MCNEILL v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 3/29/2017. It is therefore RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judg ment Remanding the Final Decision of the Commissioner of Social Security (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that this action be dismissed with prejudice.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CYNTHIA DIANE MCNEILL,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.

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1:16CV1081

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Cynthia Diane McNeill, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Acting Commissioner of Social
Security,

denying Plaintiff’s

claims

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)

Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 13; see also Docket Entry 12
(Plaintiff’s Brief); Docket Entry 14 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Defendant.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI, alleging an onset date of
June 1, 2008.

(Tr. 253-67, 282-88.)

Upon denial of those

applications initially (Tr. 94-111, 144-60) and on reconsideration
(Tr. 112-35, 162-69), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 180-81).

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 39-84.)

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 15-30.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-4,
12-14), thereby making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2014.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 1, 2008, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
acromegaly;[2] degenerative disc disease of the lumbar
spine; non-malignant spinal lesion; obesity; tobacco
abuse.
. . .

2

Acromegaly is “a chronic disease of adults caused by hypersecretion of growth
hormone, characterized by enlargement of many parts of the skeleton, especially
distal portions such as the nose, ears, jaws, fingers, and toes.” Elsevier
Saunders, Dorland’s Illustrated Medical Dictionary 20 (3d ed. 2012).

2

4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except [Plaintiff]
is able to occasionally balance, stoop, kneel, crouch,
crawl and climb ramps and stairs but never ladders, ropes
or scaffolds; must avoid more than occasional exposure to
extreme cold and vibrations; must avoid all exposure to
hazardous machinery and unprotected heights; is able to
frequently handle, finger, and feel bilaterally; is able
to perform tasks that do not require stringent production
or fast pace for example as required by fast pace
assembly line work, piece rate work, or quota based work;
[Plaintiff] is able to stand for 30 minutes to 1 hour and
sit for 30 minutes to 1 hour and thus must be permitted
to alternate between sitting and standing every 30
minutes to 1 hour as needed while remaining on task.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as an accounts payable clerk (DOT 216.482-010),
SVP5, skilled, sedentary work.
This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] can also
perform.
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from June 1, 2008, through the
date of this decision.
(Tr.

20-29

(bold

font

and

internal

omitted).)

3

parenthetical

citations

II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

the Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

“It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).

“If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

4

is

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.

5

(quoting

42

U.S.C.

§

423(d)(1)(A)).3

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id.

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).4

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is

3

The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
. . . provides benefits to indigent disabled persons. The statutory definitions
and the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
4

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.5

Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

See id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work

5

“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.

7

experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.6
B.

Assignments of Error

Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[t]he ALJ’s decision to afford little weight to the
opinions

of

the

treating

physicians

was

not

supported

by

substantial evidence, and her overall determination was erroneously
based on her own lay opinion” (Docket Entry 12 at 3 (bold font
omitted)); and
(2) “[t]he ALJ’s Step 4 finding that [Plaintiff’s] work as an
accounts payable clerk was past relevant work is not supported by
substantial evidence” (id. at 15 (bold font omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 14 at 3-20.)

6

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

8

1. Treating Physicians’s Opinions
In Plaintiff’s first assignment of error, she contends that
“[t]he ALJ’s decision to afford little weight to the opinions of
. . . treating physicians [Drs. Tiffany L. Morton and Nathaniel
Coleman] was not supported by substantial evidence.” (Docket Entry
12 at 3 (bold font omitted).)7

More specifically, Plaintiff

alleges that the ALJ improperly discounted Dr. Morton’s opinions
because Dr. Morton had only treated Plaintiff on a couple of
occasions and had not evaluated Plaintiff in more than a year
before the hearing.

(Id. at 5 (citing Tr. 27).)

Additionally,

Plaintiff contests the ALJ’s conclusion that Dr. Coleman’s opinions
warranted little weight because the record evidence did not support
them.

