WILDS v. COLVIN

Filing 18

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/23/2015. After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is supp orted by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 12 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be GRANTED, and the final decision of the Commissioner be upheld.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHEILA WILDS,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

Defendant

tÍtcv318

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sheila !7ilds, btought this action pursuant to Sections 205(9) and 1631(c)(3)

of the Social Security Act (the "Âct'),

as amended (42 U.S.C. SS 405(9) and 1383(c)(3)), to

obtain review of a final decision of the Commissioner of Social Security denying her claims

for a Period of DisabiJity ("POD'), Disabiliry Insurance Benefits ("DIB'), and Supplemental
Secudty Income ("SSI") under Titles

II and XVI of the Act.

The Court has before

it

the

certified administrative record and ctoss-motions for judgment.

I. PROCEDURAL HISTORY
Plaintiff protectively filed applications for a POD, DIB, and SSI benefits in
December 2008 alleging a disability onset date of .,\pril 5, 2008.

Çr.

applications wete denied initially and upon reconsideraton. (Id.
requested a hearing befote an Administrative LawJudge
1m

' Transcript citations refer to the administrative record.

163,

161)t The

^t71-93.)

Plaintiff

("N-J'). (d. at29.) Present at the

November 201,0 heartng wete Plaintiff and het attorney, while a Vocational Expert ('1/E")
testified telephonically. (Id. at43-70.) The ALJ detetmined that Plaintiff was not disabled
under the

Act.

(Id. at33-40.) In -{ugust

20"1.0,

the Appeals Council denied Plaintjffs request

fot teview, making the ÂIJ's detetmination the Commissioner's fìnal decision fot purposes
of teview. (Id. at8-11.)

II. FACTUAL BACKGROUND
Plaintiff was 44 yeats old on the alleged disability onset date, had completed tenth
gtade, was able

to communicate in English, and had past relevant work as a housekeeper.

(Id. at 48,'1,63.)

III. STANDARD FOR REVIEW
The Commissioner held that Plaintiff was not under a disabiJity wrthin the meaning

of the Act. Under 42U.5.C. $ a05G), the scope of judiciat review of the Commissioner's
final decision is specific and narrow. Smhh u. Schweiker,795 tr.2d 343,345 (4th Cir. 1986).

This Court's teview of that decision is limited to determining whethet there is substantial
evidence in the tecord to support the Commissioner's decision. 42U.5.C. $ a05(g); Hunter

Sal|iuan,993F.2d31,34 (4th Cir. 1.992);Hay
Substantial evidence
adequate

Sølliuan,907 tr.2d1453,1456 (4thCir. 1990).

is "such televant evidence as a reasonable mind might

to support a conclusiorì."

U.S. 389, 401 (1971)).

u.

u.

accept

as

Hunter, 993 tr.2d at 34 (citing Ncltardson u. Perale¡, 402

It "consists of more thanamere scintilla" "but may be somewhat

thana pteponderaîce." Id. (quottngl-^aws

u.

Celebre3ry,368F.2d640,642 (4th Cir. '1966)).

2

less

The Commissioner must make findings of fact and tesolve conflicts in the evidence.

Hqt,907 tr.2d

^t'1.456

(citing King u. Calfano, 599 F.2d 597, 599 (4th Cir. '1979)). The

does not conduct a de novo teview
Schweiker,

795 F.2d

^t

of the

evidence

345. In reviewing for

Cour

not of the Commissioner's findings.

substantial evidence, the Court does not

undetake to te-weigh conflicting evidence, to make credibility determinations, or to
substitute its judgment for that of the Commissionet. Craigu. Chater,76tr.3d 585, 589 (4th

Ctr. 1996) (citing Ha1s,907 F.2d

^t

1456). *V7here conflicting evidence allows reasonable

minds to diffet as to whether a claimant is disabled, the responsibility for that decision falls

on the [Commissionet] (ot the [Commissioner's] designate, the ALJ)." C*tg,76 F.3d at 589
(quoting lf,/alker
revetsed only

if

detetmination.

u. Bowen,834

F.2d 635,640 (7th Cir. 1937). The denial of benefits will be

no reasorìable mind could accept the record as adequate to support the

See

Nchardson u. Perales,402 U.S. 389,401, (1971). The issue before the Court

is not whethet Plaintiff is disabled, but whethet the Commissionet's finding that Plaintiff is

not disabled is suppotted by substantial evidence and was reached based upon a coffect
application of the relevant law.

See

id.; Cofman

u. Bowen, 829

F.2d 514, 517 (4th Cir. 1987).

