The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANGIE V. D., )
)
Plaintiff, )
)
v. ) 1:22CV763
)
MARTIN J. OPMALLEY;! )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Angie V. D. (“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 (“SSI”) 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 SSI on January 19, 2021, alleging a
disability onset date of December 14, 2020. (Tr. at 16, 163-72.)? Her application was denied
1 On December 20, 2023, Martin J. O’Malley was sworn in as Commissioner of Social Security, replacing Acting
Commissioner Kilolo Kijakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.
O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken
to continue this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C. §
405(g).
2? Transcript citations refer to the Sealed Administrative Record [Doc. #7].
initially (Tr. at 53-60, 69-73), and upon reconsideration (Ir. at 61-68, 82-87). ‘Thereafter,
Plaintiff requested an administrative heating de novo before an Administrative Law Judge
(“ALJ”). (Tr. at. 88-90.) On January 31, 2022, Plaintiff, along with her attorney, attended the
subsequent telephonic heating, at which Plaintiff and an impartial vocational expert testified.
(Ir. at 16.) Following the hearing, the ALJ concluded that Plaintiff was not disabled within
the meaning of the Act (Tr. at 23), and, on July 27, 2022, the Appeals Council denied Plaintiffs
request for review, thereby making the AL]’s ruling 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 ate supported by substantial evidence and were reached through application of the
cotrect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets
and 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. 1993)
(internal quotation omitted). “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 brackets and quotation 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 omitted).
“In reviewing for substantial evidence, the court should not undertake to tre-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 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 (internal brackets
and quotation omitted). “The issue before [the reviewing court], therefore, is not whether [the
claimant] is disabled, but whether the ALJ’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 impaitment 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)).3
3 “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 ef seg., 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 ef seg., 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 CFR. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
“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
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 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 impairment,” then “the ALJ must assess the clatmant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on
+ “RFC is a measutement of the most a claimant can do despite [the clatmant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect clatmant’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 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 (¢.g., pain).” Hines, 453 F.3d at
562-63.
that RFC, the claimant can “perform past relevant 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]
impairments.” 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 carty 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.
I. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since her application date of January 19, 2021. The ALJ therefore concluded that
Plaintiff met her burden at step one of the sequential evaluation process. (Tr. at 18.) At step
two, the ALJ further determined that Plaintiff suffered from the following severe impairments:
Autism Spectrum Disorder and anxiety[.]
(Tr. at 18.) The AL] found at step three that neither of the impairments identified at step two,
individually or in combination, met or equaled a disability listing. (Tr. at 19-20.) He therefore
assessed Plaintiffs RFC and determined that she could perform work at all exertional levels
but with the following, non-exertional limitations:
[Plaintiff is limited to] frequent exposure to fumes, odors, dust, gases or poor
ventilation; occasional exposute to noise level 4; and simple, routine tasks in an
environment with no fast paced, strict production demands. [Plaintiff] would
be able to maintain concentration, persistence, and pace with customaty breaks
throughout the workday with occasional changes in work setting explained in
advance, and frequent contact with supervisors and co-workers, but occasional
contact with the public as part of the performance of essential job duties.
(Tr. at 20.) The ALJ determined at step four of the analysis that Plaintiff had no past relevant
work. (It. at 21.) However, the AL] concluded at step five that, given Plaintiffs age,
education, work experience, and RFC, along with the testimony of the vocational expert
regarding those factors, Plaintiff could perform other jobs available in the national economy
and therefore was not disabled under the Act. (Tr. at 22-23.)
Plaintiff now raises two challenges to the ALJ’s decision. First, she contends that the
AL] “erred in failing to address psychological testing performed on December 1, 2020 and
December 14, 2020 when formulating Plaintiffs [RFC].” (Pl’s Br. [Doc. #13] at 2.) Second,
Plaintiff argues that “the ALJ erred in evaluating migraine headaches at step 2 of the sequential
evaluation process.” (PL’s Br. at 2.) After a thorough review of the record, the Court finds
that neither of these contentions requires remand.
