Opinion
2:20-CV-89-M
08-04-2022
JASON LLOYD ALLEN, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-17, -22] pursuant to Fed.R.Civ.P. 12(c). Claimant Jason Llyod Allen (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income (“SSI”) payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI on January 4, 2019, alleging disability beginning December 1, 2017. (R. 12, 206-14). His claim was denied initially and upon reconsideration. (R. 12, 97-127). A hearing before the Administrative Law Judge (“ALJ”) was held on January 30, 2020, at which Claimant, represented by counsel, Claimant's father, and a vocational expert (“VE”) appeared and testified. (R. 29-67). On March 12, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-28). On October 16, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to. any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171,176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200,1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in (1) finding Claimant's impairment did not meet or equal Listing 1.04, (2) finding Claimant retained the RFC to perform a limited range of light work, (3) failing to properly assess Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms, and (4) failing to accurately set forth all of Claimant's physical and mental limitations in the hypothetical posed to the VE. Pl.'s Mem. [DE-18] at 22-31.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful activity since January 4, 2019, the application date. (R. 14). Next, the ALJ determined Claimant's spinal impairment, hypertension, depression, and anxiety were severe, and Claimant's alcohol and marijuana use were non-severe. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 14-16). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 15-16).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §416.967(b).
claimant will need the flexibility to alternate between sitting, standing and walking every 30 minutes. He will not need to leave the workstation except for when on regularly scheduled breaks. Further, in an eight-hour workday that is comprised of regularly scheduled breaks and the types of interruptions that may take the claimant off task up to 10% of the total work schedule, the claimant can sit for a total of six hours and stand and walk for a combined total of six hours. The claimant has occasional use of bilateral upper extremities for overhead lifting, reaching, pulling and pushing. Otherwise, the claimant frequent use the bilateral upper extremities to
lift, reach, pull and push in all other directions. The claimant may have frequent use of the bilateral upper extremities to handle (handling include grasping), finger and feel; with occasional stooping, kneeling, crouching, climbing stairs and ramps and using bilateral lower extremities to operate foot and leg controls. He cannot climb ladders, ropes and scaffolds and is limited to occasional exposure to temperature extremes; no working around dangerous, moving mechanical parts and unprotected heights. The claimant cannot stand and/or walk narrow slippery surfaces and working in a moderate noise environment. He has a reasoning level of two, which, per the Dictionary of Occupational Titles, denotes the ability to apply commonsense understanding to carryout detailed but uninvolved oral and written instructions and deal with problems involving a few concrete variables in or from standardized situations encountered on the job. The claimant also has the ability to do simple, routine, repetitive tasks in two-hour intervals; occasional direct interaction with the general public, coworkers and supervisors, and performing jobs not requiring the claimant to complete a specific number of production quotas on a defined timeline or to do fast paced assembly line work.(R. 16-23). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence in the record. (R. 20).
At step four, the ALJ concluded Claimant had no past relevant work. (R. 23). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 23-24).
V. DISCUSSION
A. Listing 1.04
Claimant injured his back when he fell from a twelve-foot ladder while working in November of 2016. (R. 18, 39-40). Claimant contends the ALJ erred in failing to find that his back impairment met or equaled Listing 1.04A or 1.04C. Pl.'s Mem. [DE-18] at 22-25.
The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. § 416.925(a). Therefore, if a claimant's impairments meet or medically equal a listing, that fact alone establishes that the claimant is disabled. Id. § 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Even if an impairment does not meet the listing criteria, it may still satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. § 416.925(c)(5). The burden of demonstrating that an impairment meets or equals a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
When “there is at least conflicting evidence in the record” as to whether a claimant satisfies a listing, the ALJ must explain her determination that the claimant's impairment does not meet or exceed the listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). The ALJ cannot “summarily conclude” that a listing is not satisfied because “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id. For example, in Radford the record showed “limited motion of the spine on at least four occasions, positive straight leg raises at least five times, and sensory reflex loss on at least three occasions,” but it also showed “no weakness, sensory loss, or limitation of motion during some examinations.” Id. at 296. The court held that there was conflicting evidence requiring a detailed explanation from the ALJ. Id.
