Opinion
2:22-CV-45-FL
01-11-2024
KATE LINDSEY, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' briefs filed pursuant to the Supplemental Rules for Social Security Actions. [DE-12, -14], Claimant Kate Lindsey (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on June 21, 2017, alleging disability beginning May 21,2013, later amended to March 30, 2018. (R. 185-91, 196-97). The claim was denied initially and upon reconsideration. (R. 76-111). A video hearing before an Administrative Law Judge (“ALJ”) was held on August 28, 2019, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 36-75). On October 1, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 10-34).
On June 3, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant sought review of the Commissioner's final decision in this court, and on May 28, 2021, the court granted the Commissioner's consent motion to remand the case for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Lindsey v. Saul, No. 2:20-CV-50-KS [DE-23].
The Appeals Council remanded the case to an ALJ to resolve issues regarding evaluation of the state agency medical and psychological consultants' opinions, determination of the residual functional capacity, and clarification of the term “production rate pace.” (R. 689-91). The ALJ held a telephonic hearing on December 13, 2021, at which Claimant, represented by counsel, and a VE appeared and testified. (R. 615-41). On January 14,2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 589-614). On August 31, 2022, the Appeals Council denied Claimant's request for review. (R. 582-88). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200,1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred by (1) failing to resolve vocational conflicts in the evidence, (2) failing to adopt a limit on the type of instructions Claimant can carry out, and (3) improperly rejecting Dr. Loma-Miller's opinion. Pl.'s Br. [DE-12] at 12-25.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant did not engage in substantial gainful activity from the alleged onset date of March 30, 2018 through the date last insured of December 31, 2018. (R. 594). Next, the ALJ determined Claimant had the severe impairments of multiple sclerosis, fibromyalgia, carpal tunnel syndrome, obesity, anxiety, depression, and neurocognitive disorder, as well as the non-severe impairments of asthma, polycystic ovarian syndrome, irritable bowel syndrome, chronic obstructive pulmonary disease, restless leg syndrome, allergic rhinitis, recurrent staph skin infection, and organic recurrent isolated sleep paralysis. (R. 594-95). The ALJ found Claimant's narcolepsy with cataplexy and rheumatoid arthritis were not medically determinable impairments. (R. 595-96). At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 596-97). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 605).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform sedentary work with the following additional limitations:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. “Sitting” generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
occasional climbing ramps or stairs; no climbing ladders, ropes, or scaffolds; and frequent handling and fingering bilaterally. She cannot be exposed to unprotected heights and she requires the flexibility to use a cane for walking. The claimant is also capable of performing simple, routine, and repetitive tasks and she can sustain attention and concentration sufficient enough to perform those simple, routine, and repetitive tasks in an eight-hour workday. She is able to work in a low stress setting, which is defined to mean no production rate work and only simple work-related decisions with few or no changes in the work setting. Production rate work is defined to mean no assembly line work. She can have frequent interactions with supervisors and coworkers and she can have occasional interactions with the public.(R. 598-608). In making this assessment, the ALJ found Claimant's statements regarding her condition were no more than partially consistent with the available medical evidence. (R. 605). At step four, the ALJ concluded Claimant was unable to perform her past relevant work as an office manager, business planner/inventory manager, or front desk clerk. (R. 608-09). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 609-10).
V. DISCUSSION
A. Apparent Conflicts in the VE's Testimony
Claimant contends the ALJ's decision at step five was not supported by substantial evidence because (1) the VE identified three jobs, surveillance system monitor, call-out operator, and dowel inspector, that do not exist in significant numbers in the national economy; and (2) there was an apparent conflict between the RFC's limitation to simple, routine, and repetitive tasks and the jobs identified by the VE of document preparer, surveillance system monitor, and call-out operator, which require reasoning level 3. Pl.'s Br. [DE-12] at 12-18. The Commissioner contends any error with respect to the jobs identified by Claimant was ultimately harmless because the ALJ also relied on the job of type-copy examiner with which Claimant does not take issue. Def's Br. [DE-14] at 7-12.
