Opinion
2:20-CV-64-D
02-08-2022
TIMOTHY BURKE MORRILL, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge.
This matter is before the court on the parties' cross-motions for judgment on the pleadings PE-22, -24] pursuant to Fed.R.Civ.P. 12(c). Claimant Timothy Burke Morrill ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB and for SSI on February 13, 2018, alleging disability beginning January 1, 2017. (R. 10, 212-24). Both claims were denied initially and upon reconsideration. (R. 10, 64-115). A hearing before the Administrative Law Judge ("ALJ") was held on August 20, 2019, at which Claimant, represented 1 by counsel; a witness; and a vocational expert ("VE") appeared and testified. (R. 10, 32-63). On September 26, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 7-26). On July 14, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffinan 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). 2
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 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475n.2(4thCir. 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) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(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), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in (1) weighing Dr. Blackburn's opinions found in a medical source statement, (2) finding Claimant was capable of performing work at a modified light exertion level, (3) improperly assessing Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms, and (4) failing to accurately set forth all of 3 Claimant's limitations in the hypothetical to the VE. PL's Mem. [DE-23] at 23-30.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since January 1, 2017, the alleged onset date. (R. 12). Next, the ALJ determined Claimant had the severe impairment of degenerative disc disease, status post two laminectomies and fusion, and the nonsevere impairment of hypertension. (R. 12-13). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 13).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
the claimant can occasionally use the left lower extremity to operate foot controls; he can occasionally climb ramps and stairs, but he can never climb ladders, ropes, and scaffolds; he can occasionally stoop; the claimant can never be exposed to unprotected heights; and he requires the flexibility to use a cane for walking.(R. 13-19). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence of record. (R. 22).
At step four, the ALJ concluded Claimant was unable to perform his past relevant work as a chef. (R. 19). 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 4 employment opportunities that exist in significant numbers in the national economy. (R. 19-20).
V. DISCUSSION
A. The RFC Assessment
Claimant contends the ALJ erred in formulating his RFC by failing to properly analyze medical opinions, failing to properly analyze Claimant's statements regarding his subjective symptoms, and finding Claimant was capable of performing a reduced range of light work. PL's Mem. [DE-23] at 23-30.
1. Dr. Blackburn's Medical Source Statement
Claimant contends the ALJ erred in failing to accord great weight to opinions found in the medical source statement of Dr. Warren Blackburn, Claimant's primary care physician. PL's Mem. [DE-23] at 23-24.
As an initial matter, the regulation upon which Claimant relies, 20 C.F.R. § 404.1527(d)(2), is not applicable to his claim. Because Claimant protectively filed his application on February 13, 2018, 20 C.F.R. §§ 404.1520c and 416.920c, which apply to claims filed on or after March 27, 2017, governed how the ALJ considered the medical opinions in Claimant's case. Claimant argues that the court should apply the prior "treating physician rule" because the Agency does not have the power to engage in retroactive rule making. PL's Mem. [DE-23] at 15 n. 11. Claimant is correct that the new rule did not have retroactive effect, but the ALJ did not apply the rule retroactively. Claimant filed his claim after the new rule was already in effect, and accordingly the new rule governs his claim. See, e.g., Oakes v. Kijakazi, No. 5:20-CV-00542-RN, 2021 WL 6196243, at *3 n.2 (E.D. N.C. Oct. 25, 2021) (finding 20 C.F.R. § 404.1520c governed how the ALJ considered the medical opinions a case where the plaintiff filed his application after March 2017); Denise N. v. Saul, No. 4:19-CV-121, 2020 WL 6750813, at *9 (E.D. Va. Oct. 26, 2020) (applying the rule in 5 effect at the time the claim was filed), report and recommendation adopted, 2020 WL 6750350 (E.D. Va. Nov. 17, 2020). Accordingly, the court will review the ALJ's consideration of Dr. Blackburn's opinion under 20 C.F.R. §§ 404.1520c and 416.920c.
The applicable regulations provide 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), 416.920c(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), 416.920c(c)(1)-(5). The most important factors are supportability and consistency. Id. §§404.1520c(a), 416.920c(a).
