Opinion
C/A 9:21-cv-03021-MGL-MHC
12-12-2022
Bradric Gray, Plaintiff, v. Kilolo Kijakazi,[1] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Bradric Gray (Gray) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for disability insurance benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 12.
Gray filed his application for DIB in February 2020, alleging disability since December 1, 2019. R.pp. 13, 90, 111. The state agency denied Gray's claims at the initial and reconsideration levels. R.pp. 89-133. On May 25, 2021, an administrative hearing was held before an ALJ where Gray, who was represented by counsel, and an impartial vocational expert testified. R.pp. 36-88. The ALJ issued an unfavorable decision on June 4, 2021. R.pp. 10-35. The Appeals Council denied Gray's request for review, making the ALJ's decision final. R.pp. 2-6. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the exertion required to perform the claimant's past relevant work exceeds his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. DISCUSSION
A. ALJ's findings
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Gray was disabled from the alleged onset date of December 1, 2019. R.pp. 1331. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
2. The claimant has not engaged in substantial gainful activity (SGA) since December 1, 2019, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: tendinitis and rotator cuff tearing of the left shoulder, status-post bilateral medial menisectomies, obesity, post-traumatic stress disorder (PTSD), and adjustment disorder (20 CFR 404.1520(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 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can never climb ladders, ropes, or scaffolds and can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. He can frequently engage in reaching with his bilateral upper extremities. He cannot work outdoors, can tolerate exposure to moderate levels of noise as defined within the DOT, and can tolerate occasional exposure to hazards such as unprotected heights and moving machinery. He remains capable of tasks requiring no more than occasional changes in work setting or duties. He can occasionally interact with supervisors and co-workers, but can never interact with the public as a part of assigned work duties. He will be off-task for 5% of the workday, exclusive of regularly scheduled breaks, and will be absent from work 2 days each month on an unscheduled basis.
6. The claimant has no past relevant work (20 CFR 404.1565).
7. The claimant was born on January 16, 1979 and was 40 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568).
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 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 1, 2019, through the date of this decision (20 CFR404.1520(g)). R.pp. 15-31.
B. Gray's contentions of error
Gray presents two contentions of error. First, Gray argues that the ALJ erred in failing to properly consider the underlying evidence from the Department of Veteran Affairs (VA) and the VA disability rating regarding Gray's mental impairments. ECF No. 13 at 16. Second, Gray argues that the ALJ did not adequately explain limitations contained in the RFC determination. ECF No. 13 at 17-20. For the reasons that follow, the Court finds that none of Gray's arguments warrants remand.
1. The ALJ did not err in considering VA evidence.
Gray argues the ALJ erred “by failing to properly consider the underlying evidence from the [VA] and the VA disability rating related to Gray's mental impairments.” ECF No. 13 at 16. Specifically, Gray points to Bird v. Commissioner, 699 F.3d 337 (4th Cir. 2012), where the Fourth Circuit held that that the Social Security Administration must give substantial weight to a VA rating decision. ECF No. 13 at 16. Gray appears to argue that Bird still controls the issue of ALJs considering VA ratings while simultaneously acknowledging that the regulations at issue in Bird have since been amended. See ECF No. 13 at 16-17. Nevertheless, Gray further argues that the ALJ failed to properly discuss the underlying evidence that the VA relied upon in making its determination, which frustrates meaningful review. ECF No. 13 at 17. The undersigned disagrees.
In Bird, the Fourth Circuit addressed the weight that should be given to VA disability determinations and found as follows:
Thus, we hold that, in making a disability determination, the SSA must give substantial weight to a VA disability rating. However, because the SSA employs its own standards for evaluating a claimant's alleged disability, and because the effective date of coverage for a claimant's disability under the two programs likely
will vary, an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.Bird, 699 F.3d at 343.
