FLORES v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 02/29/2016; that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be GRANTED and the final decision of the Commissioner be upheld. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REBA FLORES,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

Defendant

t13CV513

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Reba Flores brought this action to obtain review of a ftnal decision of the
Commissioner

of Social Secutity denying her claims for a Period of Disability, Disability

Insutance Benefits, and Supplemental Security Income. The

Cout

has before

it the cetified

administtative record and ctoss-motions for judgment. (Docket Entries 11, 1,3.) For the
reasons stated herein, the Court recommends that PlaintifPs Motion for Judgment on the

Pleadings (Docket

Ettty

11) be denied, and Defendant's Motion for Judgment on rhe

Pleadings Q)ocket Entry 13) be granted.

I.

PROCEDURAL HISTORY

Plaintiff filed an application for Social Security Disability benefits and Supplement
Security Income benefits on February 11,2009.
denied initially and upon teconsideration.

1

Çl

(fr. 235-36,89-92.)r The applications

were

151-54,166-70.) Plaintiff requested ahearit'tg

Transcript citations refer to the administrative record.

before an -A.dministrative LawJudge
201.0, the,A.LJ

(',{LJ'). Çr. 171,-72.) After ahearing, on August

detetmined that Plaintiff was not disabled under the r{,ct. (Tr. 93-105.) Plaintiff

submitted a timely appeal

to the Appeals Council.

Çr

21,5-1,7.) The Appeals Council

remanded the claim for futher ptoceedings with speci{ìc instructions to the

13.) A second headng was held on May 9,201,2, before a different
201.2, the

27,

ALJ. Çr.

1,1,2-

ALJ (Tr 1.) OnJuly 11,

ALJ issued an unfavorable decision denying benefits. (Tr. 67-80.) Ptaintiff

submitted a timely appeal to the,{ppeals Council. Qr. 62-63.) Or Apdl 24,2013,the Appeals
Counsel denied Plaintiffs request for review of the decision.
became the Commissionet's fìnal decision
404.981, and

41, 6.1,

Çr

56-61,.) The ALJ's decision

fot purposes of judicial review 20 C.F.R.

SS

481.

II.

STANDARD FOR REVIEW

The scope of judicial review of the Commissionet's final decision is specific and
narrow. Smith

u.

Schweiker,7gstr.2d343,345 (4th Cir. 1936). Review is limited to determining

if there is substantial evidence in the recotd to support the Commissioner's decision. 42 U.S.C.
$

a05O; Huntera. Su//iuan,993F.2d31.,34 (4th Cir. 1,992);Hay u. Salliuan,g}7 F.2d1,453,1,456

(4th Cir. 1990). In teviewing for substantial evidence, the Court does not re-weigh conflicting

evidence, make ctedibility determinations,

or

substitute

its judgment for that of

the

Commissioner. Craig u. Chater,76 F.3d 585, 589 (4th Cir. 1,996). The issue before the Court,
thetefote, is not whethet Plaintiff is disabled but whether the Commissioner's finding that she

2

is not disabled is suppotted by substantial evidence and was reached based upon â correct
application of the relevant law. Qd.)

III.

THE COMMISSIONER'S DECISION

At the initial hearing, the -ALJ followed the well-established five-step sequential
to ascertain whether the claimant is disabled, which is set forth in 20 C.F.R.
41,6.920.

See

Albright u. Comm'r

of Soc. Sec.

Admin.,

17

4 tr.3d 473,

47

SS

analysis

404.1520 and

5 n.2 (4th Cir. 1999). The

ALJ determined at step one that Plaintiff had not engaged in substantial gainful activity since
the alleged onset date of October 10,2006.

(Ir. 9S.) Next the ALJ found at step two that

Plaintiff had the following severe impaitments: diabetes mellitus with pedpheral neuropathy,
obesity, hypertension, and anxiety-related disotder with generalized depression. (Id.)

,\t

step

three, the,A.LJ found that Plaintiff did not have an impairment or combination of impairments

listed in, ot medically equal to, one listed in Appendix

1.

