Opinion
4:18-CV-150-D
02-14-2020
DIANNE SCOTT, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Dianne Scott ("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. 12, 14. Both filed memoranda in support of their respective motions. D.E. 13, 15. 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. 16; 19 June 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 19 August 2014, alleging a disability onset date of 1 July 2013. Transcript of Proceedings ("Tr.") 12. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 12. On 10 April 2017, a video hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by an attorney, and a vocational expert testified. Tr. 12; 30-71. At the hearing, plaintiff amended her alleged disability onset date to 4 August 2013, the date subsequently referred to herein as the date of alleged onset of disability. Tr. 12; 34; 221. On 27 June 2017, the ALJ issued a decision denying plaintiff's application. Tr. 12-24.
Plaintiff timely requested review by the Appeals Council. Tr. 185. On 18 June 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 22 August 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 (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 57 years old on the alleged disability onset date, and 61 on the date of the hearing and the date of issuance of the ALJ's decision. See Tr. 22 ¶ 7. The ALJ found that she has at least a high school education (Tr. 22 ¶ 8) and past relevant work as a meat wrapper (Tr. 22 ¶ 6).
As the ALJ notes, plaintiff changed age categories from advanced age (55 or older) to closely approaching retirement age (60 or older) during the alleged period of disability. See Tr. 22 ¶ 7 (citing 20 C.F.R. § 404.1563(e)).
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 4 August 2013, the alleged disability onset date. Tr. 14 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: bilateral knee osteoarthritis, status post right knee replacement, Baker's cysts of the bilateral knees, degenerative disc disease, lumbar stenosis and spondylosis, fibromyalgia, and isolated cutaneous lupus without systemic disease. Tr. 14 ¶ 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. 16 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of work at the medium exertional level, as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform medium work, as defined in 20 CFR 404.1567(c) and SSR 83-10, except: she can frequently push/pull and operate
foot controls with both lower extremities; occasionally climb ramps or stairs; occasionally climb ladders, ropes or scaffolds; frequently balance, stoop, kneel, and crouch; and occasionally crawl; and she can have occasional exposure to unprotected heights, hazardous machinery or hazardous moving mechanical parts. The claimant would be off task no more than 10 percent of the time in an 8-hour workday, in addition to normal breaks.Tr. 17 ¶ 5.
This regulation defines medium work as work that "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c).
This ruling states in relevant part:
3. Medium work. The regulations define medium work as lifting no more than 50 pounds at a time with frequent [i.e., 1/3 to 2/3 of the time] lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time. Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.Soc. Sec. Ruling 83-10 (1 Jan. 1983).
The considerable lifting required for the full range of medium work usually requires frequent bending-stooping (Stooping is a type of bending in which a person bends his or her body downward and forward by bending the spine at the waist.) Flexibility of the knees as well as the torso is important for this activity. (Crouching is bending both the legs and spine in order to bend the body downward and forward.) However, there are a relatively few occupations in the national economy which require exertion in terms of weights that must be lifted at times (or involve equivalent exertion in pushing or pulling), but are performed primarily in a sitting position, e.g., taxi driver, bus driver, and tank-truck driver (semiskilled jobs). In most medium jobs, being on one's feet for most of the workday is critical. Being able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.
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. 22 ¶ 6. At step five, citing the testimony of the vocational expert and using Medical-Vocational Rules 203.06 and 203.14 as a framework for decision making, 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 dining room attendant, counter supply worker, and hospital cleaner. Tr. 22-23 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 4 August 2013, through the date of the decision, 27 June 2017. Tr. 23 ¶ 11.
The Medical-Vocational Rules are set out in 20 C.F.R. pt. 404, subpt. P, app. 2. They are a set of rules that specify a conclusion as to whether or not a claimant is disabled. See generally Medical-Vocational Rules § 200.00(a); Soc. Sec. Ruling 83-10, 1983 WL 31251 (1983). The Medical-Vocational Rules are grouped by RFC for the various strength or exertional levels under the Regulations, namely, sedentary, light, medium, and heavy or very heavy work. Within each such RFC grouping, the criteria applied are the vocational factors—namely, age, education, and previous work experience (e.g., none, unskilled, semiskilled, skilled, transferability of skills). "Where the findings of fact made with respect to a particular individual's vocational factors and [RFC] coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled." Medical-Vocational Rules § 200.00(a). However, where a claimant has exertional and nonexertional limitations, as here, the Medical-Vocational Rules are used as a framework for decision making. Id. § 200.00(e)(2); see also Soc. Sec. Ruling 83-14, 1983 WL 31254, at *1, 3 (1983).
