WOOD v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARY W., )

)

Plaintiff, )

)

v. ) 1:23CV128

)

MARTIN J. O’MALLEY, )

Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Mary W., brought this action pursuant to the Social

Security Act (the “Act”) to obtain judicial review of a final

decision of Defendant, the Commissioner of Social Security (the

“Commissioner”), denying Plaintiff’s claims for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”). (Docket Entry 1.) The Commissioner has filed the

certified administrative record (Docket Entry 2 (cited herein as

“Tr. __”)), and both parties have submitted dispositive briefs in

accordance with Rule 5 of the Supplemental Rules for Social

Security Actions under 42 U.S.C. § 405(g) (Docket Entry 8

(Plaintiff’s Brief); Docket Entry 13 (Commissioner’s Brief)). For

1 On December 20, 2023, President Joseph R. Biden, Jr., appointed Martin

J. O’Malley as Commissioner of the Social Security Administration. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley should

substitute for Kilolo Kijakazi as 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).

the reasons that follow, the Court will enter judgment for the

Commissioner.2

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 269-78), alleging a disability

onset date of March 19, 2019 (see Tr. 269, 272). Upon denial of

that application initially (Tr. 92-105, 125-33) and on

reconsideration (Tr. 106-20, 135-42), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 143-44).

Following her request for a hearing, Plaintiff submitted an

application for SSI (Tr. 287-93), also alleging disability

beginning on March 19, 2019 (see Tr. 287).3 Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 35-91.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 9-34.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

262-68), thereby making the ALJ’s ruling the Commissioner’s final

decision for purposes of judicial review.

2 On consent of the parties, this “case [wa]s referred to [the undersigned]

United States Magistrate Judge [] to conduct all proceedings . . ., to order the

entry of judgment, and to conduct all post-judgment proceedings therein.”

(Docket Entry 9 at 1.)

3 Notwithstanding Plaintiff’s alleged onset date of March 19, 2019,

Plaintiff lacked eligibility for SSI benefits until her application date of

November 24, 2020 (see Tr. 287). See 20 C.F.R. § 416.202 (explaining that a

claimant remains ineligible for SSI benefits until date he or she files SSI

application); 20 C.F.R. § 416.501 (stating that a claimant may not receive SSI

benefits for any period that predates first month he or she satisfies eligibility

requirements, which cannot precede application date).

2

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] met the insured status requirements of

the . . . Act through June 30, 2020.

2. [Plaintiff] has not engaged in substantial gainful

activity since March 19, 2019, the alleged onset date.

3. [Plaintiff] has the following severe impairments:

degenerative disc disease; obesity; irritable bowel

syndrome [(“IBS”)]; depression; bipolar disorder; and

anxiety.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . in that she is

limited to lifting, carrying, pushing, and pulling twenty

pounds occasionally and ten pounds frequently; sitting

for six hours in an eight-hour workday; standing/walking

for six hours in an eight-hour workday; occasional

climbing of ladders, ropes, and scaffolds; frequent

climbing of ramps and stairs; and occasional stooping,

kneeling, crouching, and crawling. Mentally, [s]he is

limited to understanding, remembering, and carrying out

simple instructions and sustaining concentration,

attention, and pace well enough to carry out those simple

instructions for two-hour intervals over the course of an

eight-hour workday and throughout a forty-hour work week

or its equivalent. She is limited to working in

proximity to, but not in coordination with, coworkers and

supervisors, but she would still be able to interact with

others sufficiently to complete a thirty-day training

period. She is limited to working in a low stress

setting, which is specifically defined to mean no paced

production, such as on an assembly line where the worker

does not control the pace of production. She is limited

to only simple work-related decisions and few or no

changes in the work setting or routine. She should have

3

no dealing with crisis situations as an essential

function of the job. She can have only superficial

contact with the public where “superficial” is defined to

mean that contact is incidental and not an essential

function of the job.

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

10. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [she] can perform.

. . .

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from March 19, 2019, through

the date of this decision.

(Tr. 14-29 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

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). Plaintiff has

not established entitlement to relief under the extremely limited

review standard.

4

A. Standard of Review

“[C]ourts are not to try [a Social Security] 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

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks 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 brackets 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 [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” 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

5

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the 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 correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, 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)).4 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

addition to [the claimant’s] medical condition.” Id. “These

4 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. [SSI] . . . provides benefits to indigent disabled persons. The

statutory definitions and the regulations . . . for determining disability

governing these two programs are, in all aspects relevant here, substantively

identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).

6

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).5 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

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

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

5 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

7

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,

the ALJ must assess the claimant’s [RFC].” Id. at 179.6 Step four

then requires the ALJ to assess whether, based on 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, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the 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 567.7

6 “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 (e.g., pain).” Hines, 453 F.3d at 562-63.

7 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

8

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ erred by failing to account for the vocationally

limiting effects of Plaintiff’s IBS in the RFC” (Docket Entry 8 at

5 (bold font and block formatting omitted)); and

2) “[t]he ALJ erred in her evaluation of the limiting effects

of Plaintiff’s psychological disorders on her ability to work” (id.

at 10 (bold font and block formatting omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 13 at 4-23.)

1. Limiting Effects of IBS

In Plaintiff’s first issue on review, she maintains that

“[t]he ALJ erred by failing to account for the vocationally

limiting effects of Plaintiff’s IBS in the RFC.” (Docket Entry 8

at 5 (bold font and block formatting omitted).) More specifically,

Plaintiff contends that, despite the ALJ’s finding that Plaintiff’s

IBS qualified as a severe impairment at step two of the SEP (id.

(referencing Tr. 14-15)), “the ALJ did not include any limitation

[in the RFC] to account for the diarrhea and need to have frequent

access to the restroom that [Plaintiff] indicated was the primary

limitation from her IBS,” and “made no findings regarding [the]

frequency of the bathroom breaks or the off-task time necessary to

process, review does not proceed to the next step.”).