(Tr. 98) At step four, the ÂLJ

determined that Plaintiff tetained the residual functional capacity ("RFC") to perfotm light

work. (It. 99.) The ÂLJ found that Plaintiff was limited to: standing or walking for six hours
in an eight hout wotkday; required

a cane

for walking more than short distances; needed the

opportunity to stand and sttetch at het workstation at 30-minute intervals; should be limited

to never climbing ladders, topes, and scaffolds;

occasionally climbing ramps and stairs;

occasionally balancing and stoopin$ avoiding concentrated exposure to hazards and work at
heights; she requires restroom access in the work arca; and she can perform simple, routine,
and repetitive task, in a low stress work environment with limited public contact.
a

J

(Ir.

99-100.)

The ALJ determined that Plaintiff was unable to perform any of her past relevant work. (Tr.
1,04.)

,{t

step five, the ,{.LJ determined that there were iobs which Plaintiff could perform

consistent with her RFC, age, education, and work experience. (Id.)

As noted, the Appeals Council next granted Plaintiffs request for review. In its
decision, the,{.ppeals Council vacated the hearing decision and remanded the case to the ALJ

for resolution tequiring the ALJ to: 1) give further consideration to the effects of Plaintiffs
obesity with respect to her ability to work; 2) futther evaluate Plaintiffs subjective complaints;

3) futher consider Plaintiffs RFC and to cite specific evidence in support of the

assessed

limitations; and 4) to obtain evidence from a vocational expert to clarifii the effect of the
assessed

limitations on the claimant's occupational base.

(Ir.

113.)

On remand, another,{LJ addressed these issues. First, the ALJ addressed Plaintiffs

obesity.

(Ir. 75.) The ALJ reasoned that Plaintiff

weight fluctuated over the years bur the

weight itself was not disabling. (Id.) The ALJ stated that Ms. Flores was able to complete

light house wotk and that exercising twice

a week increased

her energy. Qd) Next, the ALJ

described the symptoms and limitations that Plaintiff testified about attÅal.

Çt.7Q

Then

the ALJ evaluated the symptoms and limitations based on the record, laboratory findings, and

hospital records. (Tt. 75-77.) The ALJ found that "the objective evidence showed
stabiltzanon of the claimant's physical and mental symptoms." (Tr. 78.) Lastly, a vocational

expert testifìed that even
considerable number

if

Plaintiff could only

of jobs in the national
4

lift

and carry 10 pounds, there were

economy available

to Plaintiff. (Tr.

a

80.)

Consequently, the ALJ concluded that Plaintiff was not disabled. (Id.)

TheAIJ'. decision on

remand became the Commissioner's final decision for purposes of judicial review.

IV.

ISSUES AND ANALYSIS

Plaintiff raises two issues on appeal. First Plaintiff asserts that the ALJ ered in failing

to comply with the Appeals Council's prior remand order. Next Plaintiff contends that the
ÂLJ failed to explain the weight given to the opinions of

a

consultative examiner. ,{s explained

below, the unders€rìed concludes that the ALJ complied with the -Appeals Council's remand
otdet, and that the,A.LJ propetly evaluated the medical opinions in the record.

A. Claim One
Plaintiff contends that the ALJ failed to comply with the Remand Order from the
Appeals Council. (Docket Entry 1,2 at

2.) In pertinent p^rt, Plaintiff, contests

credibility analysis, contending that the

the ALJ's

AU, (1) failed to propedy consider the effects

PlaintifPs medications have on her ability to work; Q) falled to address Plaintiffs efforts to
seek medical support

to telieve her symptoms; and (3) faited to consider possible explanations

fot Plaintiffs noncompliance with medical treatment.

Qd. at

5.) Âs explained below, the ALJ's

credibility analysis was legally correct and supported by substantial evidence.

Plaintiffs

ftst contention is that the ALJ's credibility analysis is not based on

substantial evidence because he did not consider how the side effects of Plaintiffs medication

affect her ability to

work.

Q)ocket E.ttty 12 at

5.) In

Craig u. Chater, the Fourth Circuit

ptovided a two-part test for evaluating a claknant's statements about symptoms. 76 F'.3d 585,
5

589 (4th Cir. 1996). First, there must be "the existence of a medical impairment(s) which
results from anatomical, physiological, or psychological abnormalities and which tvuld reasonabþ
be expected îo

prodaæ

the

pain or olher ymþtorzs alleged." Id. at 594 (quotations and citations omitted)

(emphasis in the original).

