TURNER v. COLVIN
MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 03/13/2018, that Plaintiff's Motion to Reverse the Decision of the Commissioner, (ECF No. 9 ), is DENIED, Defendant's Motion for Judgment on the Pleadings, (ECF No. 13 ), is GRANTED, and the final decision of the Commissioner is upheld. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBY A. TURNER ,
NANCY A. BERRYHILL,
Acting Commissioner of Social
MEMORANDUM OPINION AND ORDER
Plaintiff, Roby A. Turner, seeks review of a final decision of the Commissioner of
Social Security denying his claim for supplemental security income (“SSI”). The Court has
before it the certified administrative record1 and cross-motions for judgment, (ECF Nos. 9,
Plaintiff filed an application for SSI on January 7, 2013,2 alleging a disability onset date
of January 1, 1997, later amended to December 26, 2012. (Tr. 275–280, 297,337.) The
applications were denied initially and again upon reconsideration. (Id. at 176–83, 185–202.)
Transcript citations refer to the Administrative Transcript of Record filed manually with the
Commissioner’s Answer. (ECF No. 7.)
On the same day, Plaintiff also filed an application for disability insurance benefits (“DIB”).
(Tr. 271–74.) Plaintiff met the insured status requirements for DIB only through June 30, 2000. (Id.
at 380.) By amending his alleged onset date to December 26, 2012, he also impliedly withdrew his
request for a hearing on, and voluntarily dismissed, his DIB claim. (Id. at 21–22.)
A hearing was then held before an Administrative Law Judge (“ALJ”) at which Plaintiff, his
attorney, and a vocational expert (“VE”) were present. (Id. at 46–84.) On January 12, 2016,
the ALJ determined that Plaintiff was not disabled under the Act. (Id. at 18–39.) On August
2, 2016, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
determination the Commissioner’s final decision for purposes of review. (Id. at 1–7.)
STANDARD FOR REVIEW
The scope of judicial review of the Commissioner’s final decision is specific and
Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986).
Review is limited to
determining if there is substantial evidence in the record to support the Commissioner’s
decision. 42 U.S.C. § 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990). “In reviewing for substantial evidence, [the Court] do[es]
not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute
[its] judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996). The issue before the Court, therefore, is not whether Plaintiff is disabled but whether
the Commissioner’s finding that he is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law. Id.
THE ALJ’S DECISION
The ALJ followed the well-established sequential analysis to ascertain whether the
claimant is disabled, which is set forth in 20 C.F.R. §§ 404.1520 and 416.920. See Albright v.
Comm’r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). 3 Here, the ALJ first
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock v. Astrue,
667 F.3d 470, 472 (4th Cir. 2012) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). “Under this
process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged
determined that Plaintiff had not engaged in substantial gainful activity since his amended
alleged onset date of December 26, 2012. (Tr. 23–24.) The ALJ next found that Plaintiff
suffered from the following severe impairments: anxiety and status-post left rotator cuff repair.
(Id. at 24–27.) At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one listed in Appendix 1. (Id. at
Prior to step four, the ALJ determined Plaintiff’s residual functional capacity (“RFC”).
(Id. at 28–37.) Based on the evidence as a whole, the ALJ determined that Plaintiff retained
the RFC to perform a range of light work as defined in 20 C.F.R. §416.967(b), with the
following additional limitations:
[Plaintiff] can frequently climb ladders, ropes and scaffolds. He
can frequently stoop and crouch. He can frequently reach
overhead with his left upper extremity. [Plaintiff] should avoid
concentrated exposure to unprotected heights. His work is
limited to simple, routine tasks. He can have occasional
interaction with his co-workers.
(Id. at 29.) At the fourth step, the ALJ determined that Plaintiff was capable of performing
past relevant work as a production helper and landscaper. (Id. at 37.) In the alternative, the
ALJ found at step five that there were other jobs that existed in significant numbers in the
national economy that Plaintiff could perform. (Id. at 38.) These jobs included sorter of
agricultural products, laundry classifier, and bakery worker. (Id.) Consequently, the ALJ
period of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to [his or] her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id. A finding adverse to the claimant at
any of several points in this five-step sequence forecloses a disability designation and ends the inquiry.
Id. at 473.
determined that Plaintiff was not disabled from the amended alleged onset date through the
decision date. (Id. at 39.)
ISSUES AND ANALYSIS
Plaintiff argues that the ALJ committed three errors that warrant remand. (ECF No.
10 at 5–19.) First, Plaintiff contends that the ALJ failed to find Plaintiff’s back and knee
impairments severe at step two and then failed to consider the effects of those non-severe
impairments when conducting her RFC assessment. (Id. at 6–14.) Second, Plaintiff argues
that the ALJ improperly weighed the opinion evidence. (Id. at 14–18.) Third, Plaintiff
contends that the RFC for light work is not supported by substantial evidence. (Id. at 18–19.)
For the following reasons, the Court disagrees.
The ALJ’s Step-Two Finding is Supported by Substantial Evidence
In his first argument, Plaintiff contends that the ALJ erred at step two, first by failing
to find that his back and knee impairments were severe, (id. at 6–12), then by failing to consider
the effects of these impairments in her RFC assessment, (id. at 12–14). Step two requires the
ALJ to determine if the claimant has any severe medically determinable impairments. 20
C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” Id. at § 416.920(c). “An impairment
or combination of impairments is not severe if it does not significantly limit [a claimant’s]
physical or mental ability to do basic work activities.” § 404.1522(a).4
Examples of basic work activities include: (1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment;
(5) responding appropriately to supervision, co-workers and usual work situations; and (6) dealing
with changes in a routine work setting. 20 C.F.R. § 404.1522(b).