To satisfy Listing 1.04A and C, a claimant must show a disorder of the spine “(e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equine) or the spinal cord” with the following:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.20 C.F.R. § 404, subpt. P, app. 1, § 1.04A, C. The claimant “need not show that each symptom was present at precisely the same time-i.e., simultaneously-in order to establish the chronic nature of his condition.” Radford, 734 F.3d at 294. “Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity.” Id. The Commissioner has recognized that “abnormal physical findings may be intermittent,” but a claimant may nonetheless prove a chronic condition by showing that he experienced the symptoms “over a period of time,” as evidenced by “a record of ongoing management and evaluation.” Id. (quoting 20 C.F.R. pt. 404, subpt P, app. 1, § 1.00D). “To require proximity of findings would read a new requirement into the listing that is unsupported by the text, structure, medical practice, or common sense.” Id.
At step three the ALJ determined Claimant's spinal disorder did not satisfy Listing 1.04. (R. 15). Claimant does not appear to challenge the ALJ's finding that he did not meet the requirements of Listing 1.04, but rather he suggests that “the constellation of findings support medical equivalence,” noting the presence of low back pain with bilateral sciatica, L4-5 disc herniation, spinal stenosis in the lumbar region with neurogenic claudication, spondylosis of the lumbar region, pars defect, epidural lipomatosis, neuropathic pain, muscle tightness, and non-morbid obesity. Pl.'s Mem. [DE-18] at 24-25. Claimant also contends his radicular symptoms are caused by lumbar stenosis and bilateral nerve root compression, he was assessed with a positive straight leg raise test (as well as a negative test and an equivocal test), and he has lumbar spinal stenosis resulting in pseudo claudication. Id. at 25. However, to establish medical equivalence, a claimant must present medical findings equal in severity to all the criteria for that listing, Sullivan, 493 U.S. at 531; 20 C.F.R. § 416.926(a) (medical findings must be at least equal in severity and duration to the listed criteria), and Claimant has failed to do so.
For example, Listing 1.04A requires that motor loss be accompanied by sensory or reflex loss. 20 C.F.R. § 404, subpt. P, app. 1, § 1.04A. Claimant has not cited records demonstrating sensory or reflex loss or medical findings equal in severity, and there are multiple notes indicating that, despite complaints, sensory and reflex examinations were normal. (R. 386, 474, 518, 530, 569, 634, 700-01, 709, 718). With respect to Listing 1.04C, Claimant's lumbar spinal stenosis resulting in pseudoclaudication must result in an inability to ambulate effectively as defined in 1.00B2b.
Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities....
To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.20 C.F.R. § 404, subpt. P, app. 1, § 1.00B2b. Plaintiff has cited no evidence in the record that would support a finding that he has the inability to ambulate effectively, as defined in the Listing, and has pointed to no medical findings equal in severity to this requirement. See Worsham v. Kijakazi, No. 4:20-CV-86-M, 2021 WL 3878898, at *4 (E.D. N.C. July 28, 2021) (finding the claimant failed to demonstrate medical equivalence where he failed to cite medical findings equal in severity to the absent listing criteria but rather improperly relied on the presence of other criteria), report and recommendation adopted, No. 2021 WL 3863348 (E.D. N.C. Aug. 30, 2021).
Finally, Claimant has not satisfied the requirements of SSR 17-2p, which requires one of three findings in the record to demonstrate medical equivalence: (1) “A prior administrative medical finding from an MC or PC from the initial or reconsideration adjudication levels supporting the medical equivalence finding,” or (2) “ME evidence, which may include testimony or written responses to interrogatories, obtained at the hearings level supporting the medical equivalence finding,” or (3) “A report from the AC's medical support staff supporting the medical equivalence finding.” 2017 WL 1105349 at *3 (Mar. 27, 2017); see Whelchel v. Saul, No. 1:19-CV-00138-MR, 2020 WL 247320, at *4 (W.D. N.C. Jan. 15, 2020) (concluding that the claimant's argument that his symptoms were equivalent in severity to the symptoms associated with a listing was insufficient to demonstrate medical equivalence where he did not identify any evidence from specific medical experts regarding equivalency as required under SSR 17-2p). Claimant has cited no such evidence in the record, and therefore, there is no basis for a finding of medical equivalence.
Accordingly, Claimant has failed to demonstrate any error with respect to the ALJ's determination that his back impairment failed to meet Listing 1.04 and has failed to demonstrate medical equivalence.
B. The RFC Assessment
Claimant makes two arguments of error related to the RFC assessment: (1) Claimant did not retain the RFC to perform a limited range of light work, and (2) Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms were not properly credited. Pl.'s Mem. [DE-18] at 25-29.
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2,1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) (“[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.”) (citations omitted).