(Id. at 7-8 (citing Tr. 27).) According to Plaintiff,

because “the ALJ rejected all opinions from the medical sources in
the record,” she improperly “relied on [her] own lay assessment of
evidence, which included complicated diseases such as acromegaly
and hyperthyroidism that the ALJ would not be able to adequately
address.”

(Id. at 14.)

Plaintiff’s arguments miss the mark.

The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.

7

20 C.F.R.

In the ALJ’s decision, she referred to Dr. Morton as “Tiffany Morts, MD” (Tr.
27); however, an on-the-record discussion between Plaintiff’s attorney and the
ALJ at the hearing clarified that the ALJ misinterpreted Dr. Morton’s signature
on a document as “Morts” (see Tr. 42-43). This Recommendation will refer to this
physician by her actual name, Dr. Morton.

9

§§ 404.1527(c)(2), 416.927(c)(2) (“[T]reating sources . . . provide
a

detailed,

longitudinal

picture

of

[a

claimant’s]

medical

impairment(s) and may bring a unique perspective to the medical
evidence

that

cannot

be

obtained

from

the

objective

medical

findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.”).

The rule

also recognizes, however, that not all treating sources or treating
source opinions merit the same deference.

For example, the nature

and extent of each treatment relationship may appreciably temper
the weight an ALJ affords an opinion.
(c)(2)(ii),

416.927(c)(2)(ii).

20 C.F.R. §§ 404.1527

Moreover,

as

subsections

(2)

through (4) of the rule describe in great detail, a treating
source’s opinion, like all medical opinions, deserves deference
only if well-supported by medical signs and laboratory findings and
consistent with the other substantial evidence in the case record.
20

C.F.R.

§§

404.1527(c)(2)-(4),

416.927(c)(2)-(4).

“[I]f

a

physician’s opinion is not supported by clinical evidence or if it
is inconsistent with other substantial evidence, it should be
accorded significantly

less

weight.”

Craig, 76

F.3d

at

590

(emphasis added).
a. Dr. Morton
On March 7, 2013, Dr. Morton completed an RFC Questionnaire,
noting that she treated Plaintiff for acromegaly, which remained
“stable,” but caused Plaintiff to suffer arthritis, chronic pain,

10

and sweating.
symptoms

would

(Tr. 663.)
frequently

Dr. Morton opined that Plaintiff’s
“interfere

with

the

attention

and

concentration required to perform simple, work-related tasks,”
that she would need to “recline or lie down” during the work day in
excess of typically allowed breaks, and that she would require
unscheduled breaks every one to two hours for 20 to 30 minutes
throughout the work day.

(Id.)

Dr. Morton further estimated that

Plaintiff could walk less than one city block without rest or
significant pain, sit for 30 minutes at a time and for two hours
total in a work day, stand and/or walk for 15 minutes at a time and
for two hours total in a work day (see id.), occasionally lift
and/or carry up to 10 pounds, and grasp, manipulate, and reach for
up to 20 percent of the workday (see Tr. 664).
Morton

believed

that

Plaintiff

would

miss

impairments three to four times per month.

In addition, Dr.
work

due

to

her

(See id.)

Here, the ALJ’s evaluation of Dr. Morton’s opinions complied
with the regulatory requirements.

The ALJ accurately summarized

Dr. Morton’s opinions on the RFC Questionnaire, but noted that Dr.
Morton “only saw [Plaintiff] a couple times” and had “not treated
or examined [Plaintiff] for over a year.”

(Tr. 27.)

The ALJ

ultimately accorded Dr. Morton’s opinions “little weight,” as
“inconsistent with the evidence as a whole.”
added).)

