# MONTGOMERY v. O'MALLEY

> District Court, M.D. North Carolina · September 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10653779

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653779

## How later opinions describe it (automated extraction)

- noting that Mascio “did not impose a categorical rule that requires an AL} to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC”

## Opinion text

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

LISA M., )
)
Plaintiff, )
)
v. ) 1:23CV692
)
MARTIN J. OMALLEY;,! )
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Lisa M. (‘Plaintiff’) brought this action pursuant to Section 205(g) of the
Social Security Act (the “Act’’), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a
final decision of the Commissioner of Social Security denying her claim for Disability
Insurance Benefits (“DIB”) under Title IT of the Act. The parties have filed cross-motions
for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on December 2, 2020, alleging a
disability onset date of January 10, 2020. (Tr. at 11, 177-78.)? Plaintiffs application was denied
initially (Tr. at 58-65, 80-89) and upon reconsideration (Tr. at 66-74, 91-100). Thereafter,

*On December 20, 2023, Martin J. O’Malley was sworn in as Commissioner of Social Security, replacing Acting
Commissioner Kilolo Kijakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.
O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken
to continue this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C. §
405(g).
* Transcript citations refer to the Sealed Administrative Record [Doc. #3].

Plaintiff requested an administrative heating de novo before an Administrative Law Judge
(“ALJ”). (Tr. at 101-02.) On April 26, 2022, Plaintiff, along with her attorney, attended the
subsequent telephonic hearing, at which Plaintiff and an impartial vocational expert testified.
(Tr. at 11.) Following the hearing, the ALJ concluded that Plaintiff was not disabled within
the meaning of the Act (Tr. at 20), and on January 12, 2023, the Appeals Counsel denied
Plaintiffs request for review of that decision, thereby making the ALJ’s conclusion the
Commissionet’s final decision for purposes of judicial review (Ir. at 1-7).
I. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
AL] if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) Gnternal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
AL)’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3

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

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, 1n sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant
is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,
but falters at step three, ie., “lif a claimant’s impairment is not sufficiently severe to equal or
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on

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

that RFC, the claimant can “perform past relevant work’; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the clatmant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work expetience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carty its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
WI. DISCUSSION
In the present case, the AL] found that Plaintff had not engaged in “substantial gainful
activity” since her alleged onset date. The ALJ therefore concluded that Plaintiff met her
burden at step one of the sequential evaluation process. (Tr. at 14.) At step two, the AL]
further determined that Plaintiff suffered from the following severe impairments:
osteoarthritis; bursitis; fibromyalgia; depression; and anxiety[.|
(Tr. at 14.) The AL] found at step three that none of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 14-15.) Therefore, the AL] assessed
PlaintfPs RFC and determined that she could perform medium work with the following,
additional limitations:
[Plaintiff] can engage in frequent, but not constant, fingering, handling and
feeling; and [she] can do unskilled work of a routine and repetitive nature not
to exceed an SVP level of 2.

(T'r. at 15.) At step four of the analysis, the AL] determined, based on the above RFC and the
vocational expert’s testimony, that Plaintff was unable to perform any of her past relevant
work. (Tr. at 18-19.) However, the ALJ found at step five that, given Plaintiffs age, education,
work experience, and RFC, along with the testimony of the vocational expert regarding those
factors, Plaintiff could perform other jobs available in the national economy and therefore was
not disabled under the Act. (T'r. at 19-20.)
Plaintiff now raises two challenges to the ALJ’s RFC assessment. First, Plaintiff
contends that the RFC fails to properly account for her moderate limitations in concentration,
persistence, and pace. Second, she argues that the ALJ failed to consider the nature and extent
of Plaintiffs activities of daily living when relying on these activities as indicative of Plaintiffs
REC.
A. Concentration, persistence, and pace
Plaintiff first argues that the ALJ failed to account for Plaintiffs moderate limitations
in concentration, persistence, and pace in the RFC assessment in accordance with Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015). At step three of the sequential analysis, the ALJ in the
ptesent case determined that Plaintiff has moderate limitations in “concentrating, persisting,
ot maintaining pace.” In Mascio, the Fourth Circuit explained that, where moderate
limitations in concentration, persistence and pace ate reflected at step three, the AL] should
address those limitations in assessing the RFC or should explain why the limitations do not
affect the claimant’s ability to work. The Fourth Circuit specifically held that “an ALJ does
not account for a claimant’s limitations in concentration, persistence, and pace by restricting
the hypothetical question to simple, routine tasks or unskilled work.” Mascio, 780 F.3d at 638

