FUERST v. COLVIN

Filing 22

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 10/13/2016, RECOMMENDS that Plaintiff's motions for judicial review (Docket Entry 15 and 20 ) be DENIED, Defendant's motion for judgment on the pleadings (Docket Entry 16 ) be GRANTED, and the final decision of the Commissioner be upheld. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LYNN MARIE FUERST,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

Defendant.

r15CV1054

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
Pro se Plaintiff Lynn Marie Fuerstl brought this action

to obtain review of a ftnal

decision of the Commissioner of Social Security denying her claims for benefits. The Court
has befote

I.

it the cetified administrative record and cross-motions fot judgment.
PROCEDURAL HISTORY

Plaintiff filed applications for disability benefits and supplemental security income in
April of

201,2 alleg¡ng an onset date

of ,A.prll1.3,201,2,later amended to June 9, 20L2. (Ir. 16,

38-39,252-61.)2 The applications were denied initially and upon teconsidetation. (d. at

1,1,1,-

1.5,1,1,8-23,131.-35,1,36-40.) Plaintiff requested ahearingbefore an Administtative LawJudge

("ALJ"), which was held on March 4,201,4. (Id. at 1,46,36-62.) After a heating, the ALJ

1

The Court has endeavored to liberally construe Plaintiffspm

se

pleaðtngs.

See

Haines

u.

Keme4 404 U.S. 51,9, 520-21 (197 2),

' Unless otherwise noted, transcript citations refer to the administrative tecord in this case
filed manually with Defendant's answer. (Docket Entries 8-9.)

determined that Plaintiff was not disabled under the

Âct.

(Id. at 1,6-35.) On Octob er 7 , 201.5,

the Appeals Council denied Plaintiffs request fot review. (Id. at1,-7.)

II. STANDARD FOR REVIEW
The scope of judicial review of the Commissioner's final decision is specific and
narrow. Snith

if thete
$

u.

Sthweiker,7gsF.2d343,345 (4th Cir. 1986). Reviewis limited to detetmining

is substantial evidence in the record to support the Commissioner's decision. 42U.5.C.

a05@; Harcteru. Salliuan,gg3F.2d31.,34 (4th Cir. 1992);Hø1ts

u.

Sa//iuan,g}7 tr.2d1453,'1,456

(4th Cir. 1990). The Coutt does not re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the Commissioner. Craig u. Chater,J6
F.3d 585, 589 (4th Ck. 1,996). The issue before the Coutt, therefore, is not whether Plaintiff

is disabled but whether the Commissioner's finding that she is not disabled is suppotted by
substantial evidence and was reached based upon a correct application of the relevant law. Id.

III. THE COMMISSIONER'S DECISION
The ALJ followed the well-established fìve-step3 sequential analysis to ascertain
whether the claimant is disabled, which is set forth in 20 C.F.R.

SS

404.1520 and 416.920. See

Albrightu. Conm'rof Soc.|ec.Admin.,174F.3d473,475n.2(4thcln1,999). The,{,LJ determined
at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset

3

"The Commissioner uses a five-step process to evaluate disability claims." Hancoc,k u. Astrae,
667 F.3d 470,472-73 (4th Cir. 2012) (ctang 20 C.F.R. SS 404.1520(")$);416.920(a)(4)). "Under this
process, the Cornmissionet asks, in sequence, whether the claimant: (1) worked during the alleged
period of disability; Q) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to his past relevant work; and (5) if not, could
perform any other work in the natjonal economy." Id. A firdirg adverse to the claimant at any of
several points in this five-step sequence forecloses a disability desþation and ends the inqurry. 1/.
2

date of June9,201.2. (Tr. 18.) The ALJ next found at step two that she had the following
severe impairments: \ü/ilson's disease, rheumatoid atthritis

of the left knee, back disotder,

depressive disorder, and anxiety-related disorder. (Id. at1,9.)

At

step thtee, the ALJ found

that Plaintiff did not have an impairment or combination of impairments üsted in, or medically
equal to, one listed in ,tppendix

1. (Id.) The ALJ then determined that Plaintiff

retained the

residual functional capacity ("RFC") to:

hft,

and/or pull twenty (20) pounds occasionally and
ten (10) pounds frequently. The claimant can stand and/or walk
fot approximately two (2) hours and can sit for approximately six
(6) hours in an eight-hour workday with normal breaks. She
carcy, push

could occasionally balance, stoop, kneel, ctouch, crawl and climb
stairs but should never climb laddets or scaffolds. The claimant
must avoid modetate exposure to extreme heat and cold. The
claimant must avoid exposure to vibration, unprotected heights
andhazardous machinery. The claimant's work would be limited
to simple, routine and repetitive tasks. Her work would also be
limited to low stress work, meaning the claimant could not
petfotm jobs with strict quotas. The claimant should have no
interaction wrth the genetal public unless it is metely superficial.
She should have occasional interaction with co-wotkets.