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, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). More specifically, an ALJ "must build 'an accurate and logical bridge from the evidence to his conclusion[s]'" to enable meaningful substantial evidence review. Monroe v. Colvin, 826 F.3d 176, 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
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: improperly evaluated medical opinion evidence; improperly evaluated plaintiff's statements regarding her impairments, that is, her symptoms; impermissibly cherrypicked evidence unfavorable to plaintiff in making his RFC determination; and inadequately explained his RFC determination. Plaintiff argues that proper evaluation of the evidence would show that she has the capacity to perform at most a limited range of light work and that Medical-Vocational Rules 202.04 and 202.06, used as a framework for decision making, would establish that she is disabled. See Pl.'s Mem. 8, 12. The court addresses in turn below each of the four grounds for reversal or remand advanced by plaintiff.
See 20 C.F.R. § 404.1528(a) (defining symptoms as a claimant's statements about his impairments).
VI. ALJ'S EVALUATION OF MEDICAL OPINION EVIDENCE
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, 826 F.3d at 189, 190, 191; 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 nurse practitioners. 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) (listing nurse practitioners and therapists among "other sources"). 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. Analysis
One set of opinions whose evaluation by the ALJ plaintiff challenges are those of the nonexamining Disability Determination Services ("DDS") physician at the reconsideration level of review, Hari Kuncha, M.D. Dr. Kuncha found on 15 June 2015 that plaintiff had the RFC to perform medium work with limitations. See Tr. 92-94.
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 14 Feb. 2020).
Although plaintiff does not identify Dr. Kuncha by name, she is necessarily referring to him because the medical evaluation at the initial level of review was conducted by a single decision maker or SDM (see Tr. 107) and no weight may be given to the opinions of an SDM, see Smith v. Berryhill, No. 7:17-CV-139-D, 2018 WL 3800044, at *4 (23 July 2018), mem. & recomm. adopted, 2018 WL 3785399 (9 Aug. 2018) (citing, e.g., Nicholson v. Astrue, Civ. No. 1:09cv271, 2010 WL 4506997, at *6 & n.2 (W.D.N.C. 29 Oct. 2010) (collecting cases)).
The ALJ gave Dr. Kuncha's opinions "great weight," stating:
At the reconsideration level, State agency medical consultant Hari Kuncha, M.D., concluded the claimant could perform medium exertional work with frequent pushing and pulling with her bilateral lower extremities; frequent climbing, balancing, stooping, kneeling, crouching, and crawling; and the avoidance of concentrated exposure to hazards (Exhibit 2A). Dr. Kuncha's opinion is given great weight because he is an expert well familiar with program rules and the expected limitations of impairments who had the opportunity to review a substantial portion of the medical evidence of record. Evidence received at the hearing level indicates
that the claimant's condition has not significantly changed. Dr. Kuncha's opinion is consistent with clinical findings of full lower extremity motor strength, improvement of right knee imaging findings following surgery, and her own reports regarding her daily activities (Exhibits 8F; 9F; 12F; 15F).Tr. 20-21 ¶ 5.
Plaintiff argues that the ALJ should have given less weight to Dr. Kuncha's opinions than he did, in part, on the grounds that the ALJ's assessment reflects the ALJ's reliance on cherrypicked evidence favoring a conclusion of nondisability. See Pl.'s Mem. 11 (noting in a discussion of Dr. Kuncha's opinions that "the ALJ's decision ignores substantial evidence of a greater severity" than the ALJ found). Plaintiff cites the principle that "[a]n 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's contention fails.
