Opinion
C. A. 6:23-cv-1950-JD-KFM
04-10-2024
Glenda G.,[1] Plaintiff, v. Martin J. O'Malley,[2] Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) on August 16, 2018, alleging that she became unable to work on March 1,201 8 (Tr. 167-68).
At some point, the plaintiff's alleged onset date was updated to January 1, 2018 (Tr. 962).
The application was denied initially (Tr. 82-91, 93) and on reconsideration (Tr. 94-112) by the Social Security Administration. On April 30, 2019, the plaintiff requested a hearing (Tr. 125-26). On October 10, 2019, an administrative hearing was held at which the plaintiff, represented by counsel, and Dawn Bergren, an impartial vocational expert, appeared and testified in Charleston, South Carolina, before the administrative law judge (“ALJ”) assigned to the case (Tr. 31-81). On November 12, 2019, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 12-29). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on August 13, 2020 (Tr. 1-4).
On October 13, 2020, the plaintiff filed a complaint in the United States District Court for the District of South Carolina, and on September 3, 2021, the case was remanded to the Commissioner for further proceedings based on a voluntary motion to remand (Tr.1021-23). Gause v. Comm'r Soc. Sec. Admin., C/A No. 6:20-cv-03578-JD-KFM, at doc. 23 (D.S.C. Sept. 3, 2021). On December 20, 2021, the Appeals Council issued an order remanding the matter to the ALJ to issue a new decision in accordance with the order (Tr. 1026-28). After remand, on February 13, 2023, the ALJ considered the case de novo and issued a decision finding that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 961-86). Because the ALJ's finding became the final decision of the Commissioner of Social Security pursuant to 20 C.F.R. § 404.984(d), the plaintiff then filed the instant matter (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on September 30, 2020.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of January
1, 2018, through her date last insured of September 30, 2020 (20 C.F.R. §§ 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following combination of severe impairments: idiopathic peripheral neuropathy, obesity, and diabetes mellitus (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform less than the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). The claimant can occasionally climb ramps and/or stairs as well as occasionally stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or scaffolds. The claimant [can] frequently handle and/or finger with her bilateral upper extremities.
(6) Through the date last insured, the claimant was capable of performing past relevant work as a receptionist and loan clerk. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in the ocial Security Act, at any time from January 1, 2018, the alleged onset date, through September 30, 2020, the date last insured (20 C.F.R. § 404.1520(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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.” 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. pt. 404, subpt. P, app. 1, (4) can perform her past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff, who was 50 years old on the alleged disability onset date, seeks disability based upon physical and mental impairments secondary to diabetes and neuropathy. She has past relevant work experience as a receptionist and loan clerk (Tr. 975). The plaintiff argues that the ALJ erred by (1) finding the plaintiff's migraines and mental impairments non-severe (doc. 21 at 21-25); (2) failing to explain how the residual functional capacity (“RFC”) assessment accounted for the plaintiff's impairments (id. at 15-21); (3) failing to appropriately weigh opinion evidence from the plaintiff's providers (id. at 17-18, 25-32); and (4) failing to sufficiently explain the evaluation of the plaintiff's subjective complaints as required under Social Security Ruling (“SSR”) 16-3p (id. at 32-34). The plaintiff requests that this matter be remanded with an award of benefits (id. at 19, 34-35). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence, should be affirmed, and that benefits should not be awarded (doc. 22 at 5-16).
Step Two
The plaintiff asserts that the ALJ erred in finding the plaintiff's migraines and mental impairments non-severe (doc. 21 at 21-25). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “Basic work activities” are “the abilities and aptitudes necessary to do most jobs,” examples of which include “physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Id. § 404.1522. In short, the “inquiry is a de minimis screening device to dispose of groundless claims.” McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). An ALJ must consider all of a claimant's medically determinable impairments, even those that are not severe, in the RFC assessment. 20 C.F.R. § 404.1545(a)(2). If an ALJ commits error at step two, it can be rendered harmless if “the ALJ considers all impairments, whether severe or not, at later steps.” Robinson v. Colvin, C/A No. 4:13-cv-823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)); see also Washington v. Astrue, 698 F.Supp.2d 562, 580 (D.S.C. 2010) (holding that there is “no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps”). For the reasons that follow, the undersigned finds that substantial evidence supports the ALJ's determination that the plaintiff's migraines and mental impairments were non-severe as well as that the ALJ's decision indicates that she considered both severe and non-severe impairments in the RFC assessment. The undersigned addresses each impairment in turn.
Migraines
In evaluating the plaintiff's migraines, the ALJ noted that they were non-severe because they were “controlled with medication and/or other conservative measures and/or have not resulted in any” limitation in the plaintiff's ability to engage in work-related activities (Tr. 965). Despite the foregoing, the plaintiff argues that the ALJ erred by finding her migraines non-severe based on the plaintiff's subjective complaints and hearing testimony that she required shots to get rid of her migraines on occasion (doc. 21 at 24-25 (citing Tr. 44-48)). The undersigned disagrees.
As recognized by the ALJ, the plaintiff's migraines were well controlled with medication/conservative measures (Tr. 965). For example, although the plaintiff references her hearing testimony about her migraines, she provides no reference to treatment records in support of her assertion that her migraines required shots on occasion or that her migraines limited her ability to work. As recognized by the ALJ, during the relevant period, the plaintiff only mentioned headaches during three appointments with Raymond Allen, M.D., and one appointment with Hany Shenouda, M.D. (Tr. 837-41, 947-49, 1265-71).
Indeed, the first visit where the plaintiff complained of headaches during the relevant period was on August 7, 2019, when she reported “recurrent” headaches to Dr. Shenouda (Tr. 837-41). One month later, on September 25, 2019, the plaintiff asked to resume Topamax because she was experiencing two to three headaches per month (Tr. 947-49). When she returned in December to Dr. Allen, the plaintiff reported that the Topamax helped her migraines, and it was refilled (Tr. 1269-71). Four months later, the plaintiff reported a headache the prior day to Dr. Allen, but indicated that the headache was secondary to getting upset (Tr. 1265-68). During this same time, Deborah Kirby, M.D., completed a medical opinion form for the plaintiff and did not check the box indicating that headaches were one of the plaintiff's symptoms (Tr. 950). As noted by the ALJ, these treatment records did not support a finding that the plaintiff's migraines significantly limited her ability to do basic work activities during the relevant period, as required by the regulations for a severe impairment. See 20 C.F.R. § 404.1520(c). Accordingly, the ALJ's finding regarding the plaintiff's migraines is supported by substantial evidence and should be affirmed.
