Sentiy Acwoungarisen two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title IT of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on
that RFC, the claimant can “perform past televant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s
impaitments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
Ill. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” from her alleged onset of September 30, 2015, through her date last insured of
December 31, 2017. Plaintiff therefore met her burden at step one of the sequential evaluation

ptocess. (Tr. at 15.) At step two, the ALJ further determined that Plaintiff suffered from two

severe impairments:

+ “RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8
hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks
omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant's
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations
(mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after
[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢,., pain).”
Hines, 453 F.3d at 562-63.

Degenerative disc disease of the lumbar spine, and right foot fracture[.]
(Tr. at 15.) The AL] next found at step three that neither of Plaintiffs impairments,
individually or in combination, met or equaled a disability listing. (Tr. at 17-18.) Therefore,
the ALJ assessed PlaintifPs RFC and determined that, through her date last insured of
December 31, 2017, Plaintiff had the RFC to perform light work with the following, non-
exertional limitations:
[Plaintiff] could have occasionally climbed ramps and stairs; could not climb
ladders, ropes, or scaffolds; could have occasionally balanced, stooped, kneeled,
crouched, and crawled; could not work at unprotected heights or be exposed to
dangerous moving mechanical parts; was limited to a moderate noise
environment; and after 45 minutes of standing, could have sat for one to two
minutes, without going off-task or leaving the workstation.
(Ir. at 18.) At step four of the sequential analysis, the AL] found, based on the testimony of
the vocational expert, that Plaintiffs past relevant work as an accounts receivable clerk and a
collection specialist did not exceed her RFC. (Tr. at 21.) Therefore, the AL] concluded that
Plaintiff was not disabled under the Act. (Tr. at 21-22.)
Plaintiff now challenges the AL]’s findings in two respects. First, she contends that
the ALJ erred by failing to include depression and anxiety among Plaintiffs severe
impairments at step two of the sequential analysis. Second, Plaintiff argues that the ALJ failed
to conduct a proper function-by-function analysis when assessing her RFC. After a thorough
teview of the record, the Court finds that neither of Plaintiff's contentions merit remand.
A. Mental impairments
Plaintiff first contends that the AL] should have included severe mental impairments
at step two of the sequential analysis. At step two of the evaluation process, a plaintiff must
establish a “severe impairment,” that is, an impairment or combination of impairments that

significantly limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(c). A non-severe impairment is defined as one that “does not
significantly limit [a plaintiff's] physical or mental ability to do basic work activities.” 20 C.F.R.
§ 404.1522(a). Applicable regulations further provide that “basic work activities” include:
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work
situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1522(b).
However, “[a]s long as the AL] determines that the claimant has at least one severe
impairment and proceeds to discuss all of the medical evidence, any error regarding failure to
list a specific impairment as severe at step two is harmless.” McClain v. Colvin, No.
1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted); see also
Blevins v. Colvin, No. 5:15-cv-14240, 2016 WL 6987169, at *9 (S.D. W. Va. Sept. 16, 2016)
(collecting cases). Therefore, in considering the alleged error at step two in this case, the Court
also considers the AL]’s explanation and discussion throughout the sequential analysis. In this

case, at step two, the AL] identified Plaintiffs degenerative disc disease and right foot fracture

as her only severe impairments. (T'r. at 15.) The ALJ also expressly determined that Plaintiffs
“medically determinable mental impairments of depression and anxiety, considered singly and
in combination, did not cause more than minimal limitation in [Plaintiffs] ability to perform
basic mental work activities and were therefore nonsevere.” (Tr. at 16.) Notably, in making

