Opinion
2:20-CV-24-M
06-25-2021
KIMBERLY BALLENTINE BROOKOVER, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-25, -33] pursuant to Fed.R.Civ.P. 12(c). Claimant Kimberly Ballentine Brookover ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on October 17, 2016, alleging disability beginning February 3, 2015. (R. 12, 187-93). Her claim was denied initially and upon reconsideration. (R. 12, 75-102). A hearing before the Administrative Law Judge ("ALJ") was held on December 6, 2018, at which Claimant, represented by counsel; a witness; and a vocational expert ("VE") appeared and testified. (R. 12, 37-74). On February 27, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-31). On February 26, 2020, the Appeals Council denied Claimant's request for review. (R. 1-8). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 16 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.FR § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairments): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred in: (1) failing to find that Claimant's narcolepsy was a severe impairment, (2) weighing a 2016 functional capacity evaluation and the medical opinions contained therein, (3) failing to find Claimant disabled under Vocational Rule 201.14, (4) finding that Claimant could perform a modified range of light work, (5) assessing whether Claimant's statements were consistent with the medical and other evidence, and (6) failing to set forth all of Claimant's limitations in the hypothetical posed to the VE. PL's Mem. [DE-26] at 12-35.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since February 3, 2015, the alleged onset date. (R. 14). Next, the ALJ determined Claimant had the following severe impairments: degenerative disc disease, osteoarthrosis, fibromyalgia, and anxiety disorder. (R. 15). The ALJ also found Claimant had nonsevere impairments of gastroparesis, narcolepsy, acute respiratory infection, vitamin D and B12 disorder, hypothyroidism, hypocalcemia, hyperlipidemia, hyperglycemia, gastroesophageal reflux disorder, and obesity. (R. 15). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15-17). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R 17).
Prior to proceeding to step four, the ALJ assessed Claimant's RPC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
occasional use of the upper extremities for overhead lifting, reaching, pushing, and pulling bilaterally; frequent use of the upper extremities to lift, reach, pull, and push in all other directions; and frequent use of the upper extremities to grasp, finger, feel, and handle bilaterally. She is capable of occasional stooping, kneeling, crouching, climbing stairs and ramps, and using her lower extremities to operate foot and leg controls, and is not capable of climbing ladders, ropes, and scaffolds, but can tolerate occasional exposure to temperature extremes and concentrated levels of strong fumes, odors, and other environmental irritants. Additionally, the claimant cannot work around dangerous or moving mechanical parts and unprotected heights and will require the option of alternating between sitting, standing, and walking every 45 minutes, while not needing to leave the work station except for as allowed on regularly scheduled breaks in an eight-hour workday, which are defined as two 15 minute breaks and a 30 minute lunch break. The claimant would be off task no more than ten percent of the time during an eight-hour work schedule and would need unimpeded access to the restroom during regularly scheduled breaks. She is capable of performing work tasks described by the Dictionary of Occupational Titles ("DOT") as a reasoning level of three, with the abilities to do simple, repetitive, and routine tasks and to understand and carry out detailed but uninvolved oral and written instructions in two-hour intervals. The claimant is capable of occasional, direct interaction with the general public, coworkers, and supervisors and can perform jobs not requiring her to do fast paced assembly line work or complete a specific number of high volume production quotas on a defined timeline.(R. 17-25). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence. (R. 18).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as a school bus driver. (R. 25). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 25-26).
V. DISCUSSION
A. Even if the ALJ erred in finding that Claimant's narcolepsy was a nonsevere impairment, the error was harmless because the limitation in the RFC for narcolepsy is supported by substantial evidence.
Claimant contends the ALJ erred in finding that Claimant's narcolepsy was a nonsevere impairment. PL's Mem. [DE-26] at 25. At step two of the sequential evaluation process, the claimant bears the burden of demonstrating a severe, medically determinable impairment that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. §§ 404.1509, 404.1520. The Act describes "a physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). The regulations further require that physical or mental impairments must be medically determinable, meaning that they "established by objective medical evidence from an acceptable medical source." 20 C.F.R. § 404.1521. An impairment is "severe" unless it "has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984); see also 20 C.F.R. § 404.1522 ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities."). As such, the "severity standard is a slight one." Stemple v. Astrue, 475 F.Supp.2d 527, 536 (D. Md. 2007); see also McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (describing the burden of proving the severity of an impairment as "mild" and stating "only claims based on the most trivial impairments" are rejected).
