Opinion
5:18-CV-454-D
12-19-2019
SHEILA ROBERTSON, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Sheila Robertson ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew M. Saul ("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. 28, 29. Both filed memoranda in support of their respective motions. D.E. 28-1, 30. 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 D.E. 31; 26 Mar. 2019 Text Ord. For the reasons set forth below, the Commissioner's motion will be allowed, plaintiff's motion will be denied, and the Commissioner's final decision will be affirmed.
I. CASE HISTORY
Plaintiff filed an application for DIB on 26 March 2014, alleging a disability onset date of 13 December 2013. Transcript of Proceedings ("Tr.") 10. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 10. On 28 August 2017, a hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by an attorney, and a vocational expert testified. Tr. 10; 36-85. On 20 December 2017, the ALJ issued a decision denying plaintiff's application. Tr. 10-23.
Plaintiff timely requested review by the Appeals Council. Tr. 194-96. On 31 July 2018, 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 20 September 2018, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See D.E. 1 (Mot. to Proceed In Forma Pauperis ("IFP")); D.E. 4 (Ord. Allowing IFP Mot.); D.E. 5 (Compl.).
The court is reviewing the ALJ's decision under the versions of the regulations and Social Security rulings applicable to plaintiff's claim in this appeal, although several are subject to modifications that subsequently went into effect.
II. 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); 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).
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.
III. ALJ'S FINDINGS
Plaintiff was 42 years old on the alleged disability onset date, and 46 on the date of the hearing and the date of issuance of the ALJ's decision. See Tr. 21 ¶ 7. The ALJ found that she has at least a high school education (Tr. 21 ¶ 8) and past relevant work as a receptionist, hospital medical clerk, and medical secretary (Tr. 21 ¶ 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 since 13 December 2013, the alleged disability onset date. Tr. 12 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: degenerative disc disease of the lumbar spine, lumbar scoliosis, pseudotumor cerebri with shunt, headaches, migraines, gastroesophageal reflux disease ("GERD"), uterine fibroids, ovarian cysts, spastic pelvic floor syndrome, anemia, sleep disorder, insomnia, obesity, depressive disorder, adjustment disorder, and anxiety disorder. Tr. 12 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 13 ¶ 4. In analyzing the so-called "paragraph B" criteria at this step, the ALJ found that plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace. Tr. 14-15 ¶ 4.
The Regulations require an ALJ to use the special technique, as described in 20 C.F.R. § 416.920a(b)-(e), to evaluate any medically determinable mental impairments the ALJ finds the claimant to have. 20 C.F.R. § 416.920a(a). Under the special technique, an ALJ rates the degree of a claimant's functional limitation in four broad areas: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. § 404.1520a(c)(3). The functional areas are rated on a five-point scale: none, mild, moderate, marked, and extreme. Id. § 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. Id. The criteria, including the associated ratings, in the special technique are often referred to as the paragraph B criteria because they are the same as those in paragraph B of many of the Listings relating to mental impairments. See Listing 12.00A2b, E, F.
The ALJ next determined that plaintiff had the RFC to perform a limited range of work at the light exertional level, as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform light work, as defined in 20 CFR 404.1567(b) and SSR 83-10, with the following limitations: must have the option to stand for 1-5 minutes after sitting for 30 minutes and sit for 1-5 minutes after standing and/or walking for 30 minutes; occasionally climb ramps or stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; frequently reach, reach overhead, handle objects, and finger bilaterally; occasional exposure to loud noise; no exposure to very loud noise; no exposure to vibration; no exposure to unprotected heights; and occasional exposure to hazardous machinery or hazardous moving mechanical parts. Claimant's work is limited to simple, routine and repetitive tasks, but not at a production rate pace, and frequent interaction with the public. Claimant would be off task no more than 10% of the time in an 8-hour workday, in addition to normal breaks (with normal breaks defined as a 10-15 minute morning and afternoon break and a 30 minute lunch break).Tr. 15 ¶ 5.
This regulation defines light work 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); 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).
Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform her past relevant work. Tr. 21 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of garment sorter, folding machine operator, and rag sorter. Tr. 22 ¶ 10. Alternatively, again citing testimony of the vocational expert, the ALJ found that even if plaintiff were limited to work at the sedentary exertional level, there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of weight tester, egg processer, and dowel inspector. Tr. 22 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 13 December 2013, through the date of the decision, 20 December 2017. Tr. 23 ¶ 11.
The Regulations define sedentary work as work "involve[ing] lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 404.1567(a).
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's 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). 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, 715F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded or, in the alternative, that the case should be remanded for a new hearing on the grounds that the ALJ: (1) improperly evaluated medical opinion evidence; (2) improperly evaluated lay witness statements; (3) cherrypicked evidence favorable to his ultimate conclusion in determining plaintiff's RFC; and (4) failed to accommodate in his RFC determination various limitations plaintiff has. The court addresses each contention in turn below.