11

(Id. (emphasis

Plaintiff takes issue with the ALJ’s analysis of Dr. Morton’s
opinion:
The reasons the ALJ provided for rejecting Dr. Mort[on’s]
opinion are not good reasons as required by the
regulations.
Even if Dr. Mort[on] had only seen
[Plaintiff] a few times, this is merely one factor to
consider and would not be dispositive if her opinion is
supported by her own treatment of [Plaintiff] and
consistent with the evidence as a whole. The ALJ failed
to explain why Dr. Mort[on’s] apparent access to
treatment notes from the rest of the physicians and
treatment providers with UNC was not sufficient to
provide her with sufficient knowledge of [Plaintiff’s]
condition even if she did not personally examine
[Plaintiff] more frequently; after all, [Plaintiff]
received a significant amount of her treatment for
acromegaly and endocrine disorders through UNC in some
form during the relevant period. See e.g., [Tr. ]574641, 675-738, 742-74, 876-969, 1036-1154. The ALJ has
not explained how the treatment relationship between Dr.
Mort[on] and [Plaintiff] was so deficient that it alone
merited rejecting [Dr. Morton’s] opinion without any
further consideration.
Nor did the ALJ make any discernable assessment or
finding related to whether Dr. Mort[on’s] opinion was or
was not consistent with the evidence or supported by her
treatment. Such lack of discussion and analysis shows
that the ALJ failed to properly apply the treating
physician rule when assessing Dr. Mort[on’s] opinion, an
omission which prevents this Court from effectively
reviewing whether substantial evidence supports the ALJ’s
rejection of this opinion.
(Docket Entry 12 at 6-7 (emphasis added).)

Plaintiff’s arguments

fail for two reasons.
First, as Plaintiff effectively concedes by use of the word
“apparent” above, the mere fact that Dr. Morton worked at the same
endocrinology clinic where various other physicians had previously
treated Plaintiff demonstrates neither that Dr. Morton reviewed

12

those prior treatment records nor, even if she reviewed them, that
she based her opinions, even in part, on those prior treatment
records.

Indeed, the RFC Questionnaire does not reflect that Dr.

Morton based her opinions on anything beyond her own observations
and treatment of Plaintiff.

(See Tr. 663-64.)

Moreover, the

regulations expressly permit ALJs to consider the length and
frequency of the treatment relationship in deciding the weight to
afford a medical opinion, and do not provide any type of allowance
or exception for providers within the same practice or office. See
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Thus, the ALJ did not

err by discounting Dr. Morton’s opinions, in part, because of the
infrequency and short duration of treatment.

See Smith v. Colvin,

No. CIV.A. 0:12-73-DCR, 2013 WL 5350614, at *5 (E.D. Ky. Sept. 23,
2013) (unpublished) (finding no error in ALJ’s decision to give no
weight to opinion of physician who only examined claimant once,
notwithstanding fact physician worked at same clinic as treating
physician).
Second, the ALJ’s decision contradicts Plaintiff’s contention
that the ALJ did not “make any discernable assessment or finding
related to whether Dr. Mort[on’s] opinion was or was not consistent
with the evidence” and rejected Dr. Morton’s opinions solely on the
basis of the treatment relationship’s length.
with, Docket Entry 12 at 6 (emphasis added).)

(Compare Tr. 27

As quoted above, the

ALJ expressly found Dr. Morton’s opinions “inconsistent with the

13

evidence as a whole.”
decision,

the

ALJ

(Tr. 27 (emphasis added).)
discussed

the

record

Elsewhere in the

evidence

at

length,

including Plaintiff’s testimony (see Tr. 23), her treatment for
acromegaly and degenerative disc disease (see Tr. 23-26), and her
reported daily activities (see Tr. 26-27).

With regards to both

Plaintiff’s acromegaly and degenerative disc disease, the ALJ
detailed the medical evidence that supported her findings that
Plaintiff’s “treatment records fail[ed] to reveal the type of
significant clinical and laboratory abnormalities one would expect
if [Plaintiff] were in fact disabled”
26.)

(Tr. 23, 24).

(See Tr. 23-

Accordingly, contrary to Plaintiff’s contention (see Docket

Entry 12 at 6-7), the Court can meaningfully review the ALJ’s
reasoning with regards to Dr. Morton’s opinions.
In sum, substantial evidence supports the ALJ’s decision to
discount Dr. Morton’s opinion.
b. Dr. Coleman
On

July

8,

2013,

Dr.