Mental Impairments
In evaluating the plaintiff's mental impairments, the ALJ evaluated the four functional areas of mental functioning and found that the plaintiff had no more than mild limitations in each functional area, including understanding, remembering, and applying information; interacting with others; concentrating, persisting, and maintaining pace; and adapting or managing herself (Tr. 965-66). Because the ALJ found no more than mild limitations in the four functional areas, she found that the plaintiff's mental impairments were non-severe (Tr. 965-66). The plaintiff argues that the ALJ should have found more than mild limitations in the areas of interacting with others and concentrating, persisting, and maintaining pace (doc. 21 at 22-23). The undersigned disagrees. As an initial matter, the undersigned notes that the plaintiff has waived challenge to the ALJ's evaluation of the functional areas of understanding, remembering, and applying information as well as adapting and managing oneself, because her initial brief does not make arguments regarding these functional areas. See Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief).
In interacting with others, as noted, the ALJ found no more than mild limitations, recognizing that “[t]he [plaintiff] is also able to get along with others, spend time with family, and live with others. Finally, the medical evidence shows that the [plaintiff] had a good rapport with providers and was described as pleasant and cooperative” (Tr. 965). The plaintiff argues, however, that the finding ignores abnormal examination findings the plaintiff had during appointments (doc. 21 at 22-23). The undersigned disagrees. The records relied on by the plaintiff to support her assertion referenced some exacerbations in various mental symptoms (although not necessarily symptoms relating to her ability to interact with others, i.e. anxious mood or being tearful), but the exacerbations were noted as secondary to situational stressors, including a nephew's house burning down, a nephew moving in with the plaintiff with a bad attitude, staying home because of a lack of funds, and a break in therapy secondary to the plaintiff needing to care for her husband and drive him to all of his appointments (Tr. 555-57, 562-66, 644-47). Moreover, although the plaintiff marked that she had trouble getting along with others on her function reports, she has always lived with her husband (or other family members) during the relevant period and indicated that she did not have problems with authority figures (T r. 223, 227, 228, 229, 268, 269). She also reported to James Braswell, M.Div., L.P.C., that she was spending time over the holidays with family and helping with a family member's wedding (Tr. 575-77). Further, as noted by the ALJ, during virtually every treatment visit, the plaintiff was noted as cooperative, pleasant, and interactive (Tr. 411,454, 457, 461,466, 569, 645, 947, 1183, 1185, 1187, 1266, 1270). Indeed, Douglas Ritz, Ph.D., a consultative examiner, noted that the plaintiff had a 28/30 on the Mini-Mental Status Exam (“MMSE”), which was in the unimpaired range, and Dr. Ritz opined that the plaintiff could work with others (T r. 369-71).
In light of the foregoing, the undersigned finds that substantial evidence supports the ALJ's determination that the plaintiff's limitations in interacting with others were no more than mild in nature.
As noted above, in the functional area of concentrating, persisting, or maintaining pace, the ALJ found no more than mild limitations, recognizing that “[t]he [plaintiff] said that she is able to drive, prepare meals, manage funds, and handle her own medical care. Additionally, the record fails to show any mention of distractibility and an inability to complete testing that assesses concentration and attention” (Tr. 966). The plaintiff argues, however, that the finding ignores her reports that she stopped driving, that her medications caused drowsiness, and her testimony that she had stopped cooking because she feared leaving the stove on (doc. 21 at 23). The undersigned finds the plaintiff's arguments unavailing. First, the plaintiff has referenced little record evidence in support of her assertion that she had trouble with concentration, persistence, and maintaining pace. As recognized by the ALJ, the plaintiff was noted during the relevant period as having intact attention and concentration (Tr. 369-71, 405, 408, 411, 555, 569, 824, 944, 1316) except for one occasion where Mr. Braswell noted impaired concentration (Tr. 647). Additionally, the plaintiff reported engaging in activities that were not consistent with reports of limited concentration, including preparing a detailed diary of her medical symptoms from September 26, 2019, through October 1, 2019 (Tr. 343-54); writing a summary of her therapy visits for her therapist (T r. 648); reading to help focus her mind (T r. 640, 641); caring for her husband's mother prior to her passing (Tr. 568-70); and caring for her husband following his surgery and during a medically difficult time for him (Tr. 61, 646-47). Further, although the plaintiff indicated that she stopped driving secondary to medication side effects, she also testified that she drove her husband to appointments when he could not drive secondary to surgery (Tr. 61), and she drove to a consultative examination in Georgetown (Tr. 369-71). Similarly, although Mr. Braswell indicated in an undated letter that the plaintiff would not have the ability to concentrate for work tasks (an opinion the ALJ found unpersuasive, as addressed in more detail infra), he also encouraged the plaintiff to look for jobs where she could work from home (Tr. 956-57, 1185-86). In light of the foregoing, the undersigned finds that substantial evidence supports the ALJ's determination that the plaintiff's limitations in concentrating, persisting, or maintaining pace were no more than mild in nature. Accordingly, as recognized in the ALJ's decision, the record evidence did not support a finding that the plaintiff's mental impairments significantly limited her ability to do basic work activities as required by the regulations for a severe impairment. See 20 C.F.R. § 404.1520(c). As such, the ALJ's finding regarding the plaintiff's mental impairments is supported by substantial evidence and should be affirmed.
Mr. Braswell noted on November 13, 2018, that the plaintiff had a symptom of “impaired concentration”, but specifically indicated that “[a]ttention/[c]oncentration is characterized by an ability to attend and maintain focus” (Tr. 569).
Harmless Error
In addition to the foregoing, there is “no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps.” Washington, 698 F.Supp.2d at 580. Here, the ALJ specifically indicated that all of the plaintiff's medically determinable impairments - whether severe or non-severe - were considered in crafting the plaintiff's RFC assessment (Tr. 965). Additionally, as outlined in more detail below, the ALJ analyzed the plaintiff's migraines and mental impairments in the RFC assessment and explained why they did not support additional RFC limitations (Tr. 968-75). The ALJ's decision reflects consideration of the plaintiff's migraines and mental impairments in the RFC assessment; thus, even if the ALJ erred in finding them non-severe, the error would be harmless because the ALJ's decision reflects consideration of them in the RFC analysis, as set forth in more detail below.
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3). SSR 96-8p provides in pertinent part:
The RFC 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 in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.
SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include 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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform less than the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). The claimant can occasionally climb ramps and/or stairs as well as occasionally stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or scaffolds. The claimant [can] frequently handle and/or finger with her bilateral upper extremities.(Tr. 968). The RFC assessment was followed by a discussion of the record evidence by the ALJ (Tr. 968-75). The plaintiff asserts that the ALJ failed to explain how her RFC assessment accounted for the plaintiff's impairments, including limitations in her ability to sit, stand, and walk, as well as the plaintiff's migraines, mental impairments, and peripheral neuropathy (doc. 21 at 15-25).