A. Psychological testing
Plaintiff first alleges that the AL) failed to address all of the relevant evidence in the
case tecord as requited by 20 C.F.R. § 1545(a)(3) and Social Security Ruling 96-8p. Specifically,
she assetts that the administrative decision in this case fails to discuss psychological testing
performed at LeBauer Behavioral Medicine on December 1 and December 14 of 2020. (See
Pl.’s Br. at 4) (citing Tr. at 348). As noted in her brief, Plaintiff self-referred for testing because
she suspected that she had Autism Spectrum Disorder. (Pl.’s Br. at 4.) Based on the testing,
including Social Communication Questionnaites completed by both Plaintiff and her mother,
Plaintiff was noted to meet the criteria for Autism Spectrum Disorder, falling in the moderate
level of severity for social communication and a milder level for restricted repetitive behavior.
(Ir. at 352.) Accordingly, her providers recommended counseling, social skills training,
medication consultation, educational accommodations, and seeking a support group. (Tr. at
352-53.)
Plaintiff now contends that, because the ALJ failed to specifically mention the findings
of the December 2020 evaluations, “it is impossible to know if the ALJ reviewed and
considered the entirety of the medical file.” (Pl.’s Br. at 6.) She further argues that “as these
records ate from a medical source and include opinions on Plaintiffs functioning, the AL] had
a duty to address any conflicts between the medical source opinions and the RFC, with an
explanation as to why the opinions were not adopted.” (Pl.’s Br. at 6.) However, as Defendant
notes, the records at issue pre-date Plaintiffs application date. Moreover, the ALJ did, in fact,
find that Plaintiff “has been diagnosed with autism spectrum disorder and anxiety, which are
severe impairments and can be expected to cause some difficulties.” (Tr. at 21.) Thus, the
ALJ relied on the diagnosis of Autism Spectrum Disorder in assessing Plaintiffs impairments.
Further, the AL]’s inclusion of Autism Spectrum Disorder as a severe tmpaitment at step two
of the sequential analysis and his subsequent inclusion of RFC limitations related to this
impairment belies Plaintiffs assertion “it is impossible to know if the ALJ reviewed and
considered” her Autism diagnosis and related records.
Further, as Defendant correctly notes, the AL] considered and discussed the opinions
of the state agency psychological consultants, Jacquelyn A. Harrison, Ph.D. and Darolyn Hilts,
Ph.D, both of whom expressly took Plaintiffs December 2020 evaluation into account when
formulating PlaintifPs RFC. (Tr. at 21, 54-55, 64.) Drs. Harrison and Hilts both opined that,
based on behavioral testing, treatment notes, and reported symptoms, Plaintiff “was limited
to performing simple, routine, repetitive tasks.” (Tr. at 21, 56-57, 65-66.) Dr. Hilts also found
that Plaintiff “would be able to understand and remember most instructions, sustain
concenttation persistence and pace for simple tasks, interact with others in settings with
limited interpersonal demands and adapt to routine/simple changes in the work
environment.” (Tr. at 21) (citing Tr. at 65-66). The AL] found these opinions “persuasive
and consistent with the medical evidence of record” (Tr. at 21), and adopted the consultants’
findings, along with additional limitations, when formulating his own RFC assessment (see T’r.
at 20). In doing so, the ALJ clearly addressed all of the relevant evidence in the case record as
required by 20 C.F.R. § 1545(a)(3) and SSR 96-8p.
B. Migraines
Plaintiff next argues that the ALJ erred by failing to include migraines among Plaintiff's
sevete impaitments at step two of the sequential analysis. As an initial matter, the AL]’s
omission of a severe impaitment at step two does not, without more, necessitate remand. “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 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).5 However, in the present case, Plaintiff
5 Step two is a threshold determination of whether claimants have a severe impaitment (or combination of
impairments) that meets the twelve-month duration requirement and significantly limits their ability to do basic
work activities. 20 C.F.R. §§ 404.1520(a)(4)@i), 416.920(a)(4) (i). If the Commissioner finds no severe
impairments, the claimant is not disabled and the analysis does not proceed to the other steps. Id. However,
if a claimant does have a severe impairment or combination of impairments, the ALJ must consider the effects
of both the severe and non-severe impairments at the subsequent steps of the process, including the
determination of RFC. See 20 C.F.R. § 404.1523; SSR 96-8p, 1996 WL 374184, at * 5 (July 2, 1996); SSR 86-8,
1986 WL 68636, at *5 (1986). If the AL] proceeds to discuss and consider the non-severe impairment at
contends that the ALJ’s subsequent analysis also failed to account for the effects of her
migraine headaches on her ability to work.