The ALJ found that Claimant's narcolepsy was a nonsevere impairment and found that it and Claimant's other nonsevere impairments:
appear at one point or another in the medical evidence of record, usually in the context of routine office visits. The record reveals that the claimant received either brief, routine, conservative treatment, or, at times, more involved treatment, but in either case, there is no evidence that these impairments resulted in lasting sequelae. The evidence does not reveal that these impairments result in any work related limitations.(R. 15). In discussing Claimant's narcolepsy, the ALJ summarized Claimant's testimony that
"while she was working as a bus driver, she got so tired that she had to pull over to prevent from having an accident," and "she later underwent a sleep study, took leave from work, and did not return." (R. 18). The ALJ found, "Given her subjective complaints of severe fatigue, it would be dangerous for her to work around dangerous moving mechanical parts and unprotected heights."(R. 22).
In support of her argument that her narcolepsy is a severe impairment, Claimant cites a May 24, 2016 functional capacity evaluation. PL's Mem. [DE-26] at 25. At the evaluation, Dr. Soham Sheth noted that Claimant had a 2015 diagnosis for narcolepsy, and he concluded, "Due to symptoms of narcolepsy, she would need restrictions on operating machinery where safety issues were of concern. Although she demonstrated the ability to fully participate in approximately 3 1/2 hours of continuous FCE testing, her narcolepsy could potentially limit her ability to function in competitive full time employment." (R. 824).
On April 21, 2015, Claimant had a consultation with Dr. Sheth for her sleeping problems. (R. 609). She reported that she sleeps from around 9:00 pm to 7:30 am, wakes up multiple times at night, wakes up tired and sleepy, has to take a nap three to four hours after waking and may take another nap for around three to four hours. Id. Claimant reported that she used to work as a bus driver and felt sleepy while driving, so she is no longer driving a bus. Id. On May 7, 2015, Claimant underwent a sleep study. (R. 601-08). She was seen for multiple follow-up visits in 2015 and 2016 with Dr. Sheth where her medication was adjusted or continued. (R. 577-600). Dr. Sheth's assessment at many of those visits was:
Ms. Brookover presents with the history of having daytime sleepiness, non-refreshed sleep, obesity and high mallampati grade suggestive of high risk of sleep apnea. Given PSG and MSLT results, clinically her symptoms would be more suggestive of narcolepsy. She had mildly elevated AHI during REM sleep. She is on Provigil which is helping some. The patient does not want to consider xyrem at this time. She continues to be on significant pain medications which could be contributing to her problem. She continues to have sleepiness during the day and claims that there are days when she sleeps all day long and is not able to work.(R 579, 586, 589, 593, 596, 600).
The ALJ concluded that "there is no evidence that [the nonsevere] impairments resulted in lasting sequelae. The evidence does not reveal that these impairments result in any work related limitations." (R. 15). Nonetheless, the ALJ included a limitation in the RFC for Claimant's narcolepsy, precluding her from working around dangerous mechanical parts or unprotected heights. (R. 22). Even if the ALJ erred in finding that Claimant's narcolepsy was a nonsevere impairment, the error was harmless, for the ALJ included a specific limitation in the RFC for narcolepsy, and Claimant does not argue that more restrictive limitations are warranted for that impairment. PL's Mem. [DE-26] at 25. The limitation is supported by substantial evidence, for Dr. Sheth's assessment of Claimant's narcolepsy was that she has sleep apnea, daytime sleepiness, and a history of her hands and legs giving out, all of which is helped somewhat by medication, and that she would need restrictions on operating machinery. (R. 579). In light of Dr. Sheth's opinion, a limitation to no work around moving mechanical parts or unprotected heights is supported by substantial evidence, and even if the ALJ erred in finding that narcolepsy was a nonsevere impairment, the error was harmless.
B. The ALJ did not err in weighing the 2016 functional capacity evaluation.
Claimant contends the ALJ improperly weighed a functional capacity evaluation which contains medical opinions of her physical therapist. PL's Mem. [DE-26] at 25-27. When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 404.1527(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence," it is given controlling weight. Id. However, "[i]f 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." Craig, 76 F.3d at 590.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D. N.C. Sept. 24, 2013) (citations omitted). However, "[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." Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).