If

the ALJ determines that such an impairment exists, the second

partof the test then requires him to consider allavailable evidence, including the claimant's
statements about pain, in order to detetmine whether a person is disabled. Id. at 595-96;20

C.F.R. SS 416.929(c)(4) and a0a.1529(c)@. While the ALJ must consider the plaintiffs
statements and other subjective evidence at step two, he need not credit them to the extent

they conflict with the objective medical evidence

or to the extent that the underþing

impairment could not reasonably be expected to cause the symptoms alleged. Id. at 596.
Relevant evidence for this inquiry includes the plaintiffs "medical historf, medical signs, and

laboratory findings," id. at 595,as well as various regulatory factors.2 The regulations do not
mandate that the ALJ discuss all these factors in the decision. See, e.!., Bageft u. Astrue,

5:08-CV-165-D, 2009

ffl.

No.

1438209, at *9 (E.D.N.C. May 20,2009) (unpublished).

2

The regulatoty factots ate: (i) the claimant's daiþ activities; (ü) the location, duration, frequency, and
intensity of the claimant's pain or other symptoms; (ui) precþitating and aggravatjng factors; (rv) th.
type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to
alleviate pain or other symptoms; (v) tteatment, other than medication, the claimant receives or has
received for relief of pain or other symptoms; (vi) any measures the claimzntuses or has used to relieve
pain or other symptoms; and (vü) other factots-concerning the claimant's functional limitations and
restrictions due to pain or othet symptoms. 20 C.F.R. $ a16.929(c) (3). See ¿/s¿ SSR 96-7p,1996 !ØL
374786, at +3 (listing factors "the adjudicator must consider in addition to the objective medical
evidence when assessing the credibility of an individual's statements').
6

Here, the ALJ finds that Plaintiffs "medically determinable impairments could
reasonably be expected

to

cause the alleged symptoms;" but the statements regarding the

intensity, persistence, and limiting effects were not credible. Qr.74-75.) Plaintiff contends
that the ALJ's decision is not based on substantial evidence because he failed to consider how
her medication may affect het ability to

work. (Docket Enry 12 at 5-6.) For the following

reasons, Plaintiff s argument is unpersuasive.

F'irst, the regulations do not mandate that the ,{LJ formalistically discuss all

regulatory factots in a decision. Rathet, the ALJ is only required to consider them.
Edwards u. Coluin,

No. 1:12-CV-1249, 2014 wL

444206'1,,

of the

See, e.g.,

âr x3 (À,{.D.N.C. Sept. 9,

201,4);

Bageît,2009WL 1438209, at *9. Consequently, an,{.LJ's putported "faiI:ute" to walk through
each of the credibility factors does not warrant a rcmarrd where, as here, the bases for his
decision is apparent.
Bamhart,21,4Fed.

See Cichocki u.

Astrwe,534 Fed. App'* 71,75-76 Qd Cu.2013); Clary

App'* 479,482 (5th Cir. 2007). To the extent Plaintiff

u.

suggests otherwise,

she is mistaken.

Second, the

ALJ explicitly discussed Plaintiffs activities of daily living, which

explained, is a relevant regulatory

as

factor. For example, the ALJ explained how Plaintiff

tepotted that she could handle her personal carc without help and could complete light
housework. (Tt. 75.) The tecord also indicates that she exercised twice per week and had
increased energy. (Id.)

7

Third, the ALJ also considered the medical history, laboratory fìndings, and medical
signs as to Plaintiffs impairments. The ALJ noted that Plaintiff testified that her blood
pressure remained high and caused het to experience some shortness of breath and headaches.

Qr 7 a.) However, the ALJ found that, after being instructed
her diet, Plaintiff lost weight and her blood pressure fell. As

to increase exercise and to watch
a

result, complaints of headaches,

dizziness, and upper extremity numbness were at a minimal.

pain, palpitations, or shortness

(Ir. 75.)