The ALJ may utilize a VE at steps four and five “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be “relevant or helpful,” it must be given in response to a proper hypothetical question. Id. A proper hypothetical question “fairly set[s] out all of claimant's impairments” that are supported by the record. Id.; Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question “adequately contemplated all of [claimant's] impairments and resulting limitations” as evidenced by the record).
Pursuant to SSR 00-4p, the ALJ must “inquire, on the record, . . . whether the vocational expert's testimony conflict[s] with the [DOT], and [the Ruling] also requires that the ALJ elicit a reasonable explanation for and resolve conflicts between the expert's testimony and the [DOT].” Pearson v. Colvin, 810 F.3d 204, 207-08 (4th Cir. 2015) (internal quotation marks omitted) (citing S.S.R. 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). However, not “all possible conflicts must be identified and resolved,” but rather only “apparent conflicts,” i.e., “where the expert's testimony seems to, but does not necessarily, conflict with the [DOT].” Id. at 209. The ALJ must elicit from the VE “a reasonable explanation for the apparent conflict,” S.S.R. 00-4p, at *4, and the ALJ has not fulfilled his duty to fully develop the record if it “contains an unresolved conflict between the expert's testimony and the [DOT]” or if the ALJ “ignores an apparent conflict because the expert testified that no conflict existed,” Pearson, 810 F.3d at 210. “An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT].” Id. at 209-10.
Based on the VE's testimony, the ALJ found three representative jobs that Claimant could perform given her age, education, work experience, and RFC: inspector (DOT No. 669.687-014); type-copy examiner (DOT No. 979.687-026); and document preparer (DOT No. 249.587-018). (R. 609-10, 637, 639). While the jobs of surveillance system monitor and call-out operator were discussed at the administrative hearing, (R. 638), the ALJ ultimately did not rely on those jobs at step five, (R. 609-10). Accordingly, Claimant's arguments as to the appropriateness of those jobs are irrelevant to whether the ALJ's decision at step five was supported by substantial evidence.
Claimant also alleges errors in the ALJ's reliance on the jobs of inspector and document preparer. However, even assuming Claimant is correct and the ALJ erred in relying of the jobs of inspector and document preparer, the job of type-copy examiner (DOT No. 979.687-026) relied on by the ALJ constitutes evidence sufficient to uphold the ALJ's step five determination.
The Dictionary of Occupational Titles classifies the job of type-copy examiner as sedentary work that requires reasoning level 2 and frequent handling and fingering. See Type-copy Examiner, DICOT 979.687-026. These requirements are consistent with the ALJ's RFC findings that Claimant can perform a reduced range of sedentary work, frequent handling and fingering, and simple, routine, repetitive tasks. (R. 598). And the VE testified that 75,000 type-copy examining jobs exist in the national economy. (R. 637). Claimant takes no issue with the ALJ's reliance on the type-copy examiner job, and the court finds it constituted substantial evidence at step five that there is work that existed in substantial numbers in the national economy that Claimant could perform. See Greene v. Kijakazi, No. 5:21-CV-516-FL, 2023 WL 2639295, at *13 (E.D. N.C. Mar. 1, 2023) (finding harmless any error in failing to resolve an apparent conflict with respect to three jobs identified by the ALJ at step five, where a fourth job of housekeeper, with 133,000 such jobs available in the national economy, presented no apparent conflict and would be sufficient, standing alone, to uphold the disability determination) (citing Dixon v. Saul, No. 4:20-CV-53-FL, 2021 WL 826776, at *11 (E.D. N.C. Jan. 26, 2021) (finding 5,600 jobs in the national economy sufficient); Spruill v. Astrue, No. 4:10-CV-OO178-FL, 2011 WL 5325590, at *8 (E.D. N.C. Oct. 13, 2011) (finding 3,259 positions available in the national economy sufficient); Hodges v. Apfel, No. 992265, 203 F.3d 820, 2000 WL 121251, at *1 (4th Cir. Jan. 28, 2000) (finding as few as 153 jobs available in the region sufficient); Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979) (finding as few as 110 jobs available in the region sufficient)), adopted by, 2023 WL 2637377 (E.D. N.C. Mar. 24, 2023); Hardy v. Astrue, No. 5:10-CV-293-FL, 2011 WL 2899148, at *11 (E.D. N.C. June 27, 2011) (holding harmless error where the ALJ appropriately relied upon the VE's testimony to identify certain jobs that Claimant could perform irrespective of the VE's testimony regarding another job that conflicted with the DOT) (citing Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming denial of benefits where the ALJ erred in evaluating a claimant's pain because “he would have reached the same result notwithstanding his initial error”)), adopted by, 2011 WL 2881544 (E.D. N.C. July 18, 2011). Accordingly, any error committed by the ALJ at step five was harmless.