The plaintiff also argues that the ALJ erred by not adopting the limitations opined by Dr. Traurig, a medical expert, in the RFC assessment. That argument is addressed, infra, in the opinion analysis section.
Sit, Stand, and Walk Limitations
As noted, the plaintiff argues that the ALJ erred in finding that the plaintiff could engage in the sitting, standing, and walking required for sedentary work as set forth in the RFC (doc. 21 at 15-21). The undersigned disagrees. First, the plaintiff has referenced little to no record evidence in support of her assertion, vaguely suggesting that the ALJ's reference to the regulation setting forth the sitting, standing, and walking limitations was insufficient to explain the amount of sitting, standing, and walking the RFC assessment limited the plaintiff to - which is nonsensical. Indeed, as noted by the ALJ in the RFC assessment, she limited the plaintiff to sitting six hours per eight-hour day and standing or walking for two hours in an eight-hour day (Tr. 968 n.2). The plaintiff then goes on to argue that the ALJ failed to explain how the plaintiff could engage in the sitting, standing, and walking required by sedentary work, but the plaintiff provides no reference to record evidence in support of her assertion. Indeed, because the ALJ's decision reflects consideration of the plaintiff's treatment records in determining that she could engage in a range of sedentary work that did not include additional sitting, standing, or walking limitations, the plaintiff appears to request that this court reweigh the evidence and come to a different conclusion, which is beyond the purview of substantial evidence review. Additionally, as explained by the ALJ, the record evidence did not support additional RFC limitations (Tr. 968-75). Indeed, the ALJ noted that she limited the plaintiff to sedentary work to avoid potentially aggravating factors (Tr. 974). Moreover, several of the plaintiff's providers indicated that she had a normal gait and station (Tr. 369-71, 454-56, 466, 563-64, 590-91,596, 636-37, 839-40, 947-48, 1270). Although Dr. Kirby regularly noted that the plaintiff had a slightly wide-based gait with mild decreased sensation in her lower extremities (Tr. 405-06, 411-12 (normal gait no ataxia), 555, 824, 944, 1316 (antalgic gait secondary to the plaintiff's back going out)), her medical source statement indicated that the plaintiff did not have an abnormal gait (Tr. 951). Further, during almost every visit, Dr. Kirby noted in the review of systems that the plaintiff had no trouble walking or climbing stairs (Tr. 407, 409, 413, 557, 826, 946, 1317). As recognized by the ALJ, based on the mixed treatment records - containing some abnormal examination findings indicating that the plaintiff had difficulty with sitting, standing, and walking - the plaintiff could engage in a range of sedentary work (Tr. 968-75).
Nevertheless, the plaintiff appears to argue that the ALJ erred by not adopting all of her subjective complaints regarding her ability to sit, stand, and walk based on corresponding treatment records containing abnormal examination findings (see doc. 21). As analyzed in more detail, infra, the ALJ evaluated the plaintiff's subjective complaints and found them inconsistent with the record evidence, thus, undermining her assertion. Indeed, addressed in more detail below with respect to the plaintiff's subjective complaints, the ALJ noted that the plaintiff's subjective reports were inconsistent, asserting that she was unable to stand for long periods of time, walk more than from the parking lot, and sit more than twenty minutes (although she also indicated she could be in the recliner all day) (Tr. 41, 44-45, 54, 55, 228, 268), but also indicating that she was able to drive (and drove her husband to his appointments after his surgery), kept ice on her husband's knee after surgery, took care of her personal care routine, took care of the dogs by walking to the door and letting them out, walked to the porch daily, cared for her husband's mother before she passed away, and got into a physical altercation with a drunk family member (Tr. 36, 46, 61, 224, 226, 264, 266, 369-71, 568-70, 579-80, 646-47, 974, 1187-88), all of which would require sitting, standing, and walking in excess of the limits alleged by the plaintiff. Accordingly, the undersigned finds that substantial evidence supports the ALJ's determination that the plaintiff could engage in the sitting, standing, and walking required in the ALJ's less than sedentary RFC assessment.
Peripheral Neuropathy
The plaintiff also argues that the ALJ erred by failing to explain how the RFC assessment accounted for the plaintiff's need to elevate her legs and difficulty using her hands secondary to peripheral neuropathy (doc. 10 at 20). The undersigned disagrees. First, the plaintiff references no record evidence in support of her argument - only referencing a couple of pages from the ALJ's decision and noting that perhaps handling limitations or limitations regarding the plaintiff's need to elevate her legs were required (doc. 10 at 20). In so doing, the plaintiff has raised this issue in a perfunctory manner. Courts have held that when a plaintiff raises an issue in a perfunctory manner, the issue is deemed waived. See Jacobus v. Comm'r of Soc. Sec., 664 Fed.Appx. 774, 777 n.2 (11th Cir. 2016) (noting that the plaintiff's “perfunctory argument” was arguably abandoned (citing Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining that simply stating an issue exists, without further argument or discussion, constitutes abandonment of that issue)); Rice v. Comm'r of Soc. Sec., 169 Fed.Appx. 452, 454 (6th Cir. 2006) (finding that issues raised in a perfunctory manner “without elaboration or legal argument” “unaccompanied by some effort at developed argumentation” were deemed waived (internal citations and quotation marks omitted)); Parms v. Colvin, C/A No. 1:13-cv-01002, 2015 WL 1143209, at *8 n.10 (M.D. N.C. Mar. 13, 2015) (noting that the “Court need not address . . . perfunctory arguments by counsel), memorandum and recommendation adopted by doc. 32 (M.D. N.C. Mar. 31,2015). Indeed, the court is not required to rummage through the administrative record to construct and present a well-supported position for the plaintiff. See Hayes v. Self-Help Credit Union, C/A No. 1:13-cv-00880, 2014 WL 4198412, at *2 (M.D. N.C. Aug. 22, 2014) (noting that “[i]t is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument (internal citations omitted)). Nevertheless, despite the perfunctory nature of the plaintiff's arguments regarding the ALJ's evaluation of her peripheral neuropathy, the undersigned will briefly address this impairment in relation to the RFC assessment.