The regulations also require the ALJ to "articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the] case record." Id. §§404.1520c(b), 416.920c(b). However, when a medical source provides multiple opinions, the ALJ may use a single analysis to evaluate all the opinions from a 6 single source, and the AL J is "not required to articulate how [she] considered each medical opinion or prior administrative medical finding from one medical source individually." Id.
Dr. Blackburn completed a form medical source statement on June 26, 2019. (R. 1000-07). He noted Claimant's diagnosis of lumbar radicular pain with symptoms including pain, numbness, and decreased ambulation, characterizing the pain as severe, sharp, and radiating from the lower back to the left leg. (R. 1000). Dr. Blackburn identified objective signs to include sensory changes in the left leg, impaired sleep, abnormal posture, tenderness, muscle weakness in the left leg, abnormal gait, and a positive straight leg raising test. Id. He found Claimant's pain frequently interfered with his attention and concentration, Claimant was severely limited in his ability to deal with work stress, and Claimant's medications caused drowsiness and irritability. (R. 1001). Dr. Blackburn opined that Claimant could perform the following activities during an eight-hour workday: sit for fifteen minutes before needing to walk for fifteen minutes, stand or walk for fifteen minutes before needing to lie down or recline for fifteen minutes, stand or walk for no more than one hour total in a workday, lift or carry up to ten pounds occasionally, never lift or carry more than ten pounds, and never balance or stoop. (R 1001-04). Dr. Blackburn also opined that Claimant needed to lie down or recline for six hours a day due to pain, required a cane for walking and standing on all surfaces, and would be absent from work more than three times a month. (R. 1003, 1005-06).
The ALJ accurately summarized Dr. Blackburn's opinion from the medical source statement and found it to be "not persuasive, as it is not consistent or supported by the objective evidence. The medical evidence shows generally unremarkable physical examinations, including full range of motion, negative straight leg raises, and normal diagnostic imaging, as noted in Exhibits 1 IF and 15F." (R. 18). 7
First, Claimant's argument that the ALJ erred in failing to accord "great weight" to the opinion of Dr. Blackburn lacks merit, because the ALJ was not required to give any specific evidentiary weight to any medical opinion. 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
Claimant also argues that the AL J's decision to disregard Dr. Blackburn's opinion regarding Claimant's functional limitations is not supported by substantial evidence. PL's Mem. [DE-23] at 24. In support, Claimant cites his diagnosis of a lumbar herniated disc that caused chronic low back and left leg radicular pain, weakness, numbness and tingling; the ALJ's rinding that his lumbar impairment was severe; two surgeries that did not relieve his chronic pain, leading to the planned surgical implantation of a spinal cord stimulator; and Dr. Blackburn's medical source statement. Id. Claimant points out that Dr. Blackburn is his primary care physician, who treated him on at least thirteen occasions from April 2017 through June 26, 2019, provided post-operative care and some pain management, and communicated with the specialists who also provided medical care and treatment, and that Dr. Blackburn's medical source statement placed Claimant at a less than sedentary exertional level. Id.
The ALJ acknowledged that Claimant had been diagnosed with degenerative disc disease, status post two laminectomies and fusion, which is a severe impairment. (R. 14). However, the mere diagnosis of a condition is not enough to prove disability without "a showing of related functional loss." Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Likewise, the fact that an impairment is found to be "severe" at step two does not mean it is disabling. The "severity standard is a slight one." Stemple v. Astrue, 475 F.Supp.2d 527, 536 (D. Md. 2007); see also McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (describing the burden of proving the severity of an impairment as "mild" and stating "only claims based on the most trivial impairments" are rejected). Therefore, the fact that Claimant had a back impairment that the ALJ found to be severe does not 8 alone undermine the ALJ's evaluation of Dr. Blackburn's opinion.
