WILLIAMS v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOSEPH D. W., )

)

Plaintiff, )

)

v. ) 1:23CV863

)

MARTIN J. O’MALLEY, )

Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Joseph D. 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 claim for Disability

Insurance Benefits (“DIB”). (Docket Entry 1.) The Commissioner

has filed the certified administrative record (Docket Entry 3

(cited herein as “Tr. __”)), Plaintiff has moved for summary

judgment (Docket Entry 6; see also Docket Entry 7 (Supporting

Memorandum)), and the Commissioner has submitted a dispositive

brief in accordance with Rule 5 of the Supplemental Rules for

Social Security Actions under 42 U.S.C. § 405(g) (Docket Entry 9).

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).

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

Commissioner.2

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 176-78, 183-86), originally

alleging a disability onset date of May 28, 2019 (see Tr. 176), but

later amending the onset date to November 20, 2020 (see Tr. 185),

likely due to earnings at substantial gainful activity levels

between May 28, 2019, and November 20, 2020 (see Tr. 188, 230).

Upon denial of that application initially (Tr. 57-66, 81-85) and on

reconsideration (Tr. 67-80, 92-101), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 102-03).

Plaintiff, his attorney, and a vocational expert (“VE”) attended

the hearing. (Tr. 39-56.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 17-38.)

The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-7, 173-75, 327-28), thereby making the ALJ’s ruling

the Commissioner’s final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2025.

2. [Plaintiff] has not engaged in substantial gainful

activity since November 20, 2020, the alleged onset date.

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 []herein.”

(Docket Entry 10 at 1.)

2

. . .

3. [Plaintiff] has the following severe impairments:

gastrointestinal disorder; anxiety disorder; and

depressive disorder.

. . .

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 medium work . . . except frequent

ramps and stairs; occasional ladders, ropes, and

scaffolds. [He] should avoid concentrated exposure to

hazardous conditions, such as unprotected heights and

dangerous machinery. [He] can understand, remember and

carry out simple instructions. He can interact with

supervisors and co-workers frequently, but never interact

with the general public. [He] can tolerate infrequent

and gradually introduced changes in the workplace.

. . .

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 [he] can perform.

. . .

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

defined in the . . . Act, from November 20, 2020, through

the date of this decision.

(Tr. 22-30 (bold font, and internal parenthetical citations

omitted).)

3

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.

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

4

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

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.

5

(quoting 42 U.S.C. § 423(d)(1)(A)).3 “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

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).4 A finding adverse to the

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

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

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

employed. The Supplemental Security Income Program . . . 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).

4 “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).

6

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

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 179.5 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

5 “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

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 567.6

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of non-disability on these grounds:

1) “[t]he ALJ’s findings regarding Plaintiff’s [RFC]

limitations were not supported by substantial evidence” (Docket

Entry 7 at 3 (bold font, all caps font, and block formatting

omitted));

2) “[t]he ALJ erred by failing to consider [Plaintiff]’s

absentee rate in concluding jobs exist[ed] in significant numbers

that [he] could perform” (id. at 6 (bold font, all caps font, and

block formatting omitted)); and

3) “[t]he ALJ failed to comply with 20 [C.F.R.] § 404.1520[c]

in not according adequate weight to the opinions of Dr. Tammie

6 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

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

8

Gainey, Plaintiff’s treating physician [sic]” (id. at 9 (bold font,

all caps font, and block formatting omitted)).7

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 9 at 3-17.)

1. State Agency Psychological Consultants’ Opinions

In Plaintiff’s first issue on review, he argues that “[t]he

ALJ’s findings regarding Plaintiff’s [RFC] limitations were not

supported by substantial evidence.” (Docket Entry 7 at 3 (bold

font, all caps font, and block formatting omitted).) More

specifically, Plaintiff maintains that “[t]he ALJ credited the

psychiatric review technique by the [s]tate [a]gency [m]edical

[sic] [c]onsultants . . ., but did not incorporate all of their

[RFC] limitations in [Plaintiff]’s [RFC] analysis.” (Id. (citing

Tr. 24-25, 64).) In particular, Plaintiff contends that the ALJ

should have included in the RFC the consultants’ 1) opinion

regarding Plaintiff’s “inability to ‘accept instructions and

respond appropriately to criticism from supervisors,’” 2)

“limitation to non-production work,” and 3) “limitation[] in

ability to maintain attention and concentration for extended

periods.” (Id. at 4 (quoting Tr. 64).) According to Plaintiff,

“[t]he ALJ did not explain why [he] excluded [those]

limitations . . . from the RFC” (id.) and, given that the opinion

7 The record reflects that Tammie Gainey holds a Ph.D. and two nursing

certifications, but does not indicate that she has obtained a Doctor of Medicine

degree. (See Tr. 965.)

9

of Dr. Gainey, “supported significant limitations in the [same]

categories [of mental functioning]” (id. (citing Tr. 966)), “no

competent medical expert opinion [existed] contrary to

the[ consultants’] restrictions” (id.). Plaintiff thus urges that

“[t]he RFC, as adopted by the ALJ, does not recognize Plaintiff’s

inability to do the production job of [bloxmaker ([Dictionary of

Occupational Titles (‘DOT’) No.] 794.684-014), nor his inability to

accept instruction or interact appropriately with supervisors, as

is likely required by [the jobs of i]ndustrial [c]leaner ([DOT No.]

381.687-018), [l]landscape [s]pecialist ([DOT No.] 406.687-010) and

[o]oxmaker ([DOT No.] 794.684-014).” (Id. (citing Tr. 24-25).)

For the reasons that follow, those arguments miss the mark.

The state agency psychological consultants both found that

Plaintiff had severe depression and anxiety, which did not meet or

medically equal any listing, but did result in moderate limitation

in his abilities to interact with others, concentrate, persist, or

maintain pace (“CPP”), and adapt or manage himself. (See Tr. 61,

72.) As far as Plaintiff’s mental RFC, both consultants (A) opined

that, overall, Plaintiff remained capable of simple, routine, and

repetitive tasks (“SRRTs”) (see Tr. 62, 77), and (B) observed that

Plaintiff could “sustain concentration and attention for simple

tasks on an ongoing basis with [the] caveat that [an] occasional

anxiety reaction w[ould] disrupt task focus for a short period”

(Tr. 64, 76), “adequately relate to others in a work setting ona

10

casual basis” (id.), and “adapt to routine changes and tolerate low

stress in a nonproduction work setting” (id.).