(quotation omitted). This is because “the ability to perform simple tasks differs from the
ability to stay on task. Only the latter limitation would account for a claimant’s limitation in
concentration, persistence, or pace.” Id. The Fourth Circuit further noted that
[plethaps the AL] can explain why Mascio’s moderate limitation in
concentration, persistence, or pace at step three does not translate into a
limitation in Mascio’s residual functional capacity. For example, the AL] may
find that the concenttation, persistence, or pace limitation does not affect
Mascio’s ability to work, in which case it would have been appropriate to
exclude it from the hypothetical tendered to the vocational expert. But because
the ALJ here gave no explanation, a remand 1s in order.
Id. (internal citation omitted). However, as previously noted in other cases in this District,
the Fourth Circuit’s decision in Mascio
does not broadly dictate that a claimant’s moderate impairment in
concentration, persistence, or pace always translates into a limitation in the
RFC. Rather, Mascio underscores the ALJ’s duty to adequately review the
evidence and explain the decision. . . .
An ALJ may account for a claimant’s limitation with concentration, persistence,
or pace by restricting the claimant to simple, routine, unskilled work where the
recotd supports this conclusion, either through physician testimony, medical
soutce statements, consultative examinations, ot other evidence that is
sufficiently evident to the reviewing coutt.
Tolbert v. Colvin, 1:15CV437, 2016 WL 6956629, at *8 (M.D.N.C. Nov. 28, 2016); see also
Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017); Shinaberry v. Saul, 952 F.3d 113,
121-22 (4th Cir. 2020) (noting that Mascio “did not impose a categorical rule that requires an
AL} to always include moderate limitations in concentration, persistence, or pace as a specific
limitation in the RFC”).
Here, as in Mascio, the ALJ found moderate limitations in concentration, persistence,
ot pace at step three of the sequential analysis. (I'r. at 14-15.) In doing so, the AL] explained
as follows:

[Plaintiff] testified that she is “all over the place” when she does chores.
[Plaintiffs husband] also stated that [Plaintiff] does not handle stress as well as
she formerly did, and it takes her time to adjust to changes in routine. However,
her overall concentration is good. [She] can pay attention for 2 to 3 hours at a
time. She can do all personal financial functions, showing sufficient
persisten|[ce] to do multistep tasks.
(Tr. at 14.) Later in the sequential analysis, the ALJ formulated a mental RFC limiting Plaintiff
to “unskilled work of a routine and repetitive nature not to exceed an SVP level of 2.” (Tr. at
15.) When explaining the bases for these restrictions, the AL] recounted Plaintiffs testtmony
at length:
[Plaintiff] reported memory issues due to fibromyalgia; her husband will tell her
something one night and [Plaintiff] will forget it 24 hours later. She has to write
all of her appointments on a calendar. [Plaintiff] is prescribed medications for
depression and anxiety. These conditions have gotten worse as her hand pain
has gotten more severe. She usually remembers to do chores but she has too
many things going on at once.... She sees a medical doctor for anxiety and
depression, and not a psychiatrist.
(Tr. at 16.)
The mental limitation in the RFC to “unskilled work of a routine and repetitive nature,”
generally tracks the limitation at issue in Mascio.> Therefore, the question is whether the AL]
sufficiently explained the absence of further limitations elsewhere in his decision. Here, in
finding that Plaintiff had moderate limitations in concentration, persistence, or pace, the ALJ

° The REC limitation to work “not to exceed an SVP level of 2” does not appear to add a material limitation to
the RFC. The SVP is the specific vocational preparation level required for a given position, and gauges “the
amount of lapsed time it takes for a typical worker to learn the job’s duties.” Unskilled work corresponds to
an SVP of 1 or 2. SSR 00-4p. In contrast, the Reasoning Level indicates “the minimal ability a worker needs
to complete the job’s tasks themselves.” See Hann v. Colvin, No. 12-cv-06234-JCS, 2014 WL 1382063, at *16
(N.D. Cal. Mar. 28, 2014). In other words, “SVP ratings speak to the issue of the level of vocational
ptepatation necessary to perform the job, not directly to the issue of a job’s simplicity, which appears to be
mote squately addressed by the [Reasoning Level] ratings.” Hall—Grover v. Barnhart, No. 03-239-P-C, 2004
WL 1529283, at *4 (D. Me. April 30, 2004). In this case, the ALJ did not include a Reasoning Level in the RFC,
but the Court notes that all of the jobs identified by the AL] as representative positions do not exceed an SVP
of 2 or a Reasoning Level of 2.