IV. THE AIJ'S DTSCUSSTON
The Social Security Regulations define "disability" for the purpose of obtaining
disability benefìts undet the Act as the "inability to do any substantial gainful activity by
reason

of

any medically determinable physical

or mental impafument2 which can be expected

2 A "physical or mental impairment" is impairment
an
resulting from"anatomical, physiological, or
psychological abnormalities which ate demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U .S.C. $S 423 (dX3), 1382c(a)(3) (D).
-)

to tesult in death ot which has lasted or c n be expected to last for a continuous period of

not less than 12 monrhs." 20 C.F'.R. S 404.1505 (a); see also 42 U.S.C. $$ az(d)(l)(a),
1,382c(a)Q)(A). To meet this defìnition, a claimant must have a severe impairmenr which
makes

it impossible to do ptevious work or

^îy

other substantial gainful acnvity3 that exists

in the nattonal economy. 20 C.F.R. S 404.1505(a);

see

al¡o 42 U.S.C. $S 423(dX2XÐ,

1,382c(a)Q)@).

A.

The Five-Step Sequential Analysis

The Commissioner follows a five-step sequential analysis to ascertain whether the
claimant is disabled, which is set forth
Comm'r of Sm

Sec.

in 20 C.tr.R.

SS

404.1520, 416.920.

See

Albright

u.

Admin.,1.74F.3d 473,475 n.2 (4th Cir. 1999). The AIJ must determine in

sequence:

(1)

Whethet the claimant is engaged in substanial gainful activity (i.e., whether the
clatrnant is wotking).

Q)

If

so, the claimant is not disabled and the inquiry ends.

l7hethet the claimant has a severe impairment. If not, then the claimant is not
disabled and the inquiry ends.

(3)

Whether the impairment meets or equals to medical criteria of 20 C.F.R., Par
404, Subpan P, Âppendix 1, which sets

foth

a list of impairments that w^:.:ar-ft

a finding of disability without considedng vocational cntena.
zi disabled and the

If

so, the claimant

inquiry is halted.

3

"substantial gainful acllivrty" is work that (1) involves pedorming significant or producdve physical
ormentalduties, andQ) isdone (orintended) forpay orprofit. 20C.F.R. $S404.1510,476.910.
4

(4)

Whethet the impaitment prevents the claimant from perfotming past relevant

wotk. If not, the claimant is not disabled and the inquiry is halted.

(5)

lØhether the claimant is able to perfotm any othet wotk considering both het
tesidual functional capacitya and her vocational abilities.

If

so, the claimant is

not disabled.
20 c.F.R.

SS

404.1520,41,6.920.

Flere, the

AIJ

reached the fourth step of the sequence,

^twhich

point he determined

that Plaintiff was not disabled ftom ,A.pdl 5, 2008 through the date of the decision. (Tr. at

39.) The .,{IJ fìrst determined that Plaintiff had not engaged in substantial gainful
any time since het alleged onset date. (Id. at 35.) The ,{LJ next found

acld,vity at

in step two that

Plaintiff had severe impaitments: psotiasis, uterine fibroids, and anemia. (Id.) At step three,
the ,AIJ found that Plaintiff did not have an impairment or combination of impairments
listed in, ot medically equal to, one listed in .,{ppendix

concluded that Plaintiff could perform
housekeeping." (Id.

^t

1.

(Id. at 36.) .A.t step four, the

het past televant work "as a

A{

cleaner in

39.)

B. Residual Functional Capacity Determination
Ptiot to step fout, the ALJ determined PlaintifPs RtrC based on the ALJ's evaluation

of the evidence, including Plaintiffs testimony and the fìndings of treating and examining

a

"Residual functional capacily" is the most a claimant can do in a work setting despite the physical
and mental limitations of het impaitment and any related symptom Q.g., p"^). See 20 C.F.R. SS
404.1,545(a)(1), 416.945(^Xt); see also Hines a Barnhart,453 F.3d 559, 562 (4th Cir. 2006). The RFC
includes both a "physical exertional ot strength limitation" that assesses the claimant's "ability to do
sedentary, light, medium, heary, oÍ very heavy work," as well as "nonexertional limitations (mental,
sensory or skin impairments)." Ha// u. Harris,658 F.2d 260,265 (4th Cir. 19S1).

health cate providets. (Id. at36-39.) Based on the evidence as a whole, the ALJ determined
that Plaintiff retained the RFC to petfotm light wotk with no contact with the public. (Id. at

36.) In

teaching a conclusion about Plaintiffs RFC, the

AIJ

consideted the evidence,

including Plaintiffs testimony, and found that "the claimant's medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant's statements concerning the intensity, petsistence and limiting effects
symptoms are not credible

to the extent they

are inconsistent

with the above

of

these

residual

functional capacity assessment." (Id. at 38.)

C. Past Relevant Work
The ALJ found in step four that Plaintiff could perform het past televant work "as

a

cleanet in housekeeping." (Id.)

V. ANALYSIS
Plaintiff raises five issues. Fi-tst, Plaintiff contends that the AIJ ered in tejecting the
medical opinion of PlaintifPs treating physician. (Docket E.rtry
argues that the

AtJ

1,3

at

3.)

failed to ptopedy evaluate her credibility. (Id. at

Second, Plaintiff

4.) Third, Plaintiff

contends the ALJ etred by detetmining Plaintiffs RFC prior to evaluating het credibility.

(Id. at

8.)

Foutth, Plaintiff contends the ALJ failed to make a "function-by-function

analysis." Qd. at 10.) Last, Plaintiff contends that the ALJ erred in faiJing to atttibute "great

weight" to Plaintiffs testjmony.