9

accommodate those breaks, other than to say this limitation did not

result in the frequency alleged” (id. (citing Tr. 25)). According

to Plaintiff, “[w]lhen an ALJ finds that a claimant suffers with an

impairment that could require her to have ready access to a

bathroom, the ALJ should make specific findings concerning the

frequency and duration of Plaintiff’s bathroom usage.” (Id. at 8

(emphasis in original) (citing Taylor v. Astrue, No. 7:11CV162,

2012 WL 3637254, at *11 (E.D.N.C. Aug. 1, 2012) (unpublished) (in

turn citing Davis v. Commissioner of Soc. Sec., No. 2:10CV30, 2011

WL 442118, *1 (N.D.W. Va. February 2, 2011) (unpublished))); see

also id. at 8-9 (additionally citing Dowling v. Commissioner of

Soc. Sec., 986 F.3d 377, 389 (4th Cir. 2021), Summey v. Berryhill,

No. 1:16CV1185, 2018 WL 708355, at *3-4 (M.D.N.C. Feb. 5, 2018)

(unpublished) (Peake, M.J.), recommendation adopted, slip op.

(M.D.N.C. Feb. 22, 2018) (Biggs, J.), Anders v. Colvin, No.

1:13CV284, 2015 WL 4656291, at *4-5 (W.D.N.C. Aug. 6, 2015)

(unpublished), and Binder v. Colvin, No. 5:12CV271, 2013 WL

1686306, at *3 (E.D.N.C. Mar. 21, 2013) (unpublished),

recommendation adopted, 2013 WL 1694678 (E.D.N.C. Apr. 18, 2013)

(unpublished)).) Plaintiff further faults the ALJ for failing to

“account for [] fluctuation[s]” in Plaintiff’s IBS symptoms (id. at

9 (citing Rogers v. Kijakazi, 62 F.4th 872, 880-81 (4th Cir.

2023))), arguing that, “even if [Plaintiff]’s condition improved on

occasion to where she would not require additional breaks, the ALJ

should have still explained how [Plaintiff] could perform the

10

functions of the RFC during her flare-ups and periods of symptom

intensification, requiring more bathroom breaks” (id. at 10).

Plaintiff notes that “the symptoms [Plaintiff] is experiencing from

her IBS would be disabling,” because “[t]he VE stated that just

going to the bathroom more than once or twice for 3-5 minutes at a

time outside of normal breaks would be work preclusive.” (Id. at

6 (citing Tr. 87-88).) For the reasons explained in more detail

below, Plaintiff’s contentions lack merit.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§§ 404.1545(a), 416.945(a). An ALJ must determine a claimant’s

exertional and non-exertional capacity only after considering all

of a claimant’s impairments, as well as any related symptoms,

including pain. See Hines, 453 F.3d at 562–63; 20 C.F.R.

§§ 404.1545(b), 416.945(b). The ALJ then must match the claimant’s

exertional abilities to an appropriate level of work (i.e.,

sedentary, light, medium, heavy, or very heavy). See 20 C.F.R.

§§ 404.1567, 416.967. Any non-exertional limitations may further

restrict a claimant’s ability to perform jobs within an exertional

level. See 20 C.F.R. §§ 404.1569a(c), 416.969a(c). An ALJ need

not discuss every piece of evidence in making an RFC determination,

see Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.

2014); however, “the ALJ must both identify evidence that supports

his [or her] conclusion and build an accurate and logical bridge

11

from that evidence to [that] conclusion,” Woods v. Berryhill, 888

F.3d 686, 694 (4th Cir. 2018) (internal emphasis, quotation marks,

and brackets omitted). Here, no basis for remand exists, because

the ALJ’s decision supplies the necessary “accurate and logical

bridge,” Woods, 888 F.3d at 694 (internal quotation marks omitted),

between the evidence and her findings that Plaintiff’s IBS (A)

qualified as a severe impairment at step two of the SEP (see Tr.

15), but (B) “d[id] not warrant more restrictive limitations than

those reflected in the [ RFC]” (Tr. 25).