specifically determined (1) that Plaintiffs “overall concentration is good,” (2) that she “can
pay attention for 2 to three hours at a time,” and (3) that she showed “sufficient persisten[ce]
to do multistep tasks.” (Tr. at 14.) Moreover, no medical source, including the State agency
psychological consultants, opined that Plaintiff was more than mildly limited in this area of
mental functioning, or in any area. Nevertheless, the ALJ expressly determined that the
consultants “did not adequately consider [Plaintiff's] subjective complaints of depression and
anxiety with inconsistent pace in doing chores,” as reflected in her hearing testimony. (Tr. at
18.) Accordingly, the ALJ found Plaintiffs depression and anxiety to be severe and included
RFC limitations to account for the effects of these impairments. In particular, the AL]
addressed Plaintiffs assertions that she “usually remembers to do chores but she has too many
things going on at once” and “takes . . . time to adjust to changes in routine” by limiting her
to routine, repetitive tasks. (See Tr. at 15, 16, 18.) While routine, repetitive tasks do not
generally account for pace limitations, in this context, they address Plaintiffs stated difficulty
choosing from among “too many” tasks by restricting her to a narrow range of duties and a
fixed routine. This is clear from the AL]’s decision, where:
° The AL)’s finding of moderate limitations in concentrating, persisting of
maintaining pace was specifically based on Plaintiffs testimony that “she is ‘all
over the place’ when she does chores” and “takes time to adjust to changes in
routine.” (T'r. at 14) (emphasis added).
° The ALJ’s summarized Plaintiffs testimony that “she usually remembers to
do chores but she has too many things going on at once.” (T'r. at 16) (emphasis
added).
° With respect to that testimony, Plaintiff was asked if she had difficulty
completing tasks, and responded, “T’m just all over the place. It’s like . . . it’s
like Pm thinking, well, I need to turn the dishwasher on, but I need to go take
my medicine first but, you know, it’s like so many things going on at once and
then you feel like you get nothing accomplished.” (Tr. at 50.)

° The AL] concluded that the opinions of the state agency psychological
consultants were only partly persuasive because “they did not adequately
consider [Plaintiff's] subjective complaints of depression and anxiety with
inconsistent pace in doing chores (see hearing testimony).” (Tr. at 18)
(emphasis added).
° The ALJ’s finding of moderate limitations in concentration, persistence, or
pace also specifically referenced Plaintiffs function report and the function
tepott provided by her husband, reflecting that it takes time for Plaintiff to
adjust to changes in routine, but her concentration is good, and she can pay
attention 2 to 3 hours at a time and follow instructions. (Tr. at 14, 211-12, 219-
20).
As noted above, the AL]’s decision to then limit Plaintiff to work of a “routine and
repetitive nature” is clearly tied to these specific concerns, and the Court can trace the AL]’s
reasoning. Overall, as set out above, “Mascio underscores the ALJ’s duty to adequately review
the evidence and explain the decision” in a manner that is sufficiently clear upon judicial
teview. Tolbert, 2016 WL 6956629, at *8. Because the ALJ in the present case did just that,
substantial evidence supports the mental RFC as written.
B. Activities of daily living
Plaintiff next contends that the ALJ erred by citing Plaintiffs activities of daily living
(“ADLs”) “as a treason to discount her impairment severity without accounting for
countervailing evidence regarding the nature and extent of her ADLs or explaining how the
ability to perform these activities is indicative of an ability to perform full-time competitive
work.” (PL’s Br. [Doc. #7] at 13.) Plaintiff acknowledges that the ALJ was entitled to consider
Plaintiffs daily activities when evaluating her symptoms and their impact on her functioning.
However, in Woods v. Berryhill, the Fourth Circuit explained that “[a]n ALJ may not consider
the type of activities a claimant can perform without also considering the extent to which she
10