The ALJ’s analysis of those opinions follows:

As for the opinion evidence regarding [Plaintiff]’s

mental functioning, the [ALJ] considered the psychiatric

review technique set forth by [the state agency

psychological consultants]. ([Tr. 58-79]). [The

consultants] opined mostly moderate limitations [in the]

paragraph B criteria, and further opined that [Plaintiff]

retains the capacity to sustain concentration and

attention for simple tasks, occasional anxiety reaction

will disrupt task focus for a short period, can

adequately relate to others in a work setting on a casual

basis, and can adapt to routine changes and tolerate low

stress in a nonproduction work setting. This opinion was

supported by therapy records, [and] reported activities

of daily living. ([Tr. 64, 72]). This opinion is

generally consistent with the evidence at the hearing

level showing [Plaintiff]’s ongoing treatment for

complaints of anxiety, panic attacks, and depression, but

largely normal mental status findings including logical

thought process, normal thought content, fair insight,

normal recent and remote memory, normal attention span

and concentration ability, good eye contact, and well

groomed. ([Tr. 2100, 2102, 2105, 2107, 2151, 2154, 2164,

2319]).

(Tr. 28 (emphasis added) .)

As an initial matter, and contrary to Plaintiff’s allegations,

the ALJ did not fully credit the consultants’ opinions. The ALJ

noted that he found the consultants’ opinions “generally consistent

with the evidence at the hearing level” (id. (emphasis added)), and

also noted that they “opined mostly moderate limitations [in the]

paragraph B criteria” (id. (emphasis added); see also Tr. 61, 72

(consultants’ opinions finding moderate limitation in Plaintiff’s

abilities to interact with others, maintain CPP, and adapt or

11

manage himself)), whereas the ALJ found only mild limitation in

Plaintiff’s ability to maintain CPP (see Tr. 24). Thus, the ALJ’s

own analysis signals that he did not intend to adopt in full the

consultants’ opinions. However, even assuming, arguendo, that the

ALJ had found the consultants’ opinions fully persuasive, Plaintiff

still could not show prejudicial error by the ALJ for the following

three reasons.

First, Plaintiff’s assertion that the ALJ should have included

in the RFC the consultants’ moderate limitations on Plaintiff’s

abilities to accept instructions and respond appropriately to

criticism from supervisors and to maintain attention and

concentration for extended periods (see Docket Entry 7 at 4

(referencing Tr. 64, 76)) lacks merit. The consultants’ moderate

limitations in question appear in the portion of the mental RFC

form which the consultants use as “merely a worksheet to aid in

deciding the presence and degree of functional limitations . . .

and does not constitute the RFC assessment.” Program Operations

Manual System (“POMS”) DI 24510.060B.2.a (bold font omitted). The

consultants assess the actual mental RFC in the narrative portion

of the form. See POMS DI 24510.060B.4. Here, despite finding

moderate limitations in Plaintiff’s abilities to handle a

supervisor’s instructions/criticism and to maintain attention/

concentration, and as the ALJ recognized (see Tr. 28), the

consultants concluded in the narrative portion of the mental RFC

12

form that Plaintiff could “sustain concentration and attention for

simple tasks on an ongoing basis with [the] caveat that [an]

occasional anxiety reaction w[ould] disrupt task focus for a short

period” and “adequately relate to others in a work setting on a

casual basis” (Tr. 64, 76). The ALJ did not err by relying on the

consultants’ narrative mental RFC assessment. See Jones v.

Commissioner of Soc. Sec., 478 F. App’x 610, 612 (11th Cir. 2012)

(rejecting the claimant’s contention that ALJ should have accounted

in RFC for moderate limitations identified on mental RFC assessment

form, and noting that limitations “are only part of a worksheet

that does not constitute the doctors’ actual RFC assessment”

(brackets and internal quotation marks omitted)); Smith v.

Commissioner of Soc. Sec., 631 F.3d 632, 636-37 (3d Cir. 2010)

(finding no error where ALJ did not include in hypothetical

question to VE moderate limitations contained in worksheet part of

mental RFC form, and concluding that the claimant could not “rely

on the worksheet component” of that form); Johansen v. Barnhart,

314 F.3d 283, 288-89 (7th Cir. 2002) (upholding ALJ’s reliance on

narrative mental RFC assessment rather than subsidiary findings of

moderate limitations in the claimant’s ability to maintain regular

schedule and attendance and to complete normal workday and

workweek).

Second, Plaintiff has not shown that the ALJ’s inclusion in

the RFC of the consultants’ limitation to nonproduction jobs would

13

eliminate all three of the jobs cited by the VE in response to the

ALJ’s dispositive hypothetical question (see Tr. 53) and adopted by

the ALJ at step five of the SEP (see Tr. 30). Although Plaintiff

argues that a nonproduction restriction would eliminate the box

maker job (see Docket Entry 7 at 4 (citing DOT, No. 794.684-014

(“Box Maker, Paperboard”), 1991 WL 681311 (G.P.O. 4th ed. rev.

1991)), he does not assert that such a restriction would preclude

the industrial cleaner and landscape specialist jobs (see id.), and

the Court’s review of the DOT listings for such jobs suggests that

those jobs do not involve production duties, see DOT, No. 381.687-

018 (“Cleaner, Industrial”), 1991 WL 673258; DOT, No. 406.687-010

(“Landscape Specialist”), 1991 WL 673342. The VE testified (and

the ALJ found (see Tr. 30)) that 194,000 industrial cleaner jobs

and 216,000 landscape specialist jobs existed in the national

economy (see Tr. 53), numbers that clearly qualify as significant

under Fourth Circuit precedent, see McCall v. Saul, 844 F. App’x

680, 681 (4th Cir. 2021) (citing with approval cases holding that

25,000 and 11,000 jobs nationally qualified as significant job

numbers); Hicks v. Califano, 600 F.2d 1048, 1051 (4th Cir. 1979)

(“We do not think that the approximately 110 jobs [available

regionally] testified to by the [VE] constitute an insignificant

number.”).