Coleman

also

completed

an

RFC

Questionnaire, but adopted limitations even more restrictive than
those of Dr. Morton. (See Tr. 672-73.)

Dr. Coleman reported that

Plaintiff had sought treatment with the endocrinology clinic since
2000 for acromegaly and hyperthyroidism, which caused hip and back
pain and fatigue.
Plaintiff’s

(See Tr. 672.)

prognosis

as

“good,”

Although Dr. Coleman deemed
Dr.

Coleman

opined

that

Plaintiff’s symptoms would often “interfere with the attention and

14

concentration required to perform simple, work-related tasks,”
that she would need to “recline or lie down” during the work day in
excess of typically allowed breaks, and that she would require
unscheduled breaks every hour for 15 minutes throughout the work
day.

(Id.)

Dr. Morton further estimated that Plaintiff could not

walk even one city block without rest or significant pain, could
sit for five minutes at a time and for five hours total in a work
day, could stand and/or walk for five minutes at a time and for
five hours total in a work day (see id.), could perform no lifting
or carrying of any weight, and had unspecified limitations on her
ability

to

grasp,

manipulate,

and

reach

(see

Tr.

673).

In

addition, Dr. Coleman believed that Plaintiff would miss work due
to her impairments more than four times per month.
The

ALJ

recited

Dr.

Coleman’s

opinions

(See id.)
on

the

Questionnaire, and found as follows:
Dr. Coleman’s opinion is given little weight as the
record reflects that [Plaintiff’s] symptoms have improved
with treatment and the record as a whole does not support
claims that [Plaintiff] can only stand or sit for 5
minutes at a time and would miss 4 days of work per
month.
She sat through the hearing with little
adjustment and has cared for young children since the
alleged on set [sic] date. [Plaintiff] performs a full
range of daily activities including caring for two young
children, grocery shopping, laundry, washes dishes and
helps her husband with his lawn care business during the
on season. Furthermore, conservative treatment such as
weight loss, increased fitness and smoking cessation was
recommended.
She underwent an[] epidural steroid

15

RFC

injection with near complete resolution of leg pain.
Thus the [ALJ] finds [Plaintiff] has obvious limitations
but not to the degree prescribed by Dr. Coleman.
(Tr. 27 (internal citations omitted).)
Plaintiff contests the ALJ’s finding that the record as whole
does not support Dr. Coleman’s opinions regarding Plaintiff’s
ability to sit and predicted absence from work.
12 at 8.)

(See Docket Entry

In that regard, Plaintiff cites to numerous clinical and

diagnostic findings throughout the relevant period in this case
which she contends support Dr. Coleman’s opinions.

(Id. at 8-10.)

However, Plaintiff misinterprets this Court’s standard of review.
The Court must determine whether the ALJ supported her analysis of
Dr. Coleman’s opinion with substantial evidence, defined as “more
than a mere scintilla of evidence but may be somewhat less than a
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), and not whether other record evidence
weighs against the ALJ’s analysis, Lanier v. Colvin, No. CV414-004,
2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015) (unpublished) (“The
fact that [the p]laintiff disagrees with the ALJ’s decision, or
that there is other evidence in the record that weighs against the
ALJ’s decision, does not mean that the decision is unsupported by
substantial evidence.”).

The ALJ here buttressed her finding that

the record as a whole did not support Dr. Coleman’s opinions
regarding sitting and absences, by noting that Plaintiff sat
through

the

hearing

“with

little

16

adjustment,”

that

Plaintiff

received conservative treatment for her impairments, and that
Plaintiff engaged in a wide range of daily activities, including
caring for two young children.

(Tr. 27.)

Plaintiff specifically challenges the ALJ’s reliance on “h[er]
observations of [Plaintiff’s] ability to sit at the hearing, [as]
such observations cannot take the place of medical evidence for
rejecting a treating physician’s opinion.”

(Docket Entry 12 at 12

(citing Manning v. Colvin, No. 1:15CV581, 2016 WL 4289290, at *9
n.6

(M.D.N.C.