Next, the ALJ fully considered Claimant's course of treatment for his back impairment, including the two surgeries, and the plan for a spinal cord stimulator. (R. 15-18). Claimant injured his back in February 2017, conservative treatment failed, and he underwent an L3-L4 discectomy in March 2017 that did not improve his pain. (R. 15, 313-41, 357-64, 428-29, 432-33, 472-86). Claimant underwent a second surgery in October 2017 that included a posterior lateral fusion at ¶ 3-5, a decompressive laminectomy including a partial medial percent resection, and a complete resection of the left inferior facet and pars. (R. 16, 397-403). In January 2018 Claimant was three months post-surgery, and his muscle strength was normal and equal. (R. 16, 394). Claimant's orthopedic surgeon stated that Claimant was doing very well postoperatively, he expected the burning over Claimant's left thigh to get better over time, and Claimant should remain out of work until February 28, 2018 and avoid heavy lifting until that time. (R. 394). Claimant made good progress in physical therapy during January and February 2018, after which Claimant reported that he had eighty percent improvement; there were some days when his low back pain was four or five out often at worst; he exercised three to four times a week at a fitness center and walked two to three miles on nice days; he demonstrated improved lumbar range of motion, flexibility strength, and core/lumbar stabilization; and he hoped to return to commercial fishing in two months. (R. 16, 551).
At an August 2018 follow-up appointment with Dr. Cavanaugh, Claimant's treating orthopedist, Claimant stated that he had returned to work and was doing well until he suffered a twisting injury to his low back lifting boxes weighing roughly seventy pounds on his boat. (R 16, 687). Dr. Cavanaugh believed Claimant's pain was due to muscle strain, prescribed medication, and referred him back to physical therapy; however, there is no indication in the record that 9 Claimant returned to physical therapy. Id. Claimant saw Dr. Blackburn for lab results and lower back pain in September 2018; he appeared distressed with tenderness in the paralumbar area, but he had normal range of motion, no edema, and no deformity; and his daily activity was noted to be very limited. (R. 16, 810-12). It was noted with respect to Claimant's back pain that he was "[f]ollowing with surgery and PT." (R. 812).
In October 2018, Dr. Cavanaugh noted Claimant's continued neuropathic leg pain, but an MRI showed no compression. (R. 16, 690). Claimant was tender to palpation over the lumbar spine but exhibited normal gait and strength. (R. 691). Claimant stated he has done physical therapy but it was not helping much, which is contradicted by the record indicating, as the ALJ noted, that Claimant improved eighty percent after his second surgery and physical therapy in early 2018, but did not return to physical therapy despite a referral by Dr. Cavanaugh. (R. 16, 18, 551, 690). Dr. Cavanaugh had no explanation for Claimant's continued pain and referred him to pain management for consideration of a spinal cord stimulator trial. Id.
Claimant was involved in a motor vehicle accident in December 2018 and visited the emergency department on December 3 with neck and back pain. (R. 17, 670). Claimant reported "no neurologic symptoms specifically no pain numbness or weakness in the lower extremities. He reports being uninjured elsewhere." Id. A CT scan of the cervical spine was negative and x-rays of the thoracic and lumbar spine showed minimal degenerative changes and satisfactory postoperative configuration. (R. 672-74). The doctor noted that Claimant requested pain medication because he was out of his medicine last prescribed, but the doctor declined to provide further pain medication because his November 21 prescription for Percocet should have been good for seventeen days, and instructed Claimant to follow up with Dr. Blackburn. (R. 672, 675).
In January 2019, Claimant saw Dr. Cavanaugh for continued neuropathic leg pain, it was 10 noted again that there was no explanation for Claimant's pain, he again denied physical therapy helped him, he was taking Percocet provided by his primary care physician, two separate positive toxicology screens for marijuana and cocaine were noted during the workup for the possible spinal cord stimulator, and he adamantly denied drug use. (R. 17, 693). Dr. Cavanaugh directed Claimant to only follow up with him after he was seen by pain management. (R.693)
In April 2019, Claimant saw Dr. Jeffrey Carlson, an orthopedist, for a second opinion related to placement of the spinal cord simulator and a consultation related to his lower back and left lower extremity pain, which he described as constant with numbness and weakness in his left leg and foot leading to occasional falls. (R. 17, 990-92). Examination showed tenderness around the posterior superior iliac spine; full range of motion of the cervical, thoracic, and lumbar spine and of the hips, knees, and ankles; negative straight leg raising and crossed straight leg raising; and no weakness in the thoracic, lumbar, or sacral spine or in the lower extremities or hips. (R. 991). On Claimant's follow up visits with Dr. Carlson in May and July 2019, his symptoms and examination findings were unchanged, imaging revealed no significant neurological impingement, and Dr. Carlson recommended pain management to explore other treatment options. (R. 17, 976-77). An MRI from August 2019 showed no disc protrusion, abutment, or stenosis in the thoracic spine. (R. 17, 1034).