VI. ALJ'S EVALUATION OF MEDICAL SOURCE OPINION EVIDENCE
Plaintiff identifies four sets of medical source opinion evidence that she claims that the ALJ improperly evaluated. For the reasons set forth, the court finds no error.
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). 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 must sufficiently explain his analysis to enable a reviewing court to conduct meaningful substantial evidence review of it. See Monroe v. Colvin, 826 F.3d 176, 189, 190, 191 (4th Cir. 2016); Radford, 734 F.3d at 295.
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 v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). 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).
The factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") not given controlling weight also apply to the opinions of providers who are deemed to be at a different professional level, or so-called "other sources," including physician assistants and physical therapists. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *2, 4 (9 Aug. 2006); see also 20 C.F.R. § 404.1513(d)(1). As with opinions from physicians and psychologists, the ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6; Napier, 2013 WL 1856469, at *2. The fact that opinions are from an acceptable medical source may justify giving those opinions greater weight than opinions from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.
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), 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. Letter and Restrictions Form by Maria Fakadej, M.D. and Attending Physician's Statement by Ali R. Zomorodi, M.D.
One set of opinions whose evaluation by the ALJ plaintiff challenges consists of three medical source statements relating to an ostensible long-term disability insurance claim by plaintiff. The statements are: (1) a letter "To Whom It May Concern" by Maria Fakadej, M.D. of Duke Health, plaintiff's primary care physician, dated 9 August 2016 (Tr. 2949); (2) a "Restrictions Form" completed by Dr. Fakadej dated 2 June 2017 (Tr. 230); and (3) an "Attending Physician's Statement" completed by Ali R. Zomorodi, M.D. of Duke Health, plaintiff's neurosurgeon, dated 12 February 2014 (Tr. 231-32). The ALJ evaluated these statements collectively.
The association of this set of statements with a claim for long-term disability insurance by plaintiff is evidenced by the express reference to such a claim in the letter included among the statements (see Tr. 2949) and the presence of an insurance company logo, including the name of the insurance company, on the two forms that comprise the other statements in this set of statements (see Tr. 230, 231). The ALJ characterizes this set of statements as "regarding claimant's eligibility for long term disability." Tr. 19 ¶ 5.
In her letter, Dr. Fakadej supports the reopening of plaintiff's long-term disability insurance claim based on her headaches, depression, and reproductive problems. Dr. Fakadej stated:
I am the primary care doctor for Sheila Robertson - I have just been made aware that her long term disability claim was closed.Tr. 2949.
The original reason that [she was] taken out of work was the psuedotumor - having headaches and not being able to work because of that.
She [had] the gastric bypass to get rid of the weight to try to help with the headaches but she is still having the headaches despite the shunt - the headaches are debilitating and reportedly make[] it hard for her to stay on task. Further, the constant pain has made her depressed which makes it even more difficult.
In addition to the above she is having very painful periods and heavy periods and bleeding between periods due to fibroids which has left her weak and on pain meds that again make it difficult for her to concentrate.
Please consider reopening her case to take this into account
In the 2 June 2017 Restrictions Form, Dr. Fakadej diagnosed plaintiff as being "capable of performing occupationally on a full-time basis" sedentary activity, which is defined as "[l]ifting/carrying up to 10 pounds occasionally [i.e., up to 20 minutes per hour or 2.5 hours per day], sitting over 50% of the time and standing/walking occasionally." Tr. 230 ¶ 2. As to the restrictions underlying the sedentary diagnosis, Dr. Fakadej indicated that plaintiff required a second surgery due to a malfunction of the shunt for her pseudotumor which resulted in a major depressive episode and that laminectomy surgery she had on her back caused limitation of her ability to function and severe depression. Tr. 230 ¶ 3. Dr. Fakadej cited as the medical findings that support these restrictions major depression; inability to lift, squat, or sit for long periods; and chronic pain based on headaches from her pseudotumor for which she receives medication. Tr. 230 ¶ 6. Notwithstanding her finding that plaintiff was capable of sedentary work activity, Dr. Fakadej indicated that plaintiff could not then return to work, but that to facilitate her return to work she was receiving physical therapy for her laminectomy surgery and might also require surgery for scoliosis. Tr. 230 ¶ 5.
In the Attending Physician's Statement, Dr. Zomorodi indicated that plaintiff has the chronic disorder of pseudotumor cerebri for which the prognosis was resolution of symptoms with device adjustment. Tr. 231 ¶ 1. Dr. Zomorodi indicated that the proposed treatment was adjustment of the device until symptoms subside and that plaintiff should respond well to adjustment. Tr. 232 ¶¶ 3, 11. Dr. Zomorodi opined that plaintiff had a severe physical limitation on her functional capacity and was incapable of minimum activity as a result of her severe headaches with vomiting. Tr. 232 ¶ 4. Dr. Zomorodi also found plaintiff able to function under stress and engage in interpersonal relations, having no limitations in these areas. Tr. 232 ¶ 5. Dr. Zomorodi indicated that plaintiff was first advised to cease work on 13 December 2013 and that her estimated return to work was 10 March 2014. Tr. 231 ¶ 2(f), (g).
