# BLEWITT v. KIJAKAZI

> District Court, M.D. North Carolina · August 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10653659

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 19, 2022
- **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/10653659

## Opinion text

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

JESSICA MAE BLEWITT, )
Plaintiff,
v. 1:21CV736
KILOLO KIJAKAZI,
Acting Commissioner of Social Security, )
Defendant.

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Jessica Mae Blewitt (“Plaintiff”) brought this action pursuant to Section
1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 1383(c)(3)), to obtain
judicial review of a final decision of the Commissioner of Social Security denying her claim
for Supplemental Security Income under Title XVI of the Act. The parties have filed cross-
motions for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed her application for Supplemental Security Income Benefits
on September 3, 2019, alleging a disability onset date of May 17, 2014. (Tr. at 16, 158-64.)!
Her applications were denied initially (Tr. at 71-88, 111-14) and upon reconsideration (Tr. at
89-110, 121-25). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (See Tr. at 127-52.) Plaintiff, along with her attorney and

an impartial vocational expert, attended the subsequent telephonic hearing on February 5,
2021. (Tr. at 16.) The ALJ ultimately concluded that Plaintiff was not disabled within the
meaning of the Act (Tr. at 31), and, on July 26, 2021, the Appeals Council denied Plaintiffs
request for review of the decision, thereby making the AL]’s conclusion the Commissionet’s
final decision for purposes of judicial review. (Tr. at 1-6.)
II. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of teview 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
AL] if they are supported by substantial evidence and were reached through application of the
cottect legal standard.” Hancock v. Asttue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted).
“Substantial evidence means ‘such televant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(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) Gnternal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation 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
[ALJ]. 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 cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “‘inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Secutity Income
Program (SSD), 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 CER. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

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.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,
but falters at step three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on
that RFC, the claimant can “perform past relevant work’; if so, the clatmant 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

3 “RFC is a measutement 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 AL] only after
[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.9., pain).”
Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the 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” since her alleged onset date. The ALJ therefore concluded that Plaintiff met her
burden at step one of the sequential evaluation process. (Ir. at 18.) At step two, the AL]
further determined that Plaintiff suffered from the following severe impairments:
Behcet’s disease versus undifferentiated connective tissue disorder;
fibromyalgia; asthma; anxiety disorder; depressive disorder; and attention
deficit/hyperactivity disorder[.]
(I'r. at 18.) The AL] found at step three that none of these impairments, individually or in
combination, met or equaled a disability listing. (Ir. at 20-23.) Therefore, the AL] assessed
Plaintiffs RFC and determined that she could perform light work with extensive further
limitations. Specifically, the AL] found as follows
[S]he requires a sit/stand option, allowing her to shift from a standing position
to a seated position and/or to stretch at intervals of approximately 30 minutes,
provided she does not leave the workstation and the shifting of positions results
in her being off-task no more than 1-2 minutes with each position shift; she is
incapable of climbing ladders, topes, and scaffolds; she is capable of
occasionally climbing ramps and staits and occasionally balancing, stooping,
kneeling, crouching, and crawling; she is capable of frequently handling,
fingering, feeling, and grasping with the bilateral hands; she is capable of no

more than occasional exposure to extreme temperatures, humidity and wetness,
slippery or uneven surfaces, vibrations, poorly ventilated areas, and pulmonary
irritants, including noxious odors, fumes, dusts, and gases; she is incapable of
performing work that involves the use of sharp objects, tools, or knives or
requires any workplace exposure to blood or other bodily fluids; she is able to
perform work that does not require driving as a part of work duties or require
any work-related exposure to hazards, such as unprotected heights and
unguatded moving machinery; she is capable of traveling to and from a single
workplace but is otherwise incapable of traveling for work; she is able to
perform the mental demands of work that requires her to make workplace
decisions and remember and apply commonsense understanding to carry out
simple and detailed instructions and tasks consistent with occupations that can
be learned over a period up to and including 6 months in a setting that is goal-
oriented versus one requiring that she maintain a specified pace consistently
throughout the workday (e.g., a conveyor belt or assembly line); she is able to
sustain concentration and persist at simple and detailed tasks, as described, up
to 2 houts at a time with normal breaks during an 8-hout workday in a job that
involves only occasional changes in the work setting; and she is capable of
occasional interaction with the general public, co-workers, and supervisors but
is incapable of performing tandem tasks or working in a team environment.
(Tr. at 23-24.) Based on this determination and the testimony of a vocational expert, the AL]
determined at step four of the analysis that PlaintifPs past relevant work exceeded her RFC.
(Tr. at 29-30.) However, the ALJ found at step five that, given Plaintiffs age, education, work
expetience, RFC, and the testimony of the vocational expert as to these factors, she could
perform other jobs available in significant numbers in the national economy. (T'r. at 30-31.)
Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. at 31.)
Plaintiff now raises two challenges to the ALJ’s decision. First, she argues that
substantial evidence fails to support the ALJ’s step two finding that Plaintiff's seizures and
neutopathy were not medically determinable impairments. Second, Plaintiff contends that her
the RFC “was substantially impeded by additional limitations, and thus, it was error to find
that Plaintiff could perform such work.” (Pl.’s Br. [Doc. #12] at 2.) Although the meaning
of Plaintiff's second contention is not abundantly clear, she generally appeats to argue that

