Billie C. v. O'Malley

Full title: BILLIE C.,[1] Plaintiff, v. MARTIN O'MALLEY,[2] Commissioner of Social…

Court: United States District Court, D. South Carolina, Charleston Division

Date published: May 14, 2024

Civil Action 2:23-cv-04245-JDA-MGB (D.S.C. May. 14, 2024)

Opinion

Civil Action 2:23-cv-04245-JDA-MGB

05-14-2024

BILLIE C.,[1] Plaintiff, v. MARTIN O'MALLEY,[2] Commissioner of Social Security Administration, Defendant.

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

ORDER

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

Plaintiff Billie C. (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding for her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation (“R&R”) pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends the Court affirm the Commissioner's decision.

RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS

Plaintiff filed applications for DIB and for SSI on September 28, 2017, alleging a disability onset date of August 27, 2017. (R. at 146.) Plaintiff was 34 years old on her alleged disability onset date. (R. at 1055.) Plaintiff claims disability due to, inter alia, anxiety and panic attacks. (R. at 355.) Plaintiff has a high school education and past relevant work as a fast food services manager, bakery helper, and customer service clerk. (R. at 1055, 1105.)

Her applications were denied initially and on reconsideration. (R. at 146.) After a hearing before an Administrative Law Judge (“ALJ”) on July 2, 2019, the ALJ issued a decision on August 13, 2019, in which the ALJ found that Plaintiff was not disabled. (R. at 146-56.) The Appeals Council granted Plaintiff's request for review, vacated the ALJ's decision, and remanded the matter to the ALJ. (R. at 163-64.) After a hearing before an ALJ November 12, 2020, the ALJ issued another unfavorable decision on December 4, 2020. (R. at 18-31.) Plaintiff then filed an action in the United States District Court for the District of South Carolina. On November 15, 2021, upon the Commissioner's request for remand, the District Court remanded the action for further proceedings. (R. at 1142-43.) The Appeals Council then remanded the case to a different ALJ. (R. at 1153-55.) After a hearing before an ALJ on January 12, 2023, the ALJ issued a third unfavorable decision on March 8, 2023. (R. at 1017-57.) The Appeals Council denied Plaintiff's request for review, (R. at 1007-10), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.

In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.

(2) The claimant has not engaged in substantial gainful activity since August 27, 2017, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

(3) The claimant has the following severe impairments: type 2 diabetes, nonalcoholic steatohepatitis (NASH), obesity, dizziness, headaches, anxiety, panic disorder, and depression (20 CFR 404.1520(c) and 416.920(c)).

(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations: avoid concentrated exposure to hazards and avoid concentrated exposure to fumes, odors, dusts, gasses, and poorly ventilated areas; understand, remember, and carry out simple, detailed but not complex instructions; frequent interactions with supervisors and coworkers but only occasional interaction with public. Additionally, she will be off task five percent of the time.

(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

(7) The claimant was born on July 7, 1983 (Ex. 2D) and was 34 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

(8) The claimant has at least a high school education (Ex. 4E) (20 CFR 404.1564 and 416.964).

(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).

(11) The claimant has not been under a disability, as defined in the Social Security Act, from August 27, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(R. at 1017-56.)

APPLICABLE LAW

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act 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 twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).³

3 “[T]he definition of disability is the same under both DIB and SSI....” Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).

To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).

The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant-considering her age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).

The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).

“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing 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 [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).

However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).

DISCUSSION

Plaintiff asserts that the ALJ erred in his assessment of Plaintiff's residual functional capacity (“RFC”) by failing to properly evaluate the opinion evidence. (Dkt. No. 10.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 14.)

The undersigned considers these arguments, below.

A. The ALJ's Decision

The ALJ's 40-page decision considers whether Plaintiff was disabled from August 27, 2017, the alleged disability onset date, through the date of his decision, March 8, 2023. The ALJ considered Plaintiff's allegations of disability and found that she had the following severe impairments: type 2 diabetes, non-alcoholic steatohepatitis (NASH), obesity, dizziness, headaches, anxiety, panic disorder, and depression. At step three, the ALJ discussed the evidence pertaining to his findings that Plaintiff's NASH, migraine headaches, diabetes, obesity, and mental impairments failed to meet any listings. (R. at 1021-26.)

The ALJ then found that Plaintiff had the RFC to perform light work with additional limitations. More specifically, the ALJ found Plaintiff should avoid concentrated exposure to hazards and avoid concentrated exposure to fumes, odors, dusts, gasses, and poorly ventilated areas. (R. at 1026.) The ALJ also found that Plaintiff can understand, remember, and carry out simple, detailed but not complex instructions; and she can have frequent interactions with supervisors and coworkers but only occasional interaction with public. (R. at 1026.) Finally, the ALJ found Plaintiff will be off task five percent of the time. (R. at 1026.)

In support of this RFC finding, the ALJ first detailed Plaintiff's statements from her function reports and Plaintiff's testimony from the most recent ALJ hearing. The ALJ noted that in her November 2017 function report, Plaintiff stated, inter alia, “[s]he has trouble handling stress;” “[s]he has trouble concentrating, but she finishes what she starts and has no problem following written or spoken instructions”; “[s]he does not need reminders to care for her personal needs and grooming or to take medication”; “[s]he prepares meals daily, and she can do household chores ‘fine' at home; “[s]he drives, and she travels by driving or riding in a car”; “[s]he goes shopping in stores, and she can pay bills, count change, handle a savings account, and use a checkbook/money order”; “[h]er hobbies and interests include watching television every day and playing games on her phone with no problem”; and [s]he does not have problems getting along with others, she is good at getting along with authority figures, and she has never been fired or laid off from a job because of problems getting along with other people.” (R. at 1027.)

According to the ALJ, in her March 2018 function report, Plaintiff

reported having trouble remembering and concentrating but continued to report that she finishes what she starts, she is okay at following instructions, she does not have

problems getting along with others, she is good at getting along with authority figures, and she has never been fired or laid off from a job because of problems getting along with other people.... The claimant also reported trouble handling stress.

(R. at 1027.)

The ALJ summarized Plaintiff's hearing testimony, including,

She lives with her boyfriend. No one else lives in the house with them. She is unable to work because of panic attacks, which have been occurring since early 2017. She is not sure what started her panic attacks, and stress triggers them.

Many things trigger her panic attacks, including being around people she does not know. Even though she is not around people she does not know every day, she has panic attacks every day. She is not sure what triggers her daily panic attacks. During a panic attack, she becomes lightheaded, sometimes her chest starts hurting, she feels as if she is going to have a heart attack, she starts shaking, she cannot focus on anything, and it feels as if she is going to die. Her panic attacks last for 30 minutes to two hours at a time, and this occurs daily....

In a regular day, sometimes she sleeps late because she is up all night with anxiety. She does not do much. She does the housework to a certain extent, and her boyfriend picks up the slack. When she gets hot or flustered, her anxiety starts, and that is why she might stop doing housework. Her anxiety worsened during her last job, and this happened even when she was just interacting with her coworkers. She would ask to leave, say that she needed to use the bathroom, and go and sit in the bathroom, and she was let go from Home Depot because of her attendance.

She has trouble attending to tasks such as housework. She will try to do something such as dusting, become stressed out, and stop. It bothers her to leave her house by herself, and this triggers her anxiety.

She tried to go to Food Lion once to get one thing, and she started freaking out in the store and had to leave without getting what she needed. Her boyfriend goes with her when she leaves her home. She usually sits in the car while he goes into the store. She does not leave home for anything else.

She cannot drive. She has a driver's license, and it has not expired yet. The last time she drove was about a year ago, she had a panic attack, and she ran a red light so she could get home. She has not driven in at least a year.

She is listed as a driver on her boyfriend's insurance policy, though she does not drive. Her doctors have not instructed her to give up driving due to a mental or physical problem.

Before the last year, she drove to Dr. Rhynes' office, which was ten minutes away. ...