Although the date given for the return to work is literally "3/10/13," because Dr. Zomorodi dated the form 24 February 2014, the court assumes that the intended year for plaintiff's expected return to work was 2014. Tr. 231 ¶ 2(g).
The ALJ gave this set of medical source statements "limited weight":
The claimant's treating physician submitted statements regarding claimant's eligibility for long term disability (12D; 34F). The undersigned affords these statements/opinions limited weight, as they are not fully supported by the evidence of record and the ultimate issue of disability is reserved to the SSA ["Social Security Administration"] Commissioner.Tr. 19 ¶ 5.
Plaintiff challenges the ALJ's assessment of this set of medical opinions on the grounds that the ALJ did not identify the specific portions of the record with which the opinions are inconsistent and did not address the substance of the opinions. The court finds no error.
Plaintiff does not contest the second reason given by the ALJ for discounting this set of opinions—that the ultimate issue of disability is reserved to the Commissioner. This reason is proper. The letter and Restrictions Form by Dr. Fakadej and the Attending Physician's Statement by Dr. Zomorodi can each he reasonably read as signifying that, for at least some period, plaintiff was disabled. As indicated, opinions on issues reserved to the Commissioner are not entitled to special weight based on their source, and therefore such reservation is a valid ground for discounting these opinions.
With respect to the other ground cited by the ALJ, inconsistency with evidence of record is, as indicated, a proper basis for discounting medical opinions. While the ALJ did not specify in his discussion of this set of opinions the evidence he deemed inconsistent with the opinions, his decision otherwise makes clear the evidence to which he was alluding. More specifically, elsewhere in his decision, the ALJ discussed as to each of the impairments he found plaintiff to have the evidence underlying his determination that the impairment is not disabling and the corresponding restrictions he included in his RFC determination (as highlighted in the excerpts from the ALJ's decision set out immediately below). The fact that these discussions do not appear in his evaluation of this set of medical opinions does not render them inapposite because an ALJ's decision must be read as a whole. See, e.g., Maldonado v. Berryhill, No. 5:17-CV-458-FL, 2019 WL 848751, at *15 (E.D.N.C. 2 Jan. 2019), mem. & recomm. adopted, 2019 WL 845407, at *1 (21 Feb. 2019). The ALJ's reliance on these other portions of his decision obviated further discussion of the substance of the opinions at issue.
For example, as to plaintiff's reproductive impairments, the ALJ stated:
The claimant has also been diagnosed with hemorrhagic ovarian cysts and spastic pelvic floor syndrome (1F; 43F). She reports having a large uterine fibroid that causes heavy menstrual bleeding, exacerbating her anemia (12F).Tr. 18 ¶ 5 (emphasis added).
In January 2015, the claimant presented for a consultation regarding pelvic pain and menorrhagia (16F). A pelvic ultrasound showed an eight-centimeter uterus, normal endometrial stripe and three-centimeter posterior fibroid (16F). She had an intrauterine device (IUD) placed in April 2015; however, she continued to report persistent and possibly worsening dysmenorrhea and menorrhagia with constant pain (23F). Her physician believed the IUD was responsible for the claimant's pain, and it was removed in October 2015 (24F).
Due to the claimant's heavy bleeding and fibroid, she was scheduled for a full hysterectomy in September 2016 (47F). Subsequently, in December 2016, the claimant participated in outpatient physical therapy due to pelvic pain (43F). In February 2017, after nine visits, the claimant was discharged after achieving excellent improvement in her stress/pain management ability with no verbal/nonverbal pain noted at her final recheck (43F). The claimant met her goal of being able to ambulate 30 minutes with coordinated gait pattern (43F). She reportedly felt "very good mentally and physically" and was able to walk one mile, three times per week (43F). She had future plans to do yoga twice per week and continue with daily "dancing" (43F). Accordingly, the undersigned has limited the claimant to a reduced range of light work with additional postural, manipulative and environmental limitations. In addition, due to a combination of all the claimant's impairments, the undersigned finds she will be off task less than ten percent of the day in addition to normal breaks.
With respect to plaintiff's back impairments, the ALJ asserted in relevant part:
The claimant alleges chronic back pain that radiates to the lower extremities (3F). She has a shunt placed in her lumbar spine (3F). Reported symptoms include lower extremity weakness, muscle pain and joint pain (10F). Objective records note tenderness about the low back (3F). This is consistent with x-ray imaging show[ing] mild dextroscoliosis of the lumbar spine (8F; 10F). Magnetic resonance imaging (MRI) in April 2013 showed moderate diffuse posterior disc herniation resulting in mild canal narrowing (10F). Repeat imaging in 2017 showed a central disc protrusion which contributes to moderate spinal canal and lateral recess narrowing (45F).Tr. 17-18 ¶ 5 (emphasis added).