Çr.21,.) At the fourth step, the ALJ detetmined that
relevant work. (Id. at28.) At step fìve, the

,{{

she was unable

to perform her past

determined that there were jobs which Plaintiff

could perform consistent with her RFC, age, education, and wotk experience. (Id. at29.)

IV. ISSUES AND ANALYSIS
Plaintiff raises two general objections. First, she contends that the ALJ did not
adequately develop the record. (Docket Entty 15 at21,.) Second, Plaintiff contends that the

J

ALJ's RFC and cedibility findings are unsupported by substantial evidence. Qd.

^t24,26,29.)

As explained below, these objections lack merit.a

A. The ALJ Adequately Developed

the Administrative Record.

The "ALJ has a duty to explore all relevant facts and inquire into the issues necessarT

for adequate development of the tecord, and cannot tely only on the evidence submitted by
the claimant when that evidence is inadequate." Cook u. Heckler,783 F.2d 1,1.68, 1.1,73 (4th Ck.

1936). This duty includes developing the claimant's "complete medical history." 20 C.F'.R.
404.1,51,2(d),41,6.91.2(d).

SS

"An AIJ's duty to develop the recotd futher is ttiggered only when

there is ambiguous evidence or when the record is inadequ^te to allow for proper evaluation

of the evidence." Mryu

In the

case

u.

Massanari,276 F.3d 453, 459-60 (9th Cir. 2001).

of a pro se claímant, an N-J has "a duty to assume a more active tole in

helping [the] claimantf] develop the record," Cmig76F.3dàt591, (citation omitted), and must
adhere to a "heightened duty of care and responsibihty." Crider u. Han'is, 624 F.2d 1,5, 1,6 (4Th

Cir. 1980) (citation omitted). The Fourth Circuit has explained that an N-J

should

"scrupulously and conscientiously probe into, inquire of, and explote fot all the relevant facts,

being especially diligent

in

ensuting that favorable as well as unfavorable facts and

circumstances are elicited." Marsh u.

Hariq 632 F.2d 296,299 (4th Cir. 1980)

omitted). An ALJ may develop the record by subpoenaing and questioning
requesting records,

or

ananginq medical examinations or tests

o

fot the claimant.

(citations

witnesses,
Fleming

Plaintiffs pleadings raise a number of ovetlapping issues and sub-issues which the Court
has attempted to group and present logically for ease of refetence.
4

u.

Bamhart, 284 F. Sopp. 2d 256, 272

P.

Md. 2003). The decision of an ALJ will not be

overturned for failure to develop the tecord unless "such failure is prejudicial to the claimant."

Manh,632F.2d at 300 (citations omitted); Kingu. Calìfun0,599 tr.2d 597,599 (4th Cir. 1979).
Here, Plaintiff contends that medical tecotds from Citrus County Health Clinic are
"illegibie and hatd to read" and that "the

A{

couldn't read the doctors['] notes and dtew the

wrong conclusions." (Docket Entry 15 at22.) This atgument fails for a numbet of teasons.
First, Plaintiff was represented by counsel at the administrative heating, but is now
proceeding pro

se

befote this

Cout. (r.36-62.)

Consequently, the heightened duty descdbed

of an A{ to help develop the record for a þro sePlarnnff is not at issue hete. Second, Plaintiff
also

purpots to read the very records

she describes as illegible and thetefore essentially admits

that the tecotds can be read in peÍtinent patt. (Docket Entry

1,5

at22.)

Third, even assuming the tecotds in question are only pattally legible, the recotd still
permits a disability detemünation. This is because,

fot

example, the âgency arranged for

Plaintiff to patticipate in consultative physical and mental health examinations.
Thus, the record was adequately developed to allow the ALJ's determination.

No. CIV. SKG-09-1683,201,1,

lfl.

(ft.

403-15.)

See Jorues u.

Astrwe,

5833638,at *15 (D.Md. Nov. 1,8,2011) (unpublished).

Foutth, even assuming fot the sake of atgument the ALJ bad

a

duty to solicit additional

information here (which is not the case for the reasons set forth above), Plaintiff has not
pointed to medical evidence suggesting that the decision of the ALJ might teasonably have
been different had that evidence been before the ALJ when his decisiorì was rendeted. Marsh,

632F.2d at 300l' Kingu. Califuno,599 F.2d

^t

599.

5

Fifth, Plaintiffs argument is further without medt to the extent she contends that
information contained in the review of systems ("ROS") section of her recotds constitutes

"[IIh.

ROS is designed to uncover

systems." Brlun u. Coluin,

No. 1:15-CV-46, 2016 WL

objective examination evidence. (Docket Entty 15 at22.)

subjective complaints

in particular

1261211,, ât x7 CX/.D.N.C.