In his decision, the ALJ comprehensively reviewed the medical and other evidence of record, both favorable and unfavorable, to her claim of disability. For example, with respect to plaintiff's knees, the ALJ stated as follows, with evidence favorable to plaintiff's claim highlighted:
In terms of the claimant's knee issues, in October 2013 she first reported to primary care provider Teresa Gibson, GNP, that she was experiencing bilateral knee pain. She indicated that she had difficulty bending down and standing up. Upon exam, she was noted to have crepitus of both knees but no signs of swelling. Ms. Gibson recommended that the claimant continue taking Flexeril, Lortab, and Lyrica as previously prescribed for fibromyalgia symptoms (Exhibit 3F pp. 10-11). She subsequently returned to her primary care clinic for symptoms related to acute illnesses (Id. at pp. 4-9). She did not complain further of knee pain until her August 5, 2014, visit. She indicated that her left knee was swollen, painful, and unstable. Ms. Gibson noted upon exam that the claimant had a small amount of effusion and crepitus. She continued the claimant's previously prescribed medications (Id. at pp. 1-2).
Subsequently, on August 15, 2014, the claimant initiated care at Carolina Regional Orthopedics for knee pain. Stephen Mould, PA, found the claimant had good range
of motion of both knees without swelling, erythema, effusion, or lesions. He noted she exhibited pain with motion and palpation of her left knee, but had full strength and normal stability of both knees. X-ray results showed left knee joint space narrowing of 70 percent with early sclerosing. He administered a steroid injection to her left knee (Exhibit 4F). At her return visits in January and February 2015, she was given additional steroid injections and prescribed Voltaren-XR. She was also given a referral to physical therapy (Exhibit 8F pp. 5-16).Tr. 19 ¶ 5 (emphasis added).
MRI results of her right knee from March 4, 2015, revealed large joint effusion and a moderate to large associated Baker's cyst. Results also showed moderate flattening and signal abnormality within the anterior horn of the lateral meniscus consistent with mild chronic maceration and chronic complex tearing. Further, degenerative changes were noted within the lateral compartment, patellofemoral joint space, and lateral facet of the patella with focal full-thickness chondral fissuring (Exhibit 5F). She subsequently received an additional two steroid injections and was given a knee brace for her right knee. Her knee was drained twice and she was prescribed tramadol and Norco. In October 2015, orthopedic surgeon Robert Martin, M.D., recommended right total knee replacement, which was performed on December 1, 2015 without complication (Exhibits 8F pp. 1-3; 11F; 12F pp. 46 -55). She participated in physical therapy through February 2016 (Exhibit 12F pp. 6-38).
At her February 25, 2016, May 25, 2016, and December 21, 2016, post-surgical visits with Dr. Martin, the claimant reported that she was doing well. Ultrasound of the bilateral lower extremities from April 2016 revealed a Baker's cyst in the right and left popliteal fossa. She noted that she experienced occasional soreness but was overall pleased. X-ray results of her right knee showed good alignment. Dr. Martin recommended that the claimant continue at home physical therapy exercises (Exhibits 12F pp. 4-7; 14F p. 16; 15F pp. 4-9).
As to plaintiff's back impairments, the ALJ stated, again, with the evidence favorable to plaintiff highlighted:
At her January 12, 2017, orthopedic clinic visit she reported experiencing back pain. She noted that three years prior she was swimming in the ocean and was knocked down by a wave onto her buttocks. X-ray results showed no signs of listhesis on flexion, extension, or lateral views. There also were also no signs of fracture or dislocation. Orthopedist David Miller, M.D., stated that MRI results of her lumbar spine from 2014 showed moderate stenosis at L4-L5 and L5-S1. Upon exam, the claimant had decreased sensation of her lateral left leg and dorsum of her left foot, but full lower extremity motor strength (5/5). Straight leg raise testing was positive in the supine position on the right and left, but not in the seated position. She exhibited tenderness to palpation of the paraspinal muscles. Dr.
Miller diagnosed the claimant with spinal stenosis of the lumbar region, lumbar spondylosis, and displacement of lumbar intervertebral disc without myelopathy. He administered an epidural steroid injection at L4-L5 (Exhibit 15F pp. 1-4). The medical evidence of record does not document further recommended or prescribed treatment related to her back.Tr. 20 ¶ 5 (emphasis added).
In addition, the ALJ addressed plaintiff's musculoskeletal pain as follows, with highlighting as before:
Regarding the claimant's fibromyalgia, lupus, and musculoskeletal pain, primary care records from 2013 and 2014 list fibromyalgia as a diagnosis but do not include clinical findings relating to this diagnosis. Clinic records indicate that the claimant was being treated with Flexeril, Lyrica, and Lortab for the condition and symptoms (Exhibits 3F; 6F). Also of note, primary care record from this period list a diagnosis of lupus but indicate the claimant has not received treatment (See e.g., 3F p. 20 and 2F p. 14).Tr. 20 ¶ 5 (emphasis added).