To begin, Plaintiff’s assertion that, “[w]hen an ALJ finds

that a claimant suffers with an impairment that could require her

to have ready access to a bathroom, the ALJ should make specific

findings concerning the frequency and duration of Plaintiff’s

bathroom usage” (Docket Entry 8 at 8 (underscoring added) (italics

and bolding in original)) misses the mark. Notably, in so arguing,

Plaintiff alters the language in Binder that, “[w]hen an ALJ finds

that a claimant has an impairment that requires him to have access

to a bathroom, the ALJ should make specific findings concerning the

frequency and duration of Plaintiff’s bathroom usage,” Binder, 2013

WL 1686306, at *3, by inserting the word “could” in front of the

word “require.” Indeed, in the Summey, Binder, Taylor, and Davis

cases relied on by Plaintiff, the ALJs had all found that the

claimant required access to the bathroom in the RFC determination,

but then failed to make any finding as to how frequently and for

12

how long the claimant would need bathroom breaks. See Summey, 2018

WL 708355, at *3-4 (“[T]he ALJ assessed [the p]laintiff’s RFC and

determined that she . . . must have access to bathroom facilities

on an ‘as needed’ basis. Based on th[at] determination, the ALJ

found under step four of the [SEP] that [the p]laintiff could

return to her past relevant work (“PRW”) as an office manager[,

because] . . . she would have access to bathroom facilities, as

needed. . . . Nevertheless, the ALJ made no findings regarding the

extent to which [the p]laintiff required unscheduled bathroom

breaks, and . . . fail[ed] to cite any basis for his conclusion

that [the p]laintiff’s need for unrestricted bathroom breaks would

not impact [her] ability to perform her [PRW, and] . . . [t]he

record contain[ed] no [VE] testimony or other evidence on which the

ALJ relie[d] to support th[e step four] determination.” (emphasis

added) (internal parenthetical citations and some internal

quotation marks omitted)); Binder, 2013 WL 1686306, at *3 (“In

assessing [the p]laintiff’s RFC, the ALJ determined that [the

p]laintiff required access to the bathroom/toilet facilities in the

work environment. When an ALJ finds that a claimant has an

impairment that requires him to have access to a bathroom, the ALJ

should make specific findings concerning the frequency and duration

of [the p]laintiff’s bathroom usage. Because the ALJ did not do so

here, the [court] cannot determine whether the ALJ’s findings —

particularly his step five finding — were supported by substantial

13

evidence.” (emphasis added) (internal citations and quotation marks

omitted)); Taylor, 2012 WL 3637254, at *11 (“[T]he ALJ found [the

plaintiff] capable of performing her [PRW] as a receptionist as

actually and generally performed based upon the testimony of the

[VE], who testified that a receptionist position would allow

for . . . ready access to a bathroom at will. However, the ALJ

. . . failed to address the VE’s testimony that a person needing to

take an excessive number of unscheduled bathroom breaks has the

potential to be problematic. Given the ALJ made no findings

regarding to what extent [the plaintiff] required unscheduled

bathroom breaks, nor question[ed] the VE as to his definition of

excessive, there is simply no way to conclude . . . that the ALJ’s

step-four finding is supported by substantial evidence.” (emphasis

added) (internal parenthetical citations, internal quotation marks,

and brackets omitted)); Davis, 2011 WL 442118, at *1 (“[T]he ALJ []

include[d] in the plaintiff’s [RFC] a required accommodation of

placing the plaintiff close to the bathroom. Therefore, . . . this

[c]ourt finds that more specific findings regarding the frequency

and duration of [the] plaintiff’s need for the bathroom during the

relevant time frame must necessarily also be included.” (emphasis

added)).

Here, by contrast, the ALJ did not include ready access to a

bathroom or a need for extra breaks in the RFC (see Tr. 17), and

specifically found that Plaintiff’s “abdominal complaints ha[d]

14

been taken into consideration in restricting her postural

activities, but .. . that [such complaints] d[id] not warrant more

restrictive limitations than those reflected in the [ RFC]” (Tr.

25). Under such circumstances, the Court finds Summey, Binder,

Taylor, and Davis inapposite to the case at bar.

Similarly, the facts in Anders also distinguish that decision

from the instant case. In Anders, despite significant record

evidence of the intensity, persistence, and limiting effects of the

plaintiff’s “esophagitis, gastritis, duodenitis, and Mallory-Weiss

tears in the lining of his esophagus,” Anders, 2015 WL 4656291, at

*1 (footnote omitted); see also id. at *5 (“[The plaintiff]

testified graphically about how his [gastrointestinal (‘GI’)]

disorders affect his daily life when he is having an episode.

Moreover, the record clearly indicates [the plaintiff] has been

hospitalized fairly frequently due to his GI disorders and has

documentation from several physicians to demonstrate the

significance of his problem.”), the ALJ did not find that any of

those impairments qualified as severe and failed to discuss the

impact of those impairments on the plaintiff’s RFC at _all in the

decision, see id. (“Despite [the plaintiff’s] testimony and medical

records, [his] GI problems and any consideration of their erosion

of [his] RFC were erroneously absent from the ALJ’s’ RFC

determination and they must be addressed on remand.”). In

comparison, the ALJ here found Plaintiff’s IBS severe (see Tr. 15),

15

discussed Plaintiff’s testimony (see Tr. 18) and the IBS-related

medical evidence (see Tr. 24), and explained the ALJ’s reasoning

for not including greater restrictions in the RFC arising out of

Plaintiff’s IBS symptoms (see Tr. 25, 27).

Likewise, in Dowling, the United States Court of Appeals for

the Fourth Circuit held that the ALJ erred by “fail[ing] to analyze

whether [the plaintiff]’s RFC was impacted by her need to work near

a restroom and take frequent bathroom breaks,” because

“considerable evidence [existed] in the record demonstrating that

[the plaintiff] regularly experienced diarrhea and incontinence, as

well as drainage from her anal fissure[,] . . . requir[ing]

bathroom breaks at a frequent, and often unpredictable, rate.”

Dowling, 986 F.3d at 389. The Dowling court faulted the ALJ for

“simply not[ing] that [the plaintiff] accommodate[d] her drainage

and accidents by using pads,” because “[t]hat finding misse[d] the

point[, as p]ads m[ight have] ke[pt the plaintiff]’s clothes clean

and help[ed] reduce the potential for embarrassing accidents[, but]

they d[id] not save [the plaintiff] any trips to the bathroom,

since the pads need[ed] to be changed once they [we]re soiled.”

Id. (internal quotation marks and internal citations omitted).

Unlike in Dowling, the ALJ here did not erroneously find that

Plaintiff’s use of pads (or other protective measures) obviated her

need for bathroom breaks; rather, the ALJ found that the record did

not support the Plaintiff’s subjective statements regarding the

16

intensity, persistence, and limiting effects of her IBS symptoms.

(See Tr. 25.)°® Moreover, as explained in more detail below, the

ALJ supported that determination with substantial evidence.

First, the ALJ’s evaluation of Plaintiff’s subjective symptom

reporting helps to explain the ALJ’s omission of more restrictive

RFC limitations to account for Plaintiff’s IBS symptoms. In that

regard, the ALJ acknowledged Plaintiff’s testimony regarding her

IBS symptoms as follows:

[Plaintiff] testified that she [] has [IBS] and that it

[] had been particularly bad for the past couple of

years. She stated that she has issues with diarrhea and

that she has to use the bathroom eight to ten times a day

for ten to twenty-five minutes each time. She stated

that she continues to have diarrhea despite use of

medication and dietary changes. [She] testified that she

has had bowel accidents but that she has not had anl[y]

emergency room visits for her [IBS] since 2019.

(Tr. 18 (referencing Tr. 57-60, 67-68, 76-78).}) The ALJ thereafter

found that Plaintiff’s “medically determinable impairments could

reasonably be expected to cause some of [her] alleged symptoms,”

® Plaintiff’s reliance on Rogers fares no better. (See Docket Entry 8 at

9-10 (citing Rogers, 62 F.4th at 880-81).) In that case, the Fourth Circuit

noted that the plaintiff, who alleged disabling post-traumatic stress disorder

(“PTSD”), “presented evidence to the ALJ that her abilities fluctuate[d] during

her menstrual cycle, such that her functioning [wa]s drastically worse during

menstruation, as it remind[ed] her of being raped during her time in the Army.”