substantial evidence fails to support the ALJ’s RFC assessment. (See PIl.’s Br. [Doc. #12] at
7-8.)
A. Step two
At step two of the sequential analysis, the ALJ found that six of the impairments
identified by Plaintiff significantly limited her ability to perform basic work activities, and
therefore qualified as “severe” under the Act. (Ir. at 18.) The ALJ further found that
Plaintiffs irritable bowel syndrome was “non-severe” and that five additional impairments—
seizutes/epilepsy, kidney stones, sarcoidosis, neuropathy, and peripheral arterial disease—
were “non-medically determinable,’ meaning that there was no objective evidence
documenting the diagnosis of, or treatment for, these conditions during the time period at
issue. (Tr. at 18-20.) Plaintiff now contends that the ALJ erred in categorizing her seizures
and neuropathy as non-medically determinable and in failing to consider these impairments at
later steps of the sequential analysis.
In making this challenge, Plaintiff acknowledges, and even quotes, the AL]’s findings
that Plaintiffs seizures were “a side effect from the prescription medication Wellbutrin, which
she no longer takes.” (Tr. at 18.) As noted by the ALJ, the primary reference in the record to
seizutes was as part of Plaintiff's medication history, and this problem is further listed as
“resolved.” (Tr. at 18.) Specifically, the AL] found that:
The claimant alleges seizutes/epilepsy as a severely limiting impairment, but the
medical evidence does not contain sufficient clinical findings or diagnostic
studies to find a seizure disorder as a medically determinable impairment.
Specifically, the medical evidence simply refers to seizures as part of the
claimant’s subjectively reported medication history, and the evidence shows the
claimant reported her seizure activity was a side effect from the prescription
medication Wellbutrin, which she no longer takes. (Exhibits 2F/21, 31, 73, 106,
150, 224, 3F/64, 72; 4F/2, 4, 27, 37, 43; 7F; 8F; 9F/7, 17; 10F/6, 14; 11F/12,

23; 12F/2, 8, 16). Furthermore, treatment records from the period at issue
describe the claimant’s history of seizures as “resolved.” (Exhibit 3F//16, 17,
28, 29, 44, 45). Also, there ate no records from a specialist such as a neurologist
documenting diagnoses and treatment for a seizure disorder, and there ate no
diagnostic or laboratory studies such as a lumbar puncture, blood test, EEG,
MRI, CT or PET scan documenting objective clinical signs of a seizure disorder.
Finally, neither state agency medical consultant at the initial or reconsideration
levels noted the presence of a seizure disorder in the evidence. (Exhibits 1A;
3A). As such, the claimant’s reports and allegations of a severe seizure disorder
ate non-medically determinable.
(Tr. at 18-19.) Similarly, the ALJ noted that neuropathy was listed among Plaintiffs diagnoses
on only one occasion, and no exam findings or testing established neuropathy as an
impairment. (Ir. at 19.) The ALJ explained that:
The claimant also alleges neuropathy as a severely limiting impairment, but the
medical evidence shows that condition is largely self-reported, and there are no
exam findings or testing such as EMG nerve conduction studies in the evidence
establishing neuropathy as an impairment. (Exhibit 2F/188; 3F/2; 9F/1, 12, 13;
12F/4, 15). There is only one instance in December 2019 when a treatment
provider listed neuropathy as a diagnoses, but per Social Security rules and
regulations, a single diagnosis alone is insufficient to establish a medically
determinable impairment, especially when, such as in this case, exam findings
from that physician show the claimant’s neurological evaluation was entirely
normal. (Exhibits 9F/12-13; 12F/15-16). Neuropathy is therefore non-
medically determinable.
(T'r. at 19.) In an effort to refute the AL]’s findings, Plaintiff argues that the ALJ was required
to include both neuropathy and epilepsy as severe impairments at step two because they were
included among the diagnoses listed by Plaintiffs treating Nurse Practitioner, Deanna
Gatmon, FNP, WHNP, when she completed a Physical Residual Functional Capacity
Questionnaire supplied by Plaintiffs attorney. (Pl.’s Br. at 4); (Ir. at 820). However, the
regulations clearly provide that a medically determinable impairment:
must tesult from anatomical, physiological, or psychological abnormalities that
can be shown by medically acceptable clinical and laboratory diagnostic
techniques. ‘Therefore, a physical or mental impairment must be established by