The ALJ's decision is replete with other references to evidence favorable to plaintiff's claim, some of which are set out below in the discussion of other grounds advanced by plaintiff for reversal or remand of the decision. Moreover, as discussed below, the court finds that plaintiff's allegations of cherrypicking by the ALJ regarding his assessment of plaintiff's symptoms and RFC determination are baseless, and therefore no such cherrypicking tainted his evaluation of Dr. Kuncha's opinions. The court concludes that the ALJ's evaluation of Dr. Kuncha's opinions was not afflicted with any cherrypicking by the ALJ.
Plaintiff also appears to suggest cherrypicking by Dr. Kuncha himself. She states that Dr. Kuncha "did not take into account the physical findings that support the severity of limitations reported by Ms. Scott and opined by her treating nurse practitioner," Teresa Gibson, GNP. Pl.'s Mem. 9. GNP Gibson's opinions are set out in a letter dated 7 April 2017 addressed "[t]o whom it may concern." Tr. 630. In this argument, the court understands plaintiff to be referring to evidence that was available to Dr. Kuncha when he performed his evaluation in 2015, rather than evidence that was generated afterward and was therefore unavailable to him (including the opinions of GNP Gibson themselves), which plaintiff addresses in a separate argument discussed below.
"GNP" ostensibly signifies geriatric nurse practitioner.
Plaintiff's contention that Dr. Kuncha engaged in cherrypicking fails. One reason is that she does not specify the evidence to which she alludes. Further, Dr. Kuncha's assessment includes what appears to be an evenhanded review of the evidence that was before him. See Tr. 88-89. In addition, plaintiff appears to assume that the limitations to which GNP Gibson opined based on the underlying physical findings are much more severe than those found by the ALJ. In fact, though, the conclusion GNP Gibson reached was that "[plaintiff's] back issues make it very difficult for her to be able to do the kind of work she did previously." Tr. 630. The ALJ, of course, made essentially the same finding, determining that plaintiff could not perform her past relevant work. See Tr. 22 ¶ 6.
As noted, plaintiff cites as an additional reason why the ALJ should have ascribed less weight to Dr. Kuncha's opinions the fact that they "were given without the benefit of multiple pieces of medical evidence that became available after these opinions were rendered." Pl.'s Mem. 11. The contention is unconvincing. Plaintiff fails to identify the evidence to which she alludes. Moreover, the ALJ expressly considered the extent and currency of the medical evidence Dr. Kuncha had available to him. Again, as set out above, the ALJ stated: "[Dr. Kuncha] had the opportunity to review a substantial portion of the medical evidence of record. Evidence received at the hearing level indicates that the claimant's condition has not significantly changed." Tr. 21 ¶ 5. Plaintiff has not demonstrated that these findings are erroneous.
In particular, plaintiff has not shown that the unavailability to Dr. Kuncha of GNP Gibson's opinions compelled attribution of less weight to his opinions. GNP Gibson opined in full as follows:
Ms. Scott is a patient of ours. She has a history of osteoarthritis for which she had a total knee replacement. She has low back pain with degenerative disc disease which has caused spinal stenosis. She also has a herniated disc in her low back along with sp[o]nd[ylo]sis. Her other medical problems include hypertension lupus & rheumatoid arthritis. Her back issues make it very difficult for her to be able to do the kind of work she did previously. Please feel free to call us if you have any questions[.]Tr. 630.
The ALJ gave GNP Gibson's opinions "little weight," stating:
Treating primary care nurse practitioner Teresa Gibson. GNP, stated in a letter dated April 7, 2017, that the claimant had been treated for osteoarthritis, degenerative disc disease, spinal stenosis, spondylosis, hypertension, lupus, and rheumatoid arthritis. She opined that the claimant's back issues make it "very difficult for her to be able to do the kind of work she did previously" (Exhibit 18F). Ms. Gibson, as a nurse practitioner, is not considered an acceptable medical source (20 CFR 404.1527(f). Additionally, she seemingly asserts that the claimant would have trouble performing her work as a sales associate. She does not offer work related functional limitations related to this job or other jobs. Moreover, she does not provide support for her assertion either in her letter or clinic notes. Accordingly, Ms. Gibson's opinion, to the extent it relates to the nature and severity of the claimant's symptoms and limitations, is given little weight.Tr. 21¶ 5. There is no error in the ALJ's assessment. Thus, to the extent that plaintiff contends that the ALJ erred in his evaluation of GNP Gibson's opinions, the contention is meritless.