In the present matter, at step two, the ALJ found that Plaintiff’s anxiety and status-post
left rotator cuff repair constituted severe impairments. (Tr. 24.) The ALJ also found that
Plaintiff had “other non-severe impairments as well that [we]re medically managed, acute,
resolved with treatment, or otherwise ha[d] not been shown to have more than a minimal
effect on [Plaintiff’s] ability to engage in work-related activities.” (Id.) As to Plaintiff’s back
impairment, the ALJ found as follows:
[Plaintiff] has a remote history of “mild” lumbar and
thoracic strain in November 1998 for which he received
conservative treatment. Exhibit 2F:1. In January 2014,
[Plaintiff’s] physician still only recommended conservative
treatment for his complaints of back pain. Exhibit 15F:127.
An x-ray from July 2010 showed minimal osteophytosis at L1-L4. Exhibit 8F:87. An x-ray from September 2013 showed
some degenerative changes at L3-4 and minimal changes at L4
through S1. Exhibit 11F:2. An x-ray from October 2013
showed only “mild” interval progression in degenerative changes
centered at L3-4. Exhibit 15F:35, 41. Moreover, a MRI of
[Plaintiff’s] lumbar spine from November 2013 showed only
“mild” degenerative disc disease without canal or foraminal
stenosis. Exhibit 15F:44. An MRI of [Plaintiff’s] lumbar spine
from April 2014 showed facet joint degeneration at L3-4
bilaterally and at L5 on the right. Exhibit 12F:9, 16. Notes
throughout the record state that his straight leg-raising test was
negative. Exhibit 9F:5; Exhibit 15F:48, 66, 90. Based on this
evidence, the undersigned finds that [Plaintiff’s] back sprain and
degenerative disc disease are non-severe. His remote back strain
resolved with conservative treatment. [Plaintiff’s] back pain due
to degenerative disc disease has been episodic and medically
managed, and has not been shown to have more than a minimal
effect on [Plaintiff’s] ability to engage in work-related activities.
(Id. (referencing Tr. 445, 1112, 630, 728, 1020, 1026, 1029, 742, 749, 710, 1033, 1051, 1075).)
The ALJ’s analysis appears well-supported and error free for the reasons described, and the
evidence cited, above. Plaintiff counters that the ALJ ignored imaging evidence5 and findings
on examination6 that, he argues, are consistent with Plaintiff’s reports of pain and support
opinions significantly limiting his ability to stand and walk. (ECF No. 10 at 7–10.) Plaintiff’s
arguments are without merit.
The ALJ specifically found that neither the above-cited imaging evidence nor the
treatment notes showing only conservative treatment supported either Plaintiff’s allegations
about the severity of his pain, (id. at 30), or opinions that more significantly limited Plaintiff’s
ability to stand or walk, (id. at 33–37). See Dunn v. Colvin, 607 F. App’x 264, 273 (4th Cir. 2015)
(unpublished) (“[T]he conservative nature of Appellant’s treatment is an adequate basis to
support the ALJ’s conclusion that Appellant’s testimony of her disabling condition was
incredible.”); Somerville v. Colvin, No. 1:12CV1360, 2015 WL 1268258, at *3 (M.D.N.C. Mar.
19, 2015) (unpublished) (concluding that the ALJ’s decision to give the physician’s opinion
less than controlling weight was supported by substantial evidence because the physician’s
opinion was inconsistent with the conservative treatment given to the plaintiff which included
injections, medication, “a hand splint, physical therapy, and chiropractor treatment”).
Plaintiff contends that when describing Plaintiff’s November 2013 MRI, the ALJ “reported
only the degenerative changes; she omitted the evidence of a small right foraminal and extraforaminal
disc protrusion at L2-3, and small bi-lobed disc bulge at L3-4.” (ECF No. 10 at 7 (referencing Tr. 1028–
29).) Plaintiff also argues that the ALJ “neglected to report the result of the CT scan performed on
April 4, 2014 that showed facet joint degeneration at L3-4 bilaterally and at L5-S1 on the right.” (Id.
at 7–8 (referencing Tr. 742).)
Plaintiff argues that “the record documents just as many positive straight-leg raise tests as
negative ones,” (ECF No. 10 at 8 (referencing Tr. 727, 1024, 1328, 1376)), and also consistently reveals
observations of Plaintiff’s “slow, abnormal, and/or antalgic gait,” (id. (referencing Tr. 708, 744, 893, 901,
909, 918, 922, 926, 930, 934, 938, 942, 1096, 1244, 1328, 1365)), restricted range of motion of the
lumbar spine, (id. (referencing Tr. 710, 728, 1023, 1103, 1111, 1327, 1376)), and tenderness at the bilateral
lumbar paraspinal muscles, (id. (referencing Tr. 710, 728, 737, 1033, 1051, 1071, 1111, 1327)).
Plaintiff has not challenged the ALJ’s credibility analysis and, as will be discussed in greater
detail below, the ALJ gave good reasons for giving little weight to such opinions. (Tr. 33–
37.) Moreover, it is well-established that an ALJ need not provide a written evaluation for
each document in the record. See Brittain v. Sullivan, 956 F.2d 1162, at *6 (4th Cir. 1992)
(unpublished) (“An ALJ need not comment on all evidence submitted.”); see also Brewer v.