Here, the plaintiff concedes that the ALJ's decision discusses the plaintiff's peripheral neuropathy and subjective complaints of hand and foot pain; the plaintiff simply disagrees with the ALJ's determination that these symptoms still allowed the plaintiff to engage in a range of sedentary work. Indeed, as recognized by the ALJ, there is no record evidence (other than the plaintiff's subjective reports that she utilized a recliner at home) to support a need for the plaintiff to elevate her legs. For example, Dr. Kirby's medical source statement and a medical source statement completed by a provider at McLeod Physician Associates (dated well after the date last insured) both noted that the plaintiff did not need to elevate her legs with prolonged sitting (Tr. 953, 1562). Similarly, the plaintiff was only noted as having lower extremity edema on two occasions in the voluminous treatment records (compare Tr. 590, 840 (reporting lower extremity edema) with Tr. 413, 454, 466, 559, 563, 636, 948, 1265, 1270 (specifically noting no edema)). In light of this record evidence, the ALJ appropriately determined that the plaintiff did not require a limitation in the RFC assessment regarding elevation of her legs.
Similarly, as recognized by the ALJ, the plaintiff did not require additional limitations (beyond frequent handling/fingering) in the RFC assessment regarding her ability to use her hands (Tr. 974). For example, although the plaintiff testified that it hurt to pick up or retrieve items with her hands (Tr. 49), she also testified that she was able to heat up leftovers and get them out of the microwave, she was able to feed herself, and helped her husband get out of the bed after his surgery (Tr. 50, 61). Likewise, although the plaintiff's function reports indicated that she had difficulty using her hands (Tr. 223, 228, 264, 268), she also indicated that she had no problems with her personal care routine although it took her a while (including dressing, bathing, caring for her hair, shaving, feeding herself, and using the restroom), was able to make sandwiches and microwave leftovers to eat, and drove occasionally (Tr. 224, 225, 226, 265, 266). Further, despite the plaintiff's reports of pain preventing her from using her hands, she submitted a handwritten pain summary totaling twelve pages detailing her symptoms for multiple days (Tr. 343-54). Similarly, the plaintiff submitted a treatment summary to Mr. Braswell outlining all of their therapy visits (Tr. 648). As recognized by the ALJ, the record evidence (including the inconsistent subjective reports noted above) as well as full strength in the plaintiff's upper extremities, did not support additional RFC limitations to account for the plaintiff's peripheral neuropathy (Tr. 974). Indeed, although Dr. Kirby opined that the plaintiff could only use her bilateral hands to grasp, turn, twist objects, and for fine manipulation 25% of the time (Tr. 954), the seven treatment visits the plaintiff had with Dr. Kirby did not support such a severe limitation in the use of the plaintiff's hands (as addressed in more detail infra). For example, when the plaintiff reported to Dr. Kirby on March 6, 2018, she had normal reflexes in her upper extremities, although she had Hoffman on the right (Tr. 411-13). By her next visit two months later, the plaintiff reported doing better, and while she had slightly diminished reflexes in her upper extremities (2+), she had intact sensation to light touch and pinprick, and her medications were adjusted (Tr. 408-10). In August 2018, the plaintiff had similar examination findings, and nortripytline was added to her medications (Tr. 405-07). The plaintiff returned on November 14, 2018, and reported that her pain had improved on nortripytline (although complications with metformin were making her feel “super sick”), and her examination findings again noted normal strength, only slightly reduced reflexes, and intact sensation in the plaintiff's upper extremities (T r. 555-57). The plaintiff's next visit with Dr. Kirby was almost six months later, in April 2019, during which she did not complain of pain in her hands and reported that the pain in her feet had improved by 50% (Tr. 824-26). Six months later, when the plaintiff presented to Dr. Kirby, she reported worsened pain over the last six months (the time frame during which she was caring for her husband after his surgery), but she had full strength, with only slightly decreased reflexes and intact sensation in her upper extremities (T r. 944-46). When the plaintiff returned one year later, she noted that her neuropathy pain was stable (and reported back pain secondary to her back going out), and her medications were refilled (Tr. 1316-18). Similarly, although Dr. Traurig opined that the plaintiff could only occasionally finger and feel (but could frequently reach in all directions and handle), he also noted that the plaintiff could sort, handle, or use paper/files (Tr. 1589, 1592). Further, in addressing whether the plaintiff's neuropathy met a listing, Dr. Traurig noted that the plaintiff did not have an inability to use her upper extremities (Tr. 1594). These records, as analyzed by the ALJ, did not support additional limitations in the plaintiff's ability to use her hands secondary to peripheral neuropathy. As noted, the plaintiff has provided no reference to other record evidence (that she claims was ignored by the ALJ) that supports her allegation that she required additional RFC limitations to account for her peripheral neuropathy; as such, the ALJ's RFC analysis of the plaintiff's peripheral neuropathy is supported by substantial evidence, without legal error, and should be affirmed.
Migraine Limitations
The plaintiff also argues that the ALJ should have included limitations in the RFC assessment to account for the plaintiff's migraines (doc. 10 at 24-25). The plaintiff, however, provides no reference to record evidence in support of her position other than a few pages from her hearing testimony (id.). Further, as outlined above with respect to the plaintiff's step two argument, the record evidence did not support limitations for the plaintiff's migraines because they were well-controlled and infrequent during the relevant period. See supra pp. 6-7. Indeed, as examined by the ALJ in the RFC assessment, during the relevant period, the plaintiff only mentioned headaches on three occasions (Tr. 837-41, 947-49, 968-69, 970, 971, 1265-71). For example, during the time the plaintiff was helping care for her husband, she asked to resume Topamax because she was experiencing two to three headaches per month (Tr. 947-49, 1269-71), but Dr. Kirby did not indicate that headaches were one of the plaintiff's symptoms when completing a medical source statement during that same time (Tr. 950). Indeed, when the plaintiff reported a headache one day prior to a treatment visit with Dr. Allen in April 2020, she indicated that the headache was secondary to getting upset, and there was no mention of a headache during the visit, meaning that her headache did not last multiple days (Tr. 1265-68). Similarly, as recognized by the ALJ, Dr. Traurig opined that the plaintiff could be exposed to loud noise conditions in the workplace, including heavy traffic (Tr. 969, 1591). As noted, the plaintiff has not identified any record evidence in support of her assertion that additional limitations were required in the RFC assessment based on her migraines. Thus, the ALJ's determination that additional RFC limitations were not required to address the plaintiff's migraines is supported by substantial evidence and should be affirmed.