Specifically, the ALJ's first reason for providing GNP Gibson's opinions little weight—that she is not an acceptable medical source—is proper. Jeffrey S. v. Saul, No. 3:18-CV-00028, 2019 WL 4795867, at *8 (W.D. Va. 30 Sept. 2019) ("Nurse practitioners are not 'acceptable medical source[s],' but their opinions 'are important and should be evaluated on key issues such as impairment severity and functional affects, along with other evidence in the file.'" (quoting SSR 06-3p, 2006 WL 2329939, at *2-3 (9 Aug. 2006)).
The ALJ's second reason—the lack of work-related functional limitations related to plaintiff's prior job or other jobs—is an appropriate reason to discount GNP Gibson's opinions. Plaintiff does not argue that GNP Gibson's letter provides any such limitations.
Finally, the ALJ's third reason—a lack of support in the letter or clinic notes for the opinions offered—is also a proper basis for the ALJ to discount the weight given to GNP Gibson's opinions. Plaintiff does not identify any clinic notes of GNP Gibson's supporting her opinions.
For the foregoing reasons, the court concludes that the ALJ committed no error in evaluating the opinions of Dr. Kuncha and GNP Gibson. It therefore rejects plaintiff's challenge to this evaluation.
VII. ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS
A. Applicable Legal Principles
As noted, symptoms are defined under the Regulations as a claimant's own descriptions of his impairments. 20 C.F.R. § 404.1502(i). An ALJ must consider "all [the claimant's] symptoms, including pain, and the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 404.1529(a).
The ALJ must employ a two-step process for evaluating a claimant's symptoms:
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult . . . .Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (25 Oct. 2017) (effective 28 Mar. 2016); 20 C.F.R. § 404.1529(b), (c)(1); Craig, 76 F. 3d at 594-95. More specifically, at step two, the ALJ must "determine the extent to which [the claimant's] alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how [the claimant's] symptoms affect [the claimant's] ability to work." 20 C.F.R. § 404.1529(a).
In evaluating a claimant's symptoms at step two, the ALJ must consider "the entire case record." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. § 404.1529(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence . . . ."); Craig, 76 F. 3d at 595. The evidence and factors that are considered, when relevant, include: the claimant's history; medical signs and laboratory findings; statements from the claimant, the claimant's treating and nontreating sources, and other persons about how the claimant's symptoms affect the claimant, including medical opinions; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; any measures the claimant uses or has used to relieve his pain or other symptoms; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *10.
B. Analysis
The ALJ provided an extended review of plaintiff's testimony in his decision. Tr. 18 ¶ 5. He summarized plaintiff's testimony regarding her activities of daily living and related activities as follows:
. . . . She estimated that she can sit 40 to 45 minutes, stand 45 minutes, and walk one mile before she needs to rest or change positions. She stated that during an eight-hour day she could stand for three hours. She indicated that she can lift about 20 pounds. She noted that she walks one mile for exercise about three times a week. She also stated that she has fibromyalgia that affects her nerves. She indicated that the medication she takes for these symptoms improves and sometimes eliminates her pain. She reported that the combination of the medications she takes makes it difficult to concentrate due to drowsiness. (Hearing Testimony).Tr. 18 ¶ 5.
The claimant described a typical day as getting up around 6:30 am, getting dressed, reading the Bible for 30 minutes to an hour, doing light housework, and performing exercises for her knees for about 30 minutes. She indicated that some afternoons she walks for exercise. She noted that she takes pain medication before she walks. She stated in the afternoon she watches television, does crossword puzzles and mail order Bible study, and cooks dinner. She estimated that she spends about three hours a day lying down or elevating her legs. She stated that occasionally she plays games on the computer and uses social media websites. She noted that her husband shops for groceries. She reported that her other activities include attending church twice a week, watering her outdoor plants, visiting her mother in South Carolina on holidays, and going on vacation to the mountains once a year. (Hearing Testimony).
