# Jesse v. Kijakazi

> District Court, S.D. West Virginia · September 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10729889

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** September 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

ELIZABETH JESSE,

Plaintiff,
v. CIVIL ACTION NO. 1:20-00288
Kilolo Kijakazi,1
Acting Commissioner of the
Social Security Administration,

Defendant.

MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendations regarding disposition pursuant to
28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted
to the court his Proposed Findings and Recommendation (“PF&R”)
on February 18, 2021, in which he recommended that the court
deny plaintiff’s motion for judgment on the pleadings (ECF No.
19), grant defendant’s request to affirm the decision below (ECF
No. 22), affirm defendant’s final decision, and dismiss this
action from the court’s docket.

1 Kilolo Kijakazi became the Acting Commissioner of the Social
Security Administration on July 9, 2021. Pursuant to Fed. R.
Civ. P. 25(d), Kijakazi was substituted for Andrew Saul as the
defendant in this action.
In accordance with 28 U.S.C. § 636(b), the parties were
allotted fourteen days plus three mailing days in which to file
objections to the PF&R. Plaintiff timely filed objections to

the PF&R. (ECF No. 24.) Defendant timely filed a response to
those objections. (ECF No. 25.)
I. Background
On March 24, 2017, plaintiff Elizabeth Jesse filed an
application for Social Security Disability Insurance Benefits,
alleging disability beginning on April 19, 2016,2 due to back
pain, diabetes, and asthma. Upon denial of her claim, she
sought and obtained an administrative hearing, which was held on
December 17, 2018, before Administrative Law Judge Francine A.
Serafin (“ALJ”). On March 21, 2019, the ALJ issued a decision
finding that plaintiff was not disabled. On February 26, 2020,
the Appeals Council denied review, thereby making the ALJ’s

decision final. Plaintiff timely sought judicial review.
II. Standard of Review
Under § 636(b)(1), a district court is required to conduct
a de novo review of those portions of a magistrate judge’s
report to which a specific objection has been made. The court
need not conduct a de novo review, however, “when a party makes

2 During the hearing, it was discovered that plaintiff’s initial
alleged onset date was off by a year, and the ALJ amended it to
this date.
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 (4th Cir.

1982); see also Fed. R. Civ. P. 72(b) (“The district court to
whom the case is assigned shall make a de novo determination
upon the record, or after additional evidence, of any portion of
the magistrate judge’s disposition to which specific written
objection has been made in accordance with this rule.”).
Federal courts are not tasked with making disability
determinations. Instead, they are tasked with reviewing the
Social Security Administration’s disability determinations for
(1) the correctness of the legal standards applied; and (2) the
existence of substantial evidence to support the factual
findings. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980);
see also Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340

(4th Cir. 2012). Substantial evidence 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). “It consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Laws
v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Substantial
evidence is not, however, “[w]itness testimony that’s clearly
wrong as a matter of fact,” “[f]alsified evidence,”
“[s]peculation,” or “conclusory assertions.” See Biestek 139 S.
Ct. at 1159 (Gorsuch, J., dissenting).
III. Discussion

Plaintiff makes a single objection to the PF&R. She argues
that it fails to appreciate the deficiency of the ALJ’s
consideration of her symptoms. This objection is a reprisal of
one of plaintiff’s arguments in her motion for judgment on the
pleadings. (See ECF No. 20, at 18-20.) Plaintiff contends that
the ALJ’s decision lacks a thorough analysis of her symptoms as
required by regulation, drawing particular attention to the
scant discussion of her daily activities. The court disagrees.
Upon de novo review, the court finds that the ALJ proficiently
evaluated the extent to which plaintiff’s symptoms were
consistent with the record and reached conclusions tethered to
substantial evidence. Moreover, any error for failing to

consider, or articulate a consideration of, plaintiff’s daily
activities is harmless.
Magistrate Judge Rogers has accurately set forth, as
follows, the regulatory framework within which an ALJ must
operate when evaluating a claimant’s symptoms:
An individual’s symptoms are evaluated based on
consideration of objective medical evidence, an
individual’s statements directly to the [Social
Security] Administration, or to medical sources or
other sources, and the following factors:

1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;

3. Factors that precipitate and aggravate the
symptoms;

4. The type, dosage, effectiveness, and side effects
of any medication an individual takes or has taken
to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual
receives or has received for relief of pain or
other symptoms;

6. Any measures other than treatment an individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a
board); and

7. Any other factors concerning an individual's
functional limitations and restrictions due to pain
or other symptoms.

SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). The ALJ at
step three is to “consider the individual's symptoms
when determining his or her residual functional
capacity and the extent to which the individual's
impairment-related symptoms are consistent with the
evidence in the record.” SSR 16-3p, at *11.

