Young v. Colvin

Filing 28

MEMORANDUM & ORDER denying 24 Motion for Judgment on the Pleadings, granting 26 Motion for Judgment on the Pleadings, and affirming the Commissioner's determination. Signed by Magistrate Judge Robert T. Numbers, II on 1/10/2018. (Herrmann, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-00309-RN
Karen Jacobs Young,
Plaintiff,
v.

Memorandum & Order

Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.

Plaintiff Karen Jacobs Young instituted this action on October 11, 2016, to challenge the
denial of her application for social security income. Young claims that the Administrative Law
Judge (“ALJ”) Ronald Sweeda erred in (1) evaluating her allegations of pain, and (2) weighing the
medical opinion evidence. Both Young and Defendant Nancy A. Berryhill, the Acting
Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their
favor. D.E. 24, 26.
After reviewing the parties’ arguments, the court has determined that ALJ Sweeda reached
the appropriate decision. ALJ Sweeda appropriately considered Young’s statements of pain and
offered reasons for declining to fully credit her allegations. Additionally, ALJ Sweeda’s evaluation
of the medical opinion evidence is supported by substantial evidence. Therefore, the court denies
Young’s motion, grants Berryhill’s motion, and affirms the Commissioner’s decision. 2

Berryhill replaced Carolyn Colvin as the Acting Commissioner of Social Security on January 20,
2017.
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2

The parties have consented to jurisdiction by a United States Magistrate Judge. 28 U.S.C. §
636(c). 28 U.S.C. § 636(b). D.E. 15.

I.

Background
On May 9, 2012, Young protectively filed an application for disability benefits alleging a

disability that began on September 12, 2012. After her claim was denied at the initial level and
upon reconsideration, Young appeared before ALJ Sweeda for a hearing to determine whether she
was entitled to benefits. ALJ Sweeda determined Young was not entitled to benefits because she
was not disabled. Tr. at 17–29.
ALJ Sweeda found that Young had several severe impairments: asthma, obesity, history of
cerebrovascular accident (“CVA”), fibromyalgia, and depression. Tr. at 19. ALJ Sweeda found
that Young’s impairments, either alone or in combination, did not meet or equal a Listing
impairment. Tr. at 21.
ALJ Sweeda then determined that Young had the RFC to perform a range of light work
with additional limitations. Tr. at 22. She must avoid any exposure to temperature extremes, high
humidity, concentrated pulmonary irritants, or workplace hazards. Tr. at 22–23. Additionally,
Young is capable of simple, repetitive tasks in a work environment where fast-paced production
is not required. Id.
ALJ Sweeda concluded that Young was incapable of performing her past relevant work as
a child support worker. Tr. at 28. But ALJ Sweeda determined that, considering Young’s age,
education, work experience, and RFC, there were other jobs that existed in significant numbers in
the national economy that Young was capable of performing. Id. These include: paper finishing
machine operator, bagger, and hand packer/inspector. Tr. at 28–29. Thus, ALJ Sweeda found that
Young was not disabled. Tr. at 29.
After unsuccessfully seeking review by the Appeals Council, Young commenced this
action in October 2016. D.E. 6.

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II.

Analysis
A.

Standard for Review of the Acting Commissioner’s Final Decision

When a social security claimant appeals a final decision of the Commissioner, the district
court’s review is limited to determining whether, based on the entire administrative record, there
is substantial evidence to support the Commissioner’s findings. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning
mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d
987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The
court must affirm the Commissioner’s decision if it is supported by substantial evidence. Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B.

Standard for Evaluating Disability

In making a disability determination, the ALJ engages in a five-step evaluation process. 20
C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider
the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim
is denied. At step two, the claim is denied if the claimant does not have a severe impairment or
combination of impairments significantly limiting him or her from performing basic work
activities. At step three, the claimant’s impairment is compared to those in the Listing of
Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing
of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed.
However, if the claimant’s impairment does not meet or equal a listed impairment, the ALJ
assesses the claimant’s RFC to determine, at step four, whether he can perform his past work
despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on
to step five: establishing whether the claimant, based on his age, work experience, and RFC can

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perform other substantial gainful work. The burden of proof is on the claimant for the first four
steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200,
1203 (4th Cir. 1995).
C.

