Carter v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

MICHELLE DILLOW CARTER,

Claimant,

v. CIVIL ACTION NO. 1:19-00191

∗

ANDREW SAUL ,

Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Dwane L. Tinsley for submission of

findings and recommendations regarding disposition, pursuant to

28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to

the court his Proposed Findings and Recommendation (“PF&R”) on

January 2, 2020, in which he recommended that the district court

deny claimant’s request to reverse the Commissioner’s final

decision; grant defendant’s request to affirm the final

decision; affirm the final decision of the Commissioner; and

dismiss this case and remove it from the court’s docket.

I. Procedural Background

Claimant Michelle Dillow Carter (“claimant”), filed her

∗

Pursuant to Federal Rule of Civil Procedure 25(d), Andrew

Saul, Commissioner of Social Security, has been added as a

party. Nancy A. Berryhill’s term expired on June 4, 2019, and

she has been terminated as a party.

application for Title II benefits on April 6, 2015, alleging

disability since March 6, 2015, because of bipolar disorder,

depression, anxiety, severe mood disorders, endometriosis, and

migraines. (Tr. at 103.) Her claim was initially denied on

August 28, 2015, (Tr. at 133-37), and again upon reconsideration

on December 15, 2015. (Tr. at 143-49.) On April 16, 2015,

claimant filed a written request for hearing. (Tr. at 29.) An

administrative hearing was held on October 24, 2017 before the

Honorable David Read, Administrative Law Judge (“ALJ”). (Tr.

at 70-102). On December 22, 2017, the ALJ entered an

unfavorable decision. (Tr. at 44-58.) On February 23, 2018,

claimant sought review by the Appeals Council of the ALJ’s

decision. (Tr. at 206-07.) The ALJ’s decision became the final

decision of the Commissioner on March 1, 2019, when the Appeals

Council denied claimant’s request. (Tr. at 1-7.)

Claimant timely brought the present action on March 15,

2019, seeking judicial review of the administrative decision

pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) The Commissioner

filed an Answer, (ECF No. 7), and a transcript of the

administrative proceedings. (ECF No. 8.) Claimant subsequently

filed her Brief in Support of Complaint, (ECF No. 11), and in

response, the Commissioner filed his Brief in Support of

Defendant’s Decision. (ECF No. 13.) Claimant then filed her

Response to Brief in Support of Defendant’s Decision. (ECF No.

14.) Magistrate Judge Tinsley then submitted his PF&R,

affirming the final decision of the Commissioner, on January 2,

2020. (ECF No. 15.)

II. Claimant’s Objections to the PF&R

In accordance with the provisions of 28 U.S.C. § 636(b),

the parties were allotted fourteen days, plus three mailing

days, in which to file any objections to Magistrate Judge

Tinsley’s PF&R. The failure of any party to file such

objections constitutes a waiver of such party’s right to a de

novo review by this court. See Snyder v. Ridenour, 889 F.2d

1363 (4th Cir. 1989).

Claimant, by counsel, timely filed objections to the PF&R

on January 31, 2020. (ECF No. 18.) Claimant makes five

objections: 1) the ALJ’s residual functional capacity (“RFC”)

determination is not supported by substantial evidence; 2) the

ALJ’s determination of claimant’s credibility was deficient; 3)

the ALJ failed to properly evaluate medical opinion evidence,

and his assessment of each opinion’s weight is unsupported by

substantial evidence; 4) the ALJ failed to consider the

Vocational Expert’s (“VE”) assessment that an individual being

off task for more than 15% of an eight-hour workday precluded

employment; and 5) proper consideration of claimant’s newly

submitted evidence would likely have resulted in the issuance of

a favorable decision for claimant.

Defendant timely responded to claimant’s objections on

February 21, 2020. (ECF No. 20.) In his response, defendant

foremost argues that claimant’s objections should be rejected

because they reargue the same issues raised in her initial

brief, and are not new arguments. Defendant then responds to

each of claimant’s five objections, countering that: 1) the ALJ

had a substantial evidentiary basis for the RFC; 2) the ALJ

readily acknowledged that claimant’s physical and mental

conditions significantly limited her work-related abilities and

credited her complaints to the extent they enjoyed record

support; 3) the court should defer to the ALJ’s weighing of

medical opinion evidence because the ALJ identified sufficient

relevant evidence to support his conclusions on weighing

evidence; 4) the ALJ is not required to address every piece of

evidence, such as the Vocational Expert’s (“VE”) response to a

hypothetical question, in making a conclusion; and 5) the new

evidence submitted to the Appeals Council did not change the

outcome of the ALJ’s decision by making it unsupported by

substantial evidence.

III. Applicable Standards of Review

a. Standard of Review of Objections

Pursuant to Fed. R. Civ. P. 72(b), the Court must “make a

de novo determination upon the record . . . of any portion of

the magistrate judge's disposition to which specific written

objection has been made.” However, the Court is not required to

review, under a de novo or any other standard, the factual or

legal conclusions of the magistrate judge as to those portions

of the findings or recommendation to which no objections are

addressed. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). De

novo review is also not required “when a party makes general and

conclusory objections that do not direct the court to a specific

error in the magistrate's proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th

Cir. 1982); see also United States v. Midgette, 478 F.3d 616,

622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a

magistrate judge's report, a party must object to the finding or

recommendation on that issue with sufficient specificity so as

reasonably to alert the district court of the true ground for

the objection.”); McPherson v. Astrue, 605 F. Supp. 2d 744, 749

(S.D.W. Va. 2009) (“[F]ailure to file a specific objection

constitutes a waiver of the right to de novo review.”).

b. Standard of Review of the Commissioner’s Decision

It is not the province of a federal court to make

administrative disability decisions. Rather, de novo review of

the PF&R in disability cases is limited to determining whether

substantial evidence supports the Commissioner's conclusions.

See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see

also Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).

Evidence is substantial when, considering the record as a whole,

it might be deemed adequate to support a conclusion by a

reasonable mind, Richardson v. Perales, 402 U.S. 389, 401

(1971), or when it would be sufficient to refuse a directed

verdict in a jury trial. Smith v. Chater, 99 F.3d 635, 638 (4th

Cir. 1996). Substantial evidence is not a “large or

considerable amount of evidence,” Pierce v. Underwood, 487 U.S.

552, 565 (1988), but is more than a mere scintilla and somewhat

less than a preponderance. Perales, 402 U.S. at 401; Laws, 368

F.2d at 642. It is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019). If the Commissioner's

decision is supported by substantial evidence, it must be

affirmed. 42 U.S.C. § 405(g); Perales, 402 U.S. at 401.