However, effective March 27, 2017, numerous social security regulations and social security rulings (SSRs) were amended or superseded, making the new regulations applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017), corrected by 82 Fed.Reg. 15132-01, 2017 WL 1105368 (Mar. 27, 2017). Because Gray's claim for benefits was filed after March 27, 2017, the ALJ was required to evaluate the application under 20 C.F.R. §§ 404.1520c and 416.920c. As Gray appears to acknowledge in his brief, the applicable part of the holding in Bird relies upon the regulations that have now been amended by the SSA (as noted above) and SSR 06-03p, which was rescinded effective March 27, 2017. See Bird, 699 F.3d at 342-43 (citing SSR 06-03p and prior versions of 20 C.F.R. §§ 404.1504, 404.1512(b)(5)).
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Under the current regulations, a decision by another governmental agency (including the VA) is “[e]vidence that is inherently neither valuable nor persuasive” such that an ALJ “will not provide any analysis about how we considered such evidence in our determination or decision, even under [§§ 404.1520c and/or 416.920c].” 20 C.F.R. §§ 404.1520b(c), 416.920b(c). Instead, the applicable regulations provide, in pertinent part:
Other governmental agencies and nongovernmental entities-such as the Department of Veterans Affairs . . .-make disability, blindness, employability, Medicaid, workers' compensation, and other benefits decisions for their own programs using their own rules. Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us
and is not our decision about whether you are disabled or blind under our rules. Therefore, in claims filed [ ] on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in your claim in accordance with [§ 404.1513(a)(1) through (4) and/or 416.913(a)(1) through (4)].20 C.F.R. §§ 404.1504, 416.904 (emphasis added). Additionally, federal regulations elaborate that the “VA and SSA disability programs serve different purposes for populations that overlap[,]” and “[w]hile individuals with a VA rating of 100% ... have a slightly higher allowance rate under [SSA's] programs than members of the general population, nearly one-third are denied benefits based on [SSA's] rules....” 82 Fed.Reg. 5844-01, at 5,849. Thus, “[100% VA disability] ratings alone are neither inherently valuable or persuasive in our disability evaluation because they give us little substantive information to consider.” Id.
Here, the portion of Bird discussing the treatment of VA disability ratings is not applicable to Gray's application for benefits because it was filed after March 27, 2017. See, e.g., Johnson v. Saul, No. CV 6:19-1155-MGL-KFM, 2020 WL 6265092, at *3 (D.S.C. June 3, 2020) (finding that the holding in Bird was inapplicable because the claimant's application was filed after March 27, 2017), report and recommendation adopted, No. CV 6:19-1155-MGL-KFM, 2020 WL 5810523 (D.S.C. Sept. 30, 2020). Thus, to the extent Gray suggests the ALJ was required to analyze or discuss the VA disability decision, the regulations explicitly state otherwise. See 20 C.F.R. § 404.1520b(c) (“Because the evidence listed in paragraphs (c)(1) through (c)(3) of this section is inherently neither valuable nor persuasive to the issue of whether you are disabled or blind under the Act, we will not provide any analysis about how we considered such evidence in our determination or decision, even under § 404.1520c.” (emphasis added)); see also McClellon v. Kijakazi, No. 6:20-CV-3216-SAL, 2021 WL 6133847, at *5 (D.S.C. Dec. 28, 2021) (“Thus, the regulatory changes applicable in cases filed after March 27, 2017, no longer include VA rating decisions as evidence that must explicitly be considered.”).
Gray also argues that the ALJ failed to consider the underlying evidence that the VA relied upon in making its disability determination. ECF No. 13 at 17. Notably, however, Gray does not cite to any VA records or underlying evidence that were allegedly ignored or not considered by the ALJ. See ECF No. 13 at 17. Indeed, at the outset of the ALJ's opinion, the ALJ specifically noted that Gray was awarded VA disability benefits. R.p. 16. The ALJ then proceeded to consider and cite to the VA record evidence throughout the decision. See R.pp.16-29 (citing, inter alia, Exhibits 4F, 6F, 10F, 11F, 14F). The ALJ further noted, in compliance with the current regulations, that he “did not provide any articulation about the evidence that is inherently neither valuable nor persuasive in accordance with 20 CFR 404.1520b(c) and 416.920b(c)” which included “VA disability rating verification forms (Exhibits 6D; 7D; 9D; 10D)” R.p. 29. Accordingly, review of the ALJ's decision shows that the ALJ considered the evidence underlying the VA's decision, which is all that the regulations require. See Rogers v. Comm 'r of Soc. Sec., No. 3:20-CV-00206-RJC-DSC, 2022 WL 135310, at *4 (W.D. N.C. Jan. 13, 2022) (“All that is required under the revised rules is that the ALJ considers all supporting evidence underlying another agency's disability decision. The ALJ did that here, and there is no error.” (citing 20 C.F.R. § 404.1504)). Accordingly, remand on this basis is not warranted.
