Opinion
2:17-CV-47-FL
12-19-2018
LESLIE MURHPY FAIN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Leslie Murphy Fain ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 16, 18. Both filed memoranda in support of their respective motions. D.E. 17, 19. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 4 May 2018 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be granted, plaintiff's motion be denied, and the Commissioner's decision be affirmed.
I. BACKGROUND
A. Case History
Plaintiff filed an application for DIB on 12 July 2013, alleging a disability onset date of 22 October 2011. Transcript of Proceedings ("Tr.") 17. The application at issue was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 17. On 12 May 2016, a hearing was held before an administrative law judge ("ALJ"), at which the witnesses were plaintiff, who was represented by counsel; plaintiff's husband; and a vocational expert. Tr. 17; 36-71. The ALJ issued a decision denying plaintiff's claims on 26 August 2016. Tr. 17-30.
Plaintiff timely requested review by the Appeals Council. Tr. 247. On 4 August 2017, the Appeals Council denied the request for review. Tr. 1.
At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 4 October 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See Compl. (D.E. 1).
The versions of the regulations and Social Security rulings under which the court is reviewing the ALJ's decision are those in effect on the date of issuance of the decision, 26 September 2016, although several have subsequently been modified.
B. Standards for Disability
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines 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." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five. At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.
See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to Supplemental Security Income ("SSI"). The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.
See also 20 C.F.R. § 404.1545(a)(2).
See also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2), 404.929.
C. ALJ's Findings
Plaintiff was 34 years old on the alleged onset date of disability; 37 years old on the date last insured, which the ALJ found to be 31 December 2014 (Tr. 19 ¶ 1); and 38 years old on the date of the hearing. See, e.g., Tr. 28 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 29 ¶ 8) and past relevant work as a registered nurse (Tr. 28 ¶ 6).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity from the date of alleged onset of disability through her date last insured. Tr. 19 ¶ 2. At step two, the ALJ found that through the date last insured plaintiff had the following severe medically determinable impairments: fibromyalgia, chronic fatigue syndrome, chronic pain syndrome, narcolepsy, major depressive disorder, personality disorder, and anxiety disorder. Tr. 19 ¶ 3. At step three, the ALJ found that through the date last insured plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 20 ¶ 4. The ALJ's analysis at step three expressly included consideration of Social Security Ruling 12-2p on evaluation of fibromyalgia. Soc. Sec. Ruling 12-2p, 2012 WL 3104869 (25 July 2012).
The ALJ determined that through the date last insured plaintiff had the RFC to perform a reduced range of light work as follows:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to no climbing ladders, ropes, or scaffolds and occasional balancing and climbing ramps or stairs. She can tolerate no exposure to extreme heat, extreme cold, vibration, or hazards. The claimant is able to understand, remember and carry out simple, routine, and repetitive tasks ["SRRTs"], with no production pace work; and she should have no public interaction and occasional interaction with coworkers and supervisors.Tr. 24 ¶ 5.
Under 20 C.F.R. § 404.1567(b), light work is defined as work involving "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b). In addition, "the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday . . . [and] [s]itting may occur intermittently during the remaining time." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *6 (1983); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "L-Light Work," 1991 WL 688702; 20 C.F.R. § 404.1567 (providing that light work and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT). Nonetheless, "[a] job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5.
Based on her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was not able to perform her past relevant work through the date last insured. Tr. 28 ¶ 6. At step five, adopting the testimony of the vocational expert, the ALJ found that through the date last insured there were jobs existing in significant numbers in the national economy that plaintiff could perform, including jobs in the occupations of merchandise marker, router, and routing clerk. Tr. 29 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged onset date of disability, 22 October 2011, through the date last insured, 31 December 2014. Tr. 30 ¶ 11.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner, here, the ALJ's decision adopted by the Commissioner, is limited to considering whether the decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded without a remand on the grounds that the ALJ erred by: (1) not according great weight to the opinions in the medical source statement of two of plaintiff's primary care providers, Dan A. Naumann, M.D. and Christen Crisostomo, M.D., both of Cedar Road Medical Associates in Chesapeake, Virginia; (2) improperly assessing plaintiff's statements regarding her impairments, that is, her symptoms; (3) improperly evaluating plaintiff's RFC; (4) not including all of plaintiff's impairments in the hypothetical to the vocational expert that elicited testimony upon which the ALJ relied for her finding at step five; and (5) not finding plaintiff to be disabled. Each ground is addressed in turn below.