IV. Discussion

a. Claimant’s Objections Warrant De Novo Review

Defendant contends that claimant’s objections should be

rejected because they reargue the same issues raised in her

initial brief, and are not new arguments. In support of this

proposition, he cites Nichols v. Commissioner of Social

Security, which stated that “[a] mere restatement of the

arguments raised in the summary judgment filings does not

constitute an ‘objection’ for the purposes of district court

review.” 100 F. Supp. 3d 487, 497 (E.D. Va. 2015). While

several district courts in Virginia and South Carolina have

followed this rule on occasion, this court declines to adopt it

in this case. Instead, this court finds the analysis in Howard

v. Saul more persuasive. See 408 F. Supp. 3d 721 (D.S.C. 2019).

There, the court declined to follow Nichols because “[t]he mere

fact that Howard argued this issue to the Magistrate Judge, who

rejected it, does not mean that he is precluded from objecting

to her finding on that issue. Such a procedural rule would have

the confusing effect of encouraging parties not to argue

disputed points of law in front of the Magistrate Judge . . .

[and] would undermine the court's duty to undertake a de novo

review.” Id. at 726–27. Additionally, just as in Howard, here

claimant has made specific objections to particular findings of

the PF&R, based on relevant arguable points of law. See id. at

726. When a claimant states clear objections based on points of

law, this court finds that it is the role of the district court

to review these objections de novo. See Mathews v. Weber, 423

U.S. 261, 270-71 (1976) (explaining the limited role of a

magistrate judge is to propose recommendations that guide the

district court’s review of the record and the key legal

arguments, and that “[t]he authority and the responsibility to

make an informed, final determination . . . remains with the

judge).

b. Sequential Evaluation Process

An individual unable “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” is considered to be disabled

and thus eligible for benefits. 42 U.S.C. § 423(d)(1)(A). The

ALJ uses a five-step sequential process in evaluating disability

claims. See 20 C.F.R. §§ 404.1520(a)-(g). If at any point of

this process the ALJ determines conclusively that a claimant is

or is not disabled, review does not proceed to the next step.

Id. § 404.1520(a)(4). The five steps include evaluations of

whether a claimant i) is working; ii) has a severe impairment;

iii) has an impairment that meets or equals the impairments in

Appendix 1 to Subpart P of the Administrative Regulations No. 4;

iv) can return to her past relevant work; and v) if not, whether

she can perform other work. See id. §§ 404.1520(a)-(g). “The

ultimate burden to prove disability lies on the claimant.”

Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985); see Bird

v. Comm’r, 699 F.3d 337, 340 (4th Cir. 2012) (“To establish

eligibility for . . . benefits, a claimant must show that he

became disabled before his [date last insured].”).

“If the first three steps do not lead to a conclusive

determination, the ALJ then assesses the claimant’s residual

functional capacity” (“RFC”) before proceeding to the fourth

step. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); see

20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant’s RFC

reflects “her ability to perform work despite her limitations.”

Patterson v. Comm’r, 846 F.3d 656, 659 (4th Cir. 2017); Monroe

v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (defining

claimant’s RFC as “the most the claimant can still do despite

physical and mental limitations that affect his ability to work”

(alterations and internal quotation marks omitted)); see 20

C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ “first

identif[ies] the individual’s functional limitations or

restrictions and assess[es] his or her work-related abilities on

a function-by-function basis,” then “define[s] the claimant’s

RFC in terms of the exertional levels of work.” Lewis v.

Berryhill, 858 F.3d 858, 862 (4th Cir. 2017). “In determining a

claimant’s RFC, the ALJ must consider all of the claimant’s

medically determinable impairments . . . including those not

labeled severe” as well as “all the claimant’s symptoms,

including pain, and the extent to which his symptoms can

reasonably be accepted as consistent with the objective medical

evidence and other evidence.” Monroe, 826 F.3d at 179

(alterations and internal quotation marks omitted); see 20

C.F.R. §§ 404.1545(a), 416.945(a).

When the claimant alleges a mental impairment, the first

three steps of the sequential evaluation process and the RFC

assessment are conducted using a “special technique” to

“evaluate the severity of [the] mental impairment[].” 20 C.F.R.

§§ 404.1520a(a), 416.920a(a); see Patterson, 846 F.3d at 659.

Considering the claimant’s “pertinent symptoms, signs, and

laboratory findings,” the ALJ determines whether the claimant

has “a medically determinable mental impairment(s)” and “rate[s]

the degree of functional limitation resulting from the

impairment(s)” according to certain criteria. 20 C.F.R. §§

404.1520a(b), 416.920a(b); see id. §§ 404.1520a(c), 416.920a(c).

“Next, the ALJ must determine if the mental impairment is

severe, and if so, whether it qualifies as a listed impairment.”

Patterson, 846 F.3d at 659; see 20 C.F.R. §§ 404.1520a(d),

416.920a(d). “If the mental impairment is severe but is not a

listed impairment, the ALJ must assess the claimant’s RFC in

light of how the impairment constrains the claimant’s work

abilities.” Patterson, 846 F.3d at 659.

After assessing the claimant’s RFC, the ALJ at the fourth

step determines whether the claimant has the RFC to perform the

requirements of her past relevant work. 20 C.F.R. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv); Monroe, 826 F.3d at 180.

If she does not, then “the ALJ proceeds to step five.” Lewis,

858 F.3d at 862.

The fifth and final step requires the ALJ to consider the

claimant’s RFC, age, education, and work experience in order to

determine whether she can make an adjustment to other work. 20

C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At this point,

the burden shifts to the Commissioner to prove, by a

preponderance of the evidence, A) that claimant, considering

claimant’s age, education, work experience, skills, and physical

shortcomings, has the capacity to perform an alternative job,

and B) that this alternative job exists in significant numbers

in the national economy. Lewis, 858 F.3d at 862; McLamore v.

Weinberger, 538 F.2d 572, 574 (4th Cir. 1976). “The

Commissioner typically offers this evidence through the

testimony of a vocational expert responding to a hypothetical

that incorporates the claimant’s limitations.” Mascio, 780 F.3d

at 635. If the claimant can perform other work, the ALJ will

find her “not disabled.” 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If she cannot perform other work, the ALJ

will find her “disabled.” Id.

c. The ALJ’s Conclusions

Applying the sequential evaluation process in this case,

the ALJ concluded that claimant satisfied the first step, as she

had not engaged in substantial gainful activity since the

alleged onset of her disability. (Tr. at 49–50.) He next found

that claimant’s right shoulder rotator cuff tendonitis, bipolar

disorder, depressive disorder, and anxiety disorder constituted

“severe” impairments. (Tr. at 50.) However, he found that

those physical and mental impairments, or a combination thereof,

failed to meet or medically equal any of the impairments listed

in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 50–52.)