“[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting S.S.R. 96-8p). “Only after such a function-by-function analysis may an ALJ express RFC ‘in terms of the exertional levels of work.'” Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”). However, the Fourth Circuit has rejected “a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis.” Mascio, 780 F.3d at 636. Rather, the court explained that “[r]emand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the AL J's analysis frustrate meaningful review.” Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.
Federal regulation 20 C.F.R. § 416.929(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work,” Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. SSR 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
Claimant contends he cannot sit, stand, or walk for six hours in an eight-hour workday, and he would have great difficulty bending, stooping, and crouching on a frequent basis. Pl.'s Mem. [DE-18] at 27. Claimant points to his “diagnostic testing (MRI) and limited course of treatment, corroborated by hearing testimony,” which he contends demonstrates that his chronic low back pain with bilateral radicular pain limits his ability to perform the modified range of light exertional work found by the ALJ. Id. In support of his argument that the ALJ did not properly credit his statements regarding the intensity, persistence, and limiting effects of his symptoms, Claimant cites his history of chronic low back pain and radicular pain with associated weakness, tingling, numbness, and limited mobility and range of motion, which he contends the ALJ improperly minimized, ignored, or rejected. Id. at 28-29. Claimant contends that conservative treatments failed to resolve his chronic issues, and his medical treatment or lack thereof was limited as a result of losing his Medicaid. Id. at 29.
The ALJ recounted Claimant's testimony that he was disabled due to a back injury; he experienced headaches, sensitivity to sounds, difficulty concentrating, and numbness in his hands and legs, which required him to sit down for up to thirty minutes; he controlled his high blood pressure with medication; he managed his depression with alcohol; he occasionally smoked marijuana to control his anxiety; and he was able to perform chores such as sweeping. (R. 17-18). The ALJ also noted the testimony of Claimant's father that he helped Claimant with cleaning the house, and he believed Claimant was not able to lift more than fifty pounds on a good day, could walk for fifteen minutes at one time, could stand for up to thirty minutes before he needed to rest, and was able to dress himself, cook, and take showers without assistance. (R. 18).
The ALJ acknowledged that Claimant was treated for falling from a ladder in late 2016, and that Claimant was diagnosed with degenerative disc disease of the lumbar spine at ¶ 4-5. (R. 18). After reviewing Claimant's testimony and the medical records, the ALJ determined that Claimant's statements about his limitations were not entirely consistent with the medical and other evidence in the record, explaining as follows:
While the claimant's impairments could reasonably be expected to cause in general the alleged symptoms and limitations, the magnitude of the disability and the extent of those symptoms and limitations are not supported by medically acceptable clinical and diagnostic techniques. Neither the symptoms nor the limitations described by the claimant, were supported by the records of the treating and examining healthcare professionals. Further, there is insufficient objective medical evidence that the impairments are of such severity that they can reasonably be expected to give rise to limitations the claimant asserts (Exhibit 1F-15F).
Although the claimant has received treatment for his allegedly disabling impairments, the treatments have been essentially routine and conservative in nature since the alleged onset date; consisting of some follow up care and pain management (Exhibits 1F-15F). Additionally, the claimant did not complete physical therapy or follow through with conservative treatment options (Exhibit 12F/3). The claimant was generally functional other than experiencing some pain symptoms. Treatment records noted the claimant was alert with normal attention, fund of knowledge, and concentration. The claimant's speech was fluent and appropriate. The claimant had no edema present and he had brisk equal movement with normal stance and normal gait (Exhibit 11F/4). The claimant had 5/5 muscle strength in upper and lower extremities (Exhibit 12F/4-5).(R. 20). The ALJ went on to consider and weigh the opinion evidence, which the Claimant does not challenge, and then summarized his conclusion as follows:
In sum, the claimant has impairments that are capable of creating limitations to his ability to function. However, the evidence does not support the severe functional limitations the claimant alleges. For the foregoing reasons, the undersigned finds the claimant is capable of performing substantial gainful activity within the residual functional capacity described. Further, the claimant's symptoms and restrictions are not supported by the relevant medical signs, laboratory findings, or nonmedical
evidence to the level of disability alleged. MRI results dated January 25, 2019, showed developmental lumbar spinal canal narrowing, moderate epidural lipomatosis, L4 bilateral spondylolysis with L4-5 grade I spondylolisthesis and a mild broad-based central and right foraminal disc herniation contacting the right L4 nerve root with severe central spinal stenosis, severe right neural foraminal narrowing, and mild left neural foraminal narrowing. The L5-S1 thecal sac had narrowing due to epidural lipomatosis (Exhibit 7F/8). A physical examination revealed 5/5 strength in in all extremities except 4/5 strength in dorsiflexion. The claimant had a fine tremor and normal gait and stance (Exhibit 7F/10-11, 16). Physical exam findings showed the claimant was alert with normal attention, fund of knowledge and concentration. The claimant's speech was fluent and appropriate. The claimant had no edema present and he had brisk equal movement with normal stance and normal gait (Exhibit 11F/4). . . . The claimant had 5/5 muscle strength in upper and lower extremities (Exhibit 12F/4-5). No provider has opined the claimant is more limited than assessed within this decision.(R. 22). A review of the evidence considered and cited by the ALJ demonstrates that he did not “cherry pick” favorable evidence and ignore unfavorable evidence or require objective evidence to substantiate Claimant's complaints, the court can follow the ALJ's reasoning, and the ALJ's decision is supported by substantial evidence in the record.