objective medical evidence from an acceptable medical source. We will not use
your statement of symptoms, a diagnosis, or a medical opinion to establish the
existence of an impairment(s).
20 C.F.R. §§ 404.1521, 416.921 (emphasis added). Because Plaintiff was not entitled to rely on
her own statements, a mere diagnosis, or Ms. Garmon’s opinion to establish the existence of
her neuropathy and epilepsy as impairments, particularly without corroborating objective
evidence, her step two claim is without merit.
Moteover, any error in failing to include neuropathy and epilepsy at step two is
harmless in any event because the AL] did not stop at step two and instead proceeded to
consideration of Plaintiffs claims based on a consideration of all of the evidence in the record.
McClain v. Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (“As
long as the ALJ 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 sevete at step two is harmless.”) With respect to Plaintiffs claims regarding a past history
of seizures, Plaintiff testified at the hearing that she could not drive or handle sharp objects.
The ALJ considered all of the records, and even though nothing in the records reflected
unresolved or ongoing seizures, the RFC limited Plaintiff to “no use [of] sharp objects” in the
workplace, no driving as part of work duties, and no “work-related exposure to hazards, such
as unprotected heights and unguarded moving machinery.” (Ir. at 24, 26.)* Similarly with
regard to Plaintiff's claims of a history of neuropathy, the AL] considered all of the symptoms
in the records as part of the evaluation of Plaintiffs fibromyalgia and undifferentiated

“In her filings, Plaintiff also alleged “memory loss due to seizures”, but the ALJ discussed Plaintiffs alleged
memory loss and found that Plaintiff performed well on memory and attention testing at the consultative
examination. (Ir. at 22, 24, 27, 28, 29.)

connective tissue disorder, and Plaintiff has not pointed to any evidence that the AL] failed to
assess ot consider.
Plaintiff also contends that the ALJ failed “to properly assess her subjective complaints
of pain and fatigue,’ both of which she claims are supported by Ms. Gatrmon’s medical
opinion. (Pl.’s Br. at 5.) In making this claim, Plaintiff argues that “the ALJ applied an
incorrect legal standard when he discounted her complaints as inconsistent with the objective
medical evidence.” (Pl.’s Br. at 5.) Plaintiff also contends that “substantial evidence does not
support the AL]’s other findings related to [Plaintiff's] subjective complaints” (PI.’s Br. at 5),
but her brief includes no argument or evidence related to this assertion. Nevertheless, because
Plaintiff raises at least a cursory substantive challenge to the AL]’s treatment of her subjective
complaints, the Court will address this contention as well as her procedural challenge.
To the extent Plaintiff contends that the ALJ applied the incorrect legal standard, the
applicable regulations and guidance provide that AL]’s decision must “contain specific reasons
for the weight given to the individual’s symptoms, [such as pain,] be consistent with and
supported by the evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Social Security
Ruling 16-3p, Titles 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. The ALJ
should not reject a claimant’s statements “about the intensity and persistence of [her] pain or
other symptoms or about the effect [her] symptoms have on [her] ability to work solely
because the available objective medical evidence does not substantiate [her] statements.” 20
C.F.R. § 404.1529(c)(2). Thus, “subjective evidence of pain intensity cannot be discounted