Mar. 31,,201,6). Reports in the ROS are

complaints, not the physician's assessments.

See

a

tecotdation of subiective

Fothergill u. Coluin,

No. 2:15-CV-143-JHR,

201,6WL1,83643,at*4(D.Me.Jan. 13,201,6) (unpublished);rcealtoCraig76F.3dat590n.2.
Last, reg rding PlaintifPs claim that the ALJ misread or misiriterpreted the record
Q)ocket Entry 15 at 22-23; Docket Entry 21. at 6), the decision

of the ALJ here

\¡/as, as

discussed further below, overwhelmingly supported by substantial evidence. ,{.ny such errot
here is at most hatmless. Biúop u. Comm.'r of Soc. Sec., 583 F. ,A.pp'x 65, 66 (4th Cir. 201'4).
these reasons,

For

Plaintiffs contention that the ALJ failed to develop the tecord is without merit.

B. The ALJ's Decision Is Supported by Substantial Evidence.

i.

The RFC Finding Is Suppotted by Substantial Evidence.

Plaintiff next contests the

A{'s

RFC detetmination. (Docket Etttty

1.5

at26-30.) The

"RFC is a measurement of the most a claimant can do despite fthe claimant's] limitations."

Hinu

u. Barnhart, 453

F3d 559, 561 (4th Cir. 2006). The RFC

includes both a "physical

exertional or strength limitation" that assesses the claimant's "ability to do sedentary, light,
medium, heavy, or verT heavy work," as well as "nonexettional limitations (mental, sensory,

or skin impafuments))' Hø//

u.

Harh,658 F.2d 260,265 (4th Cir. 1981). The "RFC is to be

determined by the ALJ only after [the ,tLJ] considets all relevant evidence
6

of a claimant's

impaitments and any related symptoms (e.g.,pain)." Hines,453 tr.3d

not discuss eve{y piece of evidence in determining the RFC.

^t

562-63. An ALJ need

See, e.g,,

Matnel u. Coluirc, No.

1:09-CY-229,201,3 \VL 1788590, *3 O{.D.N.C. April 26, 2013) (unpublished). \TIhat is
required is "an accvrate and logical bddge from the evidence to [the] conclusion." Clffird

Apftl,227 F.3d 863, 872 (7th Cit. 2000); Matney

201,3

u.

WL 1788590, ñ*3.

Here, the,{LJ formulated Plaintifls RFC aftet considering the entire record, including

Plaintiffs subjective complaints, her daily activities, her medical tecords, and the relevant
medical opinions.

("ff]h.

Çt

21,.)

See Reid u. Comm'r of Soc.

5ec.,769 F.3d 861, 865 (4th Clr. 201,4)

Commissioner, through the ALJ and Âppeals Council, stated that the whole record

was considered, and, absent evidence to the contràtf , we take het at het wotd.").

Specifically, the ALJ propedy relied upon Plaintiffs medical tecotds from Cittus
Memotial Hospital and Citrus County Health Departrnent, which do not indicate that she is
more limited than articulated in the RFC.

Gt. ut 22-23,381.-402,416-498.) The ALJ also

propedy re[ed upon the medical opinions

of the consultative

medical professionals that

examined Plaintiff, which do not articulate any limitations more severe than those set fotth by

the ALJ in the RFC.5 (Id. at 23-25, 404-406. 408-415.) ,\nd, likewise, the ÂLJ also properly

u

Plaintiff also contends that the agency failed to ptovide a consultant with her medical
background. (Docket Entry 21. at 6-8.) 20 C,F.R. S 416.917 provides that if the agency sends a
necessâlT background
claimant fot a consultative examination, it "will also give the examinet
^ny
information about your condition." 20 C.F.R. S 41,6.927. Hete, it is uncleat which specific portions
of her medical background Plaintiff contends were necessary. However, Plaintiff may be tefetencing
medical documentation regarding swelling in het hand/wrist. (Docket Ettry 21, at 6-8.) If so, Plaintrff
has failed to demonstrate prejudicial eror. Dt. \ü/alls, the consult¿nt in question, noted mild swelling
in Plaintiffls hand, however, the doctor noted further that thete wâs no dectease in strength and no
decrease in range of motion. $r 26,412.) No medical evidence in the record suggests otherwise and
Plaintiff points to no such evidence. Dr. ì7all's opinion is ¿lso consistent with the RFC to a limited
7

considered the state agency physicians, who all opined that Plaintiff did not have wotkpreclusive functional limitations, in setting PlaintifPs RFC. (1/.

also propedy took

^t27

,63-84,87-108.) The ALJ

into account Plaintiffs activities of daily living-cooking meals, doing

laundry, cleaning, washing dishes, and going shopping-which are inconsistent with
allegations of complete disability. (Id. at 19,27,52,299-300.) Consequently, the

AIJ's RFC

finding is suppoted by substanial evidence.