Aug.

15,

2016)

(unpublished)

(Peake,

M.J.),

recommendation adopted, slip op. (M.D.N.C. Sept. 6, 2016) (Biggs,
J.), and Toms v. Colvin, No. 1:10CV856, 2014 WL 509195, at *10
(M.D.N.C.

Feb.

7,

2014)

(unpublished)

(Webster,

M.J.),

recommendation adopted, 2014 WL 1338270 (M.D.N.C. Apr. 1, 2014)
(unpublished) (Osteen, Jr., C.J.) (in turn citing Jenkins v.
Sullivan, 906 F.2d 107, 108 (4th Cir. 1990))).
Social

Security

Administration

policy

affords

ALJs

some

latitude to rely on their personal observations of claimants during
hearings as part of their overall credibility analysis. See Social
Security Ruling 96-7p, Policy Interpretation Ruling Titles II and
XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, 1996 WL 374186, at *8
(July 2, 1996) (“SSR 96-7p”) (“In instances in which the [ALJ] has
observed the individual, the adjudicator is not free to accept or
reject the individual’s complaints solely on the basis of such

17

personal

observations,

but

should

consider

any

personal

observations in the overall evaluation of the credibility of the
individual’s

statements

.

.

.

.”).8

However,

the

ALJ

here

improperly relied on her observations of Plaintiff as a basis for
rejecting Dr. Coleman’s opinion.

See Harris v. Colvin, 149 F.

Supp. 3d 435, 447 (W.D.N.Y. 2016) (finding that the so-called “‘sit
and squirm’ test is not considered sufficient evidence to rebut
findings

of

pain

or

other

symptoms

by

treating

physicians”

(internal quotation marks and brackets omitted)); Taynor v. Astrue,
No. 5:12-CV-01782, 2013 WL 1663104, at *6 (N.D. Ohio Apr. 17, 2013)
(unpublished) (holding that “the ALJ’s personal observations of the
claimant at the hearing are not an appropriate basis to set aside
a treating physician’s opinion”).
Nevertheless, that error by the ALJ qualifies as harmless
under the circumstances presented here.

8

See generally Fisher v.

Effective March 28, 2016, see Social Security Ruling 16-3p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 2016 WL 1237954 (Mar. 24, 2016) (correcting effective date of original
Ruling), the Social Security Administration superceded SSR 96-7p with Social
Security Ruling 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation
of Symptoms in Disability Claims, 2016 WL 1119029, at *1 (Mar. 16, 2016). The
new ruling “eliminat[es] the use of the term ‘credibility’ from . . . subregulatory policy, as [the] regulations do not use this term.” Id. The ruling
“clarif[ies] that subjective symptom evaluation is not an examination of the
individual’s character,” id., and “offer[s] additional guidance to [ALJs] on
regulatory implementation problems that have been identified since [the
publishing of] SSR 96-7p,” id. at *1 n.1.
The ALJ’s decision in this case
predates the effective date of SSR 16-3p (see Tr. 30), and, because SSR 16-3p
changes existing Social Security Administration policy regarding subjective
symptom evaluation, that Ruling does not apply retroactively, see Bagliere v.
Colvin, No. 1:16CV109, 2017 WL 318834, at *4-8 (M.D.N.C. Jan. 23, 2017) (Auld,
M.J.), recommendation adopted, slip op. (M.D.N.C. Feb. 23, 2017) (Eagles, J.);
see also Hose v. Colvin, No. 1:15CV00662, 2016 WL 1627632, at *5 n.6 (M.D.N.C.
Apr. 22, 2016) (unpublished) (Auld, M.J.), recommendation adopted, slip op.
(M.D.N.C. May 10, 2016) (Biggs, J.).

18

Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o
principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason
to believe that the remand might lead to a different result”).
quoted

above,

the

ALJ

did

not

rely

solely

on

her

As

personal

observations of Plaintiff in discounting Dr. Coleman’s opinions
regarding sitting and absence from work – the ALJ also cited
Plaintiff’s daily activities and conservative treatment.
27.)