Medical Background

Young has had complaints of pain for several years. Although she previously worked as a
child support specialist, she stopped working in 2011 due to pain and headaches. Tr. at 23. She
relies on her husband to assist her with some personal care but is independent with other activities
of daily living. Id. She described limitations in her abilities to sit (two minutes), stand (not long
enough to wash dishes), and walk (one-half block). Tr. at 23–24. Young also claimed to experience
depressive symptoms, including crying spells, feelings of worthlessness, and somnolence. Tr. at
26.
In 2011, Dr. Dixon Gregory diagnosed Young’s fatigue and pain as fibromyalgia. Tr. at
20. He noted, however, that her workups had yielded normal results and that she did not respond
to fibromyalgia medication, with which she had not been fully compliant. Id. Dr. Gregory
maintained this as her diagnosis although the medical evidence failed to demonstrate that trigger
point assessment was performed. Id. Moreover, a subsequent evaluation at Duke University
concluded that Young did not have fibromyalgia. Id. Imaging studies of Young’s cervical and
thoracic spines yielded normal results, as did electrodiagnostic testing of her lower limbs and
neurological and physical examinations. Id.
Dr. Ayman Gebrail performed a consultative examination in August 2012. Id. at 25. Young
reported fatigue, daytime somnolence, pain, headaches, and problems with memory and
concentration. Tr. at 26. Dr. Gebrail’s examination was essentially normal, with full range of

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motion and steady gait observed. Id. He assessed fibromyalgia and noted that the projected
limitations were based on Young’s subjective statements. Id.
Mental health records from 2012 through 2014 demonstrate that Young received
counseling services for depression. Id. Her diagnoses ranged from mild depression to major
depressive disorder. Id. Although medications were prescribed, treatment records reflect that
Young was not always compliant. Id. Mental status examinations yielded largely unremarkable
findings. Id.
State agency consultants also offered assessments. Tr. at 26–27. Dr. Arne Newman
concluded Young had no mental impairments. Tr. at 26. Despite her allegations of memory and
concentration issues, Dr. Newman concluded that she had no chronic difficulty with memory and
that the medical evidence did not support her allegations. Tr. at 26–27. Dr. Camille Warren opined
that Young was capable of medium work with an avoidance of concentrated exposure to extreme
heat, humidity, pulmonary irritants, and workplace hazards. Tr. at 27.
In January 2015, Dr. Gregory issued a physical residual functional capacity questionnaire
opining that Young could sit for ten minutes and could stand for two minutes while alternating
positions at will. Id. Dr. Gregory further concluded that Young could never lift more than ten
pounds, required a cane to ambulate, needed to elevate her legs to waist level 95% of the day,
would need unscheduled breaks every five to ten minutes, and was limited in her ability to move
her head. Id. Dr. Gregory concluded that Young was incapable of even low stress, sedentary jobs.
Id.
D.

Pain

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Young first contends that ALJ Sweeda erred in evaluating her allegations of pain. The
Commissioner asserts, and the court agrees, that ALJ Sweeda properly considered Young’s
allegations of pain.
There is a two-step process to determine whether a claimant is disabled by pain: (1) the
ALJ must determine whether the claimant has a medical impairment “which could reasonably be
expected to produce the pain or other symptoms alleged;” (2) if so, the ALJ must evaluate the
intensity and persistence of the claimant’s pain or symptoms and the extent to which it affects the
claimant’s ability to work. 20 C.F.R. §§ 416.929(c)(2). In evaluating the second prong, the ALJ
cannot require objective evidence of the pain itself. Craig v. Chater, 76 F.3d 585, 592–93 (4th Cir.
1996). However, objective medical evidence is a useful indicator in making reasonable
conclusions about the intensity and persistence of the claimant’s pain. SSR 96–7p, 1996 WL
374186, at *6. 3 Moreover, the ALJ must consider it in evaluating the individual’s statements. Id.
The following is a nonexhaustive list of relevant factors the ALJ should consider in
evaluating a claimant’s symptoms, including pain: (1) the claimant’s daily activities; (2) the
location, duration, frequency, and intensity of the claimant’s symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken
to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms;
and (6) any measures the claimant has used to relieve the symptoms. 20 C.F.R. §§ 404.1529(c)(3),