Third, Plaintiff erroneously equates the consultants’ moderate

limitation on Plaintiff’s ability to accept instructions and

14

respond appropriately to criticism from supervisors as □ an

“inability” to do so. (Docket Entry 7 at 4 (emphasis added).) The

regulations define a “moderate” limitation as meaning mental

“functioning in that area independently, appropriately,

effectively, and on a sustained basis is fair,” 20 C.F.R. Pt. 404,

Subpt. P, App’x 1, § 12.00F.2.c (emphasis added), and not that the

individual possesses no useful ability to function in that area.

Consistent with that definition, the consultants found that,

despite Plaintiff’s moderate limitation on handling instructions

and criticism from supervisors, Plaintiff could “adequately relate

to others in a work setting on a casual basis.” (Tr. 64, 76

(emphasis added) .) The ALJ here limited Plaintiff to frequent

interaction with supervisors (see Tr. 25), but - even if the ALJ

should have adopted a greater limitation (i.e., occasional, brief,

or superficial interaction) to encompass the consultants’

restriction to “casual” interaction (Tr. 64, 76) - Plaintiff still

cannot show reversible error. The DOT codes for all three jobs

cited by the VE (and adopted by the ALJ at step five (see Tr. 30))

contain a fifth digit of “8” (Tr. 53 (citing DOT Nos. 794.684-014,

381.687-018, 406.687-010)), representing the lowest level of human

interaction in the workplace, see Fletcher v. Colvin, No.

1:15cvl66, 2016 WL 915196, at *10 (M.D.N.C. Mar. 4, 2016)

(unpublished), recommendation adopted, slip op. (M.D.N.C. Mar. 28,

2016) (Osteen, Jr., C.J.).

15

In short, Plaintiff’s first issue on review fails as a matter

of law.

2. Plaintiff’s Absence Rate

Next, Plaintiff contends that “[t]he ALJ erred by failing to

consider [Plaintiff]’s absentee rate in concluding that jobs

exist[ed] in significant numbers that [he] could perform.” (Docket

Entry 7 at 6 (bold font, all caps font, and block formatting

omitted).) In that regard, Plaintiff maintains that “the ALJ

failed to recognize the VE’s opinion that work would not exist if

[Plaintiff] was absentee [sic] more than ‘one day a month,

occasionally two days a month, but not two days every month.’”

(Id. at 7-8 (quoting Tr. 54).) According to Plaintiff:

In each year since the alleged onset date, [he] has

missed more than two days in a month, in at least one

month of the year, due to the impairments contained in

the [r]ecord. In 2020, [he] was hospitalized for 14

days, and would therefore have been absent from work. In

2021, [he] was on 10-pound work restrictions from January

1, 2021 through January 27, 2021, and was hospitalized on

three further occasions, for a total of 30 days [he]

would be predicted absent from work. In 2022, [he] was

hospitalized for seven days, three of which were

consecutive from September 14 through September 17, 2022.

The ALJ considered [Plaintiff]’s report that when he has

a diverticulitis flareup, ‘he stays in bed most of the

time; and when he has a blockage, he can be out for two

weeks at a time. [Plaintiff] reported having flares

about half of every month.’ On July 7, 2021, a medical

provider, Matthew Smith, noted the hospital environment

is ‘very triggering for [Plaintiff], so he avoids the

hospital at all times,’ testimony [sic] which provides an

independent report that [Plaintiff] may be avoiding

hospitalization in favor of conservative care at home.

Even without consideration for [Plaintiff]’s testimony,

[he] was hospitalized or otherwise unable to perform

[substantial gainful activity] for more than two days in

16

a month, for at least one month per year since the

[alleged onset date]. The ALJ’s failure to consider

this, in combination with the VE’s testimony that such

absentee rate would preclude competitive employment at

any exertional level, was error.

(Id. at 8 (emphasis added) (citing Tr. 323, 819-20, 864, 1634,

1645, 2045, and quoting Tr. 25, 1780).) Plaintiff further notes

that “[i]t is ‘appropriate to reverse without remanding where the

record does not contain substantial evidence to support a decision

denying coverage under the correct legal standard and when

reopening the record for more evidence would serve no purpose,” and

argues that “[r]eversal is merited here.” (Id. at 9 (quoting

Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974)).)

Those arguments fall short.

RFC entails assessment of a claimant’s ability to do sustained

work-related physical and mental activities in a work setting “on

a regular and continuing basis,” 20 C.F.R. § 404.1545(b), (c)

(emphasis added), which “‘means 8 hours a day, for 5 days a week,

or an equivalent work schedule,’” Hines, 453 F.3d at 562 (emphasis

omitted) (quoting Social Security Ruling 96-8p, Titles II and XVI:

Assessing Residual Functional Capacity in Initial Claims, 1996 WL

374184, at *2 (July 2, 1996) (“SSR 96-8p”)). In making the RFC

determination, the ALJ must take into consideration “[t]he effects

of treatment, including limitations or restrictions imposed by the

mechanics of treatment (e.g., frequency of treatment, duration,

disruption to routine, side effects of medication).” SSR 96-8p,

17

1996 WL 374184, at *5. Moreover, “[a]bsenteeism due to the

frequency of treatment is a relevant factor so long as the

treatment is medically necessary and concerns the conditions on

which the disability claim is founded.” Griffin v. Commissioner of

Soc. Sec., No. 2:15CV13715, 2017 WL 991006, at *2 (E.D. Mich. Mar.

15, 2017) (unpublished). Here, for the reasons that follow,

Plaintiff’s contention that, “[i]n each year since the alleged

onset date, [he] has missed more than two days in a month, in at

least one month of the year, due to the impairments contained in

the [r]ecord” (Docket Entry 7 at 8 (emphasis added) (citing Tr.

323, 864)) fails to demonstrate that Plaintiff would have

experienced impermissible levels of absenteeism during the relevant

period.

Plaintiff’s reliance on the 14 days he spent in the hospital

for a small bowel resection in December 2020, and the 27 days in

January 2021 he remained under his surgeon’s temporary, 10- to 15-

pound lifting restriction during his recovery from that surgery

fails (see Docket Entry 7 at 8 (citing Tr. 819-20)) because, as

discussed in more detail below, the record demonstrates that

Plaintiff’s condition significantly stabilized and improved

following that surgery. Thus, Plaintiff has made no showing that

his gastrointestinal impairments would have caused him, on an

ongoing basis, to miss more than one day of work per month

throughout the relevant period in this case.