2. The ALJ's RFC determination is supported by substantial evidence.
Gray argues that the ALJ's RFC determination is not supported by substantial evidence. Specifically, he argues that the ALJ failed to make adequate findings related to Gray's migraines and failed to indicate why Gray's RFC did not account for supported limitations resulting from his migraines. ECF No. 13 at 19. He argues that the ALJ failed to include “any limitations in Gray's RFC that could be attributed to his migraine headaches” and generally argues that the ALJ failed to explain how he arrived at some of his RFC findings. ECF No. 13 at 19-20. The undersigned disagrees.
A claimant's RFC, which represents “the most [he] can still do despite [his] 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). As a result, 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). 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.
In evaluating an RFC, an ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [his] ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)). “[A]n ALJ's RFC assessment must include an evaluation of the claimant's ability to perform the physical functions listed in 20 C.F.R. §[§ 404.1545(b),] 416.945(b).” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (citing SSR 96-8p, 1996 WL 374184, at *1). “‘Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work' of which he believes the claimant to be capable.” Id. (quoting Monroe, 826 F.3d at 179). Moreover, 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. Id. (quoting Thomas, 916 F.3d at 311) (alteration in original).
These physical functions are “sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions [that] may reduce [a claimant's] ability to do past work and other work.” 20 C.F.R. §§ 404.1545(b), 416.945(b).
Consequently, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311. The ALJ's logical explanation is just as important as the ALJ's discussion of evidence and his conclusion. Id. Thus, in conducting an RFC analysis, an ALJ must identify both the evidence that backs his conclusion, and “build an accurate and logical bridge from [that] evidence to his conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (alteration in original) (quoting Monroe, 826 F.3d at 189).
Here, contrary to what Gray appears to suggest, the ALJ specifically evaluated the evidence relating to Gray's migraine headaches throughout the decision. R.pp. 16, 18, 26, 27. The ALJ noted that Gray's migraines were a chief issue among his non-severe impairments, but that Gray received little treatment for migraines, and the images of Gray's head were within normal limits. R.p. 16 (citing R.p. 1054). The ALJ found that the medical record did not support the severity or frequency of the migraines that Gray alleged. R.p. 16 (citing R.pp. 991, 1001 (“migraine: controlled on current regimen”), 1080 (“Reports migraines are stable on Magnesium”), 1106-07, 1155 (noting migraines listed as a basis for service-connected disability), 1157). The ALJ noted that, at the TBI clinic, Gray complained of remote head injuries while deployed, memory loss, and headaches, but cognition and mental status examinations were normal. R.p. 16 (citing R.pp. 1157-60). The ALJ also noted that in December 2020, Gray reported that he was having nightmares and migraines, increased anger, and had his medications adjusted, but further noted that Gray began “to complain of memory loss and migraines due to a TBI, but there [were] no real complaints of this before that.” R.p. 18.
