NORMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHAEL J. N,

Plaintiff,

v. 1:25CV455

FRANK BISIGNANO, Commissioner

of Social Security,

Defendant.

ORDER AND MEMORANDUM OPINION

OF UNITED STATES MAGISTRATE JUDGE

The plaintiff, Michael J.N. of January 1, 2018. (Tr. 263-69.) The

(“Michael”), has sought review of a application was denied initially and

final decision of the Commissioner of upon reconsideration. (Tr. 127-30,

Social Security denying his claim for 133-34.) After a hearing, the ALJ

supplemental security income.1 The issued an unfavorable decision on

Court has considered the certified May 24, 2023. (Tr. 105-117.) On

administrative record and dispositive August 30, 2023, the Appeals Council

briefs from each party. Because the remanded the case because the ALJ

Administrative Law Judge’s (“ALJ”) admitted evidence into the record

decision is legally correct, supported without also proffering it to Michael.

by substantial evidence, and (Tr. 122-25.) The same ALJ had a new

susceptible to judicial review, the hearing, proffered the evidence

Court affirms the decision of the ALJ, properly, and then determined on

as set forth below. June 11, 2024 in a new decision that

Michael was not disabled under the

I. PROCEDURAL HISTORY Act. (Tr. 17-32.) The Appeals Council

denied a request for review, making

In January of 2020, Michael filed an the ALJ’s decision the final decision

application for supplemental security for review. (Tr. 1-6.)

income alleging a disability onset date

1 Transcript citations refer to the Undersigned to conduct all proceedings

Administrative Transcript of Record filed in this case pursuant to 28 U.S.C. §

manually with the Commissioner’s 636(c). See Docket Entry 13.

Answer. See Docket Entry 5. By Order of

Reference, this matter was referred to the

II. STANDARD OF REVIEW 472-73 (4th Cir. 2012) (citing 20

C.F.R. §§ 416.920(a)(4),

While Section 405(g) of Title 42 of the 404.1520(a)(4)).

United States Code “authorizes

judicial review of the Social Security Under this process, the

Commissioner’s denial of social Commissioner asks, in

security benefits,” see Hines v. sequence, whether the

Barnhart, 453 F.3d 559, 561 (4th Cir. claimant: (1) worked during the

2006), the scope of that review is alleged period of disability; (2)

specific and narrow, see Smith v. had a severe impairment; (3)

Schweiker, 795 F.2d 343, 345 (4th had an impairment that met or

Cir. 1986). Specifically, review is equaled the requirements of a

limited to determining if there is listed impairment; (4) could

substantial evidence in the record to return to her [or his] past

support the Commissioner’s decision. relevant work; and (5) if not,

42 U.S.C. § 405(g); Hunter v. could perform any other work

Sullivan, 993 F.2d 31, 34 (4th Cir. in the national economy.

1992); Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir. 1990). In Id. at 472. A finding adverse to the

reviewing for substantial evidence, claimant at any of several points in

the Court does not re-weigh this five-step sequence forecloses a

conflicting evidence, make credibility disability designation and ends the

determinations, or substitute its inquiry. Id. at 473. “Through the

judgment for that of the fourth step, the burden of production

Commissioner. Craig v. Chater, 76 and proof is on the claimant. If the

F.3d 585, 589 (4th Cir. 1996). Put claimant reaches step five, the burden

simply: the issue before the Court is shifts to the Secretary to produce

not whether Michael is disabled but evidence that other jobs exist in the

whether the finding that he is not national economy that the claimant

disabled is supported by substantial can perform considering his age,

evidence and based upon a correct education, and work experience.”

application of the relevant law. Id. Hunter, 993 F.2d at 35 (internal

citations omitted).

III. THE ALJ’S DECISION

Here, the ALJ determined at step one

The ALJ followed the correct process, that Michael had not engaged in

set forth in 20 C.F.R. § 416.920, to substantial gainful activity since

determine disability. See Albright v. January 9, 2020, the application date.

Comm’r of Soc. Sec. Admin., 174 F.3d (Tr. 19.) The ALJ next found the

473, 475 n.2 (4th Cir. 1999). following severe impairments at step

two: “obesity, lumbar and right

“The Commissioner uses a five-step thumb arthralgias, post-traumatic

process to evaluate disability claims.” stress disorder (PTSD), borderline

Hancock v. Astrue, 667 F.3d 470, intellectual functioning, antisocial

personality disorder, and cannabis evidence.” Docket Entry 9 at 3.

use.” (Tr. 19.) The ALJ then found that Second, Michael contends that “[t]he

Michael did not have an impairment ALJ erred in discounting the severity

or combination of impairments listed of [his] mental impairments based on

in, or medically equal to one listed in, limited treatment when the evidence

Appendix 1. (Tr. 19.) of record demonstrates [he] faced

mental deficits and financial

The ALJ next set forth Michael’s constraints that limited his ability to

Residual Functional Capacity (“RFC”) obtain treatment.” Id. at 16. As set

and determined that he could perform forth below, neither objection has

medium work merit.

except he can frequently handle A. Standard for the RFC

and finger [and] understand, Determination.

remember, and carry out

simple instructions. They can The RFC measures the most a

be detailed but not complex. claimant can do in a work setting

[He] can focus on tasks for two despite the physical and mental

hours at a time, learned by limitations of his or her impairments

demonstration in 30 days or and any related symptoms (e.g., pain).

less. He cannot have contact See 20 C.F.R. § 416.945; see also

with the public and only Dunn v. Colvin, 607 F. App’x 264, 272

occasional contact with co- (4th Cir. 2015) (unpublished)

workers and supervisors. He is (claimant’s RFC is “[a] medical

capable of routine changes but assessment of what an individual can

cannot perform work with daily do in a work setting in spite of the

quotas. functional limitations and

environmental restrictions imposed

(Tr. 21.) by all of his or her medically

determinable impairment(s)”)

At the fourth step, the ALJ (internal citation omitted); Hines v.

determined that Michael was unable Barnhart, 453 F.3d 559, 562 (4th Cir.