On May 24, 2016, Claimant underwent a functional capacity evaluation with Ms. Cindy Simmons, a physical therapist. (R. 822-24). Ms. Simmons found that "Overall test findings, in combination with clinical observations, suggest the presence of at least some degree of inconsistency to the reliability and accuracy of Ms. Brookover's reports of pain and disability." (R. 822). Ms. Simmons opined that Claimant could perform occasional standing and walking, defined as up to 1/3 of the day; frequent sitting, defined as 1/3 to 2/3 of the day; rare lifting, carrying, pushing, and pulling; occasional climbing and stooping; no crouching or crawling; occasional low-level work, including using her upper extremity to support kneeling; frequent reaching forward and handling; and occasional above-shoulder work. (R. 823). Ms. Simmons concluded:
Ms. Brookover demonstrated the ability to work at the sedentary physical demand level in an environment where she could intermittently change positions. She would require restrictions on prolonged standing, stooping and kneeling and full restrictions on squatting or crouching. Due to symptoms of narcolepsy, she would need restrictions on operating machinery where safety issues were of concern. Although she demonstrated the ability to fully participate in approximately 3 1/2 hours ofcontinuous FCE testing, her narcolepsy could potentially limit her ability to function in competitive full time employment.(R. 824).
The ALJ discussed Ms. Simmons's opinion as follows:
As for the opinion evidence, no weight is given to physical therapist Cindy Simmons'[s] May 2016 statement that the claimant is limited to sedentary work where she could intermittently change positions. She additionally indicates a variety of postural restrictions and notes that the claimant is unable to work near operating machinery, noting that narcolepsy could potentially limit the claimant's ability to function in competitive full time employment (Exhibit 8F). These opinions are often vague, at times do not specify the most that the claimant is capable of in a work setting as required by SSR 96-8p, and are made by a physical therapist who is not an acceptable medical source in accordance with Social Security Regulations (20 CFR 404.1502).(R. 24).
A physical therapist is not an acceptable medical source for claims filed before March 27, 2017. 20 CFR § 404.1502(a). Nonetheless, the ALJ was required to consider Ms. Simmons's opinion using the same factors he would use for acceptable medical sources, and ALJs "generally should explain the weight given to opinions from [medical sources who are not acceptable medical sources] or otherwise ensure that the discussion of the evidence ... allows a claimant or subsequent reviewer to follow the adjudicator's reasoning." 20 CFR. § 404.1527(f).
The ALJ did so here. The ALJ explained that he discounted Ms. Simmons's opinion for three reasons: it was vague, it does not specify the most that Claimant is capable of, and Ms. Simmons is not an acceptable medical source. (R. 24). Because Ms. Simmons was equivocal about Claimant's limitations, finding that "her narcolepsy could potentially limit her ability to function in competitive full time employment," (R. 824) (emphasis added), the court can trace the ALJ's reasoning in concluding that the opinion was vague. Additionally, Ms. Simmons did not offer an opinion on the most Claimant could do, but rather found that she demonstrated the ability to work at the sedentary level; she did not state that Claimant was limited to sedentary work. Id. Lastly, the ALJ discounted the opinion because Ms. Simmons is not an acceptable medical source. See Braswell v. Saul, No. 5:19-CV-336-KS, 2020 WL 4937509, at *5 (E.D. N.C. Aug. 24, 2020) (finding no error when an ALJ discounted a licensed therapist's opinion because she was not an acceptable medical source, among other reasons); Yang v. Saul, No. 3:19CV699-GCM, 2020 WL 4819954, at *3 (W.D. N.C. Aug. 19, 2020) (noting that while the ALJ must explain the weight given to opinions from sources who are not acceptable medical sources and consider the factors listed in 20 C.F.R. § 404.1527(c), "[t]herapists and nurse practitioners are not acceptable medical sources, ... and it cannot be error for the ALJ to give such an opinion little or even no consideration."); Scott v. Saul, No. 4:18-CV-150-D, 2020 WL 1286368, at *9 (E.D. N.C. Feb. 14, 2020) ("the ALJ's first reason for providing GNP Gibson's opinions little weight-that she is not an acceptable medical source-is proper."), adopted by 2020 WL 1285637 (E.D. N.C. Mar. 16, 2020). The ALJ sufficiently explained the weight given to Ms. Simmons's opinion such that the court can follow the ALJ's reasoning, which is supported by substantial evidence; accordingly, the ALJ did not err in discussing the opinion. See 20 C.F.R. § 404.1527(f)(2).