B. RFC and the Opinion Evidence
Claimant contends that in evaluating Claimant's RFC the ALJ erred in failing to adopt a limit in the state agency psychological reviewer's opinion on the type of instructions Claimant can carry out and in rejecting the opinion of Claimant's treating neurologist. Pl.'s Br. [DE-12] at 1825. The Commissioner contends the ALJ properly analyzed the opinion evidence in formulating the RFC. Def.'s Br. [DE-14] at 18-21.
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Because Claimant protectively filed her application after March 27, 2017, 20 C.F.R. § 404.1520c governed how the ALJ considered the medical opinions in this case. The applicable regulation provides that the ALJ “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 [Claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s)... the more persuasive the medical opinions or prior administrative medical finding(s) will be”; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that “a medical source who has received advanced education and training to become a specialist may be more persuasive”; and (5) other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5). The most important factors are supportability and consistency. Id. § 404.1520c(a).
1. Dr. Fox's Opinion
The state psychological reviewer, Dr. Fox, opined in relevant part that Claimant was “capable of understating and retaining at least simple instructions.” (R. 87, 607). The ALJ generally found Dr. Fox's opinion to be “somewhat vague at times” but “overall supported by [his] explanation and an analysis” of the evidence available at the time and consistent with the overall evidence of record. (R. 607). The ALJ specifically took issue with the vague nature of the stress-related limitations imposed by the state agency reviewers and found a limitation to “making only simple work-related decisions with few or no changes in the work setting” to better accommodate Claimant's allegations related to stress and anxiety. Id.
Claimant contends the ALJ erred by not adopting in the RFC the limitation to simple instructions and that the error was harmful because a limitation to simple instructions would create an apparent conflict with reasoning level three jobs, including the document preparer, surveillance system monitor, and call-out operator jobs identified by the VE. Pl.'s Br. [DE-12] at 18-20. As explained above, the jobs of surveillance system monitor and call-out operator were discussed at the administrative hearing, (R. 638), but the ALJ ultimately did not rely on those jobs at step five, (R. 609-10). The job of type-copy examiner (DOT No. 979.687-026) relied on by the ALJ is classified in the DOT as reasoning level 2, which requires the individual to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions” and “[d]eal with problems involving a few concrete variables in or from standardized situations.” DICOT, App. C, 1991 WL 688702. In Lawrence v. Saul, the Fourth Circuit explained that “detailed instructions are, in the main, less correlated with complexity than with length.” 941 F.3d 140, 143 (4th Cir. 2019). The court found “no conflict between ‘simple' and ‘uninvolved' instructions, as both connote instructions that ‘are not complicated or intricate.'” Id. (quoting Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010)). Therefore, even if the ALJ had imposed a limitation to simple instructions, it would not create an apparent conflict with the type-copy examiner job's reasoning level 2 requirement “to carry out detailed but uninvolved written or oral instructions.” Accordingly, any error by the ALJ in this regard was harmless as it would not affect the ultimate finding at step five.