to perform his past relevant work. (Tr. 2006). The RFC includes both a

29.) Last, at step five, the ALJ “physical exertional or strength

concluded that there were other jobs limitation” that assesses the

that Michael could perform. (Tr. 29.) claimant’s “ability to do sedentary,

light, medium, heavy, or very heavy

IV. DISCUSSION

work,” as well as “nonexertional

limitations (mental, sensory, or skin

Michael first contends that “[t]he ALJ

impairments).” Hall v. Harris, 658

erred in discounting all the medical

F.2d 260, 265 (4th Cir. 1981).

opinion evidence of record, leaving

the ALJ’s assessment of [his] RFC

“Social Security Ruling 96-8p

unsupported by substantial

explains that the RFC assessment

must include a narrative discussion (alteration in original) (quoting

describing how the evidence supports Monroe, 826 F.3d at 189). An ALJ’s

each conclusion, citing specific failure to do so constitutes reversible

medical facts (e.g., laboratory error. See Lewis v. Berryhill, 858 F.3d

findings) and nonmedical evidence 858, 868 (4th Cir. 2017). Where an

(e.g., daily activities, observations).” ALJ’s “analysis is incomplete and

Monroe v. Colvin, 826 F.3d 176, 189 precludes meaningful review,”

(4th Cir. 2016) (internal quotations remand is appropriate. Monroe, 826

omitted). An ALJ need not discuss F.3d at 191.

every piece of evidence in making an

RFC determination. See Reid v. Beyond this, the longstanding

Comm. of Soc. Sec., 769 F.3d 861, 865 requirements calling for adjudicators

(4th Cir. 2014). Yet the ALJ “must to weigh medical opinions and give

build an accurate and logical bridge special deference to treating source

from the evidence to [the] opinions have changed. See 20 C.F.R.

conclusion.” Brown v. Commissioner, § 416.920c(a) (effective March 27,

873 F.3d 251, 269 (4th Cir. 2017). 2017). Now, adjudicators “will not

“The RFC assessment must first defer or give any specific evidentiary

identify the individual’s functional weight, including controlling weight,

limitations or restrictions and assess to any medical opinion(s) or prior

his or her work-related abilities on a administrative medical finding(s),

function-by-function basis . . . . Only including those from [a claimant’s]

[then] may RFC be expressed in terms medical sources.” Id. Nevertheless, an

of the exertional levels of work, ALJ must consider and articulate in

sedentary, light, medium, heavy, and the administrative decision how

very heavy.” SSR 96-8p, 1996 WL persuasive he or she finds each

374184, at *1. medical opinion or prior medical

finding in a claimant’s case record.

The Fourth Circuit has held that See id. § 416.920c(b). When a medical

“meaningful review is frustrated when source provides more than one

an ALJ goes straight from listing opinion or finding, the ALJ will

evidence to stating a conclusion.” evaluate the persuasiveness of such

Thomas v. Berryhill, 916 F.3d 307, opinions or findings as a class. See id.

311 (4th Cir. 2019) (explaining that “a § 416.920c(b)(1). The ALJ is “not

proper RFC analysis has three required to articulate how [he]

components: (1) evidence, (2) logical considered each medical opinion or

explanation, and (3) conclusion”). prior administrative medical finding

Thus, the ALJ “must both identify from one medical source

evidence that supports his conclusion individually.” Id.

and ‘build an accurate and logical

bridge from [that] evidence to his In evaluating persuasiveness, the ALJ

conclusion.’” Woods v. Berryhill, 888 must articulate two factors:

F.3d 686, 694 (4th Cir. 2018) supportability and consistency. Id. §

416.920c(b)(2). Supportability is an

internal check that references Correct and Well Supported.

objective medical evidence and

supporting explanations that come Michael contends that “[t]he ALJ

from the source itself. Id. § erred in discounting all the medical

416.920c(c)(1); see also Revisions to opinion evidence of record, leaving

Rules, 82 Fed. Reg. at 5853. the ALJ’s assessment of [his] RFC

Consistency is an external check that unsupported by substantial

references evidence from other evidence.” Docket Entry 9 at 3. He

medical and nonmedical sources. Id. § contends further that “the ALJ

416.920c(c)(2); see also Revisions to discounted every medical opinion

Rules, 82 Fed. Reg. at 5853. The ALJ regarding [his] psychological RFC

must only address the three other and provided invalid reasons for

persuasiveness factors—relationship doing so.” Id. at 12. As a result,

with the claimant, specialization, and Michael concludes, the ALJ’s RFC

the catchall “other factors”—when two determination is “based on the ALJ’s

or more medical opinions, or prior own interpretation of the medical

administrative medical findings about evidence of record.” Id. As explained

the same issue, are equally persuasive below, this objection lacks merit.

in terms of supportability and

consistency. Id. §§ 416.920c(b)(3), The RFC constitutes an

416.920c(c)(3)-(5). administrative finding, not a medical

assessment, and the responsibility for

Furthermore, “[s]tatements that assessing a plaintiff’s RFC rests solely

[claimants] are or are not disabled, . . with the ALJ. See 20 C.F.R. §

. able to work, or able to perform 404.1546(c). As a result, “[t]he ALJ

regular or continuing work,” are was not required to obtain an expert

statements on an issue reserved to the medical opinion as to [Michael’s]’s

Commissioner. 20 C.F.R. § RFC,” Felton-Miller v. Astrue, 459 F.

416.920b(c)(3). Under the revised App’x 226, 231 (4th Cir. 2011)

regulations, statements on issues (unpublished), or to rely upon a

reserved to the Commissioner are specific medical opinion in fashioning

deemed evidence that “is inherently the RFC, see Wykle v. Saul, No.