It is hard for her to be in physical proximity to others in a work setting even if she does not have to interact with them depending on how close they are to her. She may have issues with supervisors depending on why they would want to talk to her. Sometimes she has issues interacting with the people she lives with, which causes her stress. She takes lorazepam when she has a panic attack.

Her cardiologist thinks that the claimant's palpitations stem from the claimant's panic attacks and anxiety. The claimant also has diabetes, she is five feet five inches tall, and she weighs 248 pounds. She has fatty liver, and she has pain in that area. She has not been prescribed insulin. She gets dizzy and disoriented mostly when she experiences anxiety and panic attacks. She had an episode of dizziness that her doctor thought could be related to diabetes or low vitamin D. Her doctors want her to continue medication and therapy for panic attacks. The claimant cannot watch a movie or a television show for two hours.

During a typical day, the claimant wakes up at 10 or 11 because she was up all night with anxiety. She sometimes just sits in the living room, she calls her mother, and she might sit on the phone for an hour with her boyfriend while he is at work. She might play games on her phone to keep her mind from thinking too much. She has dogs. She does not play with the dogs, but she does take them outside.

(R. at 1027-29.)

The ALJ concluded that while Plaintiff “is limited” by her severe impairments, “these limitations are not disabling.” (R. at 1029.) The ALJ then exhaustively detailed the evidence in the record for the next 12 pages and concluded that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” her “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.” (R. at 1041-42.) He found that “[t]he medical evidence and other evidence does not support allegations of disabling symptoms and limitations,” and continued,

Regarding her mental impairments, the claimant reported in late July 2017 that she had been working at Home Depot for two years and had learned to cope with her mental health symptoms (Ex. 2F at 30). She subsequently reported that she had to leave work early due to panic attacks and was fired from her job as a customer

service representative, a job that requires dealing with people, around the time of the alleged onset date (Ex. 6F at 26). However, the claimant reported that she had not been taking the medication prescribed by her primary care provider for anxiety around the time she lost her job, and the claimant reported to Dr. Rhynes that she did not need any medication for anxiety on August 11, 2017 (Ex. 2F at 26).

Dr. Rhynes subsequently observed that the claimant was mildly anxious with otherwise unremarkable mental status examination findings during an August 29, 2017 primary care appointment (Ex. 2F at 17) two days after the alleged onset date and noted that the claimant's anxiety and headaches had improved and were stable in September 2017 (Ex. 2F at 7, 9). Though the claimant attempted to get her job as a customer service representative back in September 2017 (Ex. 6F at 18), this attempt to get her job back was unsuccessful, and the claimant filed this application less than ten days later on September 28, 2017.

While Dr. Rhynes advised the claimant to follow up for outpatient specialized mental health treatment around the time of the alleged onset date Ex. 2F at 17), the medical record does not show that the claimant visited a specialist for outpatient psychiatric medication management until March 2019 (Ex. 12F at 8-9), over a year and a half after her alleged onset date.

In the meantime, the claimant reported on October 18, 2017 that in the past four weeks, she had been feeling calm and peaceful “most of the time” (Ex. 3F at 7), her social life was normal (Ex. 3F at 6), and she could concentrate fully when she wanted to without difficulty (Ex. 3F at 4).

The claimant's December 2017 consultative psychological examination findings were also largely unremarkable despite the claimant meeting the examiner for the first time for a one-time exam (Ex. 4F), which does not support allegations of disabling symptoms and limitations, including in social interaction. The claimant's affect was within normal limits with appropriate range, her emotional state appeared to be within normal limits and appropriate, and her mood was euthymic (Ex. 4F at 1).

Though the claimant looked “slightly” unkempt, her hygiene, eye contact, language, speech, and thought content were normal, she was punctual, she was fluent and coherent, and her thought processes were linear and non-psychotic (Ex. 4F at 1). The claimant's concentration was adequate for the exam, she had no problems talking or answering questions, she was not distractible or delusional, she recalled five out of five words immediately and four out of five words after a several-minute delay with interference, she made one error in a serial-sevens task, she could spell “world” forward and in reverse, she could recall seven digits forward and four digits backward, she could abstract, and her social judgment was adequate (Ex. 4F at 2).

The claimant reported that she had stopped taking the medication prescribed by Dr. Rhynes on her own in February 2018, and Dr. Rhynes noted that the claimant had an upcoming appointment with psychiatry in two weeks when she completed the claimant's forms for disability (Ex. 6F at 7). However, the medical record does not show that the claimant subsequently established care with Nurse Clark for psychiatric medication management until over a year later. Though the claimant reported in June 2018 that she had been referred for psychiatric treatment but could not afford to go (Ex. 8F at 1), the medical record does not show that she sought free or reduced cost outpatient medication management for her mental health prior to establishing care with Nurse Clark in March 2019.

While the claimant's June 2018 consultative psychological examination with Dr. Ruffing was again with a new examiner for a one-time examination, the claimant's mental status examination findings were largely unremarkable with “minimal psychophysiological indices of anxiety” (Ex. 8F at 2), which does not support allegations of disabling symptoms and limitations, including in social interaction.

Dr. Ruffing observed that while the claimant's mood was depressed and anxious and she was tearing throughout the exam, she managed appropriate eye contact, she was adequately groomed and cooperative, her speech was spontaneous, responsive, articulate, and fluent with normal rhythm, rate, and flow, she had a generally appropriate affect, she was fully oriented with an adequate stream of consciousness, her thoughts were linear, logical, relevant, and coherent, and there was no evidence for psychosis or lack of reality contact (Ex. 8F at 2).

Though the claimant demonstrated slight slowing to her cognitive processing speed consistent with psychomotor retardation, she attended without distractibility, she was able to recall three unrelated words immediately and after a five-minute delay with interference task, she was able to spell the word “world” correctly both forward and backward, and she achieved a score of 30/30 in the Folstein mini mental status exam, suggesting mental status functioning within normal limits (Ex. 8F at 3).

The claimant sought services with finding employment from the South Carolina Vocational Rehabilitation Department in February 2019 and underwent a psychological evaluation. Though this was a one-time examination with a new examiner for the purposes of her vocational rehabilitation case and she exhibited some anxious behavior and appeared to have poor judgment at times, the claimant's mental status examination findings were otherwise largely unremarkable (Ex. 9F at 3) which does not support allegations of disabling symptoms and limitations, including in social interaction.

The claimant arrived on time for her appointment, she appeared well groomed, responsive, and cooperative, her eye contact appeared good, she had normal speech, her thought process and content appeared coherent and relevant, her mood appeared appropriate, she denied sensory perception issues, she denied being

suicidal/homicidal or having self-injurious behavior, and she appeared to have good insight (Ex. 9F at 3).

When the claimant followed with Dr. Rhynes on March 8, 2019, the claimant reported that her anxiety was better and she had not had to take Ativan in at least one week (Ex. 11F at 1), and Dr. Rhynes noted that the claimant's anxiety was stable (Ex. 11F at 3). The claimant's mental status examination findings were also largely unremarkable in her first appointment with Nurse Clark later in March 2019 (Ex. 12F at 11), and though Nurse Clark prescribed medication in addition to Ativan, the claimant reported that she had stopped taking this medication of her own volition after feeling “a little strange” in her follow up with Nurse Clark in May 2019 instead of consulting with Nurse Clark about methods to eliminate or mitigate any medication side effects (Ex. 12F at 18-20). Nurse Clark also declined to complete disability forms for the claimant, noting that she only seen the claimant twice (Ex. 12F at 20).

The claimant continued to follow up with Nurse Clark periodically through August 2022, and the claimant's mental status examination findings were largely unremarkable in these visits. Though the claimant exhibited an anxious mood, she was consistently alert, oriented, cooperative, and polite with normal speech, fair/good concentration, attention, and short-term memory, intact long-term memory, fair insight and judgment, average estimated intelligence, and no evidence of a fixed delusional system or paranoia in these appointments (Ex. 22F at 18, 27, 37-38, 48, 60, 71, 83, 95, 107, 119, 130, 142, 153, 163, 175, 186, 198, 209).