Upon assessing claimant’s RFC, the ALJ determined that claimant

is able “to perform medium work . . . except [she] may

frequently perform reaching with the right dominant upper

extremity.” (Tr. at 52.) The ALJ seemingly clarified this

confusingly-stated RFC later in his formal decision by twice

stating that the objective evidence supports a conclusion that

claimant is capable of performing “medium exertion with reaching

limitation.” (Tr. at 53, 56.) The ALJ also noted in the RFC

that claimant “is limited to occasional interaction with the

public.” (Tr. at 52.)

The ALJ concluded that given the limitations imposed by the

claimant’s RFC, she was unable to perform her past relevant

work, satisfying the fourth step.1 (Tr. at 57.) He noted that

claimant is “a younger individual” with “at least a high school

education” and that “[t]ransferability of job skills [was] not

1 The VE testified that based on the hypothetical RFC given,

claimant could perform her past work. (Tr. at 57, 100.)

However, the ALJ determined that claimant’s past relevant work

involved a significant amount of interaction with the public,

and thus found that claimant could not perform her past relevant

work. (Tr. at 57.)

material to the determination of disability.” (Tr. at 57.)

Because the ALJ determined that claimant was unable to perform

the full range of medium work, he enlisted a VE to aid him in

determining the extent to which claimant’s limitations precluded

her from working. (Tr. at 57.) Specifically, the ALJ asked the

VE whether a hypothetical person of the same age, education, and

work experience as claimant with the following functional

capacities could perform work: “limited to medium work; also

limited to frequent reaching with the right dominant arm; and

limited to occasional interaction with the public.” (Tr. at

100.) The VE then testified that, given these limitations,

claimant is capable of working as a janitor, kitchen helper, or

stock clerk. (Tr. at 57–58.) The VE further testified that

there are approximately 1,140,000 of these suitable jobs

existing nationally. (Tr. at 58.) As a result, the ALJ

concluded that claimant did not meet the requirements of the

fifth step and therefore was not “under a disability . . . from

March 6, 2015, through the date of this decision.” (Tr. at 58.)

d. Analysis of Objection 1

The RFC, as stated in the ALJ’s Notice of Decision, is that

“claimant has the residual functional capacity to

perform medium work . . . except may frequently

perform reaching with the right dominant upper

extremity. She is limited to occasional interaction

with the public.”

(Tr. at 52.) Claimant objects that the RFC’s findings as to her

physical impairments and her mental impairments are not

supported by substantial evidence.

i. Physical Impairments and the RFC

Claimant argues that the RFC allowing frequent reaching

with the right arm is inconsistent with the ALJ’s finding that

claimant suffers from “severe” right shoulder rotator cuff

tendinitis. This argument fails. A finding that an impairment

is “severe” means that the impairment “cause[s] more than

minimal limitations in the claimant’s ability to perform basic

work activities,” (Tr. at 50), and this finding is relevant at

step two of the sequential evaluation process. See 42 U.S.C. §§

404.1520(a)-(g). Finding that claimant suffers from a severe

impairment in her arm does not prohibit a determination at step

four that claimant is able to perform frequent reaching with

that same arm. See, e.g., Lance v. Colvin, 2017 WL 677664, at

*2 (M.D. Fla. Feb. 21, 2017) (finding a “severe” impairment of

partial right arm paralysis at step ii while also finding in the

RFC that “claimant can frequently reach with the right dominant

arm”); Martinez v. Astrue, 2012 WL 3580675, at *6 (D.S.C. July

30, 2012) (finding a “severe” impairment of right shoulder

arthritis at step ii while also finding an RFC of “frequent

reaching in all directions”). Furthermore, “frequent reaching”

in an RFC context still signifies that an ALJ is instituting a

limitation upon the work that a claimant may perform, as

“frequent” is a limitation against jobs that would involve

“constant” reaching. See DOT No. 311.472–010; see also Long v.

Astrue, 2012 WL 5471084, at *1 (C.D. Cal. Nov. 8, 2012) (“[A]n

activity is ‘frequent’ if it exists one-third to two-thirds of

the time, and it is ‘constant’ if it exists two-thirds or more

of the time.”). Thus, the ALJ’s finding that claimant has

“severe” right shoulder rotator cuff tendinitis, (Tr. at 50), is

in fact fully consistent with the RFC’s conclusion that claimant

may “frequently perform reaching with the right dominant upper

extremity,” (Tr. at 52), which is also consistent with later

statements in the ALJ’s decision that claimant is capable of

performing work requiring “medium exertion with reaching

limitation.” (Tr. at 53, 56.)

Now, the question is whether these consistent

determinations regarding claimant’s physical impairments are

supported by substantial evidence. The court finds that they

are. The ALJ, in concluding that claimant possessed the

strength to do medium work and was capable of frequent reaching

with her right arm, based this finding on substantial evidence

in the record. The ALJ gave significant weight to the

assessment by Dr. Nutter, which stated that claimant’s range of

motion was only slightly diminished and that her strength was

normal. (Tr. at 53.) The ALJ then pointed to additional

medical examinations that showed claimant’s range of motion as

either normal or limited, (Tr. at 53), and that she

“demonstrated fair strength” in her arm. The ALJ also noted

that claimant complained of pain in her right shoulder, but only

sought out treatment six months after her injury, and claimant

was not interested in surgery. (Tr. at 53). The ALJ therefore

concluded that in light of these facts, “her symptoms must be

fairly well controlled” with the conservative treatment of

physical therapy.2 (Tr. at 53). While the ALJ repeated that

“claimant’s right shoulder tendinitis is severe,” he followed

that by explaining how the objective evidence and the success of

the conservative physical therapy treatment demonstrated that

claimant is able to perform medium work with a reaching

limitation. (Tr. at 56.)

The RFC assessment “must include a narrative discussion

describing how the evidence supports each conclusion, citing

specific medical facts . . . and nonmedical evidence.” Ladda v.

Berryhill, 749 F. App’x 166, 172 (4th Cir. 2018) (quoting SSR

96-8p (July 2, 1996)). Here, the ALJ reviewed the medical

evidence related to claimant’s right shoulder as well as her

statements about her symptoms, and weighed the evidence

accordingly. The ALJ determined that claimant suffered only

2 The ALJ also noted that the medical evidence indicated some

improvement in the condition of claimant’s shoulder following

physical therapy. (Tr. at 53.)

limited range of motion impairment and retained normal strength.