Astrue, No. 7:07–CV–24–FL, 2008 WL 4682185, at *3 (E.D.N.C. Oct 21, 2008) (unpublished
table decision) (“While the ALJ must evaluate all of the evidence in the case record, the ALJ
is not required to comment in the decision on every piece of evidence in the record, and the
ALJ’s failure to discuss a specific piece of evidence is not an indication that the evidence was
Here, as demonstrated above, and despite Plaintiff’s argument to the contrary, the ALJ
did discuss the imaging evidence.7 (Tr. 24.) As to the examination findings, although the
ALJ did not specifically mention Plaintiff’s “abnormal gait” or certain other specific treatment
notes, the record supports her conclusion that Plaintiff’s back pain was episodic and medically
managed. (Id.) For example, Plaintiff cites some fifteen occasions on which a medical
provider documented a slow, abnormal, or antalgic gait. (ECF No. 10 at 8.)8 However, the
record also shows that Plaintiff’s treating physicians frequently found his gait to be “within
Although the ALJ did not reference all the specific findings Plaintiff cites, she incorporated
the overall diagnosis of multilevel “‘mild’ degenerative disc disease without canal or foraminal
stenosis” in her analysis of Plaintiff’s non-severe back impairment. (Tr. 24 (referencing Tr. 1029).) In
addition, although referring to it as an MRI, she specifically referenced April, 2014 CT scan and the
“facet joint degeneration at L3-4 and at L5 on the right” that Plaintiff contends she neglected to report.
(Id. (referencing Tr. 724).)
Ten of these fifteen notes were made by Jan West, Psychiatric and Mental Health Nurse
normal limits.” (See, e.g., Tr. 1033, 1075, 1079, 1111, 1328.) Moreover, like straight-leg raise
tests, which yielded varied results, (see, e.g., Tr. 710, 1033, 1051, 1075 (negative straight-leg raise
tests); Tr. 727, 1024, 1328, 1376 (positive straight-leg raise tests)), Plaintiff’s physicians only
sporadically, rather than consistently, found restricted range of motion, (see, e.g., Tr. 1061, 1273,
1291, 1371 (finding normal range of motion)), or paraspinal tenderness. See Ferrell v. Astrue,
No. 3:11-CV-00503, 2012 WL 4378131, at *13 (S.D. W. Va. June 22, 2012) (unpublished)
(“The [Commissioner] is entitled to rely not only on what the record says, but also on what it
does not say.” (alteration in original) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d
Cir.1983))), report and recommendation adopted, 2012 WL 4378126 (S.D.W. Va. Sept. 25, 2012);
Bostic v. Astrue, No. 3:10CV630-GCM-DSC, 2011 WL 3667219, at *5 (W.D.N.C. July 22, 2011)
(holding same), report and recommendation adopted, 2011 WL 3667215 (W.D.N.C. Aug. 22, 2011),
aff’d, 474 F. App’x 952 (4th Cir. 2012)). Further, as the ALJ noted, in spite of any findings on
examination, Plaintiff’s physicians recommended only conservative treatment. (Tr. 24.) The
record therefore supports a finding that Plaintiff’s back impairment was non-severe.
In his first argument, Plaintiff also contends that the ALJ erred in finding his left knee
impairment to be non-severe. (ECF No. 10 at 10–12.) As to Plaintiffs left knee impairment,
the ALJ found as follows:
[Plaintiff] has been assessed with osteoarthritis of the left knee,
according to an xray [sic] from May 2010. The x-ray showed
mild medial compartment joint space narrowing. Exhibit
8F:115. [Plaintiff] testified that he hurt his knee when he was 15
years old (he is currently 52 years of age). [Plaintiff] testified he
has not had any surgery on his knee since the 1980’s. He
receives conservative treatment of injections about every [six]
months. [Plaintiff] alleged in testimony that his knee “gives out
on him” but was vague about how often this occurs. An x-ray
of [Plaintiff’s] right knee from September 2013 states that
[Plaintiff] had “mild” medial compartment joint space narrowing.
Exhibit 15F:7. Additionally, an x-ray of [Plaintiff’s] left knee
from September 2013 states that [Plaintiff] had mild medial and
lateral compartment joint space narrowing with relative
preservation of the patellofemoral compartment joint space.
Exhibit 15F:10. Osteophytes were present with no joint
effusion. Exhibit 15F:10. The record shows that [Plaintiff] was
able to perform some work despite these difficulties (selfemployed as a landscaper/painter at $10.00 per hour, 40 hours
per week, thru Dec. 2011 per Exh. 8E, and working as an
assembler for $10.00 per hour, 40 hours per week, from July to
August 2012 per Exh. 4E). In addition, treatment notes reflect
that [Plaintiff] received good pain relief for six months after his
injections. Exhibit 8F:84. Therefore, the undersigned finds
[Plaintiff’s] left knee osteoarthritis is non-severe.
(Tr. 25 (referencing 658, 992, 995, 321–32, 349–57, 627).) Here, too, the ALJ’s analysis appears
well-supported and error free for the reasons described, and the evidence cited, above.
Plaintiff again argues that the ALJ ignored imaging9 and other objective evidence10
that conclusively demonstrates that Plaintiff’s knee impairment constitutes a severe
impairment. (ECF No. 10 at 10–12.) As before, the ALJ’s failure to mention every aspect
of the 2013 x-ray is permissible because the record makes clear that the ALJ considered that
evidence in making her determination that Plaintiff’s left knee osteoarthritis was non-severe.