Claimant also contends that the ALJ should have imposed in the RFC a limit related to maintaining regular attendance based on the opinion of the state agency reviewers that Claimant had “moderate” impairment in her ability to maintain regular attendance or to complete a normal workday or week, (R. 87, 107). Pl.'s Br. [DE-12] at 20. While both Dr. Fox and Dr. Sayers found Claimant was moderately limited in these areas, they also concluded that despite the limitation she could still sufficiently complete simple, non-production pace tasks. (R. 87-88, 107). The ALJ included in the RFC limitations to simple tasks, a low-stress setting (i.e., no production rate/assembly line work and only simple work-related decisions with few or no changes in the work setting), and only frequent interactions with supervisors and coworkers and occasional interactions with the public. (R. 598). These limitations, in light of Dr. Fox's and Dr. Sayers' opinions, are sufficient to account for Claimant's moderate limitation in her ability to maintain regular attendance or to complete a normal workday or week. See Alexander v. Berryhill, No. 5:17-CV-362-D, 2018 WL 3433292, at *5 (E.D. N.C. June 18,2018) (finding the AL J appropriately accounted for Claimant's moderate limitation in the ability to perform activities within a schedule, maintain regular attendance, and be punctual by imposing limitations on work complexity, work pace, and social interactions), adopted by, 2018 WL 3430675 (E.D. N.C. July 16, 2018).
2. Dr. Loma-Miller's Opinion
Claimant's treating neurologist, Dr. Loma-Miller, provided a medical source statement on a check-the-box form dated March 30, 2018, in which she opined that Claimant suffered from multiple sclerosis; she experienced multiple symptoms, including but not limited to severe fatigue, balance and gait problems, weakness, chronic pain, memory loss, and communication difficulties; she can rarely lift or carry 10 pounds and never more; she can sit for less than two hours and stand/walk for less than two hours in a workday; and she would be absent from work more than four days a month. (R. 526).
The ALJ found Dr. Loma-Miller's opinion unpersuasive, explaining as follows:
She outlines a variety of extreme limitations on a checkbox form provided by the claimant's representative, including suggestions that the claimant could rarely lift less than ten pounds; could not lift ten to fifty pounds; and could only sit, stand, or walk for less than two hours in an eight-hour workday. She lastly suggests that the claimant would be absent from work at least four days a month (Exhibit 9F). Though she checks a variety of symptoms, she provides extreme limitations without any narrative or citation to objective clinical findings. Furthermore, her opinion is not supported by her treatment notes, which suggest that the claimant ambulated without the use of an assistive device until November 2018. Her opinion is also not supported by her repeated notes of the claimant's normal balance, normal muscle bulk and tone, normal deep tendon reflexes, generally intact sensation, and generally intact strength during physical examination. Her opinion is lastly not consistent with repeat imaging revealing stable brain findings and sleep medicine notes revealing the claimant's normal motor strength despite evidence of a spastic or antalgic gait (Exhibit 4F, 6F, 1 IF).(R. 607-08). Claimant contends the ALJ provided an insufficient rationale and selectively cited the record when rejecting Dr. Loma-Miller's opinion. Pl.'s Br. [DE-12] at 22.
Claimant first points to a March 18, 2019 MRI that revealed four brain lesions with white matter on the brain and earlier MRIs from February 1, 2017 and March 3, 2018 that showed only two lesions with white matter as evidence that Claimant's multiple sclerosis was worsening. (R. 536-39). However, the March 18, 2019 MRI report states, “There is no change in the number of lesions or their orientation/size,” and “[n]o interval change involving the mild supratentorial white matter disease including a lesion involving the left periatrial white matter.” (R. 536-37, 601). Thus, the ALJ's finding that imaging revealed stable brain findings is supported by the record.