Subsequent to the ALJ’s decision, the Social Security Administration superseded SSR 96-7p with
SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). The more recent Ruling eliminated the term
“credibility” noting that “subjective symptom evaluation is not an examination of an individual’s
character[]” and directed that the determination “contain specific reasons for the weight given to
the individual’s symptoms[.]” Id. Because SSR 96-7p was in effect at the time the ALJ’s decision,
the undersigned will review the decision under SSR 96-7p. See Keefer v. Colvin, C/A No. 1:154738-SVH2016 WL 5539516, at *11 n.5 (D.S.C. Sept. 30, 2016).
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416.929(c)(3). A claimant’s subjective statements of pain alone are insufficient to establish
disability. Mickles v. Shalala, 29 F.3d 918, 919 (4th Cir. 1994).
The ALJ has full discretion to weigh the subjective statements with the objective medical
evidence and other matters of record. Craig, 76 F.3d at 595 (holding that claimant’s allegations of
pain need not be accepted to extent that they are inconsistent with the record); see also Hawley v.
Colvin, No. 5:12-cv-260-FL, 2013 WL 6184954, at *15 (E.D.N.C. Nov. 14, 2013) (ALJ need not
accept claimant’s claims at face value). In a district court’s review, the ALJ’s findings are entitled
to great weight because of the ALJ’s ability to observe and evaluate testimony firsthand. Shively,
739 F.2d at 989–90.
Here, ALJ Sweeda concluded that Young’s statements regarding her symptoms, including
the duration, intensity, or persistence of her pain, were not fully credible. In making this finding,
ALJ Sweeda did not discredit her allegations because she lacked objective evidence establishing
their presence. As noted above, an ALJ must not require objective evidence of pain in order to
credit a claimant’s statements. This is particularly true for impairments such as fibromyalgia, the
assessment of which often eludes objectively verifiable detection. See Dowell v. Colvin, No. 1:12cv-1006, 2015 WL 1524767, at *3 (M.D.N.C. Apr. 2, 2015) (“Numerous courts have recognized
that fibromyalgia’s symptoms are entirely subjective and [that] there are no laboratory tests that
can confirm the presence or severity of the syndrome”) (alteration in original) (internal quotation
marks omitted); Elburn v. Comm’r, Soc. Sec., No. CCB-14–0887, 2014 WL 7146972, at *3 (D.
Md. Dec. 12, 2014) (noting that “fibromyalgia ‘poses particular challenges to credibility analyses
due to the limited available objective medical evidence.’” (quoting Gavigan v. Barnhart, 261 F.
Supp. 2d 334, 340 (D. Md. 2003)).

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However, ALJ Sweeda was required to evaluate Young’s statements of pain in conjunction
with the objective evidence in the medical record. As noted above, Young’s allegations of pain
“need not be accepted to the extent they are inconsistent with the available evidence[.]” Craig, 76
F.3d 595.
ALJ Sweeda discussed how the objective evidence belied several of Young’s allegations.
Although Young claimed she could only sit for two minutes, ALJ Sweeda noted that she sat for
over 30 minutes during the hearing. Tr. at 24. Young also testified that she was limited in her
abilities to stand and walk, but Dr. Gebrail remarked that she had a stable gait. Tr. at 26. Treatment
notes from Whiteville Urgent Care & Family Practice similarly noted that Young moved about
generally well. Tr. at 25. Despite her claims of metal impairments, mental status examination
yielded generally normal findings. Tr. at 24. The evidence also showed that Young had been
noncompliant with her medications for mental health conditions. Tr. at 26.
Thus, ALJ Sweeda gave specific reasons with support in the record for discrediting
Young’s statements of pain and its limiting effects. The inconsistencies he identified provide
substantial evidence to support his determination that Young’s testimony regarding her symptoms
was not fully credible. 4 For this reason, Young’s argument on this issue lacks merit and is denied.
E.

Medical Opinion Evidence

Young also contends that ALJ Sweeda erred when he considered the assessments of his
treating physician, Dr. Gregory. The Commissioner maintains that ALJ Sweeda properly weighed
Dr. Gregory’s assessments. The undersigned concludes that the reasons offered for assigning less
weight to Dr. Gregory’s findings are supported by substantial evidence.