See 20 C.F.R. § 404.1528(a) (defining symptoms as a claimant's statements about his impairments).
IV. ALJ'S ASSESSMENT OF DR. NAUMANN'S AND DR. CRISOSTOMO'S OPINIONS
A. Applicable Legal Principles
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. § 404.1527(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F. Supp. 2d 740, 752 (N.D.W. Va. 2009) ("Pursuant to 20 C.F.R. § 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); see generally Soc. Sec. Ruling 96- 2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, namely, the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §404.1527(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. § 404.1527(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
The same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. § 404.1527(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (21 Apr. 2015); Napier, 2013 WL 1856469, at *2. More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to the opinions of an examining source than to the opinions of a nonexamining source. See 20 C.F.R. § 404.1527(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. § 404.1527(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
B. Dr. Naumann's Opinions
The record contains notes on three office visits by plaintiff with Dr. Naumann, on 11 September 2014 (Tr. 502-05), 25 November 2014 (Tr. 497-501), and 9 March 2015 (Tr. 493-96).,
In his medical source statement, Dr. Naumann indicates that his treatment of plaintiff started on 11 December 2013 (Tr. 484 no. 1), but the record does not contain a note on that visit.
Associated laboratory reports appear at Tr. 506-10.
In addition, on 9 March 2015, Dr. Naumann issued a medical source statement on a preprinted form. Tr. 484-91. In it, he found essentially that plaintiff's impairments were disabling. For example, he opined that plaintiff: had reduced range of motion, reduced grip strength, and abnormal posture (Tr. 484 no. 5); could sit for less than 15 minutes at a time and a total of 1 hour in an 8-hour workday (Tr. 485-86 no. 11(A), (F)); could stand or walk for no more than 15 minutes at a time and less than a total of 1 hour in an 8-hour workday (Tr. 486-87 no. 12(A), (D)); would need more than a total of 6 hours of resting or lying down in a supine position in an 8-hour workday (Tr. 487 no. 13(C)); could never carry or lift more than 10 pounds (Tr. 487-88 no. 14); could never stoop (Tr. 488 no. 16); could never flex her neck backward or forward, or rotate it to the right or left (Tr. 488 no. 17(A)-(D)); could occasionally engage in reaching with either hand, but never engage in handling or fingering with either hand (Tr. 488-89 no. 18(A)-(C)); and would likely be absent from work more than 3 times every month (Tr. 490 no. 20).
The ALJ gave "little weight" to Dr. Naumann's opinions. Tr. 27 ¶ 5. Plaintiff contends that the ALJ should have given Dr. Naumann's opinions "great weight" pursuant to the attending or treating physician rule in Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). The court disagrees.
Plaintiff's reliance on the treating physician rule is misplaced. Promulgation of 20 C.F.R. §§ 404.1527 and 416.927 in 1991 superseded that rule. See, e.g., Stroup v. Apfel, 205 F.3d 1334, 2000 WL 216620, at *4-5 (4th Cir. 24 Feb. 2000) (table).
More fundamentally, the ALJ's evaluation of Dr. Naumann's opinions was proper. She stated:
The medical source statement by Dr. Dan Naumann is given little weight. Dr. Naumann outlined functioning for the claimant at less than a sedentary exertional level. This level of functioning is not consistent with the findings Dr. Naumann
made during office visits with the claimant. Thus, given the examining and treating relationship Dr. Naumann had with the claimant and the inconsistency between those reports and his conclusions, greater weight is given to the objective findings and physical observations Dr. Naumann made about the claimant rather than the description, which is not reflective of those findings. (Exhibit B11F).Tr. 27 ¶ 5.
Title 20 C.F.R. § 404.1567(a) defines sedentary as work "involv[ing] lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." Similarly, the DOT defines sedentary work as
[e]xerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.DOT, app. C § IV, def of "S-Sedentary Work," 1991 WL 688702. As noted, the terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. § 404.1567.
The reason given by the ALJ for discounting Dr. Naumann's opinions—inconsistency with his own treatment records—is a proper consideration under the Regulations. See Tr. 20 C.F.R. § 404.1527(c)(4).