Rogers, 62 F.4th at 880 (internal quotation marks and some brackets omitted).

The Fourth Circuit found “[s]triking[]” that the ALJ’s decision omitted any

mention of the menstrual cycle evidence,” meaning that “the ALJ either wholly

ignored the menstrual cycle evidence, or the ALJ considered and discounted that

evidence for reasons that were not explained.” Id. at 881. Here, although

Plaintiff testified that her IBS medication worked better on some days than

others and that the number of times she used the bathroom per day varied (see Tr.

58), she did not describe “flare-ups” or cyclical periods when her symptoms

increased drastically like the plaintiff in Rogers. Moreover, unlike the ALJ in

Rogers, the ALJ here expressly acknowledged Plaintiff’s varying reports of the

frequency of her daily bathroom visits but found that the record did not support

those reports (see Tr. 25).

17

but that her “statements concerning the intensity, persistence, and

limiting effects of th[o]se symptoms [we]re not entirely consistent

with the medical evidence and other evidence in the record for the

reasons explained in th[e ALJ’s] decision.” (Tr. 19.) The ALJ

supported that finding with the following analysis:

As for [Plaintiff’s IBS], she did not allege this

impairment when she initially applied [for benefits (Tr.

306)]. While there were a few instances after the

alleged onset date where [she] reported relatively

frequent diarrhea, for the most part her symptoms have

been managed and have not resulted in the frequency

alleged. At the hearing, [she] testified that she has to

use the bathroom eight to ten times a day for ten to

twenty-five minutes each time. However, in July 2021 she

reported having to run to the bathroom only after every

meal, which is much less often than the five to eight

times a day she reported to a treatment provider on one

occasion or the eight to ten times a day she testified to

at the hearing. [She] was recently seen by a

gastroenterologist in October 2021 and prescribed a

medication, but in December 2021 it was noted that

[Plaintiff] had not gotten the prescription filled.

There is no evidence of any follow-up gastroenterology

treatment, which suggests the symptoms were better

managed.

(Tr. 25.) That analysis cites to substantial evidence in support

of the ALJ’s finding regarding the intensity, persistence, and

limiting effects of Plaintiff’s IBS symptoms, and Plaintiff did not

specifically challenge that analysis by the ALJ (see Docket Entry

8).

The ALJ’s analysis of the opinion evidence also elucidates her

decision not to include greater limitations in the RFC arising out

of Plaintiff’s IBS. The ALJ found the opinion of the state agency

medical consultant at the reconsideration level of review that

18

Plaintiff could perform a limited range of light work (without a

specific accommodation for bathroom breaks) (see Tr. 113-14) “more

persuasive” than the initial-level consultant’s opinion (Tr. 25),

because that consultant believed Plaintiff could perform medium-

exertion work (but also without a limitation for restroom access)

(see Tr. 98-99). The ALJ additionally found the opinion of

Licensed Professional Counselor Craig Michael Peters (“LPC Peters”)

that Plaintiff would need hourly unscheduled breaks of 10 to 15

minutes each due to her IBS symptoms (see Tr. 1038) “unpersuasive,”

as “outside the purview of his area of expertise as a mental health

counselor,” as “largely based on [Plaintiff]’s reports[,] and [as]

not consistent with her reports to the providers who treated her

for [IBS] or with the treatment sought and provided for that

impairment” (Tr. 27). Notably, Plaintiff did not contest the ALJ’s

assessment of that opinion evidence. (See Docket Entry 8.)

Moreover, by pointing to record evidence Plaintiff believes

supported greater limitations in the RFC arising out of her IBS

symptoms (see Docket Entry 8 at 5-7 (citing Tr. 57-59, 67, 78, 373,

376, 393, 580, 419, 471, 475, 511, 520, 634-44, 655, 676, 722, 726,

739, 741, 744, 794, 847, 870, 998, 1000, 1038)), she misinterprets

this Court’s standard of review. The Court must determine whether

substantial evidence, i.e., “more than a mere scintilla of evidence

but . . . somewhat less than a preponderance,” Mastro, 270 F.3d at

176 (brackets and internal quotation marks omitted), supported the

19

ALJ’s finding that postural limitations in the RFC adequately

accommodated Plaintiff’s IBS symptoms (see Tr. 25), and not whether

other record evidence weighed against that finding, see Lanier v.

Colvin, No. CV414-004, 2015 WL 3622619, at *1 (S.D. Ga. June 9,

2015) (unpublished) (“The fact that [the p]laintiff disagrees with

the ALJ’s decision, or that there is other evidence in the record

that weighs against the ALJ’s decision, does not mean that the

decision is unsupported by substantial evidence.”).

The ALJ’s decision thus provides a “logical bridge,” Woods,

888 F.3d at 694, connecting the evidence to her conclusion that

postural restrictions in the RFC adequately accommodated

Plaintiff’s IBS, and Plaintiff has not shown a basis for remand.

Patricia K. v. Saul, No. 5:18CV134, 2020 WL 3108712, at *10 (W.D.

Va. Feb. 28, 2020) (unpublished) (“[The plaintiff] argues that the

ALJ . . . should have included [in the hypothetical question to the

VE] the limitation[] . . . that [the plaintiff] would need ten to

twelve unscheduled bathroom breaks per day. The VE testified that

[] four to six extra bathroom breaks would . . . preclude

competitive employment. . . . [H]owever, [the] ALJ [] offered good

reasons to question [the plaintiff]’s reports about the number of

bathroom breaks she would need during the day, and to conclude

that, despite her severe IBS or Crohn’s disease, she could make it

through an eight-hour workday with normal breaks. Thus, the ALJ

was not required to include additional bathroom breaks in his RFC

20

finding, or to ask the VE about job prospects for a person with

such extreme limitations.” (internal citations omitted)).

In light of the foregoing analysis, Plaintiff’s first issue on

review fails as a matter of law.