that determination, the AL] included an extensive analysis of Plaintiffs mental impairment
and its effect on her ability to work. The ALJ first explained as follows:
At the hearing, [Plaintiff] testified that she started mental health therapy in 2016
for her depression and anxiety. [She further] testified that she went to the
hospital for 24-hour observation due to her mental health. [Plaintiff] indicated
that the hospital staff, during this stay, recommended she start participating in
mental health therapy. [She] testified that she writes everything down because
she has poor short-term memory. Moreover, [Plaintiff] said that she will forget
to do things unless she writes them down. A review of the objective medical
evidence revealed that [Plaintiff] participated in mental health therapy for her
depression and anxiety (Exhibit 6F). On August 30, 2016, [she] told her
therapist that she was having anxiety, and felt restless at times (Exhibit 13F/15).
Exhibit 13F shows several records of mental health treatment. The records
show that [Plaintiff] was compliant with her regimen and attended almost all of
her therapy sessions. After the date last insured, Julie Whitt, L.C.S.W.,
completed a report of [Plaintiffs] objectives of therapy. It showed that
[Plaintiff] established goals. ‘The goals were specifically tailored to improve [her]
condition. Ms. Whitt found that [Plaintiff] had not progtessed in her any of
goals to improve her condition (Exhibit 13F/69). The objective medical
evidence showed that [Plaintiff] participated in treatment with Stacey Blyth,
M.D. [Plaintiff] told Dr. Blyth that she was doing well with counseling.
[Plaintiff] said that counseling was helping her manage her stress (Exhibit
9F/35).
However, I found that [Plaintiffs] mental health impairments ate non-severe.
The objective medical evidence shows that [Plaintiff] was compliant with her
treatment. However, most of her treatment noted mostly normal or mild
findings. Neither her therapist nor her providers opined to any short-term
memory problem. ... Moreover, [Plaintiff] told Dr. Blyth that she was doing
well. [She] also testified that she has good days and she has bad days from her
depression and anxiety. [Plaintiff] also tends to her husband, who is recovering
from Stage IV Cancer. [She] drives him around and takes him to his
appointments. [Plaintiff] can complete her daily activities. She testified that her
physical limitations impair her ability to complete them.
(Tr. at 16.) In short, the ALJ found that medical evidence failed to support Plaintiffs claim
of a severe mental impairment. Nevertheless, the ALJ went on to further evaluate the effect
of Plaintiff's mental impairment with respect to the four broad areas of mental functioning:

In making this finding, I have considered the broad functional areas of mental
functioning set out in the disability regulations for evaluating mental disorders
and in the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1).
These four broad functional areas are known as the “paragraph B” criteria.
Based on the objective medical evidence cited above, I make the following
determinations, in_regards to understanding, remembering or applying
information, I found that [Plaintiff] had a mild limitation. Although [Plaintiff]
writes everything down, the objective medical evidence failed to show any issues
within this domain. [Plaintiff] completed high school. [She] worked as an
accountant. [Plaintiff] did not testify to issues with reading, writing, or similar
abilities. The next functional atea is interacting with others. In this area,
[Plaintiff] had mild limitation. [She] cares for her husband [and] goes out to
complete her errands. [Plaintiff] testified that she mostly stays home and did
have a fallout with her last employer. Also, the therapy records indicate that
she had some difficulty with her son. Nevertheless, her therapist never found
that [Plaintiff] was incapable of relationships with others. [She] only had the
one-day hospital visit. The third functional area is concentrating, persisting or
maintaining pace. In this area, [Plaintiff] had mild limitation. As previously
mentioned, [Plaintiff] testified to difficulties with her memory. Nevertheless,
the objective medical evidence failed to show any testing or opinions about this
issue. [Plaintiff] is able to complete her daily activities and tend to her husband’s
health. The fourth functional area is adapting or managing oneself. In this atea,
[Plaintiff] had mild limitation. The objective medical evidence failed to show
any major issues within this domain. I must note that I found these domains
mild given [Plaintiffs] compliance with mental health treatment and that she is
in treatment for depression and anxiety. I found that these impairments only
cause a minimal limitation in her ability to work.
Because [Plaintiffs] medically determinable mental impairments caused no
mote than “mild” limitation in any of the functional areas and the evidence does
not otherwise indicate that there is more than a minimal limitation in [Plaintiffs]
ability to do basic work activities, they were nonsevere (20 CFR
404.1520a(d)(1)).
(Tr. at 16-17.)
Significantly, the AL]’s analysis emphasized the total lack of testing or opinion evidence
supporting Plaintiff's subjective symptom complaints. The AL] further noted that, in light of
Plaintiffs treatment history, she gave Plaintiff the benefit of the doubt in finding her mildly
limited in the relevant domains. The ALJ’s determination at this step directly reflects the