C. The ALJ did not err in failing to find Claimant disabled under Vocational Rule 201.14.
Claimant contends the ALJ should have found she was disabled pursuant to Vocational Rule 201.14. PL's Mem. [DE-26] at 27-28. At step five of the sequential evaluation process, the burden is on the Commissioner to show that the claimant possesses the RFC to adjust to the demands of other work. 20 C.F.R. § 404.1520. "If the claimant has no nonexertional impairments that prevent her from performing the full range of work at a given exertional level, the Commissioner may rely solely on the Grids to satisfy his burden of proof." Aistrop v. Barnhart, 36 Fed.Appx. 145, 146 (4th Cir. 2002). However, if the claimant does have nonexertional limitations, then the Grids serve "only as a guide," and the ALJ "must prove through expert vocational testimony that jobs exist in the national economy which the claimant can perform." Id. at 147; see also 20 C.F.R. § 4O4.l569a(d) (directing that when a claimant has a combination of exertional and nonexertional limitations, "we will not directly apply the rules in appendix 2 ... the rules provide a framework to guide our decision").
Vocational Rule 201.14 directs a finding of disabled if a claimant is limited to sedentary work, is closely approaching advanced age, is a high school graduate without education that provides for direct entry into skilled work, and has skilled or semi-skilled previous work experience without transferable skills. 20 C.F.R. § 404, subpt. P, app. 2, § 201.14; see also Godfrey v. Colvin, No. CV l:15-2036-CMC-SVH, 2016 WL 335338, at *13 n.5 (D.S.C. Jan. 26, 2016) (explaining the Medical-Vocational Guidelines and Rule 201.14), adopted by 2016 WL 338412 (D.S.C. Jan. 28, 2016).
Here, the ALJ found that Claimant was capable of performing a reduced range of light work. (R. 17-25). As discussed below, substantial evidence supports that finding. Accordingly, because Vocational Rule 201.14 requires a limitation to sedentary work, it is inapplicable, and the ALJ did not err in failing to apply that rule. See Busier v. Saul, No. 2:18-CV-49-FL, 2019 WL 8012294, at *7 (E.D. N.C. Aug. 27, 2019) ("Because the ALJ did not err in finding that Claimant could perform a reduced range of medium work, Claimant's observation that the Grids would direct a finding of disability had he been limited to sedentary work is moot."), adopted by 2019 WL 7343538 (E.D. N.C. Dec. 30, 2019).
D. The ALJ did not err in finding that Claimant could perform a modified range of light work.
Claimant contends the ALJ erred in finding that she can perform light work because she cannot sit, stand, and walk for six hours; lift and carry ten pounds on a frequent basis; or stoop and crouch on a frequent basis. PL's Mem. [DE-26] at 28-30. An individual's RFC is the capacity she possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1(July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including nonsevere impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted).
The ALJ limited Claimant to only occasional stooping and crouching. (R. 17).
"[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). However, the Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.