The claimant reports trying over the counter medications, physical therapy and behavioral pain management without much relief (10F). In March 2017, she underwent a laminectomy, after which she experienced some headache relief, but she still experienced them (39F; 44F). At follow-up appointments, the claimant reported no back pain, but some residual leg symptoms (44F). Observation of the claimant showed a gait with an antalgic right leg and slow movement, but with grossly normal range of motion in all extremities (39F; 41F). Accordingly, the undersigned has limited the claimant to a reduced range of light work, with positional changes, and additional postural and manipulative limitations.
Relevant determinations by the ALJ regarding plaintiff's pseudotumor cerebri impairment include the following:
The claimant has a history of pseudotumor cerebri with shunt placement in 2010 revised in December 2013, coinciding with the alleged onset date (1F; 7F). The revision was performed without complication and the claimant was discharged to the care of her family after a two-day hospital stay (7F). Generalized symptoms include headaches, back pain, malaise, and ongoing fatigue (11F). The claimant's pseudotumor with shunt is a potential cause or exacerbating factor for both her headaches and spinal impairments.
The record contains complaints of headaches ongoing since the placement of a shunt on December 13, 2013, coinciding with the alleged onset date (1F). Reported symptoms include pain behind the eyes, blurry vision, neck pain, whooshing tinnitus and mild photophobia (1F).
Although the claimant alleges blurry vision, an eye examination in February 2014 found no evidence of any significant visual deficits (1F). The attending physician
suspected dry eyes may be contributing to blurry vision and recommended artificial tears (1F).Tr. 17 ¶ 5 (emphasis added).
The claimant must periodically have her shunt redialed in the hospital, having specifically undergone this procedure in April 2014, July 2014, August 2014, and December 2014 (5F; 10F; 11F; 12F; 13F). She reports that following these adjustments, she usually has a month or two of symptom relief but then headaches recur (17F). As of March 2016, she had not needed to have a revision since December 2014; however, she still reported daily headaches (32F). At this point, she was started on prescription headache medication on a daily basis, with abortive medication on an as-needed basis (32F).
Through August 2016, claimant continued to report daily chronic headaches with migrainous features (36F). In March 2017, she reported to the hospital due to a worsening in these headaches for the past three weeks (38F). Her physician scheduled a shunt adjustment (39F). The claimant felt her headaches through July 2017 were indicative of shunt malfunction, similar to what occurred in 2014 (41F). Accordingly, the undersigned has limited the claimant to a reduced range of light work that does not require more than occasional exposure to loud noise, no exposure to very loud noise, no exposure to vibration, no exposure to unprotected heights, and occasional exposure to hazardous machinery or hazardous moving mechanical parts, with an allowance for time off task.
It is true, as plaintiff notes, that there is evidence of record that tends to support the opinions of Dr. Fakadej and Dr. Zomorodi, including evidence cited in their statements and evidence discussed by the ALJ. The existence of conflicting evidence on issues before an ALJ is prosaic. One of the core functions of the ALJ is to resolve disputes in conflicting evidence. The evidence of record here did not compel the ALJ to attribute greater weight to the opinions of Dr. Fakadej and Dr. Zomorodi than he did.
Because the ALJ's evaluation of the opinions in the letter and Restrictions Form by Dr. Fakadej and the Attending Physician's Statement by Dr. Zomorodi is supported by substantial evidence of record and based on applicable legal standards, the court rejects plaintiff's challenge to it.
C. Consultative Examination by Gonzalo A. Fernandez, M.D.
Plaintiff also challenges the ALJ's assessment of a 15 December 2014 consultative examination conducted by a Disability Determination Division ("DDS") physician, Gonzalo A. Fernandez, M.D. Tr. 362-65. In his diagnosis of plaintiff, Dr. Fernandez wrote:
DDS is a North Carolina state agency that makes decisions on applications for disability under the Social Security program. See DDS, https://www.ncdhhs.gov/assistance/disability-services/disability-determination-services (last visited 19 Dec. 2019).
A 43-year-old African American female with a history of pseudotumor cerebri, chronic low back pain with scoliosis and degenerative disk disease and depression who has no assistive devices today but may benefit from the use of a cane or a rolling walker due to her unsteadiness.Tr. 365.
She may have postural limitations to bending, stooping, crouching, and manipulative limitations to reaching, handling, feeling, grasping and fingering, all limited by her history of pseudotumor cerebri with shunt placement with some right-sided lower leg weakness and pain, also due to her scoliosis and degenerative disk disease. She may have workplace and environmental limitations, also limited by her antalgic gait and her unsteadiness and ataxia. She may have communicative and workplace limitations limited by her history of depression. She may have visual limitations, limited by her poor visual acuity on today's Snellen eye exam as well as her history of blurred vision symptoms and dizziness.
The ALJ gave Dr. Fernandez's opinions "limited weight," explaining as follows:
A consultative examiner opined the claimant may benefit from the use of a cane or rolling walker and may have postural, manipulative, workplace, environmental, communicative, and visual limitations based on her various impairments (3F). The undersigned affords this opinion limited weight. The opinion is vague, it does not specify any specific functional limitations, and it appears to be based mostly upon the claimant's subjective statements.Tr. 19 ¶ 5.