Moreover, no chest

of bteath were teported. (Id.) The ALJ

Plaintiffs testimony that

she expedenced symptoms

depression and anxiety

(Tt 74.) The ALJ noted that after she applied for

also addressed

of crying spells and lack of focus due to

had not received treatment from a mental health professional.

Qr76.)

disability Plaintiff

The ÂLJ reasoned

that "tecords from her primary care physician showed intermittent complaints of depression,
mental status examinations generally showed normal mood and, affect."

(Id.)

The .,\LJ also

noted that any mental health impairments were stabilized with Lexapro "without any notable
changes

in dosage." (fr. 76,78.)

Additionally, the ALJ considered location, duration, frequency, intensity, and
precipitating and aggravating factors alleged by Plaintiff as to the pain resulting from her
symptoms. Plaintiff teported that her high sugar caused frequent urination, lightheadedness,

and poor sleep.

(It. 75.) Howevet, treatment notes indicated that after medication

adjustments and exercise, Plaintiff reported that she felt better and had more energy.
,{.dditionally, the ,{LJ addressed Plaintiffs testimony of back and leg pain by indicating that

I

the pain was stabilized with medication. (Tt.

74,76.) The ALJ

level was only reported to be 2 out of 10 athet last office

also noted that

visit. (Ir.

Plaintiffs pain

76.)

The ALJ also considered Plaintiffs treatment, dosage, a¡d side effects from
medication. The ALJ acknowledged Plaintiffls testimony that het medication caused dizziness.

Plaintiff contends that "[t]he
she was

AU . . . disregarded þer] medicine side-effects by stating that

still able to drive to town." (Docket Ent"y 12 at 6.) Flowever, at the hearing Plaintiff

testified that although she was afraid to drive because

which is five miles from where she lives.

[t32.)

of

dszziness, she usually drives to town

The ALJ correctly summarized Plaintiffs

testimony by stating that Plaintiffs medications caused side effects, but she was still able to

drive.

[t.7Q

The ALJ also noted that

in 201,0, acute hyperglycemia

caused

Plaintiff to be

taken to the emergency room. (Tt. 75.) However, Plaintiff stated that she had not been taking

her medication or exercising as directed. Qd.)

Plaintiff argues that the ALJ contadicted himself with respect to discussing whether
Plaintiffs medication caused side effects. (Docket Entry

1,2

at 6.) According to Plaintiff, the

ALJ stated that Plaintiff testified that her medication caused dtzziness; but later, in the

same

decision, the ALJ stated that no side effects of the medication were reported. Qd.) However,

the alleged inconsistent statements do not call into question whether the ALJ's decision is
based on substantial evidence.

'Víhen

asked at the hearing whether she experiences side effects

ftom het medication, Plaintiff answered "þ]eah, somewhat; dialrhea,
sometimes . . .

."

CIt.

38.) There

nausea, dizziness

is only one othet document addressing side effects in the
9

record. During an evalua:j.on conducted by Dr. Atienza, Plaintiff reported that het medication
causes migraine headaches and dizziness.

(Ir. 551.) The Court is left to guess as to the

sevetity, duration, and ftequency of these side effects. Further, Plaintiff does not meaningfully

explain why the evidence as a whole cannot support the,{,LJ's determination. Plaintiff merely
states that the ÂLJ's credibility analysis is not based on substantial evidence because he did

not consider how the side effects of Plaintiffs medication affect her ability to work. (Docket

Entry 12 at 5.)

Even

if

the

AU did make inconsistent statements

regarding the side effects

of

Plaintiffs medication, the ,{.LJ's alleged mistake is harmless. "Errors are harmless in social
security cases when it is inconceivable that a diffetent administrative conclusion would have
been teached absent the

effor." Møllang

O4.D.N.C. Feb. 20, 201,4). Even

u. Coluin,

No. 1:10CV961,201,4WL 689755, at*9

if the ALJ did make inconsistent

statements "the ALJ's

credibility determination would remain supported by substantjal evidence in light of the
rìumerous othet factors and large body of medical recotds and other evidence upon which

þe] based þs] determinatio¡."
x1

TomasseÍti

u.