In addition, the ALJ's analysis is supported by substantial evidence. Dr. Naumann's findings on examination of plaintiff were almost uniformly normal, including findings of normal gait and posture and range of motion of the neck on each of her visits with him. See Tr. 495-96, 499-500, 504-05. In only one visit, that of 9 March 2015, did he note multiple trigger points for plaintiff. Tr. 496 ("multiple trigger points symmetric"). As the ALJ observed, the description of plaintiff by Dr. Naumann in his medical source statement is "not reflective of th[e] findings" by him in his treatment notes. Tr. 27 ¶ 5; see also Tr. 25 ¶ 5 (ALJ's finding expressed through citation to the exhibit, Ex. B12F, containing Dr. Naumann's treatment notes that at visits with him plaintiff "consistently had normal mood and affect, orientation, judgment, and insight").
Plaintiff argues that the ALJ erred by not identifying the inconsistencies with Dr. Naumann's office visit findings to which she was referring in her determination to discount his opinions. The inconsistencies, though, are manifest. No further specification by the ALJ was necessary.
Plaintiff also cites the vocational expert's testimony on cross-examination to the effect that plaintiff was disabled. But the testimony to which she refers was premised on limitations posited by Dr. Naumann, as well as Dr. Crisostomo. See Tr. 67-70. This testimony therefore does not address whether the ALJ acted properly in discounting those opinions.
The court concludes that plaintiff's challenge to the ALJ's assessment of Dr. Naumann's opinions is meritless. The court therefore rejects it.
B. Dr. Crisostomo's Opinions
The record contains notes on six office visits by plaintiff with Dr. Crisostomo, on 12 June 2015 (Tr. 545-47), 14 July 2015 (Tr. 542-44), 14 October 2015 (Tr. 539-41), 8 March 2016 (Tr. 536-38), 14 April 2016 (Tr. 533-35), and 20 April 2016 (Tr. 531-32).
On 19 April 2016, Dr. Crisostomo issued a medical source statement on the same form used by Dr. Naumann. Tr. 560-66. Like Dr. Naumann, she found essentially that plaintiff's impairments were disabling. Mirroring many of Dr. Naumann's findings, she opined that plaintiff: had reduced range of motion (Tr. 560 no. 5); could sit for 15 minutes at a time but no more than a total of 2 hours in an 8-hour workday (Tr. 562-63 no. 11(A), (F)); could stand or walk for 2 hours at a time but no more than a total of less than 1 hour in an 8-hour workday (Tr. 562-63 nos. 12(A), (D)); would need more than a total of 6 hours of resting in an 8-hour workday (Tr. 563 no. 13(C)); could never carry or lift more than 10 pounds (Tr. 563 no. 14); could stoop occasionally (Tr. 564 no. 16); could occasionally flex her neck backward or forward, or rotate it to the right or left (Tr. 564 no. 17(A)-(D)); could occasionally engage in reaching, handling, and fingering with either hand (Tr. 564 no. 18(A)-(C)); and would likely be absent from work more than 3 times every month (Tr. 565 no. 20).
The ALJ gave "little weight" to Dr. Crisostomo's opinions. Tr. 28 ¶ 5. Plaintiff contends that the ALJ should have given Dr. Crisostomo's opinions "great weight" pursuant to the treating physician rule in Coffman but, as discussed, that rule has been superseded by the Regulations. See, e.g., Stroup, 205 F.3d 1334, 2000 WL 216620, at *4-5; 20 C.F.R. § 404.1527.
Moreover, as with the ALJ's evaluation of Dr. Naumann's opinions, the ALJ's evaluation of Dr. Crisostomo's opinions was proper. She stated:
The medical source statement by Dr. Christen Crisostomo is also given little weight. The findings that the claimant is limited to a reduced range of sedentary work is not supported by Dr. Crisostomo's own treatment records, which do show that the claimant has diagnoses of fibromyalgia, depression, anxiety, and chronic fatigue. However, the records do not contain objective clinical or exam findings that demonstrate that these would prohibit the claimant from working (Exhibit B17F).Tr. 28 ¶ 5.
Inconsistency of Dr. Crisostomo's opinions with her treatment records is, of course, a proper consideration under the Regulations. See 20 C.F.R. § 404.1527(c)(4).
In addition, review of Dr. Crisotomo's treatment notes shows that the ALJ's analysis is supported by substantial evidence. Dr. Crisostomo's findings on examination of plaintiff were generally normal and do not reflect the disabling limitations she posits in her medical source statement. See Tr. 532, 534, 537, 540, 543, 546.
Plaintiff argues, as with the ALJ's assessment of Dr. Naumann's opinions, that the ALJ did not adequately identify the inconsistencies between Dr. Crisostomo's opinions and her treatment records. As with Dr. Naumann's treatment notes, though, the inconsistencies are apparent and did not require further identification.