neither valuable nor persuasive to the 1:19CV155, 2020 WL 697445, at *6

issue of whether [a claimant is] (W.D.N.C. Feb. 11, 2020) (“[T]here is

disabled.” 20 C.F.R. § 416.920b(c)(1)- no requirement that an ALJ base his

(3). For such claims, “we will not RFC finding, or any particular

provide any analysis about how we limitation in it, on a medical opinion”)

considered such evidence in our (citing Felton-Miller, 459 F. App’x at

determination or decision.” 20 C.F.R. 230-31). See also Moore v. Colvin,

§ 416.920b(c). No. 15CV425, 2016 WL 1714117

(D.S.C. Apr. 29, 2016) (“[T]he ALJ is

B. The RFC Finding Is Legally not required to rely on medical

opinions to formulate an RFC

assessment, as the ‘ALJ is not

precluded from reaching RFC speech was unremarkable. Overall,

determinations without outside the content of the claimant’s speech

medical expert review of each fact was noted to be relevant, coherent,

incorporated into the decision[.]’”) and logical. His attitude was positive,

(quoting Chandler v. Commissioner and level of cooperation and effort

of Soc. Sec., 667 F.3d 356, 362 (3d Cir. were positive and appropriate. He was

2011)); Howze v. Kijakazi, No. 4:23- able to answer all questions presented

CV-00061, 2024 WL 1919203, at *4 and was able to give specific

(S.D. Tex. May 1, 2024) (“[T]he mere information and dates without

fact that the ALJ did not find any difficulty. He alleged depressed

medical opinions persuasive is not mood, loss of interest in activities,

reversible error.”). irritability, sleep disturbances,

appetite disturbances, loss of energy,

Put differently, an ALJ’s decision not psychomotor agitation or retardation,

to fully adopt any of the medical all of which started after his

opinions in the record alone does not grandmother’s death in 2008. He

establish improper substitution alleged symptoms from PTSD that

his/her lay opinion. See Mark A. B. v. began in childhood. He also alleged

Kijakazi, No. 1:22CV834, 2023 WL witnessing murders in prison,

9381904, at *8 (M.D.N.C. Dec. 15, including when he saw someone cut a

2023) (collecting cases). Where the guy’s head off and he watched it roll

ALJ discussed medical and across the floor. He had been in prison

nonmedical evidence leading to the for 14 years and he was released in

RFC assessment, specifically 2010. He alleged attempting suicide

addressing each relevant impairment, in prison. The claimant was diagnosed

the ALJ’s decision was supported by with major depressive disorder,

substantial evidence.2 PTSD, borderline personality

disorder, and cannabis abuse, and

i. Dr. Felix Ortiz, Psy.D. was noted as having a history of

trauma.

Consultative examiner Dr. Felix Ortiz,

Psy.D., evaluated Michael on March Dr. Ortiz noted that the claimant’s

9, 2011, Tr. 427-30, and the ALJ symptoms appeared to be severely

summarized it thus: impacting his activities of daily living,

vocational performance, and

On March 9, 2011, the claimant saw

interpersonal interactions (Exhibit

Dr. Ortiz for a psychological

2F). This opinion is unpersuasive as it

consultative evaluation. He drove to

is far removed from the relevant

the appointment with his girlfriend.

period and vague, not noting specific

The claimant’s speech was

functional limitations rather noting

unremarkable, and the quality of his

that the claimant’s symptoms severely

2 Because Michael is only challenging his limits its analysis accordingly herein.

mental RFC determination, the Court

impact his functioning. The examiner old and new regulations regarding

appeared to base his findings on the ALJ analysis of medical opinions,

claimant’s subjective reports and not vagueness as to vocational limitations

the examination. As this opinion is far is grounds for an ALJ to discount a

removed from the relevant period and medical opinion in whole or in part.3

vague, it is unpersuasive.

Beyond this, an ALJ may also

(Tr. 23 (paragraph break inserted).) discount medical opinions based on a

claimant’s subjective complaints,

The ALJ did not err in concluding that which is what the ALJ did here. See 20

Dr. Ortiz’s opinion was unpersuasive. C.F.R. § 416.920c(c)(1)-(2).4 In

He generated it years before the 2018 support thereof, the ALJ pointed to a

alleged onset date and the 2021 date considerable amount of record

of Michael’s application for SSI. It evidence inconsistent with Dr. Ortiz’s

therefore provides limited insight opinion, to the extent it set forth work

regarding Michael’s condition during preclusive limitations.

the relevant period. Courts in the

Fourth Circuit have found no error in For example, prior to his application

ALJ decisions deeming medical date, Michael received infrequent

opinions predating the alleged onset mental health treatment while he was

date to be of limited relevance. See in prison (Tr. 22, 396-424), and

Tianna B. v. Kijakazi, No. during the relevant period, he neither

2:22CV392, 2023 WL 3743879, at *8 required psychiatric hospitalization

(E.D. Va. Apr. 26, 2023) (collecting nor did he receive mental health

cases). Additionally, under both the treatment.5 (Tr. 25, 28, 48-49, 59.)

3 See, e.g., Wesley v. Kijakazi, No. cases).

1:20CV364, 2021 WL 4129234, at *11

(M.D.N.C. Sept. 9, 2021) (“Vagueness

constitutes a permissible grounds for an 4 See also, e.g., Craig v. Chater, 76 F.3d

ALJ to discount a medical opinion. “) 585, 590 (4th Cir. 1986) (“All Keller gave

(collecting cases); Betty C. v. Comm’r, here was a conclusory opinion based

Soc. Sec. Admin., No. 1:23-CV-00246- upon Craig’s subjective reports of pain.”);

JMC, 2023 WL 7386206, at *5 (D. Md. Cummings v. Comm’r of Soc. Sec., 2023

Nov. 8, 2023) (collecting cases); Samuel WL 8945826, at *2 (4th Cir. 2023) (“Dr.

P. v. Comm’r of Soc. Sec., No. 20-5881, Perkis based that statement solely on

2021 WL 5769404, at *6 (W.D. Wash. Cummings’s reported symptoms rather

Dec. 6, 2021); Langford v. Comm’r of Soc. than objective evidence[.]”); Wood v.

Sec. Admin., No. 1:22-CV-00665-CEH, Comm’r of Soc. Sec. Admin, 2022 WL

2023 WL 3058160, at *26 (N.D. Ohio Apr. 997306, at *2 (4th Cir. 2022).

24, 2023); Chiccola v. Comm’r of Soc.