Plaintiff

has

pointed to, and the Court has found, nothing that suggests Plaintiff is more

limited than her RFC would indicate. Instead, Plaintiff essentially contends that the ALJ
should have fully credited all of her subjective allegations. However, as explained below, the

ALJ's credibility analysis is also legally coffect and supported by substantial evidence.

ii.

The Credibility Findings Are Supported by Substantial Evidence.

Plaintiff also contests the ALJ's credibility determination. (Docket Entty

In

Craig u. Cbater, the

Fowth Circuit provided

^

t\¡lo-peLrt test

1.5

at24-26.)

fot evaluating a claimant's

statements about symptoms. "First, there must be objective medical evidence showing 'the

existence

of a medical impairment(s) which results from anatomical,

physiological, ot

wotk. ,{.ny error here was thetefore hatmless ât most. Plaintiff also insinuates that Dr.
\ü/alls was biased. (Docket Entry 21. at 7.) However, this allegation is vague, conclusory, anð.
unsubstantiated and fails for this reason alone. Plaintiff also seems to fault the ALJ for tejecting the
medical opinion of a treating physician, yet, Plaintiff never identifies that physician and the Court sees
no such opinion. (Docket Entry 21, at7.) As explained above, no medical examiner evet concluded
that Plaintiff was limited beyond the scope of the ALJ's RFC finding. Moreover, while the
undersþed is mindful of Plaintiff s pro se status, much of her argumentation contests the ALJ's
reasonable interpretation of the evidence of record and asks the Court to re-weigh it, which this Court
is not permitted to do. CraigT6 F.3d at 589. Last, Plâintiff erroneously assetts that the ALJ failed to
consider the fact that she suffered ftom rX/ilson's disease in detetmining her RFC. (Docket Entry 21,
at 9-10.) However, the ALJ directly consideted this impairment repeâtedly in his decision. (ft. 19,
range of light

22-23,25,27.)
8

psychological abnormalities and which could reasonably be expected to produce the pain ot

other symptoms alleged."' 76 F.3d at 594 (citing 20 C.F'.R
(internal alterations omitted). Second,

SS

416.929þ) and 404.1529þ))

if the ALJ determines that such an impairment

exists,

the second part of the test then requires her to consider aIl avatlable evidence, including the
plaintifPs statements about het pain, in order to determine whethet the plaintiff is disabled.

Cmig76F.3d at 595-96.
\X4rile 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 fot this inqutry includes

plaintiffs "medical historf, medical signs, and laboratory findingsi' id. at595,

as

well

as

the

vadous

regulatory factors.6 The regulations do not mandate that the ALJ discuss all these factors in a

decision.

See

Bagett

u.

Astrue, No. 5:08-CV-165-D, 2009

WL 1438209, at x9 (E.D.N.C. May

20, 2009) (unpublished).7

6

The regulatory factors are: (i) the claimant's daiþ activities; (ü) the location, duration,
frequency, and intensity of the claimant's pain or other symptoms; (ru) prectpitating and aggavattng
factors; (Ð th" type, dosage, effectiveness, and side effects of any medication the claimant takes or
has taken to alleviate her pain or other symptoms; (v) treatment, other than medication, the claimant
teceives or has received for telief of het pain or othet symptoms; (rrÐ ,ty measures the claimant uses
or has used to relieve her pain or other symptoms; and (vü) other factors concerning the claimant's
functional limitations and restrictions due to pain or other symptoms, 20 C.F.R. S$ 404.1529(.X3),
41,6.e2e(c)Q).

7 Effective March 28, 2016, see, 2016
WL 1,237954 (1\{ar. 24, 201.6), the Social Security
Adminisftation superseded SSR 96-7p with Social Security Ruling 16-3p,2016 WL 1,11,9029, at*1
(À4ar. 16, 201,6). The new ruling "eliminat[es] the use of the tetm 'credibility' ftom . . . sub-regulatory
policy, as [the] regulations do not use this term." Id. The ruling "clariffies] that subjective symptom
evaluation is not an examination of the individual's chzracter" id., and "offer[s] additional guidance to
9

Hete, after "c^reful consideration of the evidence" the

,A.LJ

concluded that Plaintiffs

impairments "could reasonably be expected to cause the alleged symptoms." Cfr.
the ALJ performed the lust step

^t27.)

of the Craiganalysis. Next, the ALJ performed

Thus,

step two

of

the analysis, concluding that PlaintifPs "statements concerning the intensity, petsistence and

limiting effects of these symptoms are not entirely credible for the reâsons explained in this
decision." Qd.) Tbe ALJ then ptovided ample reasons, explained in gteatet detail below, in
support of step two of the Craiganalysis.

a. The AIJ's Decision to Partially Discount PlaintifPs

Alleged
Physical Limitations Was Supported by Substantial Evidence.