The ALJ’s RFC finding that claimant possessed the strength to do

medium work and the ability to frequently reach with her right

arm is, therefore, supported by substantial evidence.

ii. Mental Impairments and the RFC

Claimant objects that the ALJ did not properly evaluate her

mental impairments in constructing the RFC. Specifically,

claimant argues that the ALJ did not state a specific basis as

to why the RFC reflected a limitation of occasional interaction

with the public and no other limitations tied to claimant’s

mental impairments. This argument also fails, as the ALJ

extensively reviewed claimant’s medical records, medical opinion

evidence, and claimant’s own activities in support of his RFC

determination.

The ALJ first summarized claimant’s mental health treatment

records. He noted the repeated reports in claimant’s mental

health records that her mental status examinations were largely

normal: Dr. Webb stated that claimant’s “mental status

examinations were essentially normal”; Ms. Jennings “found the

claimant’s immediate, recent, and remote memories were all

within normal . . . [and] did not indicate limitation in social

functioning”3; Dr. Robertson found claimant’s “intellectual

3 The ALJ stated he gave “significant weight” to this assessment.

(Tr. at 54.)

functioning was average . . . [and there were] no problems with

memory or concentration”; Ms. Herman noted “no problems with

memory or concentration” and that “claimant’s depression

appeared to be only mild to moderate”; even following claimant’s

reports of increased mental symptoms, Dr. Robertson again found

in both 2016 and in 2017 that claimant’s “mental status

examinations were consistently normal”; and Dr. Steward stated

“claimant’s intellectual functioning was above average [and] her

memory and concentration were within normal.” (Tr. at 53-55.)

The ALJ next highlighted how the fact claimant prepared simple

meals, followed instructions and paid bills, shopped online,

cleaned her home, and travelled on vacations demonstrated that

her activities were “not markedly limited.” (Tr. at 55.)

Then, addressing the medical opinion evidence, the ALJ

summarized the opinions of Dr. Robertson, Ms. Autrey, and Ms.

Wyrick – that claimant had mild limitations in managing herself,

moderate limitations in understanding and in memory, and extreme

limitations in interacting with others and in concentration.

But the ALJ explained he gave “only partial weight” to these

opinions because they “are not consistent with treatment records

and psychological testing which consistently indicate good

memory, good concentration, and that [claimant] interacted well

with others.” (Tr. at 55.) As to the opinion of Dr. Steward

that claimant was totally disabled and her prognosis appeared

poor, the ALJ stated he gave “little weight” to this conclusion

because the opinion contained minimal objective evidence,

evidence which on the contrary showed above average

intelligence, good ability to concentration [sic], and no

significant deficits in memory.” (Tr. at 56.) And the ALJ also

gave “little weight” to the evaluations of the state agency

psychological consultants, Dr. Bickham and Dr. Richard,4 because

“there [is] no objective evidence to support th[at] Claimant is

limited to simple work,” as she “exhibited no significant

limitations,” “reported she is able to follow instructions,” and

the ALJ stated he “observed no difficulties with concentration”

at the hearing. (Tr. at 56.) Lastly, the ALJ considered

claimant’s testimony as to her mental impairments, but gave her

testimony regarding the “intensity, persistence and limiting

effects of [her] symptoms” little weight because he found it to

be “not entirely consistent” with the medical evidence. (Tr. at

52). However, the ALJ did took account of claimant’s testimony

that she “lost her job [because] her behavior had changed” and

that she was unable to “get along well with others” at work, as

this testimony substantially supports the RFC provision limiting

claimant’s interaction with the public. (Tr. at 52.)

4 Dr. Bickham and Dr. Richard opined that claimant was limited to

simple work and limited, superficial contact with others. (Tr.

at 56.)

The ALJ appears to have given far more weight to the

medical record evidence than he gave to the medical opinion

evidence in crafting the RFC. The ALJ is entitled to do so, and

substantiated his decision by explaining each time why he gave

only partial or limited weight to the opinion evidence. See

Dunn v. Colvin, 607 F. App’x 264, 267 (4th Cir. 2015) (“[A]n

ALJ’s determination as to the weight to be assigned to a medical

opinion generally will not be disturbed absent some indication

that the ALJ has dredged up specious inconsistencies or has

failed to give a sufficient reason for the weight afforded a

particular opinion”); Craig v. Chater, 76 F.3d 585, 590 (4th

Cir. 1996) (“if a physician’s opinion is not supported by

clinical evidence . . . it should be accorded significantly less

weight”). The ALJ explained that “[r]estricting the claimant to

performing the range of work described [in the RFC] adequately

addressed the location, duration, frequency and intensity” of

her mental impairments. (Tr. at 55.) Thus, following the

recitation of the medical records, the opinion evidence, and

claimant’s own activities, the ALJ considered all that evidence

in concluding that claimant retained the capacity to perform

medium work activities with the limitation of occasional

interaction with the public.

Claimant may not agree with the ALJ’s conclusion or how he

weighed the evidence before him. However, the ALJ is entitled

to weigh the evidence before him. See Dunn, 607 F. App’x at

267; Craig, 76 F.3d at 590; see also id. at 589 (“In reviewing

for substantial evidence, [the court] do[es] not undertake to

reweigh conflicting evidence, make credibility determinations,

or substitute [its] judgment for that of the [ALJ].”).

Moreover, it is clear that the ALJ met his burden by properly

considering the evidence in the record, weighing that evidence,

and using that weighted evidence as the basis for the RFC. The

RFC stating that claimant’s mental impairments warranted a

limitation of occasional interaction with the public, and no

additional limitations, was therefore supported by substantial

evidence. Claimant’s first objection is OVERRULED.

e. Analysis of Objection 2

Claimant next objects that the ALJ’s determination of

claimant’s credibility was deficient because it did not identify

with specificity the evidence which supported his determination.

In his decision, the ALJ summarized claimant’s testimony

regarding her impairments and their effects, but explained that

he discounted claimant’s testimony because her statements were

“not entirely consistent with the medical evidence and other

evidence in the record.” (Tr. at 52.) The ALJ then wrote that

the “objective findings do not corroborate the allegations to

the disabling extent as asserted by the claimant,” (Tr. at 53),

before spending several pages recounting the objective medical

findings and opinion evidence given by physicians examining and

treating claimant. (Tr. at 53-56.) The ALJ concluded by

stating that “[i]n summary, [Claimant’s] subjective complaints

and alleged limitations are not fully persuasive and the record

as a whole establishes that she retains the capacity to perform

work activities with limitations as set forth [in the RFC

assessment].” (Tr. at 56.)