18

Prior to his alleged onset date, from November 2018 to October

2020, Plaintiff endured a series of surgeries and unfortunate post-

surgical complications stemming from his diagnosis of

diverticulitis. (See Tr. 330-33, 336, 375-77, 1545-52 (11/27/18-

5/14/19 outpatient diagnosis and treatment of left-sided

diverticulitis in sigmoid colon with contained perforation), 414-24

(5/29-6/3/19 laparoscopic sigmoid colon resection), 432-51 (6/4-

6/7/19 hospitalization for post-surgical ileus/obstruction,

hospital acquired pneumonia, and sepsis), 474-503 (6/22-7/1/19

hospitalization for colon abscess, anastomotic leak, and stent

placement), 558-61 (12/11-12/22/19 laparoscopic diverting loop

ileostomy and revision with end ileostomy), 633-35 (6/8-6/12/20

reversal of ileostomy and lysis of adhesions), 667-93 (9/25-27/20

hospitalization for partial small bowel obstruction at

anastomosis), 709-32 (10/12-10/15/20 hospitalization for partial

small bowel obstruction).) In contrast, Plaintiff’s medical course

stabilized significantly after his alleged onset date. Just days

after the onset date, he spent four days in hospital for a

recurrent small bowel obstruction (see Tr. 754-815 (12/2-12/6/20

hospitalization for partial small bowel obstruction at

anastomosis)), but he then transferred to UNC Hospital on December

6, 2020 (see Tr. 825-73), underwent small bowel resection on

December 9, 2020 (see id.), and discharged from hospital on

December 16, 2020 (see id.). Although Plaintiff remained under his

19

surgeon’s restriction to lifting no more than 10 to 15 pounds until

January 20, 2021, i.e., six weeks after his surgery (see Tr. 820),

the record does not reveal any further surgical interventions as of

the date of the ALJ’s decision on April 26, 2023 (see Tr. 973-77,

1543-1654, 1633-93, 1752-77, 1860-1947, 1997-2097, 2212-311).

Significantly, Plaintiff experienced only one further inpatient

hospitalization related to his gastrointestinal impairments (see

Tr. (9/14-9/17/22 hospitalization for partial small bowel

obstruction)}), for a total of two inpatient hospitalizations

totaling 19 days in the 29 months between his onset date and the

ALJ’s decision.?®

Those two inpatient hospitalizations, spaced nearly 19 months

apart, simply do not establish that Plaintiff’s gastrointestinal

impairments would have caused him to miss work more than one day

per month on an ongoing basis throughout the relevant period. See

Shawna Kay D. v. Kijakazi, No. 21CV923, 2022 WL 2316203, at *2

(N.D. Tll. June 28, 2022) (unpublished) (“[The p]laintiff contests

the ALJ’s conclusion that her health-related absences would not

® Plaintiff visited the emergency room on three other occasions since the

onset date complaining of abdominal pain, but, on each occasion, imaging did not

detect small bowel obstruction and the providers discharged Plaintiff on the same

day. (See Tr. 973-76 (2/2/21), 1645-48 (3/22/21), 2003-005 (5/30/22)

Moreover, Plaintiff inappropriately includes emergency room visits for a fall off

a roof and a bee sting - isolated medical events completely unrelated to his

chronic gastrointestinal issues - in his accounting of days spent in hospital

(see Docket Entry 7 at 8 (citing Tr. 2045, and referencing Tr. 2062)). See

McWhorter v. Berryhill, No. 2:17CV12062, 2018 WL 4417746, at *5 (E.D. Mich. July

23, 2018) (unpublished) (rejecting the plaintiff’s contention that “sheer number”

of medical visits rendered her disabled, observing that many of those treatment

visits “involved isolated incidents, not chronic conditions that would require

ongoing treatment”).

20

exceed the amount employers generally tolerate, i.e., one to two

per month. [The p]laintiff says[] the record shows that she was

hospitalized or in the ER on average more than 10 to 12 days per

year since her alleged onset date. She contends, for example, that

in 2019, the number of days she spent in an emergency room or

hospital exceeded the twelve to twenty-four deemed acceptable by

employers. But the evidence she cites shows that [she] lost, at

most, eight days to ER visits and hospital stays in 2019. Because

the record does not support [the] plaintiff’s assertion that her

impairments would cause her to be absent from work excessively, it

is not the basis for a remand.” (emphasis added) (internal

parenthetical citations, quotation marks, brackets, and footnote

omitted); compare Brown v. Berryhill, No. 1:17CV1096, 2018 WL

3910833, at *4 (M.D.N.C. Aug. 15, 2018) (unpublished) (Webster,

M.J.) (faulting ALJ for “characteriz[ing the p]laintiff’s pain and

limitation from pancreatitis as not ongoing,” where, “by the

Court’s count, [the p]laintiff was hospitalized eleven times and

for a total of fifty-four days between the alleged amended onset

date and the decision date[ and] visited the emergency room at

least nine other times . . ., or on average two days each month.”

(emphasis added)), recommendation adopted, 2018 WL 5447699

(M.D.N.C. Sept. 5, 2018) (unpublished) (Eagles, J.).

Plaintiff appears to recognize his inability to argue, based

on the existing record, that his gastrointestinal impairments would

21

have caused him to miss more than one day of work per month on an

ongoing basis throughout the relevant period, because he argues,

instead, that “[he] has missed more than two days in a month, in at

least one month of the year, due to the impairments contained in

the [r]ecord” (Docket Entry 7 at 8 (emphasis added)). But, as the

United States Court of Appeals for the Eleventh Circuit recently

recognized, having one month in a year with multiple medical events

does not establish that one’s impairments would cause ongoing

absence at impermissible levels. See Blackmon v. Commissioner of

Soc. Sec., No. 23-12894, 2024 WL 3495022, at *7 (11th Cir. July 22,

2024) (unpublished) (“The ALJ’s decision not to include absenteeism

limitations in [the plaintiff]’s RFC is supported by substantial

evidence. . . . Looking to the time period between . . . [the

plaintiff]’s amended onset date[] and . . . [the plaintiff]’s last

documented medical event before filing[], [the plaintiff] had

medical events on only eight days, for an average of just over 1

time per 30 days. And [the plaintiff] had multiple medical events

in just one of the months between her amended onset date and her

filing, which is hardly having multiple medical events in a month

on a regular and ongoing basis.” (emphasis added) (internal

quotation marks omitted)).