Plaintiff testified that she could only walk 8-10 minutes at a time (Tr. 49), could not lift
more than

a v/ater

bottle on a regulat basis (id. at 52-53), had pain when she wtote, was unable

to type, and sometimes couid not button het clothes (id. at 47). In consideting this testimony

the ALJ properly pointed out that

it

was inconsistent with a June 9, 201,2 consultative

examination that did show attophic ptoximal muscle of the lower exttemity, but also showed
an unrematkable neurological system, including a steady gait and good hand eye coordination,

full muscle strength (5/5), and no spasms.

Qd.

at23,

41.0.) PlaintifPs straight leg raise testing

was negative, her reflexes v/ere symmeffic, and her range of motion was
41.1.,41.3-415.) Although

Plaintiff had some difficulty rising from

a seated

normal. (Id. at 23,

position and getting

up and down ftom the exam table, thete was no joint swelling, erythema, effusion tenderness

IÂLJE on regulatory implementation problems thathave been identified since [the publishing ofl SSR
96-7p" id. at x1 n.1. Because the ALJ's decision predates the effective date of SSR 16-3p, this
Recommendation will apply SSR 96-7p to Plaintiffs credibility challenge.
10

or deformity in the musculoskeletal system, and there was only mild crepitus in the left knee.
(Id. at 23, 41.0-L5.) Ptaintiff could also

lift, cãr\,

and handle light objects; open doors; button

shirts; and manipulate a coin. (Id. at23,4L1..)

Additional medical evidence further contradicted Plaintiffs allegations. Fot example,
in July of

201.2,

Plaintiff teported to the ER complaining of a toothache, and het physical

examination was untemarkable

fot musculoskeletal issues. (Id, at 22, 417-18, 421). On

September 11, 2012, she reported lower back pain, but a normal gait and normal range

motion. (Id. at23,468.) On October 10, 2012, and while

of

she continued to report back pain,

her examination was normal. (Id. at 467.) The diagnosis/plan indicated she should have xrays for her alleged back

pain. (d. at 467.) Plaintiff also underwent laboratory testing for

copper on November 8, 201.2,where het results were rrormal. (Id.

^t22,431..)

That same day,

Plaintiff underwent x-tays of het left hand and wtist, which showed some swelling but no
acute fracture sites.s (Id. at 429, 445.) She also hzd a hepatobiliary scan showing patency

the common bile duct and cystic duct, and a normal gallbladder. (Id. at 22, 447

of

.)

X-rays on November 30, 2012 rcvealed degenetative changes and "possible" spasm,
but no signifìcant scoliosis or bony abnormality. (Id. at22,434.) OnJanuary 4,2013, an MRI
scan

of the upper extension joint due to rotator cuff pain demonstrated only a small bursal

t Plaintiff contends that the ,A.LJ erred by not finding issues with her hands or wrists a severe
impairment at step two. (Docket E.ttty 21, at6,8.) Howevet,any purported step two error hete is
harmless given the presence of other identified severe impairments at step two and the fact that the
ALJ later evaluated Plaintiffs hand and wdst related issues elsewhere in his decision. Qt.26.) See,
e.g.,Youngu. Attrae,No, 1:09CV1008, 2013 WL 474787, at +10 (À{.D.N.C. Feb. 7, 2013) (unpublished);
Garoþlo u. Coluin, No. 1:14CV76L,201,6 WL L092650, at*4 (\4.D.N.C. Mal 21,2016) (unpublished).
Plaintiff has demonstrated, at most, harmless ettor. Sapra n. 5.

i1

surface tear in the infraspinatus tendon and overgrowth of the acromioclavicular

with impingement on the rotator cuff was also noted. (d. at26, 436-37

(",\C") joint

.)

On March 26, 201,3, Plaintiff complained of pain in her dght leg but her physical
examination did not show that there wete deficiencies

in her extremities ot

neutological

system. (Id. at23,462.) Next, on May 30,201,3,Plaintiff repoted that het pain was only 5/10.
(Id. at 23, 452.) On examination, Plaintiff had no joint abnotmalities or swelling, full range

of

motion in all extremities, and 5/5 muscle strength. Qd. at454.) She was told to continue
ibuptofen as needed. (Id. at 454.)

In addition, as the ALJ propedy noted, Plaintiff pursued a conservative course of
treatment despite her alleged debilitating physical symptoms (Id

^t

24.)

See

20 C.F.R. SS

404.1529(c)(3), 41,6.929(c)(3). Plaintiff also took no medications except for vitamins, failing

to take ibuprofen and other prescdbed medications. (Tr. 25,50-51.,369-72,454).
SS

404.1529(c)(3), 416.929(c)Q);20 C.F.R.

disease âs one reason

SS

See

20 C.F.R.

404.1530(b),416.930(b). Plaintiff cited Wilson's

for not taking prescdbed medicine. Çr. 25,312,454,455.) Howevet,

the ALJ cottectly noted that thete v/as no indication from any physician suggesting that the
prescribed medications affected her nØilson's disease or other symptoms.t (Id. at 25.)