recotd evidence as a whole, and is also consistent with the specific findings of the State agency
psychological consultants, Dr. Sayers and Dr. Berkowitz, who both found that Plaintiff had

no more than mild limitations in any functional atea and that these limitations did not translate
to any mental limitations in Plaintiffs RFC. (Tr. at 86-87, 99-100.) In fact, Plaintiff points to

no specific report or opinion from her providers or otherwise suggesting the need for mental
restrictions of any kind. She simply asks the Court to reweigh the evidence and artive at a
different conclusion.
In support of her claim, Plaintiff cites to treatment notes from June and July of 2016,
when Plaintiff was tearful and anxious and was ultimately diagnosed with major depressive
disorder after a one-day hospitalization in July 2016. However, the AL] acknowledged this
treatment, but also noted the subsequent treatment records and the activities reflected in the
record, including that Plaintiff later reported that she was doing well and that counseling was
helping her manage her stress. In this regard, Plaintiff's records reflect that after het one-day
hospitalization, she began counseling and she was tteated with medication, and after some
medication adjustments over the next two months in August and September 2016, she
reported improvement with counseling and medication, including specifically reporting to her
providers in October and November 2016 that she was no longer in a “black hole.” (Tr. at
462, 506, 508, 510). Her therapist characterized her as “recovering from depression” and
encouraged her in her efforts to re-enter the workforce (Tr. at 508, 510). Subsequent records
for 2017 and early 2018 reflect that Plaintiff continued to experience anxiety and depression,
but her therapist’s notes teflect improvement, with a greater focus on navigating her husband’s
illness and her relationship with her son (Tr. at 524, 528, 536, 538, 540, 546, 889, 899, 904),

10

and other providers’ treatment records generally reflect normal or mild mental status findings,
including normal mood and affect, normal behavior, no nervousness or anxiety, and that she
is “doing well” and is “very pleased” with counseling. (Tr. at 16-17, 463, 465, 471, 475, 598,
600, 603, 610-11, 613.) In addition, the record reflects that she was able to take care of her
husband and manage his medical treatments and continue with ordinary household activities,
with some adapting by writing things down, as noted by the ALJ. (Tt. at 16-17, 20.)
Viewed as a whole, the question whether Plaintiff suffered “mild” versus “moderate”
limitations in understanding, remembering or applying information and in concentrating,
petsisting or maintaining pace is a close one, and substantial evidence exists in the record to
suppott either conclusion. In Social Security cases, those types of close decisions are for the
ALJ. In finding that Plaintiffs difficulties with her memory caused only mild limitations, the
ALJ telied on the mostly normal or mild findings in the treatment records, and the lack of any
testing or opinion evidence reflecting any greater limitations.» The ALJ also relied on
Plaintiff's ability to complete her daily activities and tend to her husband’s health, and the AL]
noted that she had no limitations on her ability to read and write to the extent she needed to
write things down. (Tr. at 16-17, 20.) The ALJ acknowledged that Plaintiffs impairments did
impact het, but concluded that the impact was “mild” and did not significantly limit her
abilities to do basic work activities. Where, as here, substantial evidence supports the AL]’s