Here, the ALJ discussed Claimant's testimony that she can sit for twenty to thirty minutes, stand for five to ten minutes, and can walk for about twenty minutes with a walker. (R. 19). The ALJ summarized Claimant's treatment for her degenerative disc disease, including an October 2011 MRI and a November 2012 x-ray. Id. The ALJ noted that while the MRI and x-ray confirmed degenerative disc disease, Claimant "generally demonstrated normal strength, normal reflexes and negative straight leg raise testing, throughout 2014." Id. Claimant received "injections with moderate reduction in her pain," and in February 2015, Claimant had "a slightly forward posture and cane assisted mobility" but "her exam findings were otherwise generally normal." Id. After a March 2015 x-ray, Claimant was referred to physical therapy and treated with medication to avoid surgery; however, the ALJ noted, "the record does not show whether she followed up on this referral." Id. In July 2015, Claimant had "a normal gait, despite having a cane by her side and, otherwise, normal range of motion, no edema, and no weakness." Id. In August 2015, Claimant reported difficulty walking, but "on physical examination, she demonstrated normal motor strength and tone, normal movement of all extremities, and intact cranial nerves despite mild edema and tenderness." Id. A March 2015 MRI and x-ray showed no changes. Id. In May 2016, Claimant's "orthopedist advised her to continue conservative management of her pain with oxycodone and a home exercise program." Id. Claimant underwent more injections in July and August 2016, and "[b]y December 2016, she reported that analgesic therapy was improving her quality of life, and her clinical status remained the same." Id. The ALJ noted that Claimant used a cane, but she "showed normal strength, no neurovascular compromise, and negative FABERs testing despite noted tenderness and positive straight leg raise testing on the right." (R. 19-20). In March 2017, Claimant again reported "that analgesic therapy was improving her quality of life and her physician noted that she no longer demonstrated positive straight leg raise testing." (R. 20). She had tenderness but normal strength and "normal knee and ankle jerk despite her antalgic gait with use of a cane." Id. After Claimant's left hip replacement in October 2017, she had "normal movement of all extremities, normal motor strength, and normal motor tone despite using a cane to walk." Id. Claimant reported back pain in December 2017, but her physical examination findings remained the same. Id. In June 2018, Claimant "demonstrated normal gait, intact cranial nerves, normal sensation, and normal neck range of motion." Id. The ALJ concluded:
Given the claimant's degenerative disc disease, I have reduced her to the point that she would need the option to alternate between sitting, standing, and walking every 45 minutes without having to leave her workstation. She is further unable to climb ladders, ropes, and scaffolds. However, despite her spinal impairment, she is able to occasionally stoop, kneel, and climb stairs and ramps.Id. The ALJ's thorough discussion of Claimant's degenerative disc disease provides substantial evidence supporting the limitations in the RFC to light work with the option to alternate between sitting, standing, and walking every forty-five minutes and occasional stooping, kneeling, and climbing.
The ALJ also discussed Claimant's radiculopathy and neuropathy. Id. The ALJ noted Claimant's complaints of numbness in her arms in November 2013 and an electromyography and nerve conduction study which showed mild left sided neuropathy in her wrist. Id. However, in January 2014, "her physician noted no problems with her hands, nor does the record indicate that she complained of any issues." Id. Claimant next complained of numbness in September 2014, but she "demonstrated normal sensation, normal rapid alternating movements, and normal strength." Id. She also complained of numbness in January 2015, but "her clinical status remained the same and by April 2015, she again demonstrated normal strength and intact cranial nerves." Id. In July 2015, Claimant reported morning hand swelling, but she "had normal range of motion in all joints, was able to keep her arms raised without assistance, and did not demonstrate edema or synovitis." Id. The ALJ noted that in May 2016, an electromyography and nerve conduction study showed right ulnar neuropathy across Claimant's elbow. (R. 21). Claimant complained of worsening hand paresthesias in August 2016, but "she again demonstrated normal motor strength and normal deep tendon reflexes." In 2017, Claimant's "neurologist suggested conservative treatment of elbow pads for her pain." Id. In January 2018, she complained of paresthesia, but "she demonstrated normal findings on physical examination with normal cranial nerves, normal strength, and normal finger to nose testing." Id. Accordingly, the ALJ concluded:
Despite the claimant's radiculopathy and neuropathy related to her degenerative disc disease, she is capable of occasionally using the upper extremities for overhead activities and frequent use of those extremities for all other activities. She is further capable of frequently using the upper extremities for grasping, fingering, feeling, and handling bilaterally.Id. The ALJ's thorough discussion of Claimant's radiculopathy and neuropathy demonstrates that those limitations in the RFC are supported by substantial evidence.
The ALJ also discussed Claimant's osteoarthrosis in her hips. Id. A May 2012 x-ray showed significant hip arthritis, and Claimant complained of hip pain in September 2014, January 2015, and April 2017. Id. She was noted to have a "coxalgic gait on her left side with limited internal and external rotation of the left hip," and an x-ray "showed bone on bone arthritis and she was scheduled for a hip replacement." Id. Claimant underwent a left total hip replacement in June 2017, and in August 2017, she "demonstrated normal healing and an x-ray showed osseous integration of the hardware." Id. Her orthopedist predicted "that she should be full weight bearing." Id. In October 2017, Claimant had "normal movement of her extremities, normal motor strength, and normal muscle tone" despite using a cane. Id. The ALJ noted that the record does not demonstrate that Claimant complained of hip pain after October 2017. Id. The ALJ concluded, "[d]espite her bilateral hip osteoarthrosis, the claimant is capable of occasional crouching and using her lower extremities to operate foot and leg controls." Id. The ALJ's discussion of Claimant's osteoarthrosis provides substantial evidence supporting those limitations in the RFC.