Plaintiff argues that the ALJ failed to acknowledge that the opinions of Dr. Fernandez were consistent with the conclusions of her other providers. The court finds, however, that the ALJ's attribution of limited weight was proper.
Plaintiff does not dispute the first reason given by the ALJ for discounting Dr. Fernandez's opinions—that they are vague. The ALJ's determination is a reasonable one. Each of Dr. Fernandez's opinions was qualified by the word "may" which necessarily leaves open the possibility that plaintiff may not have such limitations. Vagueness is a proper ground for limiting the weight given medical source opinions. See Scott v. Berryhill, No. 1:16CV48, 2017 WL 500000, at *5 (M.D.N.C. 7 Feb. 2017) ("The state agency consultants' findings that Plaintiff 'may' experience 'some' limitation in various work-related abilities . . . failed to provide concrete opinions as to (1) whether Plaintiff actually experienced limitations in those abilities; or (2) the degree of any such limitations."), mem. op. & recomm. adopted, Ord. & J. (D.E. 22) (1 Mar. 2017).
The second reason given by the ALJ—the lack of specific functional limitations—is also proper. The opinions can reasonably be interpreted as lacking such limitations, and the absence of such limitations is a valid basis for discounting opinions.
The third reason is also proper on comparable grounds. Dr. Fernandez's opinions can reasonably be interpreted as being based mostly on plaintiff's subjective statements. While "ALJs must not succumb to the temptation to play doctor and make their own independent medical findings," Rohan v. Chater, 98 F.3d 966, 970 (4th Cir. 1996), they may in appropriate circumstances discount medical opinions for excessive reliance on a claimant's subjective statements, Mastro, 270 F.3d at 178; see also Stanley v. Barnhart, 116 F. App'x 427, 429 (4th Cir. 2004) ("In reaching his conclusion, the ALJ properly discredited medical assessments based solely on [the claimant's] subjective reports of emotional impairment."); Jeffries v. Berryhill, No. 1:18-CV-51, 2019 WL 1005501, at *11 (M.D.N.C. 1 Mar. 2019) (upholding ALJ's decision discounting a medical opinion based more on subjective complaints than clinical observations), mem. op. & recomm. adopted, 2019 WL 2468241 (29 Mar. 2019).
For the foregoing reasons, the court rejects plaintiff's challenge to the ALJ's assessment of Dr. Fernandez's opinions. See Gallardo v. Berryhill, No. 1:16CV355, 2017 WL 1409575, at *7 (M.D.N.C. 20 Apr. 2017) ("Moreover, the ALJ here discounted Dr. Villarosa's opinions as vague and overly reliant on Plaintiff's subjective complaints. . . . Both of those reasons constitute permissible grounds on which to discount a medical source's opinions."), mem. op. & recomm. adopted, 2017 WL 2623884 (16 June 2017).
D. Letter by Physician Assistant Lazaro Gonzales, Jr.
Lazaro Gonzales Jr., a physician assistant with Duke Health ("PA Gonzales"), authored a letter to "To Whom It May Concern" dated 11 August 2016 opining that plaintiff lacked the ability to work. Tr. 2950. He stated:
Mrs. Robertson is currently under our care for chronic condition of pseudotumor cerebri. We have co-managed her with neurology. We placed a shunt with several revisions. She underwent gastric bypass surgery and has had significant weight loss. She has unfortunately had several maladies that have complicated her course of recovery. This has also led to likely depression that she is having managed separately. She continues to have headaches and is being evaluated by our neurology specialist. We will continue to follow [her] for any neurosurgical intervention as necessary. Per patient description of issues, she is unable to perform daily work activities secondary to these issues.Tr. 2950.
The ALJ gave PA Gonzales' opinion "little weight," explaining as follows:
A physician's assistant submitted a statement that noted the claimant was unable to perform daily work activities per claimant's description of issues (35F). The undersigned affords this opinion little weight. It is equivocal, contains no functional limitations and addresses the ultimate issue of disability, an issue reserved to the SSA Commissioner.Tr. 19 ¶ 5.
Plaintiff contends that the ALJ's discounting of PA Gonzales' opinion without addressing the portions of the letter discussing plaintiff's need for several shunt placement revisions and her depression and headache symptoms was error. The court finds, however, that the ALJ's evaluation was proper.
The opinion that plaintiff "is unable to perform daily work activities" could reasonably be characterized as "equivocal" because it is subject to the qualification "[p]er patient description of issues." Tr. 2950. As a result of this qualification, it is unclear whether PA Gonzalez is merely recounting plaintiff's statements about her ability to perform daily work activities or expressing an independent assessment of her ability to perform such activities.
Plaintiff does not dispute the other grounds asserted by the ALJ for discounting this opinion, and they are also proper. Specifically, as the ALJ stated, the opinion contains no functional limitations and the ultimate issue of disability is for the Commissioner.