The ALJ's decision to find Dr. Blackburn's opinions "not persuasive" is supported by the medical evidence summarized by the ALJ, which demonstrates that Claimant's second surgery in October 2017 followed by physical therapy was successful, as afterward Claimant reported eighty percent improvement, being more physically active, exercising three-to-four times a week, and walking two-to-three miles a day; physical therapy notes indicated Claimant had improved lumbar range of motion and core/lumbar stabilization; all diagnostic imaging in 2018 and 2019, including 11 x-rays and MRIs, noted only mild-to-moderate degenerative changes, and both orthopedic specialists found no cause for Claimant's continued symptoms; at follow-up appointments throughout 2018 and 2019, his muscle strength was normal and equal, and no weakness was noted; and Claimant's complaints of an exacerbation of back pain were often related to him performing some activities involving heavy lifting, his symptoms were determined be musculoskeletal in nature, i.e., muscle strain, and he did not return to physical therapy, which helped him in the past. (R. 17-18).
Claimant points to no specific evidence in Dr. Blackburn's treatment notes to support the extreme limitations in Dr. Blackburn's medical source statement, which were even more restrictive than those testified to by Claimant, (R. 45, 1001-03), and the ALJ correctly determined that the treatment notes are not consistent with Dr. Blackburn's opinion. Dr. Blackburn's treatment notes indicate that he managed Claimant's medications post-surgery, Claimant's back impairment was managed by orthopedic specialists, examinations were routinely normal except for lumbar tenderness, and Claimant did well after his second surgery aside from suffering a neck and back strain in doing heavy lifting on his boat and from a December 2018 car accident. See Dr. Blackburn's Treatment Notes (R. 571-Apr. 10, 2017 post-surgery visit seeking pain medication refill, was given temporary refill and told he "needed to protect his meds"; R. 578-May 17, 2017 visit, referred to orthopedist for back injury; R 585-July 28, 2017 visit, complaints of insomnia and hypertension; R. 591-Nov. 15, 2017, post-surgery pain management visit, noted he was doing well and tapering down medications; R. 597-Dec. 7, 2017 pain management visit, received good report from surgeon, had weaned off pain medication but now requesting additional pain medication for physical therapy; R. 604-Dec. 26, 2017, pain medication refill for physical therapy, noted tolerated oxycodone with no side effects; R. 609-Jan. 3, 2018 pain medication refill for 12 physical therapy, noted physical therapy was going well, Claimant was going to the gym, and he should be tapering off pain medication soon; R. 810-12-Sept. 27, 2018, follow-up visit for lab work and back pain, noted Claimant was very limited with daily activities, increased fatigue and dizziness, and lumbar tenderness but normal range of motion, and noted Claimant's back followed by surgery and physical therapy; R. 780, 800-Oct. 24 & Nov. 21, 2018, pain medication refills; R. 752-Dec. 13, 2018, visit for pain medicine after accident, pending appointment at UNC with spinal surgeon and for pain management; R. 734-35-Dec. 20, 2018, follow up after motor vehicle accident, noted he was approved for a spinal cord simulator and pain management at UNC in January and Dr. Blackburn was covering medications until then; R. 717-Jan. 17, 2019, visit for hypertension and on examination he had neck and lumbar tenderness but normal range of motion; R. 700-May 20, 2019 visit for hypertension and increased back pain, examination positive for lumbar tenderness but otherwise normal, gave temporary medication refill and noted Claimant was seeing a new surgeon). Dr. Blackburn had minimal involvement in Claimant's treatment for his back impairment, and no treating or consulting orthopedist opined that Claimant was extremely limited as did Dr. Blackburn.