Though Nurse Clark advised the claimant that an antidepressant medication such as an SSRI or Cymbalta in addition to treatment with Ativan as needed would likely be even more effective to treat her anxiety (Ex. 22F at 59), the claimant was reluctant to try additional medications and reported improvement in her anxiety with Ativan as needed and improvement in her depressive symptoms with L-methylfolate supplementation (Ex. 22F at 47, 59, 174, 185, 24F at 24). In addition, Dr. Mea noted in May 2019 that the claimant's social anxiety had improved (Ex. 16F at 37), and Dr. Rhynes noted in July 2019 that the claimant's anxiety seemed to be well controlled (Ex. 16F at 19).

When the claimant sought additional treatment with outpatient mental health therapy in March 2020, two and a half years after the alleged onset date, the claimant reported that she had never been to therapy before (Ex. 19F at 5) despite Dr. Rhynes advising it as early as August 2017 (Ex. 2F at 17).

Upon mental status examination with therapist Hindman, a new provider, the claimant's examination findings were largely unremarkable (Ex. 19F at 4), which does not support allegations of disabling symptoms and limitations, including in social interaction. Instead, therapist Hindman observed that the claimant was calm, pleasant, friendly, and cooperative with good eye contact, a relaxed posture,

coherent thought process, and typical intellect, insight, judgment, impulse control, ability to focus, and memory recall (Ex. 19F at 4).

The claimant subsequently attended about 12 therapy sessions with therapist Hindman from March 2020 to October 2020 (Ex. 19F at 8-21), and the medical record does not show any subsequent follow up with therapy for the claimant's mental health despite Nurse Clark providing the claimant with resources for finding a new therapist after therapist Hindman stopped taking the claimant's insurance (Ex. 22F at 131), and Dr. Rhynes noted that the claimant's anxiety was stable in February 2022 (Ex. 23F at 74). The medical record also does not show that the claimant required inpatient treatment for her mental health since the alleged onset date, which further does not support allegations of disabling mental symptoms and limitations....

Furthermore, the claimant engaged in a range of activities of daily living over the course of the relevant period that do not support allegations of disabling symptoms and limitations.

In multiple function reports, the claimant reported that she does not have problems getting along with others, she is good at getting along with authority figures, and she has never been fired or laid off from a job because of problems getting along with other people (Exs. 5E at 6-7, 8E at 6-7).

The claimant also reported that she finishes what she starts and is okay at following instructions (Exs. 5E at 6-7, 8E at 6-7). The claimant further reported in November 2017 that she does not have problems caring for her personal needs or grooming, she prepares meals daily, she can do household chores “fine” at home, she drives, she travels by driving or riding in a car, she goes shopping in stores, she can pay bills, count change, handle a savings account, and use a checkbook/money order, and her hobbies and interests include watching television every day and playing games on her phone with no problem (Ex. 5E at 2-5). The claimant drove herself to her December 2017 consultative psychological examination and reported that she could talk with people face-to-face, shop at a grocery store for five items, order a meal at Subway or McDonald's, remember to take prescribed medications, read, write, add, subtract, operate a calculator, type, use a telephone or cell phone, text messages on a cellphone, keep appointments on time, manage a checkbook, wash a car, manage a Facebook page, tend to the garden, mow the lawn, wash dishes, do laundry, cook meals, play video games, check email on a computer, use a microwave, groom herself, pick up and carry objects weighing 20 pounds or heavier, use a stove or oven, pick up and handle small objects, and care for a child (Ex. 4F at 2-3).

The claimant reported attending interviews to find work after she lost her job around the time of the alleged onset (Exs. 8F at 1, 9F at 1), and during her June 2018 consultative examination, the claimant reported that she was able to take care of her personal needs, including bathing, feeding, and toileting, she went shopping

at a store close to her home using her boyfriend's card to pay for purchases, she was able to order a meal for herself at a restaurant, she could use a telephone, she participated in meal preparation, cleaning, and laundry, and she tried to get outside and do yardwork (Ex. 8F at 2).

In September and October 2018, the claimant reported working in landscaping (Ex. 14F at 8, 22), and she reported doing chores in her yard in December 2018 (Ex. 10F at 23). The claimant also reported taking her son to the doctor in March 2019 (Ex. 15F at 1), and she wanted to find employment in March 2019 (Ex. 15F at 2). The claimant also reported working in the yard in April 2021 (Ex. 23F at 157) as well as cutting her lawn in July 2021 (Ex. 21F at 34-35). These activities of daily living do not support allegations of disabling symptoms and limitations.

(R. at 1042-46.)

The ALJ assessed “the medical opinions and prior administrative findings” for the next eight pages. (R. at 1046.) As further detailed, intra section B, the ALJ was “partially persuaded by the prior administrative medical findings of state agency medical consultants Michael Neboschick, Ph.D. and Xanthia Harkness, Ph.D.”; “partially persuaded” by the opinions of the claimant's primary care physician, Dr. Antionette Rhynes; “partially persua[ded]” by the opinion of the January 2018 consultative examiner, Dr. David Price; “partially persua[ded] by the opinion of June 2018 consultative examiner, Dr. James Ruffing; and “unpersuaded” by the prior administrative medical findings of the state agency consultants. (R. at 1046-53.)

After assessing the opinion evidence, the ALJ summarized his RFC findings as follows:

After considering the record overall, the undersigned accounts for the claimant's type 2 diabetes, NASH, obesity, dizziness, and headaches by finding that she is limited to light work and must avoid concentrated exposure to hazards and avoid concentrated exposure to fumes, odors, dusts, gasses, and poorly ventilated areas. In addition, the undersigned accounts for the claimant's anxiety, panic disorder, and depression by finding that she can understand, remember, and carry out simple, detailed but not complex instructions and is limited to frequent interactions with supervisors and coworkers but only occasional interaction with public.

Furthermore, the undersigned accounts for the combined effects of the claimant's type 2 diabetes, NASH, obesity, dizziness, headaches, anxiety, panic disorder, and depression by finding that she will be off task five percent of the time. While there is no exact standard to assess time off task, claimant's off task time is admittedly

marginal based upon driving (although later ceased) and other activities, and no logs or other contemporaneous documents were submitted to support time off task, it is likely that she will be off task 5% of the time, or 2-3 minutes per hour, due to episodic headaches and her exhaustive B criteria assessment above.

In summary, while the claimant is limited by her type 2 diabetes, NASH, obesity, dizziness, headaches, anxiety, panic disorder, and depression, these limitations are not disabling, and the above residual functional capacity assessment is supported by the weight of the medical evidence and other evidence established in the record.

(R. at 1054.)

After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found that Plaintiff can perform work that exists in significant numbers in the national economy. (R. at 1055-56.) The ALJ therefore concluded that Plaintiff is not disabled. (R. at 1056.)

B. Opinion Evidence

As noted above, Plaintiff argues that the ALJ failed to properly evaluate the opinion evidence and that this error resulted in an improper RFC finding. (Dkt. No. 10.)

1. Standards

A claimant's RFC, which represents “the most [she] can still do despite [her] limitations,” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(1), (a)(3); see also Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of her own limitations. 20 C.F.R. § 404.1545(a)(3).

Social Security Ruling 96-8p further requires that an ALJ's “RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (noting that the ALJ “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved”). Moreover, the ALJ “must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record.” Id. Every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [ ] the evidence” that supports it. Dowling, 986 F.3d at 387 (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019)) (alteration in original); see Woods, 888 F.3d at 694 (explaining that “the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion”) (internal quotation marks omitted) (emphasis in original). Thus, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311.

The medical opinions in the record are among the evidence the ALJ must consider and reconcile with the RFC assessment. 20 C.F.R. §§ 404.1520c, 416.920c (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”). For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence and prior administrative medical findings.⁴ See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or prior administrative findings and need not give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions and prior administrative findings using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c).