Lastly, as discussed, the vocational expert's testimony on cross-examination to the effect that plaintiff is disabled does not relate to the issue of whether the ALJ erred in discounting those opinions. Rather, the testimony is premised on the validity of those limitations.
For the reasons stated, the court rejects plaintiff's challenge to the ALJ's assessment of Dr. Crisostomo's opinions.
V. ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS
A. Applicable Legal Principles
As noted, symptoms are defined under the Regulations as a claimant's own descriptions of his impairments. 20 C.F.R. § 404.1528(a). The ALJ must employ a two-step process for evaluating a claimant's symptoms:
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult . . . .Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (25 Oct. 2017) (effective 28 Mar. 2016); 20 C.F.R. § 404.1529(b), (c)(1); Craig, 76 F. 3d at 594-95.
In evaluating a claimant's symptoms at step two, the ALJ must consider "the entire case record." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. § 404.1529(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence . . . ."); Craig, 76 F. 3d at 595. The evidence and factors that are considered, when relevant, include: the claimant's history; medical signs and laboratory findings; statements from the claimant, the claimant's treating and nontreating sources, and other persons about how the claimant's symptoms affect the claimant, including medical opinions; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; any measures the claimant uses or has used to relieve his pain or other symptoms; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *9.
B. Analysis
The ALJ summarized plaintiff's testimony as follows:
The claimant testified that she stopped working because she was sleeping all of the time, and she hurt so bad that she felt like she was dying. She stated that even after being off work, she still felt bad. She alleged that she has thyroid issues, ADD [i.e., attention deficit disorder], fibromyalgia, narcolepsy, major depression, severe anxiety, and high blood pressure. She stated that she hurts in different places at different times, and it is never the same. The claimant said that the doctors found tender points all over, but she is not sure of the amount. She described the pain as feeling like she is on fire, and said she does not have any stamina. She stated that she takes medication and lies down. The claimant goes to see her psychiatrist every other month to get her medicine straight. She reported side effects from her medication including drowsiness, feeling out of it, loss of memory, and dry mouth. She stated that she had her first panic attack when someone tried to break into her house, and around that time she began feeling bad. She said that she has gone to the hospital for mental health once, but they did not admit her. The claimant testified that on a good day she can walk an hour or two, if she can sit down in between. On a typical day, she walks around her house and yard some. She reported that she could stand about 15 minutes, and sit for a long time as long as she can move her legs and change positions in the chair, but can only sit for five minutes without changing positions. She stated that she could lift about 10 pounds. She said that she does not get up one to three days a week. She said that she spends
about two to four hours daily lying down. The claimant alleged that her pain affected her concentration and memory, and she would not be able to learn new things.Tr. 24-25 ¶ 5.
The ALJ made the step one finding that "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 25 ¶ 5. However, at the second step, the ALJ found that
the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.Tr. 25 ¶ 5.
The ALJ went on to explain, in part, as follows:
The objective evidence of record does not fully support the claimant's subjective allegations. In her testimony and throughout the record, the claimant reports a complicated, disconnected account to relay how she got to her current state. The claimant's doctors have asked her to be specific about pain, and she eventually was able to relay that she had pain in hands, feet, and between her shoulders (Exhibit B5F). The claimant was advised to exercise daily, but she admitted that she did not do that because she felt worse (Exhibit B3F). April 2016 treatment records list the claimant as stable, but she asserted that she continued to be impaired by the conditions (Exhibit B15F). There are numerous records that show normal findings on physical exams, but it becomes clear that the claimant has chronic pain syndrome and chronic fatigue syndrome, giving greater weight in her mind to what she perceives as being the case. The Social Security Regulations give some explanation that in these circumstances, the individual has complaints that are not supported by objective findings. Thus, in this case, symptoms are accepted to a greater extent than presented or supported by the objective findings. Even so, not all limitations described by the claimant are fully supported and thus, allowances are made to accommodate reported areas of distress but not entirely limiting the claimant's ability to function as is demonstrated by her own day-to-day activities as a member of her family.Tr. 26 ¶ 5.