Next, the ALJ discussed Claimant's fibromyalgia. Id. The ALJ summarized that "the medical evidence shows that the claimant has a longstanding history of generalized weakness, pain, and fatigue throughout the record." Id. In January 2015, Claimant had tenderness in multiple trigger points, and she was diagnosed with fibro myositis. Id. Claimant was treated with a selective serotonin reuptake inhibitor and nerve pain medication, and "throughout the rest of the record, she continues to complain of widespread pain, requiring multiple medication changes due to discomfort, sleeping issues, and anxiety." (R. 22). The ALJ concluded:
Despite the claimant's severe fibromyalgia in addition to her degenerative disc disease and osteoarthrosis, the claimant is capable of lifting 20 pounds occasionally and 10 pounds frequently; walking and standing six hours in an eight-hour workday; and sitting six-hours in an eight-hour workdays with the addition of the previously outlined ability to alternate between sitting and standing. Given her subjective complaints of severe fatigue, it would be dangerous for her to work around dangerous or moving mechanical parts and unprotected heights. Additionally, given her complaints of significant side effects from her prescription medications, the claimant requires unimpeded access to the restroom during regularly scheduled breaks, but would be off task no more than ten percent of the time during an eight-hour workday. Further, despite her subjective pain complaints and symptoms, the claimant is also capable of occasional exposure to temperature extremes and concentrated levels of strong fumes, odors, and other environmental irritants.Id. In arguing that she is not capable of performing work with those limitations, Claimant points to Dr. Tracey Pennington's course of treatment, the 2016 functional capacity report, Claimant's hearing testimony, and lay witness observations. PL's Mem. [DE-26] at 30.
First, Dr. Pennington treated Claimant's back pain in 2014. (R. 284-302). She noted that Claimant ambulated with a cane. (R. 286, 292, 297). Claimant completed a consultation with two neurosurgeons, but Dr. Pennington's notes indicate that she "reports that she is not seeking surgical treatment options at this time." (R. 284). In October 2014, Dr. Pennington recommended that Claimant "[c]onsider lumbar facet joint injections" and "[c]ontinue conservative management of the patient's chronic musculoskeletal pain syndrome," and Dr. Pennington prescribed Oxycodone. (R. 288, 296, 299, 301-02). The ALJ discussed Dr. Pennington's treatment of Claimant, (R. 19-20), and it is not clear how the treatment records conflict with the limitations contained in the RFC.
Next, the 2016 functional capacity report is discussed above, and Claimant's testimony is discussed below. The ALJ did not err in weighing the report or in finding that Claimant's statements were inconsistent with the medical and other evidence. Accordingly, they do not undermine the substantial evidence that supports the RFC.
Finally, Claimant cites lay witness observations in support of her argument that she cannot perform a modified range of light work. Evidence provided by "spouses, other relatives, friends, employers, and neighbors" is properly considered by the ALJ as evidence from "other non-medical sources." S.S.R. 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006). "[T]he adjudicator generally should explain the weight given to opinions from these 'other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." Id. at *6. In weighing the evidence, "it would be appropriate to consider such factors as the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence." Id.
S.S.R. 06-03p was rescinded for claims filed after March 27, 2017. 82 Fed. Reg. 15263-01 (Mar. 27, 2017). However, Claimant filed her application on October 17, 2016, so S.S.R. 06-03p is still applicable to her case.
On December 3, 2018, Shani Hall Selby wrote a statement describing Claimant's condition. (R. 266). Ms. Selby stated that she has been Claimant's friend for forty years and watched her health decline for ten years. Id. She stated that Claimant's fibromyalgia "causes her not to be able to use her hands, or walk and stand for long periods." Id. Claimant's degenerative disc disease and stenosis affect "her legs with numbness and tingling." Id. Ms. Selby helped Claimant "clean her house because she is unable to stand or use her hands to run the vacuum, wash dishes, etc." Id. Ms. Selby stated that Claimant does not want to leave her house because of panic attacks and anxiety, and Ms. Selby takes her to the grocery store weekly. Id. Ms. Selby stated that Claimant's emotional state is very fragile, and Ms. Selby does not tell her some things that she is going through "because it will cause her to worry." Id.