Turner v. Kijakazi, No. 4:20-CV-02861-TER, 2021 WL 3758060, at
*13 (D.S.C. Aug. 25, 2021).
As to the category of daily activities, the Fourth Circuit
Court of Appeals has phrased the consideration of this factor in
the permissive: “In evaluating the intensity, persistence, and
limiting effects of a claimant's symptoms, ALJs may consider the
claimant’s daily activities.” Arakas v. Comm’r, Soc. Sec.
Admin., 983 F.3d 83, 99 (4th Cir. 2020). When determining
whether a claimant’s activities are inconsistent with her
subjective complaints, an ALJ must consider any qualifying
statements about such daily activities. Id.; Woods v.

Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); Brown v. Comm’r
Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017).
But ALJs obviously are not bound by every qualifying
statement. Linkous v. Astrue, No. 4:10CV16, 2011 WL 652534, at
*10 (E.D. Va. Jan. 19, 2011), report and recommendation adopted,
No. 4:10CV16, 2011 WL 642958 (E.D. Va. Feb. 10, 2011). By
regulation, an ALJ is to accept a claimant’s qualifying
statements only to the extent that they are consistent with the
record. See 20 C.F.R. § 404.1529 (“We will then determine the
extent to which your alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be
accepted as consistent with the medical signs and laboratory

findings and other evidence to decide how your symptoms affect
your ability to work.”); see also SSR 16-3p (“We will consider
an individual’s statements about the intensity, persistence, and
limiting effects of symptoms, and we will evaluate whether the
statements are consistent with objective medical evidence and
the other evidence.”). Because qualifying statements are
essentially symptoms, ALJs assess qualifying statements for
consistency with the record in the same way they assess
claimants’ other symptoms. See 20 C.F.R. § 404.1529.
In Brown, the ALJ “did not acknowledge” the claimant’s
qualifying statements and did not explain how the claimant’s
activities translated into the ability to work full-time. 873

F.3d at 263. Similarly, in Arakas, the ALJ “did not mention or
address” myriad qualifying statements. 983 F.3d at 100.
Importantly, however, “there is a stark difference between an
ALJ not explicitly mentioning every scintilla of evidence . . .
as compared to an ALJ selectively citing certain pieces of
evidence to present a false picture of the claimant’s abilities,
as the ALJ did in Arakas and similar decisions.” Walker v.
Saul, No. 2:20-CV-00196, 2021 WL 342570, at *9 (S.D.W. Va. Jan.
6, 2021), report and recommendation adopted, No. 2:20-CV-00196,
2021 WL 329208 (S.D.W. Va. Feb. 1, 2021).
“[A]dministrative law judges aren’t in the business of
impeaching claimants’ character.” Cole v. Colvin, 831 F.3d

411, 412 (7th Cir. 2016); see also SSR 16-3p. But there is a
difference between “assess[ing] the credibility of pain
assertions by applicants,” which “obviously administrative law
judges . . . continue to” do, see id. at 412 (emphasis in
original), and assessing the credibility of the applicants
themselves, which is no longer permissible under SSR 16-3p.
The evidence that an ALJ must consider is not necessarily
coextensive with the evidence that the ALJ must explicitly
discuss. Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)
(“Although required to develop the record fully and fairly, an
ALJ is not required to discuss all the evidence submitted, and
an ALJ’s failure to cite specific evidence does not indicate

that it was not considered.”); Christina W. v. Saul, No. 4:19-
CV-00028-PK, 2019 WL 6344269, at *4 (D. Utah Nov. 27, 2019)
(“While the ALJ must consider all the evidence, she need not
recite each piece of evidence she has considered.”) (emphasis
added); Clark v. Comm’r of Soc. Sec., No. 2:09-CV-417, 2010 WL
2730622, at *17 (E.D. Va. June 3, 2010) (no particular format
required).
Though related, evaluation and articulation requirements
are distinct. In the Fourth Circuit, “there is no rigid
requirement that the ALJ specifically refer to every piece of
evidence.” Reid v. Commissioner of Social Sec., 769 F.3d 861,
865 (4th Cir. 2014). What is required, at bottom, is an