can perform them.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); see also Arakas v.
Comm’s of Soc. Sec., 983 F.3d 83, 100 (4th Cir. 2020) (“Even assuming, as the AL] noted,
that Arakas’s daily activities have, at least at times, been somewhat greater than [she]. . .
generally reported, he provided no explanation as to how those particular activities ... showed
that [s]he could persist through an eight-hour workday.”’) (internal citations omitted); Lewis v.
Berryhill, 858 F.3d 858, 868, 0.3 (4th Cir. 2017) (“The ALJ points to Lewis’ ability to perform
incremental activities interrupted by periods of rest, such as ‘driv|ing] short distances of up to
30 miles, shop for groceries with the assistance of her mother or roommate, handle her
finances, and watch television.’ The ALJ’s conclusion that Lewis’ activities demonstrate she
is capable of work is unsupported by the record.”) (citation omitted); Brown v. Comm’r, 873
F.3d 251, 263 (4th Cir. 2017) [T]he AL] noted that Brown testified to daily activities of living
that included ‘cooking, driving, doing laundry, collecting coins, attending church and
shopping.’ ‘The AL] did not acknowledge the extent of those activities as described by Brown,
e.g., that he simply prepared meals in his microwave, could drive only short distances without
significant discomfort, only occasionally did laundry and looked at coins, and, by the time of
the second ALJ hearing, had discontinued regular attendance at church and limited his
shopping to just thirty minutes once a week. Moreover, the ALJ provided no explanation as
to how those particular activities—or any of the activities depicted by Brown—showed that
he could persist through an eight-hour workday.”); see also Fletcher v. Colvin, No. 1:14CV380,
2015 WL 4506699 at *5-8 (M.D.N.C. Jul. 23, 2015).
Notably, the AL] in the present case cited Plaintiffs activities not when assessing her
RFC, but when assessing her mental abilities at step three of the sequential analysis. In

11

particular, when considering Plaintiffs ability to understand, remember, or apply information,
the ALJ found that Plaintiff had a mild limitation based on the following abilities:
[Plaintiffs husband] reported on April 11, 2021 that [Plaintiff] follows written
instructions well, and she follows spoken instructions well if she understands
them. [Plaintiff] can do all personal financial functions, showing intact cognitive
function.
(Tr. at 15.) Similarly, when considering Plaintiffs ability to interact with others, the AL] found
that Plaintiff had a mild limitation based on the following abilities:
[Plaintiff] communicates with friends and family 2 to 3 times a week via
telephone, email and texting. She gets along fine with authority figures. Her
mood and behavior on June 1, 2021 were normal. Furthermore, examiners
observed on March 19, 2021 that she was alert, talkative, and pleasant, and that
her speech was normal.
(Tr. at 15.) Further, with respect to Plaintiffs ability to adapt and manage for herself, the ALJ
found that Plaintiff had a mild limitation based on the following abilities:
[Plaintiff] has no problems with personal care. She can do household cleaning
and laundry, and she shops in stores for groceries and clothes. [Plaintiff] can
handle all personal financial functions, and she regularly goes to the grocery
store, pharmacy|,] and doctor appointments.
(Tr. at 15.) All of these discussions were part of the analysis of Plaintiffs mental impairments,
and particularly involved the evaluation of her mental impairments in the broad areas of
functioning, based specifically on Plaintiffs testimony, function reports, and information in
the medical record.
Notably, the only discussion of Plaintiff's activities later in the sequential analysis arose
when recounting Plaintiffs testimony, which the AL] did at great length:
[Plaintiff] testified at the hearing that she has osteoarthritis and rheumatoid
atthritis, and that fibromyalgia also contributes to her pain. If she tries to do too
much, like scrubbing the bathtub or mopping the floor, she will develop
excruciating pain and her hands will swell. This swelling is worse if she overuses
12