5 Indeed, as noted above, the state agency psychologists, Dr. Sayers and Dr. Berkowits, reviewed the record and
similarly concluded that Plaintiff had no more than mild limitations in each of the functional areas. (Tr. at 86-
87, 99-100.) To the extent Plaintiff argues that the ALJ have little weight to the state agency opinions, the
record reflects that the state agency physicians, Dr. Gallis and Dr. Terry, found Plaintiff capable of medium
work (Tr. at 88-89, 101-03), but the AL] gave little weight to these opinions and instead adopted an even more
restrictive limitation to light work. With respect to the mental impairments, even if the AL did not specifically
rely on Dr. Sayers and Dr. Berkowitz, the ALJ noted repeatedly that Plaintiff had not pointed to any opinion
evidence that would support greater restrictions or limitations.
11

evaluation of Plaintiff's mental impairments, it is not for the Court to re-weigh the evidence

ot reconsider the AL]’s determinations. As noted above, “[w]here conflicting evidence allows
teasonable minds to differ as to whether a claimant is disabled, the responsibility for that
decision falls on the [AL]].” Hancock, 667 F.3d at 472 (quotation omitted). Thus, the issue
before the Court is not whether a different fact-finder could have drawn a different conclusion,
but rather whether the ALJ’s determination is supported by substantial evidence. As recently
noted by the Supreme Court in Biestek v. Berryhill, 139 S. Ct. 1148 (2019), “whatever the
meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not
high. Substantial evidence, this Court has said, is ‘more than a mete scintilla.” . . .t means—
and means only—‘such relevant evidence as a reasonable mind might accept as adequate to
suppott a conclusion.” 139 S. Ct. at 1154 (internal citations omitted). Accordingly, the Court
finds no basis for remand.
B. Function-by-function analysis
Plaintiff next contends that the ALJ failed to properly explain the basis for her physical
RFC assessment, particularly related to Plaintiffs allegations of foot pain and back pain. As
Social Security Ruling (“SSR”) 96-8p instructs, “[t]he RFC assessment must first identify the
individual’s functional limitations or restrictions and assess his or her work-related abilities on

a function-by-function basis,” including the functions listed in the regulations. Social Security
Ruling 96-8p: Policy Interpretation Ruling Titles and XVI: Assessing Residual Functional
Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *1. “Only after such a function-
by-function analysis may an ALJ express RFC in terms of the exertional levels of work.”
Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (internal quotations and citations

12

omitted). Further, the “RFC assessment must include a narrative discussion describing how
the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings)
and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184,
at *7. An ALJ must “both identify evidence that supports his conclusion and build an accurate
and logical bridge from [that] evidence to his conclusion.” Woods v. Berryhill, 888 F.3d 686,
694 (4th Cir. 2018) (emphasis omitted).
The Fourth Circuit has noted that a per se rule requiting temand when the AL) does not
petform an explicit function-by-function analysis “is inappropriate given that remand would

ptove futile in cases where the ALJ does not discuss functions that are ‘irrelevant of
uncontested.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v. Astrue,
729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). Rather, remand may be appropriate “where

an ALJ fails to assess a claimant’s capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the AL]’s analysis frustrate meaningful
review.” Id. (quoting Cichocki, 729 F.3d at 177). ‘The court in Mascio concluded that remand

was appropriate because it was “left to guess about how the ALJ artived at his conclusions on
[the claimant’s] ability to perform relevant functions” because the ALJ had “said nothing about
[the claimant’s] ability to perform them for a full workday,” despite conflicting evidence as to
the claimant’s RFC that the ALJ did not address. Id. at 637.
In the present case, Plaintiff contends that the AL “fail[ed] to build an ‘accurate and
logical bridge’ from the evidence to her RFC conclusions.” (PI.’s Br. at 18.) In particular, she

atgues that the AL] “did not adequately explain how the evidence she summariz|ed] aligns
with SSR 96-8p, the RFC findings she adopted or how she resolved the evidence that