Sec., No. 1:18 CV 2940, 2020 WL

1031488, at *8 (N.D. Ohio Mar. 3, 2020) 5 There is record evidence that Michael

(internal citations omitted) (collecting received about an hour of mental health

Michael also opted to use marijuana 25, 336, 460-62, 464, 466-68, 500,

daily (up to seven times per day) 513, 540, 546-47, 553-54.)

rather than psychotropic medications

for his mental health symptoms. (Tr. Michael also engaged in a wide array

23-25, 27). The record showed that of daily activities despite his mental

Michael flushed his medications impairments. (Tr. 22, 24, 27.) He

down the toilet, stopped taking them lived in a home with his longtime

due to side effects, or refused to take girlfriend, drove, cared for his

them because he did not believe in personal needs, cared for his dog,

them (Tr. 22, 402, 24, 48-49, 294 shopped in stores, cleaned, cooked,

(“[H]e doesn’t believe in taking went to bars, went to the racetrack

medications, said even if he was with his neighbor, and socialized with

prescribed medication he wouldn’t friends (Tr. 22, 24, 27, 43, 52-53, 459,

take it ‘unless it’s marijuana I’m not 466, 331-46.) He also maintained

taking it’.”), 459, 462.) He reported membership in a motorcycle club

that only marijuana helped his mood. where he spent time riding

(Tr. 23, 24, 27, 451, 459, 462, 532, motorcycles, painting clubhouses,

542, 549.) and “chilling” with people in the

motorcycle club world. (Tr. 24, 459,

Michael’s mental status examinations 462.) For all these reasons, the ALJ

were also normal. (Tr. 21, 24-25, 460- did not err in finding Dr. Ortiz’s

62, 466-68, 500, 513, 540, 546-47, opinion unpersuasive to the extent it

553-54.) Apart from some mild set forth work preclusive limitations.

irritability, he generally demonstrated

normal appearance, orientation, ii. Crystal Ray, M.A, LPA

memory, recall, thought processes,

behavior, speech, cooperation, and Consultative examiner Crystal Ray,

attention/concentration. (Tr. 21, 24- M.A., LPA examined Michael on

care during the relevant multi-year any event, even if the ALJ somehow erred

period at issue. He visited with Daymark in this regard (which is not the case), the

Recovery Services, Inc. for a clinical error here would be harmless given all

psychological assessment on December the other evidence the ALJ cited for

12, 2023 for 35 minutes and a follow up discounting the medical opinions

on December 20, 2023 for 31 minutes. described herein. See Pratt v. Kijakazi,

(Tr. 539-50.) Given that the ALJ No. 1:20CV679, 2021 WL 4975405, at *4

examined this evidence extensively (Tr. n.4 (M.D.N.C. Oct. 6, 2021) (“[E]ven

25), his conclusion that Michael received assuming for the sake of argument that

“no mental health treatment” rather than Plaintiff is correct here, any error is

“almost no mental health treatment” or harmless given all the other reasons the

“about an hour of mental health ALJ provided—all of which are discussed

treatment” is sound. Additionally, any above—that warrant discounting Dr.

argument that the ALJ improperly McLemore’s opinion.”).

penalized Michael for failing to seek

more treatment is unpersuasive. And, in

September 5, 2020, Tr. 457-63, and an endorsement. He reported

the ALJ assessed her opinion as that the previous day he had

follows: gone to a bar and then visited a

friend. The claimant reported

After the application date, on smoking marijuana daily which

September 5, 2020, the he believes helps with his mood

claimant saw Crystal Ray, and reported that he refuses to

Licensed Psychological take medications. However, the

Associate (LPA), for a claimant reported depressed

psychological consultative mood “all the time” with

evaluation. The claimant drove irritability, tearfulness, poor

himself to the exam and was motivation, poor energy, poor

accompanied by his girlfriend. sleep, and decreased appetite.

He reported living with his

girlfriend for 11 years, and he The claimant’s mental status

lived in a house his grandfather exam was grossly normal, with

gave him. The claimant mood noted as the claimant

ambulated normally, his describing his mood as “alright

hygiene and grooming were until somebody says something

fair, he was cooperative and stupid;” the claimant’s insight

interacted appropriately, but was noted as appearing poor,

was noted as making minimal but otherwise mental status

eye contact and looked at the exam was normal. His thought

floor when not speaking. processes were logical,

However, when speaking the coherent, and goal directed.

claimant’s speech was clear, he The claimant was diagnosed

spoke loudly and was quite with antisocial personality

demonstrative and expansive in disorder, cannabis use

his responses. He reported disorder. Ms. Ray found that

getting angry easily and having the claimant would have no

problems with authority. The difficulty understanding,

claimant reported trying to get retaining, and following simple

a job but that no one wanted to instructions. She opined he

give him work. The claimant would have trouble sustaining

reported joining a motorcycle attention to perform simple

club 3 months ago and repetitive tasks. He would also

spending a lot of time out on demonstrate difficulty

motorcycles, painting tolerating stress and pressures

clubhouses, and “chilling” with of day-to-day work activities.

people in the motorcycle club She opined his biggest problem

world. He did have pending would be in relating to and

charges of speeding and getting along with co-workers

operating a motorcycle without and supervisors (Exhibit 6F).

This opinion is vague and reports (Tr. 21, 24-25, 460-62, 466-

speculative, noting that the 68, 500, 513, 540, 546-47, 553-54) as

claimant would have a big well as Michael’s admission to

problem with social interaction performing a wide array of daily

and difficulty in tolerating activities, such as joining and

stress; these terms are not participating extensively in a

defined and overly vague, and motorcycle club (Tr. 22, 24, 27, 43,

therefore unpersuasive. The 52-53, 459, 466, 331-46). An ALJ may

mental status evaluation was discount opinion evidence in the face

essentially normal and she of contradictory evidence or when

appeared to base her that opinion is based on no more than

restrictions on his subjective a claimant’s subjective allegations,

statements. Due to the vague which is what the ALJ did here. There

nature of these opinions was no error in this assessment.

finding consistency and

supportability is difficult as the iii. Dr. Julia Brannon, PhD

degree of limitation is

unknown, it is not persuasive. Consultative examiner Dr. Julia

Brannon, PhD evaluated Michael on

Tr. 24 (paragraph breaks inserted). August 2, 2021, Tr. 464-68, and the

ALJ assessed her opinion as follows:

The ALJ gave good reasons for finding

this opinion unpersuasive. As noted, On August 2, 2021, the

vagueness constitutes a permissible claimant saw Dr. Brannon for a

grounds for an ALJ to discount a psychological consultative

medical opinion in whole or in part. evaluation. The claimant was

Ms. Ray’s assertions that Michael accompanied by his girlfriend

would have “trouble,” “difficulty,” and of 12 years, was casually

a “big[] problem” in various dressed, was cooperative in

functional domains (i.e., sustaining answering questions although

attention, social interaction, he was noted as answering

tolerating stress) did not use impulsively and with irritation

vocationally relevant terms. (Tr. 24.) at times. He stated that the

In any event, deficits in these domains examiner had denied his

were also accommodated in disability since he had been

vocationally relevant terms in the there before. The claimant

RFC finding that the ALJ ultimately reported having a motorcycle

adopted. (Tr. 21.) accident in 2020 and going to

the emergency room but having

Likewise, the ALJ provided additional no ongoing treatment. During

support for discounting Ms. Ray’s the evaluation the claimant was

opinion: she based her restrictions on noted as irritable and tense.