Plaintiff additionally relies on his testimony that he had

diverticulitis flares about half of every month (Docket Entry 7 at

8 (referencing Tr. 50)), as well as an observation by his therapist

22

Matthew Smith (“Therapist Smith”) that Plaintiff “‘avoid[ed] the

hospital at all times’” because he found the hospital “‘very

triggering’” (id. (quoting Tr. 1780)), to suggest that he “may be

avoiding hospitalization in favor of conservative care at home”

(id.). Such an argument falls short for three reasons.

First, Plaintiff fails to acknowledge that the ALJ indeed

considered Plaintiff’s report that he “ha[d] flares about half of

every month,” but thereafter found that Plaintiff’s “statements

concerning the intensity, persistence and limiting effects of [his]

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. 25.) Plaintiff has not challenged that

finding by the ALJ. (See Docket Entry 7.)

Second, the ALJ recognized that, contrary to Plaintiff’s

testimony claiming to experience diverticulitis flares half of the

time, “[he] reported that he did well following the [small bowel

resection in December 2020]” (Tr. 26 (emphasis added) (citing Tr.

819 (12/29/20) 1634 (2/2/21))), as well as that “[a] colonscopy

performed in December 2022 showed patent end-to-end colo-colonic

anastomosis, characterized by health[y] appearing mucosa and normal

ileum” (id. (citing Tr. 2307); see also Tr. 2230 (Plaintiff’s

statement to hospital provider in September 2022 that his last

flare occurred two to three months prior which he managed at home

with “modest bowel rest”)).

23

Third, Plaintiff overstates the significance of his remark to

Therapist Smith that Plaintiff finds hospitals “very triggering”

and “avoids the hospital at all times.” (Docket Entry 7 at 8

(quoting Tr. 1780).) The complete context of the remark, made on

July 7, 2021, follows:

[Plaintiff] stated he is having difficulties staying

asleep due to racing thoughts and this is making it

difficult to manage his stress and anxiety. [Plaintiff]

wants to get consistent restful sleep first so he can

better focus on using his stress/anxiety management

strategies. He added that the possibility of a sleep

study was presented to him but since the study would be

at the hospital but [sic] that environment is very

triggering for him, so he avoids the hospital at all

times.

(Tr. 1780.) At best, that statement suggests that Plaintiff might

not schedule elective procedures due to the “triggering” nature of

hospitals, but the record shows that Plaintiff continued to present

at emergency rooms when he believed his symptoms warranted such an

intervention (see Tr. 2045-60 (11/18/21), 2061-68 (4/7/22), 2069-78

(5/30/22), 2213-44 (9/14-9/17/22)).

Put simply, Plaintiff has not shown that the ALJ erred by

failing to consider Plaintiff’s absentee rate during the relevant

period and thus his second assignment of error lacks merit.

3. Opinions of Dr. Gainey

Plaintiff’s third and final assignment of error maintains that

“[t]he ALJ failed to comply with 20 [C.F.R.] § 404.1520[c] in not

according adequate weight to the opinions of Dr. [] Gainey,

Plaintiff’s treating physician [sic].” (Docket Entry 7 at 9 (bold

24

font, all caps font, and block formatting omitted).) More

specifically, Plaintiff notes that Dr. Gainey’s opinion that

Plaintiff could not “maintain gainful employment because his

conditions affect his concentration, productivity, and ability to

perform job duties . . . is meaningfully supported by the evidence

in the record.” (Id. (citing Tr. 965).) In particular, Plaintiff

contends that Dr. Gainey’s opinions harmonize with “a work activity

questionnaire” from Plaintiff’s last employer reflecting that

Plaintiff needed workplace accommodations to perform his job as a

motorcycle mechanic (id. at 10 (citing Tr. 182)), as well as with

the opinions of the state agency psychological consultants, who

each “found the same or similar limitations” as Dr. Gainey in

various areas of mental functioning (id. at 12 (citing Tr. 64)).

Additionally, Plaintiff accuses the ALJ of “selectively” citing

evidence that supported his decision to discount Dr. Gainey’s

opinions, while ignoring other evidence that favored Dr. Gainey’s

opinions. (Id. at 10 (citing Tr. 28, 713-15, 727, 759, 764); see

also id. at 10-11 (detailing other examples of ALJ’s alleged

selectivity (citing Tr. 678, 826-28, 1491, 1497, 1702, 1780-82).)

According to Plaintiff, as a result of the ALJ’s errors in

evaluating Dr. Gainey’s opinions, “[r]eversal is merited here.”

(Id. at 13.) As the following analysis shows, those contentions do

not establish prejudicial error by the ALJ.

25

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 176-78, 183-86)), the SSA has enacted

substantial revisions to the regulations governing the evaluation

of opinion evidence, see Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL

168819 (Jan. 18, 2017). Under the new regulations, ALJs need not

assign an evidentiary weight to medical opinions or accord special

deference to treating source opinions. See 20 C.F.R.

§ 404.1520c(a) (providing that ALJs “will not defer or give any

specific evidentiary weight, including controlling weight, to any

medical opinion(s) . . ., including those from [a claimant’s]

medical sources”). Instead, an ALJ must determine and “articulate

in [the] . . . decision how persuasive [he or she] find[s] all of

the medical opinions . . . in [a claimant’s] case record.” 20

C.F.R. § 404.1520c(b) (emphasis added). Moreover, when a medical

source provides more than one opinion, the ALJ can evaluate the

persuasiveness of such opinions “together in a single analysis” and

need not articulate how he or she considered those opinions

“individually.” 20 C.F.R. § 404.1520c(b)(1).

In evaluating the persuasiveness of an opinion, the SSA deems

supportability and consistency “the most important factors” and

thus the ALJ must address those two factors in evaluating the

26

persuasiveness of an opinion. 20 C.F.R. § 404.1520c(b)(2).9 The

ALJ must address the three other persuasiveness factors — the

nature and extent of the medical source’s relationship with the

claimant and area of specialization, as well as the catch-all

“other factors that tend to support or contradict” the opinion, 20

C.F.R. § 404.1520c(c)(3)-(5) — only when the ALJ finds two or more

opinions about the same issue “[e]qually persuasive” in terms of

supportability and consistency, 20 C.F.R. § 404.1520c(b)(3).