(See Tr.

Moreover, the ALJ expressly found that the record as a whole

did not support Dr. Coleman’s opinion that Plaintiff could only sit
for five minutes at a time.

(See Tr. 27.)

The record as a whole

encompasses Plaintiff’s own testimony that she can sit for 10 to 15
minutes at a time.

(See Tr. 73.)

“[A]n ALJ can surely discount a

treating doctor’s opinion as to a claimant’s limitations where
those

limitations

are

more

restrictive

self-reported limitations . . . .”

than

a

claimant’s

Taynor, 2013 WL 1663104, at *6.

Given the ALJ’s other bases for discounting Dr. Coleman’s
opinions concerning sitting and absence from work, the ALJ’s
improper reliance on his personal observations of Plaintiff did not
render his analysis of those opinions unsupported by substantial
evidence. See generally Foster v. Colvin, No. CIV.A. 6:13-926-TMC,
2014 WL

3829016,

at *11

(D.S.C.

Aug.

4,

2014)

(unpublished)

(holding that, “even if the ALJ erred by considering whether the
statement was prepared in anticipation of litigation, . . . such

19

error was at most harmless as the ALJ gave several valid reasons
for discounting [the treating physician’s] opinion”).
Plaintiff

additionally

disputes

the

ALJ’s

reliance

on

Plaintiff’s daily activities as a basis for rejecting Dr. Coleman’s
opinions. (See Docket Entry 12 at 12-13.) According to Plaintiff,
the ALJ’s “characterization of [Plaintiff’s] activities” does not
harmonize “with what she actually reported, [and] the ALJ . . .
failed

to

explain

how

such

generic

limited

activities

are

inconsistent with [Dr. Coleman’s opinions] or with [Plaintiff’s]
allegations of being unable to work.”

(Id. (citing Fletcher v.

Colvin, No. 1:14CV380, 2015 WL 4506699, at *5-8 (M.D.N.C. July 23,
2015) (unpublished) (Webster, M.J.), recommendation adopted, slip
op. (M.D.N.C. Aug. 14, 2015) (Biggs, J.)).)
Plaintiff’s reliance on Fletcher misses the mark.

In that

case, the ALJ had found the plaintiff capable of medium work, see
Fletcher, 2015 WL 4506699, at *5, which involves lifting and
carrying up to 50 pounds occasionally and 25 pounds frequently, see
20 C.F.R. §§ 404.1567(c), 416.967(c), amounts significantly heavier
than the no-lifting opinion offered by Dr. Coleman (see Tr. 673).
In

Fletcher,

the

Court

focused

on

the

fact

that

the

daily

activities relied upon by the ALJ did not demonstrate an ability to
perform the demanding requirements of medium work.

See, e.g.,

Fletcher, 2015 WL 4506699, at *7 (“[T]he undersigned does not
understand why Plaintiff’s ability to take . . . trips over a

20

multi-year period — most of which involved driving an hour and
apparently remaining sedentary upon arrival — would translate to an
ability to repeatedly lift twenty-five to fifty pounds for a
considerable portion of the day or to stand for most of a work
day.”).
Under similar facts, another judge of this Court recently
rejected a plaintiff’s argument, based on Fletcher, that the ALJ’s
reliance on her daily activities in formulating the RFC warranted
remand.

See Tolbert v. Colvin, No. 1:15CV437, 2016 WL 6956629, at

*6 n.5, *7-8 (M.D.N.C. Nov. 28, 2016) (unpublished) (Osteen, Jr.,
C.J.).

In Tolbert, the ALJ found that the plaintiff could perform

light work, based, in part, on her self-reported daily activities,
which included making beds, washing dishes, vacuuming, mopping,
washing clothes, cooking, playing with her dog, playing computer
games, checking the mailbox, dusting, washing her car, and clothes
shopping.

Id. at *7.

The Court concluded that “[r]eliance on

Fletcher [wa]s not justified,” because the ALJ in Fletcher had
found

the

plaintiff

capable

of

medium

work,

which

involves

“significantly heavier” lifting requirements than light work.
at *6 n.5.