Aúraq No. 7:11-CV-88-D,201,2WL 4321646, at

1 (E,.D.N.C. Aug. 22, 2012) report and reconmendation

adopted,

No. 7:11-CV-88-D,

4321,632 (E.D.N.C. Sept. 20, 201,2); Mallang,201.4WL 689755, at *9

("[{ny

201,2

WL

failure on the

part of the ALJ to develop the recotd futther here is ultimately harmless âs there is no reason
to believe that but for the alleged effor this case would resolve differently."). Here, the ALJ's
findings that: PlaintifPs weight itself was not disabling, symptoms resulting from hypertension

l0

were reduced, symptoms telated to diabetes improved, her back and knee pain level was only

2 out of 10 at her latest office visit, and her mental impairments were stabilized with
medication arc all supported by substantial evidence. Qr.75-78.) Thus, "there is no reason
to believe that but fot the presumed error, this case would resolve differently." Tomr

No. 1:10CV856, 201,4WL 509195, at*10 (I4.D.N.C. Feb. 7,
adopted,

No. 1:10CV856, 2014 WL

1,338270 (À4.D.N.C.

u. Coluin,

201,4) reþort and rewnmendation

Apr. 1, 2014). For all these reasons,

Plaintiffs argument lacks merit.
Next, Plaintiff argues that the ALJ failed to recognize her persistent efforts to
medical support to relieve het symptoms. (Docket

seek

Etrry 12 at 5,7.) Accotding to SSR 96-

7p, "a longitudinal medical record demonstrating an individual's attempts to seek medical
Úeatment for pain or other symptoms . . . lends support to an individual's allegations of intense
and persistent pain or other symptoms . . .

."

SSR

96-7p,1.996WL

3741,86

x7

$uly 2,1,996).

Âdditionally, SSR 96-7p states that "the individual's statements may be less credible if the level
or ftequency of treatment is inconsistent with the level of complaints, or if the medical reports

ot records show that the individual is not following the treatment as prescribed and there are

no good reâsons for this failute."

Id. Plaintiff makes two

arguments regarding the ALJ's

alleged failure to comply with SSR 96-7p. Q)ocket Entry 1,2 at7 -8.) First, Plaintiff contends,

the ALJ failed to consider her effotts to seek medical support. (Id. at

7.)

Second, Plaintiff

argues that the ÂLJ violated SSR 96-7p by not considering possible explanations regarding her

noncompliance with medical treatment. (Id. at7-8.)

11

To suppott het frst argument, Plaintiff contends that her substantial medical record,
"fd]espite the limitation of possessing no health insurance and being denied for Medicaid,"
indicates that she sought all medical assistance reasonably available to her. Qd. at 5.) Plaintiffs
argument is misplaced. The ALJ's decision expressly acknowledges Plaintiffs constant effort

to

seek medical

support. The ALJ stated that "[t]he longitudinal record showed a history of

toutine and conservative treatmentaftet the alleged onset date." (Tr.7S.) This indicates that
PlaintifPs effots to seek medical support were considered; however, the

AIJ determined that

the lack of severity of her treatment only requited "routine and conservative. treatment." (Id.)

Therefore, SSR 96-7p is satisfied because Plaintiffs efforts to seek medical assistance were
considered in the,tLJ's evaluation.

Next, Plaintiff argues that the ALJ violated SSR 96-7p by not considedng possible
explanations tegarding why she did not comply with medical treatment. Id. at7-S. SSR 96-7p
also states that an ALJ should consider reasons why a complainant does not comply with

medical treatment including financial reasons, side effects ensuing from medication, and
religious reasons. SSR 96-7p , 1996 WL 37 41.86, at *7 -8. The ALJ complied with SSR 96-7p
by indicating several instances where Plaintiff did not comply with her medication treatment
because she ran out of multiple types of medication on more than one occasion. (Tr. 75.) The

ALJ also stated that, on other occasions, Plaintiff admitted that she was not "taking her
[medication] as directed." Çt.75-76.) Furthermore, the ALJ stated that Plaintiff "did not
teceive aîy fte tment from a mental health professional,and based on the limited evidence

t2

avarlable, het symptoms were stabilized" when she took her

medication. (Tr. 78.) Therefore,

the reasons why Plaintiff was not compþing with prescribed treatment were addressed by the
,TLJ.