Ultimately, the ALJ determined that Gray could perform light work with various restrictions. R.p. 23. In discussing the evidence and how he came to his RFC determination, the ALJ explained, in pertinent part:
Physically, the claimant looks capable of a reduced range of light work based upon the objective images, treatment modalities, and physical exams.... Although migraines are chief among his non-severe impairments, there is little treatment for these, and images of the claimant's head remain within normal limits (Exhibit 9F/12). The record does not support the severity or frequency of the migraines that he alleges (Exhibit 6F/11, 21; 10F/10; 11F/9-10;14F/13, 15). At the TBI clinic, he complains of remote head injuries while deployed, memory loss and headaches (Exhibit 14F/15), but cognition is normal and he has normal mental status examinations (Exhibit 14F/18). Even so, I find that he cannot work outdoors, due to complaints regarding migraines and tinnitus, as well as allergic rhinitis (Exhibits 4F). I also found it prudent to provide hazards restrictions to deal with his recent complaints of vertigo, and noise restrictions to deal with his complaints of headaches, noting that even though he complains of vertigo and memory loss, he only went to the ER for vertigo in October of 2020, and there is no recent care (Exhibit 14F/26). Further, at the TBI clinic, he complains of remote head injuries while deployed, memory loss and headaches (Exhibit 14F/15), but cognition is normal and he has normal mental status examinations (Exhibit 14F/18). With all his conditions considered, I find that he will be off-task for 5% of the workday, exclusive of regularly scheduled breaks, and will be absent from work 2 days each month on an unscheduled basis.R.p. 27 (emphasis added).
Upon review, the undersigned is able to follow the ALJ's reasoning and substantial evidence supports his conclusions. See Woods, 888 F.3d at 694 (noting in conducting an RFC analysis, an ALJ must identify both the evidence that backs his conclusion, and “build an accurate and logical bridge from [that] evidence to his conclusion” (alteration in original) (quoting Monroe, 826 F.3d at 189)). Contrary to Gray's contentions, the ALJ addressed his migraine headaches throughout the decision and specifically accounted for them in the RFC as highlighted above. See Smith v. Colvin, No. 6:15-CV-1750-PMD-KFM, 2016 WL 2619474, at *3 (D.S.C. May 9, 2016) (“[T]he ALJ's decision shows he carefully considered all the evidence in the record and, where appropriate, even made findings that favored [the claimant].”). The ALJ reviewed Gray's subjective allegations and the medical evidence from the record, including Gray's treatment records and the medical opinion evidence, and used those to formulate the RFC. R.pp. 23-29; see also R.pp. 16-23. Thus, the ALJ's RFC determination passes the “not high” bar of substantial evidence review. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
Nevertheless, Gray presents various contentions of error. First, Gray points to evidence in the record that he argues supports the severity and frequency of migraines that he alleges. See ECF No. 13 at 19-20. To the extent Gray argues other evidence in the record supports his position, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“We must sustain the ALJ's decision, even if we disagree with it, provided the determination is supported by substantial evidence . . . [t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). Moreover, much of the evidence cited by Gray was also cited in the ALJ's opinion. Compare R.pp. 16-29 with ECF No. 13 at 19-20. Thus, in essence, Gray asks the Court to accept his characterization of the evidence over the ALJ's and read the evidence differently. That is not the role of this Court. See Hancock, 667 F.3d at 472 (noting a reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ); Walls, 296 F.3d at 290 (noting judicial review is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied). Gray merely presents a disagreement with the ALJ's RFC determination and fails to show error.
To the extent the ALJ did not fully recount the evidence as Gray may have preferred or failed to mention evidence, the mere omission of some evidence does not require remand. See Reid v. Comm 'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” (quotation marks and citation omitted)); Russell v. Chater, 60 F.3d 824, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished) (rejecting an argument that the ALJ's analysis was insufficiently specific and noting Fourth Circuit precedent “does not establish an inflexible rule requiring an exhaustive point-by-point discussion in all cases”); see also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (“[A]n ALJ is not required to discuss all the evidence submitted, and an ALJ's failure to cite specific evidence does not indicate that it was not considered.” (citation omitted)).