As to plaintiff's daily activities with her family, the ALJ found:
The claimant testified that she has children and she cares for her son during the day. She stated that she helps with the chores, and she cannot do it for long, but that was due to physical limitations rather than mental. The claimant described lifting her dogs, school bags, and groceries.Tr. 23 ¶ 4. The ALJ also found that, as to social functioning, plaintiff "interacts with . . . her own family regularly," although because of stamina and fatigue, was unable to act with others on a sustained basis. Tr. 23 ¶ 4. The ALJ made these findings as part of her determinations that plaintiff had mild restrictions in activities of daily living and moderate limitations in social functioning in applying the special technique for mental impairments at step three of the sequential analysis. See Tr. 22-23 ¶ 4. The fact that the ALJ made these findings outside his assessment of plaintiff's symptoms does not render them inapposite to that assessment because the ALJ's decision must be read as a whole. See, e.g., Smith v. Astrue, No. 11-1574, 2011 WL 6188731, at *1 (4th Cir. 14 Dec. 2011); Lydia v. Astrue, No. 2:11-1453-DCN-BHH, 2012 WL 3304107, at *5 (D.S.C. 25 Jul. 2012) ("This sort of deconstruction of the ALJ's decision [ ] is not useful. The ALJ's decision must be read as a whole."), rep. & recomm. adopted, 2012 WL 3308108, at *1 (13 Aug. 2012); Finley v. Astrue, No. 5:08-CV-209-D(1), 2009 WL 2489264, at *5 (E.D.N.C. 8 July 2009) ("[T]he ALJ's decision may appropriately be read 'as a whole.'" (quoting Jones v. Barnhart, 364 F.3d 501, 504-05 (3rd Cir. 2004))), mem. & recomm. adopted, 2009 WL 2489264, at *1 (13 Aug. 2009).
The Regulations require an ALJ to use the special technique, as described in 20 C.F.R. § 404.1520a(b)-(e), to evaluate any medically determinable mental impairments the ALJ finds the claimant to have. 20 C.F.R. § 404.1520a(a). Under the special technique, an ALJ rates the degree of a claimant's functional limitation in four broad areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The first three functional areas are rated on a five-point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). A four-point scale is used to rate the fourth functional area: none, one or two, three, and four or more. 20 C.F.R. § 404.1520a(c)(4). The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity. 20 C.F.R. § 404.1520a(c)(4). Because the criteria, including the associated ratings, in the special technique are the same as those in paragraph B of many of the Listings relating to mental impairments, they are often referred to as the paragraph B criteria. See Listing 12.00.C; see also, e.g., Listings 12.02.B., 12.03.B. Although 20 C.F.R. § 404.1520a was amended subsequent to issuance of the ALJ's decision, effective 17 January 2017 and again effective 27 March 2017, the ALJ properly applied the version in effect at the time of her decision, and the court is properly reviewing her decision under that version. See, e.g., Brasseur v. Berryhill, at *6-7 (S.D. Tex. 8 June 2018).
Further support for and explanation of the ALJ's assessment of plaintiff's symptoms is found in various sets of medical opinions and the ALJ's evaluation of them. One such set of medical opinions is those of psychiatrist Robert Mitchell, M.D., who performed a consultative psychiatric evaluation of plaintiff on 4 October 2013. Tr. 440-42. Consistent with the ALJ's assessment of plaintiff's symptoms, he did not find her to have disabling mental impairments. Indeed, he found plaintiff to have fewer limitations in social functioning than the ALJ did, resulting in her attribution of "partial weight" to Dr. Mitchell's opinions. See Tr. 27 ¶ 5. The ALJ stated:
The consultative examination by Dr. Robert Mitchell is given partial weight as it is not fully consistent with the record as a whole. Dr. Mitchell found that the claimant would be able to understand, retain and follow instructions, perform simple, repetitive tasks, relate effectively to coworkers and supervisors, and tolerate the stress and pressure associated with day-to-day work activity. The undersigned agrees that the claimant is able to understand and follow instructions and perform simple tasks. Testimony at the hearing showed that she is able to do simple things around the house and shop, and her medical records do not show that she is so impaired that she could not follow instructions or perform simple tasks. However, interacting with others causes the claimant stress, so there is a lower level of ability than described here (Exhibit B6F).Tr. 27 ¶ 5.