Mental RFC
The plaintiff also argues that the ALJ erred by not including social interaction or concentration, persistence, and pace limitations in the plaintiff's RFC assessment (doc. 21 at 22-23). The undersigned disagrees. First, relevant to the plaintiff's argument regarding the mental RFC assessment, as addressed supra, at step two of the sequential evaluation process, the ALJ found that the plaintiff had no more than “mild” limitations in any of the functional areas (Tr. 965-66). Indeed, as outlined above, the ALJ addressed the records cited by the plaintiff in support of her argument that mental RFC limitations were required; as such, it appears that the plaintiff requests that this court re-weigh the mental health records considered by the ALJ and come to a different conclusion, which is beyond the purview of substantial evidence review. Although the plaintiff argues that the ALJ should have assessed social interaction limitations, the record evidence indicated that she was cooperative, pleasant, and interactive (Tr. 411, 454, 457, 461, 466, 569, 645, 947, 1183, 1185, 1187, 1266, 1270), and she scored in the unimpaired range on the MMSE (Tr. 369-71). Similarly, although the plaintiff argues that the ALJ erred by not including limitations in the area of concentrating, persisting, or maintaining pace, the record evidence contains only one mention of impaired concentration after a two-month break in treatment (Tr. 647) - and one noting a symptom of impaired concentration, but also indicating that the plaintiff's attention and concentration were “characterized by an ability to attend and maintain focus” (Tr. 569). The plaintiff was otherwise noted as having intact attention and concentration (Tr. 369-71,405, 408, 411,555, 569, 824, 944, 1316). Further, as noted by the ALJ, the plaintiff's reports that she was able to drive (despite inconsistent reports that she had discontinued driving) during the relevant period did not support a need for limitations in this functional area due to the mental abilities required to operate a motor vehicle (Tr. 972). As such, the mental RFC analysis is supported by substantial evidence and without legal error.
The Court of Appeals for the Fourth Circuit has held that while an RFC assessment must include a narrative describing how the evidence supports the ALJ's conclusions, there is no particular format or language that must be utilized, so long as the decision permits meaningful judicial review. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Here, as outlined above, the ALJ's decision, with its detailed discussion of the plaintiff's impairments, permits such review. As such, the ALJ's RFC assessment is supported by substantial evidence, free from legal error, and should be affirmed.
Medical Source Statements
The plaintiff also argues that the ALJ failed to appropriately evaluate opinion evidence from Mr. Braswell and Drs. Kirby and Traurig (doc. 21 at 17-18, 28-32). For applications filed on or after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. § 404.1520c; see also 82 Fed.Reg. 5844-01,2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). As part of the new regulatory framework, the definition of medical opinions has been updated. See 20 C.F.R. § 404.1513(a)(2). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. § 404.1520c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. § 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. Id. § 404.1520c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. § 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2).
Mr. Braswell
At some point during his treatment of the plaintiff, Mr. Braswell completed an undated letter regarding the plaintiff's functioning. Mr. Braswell's letter noted that he had treated the plaintiff for almost one year for anxiety secondary to physical impairments. Mr. Braswell noted that the plaintiff impressed him with her capacity for concern for others and her ability to provide compassion and service. Mr. Braswell indicated that he had provided the plaintiff with cognitive and behavioral strategies to manage her anxiety and depression symptoms and noted that the plaintiff took every recommendation seriously and experienced significant relief after utilizing the strategies. Mr. Braswell indicated that the plaintiff struggled to maintain the progress secondary to her physical impairments and that her mental status had deteriorated because of her physical condition. He diagnosed the plaintiff with major depression, severe. Mr. Braswell noted that “it would be difficult” to find that the plaintiff was “capable of managing employment” based on her physical and mental impairments. He noted a strong suggestion that the plaintiff would not have the ability to concentrate enough to fulfill work-related tasks. Mr. Braswell noted that the plaintiff's physical impairments were the “most salient basis” for her disability claim and that her depression was secondary to her employment situation and medical problems. The plaintiff's depression would not heal as long as the plaintiff's physical symptoms were present. Mr. Braswell noted that the plaintiff did not meet the diagnosis of malingering, and he did not believe that she had fabricated any of her symptoms of physical or emotional distress (Tr. 956-57).
The ALJ considered the opinion by Mr. Braswell and found it not persuasive because it was undated as well as because it was not supported by his progress notes (T r. 973-74). For example, the ALJ noted that November 2018 notes from Mr. Braswell included some abnormal findings, but also indicated that the plaintiff was fully oriented, had good eye contact, her memory was not impaired, she was cooperative and interested, and the plaintiff was able to attend and maintain focus (Tr. 973, 568-70). The ALJ also noted that Mr. Braswell's opinions about the plaintiff's physical abilities were outside of his expertise because he was not a physician (Tr. 973-74). Despite the foregoing, the plaintiff argues that the ALJ erred by not extrapolating the date the letter was drafted from the context clues, failing to address findings by Mr. Braswell supportive of disability, and by only addressing one treatment note in detail (doc. 21 at 30-32). The undersigned disagrees. As an initial matter, some of the plaintiff's arguments involve matters in Mr. Braswell's letter that do not qualify as opinions under the new regulations. Under the amended regulations, a medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions. See 20 C.F.R. § 404.1513(a)(2). Here, Mr. Braswell's letter summarized the plaintiff's subjective complaints and treatment, but contained few statements that are actually opinions under the amended regulations, including that the plaintiff would not be able to work secondary to pain caused by her physical impairments as well as that the plaintiff would not be able to concentrate to fulfill work-related tasks (T r. 956-57). However, the plaintiff has not argued that Mr. Braswell was qualified to opine regarding the plaintiff's physical impairments. Further, the plaintiff herself only references two treatment visits with Mr. Braswell in support of her assertion that the ALJ erred in his consideration of Mr. Braswell's opinion (see doc. 21 at 30-32 (citing Tr. 568-69, 646-47)). Moreover, as noted by the ALJ in finding Mr. Braswell's opinion not persuasive, Mr. Braswell only noted impaired concentration on one out of nineteen treatment visits during the relevant period - and that was after a two-month break in treatment secondary to the plaintiff caring for her husband after his surgery (T r. 647). Mr. Braswell's other treatment notes indicated that the plaintiff was able to attend and maintain focus (Tr. 569), “engaged in the material presented, more focused and less reactionary” (Tr. 571), was encouraged to read in order to focus her mind (Tr. 640), utilized recommendations from Mr. Braswell for managing her weight (Tr. 641), kept track of her weight loss over time (Tr. 643), wrote a paper summarizing her therapy treatment (Tr. 648), and Mr. Braswell recommended that she obtain a job that would let her work from home (Tr. 1186 (based on her “multiple skills, leadership ability, and work ethic”)), all of which were inconsistent with Mr. Braswell's notation that the plaintiff would not be able to concentrate to fulfill work-related tasks (Tr. 957). Accordingly, the undersigned finds that substantial evidence supports the ALJ's determination that Mr. Braswell's opinion was not persuasive.