(Tr. 25.) The ALJ concluded, and the record supports a finding, that despite imaging
Specifically, Plaintiff argues that the ALJ improperly “omitted the additional findings of
osteophytes along the superior and inferior patellar pole, subchondral cysts deep into the lateral tibial,
tricompartmental degenerative changes, and the reported ‘complete loss of lateral joint space noted
on the tunnel views.’” (ECF No. 10 at 10–11 (referencing Tr. 994–998).)
Plaintiff further argues that exam findings, which show tenderness, (id. at 12 (referencing Tr.
994, 1108, 1145, 1297, 1376)), restricted range of motion, (id. (referencing Tr. 893, 994, 1103)), mildly
limited flexion, (id. (referencing Tr. 893)), and abnormal gait (discussed above) demonstrate that his left
knee impairment substantially impairs his ability to stand and walk.
evidence,11 Plaintiff’s left knee pain was well controlled by bi-annual steroid injections. (Id.
(referencing Tr. 627); see, e.g., Tr. 653-54, 993, 1106, 1143-44, 1294). See also Gross v. Heckler, 785
F.2d 1163, 1165–66 (4th Cir. 1986) (“If a symptom can be reasonably controlled by medication
or treatment, it is not disabling.” (citing Purdham v. Celebrezze, 349 F.2d 828, 830 (4th Cir.
1965))); 20 C.F.R. § 404.1530. For example, many of the findings to which Plaintiff refers
were recorded on the same day that Plaintiff received a steroid injection, (see, e.g., Tr. 993–94,
1108, 1143-45, 1294-97) or shortly before, (see, e.g., Tr. 1376, 1382), showing only that Plaintiff
had pain in the absence of treatment. The ALJ therefore supported her conclusion that
Plaintiff’s left knee impairment was non-severe with substantial evidence that Plaintiff’s
symptoms were well controlled by medication.
Plaintiff further argues that the ALJ erred in relying on Plaintiff’s “ability to perform
some work despite” knee pain. (ECF No. 10 at 11 (referencing Tr. 25).) Plaintiff contends
that neither his July to August, 2012 work as an assembler nor his work as a self-employed
landscaper/painter constituted substantial evidence for the ALJ’s conclusion that Plaintiff’s
knee impairment was non-severe. (Id. at 11–12 (referencing Tr. 25, 52–53, 334–35, 342, 349–
First, Plaintiff contends the ALJ erred in relying on his work as an assembler because
he testified that he abandoned the job due to pain. (Id. (referencing Tr. 25, 334, 342, 707).)
However, as noted above, the ALJ found Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of his symptoms only partially credible.
The ALJ noted the presence of osteophytes without joint effusion. (Tr. 25 (referencing Tr.
particular, the ALJ found that Plaintiff’s ability to perform this work at SGA levels and without
special conditions “weighs against the severity of [Plaintiff’s] allegations about his physical
As also noted above, Plaintiff has not objected to the ALJ’s credibility
determination. Thus, the ALJ may have found Plaintiff’s testimony that he abandoned the
job due to pain not fully credible.
Second, Plaintiff argues that the ALJ improperly relied on Plaintiff’s work as a selfemployed landscaper/painter. (ECF No. 10 at 11 (referencing Tr. 25, 349–57).) At the
hearing, contradicting a Work History Report that indicated Plaintiff had worked full-time as
a self-employed landscaper/painter through 2011, Plaintiff testified that he hadn’t performed
such work full time since the 1980’s. (Tr. 53.) The ALJ’s hypotheticals to the VE make clear
that she incorporated Plaintiff’s testimony about the nature of his landscaping work in finding
that it was “light work” as Plaintiff performed it. (Id. at 78.) It is not clear whether she
considered or found credible Plaintiff’s testimony that he did not perform such work full
Even if the ALJ erred in relying on Plaintiff’s previous work, the ALJ otherwise
supported her conclusion that Plaintiff’s knee impairment was non-severe with substantial
In particular, the ALJ noted evidence that Plaintiff’s symptoms were well
controlled by bi-annual steroid injections and therefore non-severe. (Id. at 25 (referencing Tr.
627).) In any event, as will be discussed below, the ALJ properly considered Plaintiff’s left
knee pain when formulating the RFC. “As long as the ALJ determines that the claimant has
The ALJ noted that Plaintiff never reported earnings for that work, but nevertheless
concluded it constituted substantial gainful activity as documented in the Work History Report. (Tr.
25 (referencing Tr. 349–57).)
at least one severe impairment and proceeds to discuss all of the medical evidence, any error
regarding failure to list a specific impairment as severe at step two is harmless.” McClain v.
Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014). The Court thus
finds that the ALJ’s step-two determinations were proper, or at least that no error in her
analysis warrants remand.
Plaintiff’s first argument concludes by stating that that the ALJ failed to consider the
effects of Plaintiff’s back and knee impairments in her RFC assessment or to conduct a
function-by-function analysis. (ECF No. 10 at 12-14.) These arguments are unavailing. If
an ALJ finds at least one severe impairment, all impairments, both severe and non-severe, are
considered in assessing a claimant’s RFC. 20 C.F.R. §§ 416.920(e); 416.945(a)(2). Here, even
though the ALJ concluded that Plaintiff’s back and left knee impairments did not constitute
severe impairments at step two, the ALJ’s decision demonstrates that she considered both the
objective and opinion evidence related to Plaintiff’s back and left knee in her RFC analysis.
First, in formulating the RFC, the ALJ considered Plaintiff’s statements concerning the
persistence, intensity, and limiting effects of his back and left knee impairments. (Tr. 30.)