At step two, the AL] acknowledged that Plaintiff had been “assessed with migraine
headaches.” However, he found that the medical record
also noted that [Plaintiff] has been prescribed Propranolol which aids in the
management of her symptoms. There is no documentation that this minor
medical problem has imposed recurring vocationally restrictive limitations for a
period of 12 continuous months. Consequently, this minor medical problem
has imposed no more than a combination of slight abnormalities, which have
had no more than a minimal effect on [Plaintiffs] ability to work.
(Ir. at 18) Gnternal citation to record omitted). Plaintiff counters that the AL] failed to
consider medical evidence and testimony which contradict these findings. In particular,
Plaintiff relies on an initial intake assessment dated January 5, 2021, summarizing Plaintiffs
recounting of her history as follows:
[Y]ou have been having migraine pain about 50% of the days of each month
for awhile [sic] (years now) and have not been getting much relief from [A]leve,
your usual strategy. You have not taken any prescriptions for migraines since
about 15yrs old. You get nausea and vomiting and end up needing to get iv
fluids a couple times/yr from migtaine-induced dehydration. You have not
taken anti-nausea pills at home to prevent this. We’d like for you to [h]ave some
medicine on hand for the onset of your next migraine.
(Tr. at 394-95.) Two days later, on January 7, 2021, Plaintiffs providers noted that they were
beginning her on propranolol and also recommended a combination preventative supplement
for her migraines. (Tr. at 395.) On January 16, 2021, three days prior to Plaintiff's application
date and less than two weeks after starting propranolol, Plaintiff reported that the medication
subsequent steps, there is no prejudice to the claimant. See Thomas v. Comm’r, Soc. Sec. Admin., No. SAG—
11-3587, 2013 WL 210626, at *2 (D. Md. Jan. 17, 2013) (finding harmless error where ALJ continued with
sequential evaluation process and considered both severe and non-severe impaitments); Kenney v. Astrue, No.
CBD-—10-1506, 2011 WL 5025014, at *5 (D. Md. Oct. 20, 2011) (declining to remand for failure to classify an
impairment as severe because it would not change the result).
had already helped her headache symptoms, noting that her headaches were “less severe, [of|
shorter duration, and possibly [of] decreased frequency.” (TI't. at 395.) Because the majority
of the records relied upon by Plaintiff predate both the period at issue in this case and the
improvement of Plaintiffs headaches with appropriate treatment, this evidence has little
bearing on Plaintiff's limitations from her application date forward.
Moteover, the record goes on to document continued improvement in Plaintiffs
headache symptoms throughout the alleged disability period. On March 11, 2021, Plaintiff
reported that 10 mg of propranolol twice a day had “significantly improved [the] frequency
and severity of [her] headaches.” (Tr. at 395.) In June 2021, Plaintiff again stated that her
migraines continued to be “less frequent,” although she still reported experiencing 1 to 2 per
week. Notably, Plaintiff also reported that “her migraines don’t last as long and don’t impair
her ability to function as much as before.” (Tr. at 395.) At her June 2021 appointment,
Plaintiffs provider noted that stress was the main trigger for Plaintiff's headaches and offered
help with stress management. (Tr. at 395.) The record does not reflect any additional
treatment related to headaches for six months, until December 2021, and at that time her
providers noted that she had a headache for two days during her college finals and that “[s]ttess
is main trigger.” (Tr. at 400.) The ALJ addressed Plaintiffs headaches in evaluating the RFC,
recounting the finding that “stress is a trigger for headaches,” along with Plaintiffs history of
treatment for headaches, but he further noted that Plaintiffs later records from April 2021
through December 2021 “fail[ ] to document any complaints or significant limitations as a
result of’ her impairments. (Tr. at 21.) Significantly, Plaintiff provided no medical opinion
ot other evidence supportive of migraine limitations, and the state agency medical consultants
10
at both the initial and reconsideration levels specifically considered Plaintiffs migraines and
found them non-severe. (See Tr. at 54, 63.)