Michael’s subjective statements, The claimant was diagnosed

despite grossly normal mental status with PTSD, unspecified

personality disorder with health treatment throughout

antisocial traits, and rule out the relevant period (Exhibits

cannabis use disorder. Dr. 8F; 9F; 13F). Furthermore, the

Brannon found that the claimant has no mental health

claimant could understand, treatment and no

retain, and follow simple hospitalizations (for mental

instructions, but has more health), which does not support

difficulty with sustaining this level of limitation.

attention and concentration

and focus, and is able to (Tr. 24-25 (paragraph break

manage and retain information inserted).)

and perform duties in a

sustained manner. The The ALJ found Dr. Brannon’s opinion

claimant demonstrated lo[t]s of only partially persuasive. First, the

impulsivity and difficulty with ALJ relied upon evidence of Michael’s

managing his temper and is extensive social activities to discount

aggressive towards others. The Dr. Brannon’s conclusion that

claimant could perform daily Michael was unable to manage his

living skills and self-care skills, temper and aggression towards

but his social skills and others. (Tr. 25, 52-53, 459, 466, 335,

judgment are below average 342.) Second, the ALJ pointed to

(Exhibit 7F). Michael’s grossly normal mental

status reports, which did not

The undersigned finds this demonstrate aggression, mental

opinion partially persuasive, as difficulties, or symptoms not

while some of the opinions have otherwise accounted for by the RFC.

support, finding that the (Tr. 25, 336, 460-62, 464, 466-68,

claimant has difficulty 500, 513, 540, 546-47, 553-54.) Third,

managing his temper and is the ALJ noted that Michael had

aggressive to others is essentially no mental health

inconsistent with the claimant’s treatment and no hospitalizations for

reports of being in a motorcycle mental health related issues during

club, doing club activities, and the relevant period. (Tr. 25.) Thus, the

testifying that he can shop twice ALJ’s assessment of Dr. Brannon’s

a week. Furthermore, the opinion is legally correct and well

undersigned notes that the supported.

claimant’s reports of temper

and aggressiveness are iv. Dr. John Smith, M.D.

subjective reports, while the

Dr. John Smith, M.D. performed a

claimant has not been noted as

March 18, 2024 consultative

aggressive nor exhibited any

examination on Michael, which the

mental difficulties or symptoms

ALJ assessed as follows:

during physical and mental

John R. Smith, M.D., correctly that a quarter and a

consultative examiner, dime would total 35 cents. An

evaluated the claimant on estimate of the claimant’s

March 18, 2024 (Exhibit 14F). intellectual level of functioning

The claimant was driven to the was within the average range.

examination by a Medicaid His ability to sustain

services van, since he told the concentration was reasonable.

provider he did not have a valid Dr. Smith opined the claimant

license since his release from could understand, retain and

prison. His girlfriend was with follow instructions on a general

him. He alleged he was not basis though he would likely

given any medication while easily become distracted and

incarcerated that he could have difficulty focusing. He felt

recall. The claimant reported it was unlikely that he could

issues with anger management sustain attention for long

and PTSD symptoms. periods of time to perform

simple, repetitive tasks and

Upon exam, he was pleasant could not relate to others,

and cooperative and was noted including fellow workers and

to be quite talkative. His stream supervisors, as he has low

of mental activity was frustration tolerance, easy

spontaneous, but he could be irritability and for the same

circumstantial though he reasons would likely not be able

generally responded well to to tolerate the stress and

redirection. He gives no pressure associated with day-

evidence of hallucinations or to-day work activity.

delusional thought and has no

homicidal or suicidal thought. This opinion is partially

His mood and affect were persuasive. It is somewhat

somewhat irritable. The supported by Dr. Smith’s exam

claimant was oriented with but not completely. For

regard to time, person, place example, the claimant was

and situation. He could repeat generally pleasant and

three out of three words cooperative. His mood and

immediately and recall all three affect were only “somewhat

words after a few minutes. He irritable.” Dr. Smith appears to

could name the current have relied mostly upon the

President and the number of claimant’s subjective

states in the United States. He statements regarding his

can state correctly that 100 symptoms. Further, the

minus 7 would be 93 but then opinion is inconsistent with the

states that 93 minus 7 would claimant’s relatively normal

equal 84. He could state presentation at other exams

(Exhibit 8F; 9F; 13F). Regular non-examining state agency mental

mental status exams only noted health professionals, Drs. Harrison

a mildly blunted mood/affect and Gregory, as follows:

and were otherwise normal

(Exhibit 13F). Dr. Harrison, the state agency

consulting physician who

(Tr. 25-26 (paragraph break reviewed the medical records

inserted).) available on October 2, 2020,

found that the claimant could

The ALJ found Dr. Smith’s opinion understand and remember

only partially persuasive. First, the simple instructions, but [sic]

ALJ rejected Dr. Smith’s conclusion “likely have” difficulty with

that Michael could not relate to others detailed instructions; could

in a work environment because it was concentrate and persist on

based on Michael’s subjective simple tasks; would “likely

allegations and at odds with Smith’s function best” in a setting that

conclusion that Michael was generally does not require social contact;

pleasant and cooperative upon and could adapt to a setting that

examination and only “somewhat does not require simple tasks.

irritable.” (Tr. 26, 460, 466, 540, 547, Dr. Harrison also noted in

553, 432-33, 402, 451.) This another area that the claimant

conclusion was also inconsistent with was able to perform simple,

Michael’s relatively normal routine, repetitive tasks

presentation at other exams and (Exhibit 2A).

grossly normal mental status exams.