Dr. Gainey submitted an undated letter addressed “To Whom It

May Concern,” which provides, in pertinent part, as follows:

[Plaintiff] is under my care for the treatment of chronic

mental illness. He is being treated for Post-Traumatic

Stress Disorder, Generalized Anxiety Disorder, and Panic

Disorder. [He] has been seen in our office since

7/12/2019 for medication management and has been

compliant with keeping his scheduled appointments.

Due to [his] mental illness, in my professional opinion,

[he] is not at able [sic] to maintain gainful

employment. [His] condition is chronic and affects his

ability to perform job duties requiring effective

communication, concentration, and productivity. He has

excessive fears and anxiety that prohibit him from

leaving the house and performing job duties. [His]

mental illness affects his everyday life in all areas of

his life. It is my professional opinion that [he] be

considered for full disability benefits due to his

chronic mental illness.

9 “Supportability” means “[t]he extent to which a medical source’s opinion

is supported by relevant objective medical evidence and the source’s supporting

explanation.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(1). “Consistency” denotes “the extent to which the opinion is

consistent with the evidence from other medical sources and nonmedical sources

in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(2).

27

(Tr. 965.) Dr. Gainey attached to that letter a preprinted form

entitled “MENTAL STATUS FUNCTIONAL CAPACITY” prepared by

Plaintiff’s attorney (see Tr. 964 (“advis[ing] that this form was

created by our office”)), which Dr. Gainey dated January 29, 2021,

and on which she opined that Plaintiff’s “Generalized Anxiety,

Panic Attacks and Major Depression” resulted in “[s]ignificant”

restriction in his “[a]bility to relate to other people,”

“[r]estriction of daily activities,” “[d]eterioration of personal

habits,” and “[c]onstriction of interests” (Tr. 966). Dr. Gainey

further stated that Plaintiff’s mental impairments caused “[n]one

or [s]light” limitation on Plaintiff’s abilities to “[u]nderstand

simple instructions” and [c]arry out instructions under normal

supervision,” “[s]ignificant” limitation on his ability to

“[s]ustain work performance, attendance,” and “[m]arked” limitation

on his ability to “[c]ope with pressures of ordinary work.” (Id.)10

Dr. Gainey described Plaintiff’s symptoms as “worsening anxiety

[and] panic attacks, [i]ncreased outbursts, excessive worrying,

10 The preprinted form defined “[n]one or [s]light” limitation as “[n]o

significant limitations,” “[s]ignificant” as “[a]n impairment which seriously

interferes with the individual’s ability to perform work activity on a regular

basis, i.e., 1-3 hours out of an 8 hour day, 5 days per week, or an equivalent

work schedule,” and “[m]arked” as “[a]n impairment which precludes the

individual’s ability to function independently, appropriately, and effectively

on a regular basis, i.e., 4 or more hours out of an 8 hour day, 5 days per week,

or an equivalent work schedule.” (Tr. 966.)

28

difficulty concentrating, [and] inability to perform job duties.”

(Id.)11

The ALJ summarized Dr. Gainey’s above-described opinions (see

Tr. 28), and thereafter provided the following persuasiveness

analysis:

The [ALJ] does not find this opinion persuasive. The

record indicates that [Plaintiff] received benefit from

medications and had improvements with regard to anxiety

and panic attacks. ([Tr. 1491, 1792, 1818, 1830,

2106]).[12] Additionally, this opinion is inconsistent

with the largely normal mental status findings including

logical thought process, normal thought content, fair

insight, normal recent and remote memory, normal

attention span and concentration ability, good eye

contact, and well groomed. ([Tr. 671, 682, 688, 710,

718, 760, 768, 774, 1495, 1499, 1503, 1508, 1712, 1722,

1782, 1786, 1792, 1798, 1804, 1812, 1818, 1824, 1830,

1848, 1855, 1960, 2100, 2102, 2105, 2107, 2151, 2154,

2164, 2319]).

(Tr. 28 (emphasis added).)

That analysis by the ALJ of Dr. Gainey’s opinions makes clear

he considered both the supportability and the consistency of her

opinions as required by Section 404.1520c(b)(2). With regard to

supportability, i.e., “[t]he extent to which a medical source’s

11 As the Commissioner notes, “[i]n January 2023, Dr. Gainey filled in a

few portions of a psychiatric review technique form (‘PRTF’), leaving it mostly

blank without any explanation (Tr. 2326-40).” (Docket Entry 9 at 13 n.3.) On

the PRTF, Dr. Gainey “checked off various symptoms of [Listings] 12.04 and 12.06,

but nothing else – not even Plaintiff’s degree of limitation under the []

paragraph B criteria (Tr. 2329, 2331, 2338).” (Id. at 13-14 n.3.) Although the

ALJ cited to the PRTF in his evaluation of Dr. Gainey’s opinions (see Tr. 28

(citing Tr. 2326-40)), Plaintiff did not argue that the ALJ erred in his

consideration of the PRTF (see Docket Entry 7 at 9-13). Accordingly, the

undersigned will not address the PRTF further.

12 Although the ALJ cited to page 49 of Exhibit 24F in this string cite

(Tr. 28 (citing “Exhibit 24F/49”)), Exhibit 24F ends with page 34 (see Tr. 789).

29

opinion is supported by relevant objective medical evidence and the

source’s supporting explanation,” Revisions to Rules, 82 Fed. Reg.

at 5853; see also 20 C.F.R. § 404.1520c(c)(1), the ALJ noted that

Dr. Gainey’s own records (and those of Therapist Smith, who

provides care at the same practice as Dr. Gainey) showed that

“[Plaintiff] received benefit from medications and had improvements

with regard to anxiety and panic attacks.” (Tr. 28 (citing Tr.

1491, 1792, 1818, 1830, 2106).) Concerning consistency, i.e., “the

extent to which the opinion is consistent with the evidence from

other medical sources and nonmedical sources in the claim,”

Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(2), the ALJ observed that Dr. Gainey’s opinions

lacked consistency “with the largely normal mental status findings”

found by Plaintiff’s various treatment providers throughout the

relevant period. (Tr. 28 (citing Tr. 671, 682, 688, 710, 718, 760,

768, 774, 1495, 1499, 1503, 1508, 1712, 1722, 1782, 1786, 1792,

1798, 1804, 1812, 1818, 1824, 1830, 1848, 1855, 1960, 2100, 2102,

2105, 2107, 2151, 2154, 2164, 2319).)

Plaintiff attempts to undermine the ALJ’s finding that Dr.