Treatment notes from the local emergency department reflect visits for alcohol related incidents, including a November 8, 2016 treatment note after Claimant's fall from a ladder while intoxicated, (R. 18, 371-89), and a January 11, 2018 treatment note related to dehydration and history of heavy alcohol use, which also indicated that Claimant was negative for back pain and that he reported working in construction but being unemployed for one month, (R. 18, 293-94). See also (R. 344-47) (Nov. 22, 2016 emergency department treatment note indicating Claimant was found unresponsive on the floor by a family member and was intoxicated).
The ALJ considered a June 15, 2018 consultative examination that revealed full muscle strength with no spasms, normal sensory examination, a negative straight leg test while sitting but positive while supine, some reduced range of motion in the hips, ankles, and wrists, moderate difficulty rising from a squatting position and moderate difficulty walking on heels and toes, but an otherwise normal musculoskeletal exam. (R. 517-18). The examiner opined that Claimant had mild limitations with sitting, moderate limitations with standing and walking due to back pain and sciatica, did not need an assistive device concerning short and long distances and uneven terrain, had mild limitations with lifting and carrying weight due to back pain and sciatica, could occasionally bend, stoop, crouch, and squat due to low back pain and sciatica, and could infrequently perform reaching, handling, feeling, grasping and fingering due to tremors (R. 51920). The ALJ found the opinion was only somewhat persuasive because the limitations were not provided in vocationally relevant terms, (R.21), and Claimant did not challenge this finding.
On September 4, 2018, Claimant complained of numbness in his legs and of falls but was negative for back, joint, or neck pain, (R. 527-31), and treatment notes from follow-up visits on September 18, October 2, and November 1, did not mention Claimant's back or leg pain and noted his gait was normal, (R. 525-26, 560-63). (R. 19). However, as the ALJ noted, on January 25, 2019, Claimant was diagnosed with chronic bilateral low back pain and sciatica, an MRI showed lumbar spinal canal narrowing, L4-5 spondylolysis, mild foraminal disc herniation contacting the right L4 nerve root, and other abnormalities, and Claimant was referred for therapy. (R. 19, 632, 638-40). A May 7, 2019 treatment note from neurology indicated Claimant started physical therapy but did not return because it was not helping, and he was started on Cymbalta. (R. 690). The ALJ also noted that on July 11,2019, Claimant complained of lumbar radiculopathy but stated he only completed one session of physical therapy, had not made an appointment with pain management, and had stopped taking Cymbalta, and Claimant's examination was normal, the doctor noted he had not completed conservative treatments, and he was prescribed Gabapentin. (R. 19, 697-701). Finally, the ALJ discussed Claimant's pain management visit on July 26, 2019, where examination revealed some decreased range of motion due to low back pain and equivocal straight leg raises, and Claimant was referred to physical therapy, advised on conservative treatments, and continued on Gabapentin. (R. 20, 715-20).