Plaintiff's contention that the ALJ erred by not addressing PA Gonzalez's discussion of her shunt placement, depression, and headache symptoms fails, in part, because the ALJ's assessment of PA Gonzalez's opinion is sufficient without such a discussion. But the ALJ did, in fact, address these matters in his decision. See, e.g., Tr. 17 ¶ 5 (shunt and headaches; quoted above at pp. 14-15); 19 ¶ 5 (depression). While these matters were not addressed as part of the discussion of PA Gonzalez's opinion, they may still properly be considered in connection with PA Gonzalez's opinion because the ALJ's decision must, as indicated, be read as a whole.
With respect to plaintiff's depression, in addition to his analysis of whether plaintiff met a Listing and other references to her mental impairments, the ALJ states:
The evidence does not substantiate mental impairments that would prevent the claimant from performing simple, routine, repetitive tasks that do not involve more than frequent interaction with the public. The claimant has been diagnosed with depression, generalized anxiety disorder and insomnia (1F; 42F). Reported symptoms include sadness, crying spells, difficulty sleeping, fatigue, forgetfulness, trouble concentrating, and mood swings (4F; 12F; 41F; 42F).Tr. 19 ¶ 5.
In August 2014. the claimant lost a child during pregnancy, experiencing significant grief over the experience (12F). She continues to experience psychological distress and depression due to her ongoing health issues and multiple surgeries (26F). The claimant's psychological impairments are treated with a combination of medications and counseling (42F). Accordingly, consistent with the evidence discussed in the above "paragraph B" analysis, (he undersigned has limited the claimant to simple, routine, repetitive tasks, not at a production rate pace, with no more than frequent public interaction. The record warrants no further restriction.
The court accordingly rejects plaintiff's challenge to the ALJ's assessment of PA Gonzales" opinion.
E. Functional Capacity Evaluation and Physical RFC Statement by Physical Therapist Peggy Anglin
Lastly, plaintiff challenges the ALJ's assessment of two reports on plaintiff by physical therapist Peggy Anglin ("PT Anglin") of the Duke University Health System: (1) a functional capacity evaluation dated 15 August 2017 based on PT Anglin's four-hour examination of plaintiff that day (Tr. 3850-73); and (2) a physical RFC statement dated 17 August 2017 (Tr. 3846-49) based, in part, on the functional capacity evaluation. Dr. Zomorodi and a nurse practitioner requested the functional capacity evaluation. See Tr. 3850. In the functional capacity evaluation, PT Anglin concludes that plaintiff is functioning at less than the sedentary level of physical work and does not exhibit the occasional lifting ability that would allow her to meet sedentary work requirements. Tr. 3853. Citing the functional capacity evaluation, PT Anglin concludes in the physical RFC statement that plaintiff is unable to obtain and retain work in a competitive work environment on a fulltime basis. Tr. 3849 ¶ 18.
The ALJ gave the PT Anglin's functional capacity evaluation and physical RFC statement "limited weight," stating:
In August 2017, the claimant underwent a functional capacity evaluation that assessed her incapable of even sedentary work (46F). The undersigned affords this assessment and the accompanying [RFC] Statement limited weight. The examiner was a physical therapist and not an acceptable medical source. The extreme limitations assessed in this report are out of step with the objective medical and other evidence of record, as discussed above, and are not indicative of the claimant's level of functioning during the period under adjudication. For example, in July 2017, a physical exam revealed that claimant moved slowly, but her range of motion was grossly normal, she was alert and oriented, and she had normal
reflexes, normal muscle tone and normal coordination (41F, 46-47). A lumbar spine x-ray in July 2017 was mostly normal with no radiographic evidence of discontinuity of the shunt catheter (41F, 76-77).Tr. 20-21 ¶ 5.
The ALJ's first reason for providing PT Anglin's opinions limited weight—that she is not an acceptable medical source—is proper. "[A] physical therapist is not an "acceptable medical source" under the regulations." Newton v. Saul, No. CV 9:18-1608-CMC-BM, 2019 WL 3769880, at *9 (D.S.C. 11 July 2019), rep. & recomm. adopted, 2019 WL 3766480 (8 Aug. 2019); see also Rogers v. Berryhill, No. 8-18-CV-1931-BHH-JDA, 2019 WL 2894950, at *11 (D.S.C. 18 June 2019) ("As an initial matter, a physical therapist is not an 'acceptable medical source' as defined in the social security regulations, see 20 C.F.R. § 404.1513; however, the opinion of a physical therapist may be considered by the ALJ under the same factors as an acceptable medical source."), rep. & recomm. adopted, 2019 WL 2743894 (1 July 2019).
The ALJ's second reason—the inconsistency between PT Anglin's opinions and other evidence of record—is an appropriate reason to discount her opinions. The ALJ gives examples of two treatment records demonstrating objective findings that are at odds with the more extreme limitations advanced by PT Anglin. As noted above, inconsistency with overall treatment records is a proper basis for the ALJ to discount the weight given to medical source opinions.