Qd. at

11.) As explained below, these arguments lack metit.

A. The ALJ Did Not Err in Addressing Dr. Acharya's Medical Opinion.
Plaintiff contends that the ALJ erred in rejecting the medical opinion of Plaintiffs
(-¡

úeating physician,

Dr

Acharya. (Docket Entty 13 at

number of times ln 2009 and 2010.

(See, e.g.,

3.) Dr.

Acharya met with Plaintiff

a

Tr. 235-39, 242, 253, 256, 321.) In July 2009

she wtote that Plaintiff "has some medical problems she can not work due

to her medical

condition" and "[a]bility to wotk: none." (Id. at 246.) The ALJ gave this opinion "litde
weight"

(It.

38) because "the doctot's

opinion[]is conttaty to and unsuppoted by her own

medical rìotes."5 (Id. at 38.) Plaintiff essentially contends that the ALJ (1) failed "to say how

much weight he gave to Dr. fAcharya's] opinion" and Q) failed to request a full medical
source statement from

Dt. Acharya. @ocket Etrtry 13 at3.) These arguments lack medt.

First, the AIJ's decision to attribute to attribute "little weight" to
medical opinion

Dt.

Acharya's

is supported by substantial evidence. The "ueating physician rule,"

20

C.F.R. S 404.1527 (c)(2) genetally ptovides mote werght to the opinion of a teating source,
because

it m^y "ptovide a

detailed, longitudinal picture

of [the claimant's]

medical

impairmentþ) [which] may bring a unique perspective to the medical evidence." 20 C.F.R.
SS

404.1527(.)Q), a16.927(c)Q).6 But not aL trcattng sources are created equal. An

A{

tefusing to accord controlling weight to the medical opinion of a ttealng physician must
s

For this reason, Plaintiffs argument that the ALJ failed to weigh, or simply disregarded, Dr.
Acharya's opinion fails. (Docket Entry 13 at3.)
u

962p ptovides that "Controlling weight may not be given to a treating source's medical
opinion unless the opinion is well-supported by medically acceptable clinical and labotatory
SSR

diagnostic techniques." SSR 96-2p, Giuing Controlling lØezght To TreaTing Source MedicaÌ Opinions.
However, where "a treat)ng source's medical opinion is well-supported and not inconsistent with the
other substantial evidence in the case tecord, it must be given controlling weight." Id. SSR 96-5p
provides futther that "tteaúng source opinions on issues reserved to the Commissiorrer
never
^re
entitled to conttolling weight ot special significance." SSR 96-5p, Medical Soarce Opinions on Issues
Resented to the Commissioner. However, "opinions ftom any medical source about issues resewed to
the Commissionet must never be þored, and . . . the notice of the determination or decision must
explain the considetation given to the treating source's opinion(s)." 1/.
7

consider various "factors" to determine how much weight to give
(6), 41,6.921(c)Q)-$). These factots include: (i) the frequency

it. //. SS a0a.1527 (c)Q)-

of examination and the length,

nature and extent of the treatment relationship; (ü) the evidence in suppot of the treating
physician's opinion; (üi) the consistency

of the opinion v¡ith the record

as a whole;

(Ð

whether the opinion is from a specialist; and (v) othet factots btought to the Social Secudty
Âdministration's attention that tend to support or contradict the oprnton. Id.
Significantly, as subsections (2) through (a)

of the de

describe

in great detul, a

treating soutce's opinion, like all medical opinions, must be both well-supported by medical
signs and laboratory findings as well as consistent with the othet substantial evidence in the
case

tecord. 1/.

SS 404.1,527(c)Q)-@,416.927(c)Q)-Ø).

suppotted by clinical evidence

"Flf

u physician's opinion is not

ot if it is inconsistent with othet substantial evidence, it

should be accotded signifìcantly less weight." Cmig 7 6 F.3d at 590;

accord

Mastro

u.

Apfe|270

at 178. Opinions by physicians tegarding the ultimate issue of whether a plainnff is disabled

within the meaning of the Âct nevet receive controlling weight because the decision on that
issue remains

fot the Commissionet alone. 20 C.F'.R. SS 404.1527 (d), 41.6.927

(d).

In light of this well-established law, the ,A,LJ was permitted to disregard Dr. Acharya's
conclusory assertion that Plaintiff was disabled. Âs explained, that
reserved

fot the A{.

Additionally, the ALJ was also permitted

is a determination

to find Dr. ,\charya's

opinion was "contrziry to and unsuppoted by her own medical notes." (Tr.

38).

This is

because, as the ALJ furthet discussed, "[o]thet than noting fPlaintiffl appeared chtonically

ill

and would tequire a blood transfusion for her bleeding, [Dr. Acharya], found [that PlaintifPs]
8

examination was essentially norma,|."] (Id. at 37 citing
showed that Plaintiff expetienced little or no pain

(Ir.

Tr

252-53.) Dt. Acharya's notes

257, 254), that she was in no disttess

(d. at 255), that her back, neck, extremities and neurological system were grossly intact (d. at
252,255), and that she had

a grossly

intact musculoskeletal examination (Id. at 255).