2. Evaluation of Mental Impairments

Lastly, Plaintiff maintains that “[t]he ALJ erred in her

evaluation of the limiting effects of Plaintiff’s psychological

disorders on her ability to work.” (Docket Entry 8 at 10 (bold

font and block formatting omitted).) In particular, Plaintiff

contends that “[t]he most significant error made by the ALJ in

evaluating [Plaintiff]’s psychological conditions is [the ALJ’s]

reliance on ‘normal’ objective medical evidence, in this case

‘largely unremarkable’ mental status examinations (‘MSE[s]’), to

determine [Plaintiff]’s degree of limitation.” (Id. at 11

(internal parenthetical citation omitted) (citing Tr. 26).)

Plaintiff points out that the ALJ “justified her conclusions [at

steps two and three of the SEP] by noting ‘normal’ findings,

including findings of intact memory and ‘consistent findings’ of

intact concentration and attention” (id. (quoting Tr. 16)),

“repeatedly noted normal MSEs throughout her medical summary,

referencing ‘unremarkable’ or ‘normal’ MSEs . . . at least 13

times” (id. (quoting Tr. 19-22)), and “again fell back on the

‘largely unremarkable’ MSEs to justify her evaluation of the state

agency physician opinions” (id. (quoting Tr. 26)). According to

21

Plaintiff, the Fourth Circuit “determined [that] such normal

examination findings do not preclude disabling symptoms from

conditions which do not always produce such findings upon

examination (in that case, fibromyalgia)” (id. at 12 (citing Arakas

v. Commissioner of Soc. Sec. Admin., 983 F.3d 83, 97-98 (4th Cir.

2020)))}, and then “explicitly extended the Arakas reasoning to

include psychological disorders, depression in particular” (id.

(citing Shelley C. V. Commissioner of Soc. Sec., 61 F.4th 341, 361-

62 (4th Cir. 2023))).

Additionally, Plaintiff faults the ALJ for “‘cherry pick[ing]

facts that support a finding of nondisability while ignoring

evidence that points to a disability finding’” (id. (quoting

Arakas, 983 F.3d at 98)), “‘fail[ing] to appreciate the waxing and

waning nature’ of [Plaintiff]’s condition[, ] and [] not

‘consider[ing] the longitudinal record’ as a whole” (id. (quoting

Arakas, 983 F.3d at 101)), arguing that Plaintiff “never attained

the sustained improvement that the ALJ seemed to indicate” (id.).

Further, Plaintiff objects to the ALJ’s reliance on Plaintiff’s

activities as “inconsistent with her allegations of intense

psychological symptoms” (id. at 18 (citing Tr. 21)), noting that

the Fourth Circuit in Shelley C. “faulted the ALJ for not

considering [the plaintiff’s reported activities] in the broader

context of her many treatment notes which still indicated severe

22

symptoms” (id. (citing Shelley C., 61 F.4th at 363)). Plaintiff’s

contentions do not establish a basis for remand.

In Arakas, the Fourth Circuit deemed fibromyalgia a “unique”

disease, Arakas, 983 F.3d at 97, with “symptoms [that] are entirely

subjective,” id. at 96, and noted that “physical examinations of

patients with fibromyalgia will usually yield normal results — a

full range of motion, no joint swelling, as well as normal muscle

strength and neurological reactions,” id. (brackets omitted). The

Fourth Circuit thus held that “ALJs may not rely on objective

medical evidence (or the lack thereof) - even as just one of

multiple medical factors - to discount a claimant’s subjective

complaints regarding symptoms of fibromyalgia,” because

“[Lo]bjective indicators such as normal clinical and laboratory

results simply have no relevance to the severity, persistence, or

limiting effects of a claimant’s fibromyalgia, based on the current

medical understanding of the disease,” id. at 97 (emphasis added).

Just over two years later, and after the ALJ’s decision in

this case, the Fourth Circuit issued Shelley C., in which the court

extended the above-described holding in Arakas to depression,

reasoning as follows:

After acknowledging that [the plaintiff]’s medically

determinable impairment could reasonably be expected to

cause some of the alleged symptoms, the ALJ determined

that [the plaintiff]’s statements relating to the

intensity, persistence, and limiting effect of her

symptoms were inconsistent with the medical and other

evidence in the record. We hold that the ALJ erred in

23

discounting [the plaintiff]’s subjective complaints as

inconsistent with the record’s medical evidence.

The ALJ’s legal error is clear: he could not dismiss [the

plaintiff]’s subjective complaints based entirely upon

the belief that they were not corroborated by the

record’s medical evidence. The Fourth Circuit has long

held that “while there must be objective medical evidence

of some condition that could reasonably produce the pain,

there need not be objective evidence of the pain itself

or its intensity.” Walker v. Bowen, 889 F.2d 47, 49 (4th

Cir. 1989). Indeed, “[b]ecause pain is not readily

susceptible of objective proof . . ., the absence of

objective medical evidence of the intensity, severity,

degree or functional effect of pain is not

determinative.” Hines v. Barnhart, 453 F.3d 559, 564–65

(4th Cir. 2006). Accordingly, [the plaintiff] was

entitled to rely entirely on subjective evidence to

demonstrate that her pain was sufficiently persistent and

severe to support a disability finding. See id. at 564.

As described in length above, the record contains no

shortage of such evidence.

. . .

In Arakas, we held that ALJs could not rely upon the

absence of objective medical evidence to discredit “a

claimant’s subjective complaints regarding symptoms of

fibromyalgia or some other disease that does not produce

such evidence.” 983 F.3d at 97 (emphasis added). Today,

we hold that depression — particularly chronic depression

— is one of those other diseases. . . . Stated

differently, symptoms of [major depressive disorder

(‘MDD’)], like those of fibromyalgia, are “entirely

subjective,” determined on a case-by-case basis. Arakas,

983 F.3d at 96 (emphasis added). Ultimately, because of

the unique and subjective nature of MDD, subjective

statements from claimants “should be treated as evidence

substantiating the claimant’s impairment.” Id. at 97–98.

Because the ALJ “improperly increased [the plaintiff]’s

burden of proof,” id. at 96, in requiring that her

subjective statements be validated by objective medical

support, we must find error.

Shelley C., 61 F.4th 341, 360–62 (italics in original) (internal

quotation marks, footnote, and some citations omitted).