Forthe foregoing reasons, the court concludes that the ALJ committed no error in assessing the medical source opinion evidence in the record.
VII. ALJ'S EVALUATION OF LAY WITNESS STATEMENTS
Plaintiff challenges the ALJ's assessment of two lay witness statements submitted on her behalf: one by her husband (Tr. 319-20) and one by a member of her church (Tr. 316).
A. Applicable Legal Principles
The Regulations require an ALJ, in assessing a claimant's RFC, to consider descriptions and observations of the claimant's limitations from his "family, neighbors, friends, or other persons." 20 C.F.R. § 404.1545(a)(3). The ALJ must take into account the extent to which such descriptions and observations "can reasonably be accepted as consistent with the objective medical evidence and other evidence." Id. § 404.1529(c)(3).
B. Statement by Plaintiff's Husband
The statement by plaintiff's husband asserts that plaintiff previously enjoyed walks, family gatherings, and church events, but now leaves only the house for doctors' appointments and sometimes church. Tr. 319. He described her anxiety and depression, and complaints of headaches, pain, and weakened hearing and vision. Tr. 319. Plaintiff's husband reports that, as a result of plaintiff's pain, he is now responsible for her activities of daily living. Tr. 319.
The ALJ gave the statement from plaintiff's husband "some weight." Tr. 20 ¶ 5. The ALJ explained as follows:
The claimant's husband submitted a personal statement describing symptoms such as diffuse pain, nausea, drowsiness, confusion, lack of energy, balance difficulty, and crying spells that limit the claimant's daily activities (16E). The undersigned affords this opinion some weight.Tr. 20 ¶ 5.
The claimant's husband did not assess any specific functional limitations, nor is he a medical professional trained to do so, and he is not a disinterested third party. However, his opinion is based on first-hand observation over a long period of time, and the symptoms he describes are the type of symptoms consistent with the claimant's impairments, as detailed above.
Plaintiff contends that the ALJ failed to offer more than cursory reasons for his determination to give the husband's statement "little if any weight." Plf.'s Mem. 3. This is a mischaracterization of the ALJ's determination because, as indicated, he gave plaintiff's husband's opinions "some weight." Tr. 20 ¶ 5.
Further, the three reasons the ALJ provided for partially discounting plaintiff's husband's opinions are proper. His first reason—that plaintiff's functional limitations were not addressed by plaintiff's husband in the statement—is accurate. There is no evidence indicating that the second reason—that plaintiff's husband is not a trained medical professional—is inaccurate. And the statement itself supports the third reason—that plaintiff's husband is not a disinterested third party. See Tr. 320 ("[W]e desire above all else for my wife (Sheila) to have her life back, and for me to have my dear, best friend back."). All three reasons arc valid bases under applicable law for discounting the weight given opinions.
Notably, the reasons cited by the ALJ for partially crediting plaintiff's husband's opinions—that they are based on first-hand observation over a long period of time and that the symptoms he describes are of the type consistent with plaintiff's impairments as discussed in the decision—are also supported by substantial evidence of record and valid reasons for giving weight to opinions.
C. Letter by Fellow Church Member
The letter by a fellow parishioner from plaintiff's church, addressed "To Whom It May Concern," attributes diminished activity by plaintiff in church activities to symptoms from her impairments. Tr. 316. It states:
My name is Evelyn M. Sanders, Financial Secretary of Anointed Vision Ministry. 1 have known Sister Shelia Robertson since 2009. When Sister Shelia joined the church, she was very active in her role as being a part of the Praise Team.
As time passed. I noticed a loss of interest in the positions she was holding. 1 made attempts to call upon her, as I did when she first became a part of the ministry but now my calls were no longer being answered. I knew at this point, something was different about her. The joy that she once displayed was replaced with sad[ness]
and an unwillingness to socialize. Whenever I could contact Sister Shelia, she was in a lot of pain. From sever[e] muscle spasms to massive headaches due to Pseudotumor Cerebri.Tr. 316.
She explained to me that on daily bases, she must deal with pain and because of her illness, there are times she gets so depressed about her condition, she would stay in bed anywhere from two to three days without getting up and this was the reason she has missed meetings, practices and worship services.
I am in constant prayer for Sister Sheila Robertson.
The ALJ gave this statement "little weight," explaining as follows:
A member of claimant's church submitted a statement detailing her interaction with the claimant (15E). The undersigned affords this statement little weight as it contains no functional limitations and appears to [be] based mostly on telephone conversations with the claimant, rather than objective observation.Tr. 20 ¶ 5.
Plaintiff contends that the ALJ erred by providing only cursory reasons for giving the statement little weight. Again, the court disagrees. The first reason—that the statement did not provide functional limitations—is accurate. The second reason—that the statement appears to be based primarily on telephone conversations rather than first-hand observations—finds substantial evidentiary support in the letter itself. Both of these reasons are valid reasons for discounting the weight given such a lay witness statement. Accordingly, the court reject's plaintiff's challenge to it.