As part of the RFC assessment, the ALJ must evaluate a

claimant’s “statements and symptoms regarding the limitations

caused by her impairments.” Linares v. Colvin, 2015 WL 4389533,

at *5 (W.D.N.C. July 17, 2015) (citing 20 C.F.R. §§ 404.1529,

416.929; Craig, 76 F.3d at 593–96). A claimant’s symptoms “must

be supported by objective medical evidence showing the existence

of a medical impairment which could reasonably be expected to

produce the [symptoms], in the amount and degree, alleged by the

claimant.” Johnson, 434 F.3d at 657 (quoting Craig, 76 F.3d at

591). There is no requirement that the ALJ reference or analyze

how claimant’s testimony compares to every individual item of

objective medical evidence; instead, the ALJ must simply “assess

whether the claimant’s subjective symptom statements are

consistent with the record as a whole.” Vass v. Berryhill, 2018

WL 4737236, at *6 n.4 (W.D. Va. June 12, 2018), adopted by 2018

WL 4704058 (W.D. Va. Sept. 30, 2018). “When considering whether

an ALJ's credibility determinations are supported by substantial

evidence, the Court does not replace its own credibility

assessments for those of the ALJ; rather, the Court studies the

evidence to determine if it is sufficient to support the ALJ's

conclusions.” Coleman v. Colvin, 2015 WL 764023, at *15 (S.D.W.

Va. Feb. 23, 2015). Here, the ALJ satisfied this requirement in

his decision and RFC finding, as he thoroughly reviewed

claimant’s subjective symptom statements in light of the

objective medical evidence. The ALJ’s decision to give little

weight to claimant’s own testimony due to contradictory

objective medical evidence is, therefore, supported by

substantial evidence. Claimant’s second objection is OVERRULED.

f. Analysis of Objection 3

Claimant’s third objection is that the ALJ failed to

properly evaluate medical opinion evidence pursuant to 20 C.F.R.

§ 404.1527, and that his assessment of each opinion’s weight is

unsupported by substantial evidence. 20 C.F.R. § 404.1527

guides the evaluation of medical opinion evidence by giving six

factors an ALJ should consider in deciding how much weight to

give to any medical opinion: 1) whether the medical opinion of

a source has personally examined claimant; 2) the length and

frequency of the source’s examinations of claimant; 3) the

quantity of relevant evidence supporting the source’s opinion;

4) the consistency of the source’s opinion with the record as a

whole; 5) whether the source is specialized in the area relevant

to the medical opinion given; and 6) other factors which tend to

support or contradict the medical opinion. 20 C.F.R. §§

404.1527(c)(1)-(6). Additionally, “if a physician’s opinion is

not supported by clinical evidence or if it is inconsistent with

other substantial evidence, it should be accorded significantly

less weight.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.

2001) (quoting Craig, 76 F.3d at 590). But “a treating

physician’s opinion on the nature and severity of the claimed

impairment is entitled to controlling weight if it is well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in the record.” Id. (citing 20 C.F.R. §

416.927); see also Titles II & XVI: Assessing Residual

Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2,

1996) (“The RFC assessment must always consider and address

medical source opinions. If the RFC assessment conflicts with an

opinion from a medical source, the adjudicator must explain why

the opinion was not adopted.”). “If . . . medical opinions

conflict internally with each other or other evidence, the ALJ

must evaluate the opinions and assign them respective weight to

properly analyze the evidence involved.” 20 C.F.R. §§

404.1527(c)(2)-(6),(e), 416.927(c)(2)-(6),(e). An ALJ’s

determination “as to the weight to be assigned to a medical

opinion generally will not be disturbed absent some indication

that the ALJ has dredged up ‘specious inconsistencies’ . . . or

has failed to give a sufficient reason for the weight afforded a

particular opinion.” Dunn v. Colvin, 607 F. App'x 264, 267 (4th

Cir. 2015) (internal citations omitted).

Claimant objects to the weights given to the medical

opinions of Dr. Nutter, Ms. Jennings, Dr. Robertson and Ms.

Autrey, Dr. Steward, Drs. Binder and Withrow, and Drs. Bickham

and Richard. Upon review, the court finds that the ALJ properly

considered each opinion, gave each a weight based upon whether

the opinion was supported by the objective medical record, and

explained in each case why he gave the opinion the weight he

did. An opinion-by-opinion analysis of the ALJ’s weight

determinations demonstrates that the ALJ’s conclusions here are

supported by substantial evidence.

The ALJ first reviewed the opinion of Dr. Nutter. (Tr. at

53). The ALJ summarized Dr. Nutter’s opinion, finding normal

muscle strength and only a slight decrease in range of motion.

(Tr. at 53.) The ALJ gave this opinion “significant weight”

because it “is supported by the objective findings,” such as

claimant’s ability “to write and pick up coins without

difficulty.” (Tr. at 53.) Following this weighing of Dr.

Nutter’s opinion, the ALJ next summarized the medical tests and

reports by Drs. Southers and Crews (finding that claimant had

fair strength with limited but improving range of motion

following physical therapy). (Tr. at 53.) The reports by Drs.

Southers and Crews can thus also be understood as part of the

“objective findings” the ALJ referred to in giving “significant

weight” to Dr. Nutter’s opinion. (Tr. at 53.)

The ALJ next gave the assessment by Ms. Jennings, that

claimant did not indicate limitation in social functioning,

“significant weight” because it was “supported by mental status

examination.” (Tr. at 54.) The ALJ stated this weight and

rationale after describing the psychological evaluation Ms.

Jennings performed, which in relevant part found no problems

with claimant’s memory and concentration. (Tr. at 54.) Ms.

Jennings did indicate that claimant appeared manic, anxious, and

emotional. (Tr. at 54, 471.) However, this was but a part of

Ms. Jennings’ findings, as Ms. Jennings also noted in her mental

status examination of claimant that claimant was appropriately

dressed, had a cooperative attitude, displayed correct social

judgment, and reported no delusional or obsessive/compulsive

behaviors. (Tr. at 471.) Claimant’s argument essentially

amounts to a disagreement with the way the ALJ resolved

conflicts in the evidence, which is the exclusive province of

the ALJ. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996)

(“The duty to resolve conflicts in the evidence rests with the

ALJ, not with a reviewing court.”). Here, the evidence

contained in Ms. Jennings’ mental status examination and

referred to by the ALJ is sufficient to find that substantial

evidence supports the ALJ’s decision how to weigh Ms. Jennings’

assessment.

Dr. Robertson and Ms. Autrey opined that claimant satisfied

three mental impairment listings in 20 C.F.R. Part 404, Subpart

P, Appendix 1. (See Tr. at 641–44.) As to these opinions by Dr.