The plaintiff does not argue that the ALJ failed to address the consistency of Mr. Braswell's opinion with other record evidence; thus, such an assertion of error would be waived. Shinaberry, 952 F.3d at 124 n.5 (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief). Nevertheless, as recognized by the ALJ, Mr. Braswell's opined limitations regarding concentration were inconsistent with record evidence consistently noting intact attention and concentration (Tr. 369-71,405, 408, 411,555, 569, 824, 944, 1316) and the plaintiff's ability to keep driving (Tr. 972).
Dr. Kirby
Dr. Kirby provided a medical opinion form for the plaintiff dated September 26, 2019. The plaintiff's prognosis was guarded, and her symptoms included difficulty walking. The plaintiff's conditions included peripheral neuropathy, diabetic neuropathy, polyneuropathy, and myelopathy. The plaintiff also had symptoms of pain, paresthesias, sensory loss, as well as cramping/burning in her calves and feet. The plaintiff's pain/paresthesias was characterized as severe in her lower extremities, hands, and feet. The plaintiff's impairment would last at least twelve months. The plaintiff's psychological problems included impaired attention and concentration, depression, social withdrawal, reduced ability to attend to tasks, reduced ability to persist in tasks, and anxiety. Side effects of the plaintiff's medications included drowsiness/sedation and nausea. The plaintiff could only walk one city block without rest. The plaintiff could sit twenty minutes at one time and stand fifteen minutes at one time. In an eight-hour day, the plaintiff could sit at least six hours and stand/walk about two hours. The plaintiff needed a job that would allow her to shift positions at will, but would not need periods of walking around during the day. The plaintiff would need to take unscheduled breaks once or twice a day for ten minutes secondary to pain/paresthesias, numbness, or adverse effects of medication. The plaintiff did not need to elevate her legs and did not require the use of an assistive device.
The plaintiff could never lift and carry fifty pounds, rarely lift and carry twenty pounds, occasionally lift and carry ten pounds, and frequently carry less than ten pounds. The plaintiff could never crouch/squat, rarely stoop (bend), and occasionally twist. The plaintiff had significant reaching, handling, or fingering limitations secondary to pain/paresthesias. During an eight-hour day, the plaintiff could use her bilateral upper extremities only 25% of the time for grasping, turning, twisting objects; fine manipulations; or reaching in all directions. The plaintiff would be off task 25% or more during the workday, and the plaintiff was incapable of even “low stress” work secondary to anxiety, depression, chronic pain, and limited coping strategies. The plaintiff's impairments would cause good and bad days, and she would miss more than four days of work per month. The plaintiff's impairments were reasonably consistent with Dr. Kirby's opined limitations (Tr. 950-55).
The ALJ considered the opinion by Dr. Kirby and found it unpersuasive, noting:
I find her opinion unpersuasive given that treatment notes routinely describe the [plaintiff's] physical examinations as demonstrating 5/5 strength throughout with intact sensation to light touch and pinprick in all extremities. The [plaintiff's] mental status examination was unremarkable. Moreover, there was a one-year break in treatment before a return visit and this opinion; at that visit in question, the [plaintiff's] medication was adjusted. This opinion was dated the following day, which would not have considered the impact of adjusted medication (Exhibits 29F, 31F).(Tr. 974). Despite the foregoing, the plaintiff argues that the ALJ erred because 5/5 strength findings were not unsupportive of Dr. Kirby's opined limitations, Dr. Kirby provided additional reasons for the plaintiff's limitations (including medication side effects), and the opinion was consistent with Mr. Braswell's opinion (doc. 21 at 28-30). The undersigned finds the plaintiff's arguments unavailing. As an initial matter, check-box forms, such as the one completed by Dr. Kirby, have limited probative value in this court. See Freeman v. Colvin, C/A No. 7:14-cv-00199, 2015 WL 5056734, at *4 (W.D. Va. Aug. 26, 2015) (noting that check-box forms have “limited probative value” (citing Leonard v. Astrue, C/A No. 2:11-cv-00048, 2012 WL 4404508, at *4 (W.D. Va. Sept. 25, 2012))); see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993) (“Such check-the-box assessments without explanatory comments are not entitled to great weight, even when completed by a treating physician.”)).
Further, even if the plaintiff disagrees with the conclusions formed by the ALJ, the ALJ's decision - in accordance with the applicable regulations - examined the record evidence as a whole in determining that Dr. Kirby's opined limitations were not supported by her treatment notes or consistent with other record evidence. Instead, the plaintiff again appears to request that this court reweigh evidence and come to a different conclusion, which is beyond the purview of substantial evidence review. Moreover, as noted by the ALJ, Dr. Kirby's severe opined limitations were not supported by her treatment records. Indeed, Dr. Kirby opined that the plaintiff would be off task more than 25% of the day, could not even engage in “low stress” work, would need to take unscheduled breaks, had impaired attention and concentration, and reduced ability to attend to and persist in tasks (Tr. 950-55), but every treatment visit with Dr. Kirby during the relevant period noted intact attention and concentration (Tr. 405, 408, 411, 555, 824, 944, 1316). Similarly, although the plaintiff does not agree with the ALJ that benign strength and relatively benign sensation examination findings were not supportive of Dr. Kirby's opinion that the plaintiff could only use her bilateral upper extremities 25% of the day, the plaintiff points to no record evidence in support of her assertion that the ALJ should have found those examination findings supportive of Dr. Kirby's opined limitations. Indeed, Dr. Kirby's opinion form appears internally inconsistent - noting that “loss of manual dexterity” or “extremity pain and numbness” were not symptoms the plaintiff suffered (Tr. 950), but also noting that the plaintiff had symptoms of cramping and burning in her calves and feet (T r. 951), and could not utilize her upper extremities more than 25% of the workday (Tr. 954). Further, the plaintiff's assertion appears to ignore Dr. Kirby's treatment records, which noted limited abnormal examination findings with respect to the plaintiff's upper extremities (Tr. 405-13, 555-57, 824-26, 944-46, 1316-18). Further, Dr. Kirby's opinion form was completed after the plaintiff had a break in treatment and symptom flare secondary to caring for her husband following surgery. Indeed, the plaintiff waited another year before returning to Dr. Kirby after obtaining the medical source statement, and during that visit, her neuropathy pain was noted as stable, and the plaintiff reported back pain secondary to her back going out recently (Tr. 1316-18). Further, the plaintiff relies heavily on notations by Dr. Kirby in the medical source statement about the plaintiff's medication side effects, but there are no notations of ongoing medication side effects in Dr. Kirby's records (other than notations that gabapentin and Lyrica were discontinued in the first few months of treatment secondary to side effects) (Tr. 405-07, 408-10 (denied medication side effects), 411-13, 555-57, 824-26, 944-46, 1316-18). Moreover, although Dr. Kirby opined that the plaintiff could sit twenty minutes at a time, stand fifteen minutes at a time, sit six hours in an eight-hour day, and stand/walk two hours in an eight-hour day, Dr. Kirby's treatment records for the plaintiff noted only a slightly wide based gait and indicated that the plaintiff had no trouble walking or climbing stairs (Tr. 405-06, 407, 409, 411-12, 413, 555-57, 824-26, 944-46, 1316-17). As noted by the ALJ, Dr. Kirby's opined limitations were not supported by her treatment records noting relatively conservative care with limited medication adjustments.