For example, the ALJ acknowledged that at the hearing, Plaintiff testified that “he is very slow
when bending, stooping, and putting his shoes on his feet.” (Id.) However, with respect to
the credibility of Plaintiff’s statements concerning his back pain, the ALJ ultimately concluded:
Although [Plaintiff] had a minor back strain in November of
1998 after a slip and fall, most of the medical evidence is from
2011 forward, which shows some limitations on [Plaintiff’s] left
upper extremity . . . . As discussed earlier in this decision, there
are minimal showings on diagnostic imaging to support
[Plaintiff’s] allegations about the severity of his back pain. See
e.g. Exhibit 15F:35, 41. In addition, treatment notes contradict
some of [Plaintiff’s] testimony. For example, despite [Plaintiff’s]
insistence during the hearing that he does not do much with his
son during the day, treatment notes from February 2015 state that
[Plaintiff] had some mild shortness of breath while playing with
his son, which shows that they do engage in exertional activities
together. Exhibit 19F:22. Moreover, the record shows that
[Plaintiff] was able to perform work activity at SGA levels for six
weeks in 2012 doing assembly production for 40 hours per week.
[Plaintiff] did not allege that he performed this job under any
special conditions. This work activity weighs against the severity
of [Plaintiff’s] allegations about his physical pain. As stated
above, the imaging reports of [Plaintiff’s] lumbar spine do not
support the degree of low back pain that is alleged. For example,
an x-ray of [Plaintiff’s] lumbar spine from September 2013
showed some degenerative changes at L3-4 but “minimal”
changes at L4-5 and L5-S1. Exhibit 11F:2. In addition,
although [Plaintiff] had a minor back strain in November of 1998
before his amended alleged onset date, there was no evidence of
disc herniation or degenerative changes to support his allegations
about the severity of his pain. Exhibit 2F:1.
(Id. (referencing Tr. 1020, 1026, 1282, 728, 445).)
The ALJ also noted that Plaintiff testified that, of his impairments, “the ones that affect
his ability to work the most are his heart and knee impairments.” (Id. at 29.) The ALJ
As for [Plaintiff’s] left knee, he testified that he hurt it when he
was fifteen and that he is receiving injections for his pain because
his doctors are not able to replace it. In addition, [Plaintiff]
testified that he receives injections in his knee . . . every six
months. [Plaintiff] testified that he has had several falls due to his
knee giving out on him and that it is difficult to walk.
(Id. at 29–30.) However, as the ALJ discussed in her step-two analysis, the ALJ concluded
that Plaintiff’s treatment records and his ability to work in 2012 showed that Plaintiff’s knee
pain was well controlled by medication. (Id. at 25.)
Second, in formulating the RFC, the ALJ properly 13 considered and weighed the
opinion evidence of Plaintiff’s ability to stand and walk, which he alleged was limited by both
knee and back pain. (Id. at 32-37.) Despite Plaintiff’s argument to the contrary, the ALJ
found that opinions that Plaintiff was significantly limited in his ability to stand or walk based
on back or left knee pain were inconsistent with other objective evidence. (Id.) The ALJ
thus ultimately concluded that extreme limitations based on back and left knee pain were not
supported by the record. (Id.) The language of the decision thus makes clear that the ALJ
did consider Plaintiff’s back and knee impairments when formulating the RFC, and found the
objective and opinion evidence did not support greater limitations.
Plaintiff argues that the ALJ nevertheless erred by failing to make an explicit finding
regarding Plaintiff’s ability to stand and walk, conduct a function-by-function analysis, or
otherwise provide a “roadmap that shows the path between the evidence and her conclusion.”
(ECF No. 10 at 13–14 (citing Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); SSR 96-8p, 1996
WL 374184).) In Mascio v. Colvin, the United States Court of Appeals for the Fourth Circuit
addressed whether an ALJ’s failure to articulate a function-by-function analysis necessitates
remand. 780 F.3d at 635–36. The Court stated “that a per se rule is inappropriate given that
remand would prove futile in cases where the ALJ does not discuss functions that are irrelevant
Id. at 636 (quotation marks omitted).
However, “remand may be
The propriety of the ALJ’s treatment of opinion evidence will be discussed in the next
appropriate . . . where an ALJ fails to assess a claimant’s capacity to perform relevant functions,
despite contradictory evidence in the record, or where other inadequacies in the ALJ’s analysis
frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
In addition, “[a]n ALJ may satisfy the function-by-function analysis
requirement by referencing a properly conducted analysis of state agency consultants.” Herren
v. Colvin, No. 1:15-CV-00002-MOC, 2015 WL 5725903, at *5 (W.D.N.C. Sept. 30, 2015)
Here, the ALJ’s narrative permits meaningful review because she made an implicit
finding of Plaintiff’s capacity to stand and walk and explained how she reached that
conclusion. First, by finding Plaintiff had the RFC to perform light work, (Tr. 29), “the ALJ
implicitly found that [ ]he was capable of standing or walking for approximately six hours in
an eight-hour work day,” Harrison v. Colvin, No. 1:10-CV-18, 2013 WL 1661096, at *2
(M.D.N.C. Apr. 17, 2013) (unpublished) (citing Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir.
2006)). See 20 C.F.R. § 416.967(b); SSR 83-10, 1983 WL 31251 at *6.
Second, although the ALJ did not conduct a function-by-function analysis, it is
apparent how the ALJ determined Plaintiff’s capacity to stand and walk. The ALJ gave
significant weight to the opinions of state agency consultant, Robert Gardner, M.D., and
described the limitations found in his assessment. (Tr. 34–35.) As mentioned above, a
proper function-by-function analysis conducted by a state agency consultant can satisfy an
ALJ’s requirement to conduct a function-by-function assessment. Herren, 2015 WL 5725903,
at *5. In pertinent part, Dr. Gardner found that Plaintiff could stand and/or walk about six
hours in an eight-hour workday without any additional postural requirements. (Tr. 114.) In
other words, Dr. Gardner found that Plaintiff was able to perform the full range of light work.