4 20 C.F.R. § 416.920c has replaced the “Treating Physician Rule” for claims filed after March 27, 2017; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the Treating Physician Rule, a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas, 983 F.3d at 107 (emphasis in original).

Supportability and consistency are the most important of the factors, and the ALJ must explicitly address how he considered these factors in evaluating each medical opinion and prior administrative finding. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. §§ 404.1520c(b)(2), 426.920c(b)(2). For supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are,” the “more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Similarly, for consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical findings(s) is with evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).

Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The Fourth Circuit has repeatedly stated 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, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas, 983 F.3d at 98.

The undersigned considers the opinion evidence at issue,⁵and Plaintiff's arguments, below.

5 In addition to the opinions detailed below, state agency medical consultants A. Mamaril, M.D. and Adrian Corlette, M.D. opined that Plaintiff does not have a severe physical impairment. (R. at 1054.) Because Plaintiff does not raise any arguments concerning this opinion evidence, the undersigned does not consider it in this R&R.

2. The Opinion Evidence and ALJ's Findings

a. Opinions of Non-Examining State Agency Medical Consultants

In opinions issued on January 11, 2018, and June 12, 2018, state agency medical consultants Drs. Neboschick and Harkness opined, inter alia, that Plaintiff has mild limitations in understanding, remembering, or applying information and in adapting or managing herself; has moderate limitations in interacting with others with a moderate limitation in accepting instructions and responding appropriately to criticism from supervisors; and has moderate limitations in concentrating, persisting, or maintaining pace with a moderate limitation in completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods. (R. at 89-91, 118-20.) Drs. Neboschick and Harkness further found that that Plaintiff “can understand and carry out simple routine tasks”; “can persist at simple tasks for at least two hour periods with the usual breaks”; “does not require special supervision to complete tasks”; “may miss a day or two due to her psych[ological symptoms] but should generally be able to complete a normal work week”, “would do best at jobs in uncrowded settings that do not require ongoing interaction with the general public”, and “can avoid hazards and adhere to normal standards of safety and hygiene.” (R. at 89-91, 118-20.)

In his decision, the ALJ summarized Drs. Neboschick's and Harkness's opinions and stated he was “only partially persuaded.” (R. at 1046-47.) He began by noting these “medical consultants based their findings upon a review of the available medical records, and they supported their conclusions with explanations.” (R. at 1047.) He continued,

However, their findings are somewhat vague and are not phrased in entirely vocationally relevant terms, such as the limitations they described to doing “best” in “uncrowded” settings, “special supervision” to complete tasks, missing “a day or two” in an unspecified period, and being able to “generally” complete a normal work week. These somewhat vague and unspecified limitations make their findings of limited persuasiveness in assessing the claimant's specific functional limitations.

In addition, limitations to no more than simple and routine tasks are inconsistent with the record overall and therefore unpersuasive to the extent inconsistent with RFC. During the claimant's December 2017 consultative psychological examination, the claimant's concentration was adequate for the exam, she had no problems talking or answering questions, she was not distractible or delusional, she recalled five out of five words immediately and four out of five words after a several-minute delay with interference, she could spell “world” forward and in reverse, she could recall seven digits forward and four digits backward, she could abstract, and her social judgment was adequate (Ex. 4F at 2).

During her June 2018 consultative psychological examination, the claimant managed appropriate eye contact, she was adequately groomed and cooperative, her speech was spontaneous, responsive, articulate, and fluent with normal rhythm, rate, and flow, she had a generally appropriate affect, she was fully oriented with an adequate stream of consciousness, her thoughts were linear, logical, relevant, and coherent, and there was no evidence for psychosis or lack of reality contact (Ex. 8F at 2).

Though the claimant demonstrated slight slowing to her cognitive processing speed consistent with psychomotor retardation, she attended without distractibility, she was able to recall three unrelated words immediately and after a five-minute delay with interference task, she was able to spell the word “world” correctly both forward and backward, and she achieved a score of 30/30 in the Folstein mini mental status exam, suggesting mental status functioning within normal limits (Ex. 8F at 3).

During her February 2019 psychological evaluation at the request of the South Carolina Vocational Rehabilitation Department, the claimant arrived on time for her appointment, she appeared well groomed, responsive, and cooperative, her eye contact appeared good, she had normal speech, her thought process and content appeared coherent and relevant, her mood appeared appropriate, she denied sensory perception issues, she denied being suicidal/homicidal or having self-injurious behavior, and she appeared to have good insight (Ex. 9F at 3).

Therapist Hindman observed that the claimant was calm, pleasant, friendly, and cooperative with good eye contact, a relaxed posture, coherent thought process, and typical intellect, insight, judgment, impulse control, ability to focus, and memory recall (Ex. 19F at 4).

In addition, Nurse Clark observed that while the claimant exhibited an anxious mood, she was consistently alert, oriented, cooperative, and polite with normal speech, fair/good concentration, attention, and short-term memory, intact long-term memory, fair insight and judgment, average estimated intelligence, and no evidence of a fixed delusional system or paranoia in these appointments (Ex. 22F at 18, 27, 37-38, 48, 60, 71, 83, 95, 107, 119, 130, 142, 153, 163, 175, 186, 198, 209).

Furthermore, though the claimant testified and the medical record indicates that the claimant was fired from her job that she had had for two years as a customer service representative at Home Depot due to absences related to her having panic attacks (Ex. 6F at 18, 8F at 1, 15F at 1), the claimant subsequently reported improvement in her anxiety and panic with Ativan as needed and improvement in her depressive symptoms with L-methylfolate supplementation over the course of the relevant period (Ex. 22F at 47, 59, 174, 185, 24F at 24). The claimant also reported that she does not have problems getting along with others, she is good at getting along with authority figures, she has never been fired or laid off from a job because of problems getting along with other people, she finishes what she starts, and she is okay at following instructions in multiple function reports (Exs. 5E at 6-7, 8E at 6-7).

Therefore, after considering the record overall, the undersigned finds the conclusions of Dr. Neboschick and Dr. Harkness only partially persuasive and accounts for the claimant's anxiety, panic disorder, and depression as follows: she has moderate limitations in each of the “paragraph B” criteria, she is precluded from complex instructions, she can understand, remember, and carry out simple, detailed instructions, she will be off task five percent of the time, and she can have frequent interactions with supervisors and coworkers but only occasional interaction with public.

(R. at 1047-48.)

b. Treating Physician, Dr. Rhynes

In a February 2018 questionnaire, Dr. Rhynes opined that Plaintiff has a “good” ability, with “good” defined on the questionnaire as “ability to function in this area is limited but satisfactory” to: follow ”simple job instructions,” “maintain personal appearance,” and “follow work rules.” (R. at 530-32.) Dr. Rhynes further opined that Plaintiff has a “fair” ability, with “fair” defined in the questionnaire as “ability to function in this area is seriously limited, but not precluded,” to: “relate to co-workers,” “use judgment,” “interact with supervisors,” “function independently,” “maintain attention and concentration”; and understand, remember, and carry out “complex job instructions” and “detailed, but not complex, job instructions.” (R. at 530-32.) Finally, Dr. Rhynes opined that Plaintiff has a “poor or none” ability, with “poor or none” defined in the questionnaire as no useful ability to function in this area, to: “deal with the public,” “deal with work stress,” “behave in an emotionally stable manner,” “relate predictably in social situations,” and “demonstrate reliability.” (R. at 530-32.) In support of these opinions, Dr. Rhyne stated, inter alia, that Plaintiff has “anxiety and panic attacks with attempting to relate to others. These are unpredictable and may interfere with ability to go to work.” (R. at 531.)

In an April 2018 questionnaire, Dr. Rhynes opined that Plaintiff has a “good” ability to “complete basic activities of daily living” and “to complete simple, routine tasks” and has a “poor” ability “to relate to others” and “to complete complex tasks.” (R. at 644.) In support of the “poor” ratings, Dr. Rhynes stated that Plaintiff is “unable to be around others for long periods due to constant worrying” and that “worry interferes with concentration to complete complex tasks.”⁶ (R. at 644.)