(Tr. 26, 460-62, 464, 466-68, 500, Dr. Gregory reiterated the same

513, 540, 546-47, 553-54.) Beyond limitations as Dr. Harrison;

this, Michael participated in a wide however, Dr. Gregory also

array of daily activities (Tr. 22, 24, 27, noted that the claimant could

43, 52-53, 459, 466, 331-46) and had understand, retain and follow

essentially no mental health simple instructions. He has

treatment and no hospitalizations for more difficulty with sustaining

mental health related issues during attention and concentration

the relevant period. For all these and focus and is able to manage

reasons, the ALJ’s assessment of Dr. and retain information and

Smith’s opinion is legally correct and perform duties in a sustained

well supported. manner. He does demonstrate

lo[t]s of impulsivity and

v. Drs. Jacquelyn Harrison, difficulty with managing his

PhD and Bonny Gregory, temper and is aggressive

M.D. towards others. He can perform

daily living skills and self-care

The ALJ also assessed the prior skills, but his social skills and

administrative medical findings of the judgment are below average

(Exhibit 3A). claimant has no mental health

treatment, which does not

The undersigned notes that support this level of limitation.

these opinions are internally

inconsistent, at one point (Tr. 28 (paragraph break inserted).)

noting that the claimant is

capable of work limited to The ALJ found Drs. Harrison and

simple, routine, repetitive Gregorys’ opinions somewhat

tasks; and at another point unpersuasive. First, as the ALJ

noting that the claimant cannot correctly pointed out, these opinions

perform work that requires are internally inconsistent, at one

adapting to simple tasks. The point noting that Michael is capable of

undersigned finds these work limited to simple, routine,

opinions somewhat repetitive tasks; and at another point

unpersuasive, as while some of noting that he cannot perform work

the opinions have support, that requires adapting to simple

finding that the claimant can tasks.6 (Tr. 28.)

adapt to a setting that does not

require simple tasks appears to Second, the ALJ accurately pointed

suggest that the claimant could out that Michael had not presented as

not work and adapt to a simple aggressive or having work preclusive

work environment, but both mental difficulties or symptoms

consultants found that the during his physical treatment. (Tr.

claimant could work. The 28, 471-523, see also Tr. 460-62, 464,

undersigned notes that the 466-68, 500, 513, 540, 546-47, 553-

claimant’s reports of temper 54.) Third, the ALJ pointed to

and aggressiveness are Michael’s lack of mental health

subjective reports, while the treatment as another reason for

claimant has not been noted as partially rejecting the non-examining

aggressive or any mental state agency opinions. (Tr. 28.)

difficulties or symptoms during Fourth, elsewhere in the decision, the

physical treatment in ALJ also pointed to Michael’s

December 2020, December extensive activities of daily living. (Tr.

2021, and early 2022 (Exhibits 22, 24, 27, 43, 52-53, 459, 466, 331-

8F and 9F). Furthermore, the 46.) The ALJ’s assessment of Drs.

6 The state agency experts’ reports appear totality of evidence in file, [Michael] has

to contain a typographical error that a severe mental impairment that imposes

should have stated Michael “can adapt to functional limitations on day-to-day

a setting that requires simple tasks” activities but not great enough to

rather than “[c]an adapt to a setting that preclude all work. [Michael] is able to

does not require simple tasks.” (Tr. 84, perform [simple, routine, repetitive,

98.) Elsewhere in their reports, the tasks].” (Tr. 80, 95.)

consultants stated that “[b]ased on

Harrison and Gregorys’ opinions is For all of the reasons set forth above,

legally correct and well supported. Michael’s objections are

unpersuasive.7

vi. Michael’s Objections to

the Contrary Are Not C. The Subjective Complaints

Persuasive. Assessment is Legally Correct and

Well Supported.

Michael’s objections to the contrary

are not persuasive. He contends that Michael’s challenge to the ALJ’s

the ALJ discounted every medical assessment of his subjective

opinion regarding his psychological complaints is likewise unpersuasive.

RFC and provided invalid reasons for “An ALJ assesses the credibility of a

doing so. Docket Entry 9 at 12. But claimant’s subjective statements

this is not so. All of the medical about his condition as part of the RFC

sources who evaluated the issue assessment,” Ladda v. Berryhill, 749

agreed that Michael could F. App’x 166, 170 (4th Cir. 2018)

understand, retain, and follow simple (unpublished), using a two-part test:

instructions. (Tr. 24, 463 (Ray), 25, “First, there must be objective

468 (Brannon), 26, 554 (Smith), 28, medical evidence showing ‘the

80, 83, 95, 97-98 (Harrison and existence of a medical impairment(s)

Gregory).) The ALJ reached the same which results from anatomical,

conclusion. (Tr. 21). physiological, or psychological

abnormalities and which could

Additionally, to the extent the ALJ did reasonably be expected to produce the

reject a limitation set forth in one of pain or other symptoms alleged,’”

the opinions discussed above, she Craig, 76 F.3d at 594 (citing 20 C.F.R.

gave multiple good reasons for doing §§ 416.929(b), 404.1529(b)).

so. These reasons included Michael’s

performance of a wide array of daily If such an impairment exists, the ALJ

activities, little to no mental health must then consider, as the second

treatment and no hospitalization prong of the test, all available

related to mental health during the evidence, including the claimant’s

relevant period, and grossly normal statements about pain, to determine

mental status examination with only whether the claimant is disabled. Id.

mild irritability and blunted affect. at 595-96. In so doing, the ALJ need

7 Michael’s reliance on Brandon K. v. own interpretation of the raw medical

O’Malley is also unpersuasive as it is evidence, and rejected the opinion of

factually distinct. Docket Entry 9 at 15. Plaintiff’s treating neurologist in a

See Brandon K. v. O’Malley, No. 22-cv- medically complex case without any

1041, 2024 WL 1331969, at *7-8 other medical review of the relevant

(M.D.N.C. Mar. 28, 2024) (“[T]he ALJ imagining and records from 2020

appears to have based the RFC in this through 2022.”).

case largely, and inappropriately, on her

not credit them if they conflict with (vii) “Other factors concerning

the objective medical evidence or if [the claimant’s] functional

the underlying impairment could not limitations and restrictions

reasonably be expected to cause the due to pain or other

symptoms alleged. Id. Where the ALJ symptoms.”

has considered the relevant factors,

see 20 C.F.R. § 416.929(c)(3), and 20 C.F.R. § 416.929(c)(3).

heard the claimant’s testimony and

observed his or her demeanor, the Here, the ALJ completed the two-

Court will defer to the ALJ’s step Craig analysis. As a preliminary

determination regarding those matter, the ALJ summarized

subjective complaints, Shively v. Michael’s subjective complaints. (Tr.