Also supportive of the ALJ's assessment of plaintiff's symptoms are the opinions of psychologist Gregory Michael, Ed.D. In his report on his consultative evaluation of plaintiff on 19 July 2015 (Tr. 511-18), he found, as the ALJ stated, that "the claimant has some limitations related to her mental impairments, but not enough to be disabling." Tr. 27 ¶ 5. The ALJ gave Dr. Michael's opinions "great weight," stating:
The undersigned gives great weight to Dr. Gregory Michael's consultative examination. Dr. Michael found that the claimant had mild limitations in carrying out complex instructions, making judgments on complex decisions, interacting appropriately with the public, coworkers, and supervisors, and responding appropriately to usual work situations. This assessment corresponds with objective evidence showing that the claimant has issues with anxiety that does limit her in some ways. The undersigned agrees with these findings that the claimant has some
limitations related to her mental impairments, but not enough to be disabling (Exhibit B13F).Tr. 27 ¶ 5.
Nonexamining state agency consulting psychologist Betty B. Aldridge, Psy.D. also found on 18 October 2013 at the initial level of review that plaintiff's mental conditions were not disabling. Tr. 98-99. In fact, she found plaintiff not to have any severe mental impairments. Because the ALJ found that this evaluation understated plaintiff's mental limitations, she gave it "little weight":
The undersigned gives little weight to Dr. Betty Aldridge, the state's consultant at the initial level. Dr. Aldridge opined that the claimant had no severe mental impairment, and that the claimant had mild limitations in maintaining social functioning and no limitations in the areas of activities of daily living and maintaining concentration, persistence, or pace. While the claimant denies and rejects need for mental health treatment, the record shows that she has diagnoses and has engaged in some, but not all recommended, mental health treatment and is affected by mental impairments. The claimant was being treated for depression and anxiety, and was prescribed medication; all of which support a finding that the claimant would have severe mental impairments that would cause some limitations for the claimant (Exhibit B3 A).Tr. 26 ¶ 5.
Nonexamining state agency consulting psychologist Lori Brandon Souther, Ph.D. additionally found on 19 November 2013 at the reconsideration level of review that plaintiff's mental impairments were not disabling. Tr. 111-13, 115-17. In this instance, the ALJ gave the opinions "partial weight," stating as follows:
The undersigned gives partial weight to Dr. Lori Souther. Great weight is given to all of Dr. Souther's findings except that the claimant's activities of daily living are impacted by her mental health impairments. The claimant's own testimony demonstrates that any limitations in this area are caused by physical impairments (Exhibit B5A).Tr. 26-27 ¶ 5.
In addition, there is the physical evaluation of plaintiff at the reconsideration level by Dorothy Linster, M.D. on 20 November 2013. Tr. 114-15. She found plaintiff's physical impairments to be even less limiting than the ALJ found them to be. The ALJ therefore gave her opinions "partial weight":
The physical RFC assessment at the initial level of review (Tr. 101-02) was conducted by a single decision maker or "SDM" and it therefore is entitled to no weight. See Smith v. Berryhill, No. 7:17-CV-139-D, 2018 WL 3800044, at *4 (23 July 2018), mem. & recomm. adopted, 2018 WL 3785399 (9 Aug. 2018) (citing, e.g., Nicholson v. Astrue, Civ. No. 1:09cv271, 2010 WL 4506997, at *6 & n.2 (W.D.N.C. 29 Oct. 2010) (collecting cases)). --------
Dr. Dorothy Linster's opinions are given partial weight. Dr. Linster assessed that the claimant could do a full range of light work. However, records documenting that the claimant had fibromyalgia with multiple positive trigger points and chronic pain show that the claimant should have some additional limitations in terms of postural activities and environmental factors. Though the undersigned finds that the claimant has greater exertional restrictions than Dr. Linster found, those restrictions do start in the general area as Dr. Linster's assessed restrictions (Exhibit B5A).Tr. 27 ¶ 5.
Although the opinions of Dr. Naumann and Dr. Crisostomo do tend to support plaintiff's statements regarding her impairments, the ALJ properly discounted these opinions, as previously discussed.
Plaintiff argues essentially that the nature and chronicity of her impairments, despite treatment, have imposed functional limitations on her and that there is no evidence that her allegations regarding these limitations are incredible. The fact that plaintiff's impairments impose functional limitations on her is, of course, undisputed. And there is evidence justifying the determination that plaintiff's symptoms should not be fully credited. As the foregoing review of the ALJ's decision indicates, the ALJ identified substantial evidence supporting her determination that plaintiff's statements concerning the intensity, persistence, and limiting effects of her impairments are not entirely consistent with the medical and other evidence in the record and therefore warranted being discounted.