Likewise, as noted by the ALJ, Dr. Kirby's opined limitations were also inconsistent with other record evidence. For example, as noted by the ALJ, the plaintiff scored a 28/30 on the MMSE with Dr. Ritz, with no concentration deficits noted, which is in stark contrast to Dr. Kirby's opinion that the plaintiff would have impaired attention/concentration and could not engage in even “low stress” jobs (Tr. 369-71,951-52, 954, 974). Further, although Mr. Braswell's opinion regarding the plaintiff's ability to maintain attention to work tasks, as outlined above, is technically consistent with Dr. Kirby's opinion - that one consistency does not transform Dr. Kirby's unpersuasive opinion into a persuasive one (as noted by the ALJ in outlining its inconsistency with the majority of the remaining record evidence). Similarly, although Dr. Kirby opined that the plaintiff could only sit twenty minutes at a time, the plaintiff was able to drive to her consultative examination (which took much longer) and testified that she sat in a recliner for most of the day (Tr. 44-45, 369-71). Further, although the plaintiff testified that she stopped driving, she indicated that it was secondary to drowsiness caused by medications - not her inability to sit for more than twenty minutes (Tr. 36). In addition, as noted above, although Dr. Kirby opined that the plaintiff could only stand/walk two hours in an eight-hour day, the majority of the plaintiff's treatment records noted a normal gait and station (Tr. 369-71, 454-56, 466, 563-64, 590-91, 596, 636-37, 839-40, 947-48, 1270). As such, the undersigned finds that the ALJ's consideration of Dr. Kirby's opined limitations is supported by substantial evidence and should be affirmed.
Dr. Traurig
Dr. Traurig, a medical expert, reviewed the plaintiff's medical records and provided a medical opinion based on those records on July 5, 2022. Dr. Traurig opined that the plaintiff could continuously lift and carry up to ten pounds, occasionally lift eleven to twenty pounds, and never lift and carry more than twenty pounds. The plaintiff could sit for two hours at one time, stand one hour at one time, and walk one hour at one time without interruption. In an eight-hour day, the plaintiff could sit four hours, stand two hours, and walk two hours. The plaintiff did not require an assistive device. The plaintiff could frequently use her bilateral hands to reach in all directions, handle, and push/pull, but only occasionally use her bilateral hands to finger and feel. The plaintiff could occasionally use her bilateral feet to operate foot controls. The plaintiff could never climb ladders or scaffolds, but occasionally could climb stairs and ramps, balance, stoop, kneel, crouch, and crawl. The plaintiff could never be exposed to unprotected heights; occasionally be exposed to moving mechanical parts, operating a motor vehicle, extreme cold, extreme heat, or vibrations; and could continuously be exposed to humidity, wetness, dust, odors, fumes, and pulmonary irritants. The plaintiff could be exposed to loud noise (heavy traffic) in the workplace. Dr. Traurig noted that the plaintiff could do the following activities: shop; travel without a companion; ambulate without using a wheelchair, walker, two canes, or two crutches; walk a block at a reasonable pace on rough or uneven surfaces; use standard public transportation; climb a few steps at a reasonable pace with the use of a single hand rail; prepare a simple meal and feed herself; care for her personal hygiene; and sort, handle, or use paper/files. The plaintiff's limitations would last at least twelve months. The plaintiff's impairments did not meet or equal a listing. The plaintiff's obesity made the plaintiff's neck and back pain worse and contributed to poorly controlled diabetes and neuropathy (Tr. 1587-95).
The ALJ considered Dr. Traurig's opinion and found it persuasive (Tr. 969-70). The plaintiff argues that the ALJ erred because she did not explain what portions of Dr. Traurig's opinion she did not adopt (because the plaintiff argues that Dr. Traurig's opined limitations preclude even sedentary work) (doc. 21 at 17-18, 32). The undersigned finds the plaintiff's argument unavailing. First, an ALJ is not required to adopt all limitations included in an opinion found “persuasive.” 20 C.F.R. § 404.1520c. Moreover, in the RFC assessment, the ALJ examined the record evidence and explained the limitations that she did and did not adopt from Dr. Traurig (Tr. 968-75). For example, as recognized by the ALJ, the RFC assessment was based on the record evidence as a whole, and although “the medical evidence of record established] the existence of” impairments, “the objective findings [did] not confirm that these impairments are of such a severity that they could reasonably be expected to produce the degree of functional limitations alleged” (Tr. 975). Nevertheless, the plaintiff argues that the ALJ was required to find the plaintiff disabled based on Dr. Traurig's opined sitting limitation (to four hours in an eight-hour day) (doc. 21 at 18). However, reading the ALJ's RFC assessment, it is clear that this is not a limitation that the ALJ adopted, finding instead that the plaintiff could engage in a range of sedentary work (including sitting for six hours in an eight-hour day) (Tr. 968-75). Interestingly, the plaintiff has focused on the sitting limitation opined by Dr. Traurig, but appears to concede (by not asserting error) that the plaintiff could stand two hours in an eight-hour day and walk two hours in an eight-hour day. Further, as noted by the ALJ in finding the state agency physical examiners' opinions partially persuasive, she further limited the plaintiff to a range of sedentary work (including sitting six hours in an eight-hour day) to account for potentially aggravating factors the plaintiff may experience (and based on the updated record evidence) (Tr. 87-89, 105-08, 974). Though not addressed by the plaintiff, even Dr. Kirby opined that the plaintiff could sit at least six hours in an eight-hour day (Tr. 952). As such, the undersigned finds no error in the ALJ's determination that Dr. Traurig's opinion was persuasive despite her determination not to adopt the opined sitting limitations.