Robertson and Ms. Autrey, the ALJ gave these “only partial

weight . . . [because] they are not consistent with treatment

records and psychological testing which consistently indicate

good memory, good concentration, and that she interacted well

with others . . . [and] she is able to follow instructions.”

(Tr. at 55.) In making this determination, the ALJ cited

multiple medical records5 and had summarized these and other

medical records in the preceding paragraphs of his decision

which documented that claimant’s “intellectual functioning was

above average”, she had “no problems with memory or

concentration,” “she related well,” her “depression appeared to

be only mild to moderate,” had “consistently normal” mental

status examinations, she said “she was in a good place and doing

better,” and took several vacations with her family. (Tr. at

54-55). Therefore, there is clearly substantial evidence

supporting the ALJ’s decision to give little weight to Dr.

5 Exhibits 4F, 5F, 6E, 10F, 12F, 15F, 16F, and 23F. (Tr. at 55.)

Robertson and Ms. Autrey’s opinions. Moreover, in any event,

Dr. Robertson and Ms. Autrey’s opinions relating to the Listings

are not entitled to controlling weight because whether an

individual's impairment meets or is equivalent in severity to

the requirements of any Listing is an opinion on an issue

reserved to the ALJ. See Coleman v. Colvin, 2015 WL 764023, at

*17 (S.D.W. Va. Feb. 23, 2015).

The ALJ’s decision to give little weight to Dr. Steward’s

opinion that claimant was “permanently and totally disabled,”

(Tr. at 56), is likewise supported both by law and by

substantial evidence. The ALJ explained that he discounted Dr.

Steward’s opinion because, in part, Dr. Steward “lack[ed]

program knowledge” and because his report included “minimal

objective evidence.” (Tr. at 56). The ALJ properly discounted

the opinion because “program knowledge” is a factor that the ALJ

may consider when evaluating opinion evidence. See Ahmad v.

Berryhill, 2019 WL 1233854, at *11 (E.D. Va. Mar. 15, 2019).

And again, medical opinions that encroach on issues reserved to

the ALJ – such as the ultimate determination of disability – are

not entitled to significant weight. See, e.g., Coleman, 2015 WL

764023, at *18. Additionally, the ALJ pointed to specific

evidence contradictory to Dr. Steward’s conclusion, stating that

Dr. Steward’s opinion is “inconsistent with the objective

testing, which showed above average intelligence, good ability

to hold concentration, and no significant deficits in memory.”6

(Tr. at 56.) Therefore, there is substantial evidence

supporting the ALJ’s decision to give little weight to Dr.

Steward’s opinion.7

Lastly on the opinion evidence front, the ALJ gave “partial

weight” to the opinions of state agency medical consultants Dr.

Binder and Dr. Withrow, who opined that claimant had no physical

impairments that rose to a severe level and, correspondingly,

that she had no exertional or non-exertional physical

limitations. (Tr. at 56.) The ALJ’s determination to give

partial weight to the opinions is supported by substantial

6 See also previously discussed medical records documenting that

claimant’s “intellectual functioning was above average”, she had

“no problems with memory or concentration,” “she related well,”

her “depression appeared to be only mild to moderate,” had

“consistently normal” mental status examinations, she said “she

was in a good place and doing better,” and took several

vacations with her family. (Tr. at 54-55).

7 The portion of the ALJ’s rationale where he discounted Dr.

Steward’s opinion because it included only “minimal objective

evidence” is not supported by substantial evidence. The ALJ

gave no explanation of why he concluded that Dr. Steward’s

testing contained minimal objective evidence. On the contrary,

Dr. Steward appeared to base his findings on objective

psychiatric testing. (See Tr. at 562-69.) Additionally, the

new interrogatories by Dr. Robertson and Ms. Autrey support that

Dr. Steward’s testing methods provide the “most objective

evidence possible in psychiatry.” (Tr. at 12-13.) However, the

ALJ’s other reasons for giving only little weight to Dr.

Steward’s opinion remain supported by substantial evidence. See

supra. Therefore, the conclusion remains that there is

substantial evidence supporting the ALJ’s decision to give

little weight to Dr. Steward’s opinion, and thus it shall be

affirmed. 42 U.S.C. § 405(g); Perales, 402 U.S. at 401.

evidence given the ALJ’s previous documentation of claimant’s

limited range of motion, pain, and tenderness in her right

shoulder, which shows that there is some physical impairment

that would create a RFC limitation. (Tr. at 52-53). In any

case, claimant appears to object that the ALJ rejected these

opinions “simply . . . because [the ALJ] believes they are

contrary to his own observations.” (ECF No. 18, at 15). This

objection is odd because it objects to a finding the ALJ made in

claimant’s favor. The court need not consider this objection

any further, as “[a]n ALJ's error is harmless when it does not

substantively prejudice the claimant.” Mascio v. Colvin, 780

F.3d 632, 639 (4th Cir. 2015).

This court in Coleman explained the court’s role in

reviewing ALJ evaluation of medical opinion evidence when it

stated:

[O]pinions on issues reserved to the Commissioner,

such as whether a claimant is unemployable or unable

to work, are not entitled to controlling weight.

Similarly, opinions of treating physicians that are

not well-supported by diagnostic and clinical

findings, or are inconsistent with other substantial

evidence, are not entitled to controlling weight.

Instead, these opinions are assessed in relation to

the record as a whole to determine their consistency

and supportability. When there are inconsistencies in

the record, the ALJ is charged with the duty of

resolving the conflicts. If the ALJ completes this

task in accordance with the applicable rules and

regulations, and the ultimate finding is supported by

evidence which a reasoning mind would accept as

sufficient, the Court may not substitute its judgment

for that of the ALJ.

2015 WL 764023, at *18. Here, the ALJ’s decisions on the weight

to give medical opinion evidence follow this prescribed

approach. A review of the ALJ’s decision substantiates that the

ALJ meticulously reviewed the evidence, including both the

objective medical reports and the opinions of Dr. Nutter, Ms.

Jennings, Dr. Robertson and Ms. Autrey, Dr. Steward, and Dr.