(Id. at 34 (referencing Tr. 114).) This function-by-function assessment, that the ALJ gave great
weight, provides support for the ALJ’s RFC determination and allows the Court to conduct a
meaningful review of the ALJ’s analysis. Cowles v. Colvin, No. 1:15CV105, 2016 WL 527063,
at *5–*6 (M.D.N.C. Feb. 9, 2016) (unpublished) (reasoning that although the ALJ did not
conduct a complete function-by-function analysis, the ALJ gave great weight to the opinions
of the state agency consultant, and explained that he did so because he found the opinions
consistent with the other evidence in the record thereby removing the need to rehash a
discussion of the state agency consultant’s opinion), report and recommendation adopted, slip op.
(M.D.N.C. Mar. 2, 2016); see also Linares v. Colvin, No. 5:14-CV-00120, 2015 WL 4389533, at
*3 (W.D.N.C. July 17, 2015) (unpublished) (“Because the ALJ based his RFC finding, in part,
on the function-by-function analysis of the State agency consultant, the ALJ’s function-byfunction analysis complied with SSR 96-8p.”). The RFC almost mirrors the findings of the
state agency consultant. (Tr. 29, 34–35, 114.) Further, in light of evidence that was not seen
by Dr. Gardner, the ALJ added additional restrictions by limiting Plaintiff to only frequent
reaching overhead and only frequent stooping and crouching, and explained her reasons for
doing so. (Tr. 35); see Shore v. Colvin, No. 1:10CV238, 2013 WL 1320504, at *2 (M.D.N.C.
Mar. 29, 2013) (unpublished) (upholding the ALJ’s decision notwithstanding the fact that the
ALJ did not conduct a function-by-function analysis because the ALJ largely adopted and
described the state agency physicians’ RFCs and placed even greater limitations on the plaintiff
in the RFC). Thus, the ALJ’s failure to conduct a function-by-function analysis does not
In sum, the ALJ considered Plaintiff’s testimony, the objective evidence, and the
opinion evidence relating to his back and left knee impairments, and included the limitations
she found consistent with that evidence in the RFC. The ALJ’s reasons for omitting any
restriction to Plaintiff’s capacity to stand or walk beyond the limitation to light work are well
articulated and clear. Moreover, the objective and opinion evidence of record supports her
conclusions. Although Plaintiff argues that the evidence directs a different conclusion, this
court is “not at liberty to ‘reweigh conflicting evidence ... or substitute [its] judgment for that
of the [ALJ].’” Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012) (first and third alteration in
original) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam)). The
undersigned thus finds that the ALJ did not fail to consider the effects of Plaintiff’s non-severe
impairments in formulating the RFC.
The ALJ Properly Weighed the Opinion Evidence.
Plaintiff contends in his second argument that the ALJ improperly weighed the opinion
evidence related to Plaintiff’s ability to stand, walk, and lift. (ECF No. 10 at 14–18.)
Specifically, Plaintiff argues that the ALJ improperly rejected the opinions of treating
physician, Pippa Evans, M.D., and functional capacity examiner, Peggy Anglin, P.T., and
improperly relied on the opinions of treating physician, Dr. Thomas Dimmig, consultative
examiner, Dr. Jankiram Setty, and non-examining state agency consultant, Dr. Robert
Plaintiff’s argument requires the Court to consider whether the ALJ evaluated the
medical opinions in accordance with the treating physician rule. 20 C.F.R. § 416.927(c). The
treating source rule requires an ALJ to give controlling weight to the opinion of a treating
source regarding the nature and severity of a claimant’s impairment. Id. The rule also
recognizes, however, that not all treating sources or treating source opinions merit the same
deference. Id. The nature and extent of each treatment relationship appreciably tempers the
weight an ALJ affords an opinion.
See 20 C.F.R. § 416.927(c)(2)(ii).
subsections (2) through (4) of the rule describe in 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. See 20 C.F.R.
§ 416.927(c)(2)–(4).14 “[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. When declining to accord a treating source controlling weight, an ALJ
must articulate “good reasons” for doing so. 20 C.F.R. § 416.927(c).
Here, the ALJ considered and gave little weight to Dr. Evans’s and Therapist Anglin’s
opinions regarding Plaintiff’s ability to stand, walk, and lift. (Tr. 36, 37.) In pertinent part,
Dr. Evans opined that Plaintiff could “occasionally and frequently carry less than ten pounds.
. . . [and] stand or walk for less than two hours in an eight-hour workday . . . .” (Id. at 36
(referencing Tr. 894–97).)
The ALJ concluded that Dr. Evans’s opinions “overestimate
[Plaintiff’s] limitations based on one exam15 and are not consistent with the record as a whole.
SSR 96-2p provides that “[c]ontrolling weight may not be given to a treating source’s
medical opinion unless the opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques.” Social Security Ruling 96-2p, Policy Interpretation Ruling Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188, at *1 (July 2, 1996).