The ALJ also opined that Dr. Acharya's "own reports fail to reveal the type of
significant clinical atdlaboratory abnotmalities one would expect if the claimant wete in fact
disabled, and the doctot did not specifically address this weakness."

(It. 38). Plaintiff calls

this "conclusory" and "boiletplate," but it is an accurate assessment of the recotd. (Docket

Etttty 13 at3.) Âs alluded to, Dr. Acharya's notes stated that Plaintiff was in little or no pain
and in no distress. (Id. at 251,253,254,255,256.)

Dr.

Acharya's notes also showed that

Plaintiffs exttemities were grossly intact. (Id. at 252,255).

It is also noteworthy that Plaintiff

seems

to

agree

with the conclusion that Dr.

Acharya's notes do not demonstrate that Plaintiff is disabled. (Docket E.ttty 1.3 at 3, "a

prudent

ÂIJ would not have

granted

þer] claim on the basis of Dt. [Acharya's] brief,

conclusory opinion.") Nevenheless, Plaintiff still maintains that the AIJ's decision should
be revetsed. Fitst, Plaintiff argues that the ALJ should have obtained a full medical source
statement ftom

Dr.

Acharya. Qd. at 3-4.) Howevet, as Defendant points oùt,

made for a full medical source statement

[t.

373) and, in fact,

Dt.

^

request was

Acharya's opinion states

t As Defendant correctly points out, appearing chronically ill and requiring a blood transfusion is a
considetable exception to an essentially normal examination. However, as Defendant is also coffect
to point out, several months after those findings, Plaintiff was tteated for a headache, yet otherwise
appeared well noudshed, in no acute distress, and appeared to be in only mild discomfort. [t 327).
,{. few months aftertl:rat, she was without headaches and "well appeanng and in no acute distress."
Qd. at31,2).

g

that she was "ptoviding additional infbrmatton rcgarding fPlaintitl's] medical condition at
your tequest." (d. at 246.) As such, any fallue in Dt. Acharya's records is not properþ
attdbutable to the ALJ in this case.

Plaintiff is perhaps futher contending that, given Dr. Acharya's opinion,

the,{{

was

obliged to recontact her until he fulfilled his statutory duty to obtain a full medical source

statement. Yet, the ,{IJ was only required to recontact Dr. Acharya
inadequate to make a disability determination.

See Scarbeny u. Chater,

238558, atx4 n. 1,3 (4th Cir. 1995) (unpublished); Hutchiruson

u.

if

the recotd was

No. 94-2000, 1995 WL

Astrue, No. 1:09-cv-57,201.2

WL 1267887, at x 6 O4.D.N.C. Apr. L6, 20'1.2); Parker u. Astrue, 792 F. Sopp. 2d 886, 895
(E.D.N.C. 2011). That is not the case here.8
Here, as Defend^ît

^ccvr^tely

points out, the record showed that Plaintiff was not

regulatþ taking any ptescription medication for her pain

(It.

202, 230); that she went years

without seeing a dermatologist despite suffedng from psoriasis all her life (id. at 230); that
she had a normal r^nge

of motion in her extremities (id. at 229); that she had 5/5

strength (id. at 232), despite claiming that she was unable to

lift

muscle

10 pounds (id. at 62); that she

was able to do heel and toe walking, squat, and dse (id. at 232); and that she was able to

petform dexterous hand movements with complaints of

pasn Qd.

at 232). Addrtionally, the

medical evidence revealed that Plaintiff denied anything more than mild pain, and also
denied stiffness, swelling, joint limitation, headaches (at times), weakness, change rn gait (id.
at 27 0, 298) , and sensory or motor defìcits (id. at 27 0, 299 , 325) . The record revealed
I

futher

At the administrative hearing, Plaintiffs attorney stated to the ALJ that the record in this câse was
up to date. (Tt. 45.)
10

that Plaintiffs movements were within normal limits (id. at 288) and that she had good
movements in all het extremittes (id.

^t

327). This is substantial evidence to determine that

Plaintiff was not disabled. The AIJ was not tequfued to recontact Dr. Acharya.e

B. The ALJ's Credibility Determination Is Supported by Substantial Evidence.
In Plaintiffls second and third claims, she contends that the ALJ erred in
het credibility. (Docket Entty

'1,3

assessing

at 4-1,0.) The Fourth Circuit Court of Appeals

has

adopted a two-step process by which the ALJ must evaluate a claimant's symptoms. The

fÍst

step tequires the ÂLJ to determine

if the plaintiffs

medically documented impafuments

could reasonably be expected to cause plaintiffs alleged symptoms. CraigT6 F.3d

The second step includes

a¡

evaluatton

of

SS

594.

subjective evidence, considedng claimant's

"statements about the intensity, petsistence, and limiting effects

Id. at 595 (citing 20 C.F.R.

^t

of [claimant's] symptoms."