Binder and Dr. Withrow, and identified conflicts or conformities

between each of those opinions and the rest of claimant’s

medical record. Therefore, having concluded that the opinions

of Dr. Robertson and Ms. Autrey, Dr. Steward, and Dr. Binder and

Dr. Withrow on the extent of claimant’s impairments or her

disability were incompatible with the objective clinical

findings, the ALJ exercised his right to give little weight to

these opinions, and to give greater weight to the opinions of

Dr. Nutter and Ms. Jennings. In sum, the ALJ’s weighing of the

opinion evidence was supported by substantial evidence because

the ALJ explained why, based on the overall medical record, he

gave more or less weight to the challenged opinions. Claimant’s

third objection is OVERRULED.

g. Analysis of Objection 4

Claimant objects that the ALJ failed to properly consider

the VE’s assessment. During claimant’s hearing, the ALJ posed

two hypotheticals to the VE. (Tr. at 100-01.) The ALJ first

asked the VE whether a hypothetical individual with the same

age, education, and work experience as claimant, and who also is

limited to medium work, limited to frequent reaching with the

right dominant arm, and limited to occasional interaction with

the public – claimant’s RFC – could perform claimant’s past work

as a billing clerk and secretary. (Tr. at 100.) The VE

responded that yes, someone with that functional capacity could

perform the past work.8 (Tr. at 100.) The ALJ also asked the VE

if there was work (other than claimant’s past work) that was

available in the national economy and capable of being performed

by someone with the hypothetical functional capacity. (Tr. at

100.) The VE testified that such a hypothetical person could

work as a janitor, kitchen helper, or stock clerk, and that

approximately 1,140,000 of these jobs exist nationally. (Tr. at

100-01.) Claimant objects that this hypothetical is flawed

because of the ALJ’s “grossly inadequate” RFC. (ECF No. 18, at

8 Generally, a finding that claimant could perform her past work

would bar an overall finding of disability. See 20 C.F.R. §§

404.1520(a)-(g). However, here the ALJ explained that he

disagreed with the VE’s assessment because he found that

claimant’s past work demanded a “significant amount of

interaction with the public,” (Tr. at 57), while the VE

testified that the past work required only “occasional”

interaction with the public. (Tr. at 100.) Claimant does not

object to the ALJ’s decision to disagree with the VE and find

that claimant was not able to perform her past work. The ALJ

heard claimant testify regarding her past work. (Tr. at 76-80,

93-97.) Based on that testimony, substantial evidence exists

for the ALJ to find that claimant’s past work required

substantial interaction with the public.

15.) However, this objection to the RFC has previously been

dealt with and overruled.

Claimant’s primary objection regarding the VE testimony

involves the second hypothetical the ALJ posed to the VE. The

second hypothetical asked the VE whether “if the individual had

the same limitations as the first hypothetical, but would be off

task for more than 15 percent of the time in an eight-hour

workday,” would that individual be able to do claimant’s past

work or other work in the national economy. (Tr. at 101.) The

VE answered that such a hypothetical individual would not be

able to work. (Tr. at 101.) In his decision, the ALJ never

discussed this hypothetical or the VE’s response.

Claimant objects to this failure to consider the VE’s

testimony on this point, and the failure to consider claimant’s

previous employer’s questionnaire which indicated that

claimant’s productivity “was 70% of that of other employees.”

(Tr. at 244-45.) However, the ALJ made no error in declining to

consider these points, as an ALJ need not rely on VE testimony

that relates to impairments the ALJ determines to be “not severe

or not credible.” See McPherson v. Astrue, 605 F. Supp. 2d 744,

761 (S.D.W. Va. 2009); see also Woodlief v. Berryhill, 2017 WL

9478528, at *5 (E.D.N.C. Aug. 4, 2017) (“An ALJ is permitted to

ask a VE multiple hypotheticals . . . and it is entirely

permissible for the ALJ to determine after the hearing which

hypothetical is supported by the record.”). Moreover, an ALJ is

“not required to specifically discuss and analyze every piece of

evidence in the case in [his] narrative opinion[] so long as it

is possible for the reviewing court to realize that all relevant

evidence was considered, though not written about, in reaching

the ultimate decision.” Marshall v. Astrue, 2013 WL 1194764, at

*4 (D.S.C. Mar. 21, 2013) (quoting Mellon v. Astrue, 2009 WL

2777653, at *13 (D.S.C. Aug. 31, 2009)). Therefore, if

substantial evidence supports the ALJ’s determination that the

second hypothetical included a limitation not supported by the

record considered as a whole, then the ALJ committed no error by

not specifically discussing either the VE’s answer to the second

hypothetical in his decision or the former employer’s responses

to the questionnaire.

Here, such substantial evidence exists. Being off task

primarily reflects upon concentration ability, and being

underproductive primarily reflects upon intelligence and

concentration ability. The ALJ discussed claimant’s medical

records involving her concentration ability and her

intelligence, highlighting multiple treating physicians who

documented no problems with claimant’s concentration or

intelligence.9 Furthermore, these findings – discussed by the

9 To reiterate, the ALJ discussed the following pieces of medical

evidence in his decision: Dr. Robertson found claimant’s

ALJ at length in his decision - are consistent with claimant’s

former employer’s other responses to the questionnaire:

claimant “complete[s] all the usual duties required for [her]

position,” is “able to complete all of [her] job duties without

special assistance,” and “complete[s] [her] work in the same

amount of time as [other] employee[s] in similar positions.”

(Tr. at 244.) Therefore, substantial evidence exists that the

ALJ determined that the second hypothetical included a

limitation not supported by the record considered as a whole,

and claimant’s fourth objection is OVERRULED.

h. Analysis of Objection 5

Claimant’s fifth and final objection is that proper

consideration of claimant’s newly submitted evidence would

likely have resulted in the issuance of a favorable decision for

claimant. Claimant submitted new evidence to the Appeals

Council, evidence that contained additional interrogatory

answers from Dr. Robertson and Ms. Autrey, (Tr. at 11-13), and

“intellectual functioning was average” and found “no problems

with memory or concentration”; Ms. Herman noted “no problems

with memory or concentration”; Dr. Steward stated “claimant’s

intellectual functioning was above average [and] her memory and

concentration were within normal”; and claimant was able to

complete serial 3’s and 7’s and spell the word “world” forward

and backwards during Ms. Jennings’ examination. (Tr. at 53-55.)

additionally, the ALJ stated he himself “observed no

difficulties with [claimant’s] concentration” at the hearing.

(Tr. at 56.)

updated physical therapy records related to claimant’s right

shoulder rotator cuff tendonitis.10 (Tr. at 15-41, 65-69.)

In situations of new evidence, this court considers newly

submitted evidence reviewed by the Appeals Council, and then

again reviews the ALJ’s decision for substantial evidence as it

would do when no new evidence is submitted to the Appeals

Council. See Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir.

2011); Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953

F.2d 93, 96 (4th Cir. 1991) (en banc)). The court “focus[es] on

determining whether [the] new evidence is contradictory,

presents material competing testimony, or calls into doubt any

decision grounded in the prior medical reports.” Flesher v.

Colvin, 2016 WL 1271511, at *9 (S.D.W. Va. Mar. 31, 2016).