13

conflicted with her RFC findings.” (Pl’s Br. at 18.) In addition, as part of that claim,
“(Plaintiff] contends that the AL) failed to explain or identify substantial evidence to suppott
her negative findings regarding the consistency of [Plaintiffs] allegations with the evidence.”
(Pl.’s Br. at 18.)
Turning first to the AL]’s evaluation of Plaintiff's allegations regarding her symptoms,
the Court notes that, under the applicable regulations, the ALJ’s decision must “contain
specific reasons for the weight given to the individual’s symptoms, be consistent with and
suppotted by the evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Social Security
Ruling 16-3p, ‘Titles I] and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p,
2017 WL 5180304 (Oct. 25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. Moreover,
in Arakas v. Comm’r of Soc. Sec., 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit recently
clarified the procedure an AL] must follow when assessing a claimant’s statements:
When evaluating a claimant’s symptoms, ALJs must use the two-step
framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029
(Mar. 16, 2016). First, the ALJ must determine whether objective medical
evidence presents a “medically determinable impairment” that could reasonably
be expected to produce the claimant’s alleged symptoms. 20 C.F.R. §
404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.
Second, after finding a medically determinable impairment, the ALJ must assess
the intensity and persistence of the alleged symptoms to determine how they
affect the claimant’s ability to work and whether the claimant is disabled. See 20
C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,
objective evidence is required to find the claimant disabled. SSR 16-3p, 2016
WL 1119029, at *4—5. SSR 16-3p recognizes that “[s]ymptoms cannot always
be measuted objectively through clinical or laboratory diagnostic
techniques.” Id. at *4. Thus, the AL] must consider the entire case record and
may “not disregard an individual’s statements about the intensity, persistence,
and limiting effects of symptoms solely because the objective medical evidence
does not substantiate” them. Id. at *5.
14