Plaintiff also contends that the ALJ failed to build "'an accurate and logical bridge from the evidence to [her] conclusion'" to discount plaintiff's symptoms. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). The court disagrees. The foregoing review of the ALJ's decision shows that the ALJ did adequately explain her assessment of plaintiff's symptoms.
In sum, the court concludes that the ALJ's assessment of plaintiff's symptoms is based on applicable legal standards, including consideration of plaintiff's daily activities, her medical signs, her treatment, and statements by treating and nontreating sources regarding the effects of her impairments. See 20 C.F.R. § 404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The assessment of plaintiff's symptoms is also supported by substantial evidence. Plaintiff's challenge to the assessment therefore fails.
VI. ALJ'S RFC DETERMINATION
A. Applicable Legal Principles
As discussed, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. § 404.1545(a)(3). The assessment includes evaluation of the claimant's symptoms. See, e.g., Mascio, 780 F.3d at 639; Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *12; Soc. Sec. Ruling 96- 8p, 1996 WL 374184, at *5, 7. An ALJ's decision must state his RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7.
Concentration, persistence, or pace "refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." Listing 12.00C3. As noted previously, it is one of four broad functional areas assessed using the special technique for mental impairments under the Regulations. See 20 C.F.R. § 404.1520a. Mascio instructs that "an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). The court reasoned:
[T]he ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.Id. The court recognized that a claimant's limitation in concentration, persistence, or pace may not translate into a limitation in the RFC, but held that the ALJ must explain if that is the case. Id. In the absence of such an explanation, remand is in order. Id.; see also, e.g., Herren v. Colvin, No. 1:15-cv-00002-MOC, 2015 WL 5725903, at *5-7 (W.D.N.C. 20 Sept. 2015).
B. Analysis
Plaintiff challenges the ALJ's RFC determination, in part, on the ground that the medical evidence shows that she could not meet the standing and walking, or sitting requirements for light work. Again, to perform a full range of such work, a claimant must be able to stand or walk approximately six hours in an eight-hour workday and to sit, at a minimum, during the remaining time. Soc. Sec. Ruling 83-10, 1983 WL 31251, at *6. Substantial evidence, though, supports the determination by the ALJ that plaintiff did have this capacity.
This evidence includes the explicit determination by Dr. Linster, as part of her physical RFC assessment, that plaintiff could stand or walk, or sit up to six hours in an eight-hour workday. Tr. 114. In addition, in the treatment records of Dr. Naumann and Dr. Crisostomo, there is a paucity of evidence supporting their opinions that plaintiff's physical (and other limitations) prevent her from performing work at even the sedentary level. As discussed, the ALJ properly discounted Dr. Naumann's and Dr. Crisostomo's opinions on this basis.
The evidence of plaintiff's daily activities also supports the ALJ's determination that she can perform light work. Moreover, the ALJ properly discounted plaintiff's statements to the effect that her impairments prevented her from standing or walking six to eight hours in an eight-hour workday, or sitting sufficiently long to perform light work.
The burden rested on plaintiff to show that her RFC was as limited as she alleges. See Mascio, 780 F.3d at 634-35. She has not pointed to evidence in the record compelling the determination that it was so limited.
Plaintiff also challenges the ALJ's RFC determination on the ground that it fails to adequately account for the moderate difficulties she found plaintiff to have in concentration, persistence, or pace in violation of Mascio. But the ALJ did not limit plaintiff solely to simple routine tasks as in Mascio. In addition to SRRTs, she also limited plaintiff to no production pace work, no public interaction, and occasional interaction with coworkers and supervisors. Tr. 24 ¶ 5. Such limitations with the limitation to SRRTs can be sufficient to account for a plaintiff's moderate difficulties in concentration, persistence, or pace. See, e.g., Bowen v. Berryhill, No. 5:16- CV-65-FL, 2017 WL 9478523, at *10 (E.D.N.C. 22 Feb. 2017) (collecting cases), mag. judge recomm. adopted, 2017 WL 1194462 (31 Mar. 2017).
Substantial evidence supports the ALJ's determination here that limitation of plaintiff to SRRTs, no production pace work, no public interaction, and occasional interaction with coworkers and supervisors was sufficient to account for her moderate difficulties in concentration, persistence, or pace. This evidence includes the specific finding by Dr. Souther that "the [claimant] appears capable of performing SRRTs in a low-stress setting with minimal social demands." Tr. 117. This specification is consistent with the limitations the ALJ imposed. There are also the opinions of Dr. Mitchell, Dr. Michael, and Dr. Aldridge, which do not include any determination that plaintiff requires any limitations beyond those, or even equivalent to those, adopted by the ALJ. In addition, there are plaintiff's daily activities. While at face value the opinions of Dr. Naumann and Dr. Crisostomo, and plaintiff's own statements about her mental impairments would arguably warrant limitations greater than those the ALJ adopted, the ALJ properly discounted those opinions and statements, as discussed.