Heckler, 739 F.2d 987, 989 (4th Cir. 22.) Specifically, Michael alleged that

1984). he was disabled because of

“motorcycle accidents. He broke his

Those relevant factors include: thumb and had chronic back pain. His

back pain radiates down his right leg.

(i) “[The claimant’s] daily Pain is more than 10 on a pain scale.

activities;” He gets anxious. He does not get along

(ii) “The location, duration, with others. . . . He is easily

frequency, and intensity of sidetracked. He has problems

[the claimant’s] pain or managing his reactions.” (Tr. 22, 42-

other symptoms;” 59.)

(iii) “Precipitating and

aggravating factors;” The ALJ then concluded that

(iv) “The type, dosage, Michael’s “medically determinable

effectiveness, and side impairments could reasonably be

effects of any medication expected to cause some of the alleged

[the claimant] take[s] or symptoms . . . .” (Tr. 22.) Thus, the

[has] taken to alleviate his ALJ performed the first step of

pain or other symptoms;” the Craig analysis. Next, the ALJ

(v) “Treatment, other than performed step two of the analysis,

medication, [the claimant] concluding that Michael’s

receive[s] or [has] received “statements concerning the intensity,

for relief of his pain or other persistence and limiting effects of

symptoms;” these symptoms are not entirely

(vi) “Any measures [the consistent with the medical evidence

claimant] use[s] or [has] and other evidence in the record for

used to relieve his pain or the reasons explained in this

other symptoms (e.g., lying decision.” (Tr. 22.)

flat on [his] back, standing

for 15 to 20 minutes every The ALJ then gave good reasons for

hour, sleeping on a board, partially discounting Michael’s

etc.); and” subjective allegations. For example,

the ALJ relied on Michael’s largely work.”).) This is yet more substantial

normal mental status examinations. evidence of conduct inconsistent with

The ALJ noted that Michael’s allegations of total disability. For all

orientation, memory, recall, thought these reasons, the ALJ’s assessment

processes, attention and of Michael’s subjective complaints is

concentration were grossly normal, legally correct and well supported.

though his mood/affect was

sometimes mildly irritable. (Tr. 21, Fourth, this is not a case where the

24-25, 460-62, 464, 466-68, 500, 513, ALJ completely rejected all of a

540, 546-47, 553-54, 336.) This is claimant’s subjective complaints.

substantial evidence undermining Rather, here, for the many reasons set

Michael’s assertions of total disability. forth above, the ALJ concluded that

Michael’s symptom allegations,

Second, the ALJ pointed to Michael’s including those of extreme social

extensive daily activities, which limitations, should be partially

included (among other things) discounted. Consequently, the ALJ

driving, caring for his personal needs, limited Michael to understanding,

caring for his dog, shopping in stores, remembering, and carrying out

cleaning, cooking, going to bars and simple instructions that could be

the racetrack, participating in a detailed but not complex; with no

motorcycle club, and socializing with public contact and only occasional8

friends. (Tr. 22, 24, 27, 43, 52-53, 459, contact with co-workers and

462, 466, 331-46.) This is substantial supervisors; with only routine

evidence of conduct inconsistent with changes; and without with daily

allegations of total disability. quotas. (Tr. 21.) Beyond this, it is

clear from the vocational testimony

Third, Michael also testified that he that the jobs the ALJ ultimately

did not feel that he needed mental concluded that Michael could perform

health medication (Tr. 27, 49), that he (automobile detailer, store laborer,

did not notice any difference with the and industrial cleaner) required even

medication he had recently tried (Tr. “less than occasional contact with

50), and that he preferred instead to coworkers and supervisors.” (Tr. 30,

self-treat with marijuana (Tr. 27, 294, 63-65.) In short, the ALJ’s subjective

451, 462, 459, 535, 542). He also complaints analysis is legally correct,

reported looking for work but being well supported, and susceptible to

unable to find it due to his prison judicial review.

record. (Tr. 24, 457-58 (“I went to

prison when I was 19 and stayed in Michael’s objections to the contrary

there for 14 years, I’ve been trying to are not persuasive. He asserts that the

get work, but no one wants to give you ALJ improperly discounted his

8 Regulations define the term 1983 WL 31251, at *5; S.S.R. 96-9p, 1996

“occasional” as “occurring from very little WL 374185, at *3.

up to one-third of the time.” S.S.R. 83-10,

subjective allegations based on his without considering possible

limited mental health treatment reasons he or she may not

without explanation and in the face of comply with treatment or seek

evidence that he could not afford treatment consistent with the

treatment, understand the degree of his or her complaints.

appropriate treatment, or understand [The ALJ] may need to contact

the need for consistent treatment. the individual regarding the

Docket Entry 9 at 16-21. lack of treatment or, at an

administrative proceeding, ask

The United States Court of Appeals why he or she has not complied

for the Fourth Circuit has held that with or sought treatment in a

“[a] claimant may not be penalized for manner consistent with his or

failing to seek treatment [he or] she her complaints. When [the

cannot afford,” because “‘[i]t flies in ALJ] consider[s] the

the face of the patent purposes of the . individual’s treatment history,

. . Act to deny benefits to someone . . . [the ALJ] may consider (but [is]

too poor to obtain medical treatment not limited to) one or more of

that may help [her].’” Lovejoy v. the following:

Heckler, 790 F.2d 1114, 1117 (4th Cir.

1986) (quoting Gordon v. Schweiker, . . . .

725 F.2d 231, 237 (4th Cir. 1984)).

An individual may not be able

An administrative ruling provides to afford treatment and may

further insight when a claimant is not have access to free or low-

non-complaint with (or fails to seek) cost medical services.

treatment as follows:

. . . .