Claimant next points to examination findings during the period from March 2018 to March 2019, revealing abnormal gait and stance, spastic and antalgic gait, abnormal multiple skin lesions in the upper and lower extremities, use of a cane for ambulation, abnormal heel and toe walking, abnormal tandem gait, decreased sensation (vibration) in the lower extremities bilaterally, and decreased lower extremity strength against resistance. (R. 544-45, 551-52, 557, 563). However, as the ALJ noted, when Claimant saw Dr. Loma-Miller in March 2019, her clinical condition remained the same on physical examination, her lower extremity weakness had improved compared to her prior visit, and her difficulty walking was improved with the use of a cane. (R. 542, 545, 601). The ALJ also acknowledged there was evidence of gait spasticity or antalgia and, as a result, limited the RFC to sedentary work with the flexibility to use her cane for walking. (R. 601). The ALJ correctly observed that Dr. Loma-Miller's treatment notes repeatedly reflected Claimant had normal balance, muscle bulk and tone, and deep tendon reflexes. (R. 545, 552, 563, 607).
As for the ALJ's finding that Claimant had “generally intact” sensation and strength, the treatment notes indicate that there were mostly normal findings in these areas: in motor strength she demonstrated lower extremity weakness (although it did improve over the period at issue) but normal strength in the upper extremities and normal muscle and tone, and as for sensation she had decreased response to stimulation by vibration in the lower extremities, but no decreased response to pain or temperature stimulation and normal proprioception. Id. Furthermore, the ALJ did not ignore these positive findings but expressly considered them in the decision. (R. 600) (noting “reduced vibratory sensation in the lower extremities” and “displayed some lower extremity weakness against resistance during physical examination, but did not use an assistive device and ambulated without a limp. Furthermore, her upper extremity strength remained intact and her neurologist did not note any other significant changes compared to her previous visit, as she continued to display normal balance, normal deep tendon reflexes, and normal muscle bulk and tone.”). Accordingly, the ALJ did not ignore the evidence cited by Claimant in evaluating Dr. Loma-Miller's opinion, and it is not this court's role to re-weigh the evidence. See Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (citation omitted) (“[I]n reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.”).
Finally, Claimant contends the ALJ erred in not discussing each of the factors set forth in § 404.1520c-supportability, consistency, relationship with the claimant, specialization, and any other factors tending to support or contradict a medical opinion. Pl.'s Br. [DE-12] at 23-25. However, because Claimant filed her application after March 27, 2017, while the ALJ is required to consider the five factors, as appropriate, the regulations no longer require the ALJ to articulate how every factor was considered. 20 C.F.R. § 404.1520c(a), (b)(2). The ALJ is only required to explain how the factors of supportability and consistence were considered. Id. § 404.1520c(b)(2) (“[W]e will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision. We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions . . . .”). Claimant acknowledges that the cases she relies on to the contrary, Arakas and Dowling, considered claims filed before March 17, 2017, and were decided under a now rescinded regulation. See 983 F.3d 83 (4th Cir. 2020); 986 F.3d 377 (4th Cir. 2021). Furthermore, as for the treatment relationship and Dr. Loma-Miller's specialty, while the ALJ did not have to discuss these factors in evaluating Dr. Loma-Miller's opinion, it is apparent the ALJ did in fact consider that Dr. Loma-Miller was Claimant's treating neurologist for several years because the ALJ specifically discussed Dr. Loma-Miller's treatment records from 2016-2019 in detail, cited them in evaluating Dr. Loma-Miller's opinion, and acknowledged that Dr. Loma-Miller was a neurologist. (R. 599601,607-08).
Claimant does not argue that the ALJ failed to discuss the required factors of supportability and consistency. The ALJ explained that Dr. Loma-Miller cited to no objective medical evidence and provided no explanations to support her opinion, and the opinion was largely inconsistent with her treatment notes and imaging indicating stable brain findings. (R. 607-08). Thus, the ALJ did what was required in evaluating Dr. Loma-Miller's opinion. See Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (“An AL J's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion.”) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). Accordingly, the ALJ did not err in evaluating Dr. Loma-Miller's opinion.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the final decision of the Commissioner be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 25, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).