Nonetheless, even with the inconsistencies between Young’s statements and the objective
evidence, ALJ Sweeda gave some credit to Young’s claims by limiting her to light work with
additional environmental restrictions. Tr. at 22–23.
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“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in
determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v.
Comm’r of Soc. Sec. Admin., 600 F. Supp. 2d 740, 752 (N.D.W. Va. 2009) (“Pursuant to 20 C.F.R.
§§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the
disability status of a claimant.”).
Opinions of treating physicians and psychologists on the nature and severity of
impairments must be given controlling weight if they are well supported by medically acceptable
clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial
evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig, 76 F.3d at 590;
Ward v. Chater, 924 F. Supp. 53, 55–56 (W.D. Va. 1996); SSR 96–2p, 1996 WL 374188 (July 2,
1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In
determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature
of the treating relationship, the supportability of the opinions, their consistency with the record,
any specialization of the source of the opinions, and other factors that tend to support or contradict
the opinions. 20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–(6).
The ALJ’s “decision must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating
source’s medical opinion and the reasons for that weight.” SSR 96–2p, 1996 WL 374188, at *5;

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see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11–2865-TMC,
2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) (“In doing so [i.e., giving less weight to the
testimony of a treating physician], the ALJ must explain what weight is given to a treating
physician’s opinion and give specific reasons for his decision to discount the opinion.”).
Opinions from “other sources” who do not qualify as “acceptable medical sources” cannot
be given controlling weight but are evaluated under the same factors used to weigh the assessments
of physicians and psychologists. SSR 06–03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also
20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying “other sources”). An ALJ must explain
the weight given opinions of “other sources” and the reasons for the weight given. SSR 06–03p,
2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12–1096, 2013 WL 1856469, at *2 (D. Md.
May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are
considered under the same basic standards as evaluations of medical opinions from treating
providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e),
416.927(c), (e). The ALJ must offer an explanation of the weight given to these opinions. Id.;
Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted
by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a
non-treating examining source. Similarly, the opinion of an examining source is typically given
more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2),
416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating
examining source or a non-examining source may be given more weight than those of a treating
source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ’s attribution

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of greater weight to the opinions of a non-treating examining physician than to those of a treating
physician); SSR 96–6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate circumstances,
opinions from State agency medical and psychological consultants and other program physicians
and psychologists may be entitled to greater weight than the opinions of treating or examining
sources.”).
Opinions from medical sources on issues reserved to the Commissioner, such as disability,
are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96–5p, 1996
WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them
appropriate weight. SSR 96–5p, 1996 WL 374183, at *3 (“[O]pinions from any medical source on
issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all
evidence in the case record that may have a bearing on the determination or decision of disability,
including opinions from medical sources about issues reserved to the Commissioner.”).
As noted above, Dr. Gregory assessed the following limitations: Young could sit for ten
minutes and could stand for two minutes while alternating positions at will; she could never lift
more than ten pounds; she required a cane to ambulate; she needed to elevate her legs to waist
level 95% of the day; she would require unscheduled breaks every five to ten minutes; and she
could rarely turn her head from side to side and never up and down. Tr. at 26. ALJ Sweeda gave
little weight to Dr. Gregory’s opinions, finding they were not consistent with the other evidence in
the record. Tr. at 27.
ALJ Sweeda’s determination identifies the specific reasons for the weight afforded to Dr.
Gregory’s opinions. ALJ Sweeda noted that specialists at Duke University rejected the
fibromyalgia diagnosis. Tr. at 20. Additionally, Dr. Gregory’s January 2015 assessment was
prepared issued one day before the hearing but he has not treated Young in over eight months. Tr.

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at 24. Young testified that when completing the disability forms, Dr. Gregory asked what she was
able to do, suggesting that the limitations he assessed were based on her statements rather than his
medical findings. Tr. at 27.
Moreover, Dr. Gregory’s restriction finding that Young could sit only for ten minutes was
contradicted by her presentation at the hearing where she sat for over 30 minutes without apparent
difficulty. Id. And although Dr. Gregory stated that Young could rarely move her head side-toside, Young testified that she was able to drive, which would presumably require such turning of
the head.
A review of ALJ Sweeda’s decision clearly indicates the inconsistencies between Dr.
Gregory’s opinions and the other evidence in the record. ALJ Sweeda properly supported his
consideration of this expert’s findings with specific reasons and citations to the record. For this
reason, the undersigned cannot agree with Young’s argument that ALJ Sweeda erred in weighing
the medical evidence. Therefore, although Dr. Gregory was a treating provider for Young for
several years, his assessments were not entitled to more weight. Accordingly, Young’s claim is
subject to dismissal.
III.

Conclusion
For the forgoing reasons, the court denies Young’s Motion for Judgment on the Pleadings

(D.E. 24), grants Berryhill’s Motion for Judgment on the Pleadings (D.E. 26), and affirms the
Commissioner’s determination. This action is dismissed. The Clerk shall close this case.

Dated: January 10, 2018

Dated: January 2018.

______________________________________
Robert T. Numbers, II
United States Magistrate Judge

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