The other ground upon which plaintiff challenges the ALJ's RFC determination is that plaintiff can be expected to be absent from work more than one and a half to two days per month. She cites the vocational expert's testimony (Tr. 69-70) that a person missing work with that frequency is unemployable.
As noted, however, a finding that a claimant can work on a regular and continuing basis—that is, eight hours a day for five days a week or on an equivalent schedule—is implicit in a determination that the claimant has the RFC to perform work at any exertional level. See Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2. Therefore, the opinions of Dr. Aldridge, Dr. Souther, and Dr. Linster that plaintiff had the RFC to perform work supports the ALJ's implicit determination that she could work on a regular and continuing basis, without the rate of absenteeism plaintiff posits. Similarly, neither Dr. Mitchell nor Dr. Michael opine that plaintiff would be absent from work at the rate of one and a half to two days a month. And, of course, the ALJ properly discounted opinion evidence from Dr. Naumann and Dr. Crisostomo and statements by plaintiff to the effect that plaintiff would be absent at a rate precluding employment.
The court concludes that the ALJ's RFC determination is based on applicable legal standards and supported by substantial evidence. It accordingly rejects plaintiff's challenge to the RFC determination.
VII. ALJ'S HYPOTHETICAL TO VOCATIONAL EXPERT
A. Applicable Legal Principles
To be helpful, the vocational expert's opinions must be "in response to proper hypothetical questions which fairly set out all of [a] claimant's impairments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). A hypothetical question is proper if it adequately reflects a claimant's RFC for which the ALJ had sufficient evidence. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005); Baker v. Astrue, No. SAG-10-145, 2012 WL 12751, at *4 (D. Md. 3 Jan. 2012) (rejecting plaintiff's objections to the ALJ's hypothetical to the vocational expert where "the hypothetical presented to the [vocational expert] was supported by substantial evidence and adequately included all the limitations that were deemed credible by the ALJ"). The vocational expert must accept as true the RFC as determined by the ALJ. Hines v. Barnhart, 453 F.3d 559, 566 n.5 (4th Cir. 2006).
B. Analysis
The hypothetical the ALJ posed to the vocational expert that produced the testimony upon which the ALJ relied at step five of the sequential analysis reads:
Let's begin by assuming an individual the same, education and vocational history as the Claimant. Let's start with light work. So no climbing ladders, ropes or
scaffolds. Occasional balance and climbing ramps or stairs. No exposure to extreme heat, extreme cold, vibration and hazards. Can understand, remember and carry out [SRRTs]. So no public interaction and no production-paced work and only occasional interaction with coworkers and supervisors.Tr. 66.
Plaintiff contends that this hypothetical was deficient because it failed to include: limitations on her ability to sit, stand, walk, and lift consistent with her testimony; her purported need to lie down during the workday; her likely absence from work more than two days per month; and restrictions accommodating her limitations in concentration, persistence, or pace. These contentions fail.
The hypothetical the ALJ posed reflects the ALJ's RFC determination, which is supported by substantial evidence and based on applicable legal standards, as discussed. In particular, the RFC reflects the proper discounting of plaintiff's symptoms.
The hypothetical was therefore proper. The court accordingly rejects plaintiff's challenge to it.
VIII. ALJ'S CONCLUSION ON DISABILITY
Plaintiff contends that the ALJ erred in not finding plaintiff disabled. The focus of this argument is the contention that plaintiff cannot work on a regular and continuing basis. The court has already found this contention to be meritless in connection with plaintiff's contention that she would be absent from work too frequently to perform work.
The ALJ's conclusion that plaintiff was not disabled was otherwise proper for the reasons discussed. This final challenge by plaintiff to the ALJ's decision therefore fails.
IX. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 18) for judgment on the pleadings be GRANTED, plaintiff's motion (D.E. 16) for judgment on the pleadings be DENIED, and the Commissioner's final decision be AFFIRMED.
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 2 January 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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.
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).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 19th day of December 2018.
/s/_________
James E. Gates
United States Magistrate Judge