Plaintiff also repotted that she engaged

in

daily activities inconsistent with her

allegations, such as cooking meals, doing laundry, cleaning up aftet herself, washing dishes,
and going shopping

in stores for food. (Id. at 1,9, 52,299-300.) Despite her allegations of an

'The Court will

address

Plaintiffs indigence later in this Recommendaflon
12

inability to use her hands, she also testifìed that she smoked half a pack of cigatettes a day.
(Id. at26,53-54.)

See

20 C.F.R.

SS

404.1529(c)(3), 41,6.929(c)(3).10

The ALJ also explained that while Plaintiff testified that she laid in bed to relieve leg
pain once a day, no physician had ptesctibed such a behavior.

Qr 26,45.)

Similady, the ALJ

noted that despite allegations of hand problems, the tecotds did not show that a physician
suggested surgery

for her hand.

Qd.

at26,46.) Likewise, the ALJ also cortectly noted that no

physicians had suggested or presented enumerated limitations

to any degtee, nor had

any

physician suggested Plaintiff stop working, nor did the records demonsttate that Plaintiff
required in-patient hospitalization, recurrent emergency room visits, ot ctisis center visits. (1/.

^t

26.) In contrast, as noted eadier, the state agency physician opined that Plaintiff did not

have work-preclusive limitations

.

(Id. at

27

,

63-84, 87-108.)

See

Asvr

u. Coluin,

No. 1:10-cv-

647, 201.5 ìøL 506840, at*6-*7 (À4.D.N.C. Feb. 6, 20L5) (unpublished) adoþted fu 2015

W-

1,097442 (À4atch 1,1,,201,5) (unpublished). For all these reasons, the ALJ's decision not to

fully

credit all of Plaintiffs a[eged physical limitations was supported by substantial evidence.

b. The ALJ's Decision to Partially Discount Plaintiffls Allegations of
Mental Limitations Was Supported by Substantial Evidence.
Next, Plaintiff also testified that she had debilitating anxiety and depression that led to

10

Plaintiff ârgues that the ALJ should have considered the fiequency of her activities of darly

living. (Docket Ertry 1.5 at27-28.) The.A,LJ did this. (It. 19.) Moreover, the ALJ also consideted
the "entire record" in formulating the RFC. Qr.21). See Reid,769 F.3d at 865. In the recotd,
Plaintiff indicated that she prepared meals daiþ, washed dishes daily, dld laundry once a week, and
went shopping in stores every month. Qt.299-300.) Moreover, as explained in detail herein, the ALJ
relied on grea:t deal more than Plaintiffs activities of daily living to evaluate her credibility and
^
material error on this point.
determine her RFC. Plâintiff has failed to demonstr^te
^ny
13

crylng and fatigue. (Tr. 51.) Howevet, the ALJ noted that Plaintiff attended a consultative
examination and that the consulting doctot's observations were inconsistent with Plaintifls
allegations of complete disability. Qd. at 25.) Specifically, the ALJ noted that on June 6, 201.2,

Plaintiff reported on time to the consultation and was accompanied by two ftiends. (Id. at24,

404.) She reported that she had not had any mental health treatment ot

medication

manâgement. Qd. at 25, 405.) She denied suicidal ideation. (Id. at 25, 405.) Thete was no
evidence

of hallucinations, delusions ot

processes wete logical and

psychotic thought processes, and her thought

coherent. (Id.)

Plaintiff "was falso] able to name the months of the year

in forward

and teverse

directions without error. She could solve a simple atithmetic problem in het head. She was

oriented to time place and petson. She could perform four of five instructions. Âuditory
memory fot digits, teflective of numerical attention span, was within notmal limits for an
individual het age, i.e., six digits forward and fìve digits backward. !7ith vetbal contextual cues
present, she was able to answer fout of six questions comectly about a simple story read aloud

to het. Vetbal tecall was two of four words after a ten minute interval. Insight and judgment
were above average." Çr.25,406.) Plaintiff also indicated she could màîage funds effectively.

(Id.) ,{,nd, on June 9, 201,2, a few days aftet her June 6, 201,2 consultative appointment,

a

second medical consultant observed that while Plaintiff was tearful; het mood was appropdate,
she was

alet and odented, she had good

eye contact, fluent speech and clear thought, and het

memorT and concenttation were both good. Qd. at25,41.0.) The ALJ also correctly pointed

out that Plaintiff teported to a consultative examinet on June 9,201.2 that she did not ddnk
I4

alcohol, afterhavine indicated to another consultative examiner three days previously that she
had one beer a week. Qd. at26,405,41.1'.)