The ALJ made the step one finding that "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the above alleged symptoms." Tr. 19 ¶ 5. However, at the second step, the ALJ stated his determination to discount plaintiff's symptoms:
[T]he claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.Tr. 19 ¶ 5.
The ALJ later elaborated on his determination, stating:
In sum, the medical evidence of record does not fully support the claimant's allegations regarding her limitations related to her physical impairments. The objective evidence fails to provide a compelling basis for the claimant's testimony of her inability to sit more than 40 to 45 minutes, stand more than 45 minutes, or lift more than 20 pounds. Despite claiming severe limitations in her exertional capacities and stamina, the totality of the objective medical findings does not support the claimant's subjective complaints of severe and debilitating pain. The record does not reveal consistent, ongoing treatment for her musculoskeletal complaints other than a consistent regimen of prescription medication prescribed by her primary care providers. Although the claimant has subjective complaints of aches and pains of the musculoskeletal system, physical examinations and observations have revealed the claimant has functional range of motion of all joints, normal strength of all extremities, and normal bulk and tone, with no annotations of any significant motor, sensory, or reflex deficits. Claimant's [RFC] includes postural and environmental limitations given her history of right knee replacement and osteoarthritis, Baker's cysts related to her knees, fibromyalgia tender points, and clinical findings related to her back impairments. The undersigned has also considered that while the claimant has a history of reporting musculoskeletal pain, she is able to walk a mile, perform personal care tasks, and complete household chores. Although some degree of pain would be expected from the claimant's severe physical impairments, the evidence of record does not demonstrate the degree of limitation alleged by the claimant.Tr. 21-22 ¶ 5.
Plaintiff's challenge to the ALJ's assessment of her symptoms focuses on her testimony, along with statements in function reports by her, regarding her activities of daily living. Plaintiff contends, in part, that the ALJ "failed to build a logical bridge explain[ing] how these activities are consistent with medium work activity and inconsistent with light work activity." Pl.'s Mem. 9. The specific activities to which plaintiff refers are her walking one mile for exercise three times a week, performing personal care tasks, and completing household chores.
But these activities are, on their face, consistent with medium work—that is, a person capable of medium work would have the capability to perform these activities. They are therefore also necessarily consistent with light work. See 20 C.F.R. § 404.1567(c) ("If someone can do medium work, we determine that he or she can also do sedentary and light work.").
Plaintiff also contends that the ALJ engaged in impermissible cherrypicking by failing to acknowledge limitations she reported with respect to walking, performing personal care, and doing chores. Pl.'s Mem. 9-10. In fact, though, the ALJ did acknowledge that plaintiff alleged limitations in her ability to perform these activities. He stated:
The claimant reported that she needs help with some self-care tasks, but is able to prepare simple meals, complete household chores, walk for exercise, work on crossword puzzles and mail order Bible study, and manage her finances. She indicated that her limitations related to completion of these activities are related to physical conditions and not psychological symptoms. (Exhibits 6E; 10E; Hearing Testimony).Tr. 15 ¶ 3 (emphasis added). While the ALJ made these findings in his analysis at step two of the sequential analysis, they are properly considered in connection with the ALJ's assessment of plaintiff's symptoms 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 (21 Feb. 2019).
Plaintiff contends that the ALJ failed to mention specifically her testimony that she takes additional medicine before she walks in order to complete an entire mile (see Tr. 58), but he did refer to this testimony. As set out above, he stated: "She noted that she takes pain medication before she walks." Tr. 18 ¶ 5 (referencing Tr. 58).
Plaintiff also argues that the ALJ failed to mention her statements that she needs to use handrails to transition to a standing position in the bathroom and some assistance with dressing because of limitations in bending. These statements are contained in an adult function report by plaintiff dated 22 April 2015. See Tr. 288 ¶ 12.a (Ex. 10E). But as stated in the portion of his discussion at step two of the sequential analysis quoted above, the ALJ acknowledged that "[t]he claimant reported that she needs help with some self-care tasks." Tr. 15 ¶ 3. As also indicated above, the ALJ's citations to the record following this section of his step-two analysis include plaintiff's 22 April 2015 adult function report. See Tr. 15 ¶ 3 (citing, e.g., Ex. 10E).