416.929(c)(4) and a0a.1529(c)@.) "The ALJ must consider

the following: (1) a clatma¡t's testimony and other statements concerning pain or other
subjective complaints; (2) claimant's medical history and laboratory findings;

(3)

any

objective medical evidence of pain; and (4) any other evidence relevant to the severity of the

impaitment." Crubbl

u.

Astrwe,

No. 1 :09cv364,

2010

ì7L

5553677 , at x3 (citing Cmig I 6 F .3d

at595;20 C.F.R. $ a0a.1529(c).) "Othet evidence" tefers to factots such as claimant's daily
9

.,\dditionrlly, an
consultant teviewed the recotd and concluded that Plaintiff was capable of
^gency
petfotming medium work, Çr. 272-279) and the ,ALJ was permitted to give "some" weight to this
opinion because it was consistent with the pteviously mentioned evidence. Gt. 38); see also Gordon a.
Schweiker,725 F.2d 231,,235 (4th Cir. 1984) ('the testimony of a non-examining physician can be
telied upon when it is consistent with the record"). Consequently, in light of this, and in light of the
analysis set forth in the remaindet of this Recommendadon, Plaintiffs claim that the ALJ rejected all
opinion evidence and made up his own is without merit. (Docket Ertry 73 at 70.) Here, the ÂLJ
ptoperþ did what he was tasked with doing.

f,

activities, duration and frequency of pain, teatment other than medication teceived fot telief

of symptoms, and any othet measures used to relieve claimant's alleged pain. Id. Moreover,
SSR 96-8p requires that:

The adjudicator must considet al, allegattons of physical and
mental limitations or resffictions and make every reasonable
effott to ensure that the file contains sufficient evidence to
assess RFC. Careful consideration must be given to any
avatlable information about symptoms because subjective
descriptions may indicate more severe limitations or resttictions
than can be shown by objective medical evidence alone.

SSR 96-8p, Assessing Reliidaal Functional Caþacifl

in Initial

Claims, 1.996

WL

3741,84, *5.

Similarly, in detetmining the credibility of a clatmanq SSR 96-7p, Axessing the Credibiliry of an
Indiuidaal's Statements, instructs the ,{.LJ

credibility detetmination

to

suppoted by the evidence

to "consider the entire case record" and tequires

"contain specifìc reasons

in the case record[.]"

a

fot the finding on credibility,

SSR 96-7p, 1996 \XlL 374'1.86, at *4.

Importantly, an AIJ's credibility determination is also entitled to "substantial deference."
Salre u. Cltater,
Saþerc u. Chater,

NO. 95-3080,1,997 WL 232305, atxL (4th Cit. May 8, 1,997) (unpublished);
No. 96-2030,1,997 WL71704, atxL (4th Cir. Feb. 20,

Here, substantial evidence supports the ,{.LJ's assessment

1,991) (unpublished).ro

of Plaintifls

credibility,

including allegations of pain. In his Decision, the ALJ concluded that:

to Pluintiff contends that, as m^tter of law, the ALJ should have treated her tesdmony as
^
"reasonably likely" to be true because he found at step one that she had a medical condition
reasonably likely to produce the pain alleged. (Docket Entty 1,3 at 5.) This is not the law and
arguments such as this are toutinely rejected. See, 0.!., NoJ ,. Colrin, No. 4:13-CV-30-FL, 2014U/L
4097604, *6 (E.D.N.C. Aug. 20,2074);Yoangu. Astrue, No. 1:09-cv-1008, 2013WL474787,at* 11
(X4.D.N.C. Feb 7, 2013).
12

Âftet cateful consideration of the evidence, the undersigned
finds that the claimant's medically determinable impairments
could teasonably be expected to cause the alleged symptoms;
however, the claimant's statemerits concetning the intensity,
petsistence and limiting effects of these symptoms ate îot
ctedible to the extent they ate inconsistent with the above
tesidual functional capacity assessment.

,\lthough the claimant has described daily activities, which
are fattly limited, two factors weigh against considering these
allegations to be strong evidence in favor of fìnding the
claimant disabled. First, allegedly limited daily activities cannot
be objectively verified with any reasonable degtee of certainty.
Second, even if the claimant's daily activities are truly as limited
as alleged, it is difficult to atttibute that degtee of limitation to
the claimant's medical condition, as opposed to other reasons,
in view of the telatively weak medical evidence and other
factors discussed in this decision. Overall, the claimant's
teported limited daily activities are consideted to be outweighed
by the othet factots discussed in this decision.
The claimant has not generally teceived the type of medical
treatment one would expect for a totally disabled individual.
.,{.lthough the claimant has received some treatrnent fot the
allegedly disabling impaitments, that treatment has been
essentially toutine and conservatjve in natute. The claimant's
use of medications does not suggest the presence of [ ]
impaitments, which ate more limiting than found in this
decision.