Arakas, 983 F.3d at 95-96. Thus, the second part of the test requires the AL] to consider all
available evidence, including Plaintiff's statements about her pain, in order to evaluate “the
intensity and persistence of the claimant’s pain, and the extent to which it affects her ability to
work.” Craig, 76 F.3d at 595. This approach facilitates the ALJ’s ultimate goal, which is to
accurately determine the extent to which Plaintiffs pain or other symptoms limit her ability to
petform basic work activities. Relevant evidence for this inquiry includes Plaintiff's “medical
history, medical signs, and laboratory findings,” Craig, 76 F.3d at 595, as well as the following
factors set out in 20 C.F.R. § 416.929(c)(3) and 20 C.F.R. § 404.1529:
(i) [Plaintiffs] daily activities;
Gi) The location, duration, frequency, and intensity of [plaintiffs] pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
[Plaintiff] take[s] or [has] taken to alleviate [her] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff] receive[s] or [has] received
for relief of [her] pain or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [her] pain or other
symptoms (e.g., lying flat on [her] back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning [Plaintiffs] functional limitations and
restrictions due to pain or other symptoms.
In the present case, as instructed by the regulations, the ALJ considered the entire case
tecotd and explained her reasons for deviating from Plaintiffs statements regarding the impact
of her symptoms on her ability to work. Rather than explaining what, if any, additional
functional limitations are required based on these records, Plaintiff simply asserts that evidence
supports a finding of total disability under the Act. However, whether the ALJ could have
teached a different conclusion based on the evidence is irrelevant. The sole issue before the
Court is whether substantial evidence supports the AL]’s decision. See Blalock v. Richardson,
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483 F.2d 773, 775 (4th Cir. 1972) (“[T]he language of § 205(g) precludes a de novo judicial
proceeding and requires that the court uphold the Secretary’s decision even should the court
disagree with such decision as long as it is supported by ‘substantial evidence.”’).
Here, the ALJ reviewed the medical evidence, the opinion evidence, Plaintiff's
testimony, and the record, and explained her analysis of Plaintiffs subjective complaints:
[Plaintiff] had severe impairments, which caused functional limitations, during
the alleged period of disability. However, the totality of the record did not
support the severity of [Plaintiffs] allegation that [she] was incapable of working
duting the period under review. [Plaintiff] completed a function report. She
said that she had some difficulty with her personal care. [Plaintiff] said that she
could cook, and complete some chores. [She] reported that she could shop for
groceries . . . [and] handle her finances. She reported difficulty lifting, squatting,
bending, walking, sitting, and kneeling (Exhibits 2E, 7E). [Plaintiffs] spouse
submitted a third-party function report. He generally stated that his wife was
functionally limited (Exhibit 4E). I considered this report and viewed it within
the context of the entire record, including the medical reports. I have accepted
that [Plaintiff] was functionally limited from her impairments during the alleged
period under review; her spouse’s observations did not alone support a
conclusion that [Plaintiff] was incapable of working within the constraints of
the [RFC] assessment. I found this report non-persuasive.
[Plaintiff] testified that [she] fell down the stairs in September 2015. [She]
suffered a back injuty as well as a concussion. [Plaintiff] testified that she had
constant pain, but had some relief from her medication. She testified that she
could lift approximately 15-20 pounds in 2017. [Plaintiff further] testified that
she dropped two things on her right foot in 2017, which cause pain. [She]
testified that she can only complete her chores for a short period of time.
[Plaintiff] indicated that she suffers from pain after completing them. [She]
testified that she started taking cate of her husband in 2017. She stayed at home
and tended to his care . . . [and drove] her husband to his appointments.
[Plaintiff] testified that she has applied for positions from 2016-2019 . . . [but]
reported that she had not been hired for any of these positions.
The objective medical evidence, before the date last insured, showed treatment
fot [Plaintiffs] back and foot. [She] did not have any surgery to treat these
conditions. [Plaintiff] also had an elbow injury, but the treatment and injections
[for this injury] occurred before the alleged onset date. The reports from
[Plaintiff's] providers, from 2015-2017, inferred that [Plaintiff] was responding
to conservative treatment. She did receive injections for her pain [and] took
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medication as well. After the date last insured, [Plaintiff] started physical
therapy for her back pain... .
In giving [Plaintiff] the benefit of the doubt, the [RFC] for the period under
review addressed her back pain by limiting her to light work, limited postural
movements, and environments, which might have exacerbated her condition.
In particular, [Plaintiff] admitted that she could have lifted upwards of 20
pounds during the period under review. The [RFC] has considered [this] with
its formulation. I must note that the [RFC] addressed [Plaintiff's] foot pain with
a sit/stand option. [She] can sit after standing for 45 minutes due to her history
of right foot pain. No single factor mentioned is conclusive on the issue to be
determined, but when viewed in combination, and in conjunction with the
medical history and examination findings, they suggested that [Plaintiff] was not
as limited as was alleged during the period under review.
(Tr. at 20-21.)
Plaintiff now argues that the AL] failed to expressly mention certain specifics of
Plaintiffs testimony, including her assertion that she could “perform activities such as cleaning
the house for only 15 minutes prior to requiring a rest break” due to pain, necessitating “three
days to clean her home.” (P1.’s Br. at 19-20) (citing Tr. at 52-54). However, the administrative
decision, as set out above, clearly recounts Plaintiffs testimony “that she can only complete
her chores for a short period of time . . . [and] that she suffers from pain after completing
them.” (Tr. at 20.) Plaintiff also asserts that the ALJ neglected to mention that Plaintiffs
“right foot pain is the result of a likely Freiberg’s Disease of the second metatarsal of her right
foot.” (Pl.’s Br. at 20.) In making this challenge, Plaintiff suggests no additional limitations
resulting from such a diagnosis, nor does she acknowledge that a definitive diagnosis of
Freiberg’s Disease was never made. She simply offers it as supportive evidence of Plaintiff's
foot pain, which the AL] expressly acknowledged and accounted for in the RFC assessment.
Notably, an AL] is not required to discuss each and every piece of evidence, see Reid v.
Comm’t of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014). Rather, the relevant issue is whether
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the AL] selectively quoted from the record, omitting evidence favorable to Plaintiff. Lewis v.
Berryhill, 858 F.3d 858, 869 (4th Cir. 2017). In the present case, Plaintiff presents no evidence
that the AL] cherry-picked from the record to support a finding of non-disability. The
administrative decision reflects consideration of Plaintiffs testimony, function reports from
both Plaintiff and her husband, numerous treatment notes, and objective testing, and sets out
the ALJ’s evaluation of that evidence. To the extent that Plaintiff now argues that the ALJ
could have interpreted the evidence in a light mote favorable to Plaintiff, Plaintiff essentially
asks this Court to reconsider the evidence and reach a different conclusion. As noted above,
“fw]here conflicting evidence allows teasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472.
Plaintiffs related function-by-function challenge similarly fails. As expressly set out in
the ALJ’s decision, Plaintiff testified that she could lift upwards of 20 pounds during the time
period at issue, and the ALJ limited her to light work as a result. (Tr. at 21.) The AL] also
included postural and environmental limitations in the RFC to limit work activities “which
might have exacerbated [Plaintiffs] condition” prior to her date last insured. (T'r. at 20.)
Although Plaintiff particularly takes issue with the RFC findings regarding her foot
impairment, the AL] specifically “note[d] that the [RFC] addressed [Plaintiffs] foot pain with
a sit/stand option. [She] can sit after standing for 45 minutes due to her history of right foot
pain.” (Tr. at 21.) The ALJ then found that Plaintiff could return to her prior work as generally
performed, specifically the positions of Accounts Receivable Clerk and Collection Specialist,
both of which are sedentary. Significantly, Plaintiff suggests no further limitations warranted
by the evidence. She simply argues that the AL] failed to provide a sufficient explanation,