Ms. Selby also testified at Claimant's hearing. (R. 58-61). She stated that she sees Claimant at least every other day and communicates with her by telephone four or five times a day. (R. 58). Ms. Selby testified that Claimant's back pain affects her focus because "she's constantly moving to get comfortable" and "it's basically debilitating." (R. 59). Ms. Selby stated that she vacuums, sweeps, and does "whatever needs to be done-grocery shopping, loading, unloading, [and] laundry" for Claimant. Id. Ms. Selby drives Claimant to her doctors' appointments and to the grocery store. (R. 59-60). Ms. Selby stated that "[a] lot of times, she'll just give me her list and she'll sit in the car." (R. 60).
The ALJ discussed Ms. Selby's statements as follows:
The undersigned has considered the third party statement of the claimant's friend, Shani Hall Selby, pursuant to 20 CFR 404.1527 and 416.927. She testified at the hearing and offered a statement dated December 2018 (Exhibit 13E). The Regulations instruct the undersigned to consider such factors as the nature and extent of the [parties'] relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence. At the outset, it must be noted that the author of these opinions is not an acceptable medical source as defined in the regulation, nor does she have any type of treating relationship with the claimant, or professional qualifications to render opinions regarding the claimant's ability to perform work-related activities. Secondly, it must be noted that these opinions are neither functional nor diagnostic in nature and add little value to the decision herein. Although this witness has a longstanding relationship with the claimant, her letter is vague, thus rendering the opinion less probative. Finally, however, the opinions of the witness are inconsistent with the other evidence of record, which reflects that the claimant is capable of a reduced range of unskilled work. For all of the above reasons, the opinions set forth in Exhibit 13E are given little weight.(R. 25). The ALJ thereby appropriately considered the nature and extent of Ms. Selby's relationship with Claimant, concluding that while she has a longstanding relationship with Claimant, she is not a medical source and does not have a treating relationship. See S.S.R. 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006). The ALJ also considered whether Ms. Selby's statements are consistent with the other evidence of record. See Id. The court can trace the ALJ's reasoning in discounting the statements, so the ALJ did not err in discussing them.
In conclusion, Claimant's argument that she cannot perform a reduced range of light work is without merit, for the RFC is supported by substantial evidence. Claimant contends that Dr. Pennington's course of treatment, the 2016 functional capacity report, Claimant's hearing testimony, and lay witness observations demonstrate that she cannot perform a reduced range of light work, but it is not clear how Dr. Pennington's treatment of Claimant conflicts with the RFC, and the ALJ did not err in discussing the functional capacity report, Claimant's testimony, or Ms. Selby's statements. Accordingly, the ALJ did not err in formulating the RFC.
E. The ALJ did not err in assessing whether Claimant's statements were consistent with the medical and other evidence.
Claimant contends the ALJ failed to properly assess her statements. PL's Mem. [DE-26] at 30-33. When assessing a claimant's RFC, it is within the province of the ALJ to determine whether a claimant's statements are consistent with the medical and other evidence. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984) ("Because he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight.") (citation omitted). Federal regulation 20 C.F.R. § 404.1529(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[, ] and the extent to which it affects her ability to work," Craig, 76F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 404.1529(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
The ALJ summarized Claimant's hearing testimony as follows:
The claimant alleged that she is unable to work because her significant fatigue, joint pain, and dizziness make it difficult for her to function. She testified that while she was working as a bus driver, she got so tired that she had to pull over to prevent from having an accident. She stated that she later underwent a sleep study, took leave from work, and did not return. She also testified that she has had back issues for 15 years and indicated that her employer made accommodations for her to continue doing her job. She stated that she had two hip replacements, which cause pain, numbness, and constant burning in both of her legs. She noted that her pain is worse when she is laying down so she must keep her feet propped up. The claimant also noted that her fibromyalgia causes pain in all of her muscle and joints. She testified that she has flare ups one- to- two times a month that last anywhere from two days- to- two weeks. She explained that during these flares, her skin is painful to the touch and testified that it hurts to put on clothes. She stated that she had the same pain, burning, and numbness in her hands, wrists, and tops of her fingers. The claimant noted that she has no strength in her right hand, further indicating that she has no grip control. She stated that if she sits too long she feels significant pain in her lower lumber spine, estimating that she is able to sit for 20 to 30 minutes at a time. She estimated that she is able to stand for five to ten minutes and can walk about 20 minutes with a walker.(R. 18-19). The ALJ found that Claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence. (R. 18). The ALJ explained that Claimant testified that she currently needs an assistive device, but she was not prescribed one after the alleged onset date, and "though she used a cane she had a normal gait in July 2015 and her orthopedic surgeon recommended full weight bearing by August 2017 after her June 2017 left total hip replacement." (R. 24). Claimant "testified that she can become verbally abusive during her daily panic attacks, but only described her attacks as chest tightness to her primary care physician," and "though she testified to significant anxiety symptoms, she indicated that she did not seek mental health treatment due to her insurance and there is no evidence that she ever required hospitalization for this condition." Id. Finally, the ALJ wrote that Claimant "testified that she is unable to sit longer than 20 to 30 minutes and walk for about 20 minutes while using a walker, but she never reported using a walker to any of her physicians." Id.