Id.

Further, the Court noted Fletcher’s emphasis “on the

fact that the [daily activities] relied upon by the ALJ did not
demonstrate an ability to perform the demanding requirements of
medium work.”

Id.

Similarly, the ALJ here limited Plaintiff to

21

light work (see Tr. 22) and, thus, under the persuasive reasoning
of Tolbert, Fletcher does not apply.
Moreover, the ALJ here did not overstate Plaintiff’s daily
activities. The ALJ expressly acknowledged that Plaintiff “alleged
some reliance on her daughter for chores” (Tr. 26), but also noted
that Plaintiff “admitted at the hearing that her daughter had only
been living with her for two weeks at the time of the hearing” (Tr.
26-27; see Tr. 56).

Furthermore, Plaintiff does not point to any

testimony or evidence to refute the ALJ’s statement that, “[s]ince
the alleged onset date, [Plaintiff] has cared for 2 young children,
performing a full range of care for them” (Tr. 26).

(See Docket

Entry 12 at 12-13; see also Tr. 56-57.)
Under these circumstances, the ALJ did not err in relying, in
part, on Plaintiff’s daily activities to discount Dr. Coleman’s
opinions.
Plaintiff also would have the Court reject the ALJ’s finding
that Plaintiff’s symptoms improved with treatment as a basis for
discounting Dr. Coleman’s opinions.

(See Docket Entry 12 at 11-12

(referencing Tr. 27).) More specifically, Plaintiff focuses on the
ALJ’s statement that Plaintiff “underwent an[] epidural steroid
injection with near complete resolution of leg pain” (Tr. 27),
noting that such “injections . . . did not occur until very late in
2013,

while

[Plaintiff]

is

alleging

disability

since

2008;

therefore, any such improvement does not explain why Dr. Coleman’s

22

opinion from July 2013 merited rejection.”

(Docket Entry 12 at

11.)
Plaintiff’s argument glosses over the ALJ’s earlier statement,
within

the

same

paragraph,

that

“the

record

reflects

that

[Plaintiff’s] symptoms improved with treatment.” (Tr. 27 (emphasis
added).) Thus, although the ALJ provided Plaintiff’s 2013 epidural
steroid

injection

as

an

example

of

evidence

showing

symptom

improvement, the ALJ’s decision recites other examples of such
improvement earlier in the relevant period.

For instance, with

regards to Plaintiff’s acromegaly, the ALJ noted as follows:
In January 2011[,] [Plaintiff’s] IGF[-1 level]
dramatically decreased from 900 to 264 . . . .

had

By December 2011, . . . [t]he record indicates
significant improvement with medication. In April 2012,
[Plaintiff] was taking cabergoline regularly with no side
effects. Her IGF-1 level was improved and was the best
it had been in the last several years.
Continued
improvement was noted in September 2012. [Plaintiff’s]
IGF-1 levels were stable [through] 2013 . . . .
(Tr. 24.)9

Accordingly, the

ALJ

did

not err

in

relying

on

Plaintiff’s symptom improvement to discount Dr. Coleman’s opinions.
In short, the ALJ provided substantial evidence to support her
analysis of Dr. Coleman’s opinions.
c. ALJ Substitution of Lay Opinion
Plaintiff further argues that, because “the ALJ rejected all
opinion evidence present in the record,” she impermissibly “relied

9

IGF-1 refers to insulin-like growth factor 1. See Elsevier Saunders, Dorland’s
Illustrated Medical Dictionary 913 (3d ed. 2012).

23

on [her] own lay assessment of evidence, which included complicated
diseases such as acromegaly and hyperthyroidism that the ALJ would
not be able to adequately assess as well as multiple imaging
studies of [Plaintiff’s] lumbar spine that showed severe effects
with nerve root impingement.”
Webster

v.

(M.D.N.C.

Colvin,
Aug.

No.