6 This questionnaire did not provide definitions for “good” and “poor.” (R. at 644.)

In his decision, the ALJ summarized Dr. Rhynes' opinions and stated he was “only partially persuaded.” (R. at 1048.) More specifically, he found,

Dr. Rhynes provide treatment to the claimant over time and supported her opinions with brief explanations as well as with a brief mental status examination in August 2018 (Exs. 5F, 7F). In addition, her conclusions that the claimant has a good ability to follow simple job instructions, maintain personal appearance, follow work rules, complete basic activities of daily living, and complete simple, routine tasks; fair ability to relate to coworkers, interact with supervisors, maintain attention and concentration, and follow detailed instructions; and “poor” ability to complete complex tasks are consistent with the record overall and therefore generally persuasive.

However, Dr. Rhynes' conclusions that the claimant has fair ability (with fair defined by Dr. Rhynes' questionnaire as “ability to function in this area is seriously limited, but not precluded”) to follow complex job instructions, use judgment, and function independently and has a “poor/none” ability to deal with the public and work stress, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability are inconsistent with the record overall and therefore unpersuasive.

Furthermore, the limitation to being unable to be around others for “long periods” is vague.

Instead, the undersigned finds that while the claimant is precluded from complex instructions, she can understand, remember, and carry out simple, detailed instructions but will be off task five percent of the time, and she can have frequent interactions with supervisors and coworkers but only occasional interaction with public.

(R. at 1049.)

The ALJ then repeated much of the evidence he detailed in his assessment of the opinions of Drs. Neboschick and Harkness, including: (1) the same findings from Plaintiff's 2017 and 2018 consultative examinations, (2) the same findings from Plaintiff's 2019 psychological evaluation, and (3) the same observations from Therapist Hindman and Nurse Clark. (R. at 1049-50.) He further stated,

In multiple function reports, the claimant reported that she does not have problems getting along with others, she is good at getting along with authority figures, and

she has never been fired or laid off from a job because of problems getting along with other people (Exs. 5E at 6-7, 8E at 6-7).

The claimant also reported in multiple function reports that she finishes what she starts and is okay at following instructions (Exs. 5E at 6-7, 8E at 6-7). Dr. Rhynes noted that the claimant's anxiety and headaches had improved and were stable in September 2017 (Ex. 2F at 7, 9)....

In March 2019, Dr. Rhynes noted that the claimant's anxiety was better and she had not had to take Ativan in at least one week (Ex. 11F at 1), and Dr. Rhynes concluded that the claimant's anxiety was stable (Ex. 11F at 3). In addition, Dr. Mea noted in May 2019 that the claimant's social anxiety had improved (Ex. 16F at 37), and Dr. Rhynes noted in July 2019 that the claimant's anxiety seemed to be well controlled (Ex. 16F at 19)....

The medical record also does not show that the claimant required inpatient treatment for her mental health since the alleged onset date. Furthermore, Dr. Rhynes noted that the claimant's anxiety was stable in February 2022 (Ex. 23F at 74).

(R. at 1049-50.) After detailing this evidence, the ALJ concluded,

Therefore, the undersigned finds Dr. Rhynes' opinions to be only partially persuasive and finds that while the claimant is precluded from complex instructions, she can understand, remember, and carry out simple, detailed instructions but will be off task five percent of the time, and she can have frequent interactions with supervisors and coworkers but only occasional interaction with public.

(R. at 1050.)

c. Consultative Examiner, Dr. Price

Dr. Price performed a consultative mental status examination on December 19, 2017, and opined that Plaintiff “would have no impairment in activity of daily living,” and has a “moderate-to-marked impairment in social function,” noting that “she does not have any friends” and “she does not like to go out.” (R. at 527.) He further opined that Plaintiff “would have a moderate impairment and worse in concentration, persistence, and pace,” noting that “I guess it comes in how you interpret her going to the ER over panic attacks or to psychiatric admission for that moderate rate.” (R. at 527.) He further opined, “I do think she has a significant impairment in adaptation. I think she has a pretty severe panic disorder and generalized anxiety disorder,” concluding that “this is causing her to not be able to perform substantial gainful activity.” (R. at 527.)

In his decision, the ALJ summarized Dr. Price's opinion and first noted that

A statement as to whether a claimant can perform substantial gainful activity goes to an issue reserved to the Commissioner and is inherently neither valuable nor persuasive, and the undersigned did not provide articulation about the evidence that is inherently neither valuable nor persuasive in accordance with 20 CFR 404.1520b(c) and 416.920b(c).

(R. at 1051.) He continued,

Regarding the functional limitations Dr. Price described, though Dr. Price performed a thorough consultative examination of the claimant and supported his opinion with detailed examination notes, the functional limitations he described are somewhat vague and equivocal, are not entirely consistent with his own observations in his examination of the claimant, and are inconsistent with the record overall to the extent that he opines that the claimant has more than moderate mental limitations.

(R. at 1051.) The ALJ then detailed the findings in Dr. Price's examination that the ALJ found supported his assessment of the opinion evidence, as follows:

Dr. Price observed that while the claimant looked slightly unkempt, she was punctual, her hygiene was normal, her eye contact was normal, her speech volume, rate, and prosody were all within normal limits, her language was normal, she was fluent and coherent, her thought content was normal, and her thought processes were linear and non-psychotic (Ex. 4F at 1). The claimant's affect was within normal limits with appropriate range, her emotional state appeared to be within normal limits and appropriate, and her mood was euthymic (Ex. 4F at 1).

The claimant was engaged in the evaluation and compliant with all tasks requested of her, she had no problems reading or understanding, she was fluent and coherent, and her concentration was adequate for the exam and at worst had a moderate impairment (Ex. 4F at 2). The claimant had no problems talking or answering questions, she had no repetitious behavior, her psychomotor activity appeared to be within normal limits, she had no pressured speech, flight of ideas, or inflated sel-festeem, and she was not distractible or delusional (Ex. 4F at 2).

The claimant was oriented to person, place, date, and situation, she recalled five out of five words immediately and four out of five words after a several-minute delay

with interference, she made one error in a serial-sevens task, she could spell “world” forward and in reverse, and she could recall seven digits forward and four digits backward (Ex. 4F at 2). The claimant also could abstract, and her social judgment was adequate (Ex. 4F at 2).

Dr. Price noted in his mental status examination that the claimant can follow instructions and relate to others (Ex. 4F at 2), which is not entirely consistent with or supporting of the “moderate to extreme” limitations in social function he provided in his conclusion (Ex. 4F at 5).

Dr. Price further observed in his mental status examination that the claimant's concentration was adequate for the exam and “at worst had a moderate impairment” (Ex. 4F at 2), which is not entirely consistent with his conclusion that the claimant “would have a moderate impairment and worse in concentration persistence, and pace” (Ex. 4F at 5).

(R. at 1051-52.) The ALJ then discussed other record evidence, which he found inconsistent with Dr. Price's opinion. In addition to repeating the same observations from Therapist Hindman and Nurse Clark, the ALJ also noted,

Though Dr. Price mentioned interpreting the claimant's ER visits over panic attacks and “psychiatric admission” in his conclusion when describing marked/worse than moderate mental limitations, the medical record shows that while the claimant visited the emergency room for panic attacks in the days prior to the alleged onset date, the medical record does not show subsequent emergency room treatment for panic attacks, and the claimant instead reported improvement in her anxiety and panic with Ativan as needed and improvement in her depressive symptoms with L-methylfolate supplementation over the course of the relevant period (Ex. 22F at 47, 59, 174, 185, 24F at 24).

Though the claimant visited the emergency room on July 28, 2021 for a bee sting after cutting her lawn and reported developing some shortness of breath while driving herself to the hospital, which she attributed to her anxiety, and her heart rate was initially elevated upon her arrival, it settled quickly, she received treatment with intravenous fluids, methylprednisolone, famotidine, and acetaminophen for her bee sting, and she was discharged in stable condition later that day (Ex. 21F at 34-35).