articulation clear enough such that the claimant “and any
subsequent reviewer can assess how the adjudicator evaluated the
individual’s symptoms.” SSR 16-3p.
Plaintiff testified, in essence, that she has back pain
almost all day every day that is alleviated completely only by
lying on her side, and that her treatment has been almost
entirely ineffective. When asked to describe her pain at the
hearing, she said it was sharp and aching and, at that moment,
was “a ten.” (AR at 46.) She wanted to have surgery but could
not because of an insurance coverage issue.
But according to one treating physician (the one who raised

surgery as an option), the surgery option was “controversial.”
(AR at 378.)3 And a subsequent treating physician opined that
plaintiff was “not a candidate for surgery.” (AR at 504.)4 And
yet another treating physician concurred. (AR at 421 (“I do not
see any surgically remediable pathology.”).)
There is substantial evidence in the record that could
reasonably be considered inconsistent with plaintiff’s alleged
symptoms. Although one treating physician thought that
plaintiff was incapacitated and might be a candidate for
surgery, two treating physicians thereafter thought otherwise.
Examinations were consistently unremarkable and arguably not in
accord with plaintiff’s claims of debilitating pain. The state

agency consultants thought that plaintiff could perform medium
work.5 The thorough PF&R goes into greater detail, and the court
need not repeat all the evidence here.

3 The same doctor stated that plaintiff’s “three options” were
(1) “do nothing,” (2) apply for disability, or (3) undergo
surgery. (Id.)

4 That doctor also opined that continued treatment of plaintiff
with opioids was a “bad idea.” (See id.)

5 The ALJ stated that she gave little weight to these opinions
because she thought the evidence established that plaintiff
could perform only light work; nevertheless, the opinions
Plaintiff’s description of her symptoms painted one
picture, and record as a whole arguably painted a quite
different one. The ALJ reasonably resolved the conflict and

explained how she did so. Plaintiff concedes that there is no
required format for the ALJ’s analysis, but plaintiff insists on
something more than what was done. The only concrete criticism
that plaintiff provides, however, is that the ALJ did not go
into enough detail about her daily activities. An explicit
discussion of those activities was not required.
Even assuming that the ALJ was required both to consider
and to articulate the ALJ’s consideration of plaintiff’s daily
activities, such error was harmless. Plaintiff cites cases
finding fault with ALJs who used claimants’ daily activities
against them without considering the claimants’ alleged limits
on those activities. See Woods, 888 F.3d at 694; Hines v.

Barnhart, 453 F.3d 559, 566 (4th Cir. 2006). The error, in
other words, was in using exaggerated daily activities as a
sword against claimants.
Here, plaintiff claims a quite different error: that the
ALJ did not use plaintiff’s daily activities to bolster her
alleged symptoms. Even assuming that the ALJ did not thoroughly

support the conclusion that plaintiff could perform light work.
Moreover, the ALJ’s critique of these consultants’ opinions
bespeaks the independence of her review of the evidence.
consider plaintiff’s daily activities in evaluating plaintiff’s
symptoms, the court is not persuaded that a detailed
consideration of those activities is likely to make a difference

here. The alleged limitations on plaintiff’s activities are, in
effect, an extension of her claim that her debilitating pain
renders her unable to sit, stand, walk, or work for prolonged
periods. Substantial evidence supports the ALJ’s decision not
to credit that claim.
Accordingly, the court OVERRULES plaintiff’s objection.
IV. Conclusion
The court has reviewed Magistrate Judge Aboulhosn’s PF&R,
defendant’s objection to the PF&R, 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
defendant objected.

Based on the foregoing, the court adopts the PF&R as
follows:
1. Plaintiff’s motion for judgment on the pleadings (ECF
No. 19) is DENIED;
2. Defendant’s request to affirm the decision below (ECF
No. 22) is GRANTED;
3. Defendant’s final decision is AFFIRMED; and
4. The case is DISMISSED from the court’s docket.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to all counsel of record and any unrepresented
parties.
IT IS SO ORDERED this 22nd day of September, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729889. Public record. Not legal advice.