Gainey’s opinions lacked consistency with other record evidence by

arguing that the ALJ failed to acknowledge the extent to which a

work activity form from Plaintiff’s last employer supported Dr.

Gainey’s opinions. (See Docket Entry 7 at 10 (citing Tr. 182).)

In that regard, Plaintiff notes that the form “indicat[es] that

30

[Plaintiff] was ‘frequently absent from work,’ that he did not

regularly report for work as scheduled, and that the employer gave

special assistance to [Plaintiff] in the form of ‘fewer or easier

duties, less hours, frequent absences’ and ‘lower production

standards.’” (Id. (quoting Tr. 182).)

Plaintiff’s argument glosses over the facts that 1) the

employer offered Plaintiff those alleged workplace accommodations

during a time primarily pre-dating Plaintiff’s onset date (see Tr.

199 (indicating Plaintiff “became sick 5/11/19” and lost his job on

“2/5/21”), 181 (describing Plaintiff’s employment as “stop [and] go

since 2019”)) when, as discussed above in the context of

Plaintiff’s second issue on review, Plaintiff experienced a series

of gastrointestinal surgeries and post-surgical complications,

including anastomotic leak, abscess, sepsis, pneumonia, and

recurrent small bowel obstructions caused by post-surgical

adhesions (see Tr. 330-33, 336, 375-77, 414-24, 432-51, 474-503,

558-61, 633-35, 667-93, 709-32, 754-815, 1545-52); and 2)

Plaintiff’s condition stabilized and improved significantly

following his December 2020 small bowel resection (see Tr. 825-73,

973-77, 1543-1654, 1633-93, 1752-77, 1860-1947, 1997-2097, 2212-

311). Moreover, as the Commissioner points out, the Plaintiff

performed the skilled, heavy-exertion job of motorcycle mechanic

for his last employer (see Tr. 29, 52, 181) and, thus, the fact

that Plaintiff needed accommodations for that job has little

31

probative value to show he would need those accommodations to

perform the medium-exertion, unskilled jobs cited by the VE (see

Tr. 53) and adopted by the ALJ at step five of the SEP (see Tr.

30).

Plaintiff further maintains that the ALJ overlooked that the

state agency psychological consultants each “found the same or

similar limitations” as Dr. Gainey on Plaintiff’s “‘ability to

maintain attention and concentration for extended periods; []

ability to perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances; [] ability

to complete a normal workday and workweek without interruptions

from psychologically based symptoms and to perform at a consistent

pace without an unreasonable number and length of rest periods; []

ability to interact appropriately with the general public; []

ability to accept instructions and respond appropriately to

criticism from supervisors;’ and ‘[] ability to respond

appropriately to changes in the work setting.’” (Id. at 12

(quoting Tr. 64).)

As an initial matter, the regulations define the terms

“moderate” and “marked” as used by the consultants differently than

the form crafted by Plaintiff’s attorney defines “[s]ignificant”

and “[m]arked.” Compare 20 C.F.R. Pt. 404, Subpt. P, App’x 1,

§ 12.00F.2.c, d (defining “[m]oderate limitation” as reflecting

that “functioning in this area independently, appropriately,

32

effectively, and on a sustained basis is fair,” and “[mJarked

limitation” as reflecting that “functioning in this area

independently, appropriately, effectively, and on a sustained basis

is seriously limited” (emphasis added)), with Tr. 966 (defining

“[slignificant” as “[a]n impairment which seriously interferes with

the individual’s ability to perform work activity on a regular

basis, i.e., 1-3 hours out of an 8 hour day, 5 days per week, or an

equivalent work schedule,” and “[m]jarked” as “[a]n impairment which

precludes the individual’s ability to function independently,

appropriately, and effectively on a regular basis, i.e., 4 or more

hours out of an 8 hour day, 5 days per week, or an equivalent work

schedule” (emphasis added)). Such substantial differences in the

rating scales make suggestions of meaningful symmetry between the

opinions of the consultants and those of Dr. Gainey untenable.

More importantly, the consultants found, at most, moderate

limitations on Plaintiff’s ability to perform mental work-related

activities (see Tr. 61, 64, 72, 76) and opined that he remained

capable of range of SRRTs (see Tr. 62, 77), whereas Dr. Gainey

believed Plaintiff’s mental impairments caused “[m]larked”

limitation in his ability to tolerate work pressure (Tr. 966),

which equated to an inability to tolerate such pressure per the

form’s definition (see id.), and found him disabled by his mental

symptoms (see Tr. 965).

33

Plaintiff’s contention that the ALJ “selectively” cherrypicked

the evidence that contradicted Dr. Gainey’s opinions (Docket Entry

7 at 10-11) fares no better, for the following three reasons.

First, as a general matter, a review of the transcript pages cited

by the ALJ reveals that he considered mental status examinations by

a full range of Plaintiff’s providers throughout the relevant

period, e.g., emergency room physicians, consulting surgeons, Dr.

Gainey, Therapist Smith, and two other medical providers at the

same practice as Dr. Gainey and Therapist Smith, as well as records

dating from approximately two months prior to the alleged onset

date to the second to last mental health treatment note in the

record dated just over four months prior to the ALJ’s decision.

(Tr. 28 (citing Tr. 671, 682, 688, 710, 718, 760, 768, 774, 1491,

1495, 1499, 1503, 1508, 1712, 1722, 1782, 1786, 1792, 1798, 1804,

1812, 1818, 1824, 1830, 1848, 1855, 1960, 2100, 2102, 2105-07,

2151, 2154, 2164, 2319).) Such a comprehensive review of the

record evidence undermines Plaintiff’s claim the ALJ “selectively”

relied on evidence inconsistent with Dr. Gainey’s opinions.

Second, Plaintiff’s criticism that the ALJ over-relied on

normal mental status examinations in notes reflecting

“treatment . . . for a gastrointestinal (non-mental) condition”

(Docket Entry 7 at 10 (citing Tr. 678); see also id. at 11 (“the

ALJ located records within Exhibit 29F which were primarily

concerned with treatment of [] diverticulitis” and “cit[ed] other

34

records focusing on diverticulitis” in Exhibit 32)) ignores the

fact that Plaintiff himself identified the multiple

hospitalizations, surgeries, and complications caused by his

gastrointestinal impairments as the cause of his mental symptoms

(see Tr. 46 (linking his depression, anxiety, and PTSD to his

“diverticulitis” and “multiple surgeries”), 1724 (remarking that he

worries “excessively” about bowel obstructions), 1780 (describing

hospitals as “very triggering”)). Thus, the ALJ did not err by

noting that mental status examinations remained normal even when

providers examined Plaintiff during those hospitalizations for

gastrointestinal issues because of the interrelationship of those

physical impairments and his mental impairments.