The ALJ thoroughly reviewed the record and discussed Claimant's testimony and treatment notes, including evidence that would both tend to support and contradict Claimant's testimony regarding his limitations on sitting, standing, walking, and performing postural movements, and Claimant has cited no evidence the ALJ failed to consider. Claimant implicitly asks the court to reweigh the evidence considered by the ALJ, but where the ALJ acknowledges contradictory evidence in the record and explains his reasoning, it is not the court's role to re-weigh the evidence or to substitute its decision for the ALJ's. See Hancock v. Astrue, 667 F.3d 470,472 (4th Cir. 2012) (“In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.”) (citation omitted). Furthermore, “the fact that Claimant can point to other evidence that supports her position does not render the ALJ's decision unsupported.” Lilley v. Saul, No. 4:19-CV-93-RJ, 2020 WL 3884429, at *11 (E.D. N.C. July 9, 2020) (citation omitted). The ALJ reasoned that although Claimant suffered from pain due to his back impairments, he failed to follow through with and complete the recommended conservative treatments. See Dunn v. Colvin, 607 Fed.Appx. 264,275 (4th Cir. 2015) (“[I]f all that the claimant needs is conservative treatment, it is reasonable for an ALJ to find that the alleged disability is not as bad as the claimant says that it is.”); Richardson v. Colvin, No. 4:14-CV-125-FL, 2015 WL 5725546, at *6 (E.D. N.C. Aug. 11, 2015) (concluding that conservative treatment lends little support to claims of debilitating symptoms), adopted by 2015 WL 5737613 (E.D. N.C. Sept. 30, 2015).
Finally, Claimant argues that his medical treatment was limited as a result of losing his Medicaid. Pl.'s Mem. [DE-18] at 29. The ALJ must “consider and address reasons for not pursuing treatment that are pertinent to an individual's case,” including whether a claimant is unable to afford treatment and lacks access to free or low-cost medical services. SSR 16-3p, 2016 WL 1119029, at *10; see Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) (“It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him.”). Claimant testified at the administrative hearing that his Medicaid ran out at some point but that he had gotten it back a couple of months before the hearing. (R. 42-43). Due to his lapse in coverage, he was out of pain medication but had been put back on his blood pressure medicine at an unrelated emergency department visit. (R. 43). Claimant had to wait to renew his other medications, including for pain, until a doctor's appointment scheduled for the following month. (R. 43). Nothing in Claimant's testimony or in the treatment notes indicates that Claimant failed to comply with the recommended conservative treatments or was unable to receive additional treatment because of his Medicaid lapse. See Mosley v. Saul, No. 7:18-CV-197-RJ, 2019 WL 4688742, at *8 (E.D. N.C. Sept. 25, 2019) (finding no error in failing to consider Claimant's alleged inability to afford treatment where there was a short gap in coverage and the treatment records did not support that Claimant did not receive treatment due to a lapse in coverage). Accordingly, the ALJ did not err in failing to consider Claimant's Medicaid lapse when evaluating the RFC.
In sum, the ALJ acknowledged Claimant's complaints of pain and found that he did have some limitations from his pain but that the overall record did not support all the limitations to which Claimant testified. The ALJ applied the appropriate framework in evaluating Claimant's statements regarding the limiting effects of his impairments, and the court can trace the ALJ's reasoning, which is supported by substantial evidence. Furthermore, the ALJ considered all the medical evidence, opinion evidence, and Claimant's testimony in formulating the RFC, and the ALJ cited evidence in the record to support the determination that Claimant had the RFC to perform a reduced range of light work. See Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018) (finding no error in the ALJ's RFC determination where the ALJ used evidence from the record to explain his finding that the claimant was capable of light work, explained the weight assigned to statements made by the claimant and the opinion evidence, and provided a thorough discussion allowing the court to conclude the RFC was supported by substantial evidence). Accordingly, the ALJ did not err in the RFC determination.
C. Hypothetical to the VE
Claimant contends the ALJ failed to accurately set forth all of his physical and mental limitations in the hypothetical posed to the VE. Pl.'s Mem. [DE-18] at 29-30. This argument is foreclosed by the court's finding that the ALJ's RFC determination was without error.
The ALJ may utilize a VE at steps four and five “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be “relevant or helpful,” it must be given in response to a proper hypothetical question. Id. A proper hypothetical question “fairly set[s] out all of claimant's impairments” that are supported by the record as found by the ALJ. Id; Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question “adequately contemplated all of [claimant's] impairments and resulting limitations” as evidenced by the record).
Here, the hypothetical to the VE included the limitations the ALJ found supported by the record that were ultimately imposed in the RFC. (R. 55-61); see King v. Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *8 (E.D. N.C. Dec. 6,2018), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27,2018). The additional limitations Claimant suggests the VE should have considered were not included in the RFC by the ALJ. Claimant's argument here is derivative of the RFC argument addressed above and should be rejected for the same reasons.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-17] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-22] be ALLOWED, and the final decision of the Commissioner 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 August 18, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).