10

solely based on objective medical findings.” Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir.
2017); see also Arakas v. Commissioner, 983 F.3d 83, 96-97 (4th Cir. 2020). However, contrary
to Plaintiffs argument in the case at hand, it is also undisputed that a plaintiffs “symptoms,
including pain, will be determined to diminish [her] capacity for basic work activities [only] to
the extent that [her] alleged functional limitations and restrictions due to symptoms, such as
pain, can reasonably be accepted as consistent with the objective medical evidence and other
evidence.” 20 C.F.R. § 404.1529(c)(4). Thus, objective medical evidence and other evidence
in the record ate “crucial to evaluating the intensity and persistence of a claimant’s pain and
the extent to which it impairs [the] ability to work” and “[ajlthough a claimant’s allegations
about .. . pain may not be discredited solely because they are not substantiated by objective
evidence of the pain itself or its severity, they need not be accepted to the extent they ate
inconsistent with the available evidence, including objective evidence of the underlying
impairment, and the extent to which that impairment can reasonably be expected to cause the
pain the claimant alleges she suffers.” Hines, 453 F.3d at 565 n.3 (quoting Craig, 76 F.3d at
595); see also SSR 16-3p (“[O]bjective medical evidence is a useful indicator to help make
reasonable conclusions about the intensity and persistence of symptoms, including the effects
those symptoms may have on the ability to perform work-related activities . . . .”). According
to the regulatory guidance:
If an individual’s statements about the intensity, persistence, and limiting effects
of symptoms ate consistent with the objective medical evidence and the other
evidence of record, we will determine that the individual’s symptoms ate more
likely to reduce his or her capacities to perform work-related activities.... In
contrast, if an individual’s statements about the intensity, persistence, and
limiting effects of symptoms ate inconsistent with the objective medical
evidence and the other evidence, we will determine that the individual’s

11

symptoms ate less likely to reduce his or her capacities to perform work-related
activities... .
SSR 16-3p.
In the present case, a thorough review of the ALJ’s decision and the record as a whole
reveals that the ALJ properly considered the medical evidence and other evidence of Plaintiffs
impairments and limitations and explained that determination in the decision. 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, as
opined by Ms. Gatmon. (See PI.’s Br. at 6-7.) However, as Defendant correctly notes, whether
the ALJ could have reached 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, 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 Secretaty’s decision even
should the court disagree with suchdecisionas long as it is supported by
‘substantial evidence.”’). Because Plaintiff has not shown that the ALJ applied the incorrect
standard in evaluating her statements, her first challenge fails.
Any substantive challenge proves equally unpersuasive. In terms of Plaintiffs
subjective statements, the AL] set out the reported symptoms in Plaintiff's testimony and
disability report. He also presented the relevant regulations for evaluating those statements.
(See Tr. at 24-26.) The ALJ then discussed each of Plaintiffs impairments at length, noting
the treatment Plaintiff recetved, her clinical findings and symptoms, and her response to
treatment. Finally, the AL] connected these findings to the relevant limitations in Plaintiffs
RFC assessment. (See Tr. at 26-27.) For example, in terms of Plaintiffs physical impairments,
12