Plaintiff also contends that the ÂLJ failed to meet the conditions in SSR 32-59 which
authorizes the ALJ

to deny benefits based on a claimants failure to follow

treatment. (Docket Ent"y

1,2

prescribed

at 8.) Pursuant to SSR 82-59 a claimant that neglects to follow

prescribed treatment that would restore the claimant's ability to wotk is not disabled. SSR 8259,'1,982W1- 31,384 *1 (1982). Four conditions must be satisfied to make this determination.

Id. However,

SSR 82-59 only applies when an individual has a disability but refuses to undergo

treatment, without a justifiable reason, that could remedy the disability. Snith u. Coluin,No.
1,:1,2CY1,247

, 2015 \XlL

3505201., at

*5 n.7 (À4.D.N.C.
June 3, 201,5) (finding that SSR 82-59

only applies when the ALJ has determined an individual "would be found disabled under the

Act") (quotation and citation omitted); Hanþt
1,874979, at

*6

u. Coluin,

No. 1:12-CV-00395-GCM, 2014 WL

[X/.D.N.C. lt4.ay 9,201,4) (fìnding that SSR 82-59 only applies when plaintiffs

failure to follow the ptescribed tteatment is the deciding factor in determining whether the
claimant is disabled). Hete, neither,{LJ found that Plaintiff would be disabled in the absence

of treatment. (Tr. 80, 1 05.) Therefore, SSR 82-59 does not apply. Hamb1, 2014 WL

187 497 9 ,

at*6.
Lastly, after the briefìng was filed in this case, the Fourth Circuit Court of Appeals
issued a published decision tegatding the two part credibility assessment. Ma¡tio u. Coluin,780

13

tr.3d 632 (4th Cir. 201,5). Masdo-in pertinent

patt-

concluded that an ALJ ered by using,

atpart two of the credibility assessment, "boilerplate" languase that "the claimant's statements
concetning the intensity, persistence and limiting effects of

þs

painf arc not credible to the

extent they ate inconsistent with the above residual functional capacity âssessment." Id. at

639. The Masdo Court

reasoned that this method "'gets things backwards' by implying that

ability to work is determined ftst and is then used to determine the claimant's credtl:1hty." Id.
(quoting Bjornson

u.

Astrue,671, F.3d 640,644-45 (7th Cir. 201,2)). Instead, "the ÂLJ here should

have compated fthe claimant's] alleged functional limitations from pain to the other evidence

in the record, not to fthe claimant's] residual functional capacity." Id. However, this is not
the end of the analysis. The Court further reasoned that "[t]he Â.LJ's eror would be harmless

if

he ptoperly analyzed credibility elsewhere." Mascio,780 F.3d

^t639,

Hete, the ALJ erted in the instânt case by considedng the credibility of Plaintiffs
testimony through the use of the same objectionable "boilerplate" language used in Masdo.

Qr.74-75.) However,

as previously discussed above the ALJ's creditability analysis is

discussed in detail elsewhere.

[r

74-78.) Immediately after using the boilerplate language,

the ALJ evaluated Plaintiff alleged function limitations based on Plaintjffs hearing testimony,

"medical signs, . . .Iabontory findings and other evidence" in the record.

^t639.

Mastio,780 F.3d

First, the ALJ listed the symptoms and limitations that Plaintiff testified about at ttial.

Çn7a.) Next,
78).

See

the ALJ evaluated the symptoms based on the evidence in the record.