Second, Gray also suggests the ALJ erred in finding his migraines were non-severe impairments. The undersigned disagrees for two reasons. First, Gray fails to explain how the outcome of his case would have been different had his migraines been deemed severe at step two. See Robinson v. Colvin, No. 4:13-CV-00823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (“However, Plaintiff must show that any alleged error in finding Plaintiff's depression to be non-severe harmed her.”). Second, the ALJ clearly considered Gray's migraines while determining his RFC, as this is plainly illustrated in the cited portion of the ALJ's decision above. Thus, even if the ALJ erred in finding Gray's migraines non-severe, such error was harmless. See Cumbee v. Kijakazi, No. CV 5:20-3826-KDW, 2022 WL 1591055, at *7 (D.S.C. May 19, 2022) (“In other words, as long as the ALJ determines that the claimant has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific impairment as severe at step two is harmless.” (citation and internal quotation mark omitted)); Collier v. Colvin, No. 9:13-cv-3323-DCN, 2015 WL 1519796, at *7 n.3 (D.S.C. Mar. 30, 2015) (“To the extent [claimant] argues that the ALJ erred in finding her [impairment] non-severe at step two, such an error is harmless because the ALJ considered the [impairment] in subsequent steps.”).
Finally, Gray also appears to argue that the ALJ erred in relying on Gray's normal brain imaging when assessing his migraines, arguing that although SSR 19-4 provides that imaging may be useful in ruling out possible causes of headache symptoms, such imaging “is not required for a primary headache disorder diagnosis.” ECF No. 13 at 20. SSR 19-4p provides guidance on how to evaluate primary headache disorders, such as migraines, in disability claims. See SSR 19-4p, 2019 WL 4169635, at *2 (S.S.A. Aug. 26, 2019). The ruling notes that regulations require medically determinable impairments be established by objective medical evidence from an acceptable medical source; “a person's statement of symptoms, a diagnosis, or a medical opinion” will not be used to establish the existence of a medically determinable impairment; and a finding of disability will not be made “based on a person's statement of symptoms alone.” Id. The ruling indicates that a primary headache disorder is established as a medically determinable impairment “by considering objective medical evidence (signs, laboratory findings, or both)” from an acceptable medical source. Id. at *5. The ruling also notes that ALJs will consider “the extent to which the person's impairment-related symptoms are consistent with the evidence of record” and that “[consistency and supportability between reported symptoms and objective medical evidence is key in assessing the RFC.” Id. at *8.
Here, it is unclear whether Gray is arguing he satisfied the criteria for a primary headache disorder diagnosis under SSR 19-4, or whether he is merely taking issue with the ALJ using a normal brain imaging scan as a way to discount his migraines. In any event, the ALJ merely considering objective evidence in the form of a normal CT scan while assessing Gray's migraines does not present an error where, as here, the ALJ also considered other evidence when considering the severity of Gray's migraines. See Cumbee, No. CV 5:20-3826-KDW, 2022 WL 1591055, at *9 (finding the ALJ did not run afoul of SSR 19-4p in considering objective evidence of a CT scan in assessing the claimant's headaches where the ALJ also relied on other evidence in determining that the headaches were non-severe); Ruehl v. Kijakazi, No. 2:20-CV-03846-DCN-MGB, 2021 WL 4046432, at *7 (D.S.C. Aug. 6, 2021) (observing that “courts in this circuit have repeatedly found no error where the ALJ relied in part on normal diagnostic and exam findings to discount the severity of a claimant's headaches” (collecting cases)), report and recommendation adopted, No. 2:20-CV-3846 DCN, 2021 WL 4037481 (D.S.C. Sept. 3, 2021). Thus, the undersigned finds that Gray has failed to show error warranting remand.
As a result, the undersigned declines to address whether the ALJ erred in failing to evaluate Gray's migraines pursuant to SSR 19-4p. Gray has not argued with sufficient specificity that he had a primary headache disorder that would equal Listing 11.02. See SSR 19-4p, 2019 WL 4169635, at *6-7 (providing criteria for establishing a primary headache disorder as a severe impairment and for evaluating it under the listings).
In sum, and in contrast to what Gray suggests, the ALJ summarized and reasonably considered the record evidence relating to his migraine headaches-Gray just disagrees with the ALJ's ultimate conclusion. That is not a valid reason for remand. Because the ALJ's decision was supported by substantial evidence, remand is not warranted. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
IV. CONCLUSION
It is recommended that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).