her hands. [Plaintiff] tries not to wear blouses with buttons because her grip
strength is poor. She has trouble feeling with her hands at times. [Plaintiff]
estimated that she can lift 5 pounds. If she tries to carry too many grocery
bags|,] she will have pressure in her joints. She also ices and heats her hands an
average of 25 times per month. Regarding medication side effects, [Plaintiff]
testified that she has stomach upset and dizziness. The dizziness comes and
goes. She uses the restroom 5 to 6 times daily. [Plaintiff] stated that she has
daily pain in her knees, hips and elbows. She has trouble sleeping due to pain.
Her joints swell with use, her knees ate sore to the touch, and pain affects
[Plaintiff's] ability to walk or stand. When she walks down the aisle at Walmart
she has to rest before getting to the end. [Plaintiff] will lean on the cart when
she goes grocery shopping, but she does not use a cane or a walking stick yet.
She has discussed undergoing a Ketamine infusion as treatment, but her doctor
wants to save that as a last resort. The provider also stated that [Plaintiffs]
condition would get worse gradually, and that surgery would not help. Her hips
hutt when she sits. [Plaintiff] estimated that she can sit for an hour before
standing and stretching. She will sit in a recliner to take pressure off of her feet.
She will have to make herself get up, eat and take her medication because
fibromyalgia makes her fatigued. [Plaintiff] estimated that she sleeps 5 to 6
hours on a good night, and 3 to 4 hours on a bad night.
(Tr. at 16.)
Rather than overstating Plaintiffs activities, this excerpt catalogs Plaintiffs own
statements regarding the alleged limitations in Plaintffs ability to do housework and shop due
to her impairments, particularly pain in her hands and other joints with overuse and fatigue
from her fibromyalgia and medications. Plaintiffs treatment notes from throughout the
relevant time period also document her reports of joint pain and fatigue. (I'r. at 17-18.)
However, as noted by the ALJ, Plaintiff also retained consistently full strength, was encouraged
to exercise, and was referred to physical and occupational therapy. (Tr. at 17-18.) The AL]
detailed the treatment notes at length, reflecting that in February 2020, Plaintiff had positive
fibromyalgia areas but was encouraged to exercise; in October 2020 she had intact physical
function, could make a fist, “DIP and PIP joints were negative, and there were no SI joint
pains”; records from January 2021, February 2021, and March 2021 show she was doing well
13

and denied pain ot weakness, and in June 2021 she was feeling better overall; records from
August 2021 show some hand swelling, tenderness, and decreased strength, warranting the
handling and fingering limitations included in the RFC, but records from November 2021
showed improvement with exam findings “benign overall.” (Tr. at 17.)
The ALJ made clear that these findings, along with the findings of the State agency
medical consultants, guided his determination that Plaintiff remained capable of the medium
work and postural activities included in the RFC assessment. The State agency consultants at
both the initial and reconsideration levels opined that Plaintiff could perform medium work
with limited handling and fingering. (Tr. at 62-63, 71-72.) The AL] found these opinions
petsuasive, noting that “[t]he consultants supported their conclusions with ample citations to
the record, and their findings are consistent with evidence which shows intact physical
function.” (Ir. at 18.) The AL] then provided examples of the evidence he relied upon in
making this determination, including treatment notes demonstrating Plaintiffs ability to make
a fist, consistently full upper and lower extremity strength with a normal gait, improvement in
osteoatthritic and fibromyalgia symptoms with Cymbalta, and findings of normal muscle
strength. (Tr. at 18.) Notably, the ALJ also chronicled the relevant treatment notes in detail
in his decision. (See Tr. 16-18.) At no point in this decision did the ALJ cite Plaintiffs daily
activities as indicative of her physical functional abilities, let alone overstate them as in Woods,
Arakas, and similar cases. Accordingly, the Court finds no basis for remand.°

° The Court notes that the ALJ’s determination only covers the period to May 4, 2022, the date of the AL]’s
decision. Notably, Plaintiff's testimony reflects her concern that, according to her doctor, “there is no cute for
this,” and it will “just keep gradually getting worse.” (Tr. at 46.) This concern is also reflected in the Function
Reports, noting her fear of losing use of her hands and losing mobility in the future. (Tr. at 212, 220). If
Plaintiffs condition has worsened, ot if she has new evidence or testing covering the period after May 4, 2022,
she can, of course, file a new claim and present that information to the Agency for further consideration.
14

IT IS THEREFORE ORDERED that the Commissionet’s decision finding of no
disability is AFFIRMED, that Plaintiffs Dispositive Brief [Doc. #7] is DENIED, that
Defendant’s Motion for Judgment on the Pleadings [Doc. #9] is GRANTED, and that this
action is DISMISSED with prejudice.
This, the 234 day of September, 2024.

j se Peake
nited States Magistrate Judge

However, there is not a sufficient basis to vacate and remand the AL]’s decision for the period up to May 4,
2022, for the reasons set out above.
15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653779. Public record. Not legal advice.