The court can trace the ALJ's reasoning in evaluating the persuasiveness of Dr. Blackburn's opinion, which the ALJ evaluated in conformity with the applicable regulations, and finds no error in the ALJ's evaluation. See Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) ("An ALJ'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)). 13
2. Claimant's Subjective Statements
Claimant contends the ALJ failed to properly assess his statements regarding the intensity, persistence, and limiting effects of his symptoms and their consistency with the medical evidence and other evidence of record. PL's Mem. [DE-23] at 26-29.
Federal regulations 20 C.F.R. §§ 404.1529(a) and 416.929(a) provide the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Mines v. Bamhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[, ] and the extent to which it affects her ability to work," Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 14 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
The ALJ recounted Claimant's hearing testimony as follows:
the claimant testified that he lives with his wife and five-month-old son. He has a driver's license and drives around the small town he lives in, but being in a car is uncomfortable. He is most comfortable standing or laying down. He last worked in 2018, because he tried to return to work but ended up hurting his back again. He worked on a fishing boat out of New Jersey, and he performed this job for six-to-eight weeks, but he was only paid $1, 500 because the boat broke down and his boat did not catch as much fish as they had anticipated. He underwent two back surgeries, the second of which was in October 2017. He stated that he had some improvement with surgery, but his doctors are unsure as to why he continues to have leg pain. He is unable to work because he has severe low back pain, and his leg feels as though it is on fire. His doctor wants to put in a spinal cord stimulator to see whether that will improve his pain. The claimant also reported that his back pain got worse after he was involved in a car accident in December 2018. He stated that his lower left leg is painful, and he has numbness in that leg, which has caused him to fall. The claimant reported that during his second back surgery, he tested positive for marijuana and cocaine, but he testified that this was a false reading from the Fentermine and antibiotics he was taking. He stated he can only sit for up to 30-to-45 minutes, stand for up to 30-to-45 minutes, although he has to move around the entire time, and he can only walk for 30-to-45 minutes at one time. He is unable to bend, and cannot lift anything from bending over. He spends the majority of the day laying down, and spends five-to-six hours a day laying around. The claimant reported that he uses a cane, which is medically required, and he has trouble concentrating due to pain. He has good days approximately two days a week, during which time, he will do some household chores, will go outside and walk for a few minutes, and he only needs to lay down for three-to-four hours for relief During bad days, he lays down for five-to-six hours in a dark room, and does not want to be around other people because he feels miserable. He stated that he can reach overhead, so long as the weight is not over five-to-ten pounds, and he can lift and carry up to 20 pounds from off a table.(R. 14). The ALJ found that Claimant's impairments could reasonably be expected to cause the alleged symptoms, but that Claimant's statements about his limitations were not entirely consistent with the medical and other evidence. Id.
Claimant's argument regarding the ALJ's consideration of his subjective statements regarding his limitations largely mirrors his argument regarding the ALJ's consideration of Dr. 15 Blackburn's medical source statement. Claimant suggests that he has a history of lumbar herniated disc that caused back pain and left leg radicular pain, weakness, numbness, and tingling; his statements regarding his symptoms are supported by Dr. Blackburn's treatment and opinion, the objective medical evidence, and his course of treatment; and the ALJ cherry picked facts and ignored evidence supporting a disability finding. PL's Mem. [DE-23] at 28-29.