Âlso, in JuIy 201,2, when Plaintiff reported to the ER complaining of tooth pain, she
was noted to be alert, oriented, and cooperative. (Id.
was

within normal limits.

Qd.

at24,420.) Her psychiattic examination

at24,421,.) On March 26,20'13, Plaintiff tepotted to the Cittus

County Health Department that she had anxiety and deptession, and she was ptescdbed

Zoloft (id. at 24, 462); but on May 30, 201,3, when Plaintiff reported that she had deptession
and anxiety (id. at 452), she was assessed to have a mood and affectthat were apptopriate to

the situation (id. at 454). Plaintiff was also inconsistent in desctibing the frequency of her
anxiety attacks, at one point indicating she had no attacks since 2008

,

and at another point

stating that she had two anxiety attacks in the last six months. (Id. at27 ,304-305.)

The ALJ also took into account in assessing Plaintiffs credibility that she engaged in
daily activities inconsistent with het allegations, such as cooking meals, doing laundry, cleaning

up aftet herself, washing dishes, and going shopping in stotes for food. (Id. at'1..9,27 ,52,299-

300.) She also reported that she spent trme with others and played cards with het friends
occasionally Qd at20,301,-02.) Moreover, the ALJ noted thatatthe administrative hearing,

Plaintiff was able to provide ans\r/ers to the questions presented with desctiptions and
explanations. (Id.
C.F.R.

SS 404.1

^t20.)

These activities also contradicted Plaintiffs a[eged disability.

See

20

s2e(c)(3), a16.e2e (c)Q).

Âs with her alleged physical limitations, the ALJ also noted that the state
psychologists opined that Plaintiff did not have wotk-preclusive limitations.
15

(It.

agency

27, 68-69,

92-93).

See

Atsar, 201,5 WL 506840,

ú

*6-*7

.

For all these teasons, the A,LJ's decision not to

completely credit all of PlaintifPs alleged limitations was suppotted by substantial evidence.ll

C. The ALJ Propedy Considered PlaintifPs Inability to Pay for Medical Care.
In contesting the ALJ's decision, Plaintiff also contends the ALJ failed to ptopedy
address her inability

to afford

medical treâtment and medications. (Docket

Ettty 15 at23,

25.) This is not so. Insteâd, the ALJ stated, that while he would:
never hold it against the claimant for not having insurance, the
question temains if it is reasonable the claimant would not pursue
lowet cost or subsidized avenues to pay for treatment when
conttasted with the allegations. Futthermote, I acknowledge the
added obstacles of tteatment with insutance problems and the
high costs of medical treatment make it sometimes difficult for
uninteffupted tteatment. Hov/ever, I cannot ovedook that there
is no evidence showing the claimant even attempted to get lower
cost altetnatives despite the claims of such symptomatic severity.
This failure to even try to acquite subsidized help tends to suggest
the symptoms may not be as severe as it is reasonable that one
would ât least attempt to get help.
Qr.26.)12

11

Plaintiff contends that the ALJ erred in giving "minimal weight" to a third party function
report submitted by her sister merely because it was ftom a fam)ly membet. (Docket E.rtty 21 at 5
referencingTr. 27 ,287 -295.) Plaintiff also contends that the ,{.LJ erted by not futther investigating the
allegations of Pl¿intiffs sister. Qd.) Itis true that the ALJ here did find the third party function report
unreliable. Çt27-28.) However, Plaintiffs sister also teported that she spends no time with Plaintiff
except on the phone because they live in different states. (Id. at 27, 287 .) ,{.dditionally, Plarntiffs
sister provided little information on Plaintiff specifically, but tather provided information generally on
l7ilson's disease. (d. at27,287-295.) Consequently, the ALJ did not err hete in concluding that this
third party function repott was entitled to limited weight where it was cotft.r^ry to the medical tecotd,
general as opposed to specific, and lacking entitely in any direct obsewation of Plaintiff herself. (1/.
at27-28.) These reasons, and teasons set forth elsewhere in this Recommendation, also support the
decision of the ALJ not to investigate Plaintiffs sistet further.
t2

Defendant also points out (Docket Enuy 1.7 at n.3) that Plaintiffls assertion that she could
not afford a ten dollar co-pây at the ftee clinic is contradicted by testimony that she smoked ahalf a
T6

",{. claimant may not be penalized fot failing to seek treatment she cannot afford; '[i]t
flies in the face of the patent purposes of the Social Security Act to deny benefits to someone
because he is too poor to obtain medical treatment thatmay help

F.2d1,114,1117 (4th Cir. 1986) (quoting Gordon

u.

him.' " Louelol

u.

Heck/er,79}

Schweiker,725F.2d231,,237 (4th Cir. 1984)).