15,

(Docket Entry 12 at 14 (citing

1:11CV101,
2014)

2014

WL

(unpublished)

4060570,
(Peake,

at

*4-5

M.J.),

recommendation adopted, slip op. (M.D.N.C. Sept. 17, 2014) (Osteen,
Jr., C.J.)).)
Plaintiff’s argument falls short, because Webster involves
distinguishable facts.

In that case, the ALJ assigned little

weight to the consultative psychological examiner and both state
agency psychologists, who had offered “the only mental health
opinions of record.”

Webster, 2014 WL 4060570, at *4.

The Court

ordered remand, because “the ALJ . . . expressly interpreted the
raw data from [the] [p]laintiff’s treatment notes to discredit the
opinions of the psychiatric consultants and . . . used the raw data
to formulate an RFC which [wa]s unsupported by the uncontroverted
opinion evidence in this case.”

Id.

Significantly, however, the

Court stressed that “this is not a situation in which the record
contains

conflicting

opinions;

rather,

the

three

opinions

in

question all include work restrictions beyond those addressed by
the ALJ.”

Id. at *5 (emphasis added).

24

In direct contrast, the state agency physicians here both
found that Plaintiff could perform medium work with only minor
postural limitations (see Tr. 98-99, 106-07, 118-19, 129-30), which
the ALJ rejected as too permissive:
The [ALJ] gives little weight to the opinions of State
agency medical consultants Robert Pyle, MD and Jagjit
Sandhu, MD, who opined that [Plaintiff] was limited to
medium work; could frequently climb ramps and stairs,
ladders, ropes or scaffolds, and frequently balance,
stoop, kneel, crouch, and crawl. These physicians did
not have the opportunity to examine [Plaintiff].
Evidence submitted at the hearing level indicates that
[Plaintiff] has further limitations.
(Tr. 27 (emphasis added).) Thus, by adopting a light-exertion RFC,
the ALJ struck a balance between the state agency physicians’s
medium-exertion

RFC

and

the

less-than-sedentary-exertion

limitations opined by Drs. Morton and Coleman.

See Finch v.

Astrue, 547 F.3d 933, 936 (8th Cir. 2008) (“The ALJ is charged with
the

responsibility

opinions.”).

of

resolving

conflicts

among

medical

Moreover, the ALJ did not reject the opinion of

consultative medical examiner Dr. M.A. Samia:
Consultative examiner Dr. Samia did not issue a medical
source statement. He did note, however, that [Plaintiff]
did not need an assistive device and was able to care for
her activities of daily living. Dr. Samia’s report is
not inconsistent with the . . . [RFC].
(Tr. 28 (emphasis added).) Given these considerations, the ALJ did
not impermissibly rely on her lay opinion in formulating the RFC.
In short, the ALJ did not err in evaluating the treating
physicians’s opinions.

25

2. Past Relevant Work
Lastly, Plaintiff asserts that “[t]he ALJ’s Step 4 finding
that [Plaintiff’s] work as an accounts payable clerk was past
relevant work is not supported by substantial evidence.”
Entry 12 at 15 (bold font omitted).)

(Docket

Plaintiff’s assertion fails,

because, even if the accounts payable job did not qualify as past
relevant work, the ALJ made an alternative step five finding that
there were other light, unskilled jobs that exist in significant
numbers in the national economy that Plaintiff could perform. (See
Tr. 28-29.)

Plaintiff contends that, had the ALJ properly adopted

the treating physicians’s opinions that Plaintiff “was unable to
perform even sedentary work[,] . . . the light level jobs the ALJ
found would not constitute substantial evidence to support the Step
5 determination.”

(Docket Entry 12 at 17.)

However, as discussed

above, the ALJ did not err in her evaluation of the opinions of
Drs. Morton and Coleman and thus Plaintiff has not shown that the
ALJ failed to support her step five determination with substantial
evidence.
III.

CONCLUSION

Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Remanding the Final Decision of the Commissioner of Social
26

Security (Docket Entry 11) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 13) be granted, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 29, 2017

27