Notably, at the hearing, plaintiff did not mention use of bathroom handrails or the need for assistance dressing. Rather, when asked by the ALJ at the hearing whether she was able to dress herself, take a shower, and take care of her personal hygiene, plaintiff responded: "Yes, sir. But I have difficulty bending down to put on my stockings or pants and my shoes." Tr. 51. The ALJ acknowledged in his decision that plaintiff "noted that she has trouble bending and stooping." Tr. 18 ¶ 5.
Plaintiff correctly points out that the ALJ did not mention specifically her testimony that she is able to stand for only 15 minutes at a time to wash dishes. See Tr. 59. But she said the reason for this relatively short period is that her sink is high: "So I'm leaning over and it's high, and then my back just starts hurting from that motion." Tr. 59. As indicated, the ALJ did mention plaintiff's testimony that "she has trouble bending." Tr. 18 ¶ 5. He also recited her testimony that she otherwise claims she can stand for 45 minutes at a time. See Tr. 18 ¶ 5 (referencing Tr. 49). An ALJ is not required to mention every piece of evidence. 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)). Based on this and the other considerations noted, the ALJ's omission of an explicit reference to plaintiff's claimed 15-minutc limitation on washing dishes was not erroneous and certainly had no material effect on his assessment of plaintiff's symptoms.
Plaintiff also notes that the ALJ did not mention plaintiff's testimony that she does not walk as fast as she did before her health problems began. Her testimony, though, was that she is still power walking, but at half to a third of her prior pace. Tr. 57-58. She described her current pace as "a little bit slower than what I used to do." Tr. 58. The ALJ's omission of this detail regarding the alleged pace of plaintiff's walking was not erroneous and had no material effect on his assessment of plaintiff's symptoms.
Lastly, plaintiff cites to the ALJ's omission of any reference to her purported inability to walk the entire mile without stopping and resting. As noted, the ALJ stated: "She estimated that she can sit 40 to 45 minutes, stand 45 minutes, and walk one mile before she needs to rest or change positions." Tr. 18 ¶ 5. When the ALJ asked plaintiff about walking at the hearing, she did not mention any need to stop. See Tr. 49. She addressed it only when asked specifically by her counsel whether she was able to walk the mile at one time. Tr. 57. In any event, plaintiff testified that she stops when she is tired (not because of pain or loss of function) and that her break consists of simply standing and moving her legs and possibly her hands (not even sitting down) until she is rested enough to go again. The court finds no error in the referenced finding by the ALJ regarding plaintiff's walking; her testimony could reasonably be described as the ALJ described it. The ALJ's omission of any reference to plaintiff's alleged stopping during walks as she claimed had no material effect on the ALJ's assessment of plaintiff's testimony.
For this and the other reasons stated, the court finds that the ALJ's assessment of plaintiff's symptoms was proper. It therefore rejects plaintiff's challenge to this assessment.
VIII. ALJ'S ALLEGED CHERRYPICKING OF EVIDENCE IN MAKING HIS RFC DETERMINATION
Plaintiff contends that in making his RFC determination the ALJ cherrypicked evidence that supports a finding of nondisability. The contention is meritless.
As set out in the foregoing discussion of Dr. Kuncha's and GNP Gibson's opinions, the ALJ's decision reflects the ALJ's thorough review of the evidence, both favorable and unfavorable, to plaintiff's claim of disability. Further, while plaintiff appears to contend that the RFC determination is tainted by cherrypicking embodied in the underlying assessments of Dr. Kuncha's and GNP Gibson's opinions and plaintiff's symptoms, the court has found that these assessments are not tainted by impermissible cherrypicking.
In addition to the evidence purportedly ignored by the ALJ discussed above, plaintiff asserts that the ALJ ignored findings made and the epidural injection administered at plaintiff's 12 January 2017 office visit with her orthopedic provider. Pl.'s Mem. 8 (referencing Tr. 611-12). But the ALJ did discuss this visit in his decision and that portion of his decision is set out above in the discussion of Dr. Kuncha's opinions. See Tr. 20 ¶ 5. Again, the ALJ stated:
At her January 12, 2017, orthopedic clinic visit she reported experiencing back pain. She noted that three years prior she was swimming in the ocean and was knocked down by a wave onto her buttocks. X-ray results showed no signs of listhesis on flexion, extension, or lateral views. There also were also no signs of fracture or dislocation. Orthopedist David Miller, M.D., stated that MRI results of her lumbar spine from 2014 showed moderate stenosis at L4-L5 and L5-S1. Upon exam, the claimant had decreased sensation of her lateral left leg and dorsum of her left foot, but full lower extremity motor strength (5/5). Straight leg raise testing was positive in the supine position on the right and left, but not in the seated position. She exhibited tenderness to palpation of the paraspinal muscles. Dr. Miller diagnosed the claimant with spinal stenosis of the lumbar region, lumbar spondylosis, and displacement of lumbar intervertebral disc without myelopathy. He administered an epidural steroid injection at L4-L5 (Exhibit 15F pp. 1-4). The medical evidence of record docs not document further recommended or prescribed treatment related to her back.Tr. 20 ¶ 5.