The only remaining evidence supportive of work-restrictive migraine symptoms during
the relevant period consists of Plaintiffs own testimony. As reflected in the administrative
decision, Plaintiff testified that “[s]he experiences migraines that are a symptom of anxiety.”
(Tr. at 20.) In light of this testimony, supported by treatment notes documenting that
Plaintiffs headaches result from stress, the ALJ treated Plaintiffs migraines as a symptom of
a sevete impairment, rather than a sepatate impairment. In the context of Plaintiffs step two
challenge, this amounts to a distinction without a difference, as the ALJ clearly considered the
effects of Plaintiffs migraines at later steps of the sequential analysis in accordance with the
regulations. See 20 C.F.R. § 416.923 (requiring AL]s to consider the effects of both severe
and non-sevete impaitments at the subsequent steps of the process, including the
determination of RFC); see also SSR 96-8p, 1996 WL 374184, at *5; SSR 86-8, 1986 WL 68636,
at *5,
Specifically, the AL] included a number of limitations in Plaintiffs RFC which exceed
the restrictions opined by the state agency psychological consultants, which, as set out above
in subsection A, limit Plaintiff to performing simple, routine, repetitive tasks; understanding
and remembering most instructions; sustaining concentration, persistence, and pace for simple
tasks; interacting with others in settings with limited interpersonal demands; and adapting to
routine changes in her work environment. (Tr. at 21) (citing Tr. at 65-66). To these strictures,
the AL] further limited Plaintiffs exposure to fumes, odors, dust, gases, and poor ventilation
as well as her exposure to loud noises in response to Plaintiff's testimony that she “is bothered
11
by light, noises and smells.” (Tr. at 20.) Based on Plaintiff's accounts of stress, particularly
her testimony that she “gets overwhelmed trying to keep up with deadlines and has panic
attacks” in soctal situations, the ALJ included RFC restrictions to “no fast paced” work with
“strict production demands,” only “occasional changes in work setting explained in advance,”
and only “occasional contact with the public as part of the performance of essential job
duties.” (T'r. at 20.)° The ALJ then concluded that the RFC was supported by the weight of
the evidence of record, and that “[t]here are no medical findings of sufficient severity to
suggest that [Plaintiff] is unable to perform all work activity” as she claimed. (T'r. at 21.)
Overall, the RFC in this case addresses Plaintiffs complaints of anxiety and stress as
supported by the record. To the extent Plaintiff asserts that her migraines required additional
limitations, she fails to suggest what, if any, limitations may be appropriate. Moreover, to the
extent that Plaintiff bases the alleged severity and symptoms of her migraines on her own
testimony, the ALJ found, as set out above, that Plaintiffs condition improved significantly
with treatment and that, based on this evidence and the medical opinions of record, her
symptoms were not as severe or limiting as alleged. While Plaintiff disagrees with the AL]’s
evaluation, Plaintiff is essentially asking the Court to reconsider the decision and re-weigh the
evidence and come to a different conclusion than the ALJ. However, it is not the function of
this Court to re-weigh the evidence or reconsider the ALJ’s determinations if they are
supported by substantial evidence. As noted above, “[w]here conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled, the responsibility for that
6 Notably, none of the jobs identified at step five of the sequential analysis involve significant interaction with
others. (See DOT 209.587-034, 1991 WL 671802; DOT 922.687-058, 1991 WL 688132; DOT 318.687-010,
1991 WL 672755.)
12
decision falls on the ALJ.” Hancock, 667 F.3d at 472 (internal brackets and quotation
omitted). Thus, the issue before the Court is not whether a different fact-finder could have
drawn a different conclusion, or even “whether [Plaintiff] is disabled,” but rather, “whether
the AL]’s finding that [Plaintiff] is not disabled is supported by substantial evidence and was
reached based upon a cortect application of the relevant law.” Craig, 76 F.3d at 589. Hete,
the ALJ reviewed the evidence, explained his decision, and supported that explanation with
substantial evidence. Accordingly, the Court finds no basis for remand.
IT IS THEREFORE ORDERED that the Commissioner’s decision finding no
disability is AFFIRMED, that Plaintiffs Motion for Summary Judgment [Doc. #12] 1s
DENIED, that Defendant’s Dispositive Brief [Doc. #19] is GRANTED, and that this action
is DISMISSED with prejudice.
This, the 5 day of March, 2024.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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