The plaintiff also argues that the ALJ erred because Dr. Traurig's opined limitations regarding the plaintiff's ability to perform fine dexterity (fingering) would preclude all work pursuant to SSR 96-9p (doc. 21 at 18). However, SSR 96-9p's notations regarding manipulative limitations are inapplicable to the instant matter because it notes that unskilled sedentary jobs require bilateral manual dexterity, and the RFC assessment in this case did not limit the plaintiff to unskilled work. See SSR 96-9p, 1996 WL 374185, at *8. Further, as outlined above, the ALJ appropriately determined that additional limitations were not required to address the plaintiff's upper extremity limitations secondary to peripheral neuropathy. See supra pp. 14-17. The plaintiff also argues that the ALJ erred because Dr. Traurig's opined limitations regarding the plaintiff's need to adjust positions would preclude all work pursuant to SSR 96-9p (doc. 21 at 18). However, the plaintiff's argument requires assuming that Dr. Traurig's opined limitations regarding the plaintiff's ability to sit/stand/walk required a sit/stand option, as his opinion contained no such limitation (see Tr. 950-55). The plaintiff has provided no other arguments regarding the ALJ's evaluation of Dr. Traurig's opinion. As such, the undersigned finds that the ALJ's consideration of Dr. Traurig's opinion is supported by substantial evidence and without legal error.
As outlined above, the ALJ appropriately explained her findings regarding the persuasiveness of the opinions of Mr. Braswell and Drs. Kirby and Traurig, as required by the regulations. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the undersigned finds that the ALJ's evaluation of the opinion evidence is based upon substantial evidence, without legal error, and should be affirmed.
Subjective Complaints
The plaintiff also asserts that the ALJ erred in the consideration of the plaintiff's subjective complaints (doc. 21 at 32-34). However, the plaintiff has not argued that the ALJ erred in her consideration of the consistency factors, instead arguing conclusorily that the ALJ erred when she found the plaintiff's subjective complaints inconsistent with the record evidence because an electromyography (“EMG”), magnetic resonance imaging (“MRI”), and opinion evidence were consistent with the plaintiff's subjective complaints (id.).
The Fourth Circuit has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . . ....
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit panel held, “Having met [her] threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the plaintiff] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that [her] pain [was] so continuous and/or so severe that it prevented] [her] from working a full eight-hour day.” Hines, 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that “‘[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'” Id. at 564.
The court further acknowledged:
While objective evidence is not mandatory at the second step of the test, “[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers.”Id. at 565 n.3 (quoting Craig, 76 F.3d at 595); see Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. § 404.1529(c)(2) (“We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”).
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Furthermore, “a formalistic factor-by-factor recitation of the evidence” is unnecessary as long as the ALJ “sets forth the specific evidence [she] relies on” in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, 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.” SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c).
As noted, the plaintiff alleges that the ALJ erred in the subjective complaints analysis because she found the plaintiff's subjective complaints were not consistent with the record (doc. 21 at 32-34). The court finds no error in the ALJ's consideration of the plaintiff's subjective complaints. In the RFC assessment, the ALJ set out the plaintiff's subjective complaints in detail (Tr. 968-69). In evaluating the plaintiff's subjective complaints, the ALJ found that while the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of the symptoms were “not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [the] decision” (Tr. 969). In analyzing the appropriateness of the RFC assessment in light of the record evidence, the ALJ found the plaintiff's subjective complaints inconsistent internally as well as with other record evidence (Tr. 969-75).
Despite the foregoing, the plaintiff argues that her subjective complaints were consistent with the record evidence because an EMG objectively confirmed her neuropathy and an MRI objectively confirmed that she had a central disc bulge at ¶ 2-3 and C3-4 (doc. 21 at 32-34). However, this argument misstates the law for evaluating subjective complaints. The ALJ's decision is clear in recognizing the plaintiff's impairments and the subsequent pain and other limitations caused by her impairments; the ALJ just found that the plaintiff was not as limited as alleged, and objective findings confirming a diagnosis do nothing to contradict the ALJ's conclusion. For example, as noted by the ALJ, although the plaintiff reported that she could not stand for more than fifteen minutes, walk more than from a parking lot, and that she could only sit for twenty minutes (Tr. 41,44-45, 54, 55, 228, 268), she also noted that she was able to drive (and drove her husband to his appointments after surgery), kept ice on her husband's knee after surgery, took care of her personal care routine, took care of the dogs by walking to the door and letting them out, walked to the porch daily, cared for her husband's mother before she passed away, and got into a physical altercation with a drunk family member (T r. 36, 46, 61,224, 226, 264, 266, 369-71, 568-70, 579-80, 646-47, 974, 1187-88), all of which would require sitting, standing, and walking in excess of the limits alleged by the plaintiff. Further, the ALJ noted that the plaintiff's determination to continue driving (both to her appointments and her husband's appointments) was inconsistent with her subjective complaints that she was severely limited in her ability to sit or concentrate because driving in general requires making strategic decisions, maneuvering decisions, and control decisions (Tr. 974). Similarly, as noted by the ALJ, the plaintiff's subjective complaints regarding her hands were inconsistent with her ability to make sandwiches, heat up leftovers in the microwave, help her husband get out of bed after surgery, being able to do her personal care routine (although it took her a while), driving (as outlined above), handwriting a pain summary totaling twelve pages, and compiling a treatment summary for Mr. Braswell (Tr. 49, 50, 61,223, 224-26, 228, 264-66, 268, 343-54, 648). Based on the foregoing, the ALJ noted that the plaintiff's RFC assessment limited the plaintiff to a range of sedentary work in part to account for exacerbations in the plaintiff's symptoms based on her subjective complaints (Tr. 974-75).
As noted by the ALJ, the plaintiff's subjective complaints of debilitating neuropathy were also inconsistent with treatment records noting that the plaintiff's pain had improved, she was had no problem walking or climbing stairs, she was recommended to find a job working from home, and she submitted a treatment summary to Mr. Braswell (T r. 407, 409, 413, 557, 826, 946, 1186, 1317). Likewise, as noted by the ALJ, the plaintiff's neuropathy pain in her feet resolved by 50% by April 2019, and her neuropathy pain was noted as stable by June 2020 (Tr. 824-26, 1316-18). The plaintiff's reliance on opinion evidence as being consistent with her subjective complaints likewise fails because she has provided no reference or indication as to what opinion or provider was consistent with her subjective complaints. Further, as outlined above, several of the opinions were appropriately found unpersuasive; thus, they cannot provide consistency for the plaintiff's subjective complaints.
As noted, the plaintiff has not asserted that the ALJ failed to address any of the other consistency factors as set forth by SSR 16-3p. Nevertheless, the undersigned notes that the ALJ provided an analysis of the plaintiff's subjective complaints based upon the factors provided in SSR 16-3p. As such, based upon the foregoing, the ALJ's subjective complaints analysis is supported by substantial evidence, without legal error, and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).