As explained above, the ALJ found that Claimant's second surgery in October 2017 followed by physical therapy was successful, as afterward Claimant reported eighty percent improvement, being more physically active, exercising three-to-four times a week, and walking two-to-three miles a day; physical therapy notes indicated Claimant had improved lumbar range of motion and core/lumbar stabilization; all diagnostic imaging in 2018 and 2019, including x-rays and MRIs, noted only mild-to-moderate degenerative changes, and both orthopedic specialists found no cause for Claimant's continued symptoms; at follow-up appointments throughout 2018 and 2019, his muscle strength was normal and equal, and no weakness was noted; and Claimant's complaints of an exacerbation of back pain were often related to his performing some activities involving heavy lifting, his symptoms were determined be musculoskeletal in nature, i.e., muscle strain, and he did not return to physical therapy, which helped him in the past. (R. 17-18). The ALJ also found that Dr. Blackburn's opinions in the medical source statement were not supported by his treatment notes or other evidence in the record. (R. 18). The ALJ thoroughly discussed Claimant's testimony, treatment history, and the opinion evidence, and Claimant does not point to any specific evidence in the record that the ALJ failed to consider, effectively asking the court to reweigh the evidence. See Hancock v. Astrue, 661 F.3d 470, 472 (4th Cir. 2012) ("In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.") (citation omitted). 16
The ALJ acknowledged Claimant's continued pain, including his consideration for a spinal cord stimulator trial, but found that the overall record did not support the extreme limitations to which Claimant testified. The ALJ applied the appropriate framework in evaluating Claimant's statements regarding the limiting effects of his impairments, and the court can trace the ALJ's reasoning, which is supported by substantial evidence. Accordingly, the ALJ did not err in evaluating Claimant's subjective statements regarding his limitations.
3. Claimant's Ability to Perform a Reduced Range of Light Work
Claimant contends he is unable to physically perform a reduced range of light work because he cannot sit, stand, or walk for six hours in an eight-hour workday and would have great difficulty bending, stooping, and crouching on a frequent basis. PL's Mem. [DE-23] at 24-26.
The ALJ limited Claimant to only occasional stooping in the RFC. (R. 13).
The RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at * 1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also S.S.R. 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 S.S.R. 96-8p). The ALJ must provide "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ 17 "must build an accurate and logical bridge from the evidence to his conclusion").
Claimant, in support of his argument that he cannot perform a reduced range of light work as found by the ALJ, generally points to his hearing testimony regarding his limitations, his surgeries and course of treatment, and Dr. Blackburn's medical source statement. PL's Mem. [DE-23] at 26. As discussed above, the ALJ thoroughly considered Claimant's testimony, his course of treatment, and Dr. Blackburn's medical source statement. (R. 14-18). The ALJ found that the evidence in the record did not support the extreme limitations to which Claimant testified or suggested by Dr. Blackburn in the medical source statement, which the ALJ determined was not supported by Dr. Blackburn's treatment notes or the treatment notes of Claimant's orthopedic specialists. (R. 17-18). Claimant was doing well after his second surgery, reporting eighty percent improvement after physical therapy, being more physically active, exercising three-to-four times a week, and walking two-to-three miles a day. (R. 16). Thereafter, Claimant suffered minor injuries, diagnosed as muscle strain; he did not return to recommended physical therapy, claiming it had not been successful; his imaging showed nothing of significance; and Claimant's orthopedic specialists were unable to explain what was causing his alleged level of pain and limitations. (R. 16-17).
The ALJ discussed the medical evidence, opinion evidence, and Claimant's testimony, and cited evidence in the record to support the determination that Claimant had the RFC to perform a reduced range of light work. As explained above, it is not the court's role to reweigh the evidence. The court can trace the ALJ's reasoning in the RFC determination and finds it supported by substantial evidence. See Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018) (finding no error in the ALJ's RFC determination where the ALJ used evidence from the record to explain his finding that the claimant was capable of light work, explained the weight assigned to statements 18 made by the claimant and the opinion evidence, and provided a thorough discussion allowing the court to conclude the RFC was supported by substantial evidence). Accordingly, the ALJ did not err in the RFC determination.
B. The Hypothetical to the VE
Claimant contends the ALJ erred in failing to include all of Claimant's limitations in the hypothetical to the VE. PL's Mem. [DE-23] at 29-30. This argument is foreclosed by the court's finding that the ALJ's RFC determination was without error.
The additional limitations Claimant suggests the VE should have considered were not included in the RFC by the ALJ. 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). Claimant's argument here is derivative of the RFC arguments addressed above and is rejected for the same reasons. The hypothetical to the VE included the limitations the ALJ found supported by the record that were ultimately imposed in the RFC. See King v. Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *8 (E.D. N.C. Dec. 6, 2018), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27, 2018). Accordingly, the ALJ's hypothetical to the VE was without error.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment 19 on the Pleadings [DE-22] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-24] be ALLOWED, and the final decision of the Commissioner be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 22, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 20 1985). 21