I-"ongu. Coluin,

Qt.74-

No. 1:13CV659, 201,5wL1646985, at *1 (À,{.D.N.C. Apr.'1,4,201,5) ('.,{ftet
T4

using the 'boilerplate'language, the ALJ identified medical evidence, objective observations

of

Plaintiffs tteating medical ptovidets, and Plaintiffs own ptevious admissions concerning his
mild level of pain and what he was able to do to find that Plaintiffs statements about his pain
were not credible."); Cantrell u. Coluin, No. 1:14-CV-104-RJC-DSC, 201,5WL7444633, at*5
CX/.D.N.C. Nov. 23,2015) ("Despite using boiletplate language, the ALJ's analysis explains
his credibility findings in gteat detail, which the Court finds to be supported by the eviden...');

Unares u. Coluin, No.5:14-CV-00120,2015

\)fL

4389533, at

*6

CX/.D.N.C. July 17,201,5)

(concluding that the ,\LJ conducted a proper Masdo evaluation by "consider[ing] Plaintiffls
personal testimony, her daily activities, medical source statements, and tteatment records in
making his determination"). Additionally, the,{LJ stated that based on "the medical evidence
and the claimant's testimony[,]" Plaintiffls claims are only parttally credible. (Tr. 78.) The ALJ

futhet reasoned that Plaintiff was able to sit through

a

more than thirty minute long hearing

with non-observable problems or signs of side effects from medication. Qd.) This

case is

distinguished from Mascio because the Á.LJ's evaluation of Plaintìffls credibility is based on her
personal testimony, observations of Plainttff at the headng, het daily activities, medical source
statements, and treatment records. Thus, the ALJ's use
Masdo is harmless error because he

of boilelplate language

as used in

"ptopeÃy analyzed credibility elsewhete." Mavio, 780 F.3d

at 639.

l5

B. Claim Two
Plaintiff also contends that the ALJ failed to evaluate and weigh the medical
assessments conducted by

Dr. Atienza. (Docket Entry 12 at8-1,0.) Plaintiff contends that on

two occasions Dt. Auenza detetmined that Plaintiff had "resistance to flexion/extension of
the elbow joints, positive bilateral straight leg taise tests at less than 30 degrees, and reduced
knee range

of motion." (d. at 8-9.) Plaintiffs claim lacks merit

assessment is not a medical

opinion. Pursuant to 20 C.F.R.

S

6440299, at x2 flX/.D.N.C. Dec. 21,,201,1).

Dr. Atienza's

404.1527(c), the ALJ must weigh

evely medical opinion received tegardless of its source. Collin¡

WL

because

u.

Astrue, No. 1:10CV1.89,2011

A medical opinion has a distinct definition.

"Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity

of

fthe claimant's]

impairment(s), including fthe claimant's] symptoms, diagnosis and prognosis, what [the

claimant] c

n still do despite impafument(s), and [the claimant's]

physical

or

mental

restrictions;' 20 C.F'.R. S 404.1,527 (^)Q).
Here, Dr. ,\tienza's assessments were merely physical examinations.

(Ir.

545-50, 810-

16.) The assessments did not provide an opinion about how Ms. Flore's symptoms affect her
ability to function for the purpose of being gainfully employed.3 Euerett u. Coluin, No. 3:14-

CV-00017-FDW, 201,4

3

WL

6387604,

at *4 (W.D.N.C. Nov.

1,4, 201,4) (finding that

Notwithstanding such, the ALJ still considered Dr. ,{.tienza's examinations at step-two and in the

AIJ'r RFC findings. (Tr. 77,76.)

l6

a

physician's report was

not a medical opinion

examination and did not conduct
u.

a

because he only conducted

a

physical

diagnostic test and did not make objective findings); Mitchell

Astrae, No. 2:11-CV-00056-MR, 201,3WL 678068, at *5 [X/.D.N.C. Feb. 25, 201,3) (finding

that a the physician's statement was not a medical opinion because

it did "not

reflect his

judgment about the sevedty of the [p]laintiffs impairment or his physical resttictions"). Thus,
the ALJ was not obligated to weigh Dr. Atienzâ's examinations.

V.

CONCLUSION

After a cateful consideration of the evidence of record, the Court finds that the
Commissionet's decision

is suppotted by substantial evidence. Accordingly, this Court

RECOMMENDS that Plaintiffls Motion forJudgment on the Pleadings (Docket Entry

11)

be DENIED, Defendant's Motion fot Judgment on the Pleadings (Docket Entry 13) be

GRANTED and the final decision of the Commissioner be upheld.

e bster

United tates District Court Judge
February 29,2016
Durham, North Carohna

l7