While the claimants treating physician did opine the claimant
is disabled, the doctor's own report fails to teveal the type of
significant clinical and laboratory abnotmalities one would
expect if the claimant were in fact disabled, and the doctot did
not specifically addtess this weakness. Opinions on the ultimate
issue of disability
never entitled to controlling weight.
^re
Futther, while the doctot does have a treattng telationship with
the claimant, the treatment history is quite brief. In addition,
the residual functional capacity conclusions teached by the
physicians employed by the State Disability Determination
Services also supported a finding of 'not disabled.' Although
those physicians were non-examining, and thetefote thei-t
1,3

opinions do not as a general matter medt as much weight as
those of examining or treating physicians, those opinions do
deserve some weight.

As for the opinion evidence, the undersigned has considered
the state agency's tesidual f-unctional assessments and fìnds they
gsve fur, but not sufficient consideration to the claimant's
impaitments and limitations arising there from. The
undetsigned gives such assessments some, but not gteat weight.

In sum, the above residual functional capacity assessment is
supported by the evidence of recotd as a whole. I have
considered the combined effect of the above-listed severe
impaitments as well as the other non-severe medically
determinable conditions in detetmining the claimant's residual
functional capacity
Furthet I have weighed all of the
medical evidence and medical opinions submitted . . . . The
evidence of recotd supports a finding of a residual functional
capacity as listed above.

(Ir.38-3e.)
As noted, the ALJ "cateful[y] consider[ed]" the evidence and found that Plaintifls
impafuments "could teasonably be expected

Thus, the

to cause the

alleged symptoms." (Id. at 38.)

AIJ perfotmed the fìrst step of the Craig analysis. Next, the ALJ performed

two of the

analysis, concluding

petsistence and limiting effects

that Plaintiffs "statements concetning the

step

intensity,

of these symptoms are not credible to the extent they are

inconsistent" with the RFC.11 (Id.) In suppott of this conclusion, the ALJ cottectly pointed
tt Pluintiff contends that the ALJ ered
by using this "boilerplate" statement because it implied that
he detetmined her RFC befote he assessed her credibility. (Docket Ertry 1.3 at8-9.) In rejecting an
identical argument, the Eastetn District of North Carohna explained that:

the Bjornson couÍt's critique of the template language as poorþ
worded was not the basis upon which it tequired remand. The
Bjornson court remânded because it held that "the administrative law
judge's opinion failed to build a bddge between the medical evidence
"14

out that the record contained "relatively weak medical evidence" of disabiJity.

(It.

38.)

Next, the ALJ corectly pointed out further that Plaintiffs treâtment was generally
routine and conservative and that she had generally not teceived the medical treatment one
would expect fot a disabled petson. (Id.) As mentioned, Plaintiff went yeats without seeing
a doctor. (Id. at 55,

189,230). She presented herself

as

beingin considetable pain. (Id. at60-

62.) Plaintiff, howevet, was not recelvtng treatment for pain when she applied fot benefits
(id. at 201) and was not taking medication for pain aside from Tylenol and
(See

Advil (id. at 202)

a/s0Tr.270,298 (denies pain); id. at301. þain 0 out of 10).)

Also, at the time of the administrative headng, Plaintiff was teceiving conservative
tJeatment for her athritis and her doctors were not "giving
see

also

þerl anything fot it."

Qd.

at 56;

id. at 57 (acknowledging that her arthritis treatment consisted of het "go[ing] and . .

.

reportling] that [she had] some pain in þet] hands").) As fot het anemia, Plaintiffs doctots
discussed the possibility of hysterectomy
see also

fot het "symptomatic utedne fìbroids." (Id. at347;

id. at 252 (assessing Plaintiff with "artemia due to menoffhagia due to uterine

fìbroids").) Yet, at her hearing, Plaintiffs attorney informed the -AIJ that Plaintiff had not
(along wíth Bjornsozt testimony, which seems to have been fully
with that evidence) and the conclusion that she is able to
wotk full time in a sedentary occupation ptovided that she can
alternate sitting and standing." Thus the AIJ's use of this language is
not an effoi. ..
consistent

No. 2:1 1-cv-65-FL, 201,3 WL 3321.577 , at x 3 (E.D.N.C. July 1,, 201,3) (citing Bjornson
u. Astrae, 677 F.3d 640 (7th Cu. 2012)); see also Kamann u. Coluin,721 F.3d 945, 957 (8th Cir. 2013)
(tejecting an identical argument as "semantics and nothing more"). Furthermote, as the Seventh
Citcuit explained-and as Plaintiff acknowledges (Docket Ertry 1,3 at 9)-"the inclusion of this
language can be harmless . . . tqf the AIJ has otherwise explained his conclusion adequately." Filus
u. Astrue,694F.3d 863,868 (7th Cir. 2012). As discussed above, the A.LJ adequately explained the

Masdo u. Coluin,

credibility determination.
15

teceived a hystetectomy. (Id.

at 45; see al¡o id. at 230 @laintiff "h^s history of
^

heavy

mensttuation, but she has not checked with the gynecologisC').)

Additionally, as noted,

Dr.

Acharya concluded that Plaintiff could

not

u/ork.