namely Bechet’s disease, fibromyalgia, and asthma, the ALJ found that, “in light of [Plaintiffs]
reports of weating supportive footwear, and her inability to be exposed to bodily fluids, the
evidence reasonably supports a finding that [Plaintiff] is limited to work that involves no
greater than occasional exposute to slippery or uneven surfaces, and no use of sharp objects
ot bodily fluids in the workplace.” (I'r. at 26.) Notably, these limitations specifically address
PlaintifPs complaints of swelling and pain in her hands and feet as well as her higher tisk of
contracting infectious diseases due to open lesions. (See Tr. at 25.) Although Plaintiff also
alleged widespread musculoskeletal pain due to fibromyalgia and arthritis, the AL] noted that
Plaintiffs objective testing and examinations reflected largely unremarkable findings and little
to no difficulties with motor functioning or ambulation. (Tr. at 24-26.) Nevertheless, the ALJ
also found that Plaintiff required far greater limitations than those opined by the State agency
medical consultants. (Ir. at 28.) Chief among this departure was the AL]’s finding that
Plaintiff was limited to light work, rather than medium work as the State agency consultants
opined, and with a sit/stand option. (It. at 28.) Although Plaintiffs treating rheumatologist,
Dr. Romero, opined that Plaintiffs “undifferentiated connective tissue disease, associated
joint pain, oral ulcers, rashes, fatigue, and joint swelling symptoms would frequently interfere
with [her] ability to perform even simple tasks,” the AL] noted that Dr. Romero’s clinical exam
findings and treatment records “describe [Plaintiff] as a well-appearing individual with no signs
of joint swelling, and grossly intact cognitive/neurological functioning,” and that her opinion
was also inconsistent with the findings of other examiners during the period at issue. (Tr. at
28.) Similarly, the AL] rejected Ms. Garmon’s opinion, which posited that Plaintiffs “pain
and anxiety make it impossible for her to perform typical work activities.” (Tr. at 28.) In

13

doing so, the ALJ cortectly noted that the issue of disability is reserved to the Commissioner,
and that Ms. Gatmon’s opinion, like Dr. Romero’s, was inconsistent with her own clinical
findings describing Plaintiff as “an alert and oriented individual with an intact gait, normal
sensation, and no focal or motor deficits.” (Tr. at 28.) Notably, Plaintiff makes no other
challenge to the ALJ’s consideration of the opinion evidence, and the ALJ’s assessment find
supporting evidence in the record.
In terms of Plaintiff's mental impairments, the ALJ acknowledged Plaintiffs testimony
that her “chronic anxiety symptoms, including panic attacks, fear of leaving the home, and
difficulties concentrating.” (Tr. at 25.) However, as with Plaintiffs physical symptoms, the
ALJ found that Plaintiffs treatment records and other evidence failed to support the extreme
limitations Plaintiff alleged. Nevertheless, the ALJ’s analysis reveals that he credited Plaintiffs
testimony to the maximum extent supported by the record. For example, the ALJ found that,
because Plaintiffs “comprehensive mental status exam notes do show [that Plaintiff] displayed
‘minor’ problems sustaining attention, the evidence supports a finding that [she is] unable to
perform work that requires her to maintain a specific pace throughout the day.” (Tr. at 27.)
The AL] also determined that, “in light of [Plaintiffs] testimony and this medical evidence
[recounting a panic attack,] it is reasonable to find [her] limited to performing work tasks that
involve only occasional interaction with the public, and no tandem tasking or work in a team
environment.” (I'r. at 27.) Turning to the opinion evidence, the State agency psychological
consultants opined that Plaintiff could perform simple, routine, repetitive tasks; understand
and retain at least simple instructions; maintain concentration, persistence, and pace to stay on
tasks for 2-hour petiods; tolerate occasional contact with coworkers, supervisors, and the

14

general public; and adapt to change in a nonproduction-oriented workplace. (See Tr. at 104-
06.) The consultative psychological examiner posited fewer restrictions, finding that Plaintiff
“has minor limitations sustaining attention, . . . no problems interacting and relating with
others, ... moderate problems tolerating the stress associated with day-to-day work activities,”
and no problems understanding and following instructions. (Ir. at 29.) Although the AL]
found both sets of opined limitations only partially persuasive, he adopted portions of each
and described his reasons for doing so in the hearing decision. Overall, the ALJ determined
that “[c]onsideration of the record as a whole, including [Plaintiffs] reported activities of daily
living, consetvative/routine treatment modalities, the longitudinal medical record, and the
opinion evidence shows [that Plaintiffs] allegations of disabling symptoms and limitations are
not entirely consistent with and supported by the medical evidence and other evidence in the
record.” (Tr. at 29.) Because Plaintiff identifies no fault in the ALJ’s reasoning, and none is
apparent from a thorough review of the administrative decision, the Court finds no basis for
remand.
B. RFC
PlaintifPs second argument also fails. In challenging her RFC assessment, Plaintiff
metely quotes the ALJ’s RFC finding in full, cites the definition of an RFC assessment, and
concludes with the following:
Even assuming, as the ALJ noted, that there exists such a job in the national
economy with such limitations and that the Dictionary of Occupational Titles
does not address some of the limitations contained in the [RFC], the AL]
“provided no explanation as to how those particular activities . . . showed that
[s]he could persist through an eight-hour workday.” Brown v. Comm’r [of] Soc.
Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017); see also Woods [v. Berryhill],
888 F.3d [686,] 694 [(4th Cir. 2018)] (holding that the ALJ erred in failing to