. . . [I]f the frequency or extent

of the treatment sought by an Due to various limitations

individual is not comparable (such as language or mental

with the degree of the limitations), an individual may

individual’s subjective not understand the appropriate

complaints, or if the individual treatment for or the need for

fails to follow prescribed consistent treatment of his or

treatment that might improve her impairment.

symptoms, [the ALJ] may find

the alleged intensity and . . . .

persistence of an individual’s

[An ALJ] will consider and

symptoms are inconsistent

address reasons for not

with the overall evidence of

pursuing treatment that are

record. [The ALJ] will not find

pertinent to an individual’s

an individual’s symptoms

case. [The ALJ] will review the

inconsistent with the evidence

case record to determine

in the record on this basis

whether there are explanations pointed to further evidence that

for inconsistencies in the regardless of whether he had access to

individual’s statements about mental health treatment, his

symptoms and their effects, preference was to self-medicate with

and whether the evidence of marijuana daily (sometimes up to

record supports any of the seven times per day). (Tr. 23, 24, 25,

individual’s statements at the 27, 535, 294, 459, 462, 451, 532, 542,

time he or she made them. [The 549.) In fact, at one point about a year

ALJ] will explain how [he or and a half before the alleged onset

she] considered the date, Michael was spending $400 per

individual’s reasons in [the month on marijuana. (Tr. 23, 448.)9

ALJ’s] evaluation of the

individual’s symptoms. Beyond this, even after Michael had

Medicaid, the record demonstrates

SSR 16-3p, 2017 WL 5180304, at *9- that he only received mental health

10 (Oct. 25, 2017) (“SSR 16-3p”) services at Daymark twice for about a

(emphasis added) (bullets omitted). total of one hour. (Tr. 539-50.) In any

event, the ALJ both acknowledged

Here, the ALJ complied with both Michael’s alleged inability to afford

Lovejoy and Ruling 16-3p. She treatment and provided an

addressed Michael’s ability to afford explanation for why she did not find

treatment by noting that as of Michael’s alleged lack of funds a

December 1, 2023 Michael “could get sufficient basis to justify the minimal

treatment now that he had Medicaid, treatment.10

but he then said he did not believe in

medications” and it was “unclear what Beyond this, even if Michael was

type of treatment he was referring to.” experiencing financial hardship, he

(Tr. 27, 46.) Thus, the ALJ failed to show that he did not have

acknowledged Michael’s uninsured access to free or low-cost medical

status until December of 2023, but services. Thus, the ALJ was permitted

9 The ALJ also states that Michael

received a $13,900.00 settlement after 10 Michael’s reliance on Howe v.

one of his motorcycle accidents but used Kijakazi, No. 7:22-CV-66-FL, 2023 WL

those funds to buy a motorcycle and a 5363719, at *5 (E.D.N.C. July 31, 2023) is

van, which would undermine his plea of also unpersuasive as it is factually

poverty. (Tr. 27.) Although Michael does distinct. Docket Entry 9 at 20. Howe v.

not challenge this finding, the ALJ does Kijakazi, No. 7:22-CV-66-FL, 2023 WL

not cite to evidence of its location in the 5363719, at *5 (E.D.N.C. July 31, 2023)

record, the Commissioner has not relied (“[T]he ALJ failed to consider why

upon it in its briefing, and the Court has Claimant was noncompliant with her

been unable to locate it. Thus, the Court medications. This was error[.]”).

has not relied upon it in assessing the

decision for substantial evidence.

to conclude that his symptoms were for his mental health symptoms, even

not as severe as alleged. See Dooley v. though he did so for his physical

Commissioner of Soc. Sec., 656 F. complaints (Tr. 24, 26, 496-523.)

App’x 113, 120 (6th Cir. 2016) Thus, the record fails to credibly

(“[A]lthough Dooley said that he demonstrate that Michael’s mental

could not afford to see a specialist for illness prevented him from seeking

mental health treatment, the record medical treatment.

does not indicate that he ever sought

mental health treatment from no-cost Last, assuming arguendo that the ALJ

to low-cost providers within his somehow erred here, the error was

community. The ALJ could therefore harmless. The ALJ’s subjective

reasonably conclude that Dooley’s complaints analysis turns on much

failure to seek more aggressive more than a negative credibility

medical treatment indicated that his determination based on a failure to

pain and other symptoms were not as seek treatment. By way of example,

severe as he alleged.”). Michael’s grossly normal mental

status reports, his extensive activities

Michael’s argument that the ALJ of daily living, and his active search

failed to explain whether his non- for employment were on their own

compliance was a symptom of his substantial evidence supporting the

mental illness is equally unavailing. ALJ’s subjective complaints

Docket Entry 9 at 21. Michael’s assessment.11 While Michael

mental impairments did not prevent disagrees and points to evidence that

him from self-medicating with the ALJ already considered to argue

marijuana daily because marijuana for greater limitations, it does not

allegedly was the only substance that follow that the ALJ’s decision was

helped with his mood. (Tr. 23, 24, 25, erroneous or that Michael can ask this

27, 535, 294, 459, 462, 451, 532, 542, Court to reweigh the evidence to

549.) And despite not taking any arrive at a different conclusion. For all

psychotropic medications, Michael these reasons, Michael’s objection is

never sought emergency room care without merit.

11 See Magruder v. Colvin, No. 2:16-CV- (M.D.N.C. Apr. 22, 2016); Turner v.

15, 2016 WL 6502531, at *17 (N.D.W. Va. Colvin, No. 3:12-CV-00422-MOC, 2013

Oct. 14, 2016), report and WL 1181603, at *4 (W.D.N.C. Mar. 21,

recommendation adopted, No. 2:16-CV- 2013); McKinney v. Astrue, No. 5:06-

15, 2016 WL 6495587 (N.D.W. Va. Nov. CV-00998, 2008 WL 754109, at *14

2, 2016) (even if ALJ erred by holding (S.D.W. Va. Mar. 19, 2008); Daryl B. v.

“Plaintiff’s failure to seek more extensive Saul, No. 3:19CV280 (DJN), 2020 WL

treatment against her,” the error was 1471690, at *10 (E.D. Va. Mar. 26, 2020);

harmless in light of the “otherwise Lopez v. Berryhill, No. 16 C 10532, 2017

thorough and well-reasoned credibility WL 3278844, at *6 (N.D. Ill. Aug. 2,

determination”); Hose v. Colvin, No. 2017).

1:15CV00662, 2016 WL 1627632, at *6

V. CONCLUSION

After careful consideration of the

evidence of record, the Court finds

that the Commissioner’s decision is

legally correct, supported by

substantial evidence, and susceptible

to judicial review. Accordingly, IT IS

HEREBY ORDERED that the final

decision of the Commissioner is

upheld.

ore □□ McFadden

nited States Magistrate Judge

May 6, 2026

Durham, NC

21