Claimant contends that the ALJ improperly discounted her subjective complaints of pain from her fibromyalgia because they were not substantiated by objective medical evidence. PL's Mem. [DE-26] at 31-33. Fibromyalgia causes inflammation in the connective tissue of "muscles, tendons, ligaments, and other tissue." Slaydon v. Saul, No. 7:18-CV-54-FL, 2019 WL 3660573, at *3 (E.D. N.C. Aug. 6, 2019) (quoting Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004)). Its symptoms include "chronic widespread aching and stiffness, involving particularly the neck, shoulders, back, and hips, which is aggravated by the use of the affected muscles." Id. (quoting Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009)). This court has previously recognized that "objective tests are of little relevance in determining [fibromyalgia's] existence or severity." Batson v. Colvin, No. 7:14-CV-48-D, 2015 WL 1000791, at * 11(E.D. N.C. Mar. 5, 2015) (quoting McGlothlen v. Astrue, No. 7:11-CV-148-RJ, 2012 WL 3647411, at *9 (E.D. N.C. Aug. 23, 2012)). "[T]he absence of swelling joints or other orthopedic and neurologic deficits 'is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advanced.'" Slaydon, 2019 WL 3660573, at *3 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 109 (2d Cir. 2003)); see Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020) (holding that "ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence").
However, the ALJ here did not discount Claimant's subjective complaints because they were unsubstantiated by objective findings. Rather, he explained that he found three inconsistencies between Claimant's testimony and the medical and other evidence: first, Claimant stated that she used a cane, but no assistive device was prescribed after her alleged onset date, and her surgeon recommended full weight bearing two months after her hip replacement; second, Claimant testified to anxiety symptoms that she did not report to her physician; and third, Claimant testified that she can walk for only twenty minutes using a walker, but she never reported using a walker to any of her physicians. (R. 24). The ALJ did not improperly consider Claimant's fibromyalgia, but rather found inconsistencies in Claimant's hearing testimony and what she reported to her physicians regarding her use of an assistive device and her anxiety. Accordingly, the ALJ did not err in considering whether Claimant's testimony was inconsistent with the medical and other evidence.
F. The ALJ did not err in failing to set forth all of Claimant's limitations in the hypothetical posed to the VE.
Claimant contends the ALJ failed to accurately set forth all of her limitations in the hypothetical question posed to the VE. PL's Mem. [DE-26] at 33-35. The ALJ may utilize a VE at steps four and five "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be "relevant or helpful," it must be given in response to a proper hypothetical question. Id. A proper hypothetical question "fairly set[s] out all of claimant's impairments" that are supported by the record. Id.; Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question "adequately contemplated all of [claimant's] impairments and resulting limitations" as evidenced by the record).
Claimant's argument here is derivative of the RFC arguments addressed above and is rejected for the same reasons. The hypothetical to the VE included the limitations the ALJ found supported by the record that were imposed in the RFC. See King v. Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *8 (E.D. N.C. Dec. 6, 2018), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27, 2018). Therefore, the ALJ's hypothetical to the VE was proper.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-25] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-33] be ALLOWED, and the final decision of the Commissioner be UPHELD.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 9, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).