15

explain how the evidence supported his conclusion that the claimant “could
actually perform the tasks required by ‘medium work”).
(PL’s Br. at 8.) From Plaintiffs citations to Brown and Woods, it appears that she may intend
to challenge the AL)’s treatment of Plaintiffs daily activities. However, Plaintiff points to no
evidence supporting this argument, and none is appatent from a thorough review of the AL]’s
decision.
As the Fourth Circuit explained in Woods, “[a]n ALJ may not consider the type of
activities a claimant can perform without also considering the extent to which she can perform
them.” Woods, 888 F.3d at 694; see also Lewis v. Bertyhill, 858 F.3d 858, 868, n.3 (4th Cir.
2017) (“The ALJ points to Lewis’ ability to perform incremental activities interrupted by
petiods of rest, such as ‘driv[ing] short distances of up to 30 miles, shop for groceries with the
assistance of her mother or roommate, handle her finances, and watch television.’ The AL]’s
conclusion that Lewis’ activities demonstrate she is capable of work is unsupported by the
record.”’) (citation omitted); Brown, 873 F.3d at 263; Fletcher v. Colvin, No. 1:14CV380, 2015
WL 4506699 at *5-8 (M.D.N.C. Jul. 23, 2015).
In the present case, the ALJ’s RFC discussion barely mentions Plaintiffs daily activities,
other than her alleged inability to ative. (Tr. at 25.) However, the AL]’s discussion of
Plaintiffs mental impairments at step three of the sequential analysis discusses Plaintiff's daily
activities in the context of evaluating her mental limitations. When considering Plaintiffs
ability to understand, remember, and apply information, for example, the ALJ recounted
Plaintiffs Function Repott, in which she “acknowledged being capable of performing a variety
of tasks that require on to understand, recall[,] and apply learned information, such as driving
a cat, shopping for necessities in stores and online, paying bills, managing a bank account, and
16

preparing daily meal.” (Tr. at 22.) Despite these findings, the ALJ appears to have given
Plaintiff the benefit of the doubt in finding her moderately impaired in this area of functioning.
(It. at 22.) He then found that Plaintiffs restrictions in understanding, remembering, and
applying information required RFC limitations to “mak[ing] workplace decisions and
remember[ing] and apply[ing] commonsense understanding to carry out simple and detailed
instructions and tasks consistent with occupations that can be learned over a period up to and
including 6 months in a setting that is goal-oriented.” (Tr. at 24.)
Similarly, in determining Plaintiffs ability to get along with others, the ALJ
acknowledged Plaintiffs anxiety symptoms, including panic attacks and fear of leaving the
house, but he also noted Plaintiffs assertions that she gets along with friends, family members,
and neighbors and has never had problems getting along with others in the workplace. (I'r. at
22.) Here again, the AL] appears to have given Plaintiff the benefit of the doubt in finding
her moderately impaired in interacting with others and later including significant social
restrictions in Plaintiffs RFC assessment. (Ir. at 22, 24.) Finally, in finding Plaintiff
moderately limited in adapting and managing herself, the ALJ noted that, despite her chronic
anxiety symptoms, Plaintiff “is capable of shopping, cooking and feeling herself and her
children, artiving on time for scheduled appointments, and maintaining good hygiene and
grooming.” (Tr. at 23.) The AL] later accounted for Plaintiffs adaptive limitations by limiting
her to “only occasional changes in the work setting.” (Tr. at 24.) Nothing in the AL]’s
decision, at step three or elsewhere, suggests that he failed to qualify Plaintiffs daily activities
ot that he used them to overstate Plaintiff's functional abilities, as in Woods and Brown.
Accordingly, the Court finds no basis for remand.

17

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that PlaintifPs Motion to Reverse the Decision of the
Commissioner [Doc. #11] be DENIED, that Defendant’s Motion for Judgment on the
Pleadings [Doc. #14] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 18 day of August, 2022.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653659. Public record. Not legal advice.