In addition, the medical record does not show any inpatient admission for treatment of the claimant's mental health within the relevant period. Furthermore, the claimant reported in multiple function reports that she does not have problems getting along with others, she is good at getting along with authority figures, she has never been fired or laid off from a job because of problems getting along with

other people, she finishes what she starts, and she is okay at following instructions (Exs. 5E at 6-7, 8E at 6-7).

(R. at 1052.)

The ALJ concluded, “Therefore, the undersigned finds Dr. Price's opinion to be only partially persuasive, and to the extent that Dr. Price opines that the claimant has more than moderate mental limitations, the undersigned finds Dr. Price's opinion unpersuasive.” (R. at 1052.)

d. Consultative Examiner, Dr. Ruffing

Finally, Dr. Ruffing performed a consultative mental status examination on June 5, 2018, and opined that Plaintiff “is able to understand and respond to the spoken word” and “would likely struggle with concentration, persistence, and pace as a result of her significant anxiety symptoms as well as her depression.” (R. at 651.)

In his decision, the ALJ found this decision “partially persuasive,” stating, “Dr. Ruffing performed a thorough consultative examination of the claimant and supported his opinion with detailed notes, and his opinion is partially persuasive, as it is generally consistent with Dr. Ruffing's examination findings and with the record overall.” (R. at 1052.) The ALJ then detailed the findings in Dr. Ruffing's consultative examination that supported his assessment of this opinion evidence:

Dr. Ruffing observed in June 2018 that the claimant managed appropriate eye contact, she was adequately groomed and cooperative, her speech was spontaneous, responsive, articulate, and fluent with normal rhythm, rate, and flow, she had a generally appropriate affect, she was fully oriented with an adequate stream of consciousness, her thoughts were linear, logical, relevant, and coherent, and there was no evidence for psychosis or lack of reality contact (Ex. 8F at 2).

Though the claimant demonstrated slight slowing to her cognitive processing speed consistent with psychomotor retardation, she attended without distractibility, she was able to recall three unrelated words immediately and after a five-minute delay with interference task, she was able to spell the word “world” correctly both forward and backward, and she achieved a score of 30/30 in the Folstein mini

mental status exam, suggesting mental status functioning within normal limits (Ex. 8F at 3).

(R. at 1052-53.)

The ALJ then discussed the other record evidence that he found supported his assessment of Dr. Ruffing's opinion. In addition to repeating the same findings from Plaintiff's 2017 consultative examination, as well as the same observations from Therapist Hindman and Nurse Clark, the ALJ noted,

Furthermore, though the claimant testified and the medical record indicates that the claimant was fired from her job that she had had for two years as a customer service representative at Home Depot due to absences related to her having panic attacks (Ex. 6F at 18, 8F at 1, 15F at 1), the claimant subsequently reported improvement in her anxiety and panic with Ativan as needed and improvement in her depressive symptoms with L-methylfolate supplementation over the course of the relevant period (Ex. 22F at 47, 59, 174, 185, 24F at 24). The claimant also reported that she does not have problems getting along with others, she is good at getting along with authority figures, and she has never been fired or laid off from a job because of problems getting along with other people in multiple function reports (Exs. 5E at 6-7, 8E at 6-7).

(R. at 1053.)

The ALJ concluded, “Therefore, the undersigned finds Dr. Ruffing's opinion to be partially persuasive. However, the limitations Dr. Ruffing described are somewhat vague, are not phrased in entirely vocationally relevant terms, and do not completely address the claimant's limitations.” (R. at 1053.)

The ALJ then concluded his assessment of the opinion evidence concerning Plaintiff's mental impairments as follows:

Therefore, the undersigned further accounts for the claimant's anxiety, panic disorder, and depression by finding that she can understand, remember, and carry out simple, detailed but not complex instructions and will be off task five percent of the time, and she is limited to frequent interactions with supervisors and coworkers but only occasional interaction with public.

(R. at 1053.)

3. Analysis

a. Assessment of Drs. Neboschick's and Harkness's opinions

In her brief, Plaintiff argues that “the ALJ's logic is non-existent.” (Dkt. No. 10 at 20.) More specifically, Plaintiff asserts that the ALJ erred in his assessment of Drs. Neboschick's and Harkness's opinions because: (1) the ALJ improperly rejected the opinion that Plaintiff “may miss a day or two” of work as vague; (2) the ALJ “overlook[ed]” consistencies between the opinions of these state agency consultants and those made by Dr. Price and Dr. Ruffing, whose underlying consultative examinations the ALJ cited in support of his above assessment; and (3) the ALJ “overlooks large swaths of medical evidence that stand for the very opposite of what he is citing, and he fails to address Dr. Rhyne's statements that are clearly consistent.” (Id. at 20-22.) The undersigned addresses these issues, below.

1. Vagueness of Opinions

Plaintiff first disputes that the phrase “may miss a day or two” is vague and asserts that the ALJ should have clarified this phrasing with the state agency consultants if he “had any question regarding what was meant in terms of duration.” (Id. at 20.) Relevant here, Drs. Neboschick and Harkness opined, inter alia, that Plaintiff “may miss a day or two due to her psych[ological symptoms] but should generally be able to complete a normal work week.” (R. at 91, 120.) As an initial matter, the ALJ did not err in finding that a limitation to “missing ‘a day or two' in an unspecified period” was “somewhat vague and not phrased in entirely vocationally relevant terms.” (R. at 1047.) Plaintiff is correct that the vocational expert testified that missing more than “one day of work per month” would “be work preclusive.” (R. at 1108-09.) However, the state agency consultants did not specify whether Plaintiff's potential absence of “day or two,” as stated in their findings, was contemplated over the period of one month rather than a longer period of time. Thus, it was reasonable for the ALJ to find this portion of the opinion “somewhat vague” with “limited persuasiveness in assessing the claimant's specific functional limitations,” and the vocational expert's testimony highlighted here does not automatically conflict with this opinion evidence. (R. at 1047); see Robertson v. Saul, No. 5:18-cv-454-D, 2019 WL 7585180, at *11 (E.D. N.C. Dec. 19, 2019) (“Vagueness is a proper ground for limiting the weight given medical source opinions.”), adopted by, 2020 WL 241552 (E.D. N.C. Jan. 14, 2020); see also Lamb v. Saul, No. 2:19-cv-26, 2020 WL 6391097, at *4 (E.D. N.C. July 6, 2020) (finding ALJ did not err in affording consultative psychological examiner's opinion little weight, in part, because “it is vague as to specific functional limitations or their degree”); Gallardo v. Berryhill, No. 1:16-cv-355, 2017 WL 1409575, at *7 (M.D. N.C. Apr. 20, 2017) (deeming vagueness “permissible grounds on which to discount a medical source's opinions”), adopted by, 2017 WL 2623884 (M.D. N.C. June 16, 2017).

Further, Plaintiff cites no authority for the proposition that the ALJ should have clarified this interpreted ambiguity with Drs. Neboschick and Harkness. There is no merit to Plaintiff's implication that the ALJ's assessment here is not supported by substantial evidence because the ALJ failed to obtain such clarification. Under the effective regulations, an ALJ is only expected to seek additional evidence or clarification if the ALJ cannot reach a conclusion about whether the claimant is disabled based upon the evidence in the record. See 20 C.F.R. §§ 404.1520b, 416.920b (when the ALJ finds “evidence in [a] case record [ ] insufficient or inconsistent,” the ALJ “may need to take [ ] additional actions,” including that the ALJ can “determine whether [a claimant is] disabled based on the evidence [the ALJ] ha[s],” or “may recontact [a claimant's] medical source”).