Third, Plaintiff’s specific examples of evidence the ALJ

“selectively” avoided fails to demonstrate grounds for remand. In

that regard, Plaintiff faults the ALJ for not expressly discussing

notations allegedly supportive of Dr. Gainey’s opinions in records

otherwise cited by the ALJ, such as a description of Plaintiff’s

mood as “‘depressed’” (Docket Entry 7 at 10 (quoting Tr. 727)), a

“request[]” that Plaintiff “follow-up with Dr. [] Gainey” (id.

(citing Tr. 713)), diagnoses of “‘[a]nxiety and depression’” along

with a notation that Plaintiff should continue his “‘Cymbalta,

buspirone and p.r.n. lorazepam’” (id. (quoting Tr. 764)), an order

of “‘[intravenous] Ativan prn anxiety’” (id. (quoting Tr. 678)),

and “anxiety and depression bolded by the medical providers” with

35

a notation that Plaintiff “‘feels that these obstructions are

increasing in frequency . . . and reports that this has caused him

to miss a significant amount of work and is affecting his

lifestyle” along with an order for “‘Ambien’” and “‘Ativan’” for

“‘[a]nxiety’” (id. at 10-11 (quoting Tr. 826-28)). Plaintiff

additionally asserts that the ALJ “selectively avoided citing” Dr.

Gainey’s “observ[ation of] depression, anxiety, nervousness, [and]

sleep disturbance,” and “‘[s]ymptoms includ[ing] sweating,

shakiness, chest tightness, [shortness of breath] and crying with

panic attacks lasting 30 minutes to 1 hour’” (id. at 11 (quoting

Tr. 1491)), and Therapist Smith’s notation that Plaintiff “was

‘having difficulties staying asleep due to racing thoughts and

th[at wa]s making it difficult to manage his stress/anxiety’” (id.

(quoting Tr. 1780)).

To begin, the ALJ need not explicitly discuss every finding in

every piece of evidence in the record, see Reid v. Commissioner of

Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014), but, rather, “must

both identify evidence that supports his conclusion and build an

accurate and logical bridge from that evidence to [that]

conclusion,” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)

(internal emphasis, quotation marks, and brackets omitted). As

explained above, the ALJ cited to a full range of evidence from the

record supporting his decision to discount Dr. Gainey’s opinions.

36

More significantly, Plaintiff has not shown how the ALJ’s

express consideration of any of the evidence he cites would have

led to a more favorable result in his case. Given that the ALJ

found that Plaintiff had severe anxiety disorder and depressive

disorder at step two of the SEP (see Tr. 22), that resulted in RFC

limitations to simple instructions, frequent interaction with

supervisors and co-workers, no interaction with the general public,

and infrequent and gradual workplace changes (see Tr. 24-25), as

well as acknowledged Plaintiff’s reported mental symptoms, periods

of both worsening and improving mental symptoms, and his

psychiatric medications (see Tr. 27), the notations in hospital

records Plaintiff cites which list anxiety and depression

diagnoses, reflect intravenous administration of anxiety

medication, confirm home psychiatric medications, and advise

follow-up with Plaintiff’s mental health care providers (see Docket

Entry 7 at 10-11 (citing Tr. 678, 727, 826-28)), would not have

compelled the ALJ to include additional limitations in the RFC.

Moreover, Plaintiff’s assertion that the ALJ “selectively

avoided citing” Dr. Gainey’s “observ[ation of] depression, anxiety,

nervousness, [and] sleep disturbance,” and “‘[s]ymptoms includ[ing]

sweating, shakiness, chest tightness, [shortness of breath] and

crying with panic attacks lasting 30 minutes to 1 hour’” (id. at 11

(quoting Tr. 1491)) fails, because Dr. Gainey did not “observe[]”

those symptoms; rather, she recorded Plaintiff’s subjective report

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of having those symptoms (see Tr. 1491).'° Similarly, Therapist

Smith did not observe Plaintiff experiencing “racing thoughts” or

difficulty sleeping but, rather, recorded Plaintiff’s subjective

report of experiencing those symptoms. (See Tr. 1780); see also

Craig, 76 F.3d at 590 n.2 (“There is nothing objective about a

doctor saying, without more, ‘I observed my patient telling me she

was in pain.’”). Furthermore, the ALJ expressly recognized that

Plaintiff “alleged mental symptomology, including flashbacks,

racing thoughts, tense stomach, decreased energy, lack of

motivation, panic attacks, insomnia, and emotional numbness” (Tr.

27 (emphasis added)), but found Plaintiff’s “statements concerning

the intensity, persistence and limiting effects of th[o]se symptoms

[] not entirely consistent with the medical evidence and other

evidence in the record” (Tr. 25), a finding not challenged by

Plaintiff (see Docket Entry 7).

In sum, the ALJ’s decision permits the Court to trace the path

of the ALJ’s reasoning in finding Dr. Gainey’s opinions not

persuasive, and, thus, Plaintiff’s third issue on review fails to

establish a basis for reversal or remand.

13 Plaintiff accuses the ALJ of “selectively avoid[ing] citing [a] February

25, 2021 record” from Dr. Gainey (Docket Entry 7 at 11 (citing 1491)); however,

the ALJ did cite that record, appropriately, as support for the proposition that

“[Plaintiff] received benefit from medications and had improvements with regard

to anxiety and panic attacks” (Tr. 28 (citing, inter alia, Tr. 1491); see also

Tr. 1491 (reflecting Plaintiff’s statements that his symptoms “[we]re currently

somewhat improving,” that his “mood [was] improving,” that he was “[f]leeling less

depressed and [had] increased motivation,”, that he was “able to stay more

focused since starting Abilify,” that his “[a]nxiety [was] manageable,” and that

he was “[{n]o longer isolating [him]self”)).

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III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is AFFIRMED, that Plaintiff’s Motion for

Summary Judgment (Docket Entry 6) is DENIED, and that this action

is DISMISSED with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

August 14, 2024

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