Remand is appropriate only if the newly submitted evidence

10 The Appeals Council declined to consider the majority of the

newly submitted physical therapy evidence, (Tr. at 15-41),

because it was dated after the ALJ’s decision. (Tr. at 2.)

Indeed, the records claimant cites, which date from January 8,

2018, until March 2, 2018, have no bearing on whether claimant

was disabled prior to the ALJ’s December 22, 2017 decision. See

Reichard v. Barnhart, 285 F. Supp. 2d 728, 733 (S.D.W. Va. 2003)

(“[E]vidence must be considered if it has any bearing upon

whether the Claimant was disabled during the relevant period of

time”); Verimlyea v. Berryhill, 2019 WL 456238, at *2 (M.D.N.C.

Feb. 5, 2019) (“[T]he relevant inquiry is if the contents of the

proffered evidence concern the period on or before the ALJ’s

decision.”). Claimant’s progress in physical therapy — or lack

thereof — after the ALJ’s decision cannot, therefore, affect

this court’s review of the ALJ’s decision.

The court will consider the physical therapy records dated

October 9, 2017 to October 11, 2017. (Tr. at 65-69.)

“impugn[s] the integrity of the [ALJ’s] decision.” Meyer v.

Colvin, 754 F.3d 251, 257 (4th Cir. 2014).

The new interrogatories from Dr. Robertson and Ms. Autrey

contain responses to questions directed at refuting the ALJ’s

evaluations of Dr. Steward’s opinions and Ms. Jennings’s

examination findings. (Tr. at 11-13). In their responses, Dr.

Robertson and Ms. Autrey: explain that claimant going on

vacations should not itself be evidence that claimant does not

suffer significant mental impairments; restate their opinions

that claimant has “extreme” impairments in social functioning,

in concentrating, and in memory; restate their opinion that

claimant suffers more than mild side effects from her

medications; affirm Dr. Steward’s opinions and diagnoses;

explain that Dr. Steward’s testing actually provides the “most

objective evidence possible in psychiatry”; and affirm Ms.

Jennings’ findings and state they believe her findings are

consistent with those of Dr. Steward. (Tr. at 11-13.)

Unfortunately for claimant, the vast majority of these

additional interrogatory responses “do[] not undermine the

substantial evidence supporting the ALJ’s decision.” Kiser v.

Colvin, 2016 WL 884690, at *3 (W.D.N.C. Mar. 8, 2016). This is

because their responses – excluding their answer relating to

claimant’s vacations - are simply intended to change how the ALJ

would weigh their own opinions and Dr. Steward’s and Ms.

Jennings’ opinions. Yet the ALJ has, with the support of

substantial evidence, explained his reasons for the weight he

accorded to their opinions and findings. See supra Part IV.f.

The fact that Dr. Robertson and Ms. Autrey have reiterated their

opinions in their interrogatory or have vouched for the opinions

of other physicians does not change the fact that substantial

evidence supported the ALJ’s weighing determinations. Perhaps

this could be the case if the ALJ had originally given their

opinions less weight because he found the opinions to be unclear

or unsupported by other medical opinions – but that was not the

case here. Instead, the ALJ discounted these medical opinions

because he found them inconsistent with treating physician

observations and the objective medical record.11 See supra Part

IV.f. Therefore, because this new evidence does not impugn the

11 However, more discussion is warranted to properly consider

the interrogatory response that Dr. Steward’s testing actually

provides the “most objective evidence possible in psychiatry.”

(Tr. at 12-13.) The ALJ explained that he gave the opinion of

Dr. Steward little weight, in part because he deemed that the

opinion was supported by only “minimal objective evidence.”

(Tr. at 56.) Due to the new evidence contained in Dr. Robertson

and Ms. Autrey’s interrogatory, (Tr. at 12-13), this court found

that this portion of the ALJ’s rationale was not supported by

substantial evidence. See supra n.8. However, as mentioned

herein, the ALJ’s other reasons for giving only little weight to

Dr. Steward’s opinion are supported by substantial evidence, and

therefore the court concluded that there remained, in aggregate,

substantial evidence supporting the ALJ’s decision to give

little weight to Dr. Steward’s opinion. Therefore, this new

evidence likewise does not change the outcome of the ALJ’s

decision.

integrity of the ALJ’s decisions how to weigh the medical

opinion evidence, the court finds this new evidence would not

change the outcome of the ALJ’s decision.

The response in the interrogatories relating to claimant’s

vacations requires a different analysis, however. Nonetheless,

the conclusion remains the same: though the new evidence could

reasonably cause the ALJ to no longer view claimant’s vacations

as evidence that her mental impairments were not nearly as

severe as she self-reported, this was but one factor among many

that led the ALJ to conclude that claimant did not suffer severe

mental impairments. For example, the ALJ also highlighted other

activities claimant herself took that demonstrated that her

activities were “not markedly limited”: claimant prepared

simple meals, followed instructions and paid bills, shopped

online, and cleaned her home. (Tr. at 55). Additionally, the

ALJ noted that claimant’s “intellectual functioning was above

average”, she had “no problems with memory or concentration,”

“she related well,” her “depression appeared to be only mild to

moderate,” had “consistently normal” mental status examinations,

and claimant herself said “she was in a good place and doing

better.” (Tr. at 54-55). Therefore, even assuming that the ALJ

would have accepted the new interrogatory response’s direction

of how to interpret claimant’s vacations, substantial evidence

still supports the ALJ’s decision to not include a mental

limitation in the RFC other than limiting claimant to occasional

interaction with the public. See supra Part IV.d.ii. For this

and the foregoing reasons, claimant’s fifth objection is

OVERRULED.

V. Conclusion

The court has reviewed Magistrate Judge Tinsley’s Proposed

Findings and Recommendation, claimant’s five objections to the

PF&R, defendant’s brief in support of the ALJ’s decision, and

the pertinent portions of the administrative record. In so

doing, the court has made a de novo determination of those

issues within the PF&R to which claimant objected. The court

finds that there is substantial evidence in the record to

support the ALJ's decision as to each of the objected issues.

Based upon the foregoing, the court adopts the Findings and

Recommendations of Magistrate Judge Tinsley as follows:

1. Claimant’s request for reversal of the final decision

is DENIED;

2. Defendant’s request to affirm the final decision of

the ALJ is GRANTED;

3. The final decision of the ALJ is AFFIRMED;

4. The case is DISMISSED; and

5. The Clerk is directed to remove the case from the

court’s docket.

The Clerk is directed to forward a copy of this Memorandum

Opinion and Order to counsel of record and any unrepresented

parties.

IT IS SO ORDERED this 30th of March, 2020.

ENTER:

David A. Faber

Senior United States District Judge

41