Plaintiff contends Dr. Evans saw Plaintiff three times prior to offering her opinion. She
did—once on December 2, 2013 for a routine physical, once on February 20, 2014 when Plaintiff
slipped and fell and alleged hand pain and headache, and once on April 22, 2014 for concerns about
anemia. Although left knee osteoarthritis is on the “problems list,” back pain is not. The only
reference in any of these records to back or knee pain is in the progress note from April, where
(Id.) Contrary to Plaintiff’s argument, the ALJ provided sufficient reasons for giving little
weight to Dr. Evans’s opinion of Plaintiff’s capacity to lift, stand, and walk. As Plaintiff
acknowledged, the ALJ indicated that she found Dr. Evans’s opinion inconsistent with the
record as a whole. See Craig, 76 F.3d at 590. Although the ALJ’s examples of inconsistencies
between the record and Dr. Evans’s opinion pertained to postural limitations, (Tr. 36), the
inconsistencies between significant limitations in walking and standing and the record as a
whole are referenced numerous times elsewhere in the ALJ’s decision. For example, the ALJ
gave little weight to consultative examiner Dr. Peter Morris’s opinion16 that Plaintiff could
stand for a total of four hours and walk a total of two hours in an eight-hour workday. (Id.
at 36 (referencing Tr. 710).) The ALJ explained that Dr. Morris’s opinion was inconsistent with
the objective findings on examination that Plaintiff “had nearly normal motor strength in his
left . . . leg with normal motor strength on the right side, a normal sensory examination, and
no assistive device.” (Id. (referencing Tr. 710–11).) The ALJ also gave little weight to Dr.
Dimmig’s opinion that Plaintiff’s capacity to stand and walk was similarly limited because it
was “not well supported with either the treatment records in evidence or the minimal findings
on [Plaintiff’s] lumber spine imaging reports.” (Id. at 34 (referencing Tr. 537).) There is
therefore substantial evidence to support the ALJ’s decision to accord Dr. Evans’s opinion
Plaintiff alleged that when he fell roughly one month prior, he “tweaked his back.” Thus, it is unclear
whether the ALJ was concluding that Dr. Evans’s opinion was based on only one of these exams, or
whether she mistakenly concluded Dr. Evans had only seen Plaintiff once. In any event, The ALJ’s
analysis remains well supported notwithstanding any ambiguity.
Plaintiff notes that consultative examiner, Dr. Morris, also found Plaintiff was more limited
in his ability to stand and walk than the ALJ. Plaintiff makes no further argument that the ALJ’s
analysis of this opinion was flawed, thus the Court will refrain from a lengthy analysis of the ALJ’s
treatment of this opinion.
The ALJ also considered and weighed the opinion of Peggy Anglin, P.T. (Id. at 37.)
Therapist Anglin concluded, based on an April 24, 2014 Functional Capacity Evaluation
(“FCE”), that Plaintiff was limited to less than sedentary work. (Id. (referencing Tr. 895).) The
ALJ stated that she gave Therapist Anglin’s opinion little weight because
it was based on one functional test that [Plaintiff] engaged in and
it appears that he did not even put forth his best effort because
his performance was below what he testified he is capable of
doing. For example, [Plaintiff] testified that he is not able to
walk more than 100 yards or 300 feet; however at the functional
test, [Plaintiff] needed a minute break after walking
approximately 115 feet. Exhibit 15F:111. [Plaintiff] also
testified that he goes shopping at a store across the street and did
not testify that he needs a motorized cart to do so. Based on his
testimony, [Plaintiff] should have been able to complete this
exercise without a break.
(Id. at 37 (referencing Tr. 1086–1105).)
Here, the ALJ’s analysis of Therapist Anglin’s opinion appears entirely reasonable and
consistent with the factors set forth in 20 C.F.R. § 916.927(c)(2), particularly the existence of
an ongoing physician-patient relationship and the opinion’s consistency with the record.
Plaintiff argues that that the ALJ’s analysis of Therapist Anglin’s opinion was inadequate and
that the ALJ “trie[d] to expose a contradiction where there is none.” (ECF No. 10 at 16.) In
essence, Plaintiff again asks the Court to re-weigh the evidence or substitute its judgment for
that of the ALJ. The Court is not at liberty to do so. See Hancock, 667 F.3d at 476.
The ALJ also properly considered and weighed the opinions of Drs. Dimmig, Setty,
and Gardner. (Tr. 33, 34–35.) At the outset, the Court notes that although Plaintiff argues
that these opinions were entitled to no weight or little weight, the ALJ did not give more than
little weight to either Dr. Setty’s or Dr. Dimmig’s opinion in its entirety. (Tr. 33, 34.) Rather,
the ALJ gave great weight, some weight, and little weight to portions of each opinion, and her
narrative demonstrates that she considered each proposed limitation independently and did so
according to the regulations. (Id.) Moreover, although she gave Dr. Gardner’s opinion great
weight, she added additional limitations to the RFC. (Id. at 29, 34–35.)
As to Plaintiff’s contentions, Dr. Setty opined that Plaintiff could be expected to stand,
walk, and sit without limitations during an eight-hour workday with no assistive devices, could
lift and carry less than ten pounds with his left hand (based on his shoulder injury), and only
occasionally bend and stoop. (Id. at 33 (referencing Tr. 505).) The ALJ gave great weight to
Dr. Setty’s opinion regarding Plaintiff’s ability to stand and walk “to the extent that they show
[Plaintiff] is able to perform these activities because Dr. Setty is an impartial acceptable medical
source, who personally examined [Plaintiff].” (Id.) However, the ALJ nevertheless limited
Plaintiff to light work, which requires standing and walking only six hours in an eight-hour
work day. (Id. at 29; 20 C.F.R. § 416.967(b).) The ALJ gave little weight to Dr. Setty’s
opinion of Plaintiff’s ability to lift because it was “not consistent with subsequent treatment
records, which reflect significant improvement of [Plaintiff’s] left shoulder after his rotator
cuff repairs.” (Tr. 33 (referencing Tr. 505).) Finally, the ALJ found there were “minimal
imaging findings to support a limitation of occasional stooping.” (Id.) The ALJ thus gave
good reason for giving little weight to Dr. Setty’s lifting, standing, and walking limitations. See
Raper v. Astrue, No. 1:10CV377, 2013 WL 438194, at *5 (M.D.N.C. Feb. 5, 2013) (unpublished)
(finding that the ALJ properly gave little weight to an opinion that was not well-supported by
evidence and reports that Plaintiff had significant improvement with medication), report and
recommendation adopted, slip op. (M.D.N.C. June 18, 2013).