Flowever, the ALJ correctly concluded that opinions by physicians regarding the ultimate

issue

of whethet a plainld:ff is disabled within the meaning of the Act

never teceive

contolling weight because the decision on that issue temains fot the Commissioner alone.
20 C.F.R. S 404.1527(d). And, as explained eadier, Dt. ,A.charya's opinion was propetly

A{.

discounted by the

For all these reasons, the -,{IJ's credibility analysis is suppotted by

substantial evidence.

Plaintiffs arguments to the contrary-v/hich largely tely on unpublished, out-ofcitcuit case law, much of which is factually distinct ftom this case-do not demonstrate
otherwise. Plaintiff points to the ALJ's discussion of het activities of daily living. (Docket

Etttry 13 at 5 citing Tr. 38.) The ALJ acknowledged that Plaintiff testified that they were
limited (Tt. 38 referencing 63-67), but concluded that her statements did not support her
disabiJity claim because her daily activities could
reasonable degtee

(Docket E.,tty

1,3

not "be objectively verified with

any

of cettainty." CIt. 38.) Plaintiff contends that this was inappropdate

at 5-7), and Defendant concedes "she is ptobably ttght" but that the "AIJ

teached the right result by the wrong route" @ocket Entry 17 at 1.3.) Flowever, even
assuming error ori the part

of the ALJ, as discussed above, the

A{

still presented

several

other valid teasons fìrmly grounded in the record by ample evidence fot fìnding Plaintiffs

16

subjective complaints par:J;ally inctedible. Âny

eror hete was at most harmless.l2

C. The ALJ Did Not Err in Assessing PlaintifPs \Work Related Limitations.
Plaintiff next challenges the RFC assessment by contending that the ,A,LJ ered by
fathng to make a function-by-function analysis

of Plaintiffs abilities

96-8p. pocket E.rtry 13 at 10-11.) This argument is

Secutity Ruling

"Plaintiff appears to be arguing that the Ruling tequires
assessment

of a claimant's ability in

each

distinction between what the AIJ must
Jo1æ u. Astrue,

as tequired by Social

No.

1.:06CY27, 2009

an

unpersuasive

N,J to aticulate in his opinion an

of the functional categories, but there is a

consider

IØL

and what he must articølate in the decision."

313345,

^t

x14 (À4.D.N.C. treb. 5, 2009)

(unpublished). ,\n ALJ is not tequired to discuss all of a clatrnant's abilities on a functionby-function basis but, rather, only to describe the maximum amount of each wotk-telated
activity the individual can perform based on the evidence avallable in the case record. Id.
(citation omitted);

see

also Brubaker u. Astrae,

No. 3:12-cv-423-REP,2012WL 6493606, atx9

@,.D. Va. Nov. 21, 2012) (unpublished) adopted þt 2012
201,2); Meadows u. Astrue,

A{

6541094 @,.D. Ya. Dec. 12,

No. 5:11cv00063, 20L2 WL 3542536, at x8

201,2) (unpublished) (same) adopted fu 201.2

Flete, the

ìfL

Cü7.D.

Va. Aug. 15,

$fL 4005455 CX/.D. Va. Sept. 12,2012)

adequately explained his RFC detetmination

in

narta:úve form in

compliance with SSR 96-8p. The ALJ evaluated Plaintiffs tteatment history, het (imited)
12

See, e.g., Mickles u. Sbalala,29 F.3d 91,8,927 (4th Cir. 1,994); Frank a. Barnhart, 326 F.3d 618, 627-22
(5th Cir. 2003); Ulman a. Comm'r of Soc. Sec., 693 F.3d 709, 714 (6th Ctt. 201,2); Carmickle !.,. Clmm'r,
Soc. Sec. Admin.,533 F.3d 1,1,55, 1,1,63 (gth Cir. 2008); Keles-Zachary u. Astrae,695 F.3d 7756, 7761
(1Oth Cir. 201,2); Blac,þwell u. Coluin, No. 1:14-cv-00085-MOC, 2074 WL 7339132, *6 CIø.D.N.C.
Dec.23,2014);Tomassettia.Astrue,No. T:11-CV-88-D,2072WL4321646,at*1.1 (E.D.N.C.22Aug.
2012) adoþred @ 201,2WL 4321632 (E.D.N.C. Sep 20, 2012); Hosel u. Astrue, No. 2:11--cv42,2012
WL 66781.3, at*7 CIø.D.N. C. Feb. 6,2012) adopted b.1t2012 \øL 665098 (|J.D.W.Va. Feb 28, 2012).

17

medications and treatment, her credibility, and the opinion evidence.

(Ir.

37-38.) This fully

satisfìed the requirements of SSR 96-8p. The ÂLJ then limited Plaintiff to light work and no

contact with the public secondary to her psoriasis. Qd. at 36.)

Additionally, Plaintiff has failed
assuming the ALJ

ered in his

to

demonstrate any likelihood

analysis, because Plaintiff fails

of ptejudice, even

to point to any specific

evidence that the ALJ failed to consider and which might have established the ptesence

an additional limitation.
201.1,

See, e.g., IYeaaer u.