VIII. ALJ'S ALLEGED CHERRYPICKING OF EVIDENCE
"An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (internal quotation marks omitted). Plaintiff contends that the ALJ's decision is a "textbook example" of such cherrypicking. Plf.'s Mem. 7. It is not.
In his decision, the ALJ comprehensively reviewed the medical evidence of record, both favorable and unfavorable to plaintiff's claim of disability. The excerpts from the ALJ's decision presented herein illustrate the ALJ's inclusion of evidence favorable to plaintiff's claim in his analysis of it. Plaintiff's contention amounts to a request that the court reweigh the evidence, which it may not, of course, properly do. The court accordingly rejects plaintiff's challenge to the ALJ's decision based on alleged cherrypicking.
IX. ALJ'S ACCOMMODATION OF VARIOUS LIMITATIONS IN THE 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.
B. Plaintiff's Headaches
Plaintiff contends that the ALJ failed to include in his RFC determination any functional limitations for her headaches with vomiting. The ALJ's decision belies this contention.
As previously indicated in the court's discussion of PA Gonzalez's opinions (see pp. 14-15 above), the ALJ expressly explained the limitations he imposed in his RFC determination due to plaintiff's headaches:
Through August 2016, claimant continued to report daily chronic headaches with migrainous features (36F). In March 2017, she reported to the hospital due to a worsening in these headaches for the past three weeks (38F). Her physician scheduled a shunt adjustment (39F). The claimant felt her headaches through July 2017 were indicative of shunt malfunction, similar to what occurred in 2014 (41F). Accordingly, the undersigned has limited the claimant to a reduced range of light work that does not require more than occasional exposure to loud noise, no exposure to very loud noise, no exposure to vibration, no exposure to unprotected heights, and occasional exposure to hazardous machinery or hazardous moving mechanical parts, with an allowance for time off task.Tr. 17 ¶ 5 (emphasis added). The allowance for time off task was "up to 10% of the time in an eight-hour workday." Tr. 21 ¶ 5. As the ALJ explained, this allowance accommodated not only plaintiff's headaches, but also her other impairments—that is, "the totality of the claimant's impairments." Tr. 21 ¶ 5.
While the ALJ did not mention in his explanation headache-related vomiting, no such specification of this or the other effects of the headaches was essential. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) ("While the Commissioner's decision must contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based . . . there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." (quotation marks omitted)). In addition, it is apparent from the decision that the headaches to which the ALJ refers in his explanation include migraines, which are simply a type of headaches. See Tr. 26 ¶ 5 (referencing "headaches with migrainous features").
Plaintiff's contention that the ALJ did not accommodate plaintiff's headaches with vomiting in the RFC determination is therefore meritless.
C. Plaintiff's Difficulty Concentrating
Plaintiff also contends that the ALJ failed to accommodate in his RFC determination plaintiff's difficulty in concentrating that purportedly results from her headache and menstrual pain. The argument fails.
As previously discussed, the ALJ found in applying the paragraph B criteria at step three of the sequential analysis that plaintiff had moderate limitation in concentrating, persisting, or maintaining pace. See Tr. 14-15 ¶ 4. As also previously noted, he ALJ explained his accommodation of plaintiff's mental impairments, including her difficulty concentrating, as follows:
The evidence does not substantiate mental impairments that would prevent the claimant from performing simple, routine, repetitive tasks that do not involve more than frequent interaction with the public. The claimant has been diagnosed with depression, generalized anxiety disorder and insomnia (1F; 42F). Reported symptoms include sadness, crying spells, difficulty sleeping, fatigue, forgetfulness, trouble concentrating, and mood swings (4F; 12F; 41F; 42F).Tr. 19 ¶ 5 (emphasis added). Notably, the ALJ imposed these same limitations for plaintiff's pain. See Tr. 21 ¶ 5. The ALJ further determined, again, that "due to the totality of claimant's impairments," including her mental impairments, "she would be off task up to 10% of the time in an eight-hour workday." Tr. 21 ¶ 5.
In August 2014. the claimant lost a child during pregnancy, experiencing significant grief over the experience (12F). She continues to experience psychological distress and depression due to her ongoing health issues and multiple surgeries (26F). The claimant's psychological impairments are treated with a combination of medications and counseling (42F). Accordingly, consistent with the evidence discussed in the above "paragraph B" analysis, the undersigned has limited the claimant to simple, routine, repetitive tasks, not at a production rate pace, with no more than frequent public interaction. The record warrants no further restriction.
The court concludes that the ALJ's RFC determination adequately accommodates the difficulty he found plaintiff to have in concentrating. 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), recomm. adopted, 2017 WL 1194462 (31 Mar. 2017). The court accordingly rejects this final challenge to the ALJ's RFC determination and decision.
X. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 29) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 28) 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 2020 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 he filed within 14 days after service of the objections on the responding party.
This 19th day of December 2019.
/s/_________
James E. Gates
United States Magistrate Judge