While the ALJ did not address all the findings from this visit cited by plaintiff, the ALJ's detailed review of this visit makes clear that he did consider the visit comprehensively. Moreover, the ALJ was under no obligation to discuss every piece of evidence. See Reid, 769 F.3d at 865.
Plaintiff argues that the physician's assistant who examined her found her to have a limp and faults the ALJ for not mentioning it. The finding to which plaintiff refers reads: "Appearance: ambulating with no assistive devices and limp." Tr. 611. Plaintiff reads the "no" in this finding to refer solely to "assistive devices." But the "no" could also reasonably be read to refer to "limp," signifying that plaintiff did not have a limp. In any event, the ALJ obviously did not deem the issue of plaintiff's exhibiting or not exhibiting a limp during this particular visit of sufficient significance to merit reference to it. The court finds no error in the ALJ's not mentioning this finding.
The court accordingly rejects plaintiff's challenge to the ALJ's RFC determination based on alleged cherrypicking.
IX. ALJ'S EXPLANATION OF HIS 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. Analysis
Plaintiff contends that the ALJ failed to adequately explain his RFC determination. More specifically, she argues that the ALJ did not, as required, build a logical bridge between the evidence and his determination that plaintiff could perform a range of medium work.
But the ALJ's elaboration of the reasons for discounting plaintiff's symptoms, quoted and discussed above, also serves to help explain his RFC determination. Again, the ALJ stated:
In sum, the medical evidence of record does not fully support the claimant's allegations regarding her limitations related to her physical impairments. The objective evidence fails to provide a compelling basis for the claimant's testimony of her inability to sit more than 40 to 45 minutes, stand more than 45 minutes, or lift more than 20 pounds. Despite claiming severe limitations in her exertional capacities and stamina, the totality of the objective medical findings does not support the claimant's subjective complaints of severe and debilitating pain. The record does not reveal consistent, ongoing treatment for her musculoskeletal complaints other than a consistent regimen of prescription medication prescribed by her primary care providers. Although the claimant has subjective complaints of aches and pains of the musculoskeletal system, physical examinations and observations have revealed the claimant has functional range of motion of all joints, normal strength of all extremities, and normal bulk and tone, with no annotations of any significant motor, sensory, or reflex deficits. Claimant's [RFC] includes postural and environmental limitations given her history of right knee replacement and osteoarthritis, Baker's cysts related to her knees, fibromyalgia tender points, and clinical findings related to her back impairments. The undersigned has also considered that while the claimant has a history of reporting musculoskeletal pain, she is able to walk a mile, perform personal care tasks, and complete household chores. Although some degree of pain would be expected from the claimant's severe physical impairments, the evidence of record does not demonstrate the degree of limitation alleged by the claimant.Tr. 21-22 ¶ 5.
Plaintiff makes the further argument that the ALJ relied primarily on Dr. Kuncha's opinions in determining her RFC. The court, though, has already found that the ALJ properly gave Dr. Kuncha's opinions great weight, not controlling weight, as plaintiff suggests. Moreover, the ALJ's explanation of his RFC determination, as set out above, and his decision as a whole makes clear that he relied on significant evidence beyond Dr. Kuncha's opinions, which he did not even expressly mention in this explanation.
The court concludes that the ALJ's explanation of his RFC determination was proper. It accordingly rejects plaintiff's challenge to the explanation. This final challenge to the RFC determination failing, the court finds that it was proper.
X. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 14) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 12) 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 28 February 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 be filed within 14 days after service of the objections on the responding party.
This 14th day of February 2020.
/s/_________
James E. Gates
United States Magistrate Judge