Moreover, Social Secutity Ruling 96-7p, provides that:

adjudicator must not dtaw any inferences about an
individual's symptoms and theit functional effects ftom a falltxe
to seek or pursue tegular medical treatment without ftst
considering any explanations that the individual may provide . . .
that may explain infrequent or irregulat medical visits ot failure
to seek medical treatment . . . . For example:

Flh.

The individual may be unable to afford treatment andmay
not have access to free ot low-cost medical services.
SSR 9ó-7p

,

1,996

WL

37 41,86,

at *7 -8. However, even

if a claimant

cannot afford medicai

treatment, she must "show that [s]he has exhausted all free or subsidized sources of fteatment
and document

þer]

îtnancial citcumstances befote inabitity to pay will be consideted good

cause." Gordon,725F.2d^t237 (referenùngssR 82-59,1'982 ìØL 31384,at*4 (1,982).)

Hete, Plaintiff contends that she went to a clinic for treatment, but thete was no
evidence before the ALJ that she sought more aggressive meâns of tleatment such as physical

therapy, epidural injections, or surgery; that she âttempted to see a medical specialist; that she

sought to attend therapy for her alleged mental impairments, or that she sought financial

pack of cþrettes â day. (ConþareDocketEntry 1,5 at2 withTr 53-54.) The record does indeed reflect
this, however, the Court need not rely on this observation in light of the othet considetable substantial
evidence described above.
17

assistance in obtaining medications. (Tr. 24-26.)

See,

e.g,Tamer u. Coluin, No. 3:12-CV-00422-

MOC, 201,3WL 1181603, at x4 flW.D.N.C. Mat. 21,2013) (unpublished).
Moreovet, the A{'s credibility analysis turns on more than simply

a negative

credibility

inference based upon PlaintifPs inability to secure additional medical cate ot medication. By
way of non-exclusive example, no doctor that examined Plaintiff presctibed any limitations or
suggested that she was unable

to work. The non-examining physicians did not find that

Plaintiff suffered ftom disabling limitations. Plaintiffs activities of daily living were
inconsistent with her allegations

also

of complete disability. And, as noted, Plaintiff was also

unwilling to take her med-ication because of its purported, and unsubstantiated, impact on her
\X/ilson's disease.

See,

e.!.,H0¡e u. Coluin,No. 1:15CV00662,201,6WL1621632, at x6 (1\4.D.N.C.

Apr. 22, 201,6) (unpublish ed); Hambjt u. Coluin, No. 1 :12-CV-00395-G C}t/, 201,4 WL

1,87 497 9 ,

at *6 (W.D.N.C. May 9, 201,4) (unpublished); Tamer, 2013 WL 1,18L603, at *4; MtKinnel

Astrue,

No.

5:06-CV-00998, 2008

ìfL

754109,

^t

u.

*1.4 (S.D.\X/. Ya. Mar. 1.9, 2008)

(unpublished). Consequentl!, Plaintiff has failed to demonstt^te aîy material error on this
issue.13

t' Plaintiff

also argues that the ALJ erred by posing hypotheticals to the VE with limitations
not included in the RFC. pocket Entry 1.5 at29-30.) The ALJ is not required to adopt the limitations

in every hypothetical to a VE. Instead, the ALJ is only required to adopt credibly

established

limitations when formulating the RFC, Brytanr u. Coluin, No. 3:13-CV-349-J4G,201.4 \X/L 896983, at
*12 (8.D. Va. Mat. 6,201,4) (unpublished) (noting an ALJ "is only required to include those limitations
that the -{LJ considers credibly established"). And, here, as explained above, the ALJ sausfied this
obligation. Plaintiff also contends that the jobs of cartridge loadet, cleanerfhousekeepet, and sorter
of agricultutal ptoduce exceed the scope of her RFC. Q)ocket Enty 21. at 1.0.) However, the VE
testified that these jobs could be performed by an individual with an RFC identical to Plaintiffs, and
Plaintiff points to no evidence to the contrary. (Tr. 29,56-59.) See, e.g., DOT S 323.687-01.4,1.991.
WL 672783 (Cleaner, Housekeeping) (no exposure to vibrations); DOT 779.687-014, 1991 løL
680749 (Cartridge Loader) ("Vibration: Not Present - ,{.ctivity or condition does not exist."), These
18

V. CONCLUSION

,\fter a careful consideration of the evidence of tecotd, the Coutt finds that
Commissionet's decision

is suppoted by

the

substantial evidence. Accordingly, this Court

RECOMMENDS that Plaintiffls motions for judicial review pocket Etttry 15 and 20) be

DENIED, Defendant's motion for judgment on the

pleadings

pocket Etttry 16) be

GRANTED, and the final decision of the Commissionet be upheld'

J

L

T[re&utcr

Stetcr l'{ogirtrue Jurlgr

Octobet 1.3,201.6
Dutham, North Catolina

contentions lack merit.

I9