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suppotted by specific evidence, of how she arrived at her RFC conclusions. See Monroe, 826
F.3d at 189-90. However, as further explained above, the AL] properly considered all of the
relevant evidence in concluding that Plaintiffs foot impairment was not as limiting as Plaintiff
alleged. Nevertheless, the ALJ expressly gave Plaintiff “the benefit of the doubt” in assessing
her RFC. (Tr. at 20-21.) In particular, the AL] declined to adopt the findings of the State
agency medical consultants, who opined that Plaintiff could perform medium work with no
postural or environmental limitations. (Tr. at 19-20, 88-89, 101-02.) No other medical sources
suggest a need for greater restrictions (Ir. at 21), nor does Plaintiff point to any evidence
suppotting such restrictions other than her subjective complaints.© Accordingly, the present
case does not present a situation “where an AL] [has failed] to assess a claimant’s capacity to
perform relevant functions, despite contradictory evidence in the record, or where other
inadequacies in the AL]’s analysis frustrate meaningful review.” Mascio, 780 F.3d at 636.
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that Plaintiffs Motion for Summary Judgment [Doc. #15] be

The Court notes that the Functional Report from Plaintiff's husband notes “no problems” in walking or
needing to stop and rest (Tr. at 249), and Plaintiffs testimony at the hearing was not completely clear, initially
noting that she would “constantly stay on the go” doing work such as cleaning her husband’s truck, mowing
the yard, weed eating, trimming the bushes, and washing the dishes, until she was exhausted (Tr. at 48-49), but
then later testifying that she could only work 15 minutes before stopping to rest (Tr. at 52). In addition, the
medical records reflect short term limitations on the two occasions immediately after Plaintiff injured her foot
in January 2017 and September 2017 (Tr. at 419-20, 479-80, 555-57), but the records also reflect that she was
still walking and “on her feet quite a bit”, and that she improved and was “mostly doing well” with a normal
gait, and with encouragement to stretch and exercise (Tr. at 471, 495, 540, 555-59, 560, 642, 889, 894, 1039-40,
1043, 1080). The AL] considered the treatment records at length (Tr. at 18-19), noted the mild findings on the
MRIs, and considered Plaintiffs reported activities, conservative treatment, and her improvement and good
response to treatment (Tr. at 20), and then gave Plaintiff the benefit of the doubt by including greater limitations
than the state agency physicians, including the limits on standing and walking with the option to sit at frequent
intervals, thus providing a sufficient explanation with substantial evidence in the record to support that
determination.
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DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #17] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 15% day of February, 2022.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653649. Public record. Not legal advice.