24

A review of the ALJ’s decision persuades the Court that the

ALJ here did not violate Shelley C., because she did not 1)

“dismiss [the plaintiff]’s subjective complaints based entirely

upon the belief that they were not corroborated by the record’s

medical evidence,” Shelley C., 61 F.4th at 360 (italics in

original), 2) “cherry pick facts that support a finding of

nondisability while ignoring evidence that points to a disability

finding,” Arakas, 983 F.3d at 98, or 3) fail to consider

Plaintiff’s activities “in the broader context of her many

treatment notes, which still indicated severe symptoms” (Docket

Entry 8 at 18 (citing Shelley C., 61 F.4th at 363)).

a. Reliance on Objective Medical Evidence

Plaintiff contends that the ALJ “justified her conclusions [at

steps two and three of the SEP] by noting ‘normal’ findings,

including findings of intact memory and ‘consistent findings’ of

intact concentration and attention” (Docket Entry 8 at 11 (quoting

Tr. 16)), “repeatedly noted normal MSEs throughout her medical

summary, referencing ‘unremarkable’ or ‘normal’ MSEs . . . at least

13 times” (id. (quoting Tr. 19-22)), and “again fell back on the

‘largely unremarkable’ MSEs to justify her evaluation of the state

agency physician opinions” (id. (quoting Tr. 26)). Plaintiff thus

argues that the ALJ violated Shelley C. by finding “that

[Plaintiff’s] persistent report of depressive and anxious

25

symptomatology [wa]s negated by a lack of objective abnormalities

on MSEs.” (Id. at 12.) That argument falls short for two reasons.

First, to the extent Plaintiff relies on Arakas and Shelley C.

to fault the ALJ for considering objective findings on MSEs at

steps two _and three of the SEP (see id. at 11), that argument

overextends the reach of those cases. In each of those cases, the

Fourth Circuit held that an ALJ may not, when determining a

claimant’s RFC, discount a claimant’s subjective reports of the

intensity, persistence, and limiting effects of his or her

fibromyalgia or MDD symptoms entirely on the basis of the absence

of substantiating objective medical evidence. See Shelley C., 61

F.4th at 361; Arakas, 983 F.3d at 97. Thus, those cases did not

affect the regulatory requirements that a claimant must produce

objective medical evidence to establish a medically determinable

impairment at step two of the SEP, see 20 C.F.R. §$§ 404.1521,

416.921 (“[A claimant’ impairment (s) must result

from . . . psychological abnormalities that can be shown by

medically acceptable clinical and laboratory diagnostic techniques.

Therefore, a . . . mental impairment must be established by

objective medical evidence from an acceptable medical source. [An

ALJ] will not use [a claimant’s] statement of symptoms, a

diagnosis, or a medical opinion to establish the existence of an

impairment(s).” (emphasis added)), and must demonstrate objective

findings satisfying the criteria of an applicable listing at step

26

three of the SEP, 20 C.F.R. $§ 404.1525(c) (3), 416.925(c) (3)

(“Within each listing, [the SSA] specif[ies] the objective medical

and other findings needed to satisfy the criteria of that listing.”

(emphasis added)). The Court accordingly finds no error arising

out the ALJ’s reliance on unremarkable objective findings in

Plaintiff’s MSEs as part of the ALJ’s analysis at steps two and

three of the SEP (see Tr. 14-17).

Second, the ALJ here neither relied “entirely” on the absence

of objective medical evidence to discount Plaintiff’s depressive

symptoms, Shelley C., 61 F.4th at 360 (emphasis omitted), nor

“requir[ed]” that objective medical evidence substantiate those

symptoms, id. at 362.° Rather, the ALJ found that Plaintiff’s

° Although Plaintiff has complained of varying depressive symptoms,

including mood swings, crying spells, decreased concentration, and low

energy/fatigue, at different times during the relevant period in this case (see,

e.g., Tr. 56, 65, 69, 429, 439-40, 446, 463, 479, 503, 542, 555, 567, 662, 664,

669, 672-73, 682, 693, 696, 701, 704, 706, 746, 759, 755, 773-74, 776, 779, 782,

794, 820, 823, 828-29, 837, 840, 885, 923, 934-35, 948, 966, 983, 1009),

Plaintiff has also consistently reported psychotic symptoms such as auditory and

visual hallucinations (see, e.g., Tr. 56, 66, 321, 429, 439-40, 446, 463, 479,

542, 567, 603, 693, 696, 701, 715, 720, 746, 752-53, 905, 923, 931, 935, 949,

966, 970, 980-81). The Fourth Circuit in Shelley C. emphasized that portions of

the ALJ’s decision “provided a prime example of the misconceptions surrounding

depression,” Shelley C., 61 F.4th at 367 (emphasis added), noting that

individuals with depression can “experienc[e] brief periods of diminished

depression, which can appear - from the outside looking in - as overall

improvement,” id. (emphasis added), and that “(t]he ALJ focused on [the

plaintiff]’s ‘improved’ periods to reject the lower, more frequent states of her

depression,” id. (emphasis added). The Fourth Circuit announced that it would

“join [its] sister circuits’ growing conversation surrounding chronic diseases,

highlighting, in particular, the unique and subjective nature of chronic

depression,” id. at 368 (emphasis added). Given the Fourth Circuit’s repeated

emphasis on the “unique” nature of chronic depression, see id. at 368, and the

significant difference between Plaintiff’s reported psychotic symptoms of

auditory and visual hallucinations, and the primary symptoms of MDD, see

Diagnostic and Statistical Manual of Mental Disorders, 160 (Am. Psychiatric Ass/‘n

5th ed. 2013) (“DSM-V”) (listing “[d]epressed mood most of the day, nearly every

day” and “[{mjarkedly diminished interest or pleasure in all, or almost all,

activities most of the day, nearly every day” as primary symptoms), Plaintiff has

not shown error under Shelley C. arising out of the ALJ’s reliance on the

27

subjective statements about her symptoms lacked consistency with

“the medical evidence and other evidence in the record” (Tr. 19

(emphasis added)}), which does not indicate that the ALJ relied

“entirely” on objective medical evidence, as “medical evidence” and

“other evidence” encompass more than just objective medical

evidence. Consistent with that finding, although the ALJ mentioned

Plaintiff’s “unremarkable” or “normal” objective findings in MSEs

multiple times in the ALJ’s discussion of the medical evidence (Tr.