Here, the ALJ was not required to further develop the record after rejecting the portion of Drs. Neboschick and Harkness's opinion concerning Plaintiff's potential absences as vague. Under his appropriate discretion, the ALJ relied on the extensive evidence available in the record- including Plaintiff's own statements regarding her functional limitations, the objective medical evidence, Plaintiff's activities of daily living, and the opinion evidence-to render a disability determination in this case. The ALJ did not include any limitation to Plaintiff missing a day or two from work in his RFC finding, and his discussion of the record evidence renders his conclusions on this issue self-evident. (See, e.g., R. at 1048 “Furthermore, though the claimant testified and the medical record indicates that the claimant was fired from her job that she had had for two years as a customer service representative at Home Depot due to absences related to her having panic attacks (Ex. 6F at 18, 8F at 1, 15F at 1), the claimant subsequently reported improvement in her anxiety and panic with Ativan as needed and improvement in her depressive symptoms with L-methylfolate supplementation over the course of the relevant period (Ex. 22F at 47, 59, 174, 185, 24F at 24).”).

Accordingly, remand is not appropriate on this basis. See, e.g., Lucy A. T. v. O'Malley, No. 1:22-cv-761, 2024 WL 113776, at *14 (M.D. N.C. Jan. 9, 2024) (considering the ALJ's assessment of an opinion as “vague and not expressed in vocationally quantifiable terms”; “Here, the ALJ did not find Dr. Burgess's report or opinions “insufficient” or “inconsistent” . . . and, even if the ALJ had done so, the regulations vested the ALJ with substantial discretion regarding the steps to take to remedy the insufficiency or inconsisten[cy] and did not compel the ALJ to recontact Dr. Burgess”), adopted sub nom. Treadwell v. O'Malley, 2024 WL 406658 (M.D. N.C. Feb. 2, 2024) (citing Hughes v. Kijakazi, No. 5:21-cv-905, 2022 WL 3714627, at *11-12 (D.S.C. Aug. 29, 2022) (“The ALJ was not required to recontact [the] consultative examiner [whose opinions the ALJ had found vague] . . . to obtain additional information with respect to his opinion.”); Cullen v. Kijakazi, No. 6:20-cv-4061, 2022 WL 92616, at *2 (D.S.C. Jan. 10, 2022) (“The applicable regulations now allow ALJs substantial discretion in deciding whether to recontact a treating physician for additional or clarifying information. [The p]laintiff has cited no authority under the applicable regulation . . . requiring an ALJ to recontact a medical source for clarification of an opinion.”); Rogers v. Saul, No. 4:19-cv-896, 2020 WL 4209064, at *10 (D.S.C. June 30, 2020) (rejecting argument that the ALJ erred by finding consultative examiner's opinions “overly vague,” but then not recontacting the consultative examiner “for an explanation,” because 20 C.F.R. § 404.1520b contains no such requirement), adopted by, 2020 WL 4207649 (D.S.C. July 22, 2020)).

2. Consistencies between opinion evidence

Plaintiff next argues that the ALJ “overlook[ed]” consistencies between the opinions of these state agency consultants and those made by Dr. Price and Dr. Ruffing, whose underlying consultative examinations the ALJ cited in support of his assessment of Drs. Neboschick's and Harkness's opinions. (Dkt. No. 10 at 20-21.) Similarly, she argues that the ALJ “fail[ed] to address Dr. Rhyne's statements that are clearly consistent.” (Id. at 22.)

In his decision, the ALJ offered numerous specific reasons for finding the opinions of Drs. Neboschick and Harkness were only partially persuasive. At the outset, the undersigned cannot find the ALJ erred here simply because he did not expressly acknowledge purported consistencies between their opinions and the opinions of other medical sources. See Robertson v. Saul, No. 5:18-CV-454-D, 2019 WL 7585180, at *11 (E.D. N.C. Dec. 19, 2019) (finding “the ALJ's attribution of limited weight was proper,” despite the claimant's argument that “the ALJ failed to acknowledge that the opinions of Dr. Fernandez were consistent with the conclusions of her other providers”), adopted by, 2020 WL 241552 (E.D. N.C. Jan. 14, 2020).

Further, the ALJ created an accurate and logical bridge from the evidence to his conclusion that certain findings from the consultative examinations performed by Dr. Price and Dr. Ruffing were “inconsistent” with a “limitation[] to no more than simple and routine tasks.” (R. at 1047.) Notably, Dr. Price and Dr. Ruffing did not expressly opine on Plaintiff's ability to engage in no more than simple and routine tasks. Even if their opinions could be construed as more limited than that afforded by the ALJ on this issue, the ALJ explained why his assessment of these opinions were consistent with his RFC finding.

For example, while Dr. Price opined that Plaintiff “would have moderate impairment and worse in concentration, persistence, and pace,” the ALJ explained in detail why he found Dr. Price's opinion unpersuasive to the extent he “opines that the claimant has more than moderate mental limitations.” (R. at 1052.) Likewise, with respect to Dr. Ruffing's opinion that Plaintiff “would likely struggle with concentration, persistence, and pace,” the ALJ found that “the limitations Dr. Ruffing described are somewhat vague, are not phrased in entirely vocationally relevant terms, and do not completely address the claimant's limitations.” (R. at 1053.) Plaintiff appears to argue that because Drs. Neboschick and Harkness reviewed the 2017 and 2018 consultation examinations to form their opinions, the ALJ could not conclude that any of those examination findings were inconsistent with their opinions. Plaintiff offers no authority for this assertion, however, and the ALJ offered sufficient explanation for concluding that certain findings in these examinations conflicted with a limitation to no more than simple and routine tasks. (R. at 1047.) It is clear to the Court that the ALJ offered sufficient explanation for finding this opinion evidence unpersuasive, and it is not this Court's duty to reweigh the evidence at this time.

Likewise, Plaintiff offers no explanation of what specific “statements” from Dr. Rhyne were “clearly . . . consistent” with the state agency consultants' opinions and should therefore have been considered here by the ALJ. To the extent he is arguing that the ALJ cherry picked the record and ignored conflicting treatment records in his assessment here, Plaintiff again does not reference any specific records. Further, the ALJ offered a detailed review of the evidence in this case, both favorable and unfavorable, in his discussion of Plaintiff's RFC. (R. at 127-140.) There is no basis to find he unreasonably ignored certain records when assessing the opinion evidence. See Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011) (reviewing “the ALJ's decision as a whole” in assessing for substantial evidence); Parker v. Kijakazi, No. 9:22-cv-01041-RMG-MHC, 2023 WL 3020712, at *10 (D.S.C. Jan. 6, 2023) (rejecting the claimant's argument that the ALJ cherry-picked; “A review of the ALJ's entire decision reveals that the ALJ cited and discussed the evidence that [claimant] relies on. Consequently, the ALJ did not disregard or ignore this evidence.”), adopted by, 2023 WL 2180069 (D.S.C. Feb. 23, 2023); Kiernan v. Astrue, No. 3:12-cv-459, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013) (observing that, where an “ALJ analyzes a claimant's medical evidence in one part of his decision, there is no requirement that he rehash that discussion” in other parts of his analysis).

The ALJ also appropriately considered the supportability of Drs. Neboschick's and Harkness's opinions when he stated, “The medical consultants based their findings upon a review of the available medical records, and they supported their conclusions with explanations (Exs. 1A at 4-8, 6A at 8-14).” See Cantrell v. Kijakazi, No. 2:21-cv-00021, 2022 WL 3335778, at *9 (W.D. Va. Aug. 12, 2022) (“[T]o properly assess supportability, the ALJ must consider whether a medical source considered relevant objective medical evidence and presented supporting explanations”).

In sum, because the ALJ provided a legally sufficient analysis of both supportability and consistency when finding the opinions of Drs. Neboschick and Harkness to be partially persuasive, substantial evidence supports the ALJ's assessment here. Remand is therefore not warranted on this basis.

b. Assessment of Dr. Rhyne's opinions

Specific to Dr. Rhyne, Plaintiff argues that the ALJ improperly relied on certain evidence to discount Dr. Rhyne's opinions and that this resulted in an RFC that failed to adequately account for Dr. Rhyne's “statements regarding interaction with coworkers, supervisors, and the public.” (Dkt. No. 10 at 25-26.) Here, Plaintiff disputes the ALJ's reliance on Plaintiff's function reports, the findings in the 2017 and 2018 consultative examinations, and Dr. Rhyne's notations of stability in the treatment records, as a basis for discounting her opinions.