Astrae, Civil No. 3:10-CV-00568-GCM-DCK,

WL 45961,22, *11 CX/.D.N.C. Arg. 1.0, 201.1) (unpublished)

4596449 (Sept. 30,201.1). Instead, Plaintiff contends that

himself does not know whether the claimant can
nothing on the subject . . .

."

(Docket Er,try

1,3

adopted

fu

201,1

\)fL

"[flor all the court knows, the ALJ

lift 5 pounds or 50, because he has said
at 1,1,.) This is false. ,\s noted, the

,A.LJ

considered all the evidence of tecotd and found that Plaintiff could perform "light work
defined tn 20 C.F.R. 404.1,567þ) and 41,6.967þ);'

Gt.36.) Light work, in pettinent

defìned as lifting no more than 20 pounds at a tkne with frequently lifting
objects weighing up to 10 pounds. 20 C.F.R.

of

SS

or

as

pârt, is

carrying

of

404.1567þ),41,6.967þ).

Moreover, the ALJ gave weight to the opinion of the non-examining state agency
physician (Tt. 38), who assessed Plaintiffs wotk related limitations on a function by function
basis (Id.

Und

u.

^t

273-19). The AIJ was not required to repeat these findings verbatim.

See, e.!.,

Astrae,370 Fed. Âpp'" 814, 817 (9th Cir. 2010).13 Fot all these reasons, Plaintiffs

t' Moreover, even assuming effor here, aîy ertoï is harmless fot an additional reason. "Failure to
articulate a function-by-function analysis is harmless etror where the -A.LJ's ultimate finding is
supported by substantial evidence in the lecord." Broussard u. Coluin, No. 5:21-CV-398-FL, 2013WL
18

afgument fails.

D.

The ALJ Corects Assessed PlaintifPs Testimony.
Last, in a ftnal contention ovedapping Plaintiffs second and thi-td allegations of ertor,

Plaintiff claims that the ,{IJ was requfued to give "great weight" to her testimony

because

there was "more than a scintilla of evidence" in support of her allegations. Qocket Entry 13
at 1.1-1,2.) In suppott, Plaintiff crtes Snith

u.

Astrue, No. 11-1,574, 457 tr.

App'* 326 (4th Ck.

201,1). (Id.) However, arguments such âs this have been toutinely rejected. For example, in

Lask

u.

Astrue, the United States District Court for the Western District of

Noth

Caroltna

reasoned that:

The Plaintiff nevettheless argues that his subjective complaints
entided to "great weighC' at the second step of the
^re
ctedibility assessment because there is objective evidence in the
tecotd to support a positive finding at step one of the Craig
[analysis]. In support of this argument, the Plaintiff cites to the
Fourth Circuit's recent holdings tn Smith u. Astrue,457 F. App'"
326 (4th Cft. 2011), and Felton-Miller u. Astrae, 459 F. App'x 226
(4th Cr.2011). PlaintifPs argument, however, is misplaced. The
Fourth Circuit has affirmatively rejected the idea that Craig
creates any kind of "gteatweight" rule. See Smith,457 F. App'*
at 329 ("Craig does not create or recognize gte t weight rule
^
affording the claimant a presumption of credibility at step two
of the pain analysis based on a successful showing at step
one.'); accord Felton-Miller, 459 F. Âpp'x 229 n. 1. In short,
^t
thete is simply no legal support for Plaintiffs argument that the
AIJ ened in failing to afford great weight to his subjective
complaints when assessing his credibility.

5370592, at *3 (E.D.N.C. Sept.24, 2013) (quoting Mascio u. Coluin, No. 2:11-CV-65-FL, 2013 WL
3321.577, at *3 (E.D.N.C. July 1,2013)). As explained herein, the ÂLJ's RFC determination is
supported by substantial evidence.
19

No. 1:11-cv-00196-MR,2013 WL 498797, at* 7 CX/.D.N.C. Feb 11,201.3).1a .,\s explained

in detail above, the ÂLJ's ctedibility

analysis is supported by

substantial-in fact, ample-

evidence. The .,{fJ complied with both steps of Craig articulated reasons grounded in the

tecord for fìnding that Plaintiffls allegations were not entirely ctedible, and set

foth

a

ctedibility analysis susceptible to judicial teview. Consequently, this argument also fails.

VI. CONCLUSION

,{ftet a carcful consideration of the evidence of record, the Court finds that
Commissionet's decision

the

is supported by substantial evidence. Accordingly, this Court

RECOMMENDS that PlaintifPs Motion fot Judgment on the Pleadings (DocketBntry

1,2)

be DENIED, Defendant's Motion fot Judgment on the Pleadings (Docket Entry 16) be

GRANTED, and the final decision of the Commissioner be upheld.

'S7ebs

Durham,

Noth

January

1a

tef
United States Magistrate Judge
Carohna

201,5

See, e.g.,Young2073WL474787,at+ 71.;Relnolds u.Astrue,No. 3-17-cv-49,2012WL748668,at*
6-7 (\Ø.D.N.C. Mat. 8,201.2); Marshall u. Astrue, No. 5:10-cv-00255-D, 2012WL707067, at* 70-1.2
(E.D.N.C. Jan. 31,, 2012).
20