19-22),°° she additionally considered 1) that, despite Plaintiff’s

complaints of disabling social anxiety, the record contained

“numerous instances of [Plaintiff] engaging with others,” including

“multiple vacations,” “a show with her mother-in-law,” “dinner with

[Plaintiff’s] sister, talking daily with friends on the phone,

repeated observations of Plaintiff’s mental health providers that Plaintiff

lacked the appearance of responding to internal stimuli and showed no evidence

of psychosis (see Tr. 19-22; see also Tr. 439 (noting that Plaintiff “d[id] not

appear to be responding to any internal stimuli” and finding “no evidence of

psychosis beyond [Plaintiff’s] report”), 606 (noting that Plaintiff “d[id] not

appear to be responding to internal stimuli”), and 662-63, 665, 668, 670, 672,

683, 694, 697, 699, 702, 704, 716, 720, 737, 744, 753, 756, 774, 777, 780, 782,

785, 787, 790, 792, 795, 818, 821, 824, 826, 835, 838, 840, 848, 862, 871, 881,

884, 892, 900, 903, 906, 924, 930, 932, 935, 945, 948, 957, 967, 971, 981, 990,

997, 1008, 1023, 1027, and 1036 (findings of LPC Peters on every MSE in the

record of “[n]o evidence of auditory/visual hallucinations or delusions”)).

10 Notably, many of the MSEs in the record reflect Plaintiff’s self-report

of her mood. (See, e.g., Tr. 467, 490, 506 (5/21/19, 7/18/19, 9/4/19 “pretty

good”), 482 (6/20/19 “good but up and down”), 573, 690, 892 (3/5/20, 11/17/21,

11/18/20 “better”), 712, 749 (9/22/21, 8/6/21 “depressed”), 831 (2/26/21 “some

depression”), 949 (7/17/20 “not good”), 1017 (5/8/20 “up and down’”).) Shelley

C. does not bar the ALJ from considering those subjective components of a mental

status examination. see, ¢.g., Shelby D. v. Kijakazi, No. 3:22CV234, 2023 WL

6444895, at *11 (S.D.W. Va. Sept. 29, 2023) (unpublished) (finding ALJ “properly

noted that [the plaintiff]’s own subjective presentation in mental-status

examinations was unremarkable” (emphasis in original)).

28

donating platelets, going to thrift stores during big sales, and

working a few hours a week for Door Dash” (Tr. 26), 2) Plaintiff’s

“reported activities, which include[d] being the primary caregiver

for her autistic son, doing household chores, driving, shopping,

traveling, and working a few hours a week for Door Dash” (id.), 3)

Plaintiff’s reports to her providers of significant symptom

improvement with therapy and medications (see Tr. 19-22), and 4)

brief periods of increasing symptoms when Plaintiff discontinued

her medication (see Tr. 21 (citing Tr. 949), 22 (citing Tr. 746)).

Shelley C. does not preclude the ALJ from such considerations.

As well-explained by another district court in this Circuit:

Here, the ALJ found [the pllaintiff’s medically

determinable impairments could reasonably be expected to

cause the alleged symptoms but concluded that [the

pllaintiff’s statements concerning the intensity,

persistence and limiting effects of these symptoms [we]

not entirely consistent with the medical evidence and

other evidence in the record. The ALJ here did not base

his conclusion on a lack of objective medical evidence.

Rather, the ALJ explicitly noted that his step-two

conclusion was based on inconsistencies with the medical

evidence and other evidence in the record. The ALJ

properly weighed [the p]laintiff’s subjective complaints

against other evidence in the record. For instance, the

ALJ compared [the p]laintiff’s hearing testimony to her

previous statements, including those made during medical

visits with her primary care provider and her statements

regarding her activities of daily living, including her

ability to care for dependent grandchildren and live

alone. Such weighing remains permissible under Shelley

C. and Arakas.

Lasharne W. v. Commissioner, Soc. Sec. Admin., No. CV 21-2603, 2023

WL 2414497, at *4 (D. Md. Mar. 8, 2023) (unpublished) (internal

quotation marks and citations omitted); see also Anthony P. v.

29

O’Malley, No. 1:22CV291, 2024 WL 965608, at *3 (E.D. Va. Mar. 6,

2024) (unpublished) (“[T]he ALJ in this case did not dismiss [the

p]laintiff’s subjective complaints based entirely upon the belief

that they were not corroborated by the medical evidence; nor did

the ALJ require that [the p]laintiff’s subjective statements be

validated by objective medical support. Rather, in assessing [the

p]laintiff’s subjective complaints, the ALJ considered [the

p]laintiff’s ability to complete a myriad of daily activities,

[his] own statements about his condition, and [his] treating

provider’s observations of [the p]laintiff’s functioning. Fourth

Circuit precedent does not suggest that ALJs should ignore

objective evidence such as this; instead, Shelley C. and Arakas

prevent ALJs from requiring claimants to provide medical evidence

that would be impossible to produce given their specific medical

conditions. The ALJ weighed the [p]laintiff’s subjective

complaints appropriately under those holdings and did not impose

undue demands.”); Strader v. O’Malley, No. 5:22CV367, 2024 WL

796523, at *8 (E.D.N.C. Feb. 2, 2024) (unpublished)

(“[C]ontradictory medical or other evidence may discredit [the

p]laintiff’s subjective statements regarding the limiting effects

of her pain, [while] a mere absence of medical evidence cannot.”

(emphasis added) (citing Shelley C., 61 F.4th at 360)),

recommendation adopted, 2024 WL 779225 (E.D.N.C. Feb. 26, 2024)

(unpublished); Shelby D. v. Kijakazi, No. 3:22CV234, 2023 WL

30

6444895, at *11 (S.D.W. Va. Sept. 29, 2023) (unpublished) (“[A]

diagnosis of . . . depression does not render a claimant per se

disabled. . . . The ALJ expressly stated that his conclusions were

not based exclusively on objective medical findings, but included

consideration of the total medical and nonmedical evidence,

including testimony and statements by [the plaintiff] and others,

a function report, and other record evidence regarding [the

plaintiff]’s activities of daily living, behavior and habits. The

ALJ supported this assertion by pointing to extensive record

evidence of inconsistencies with [the plaintiff]’s allegations

regarding the limiting effects of these impairments.” (internal

quotation marks and parenthetical citation omitted)).