As an initial matter, the undersigned finds no error in the ALJ's reliance on the evidence cited by Plaintiff. As the Commissioner notes, Plaintiff completed her function reports in November 2017 and March 2018, which was around the same time Dr. Rhyne's completed the questionnaires containing her opinion evidence. (R. at 361-68, 378-85.) Dr. Rhyne's questionnaires are dated February and April of 2018. (R. at 530-32, 644.) The ALJ did not mischaracterize these function reports when finding Plaintiff's statements therein conflicted with Dr. Rhyne's opinions, and he was entitled to rely on these perceived inconsistencies when assessing this opinion evidence. (R. at 1049.) Additionally, the record shows the ALJ detailed Plaintiff's treatment records with Dr. Rhyne, both favorable and unfavorable, in his earlier discussion of Plaintiff's RFC. (R. at 129-40.) As the ALJ noted in his assessment of Dr. Rhyne's opinions, at various points during the relevant time period, Dr. Rhyne noted that Plaintiff's anxiety was “stable” and/or “doing better.” (R. at 1049-50, R. at 453 “Anxiety is better,” R. at 455 “generalized anxiety disorder” is “stable,” R. at 726 “Her anxiety is better. She has not had to take Ativan for at least one week,” R. at 728 “generalized anxiety disorder” is “stable,” R. at 1733 “generalized anxiety disorder” is “stable.”). Here, Plaintiff does not demonstrate how the ALJ took any notations of stability or “doing better” out of context.

Further, for similar reasons as discussed supra section B.a.2 the ALJ did not err in citing certain findings within the 2017 and 2018 consultative examinations to discount Dr. Rhyne's opinions. Again, to the extent the opinions of Dr. Price and Dr. Ruffing could be construed as more limited than the RFC ultimately afforded by the ALJ, the ALJ explained why his assessment of these opinions were consistent with his RFC finding. For example, while Dr. Price opined that Plaintiff “would have moderate impairment and worse in concentration, persistence, and pace” and “moderate-to-marked impairment in social function,” the ALJ explained in detail why he found Dr. Price's opinion unpersuasive to the extent he “opines that the claimant has more than moderate mental limitations.” (R. at 1052.) Likewise, the ALJ explained in detail why he found Dr. Ruffing's opinion that Plaintiff “would likely struggle with concentration, persistence, and pace” to be partially persuasive. (R. at 1053.) Throughout his decision, the ALJ was consistent in his analysis of the underlying consultative examinations and their implications for his RFC finding. There is no basis to find he erred in relying in part on these examination findings to discount Dr. Rhyne's opinions.

Finally, Plaintiff does not explain how the ALJ limiting Plaintiff to “frequent interactions with coworkers and supervisors but only occasional interaction with public” is improper, based on the ALJ's foregoing analysis of Dr. Rhyne's opinion evidence. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the ALJ's assessment of Dr. Rhyne's opinions is based upon substantial evidence and without legal error.

c. Assessment of Dr. Price's and Dr. Ruffing's opinions

Plaintiff further argues that the ALJ erred in his evaluation of Dr. Price's and Dr. Ruffing's opinions. Here, she first argues that the ALJ improperly substituted his opinions for that of these medical professionals by “stating what conclusions should be reached . . . based upon his untrained view of examination findings.” (Dkt. No. 10 at 28-29, 31.) She further argues the ALJ cherry-picked the evidence in his evaluation of these opinions and failed to recognize their consistency with the other opinion evidence in the record. (Id. at 28-29, 31-32.)

As an initial matter, the undersigned finds no merit to Plaintiff's assertion that the ALJ essentially was “playing doctor” by relying on evidence from the underlying examinations in support of his persuasiveness evaluations. While the ALJ found that Dr. Price's opinions were not entirely supported by his own examination findings, he also discussed ample additional evidence as a basis for his evaluation. See Edwards v. Saul, No. 1:20-cv-2280-SVH, 2021 WL 210852, at *16 (D.S.C. Jan. 20, 2021) (finding an ALJ “did not impermissibly ‘play doctor' in rejecting a portion of [a medical] opinion” because the ALJ cited ample evidence in the record that conflicted with the opinion).

For example, referencing Dr. Price's statement that Plaintiff's “moderate impairment and worse in concentration, persistence, and pace” depended on “how you interpret her going to the ER over panic attacks or to the psychiatric admission for that moderate rate,” the ALJ stated that “the medical record does not show any inpatient admission for treatment of the claimant's mental health within the relevant period.” (R. at 1050-52.) He further noted that “the medical record shows that while the claimant visited the emergency room for panic attacks in the days prior to the alleged onset date, the medical record does not show subsequent emergency room treatment for panic attacks,” (R. at 1052.) The ALJ further found that Dr. Price's observation “in his mental status examination that the claimant's concentration was adequate for the exam and “at worst had a moderate impairment” . . . is not entirely consistent with his conclusion that the claimant “would have a moderate impairment and worse in concentration persistence, and pace.” (R. at 1051.) As for Dr. Price's opinion that Plaintiff has a “moderate-to-marked impairment in social function,” the ALJ stated, “Dr. Price noted in his mental status examination that the claimant can follow instructions and relate to others (Ex. 4F at 2), which is not entirely consistent with or supporting of the “moderate to extreme” limitations in social function he provided in his conclusion (Ex. 4F at 5).” (R. at 1050.) The ALJ also referenced additional treatment records and Plaintiff's own statements in his evaluation of Dr. Price's opinion. (R. at 1050-52.)

As for Dr. Ruffing, Plaintiff does not explain how any findings in his underlying examination, or Dr. Ruffing's opinion that Plaintiff “would likely struggle with concentration, persistence, and pace,” would translate to a more restrictive RFC than that assessed by the ALJ. Regardless, the ALJ appropriately discussed the record evidence relevant to this opinion to find that Dr. Ruffing's opinion was “partially persuasive.” (R. at 1052-53.) Notably, Plaintiff does not specify what records the ALJ failed to properly consider in his evaluation. As discussed supra section B.a.2, the ALJ offered a detailed review of the evidence in this case, both favorable and unfavorable, throughout his discussion of Plaintiff's RFC. (R. at 127-140.) There is no basis to find the ALJ unreasonably ignored certain records when assessing Dr. Ruffing's opinion.

Further, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Jarvis v. Berryhill, 697 Fed.Appx. 251, 252 (4th Cir. 2017) (“The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” (quoting Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996)). It is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” (citation omitted)).

Finally, the fact that the ALJ did not fully adopt any of the medical opinion evidence in the record does not mean his RFC finding is not supported by substantial evidence. See Mark A. B. v. Kijakazi, No. 1:22-cv-834, 2023 WL 9381904, at *8 (M.D. N.C. Dec. 15, 2023) (rejecting the claimant's purported “argument that the ALJ ‘substitut[ed] her opinion for that of physicians'” because the “ALJ did not fully adopt any of the medical opinion evidence in the record”) (collecting cases), adopted sub nom. Buckner v. O'Malley, 2024 WL 278471 (M.D. N.C. Jan. 25, 2024). Throughout his decision, the ALJ was consistent in his analysis of the record evidence, including the opinion evidence, and their implications for his RFC finding. There is no basis to find the ALJ erred in failing to expressly acknowledge purported consistencies among the opinion evidence.

In sum, the ALJ considered the opinion evidence at issue in accordance with 20 C.F.R. 404.1520c. Accordingly the undersigned finds that substantial evidence supports the findings as to the partial persuasiveness of these opinions, and Plaintiff's RFC is supported by substantial evidence.

CONCLUSION

It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be AFFIRMED.

IT IS SO RECOMMENDED.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4^th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).