In sum, Plaintiff’s contentions do not establish that the ALJ

impermissibly required that objective medical evidence substantiate

Plaintiff’s depression symptoms in violation of Shelley C.

b. Cherry-Picking

Plaintiff next faults the ALJ for “‘cherry pick[ing] facts

that support a finding of nondisability while ignoring evidence

that points to a disability finding’” (Docket Entry 8 at 17

(quoting Arakas, 983 F.3d at 98)), “‘fail[ing] to appreciate the

waxing and waning nature’ of [Plaintiff]’s condition[,] and [] not

‘consider[ing] the longitudinal record’ as a whole” (id. (quoting

Arakas, 983 F.3d at 101)), arguing that Plaintiff “never attained

the sustained improvement that the ALJ seemed to indicate” (id.).

31

Plaintiff, however, does not point the Court to any particular

example of “cherry-picking” by the ALJ. (See id.) Furthermore,

and contrary to those allegations, the ALJ’s decision reveals that

she discussed both the favorable and unfavorable aspects of

Plaintiff’s mental health treatment and did not mischaracterize the

record. (See Tr. 19-22.)

Another district court within the Fourth Circuit recently

distinguished Shelley C., because the ALJ there (like the ALJ here

and unlike the ALJ in Shelley C.) had not cherry-picked the mental

health evidence and had properly concluded that the plaintiff’s

mental symptoms improved over time with treatment:

This case is [] distinguishable from Shelley C., where

the ALJ improperly ignored the waxing and waning nature

of depression by citing only to treatment notes where the

claimant was stable and by omitting evidence of the

claimant’s subsequent periods of intense depression

symptoms. Here, the ALJ noted that treatment notes

indicate [the p]laintiff’s condition improved over time.

[The p]laintiff argues that because she endorsed symptoms

of depression during treatment and because she sometimes

needed adjustments to her medications, the ALJ erred in

finding her not credible. But the ALJ is permitted to

find that a claimant’s symptoms do not render her totally

disabled despite the fact that her symptoms exist and are

limiting to a certain extent.

Lasharne W., 2023 WL 2414497, at *4 (internal quotation marks and

citations omitted).

Put simply, Plaintiff has not shown that the ALJ cherry-picked

evidence in violation of Shelley C.

32

c. Reliance on Plaintiff’s Activities

Finally, Plaintiff objects to the ALJ’s reliance on

Plaintiff’s activities as “inconsistent with her allegations of

intense psychological symptoms” (Docket Entry 8 at 18 (citing Tr.

21)), noting that the Fourth Circuit in Shelley C. “faulted the ALJ

for not considering [the plaintiff’s reported activities] in the

broader context of her many treatment notes which still indicated

severe symptoms” (id. (citing Shelley C., 61 F.4th at 363)). In

Plaintiff’s view, “despite a handful of notes demonstrating that

[she] was seeking some fulfillment in life despite her disability,

she continued to have severe symptoms.” (Id. (citing Arakas, 983

F.3d at 101 (“[D]isability claimants should not be penalized for

attempting to lead normal lives in the face of their

limitations.”)).)

Again, however, Plaintiff has not elaborated on how the ALJ’s

discussion of Plaintiff’s activities failed to capture the “broader

context.” (Id.) Significantly, the record shows that Plaintiff

engaged in activities inconsistent with her allegations of

disabling mental symptoms throughout the relevant period in this

case, such as taking vacations, socializing with friends and

family, taking care of her autistic son, driving part-time for Door

Dash, and driving her son to school and back 45 minutes each way

(see Tr. 47-48, 75, 314, 317, 322, 325, 664, 682, 699, 701, 779,

781, 787, 792, 794, 818, 820, 880, 883, 903, 934, 980, 996, 1007,

33

1029-30), and, thus, the ALJ did not seize upon isolated or rare

instances of activity to discount Plaintiff’s subjective

complaints, see Marti S. v. Kijakazi, No. 2:22CV400, 2023 WL

8507809, at *13 (E.D. Va. Sept. 5, 2023) (unpublished) (“[The

p]laintiff, citing Shelley C., argues the ALJ improperly excluded

the context surrounding her trip to Colorado, and specifically

erred by ignoring [the treating psychiatrist]’s treatment notes

stating[ that she] went to Colorado to obtain cannabinoids to help

with her pain and emotional regulation. However, here, the [c]ourt

agrees with the Commissioner that the ALJ did not take [the

p]laintiff’s activities out of context, but highlighted the

inconsistencies between [her] reports of frequent, independent

travel with [the psychiatrist]’s finding that [the plaintiff] ha[d]

extreme limitations in her ability to travel in unfamiliar places

or use public transportation. In citing these activities, the ALJ

reasonably found that [the psychiatrist]’s opinion was inconsistent

with other evidence in record.” (internal quotation marks and

citations omitted)), recommendation adopted, 2023 WL 8275974 (E.D.

Va. Nov. 30, 2023) (unpublished); compare Shawntelle E. v.

Kijakazi, No. 3:22CV365, 2023 WL 3485982, at *11 (E.D. Va. Apr. 28,

2023) (unpublished) (remanding case where “ALJ[] reli[ed] on [the

p]laintiff’s activities of daily living to discredit her subjective

statements,” but, “like Shelley C., such ‘activities were few and

far between, as they were discussed in only a handful of [the

34

plaintiff’s] many treatment notes’” (quoting Shelley C., 61 F.4th

at 362) (emphasis in Shelley C.)), recommendation adopted, 2023 WL

3483895 (E.D. Va. May 16, 2023) (unpublished).

In short, Plaintiff’s second and final assignment of error

fails as a matter of law.

III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is AFFIRMED, and that this action is

DISMISSED with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

March 25, 2024

35