With respect to Plaintiff’s argument, Dr. Dimmig opined that Plaintiff could return to
work, but could lift a maximum of twenty pounds, and stand and walk only two hours
(Tr. 34 (referencing Tr. 536).) 17
The ALJ gave significant weight to Dr.
Dimmig’s opinion that Plaintiff could return to work duties
because Dr. Dimmig is [Plaintiff’s] treating source and this
opinion is consistent with the lack of treatment [Plaintiff] was
receiving for any of his alleged impairments at that time.
The undersigned gives some weight to Dr. Dimmig’s
opinion that [Plaintiff] could lift a maximum of twenty pounds
and push or pull thirty-five pounds. The undersigned finds that
this limitation would have been reasonable for a short duration
after [Plaintiff’s] rotator cuff tear repair surgery but Dr. Dimimig
did not specify how long this limitation should be in place.
In addition, the undersigned gives little weight to Dr.
Dimmig’s opinion that [Plaintiff] is limited to standing and
walking two hours consecutively in a workday because this
opinion [ ] is not well supported with either the treatment records
in evidence or the minimal findings on [Plaintiff’s] lumbar spine
(Id.) The ALJ therefore provided good reasons for the weight given to each portion of Dr.
Dimmig’s opinion. See Craig, 76 F.3d at 590 (“[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.”); Carroll v. Colvin, No. 7:14-CV-173-RJ, 2015 WL 5737625, at *12
(E.D.N.C. Sept. 30, 2015) (finding context suggested that a limitation was temporary where it
Dr. Dimmig opined, “[a]t this point I think it is reasonable to return to work duties. He is given a
note indicating maximum lift of 20 pounds and push and pull of 35 pounds. His primary complaint
is really with standing so an order is given for limited standing and walking to 2 hours consecutively.
Follow-up with us is prn. For the most part he does not request any additional treatment today. He
will continue with his Methadone clinic for pain relief.” (Tr. 536.)
was imposed after a specific medical procedure with instructions to follow up); Viverette v.
Astrue, No. 5:07-CV-395-FL, 2008 WL 5087419, at *5 (E.D.N.C. Nov. 24, 2008) (unpublished)
(stating that an ALJ may properly infer from a claimant’s failure to frequently seek medical
attention that the course of treatment prescribed to him successfully controlled his conditions
(citing Wooten v. Shalala, 1993 U.S. App. LEXIS 18071, at *10–11 (4th Cir. July 16, 1993)
Finally, as to Dr. Gardner’s opinion, as noted above, the ALJ gave great weight to his
opinion that Plaintiff could perform the full range of light work because “Dr. Gardner is an
impartial acceptable medical source, who has Social Security disability program knowledge,
and this opinion is largely consistent with the record as a whole, which shows [Plaintiff] is able
generally able to perform light work with a few additional limitations. (Tr. 34–35 (referencing
Tr. 114)); see, e.g., 20 C.F.R. § 416.913a(b)(1) (“State agency medical or psychological
consultants are highly qualified and experts in Social Security disability evaluation.”); id. at §
416.927(e) (an ALJ must consider state agency medical consultative physicians’ opinions
according to the same regulations used to assess other medical opinions); SSR 96-6p, 1996
WL 374180, at *3 (July 2, 1996) (“In appropriate circumstances, opinions from State agency
medical and psychological consultants and other program physicians and psychologists may
be entitled to greater weight than the opinions of treating or examining sources.”); Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (“[T]estimony of a non-examining physician can
be relied upon when it is consistent with the record.” (citing Kyle v. Cohen, 449 F.2d 489, 492
(4th Cir. 1971))). To the extent that the ALJ found that Dr. Gardner’s opinion was not
consistent with the record, she added additional limitations. (Tr. 35 (“[Plaintiff] should be
limited to frequent stooping and crouching because of his subjective complaints about low
That Drs. Setty, Dimmig, and Gardner rendered their opinions without the benefit of
the imaging evidence does not make the ALJ’s reliance on these opinions improper.
Plaintiff’s argument that it does therefore fails. First, the ALJ considered and described the
imaging evidence at length in her step-two discussion. (Id. at 24, 25.) Generally, she found
that it did not support extreme limitations. (Id. at 33–37.) Second, neither Plaintiff nor the
treatment record suggests any subsequent changes in Plaintiff’s condition that would render
these opinions unsupported. See Waycaster v. Berryhill, No. 1:17CV31, 2017 WL 5564600, at
*9 (M.D.N.C. Nov. 17, 2017) (unpublished), report and recommendation adopted, slip op.
(M.D.N.C. Dec. 7, 2017). Rather, Plaintiff notes that his back problem dates back to 1998,
(ECF No. 10 at 7), and he has a “long history” of knee problems dating back to the 1980’s,
(id. at 10). The ALJ was therefore entitled to rely on the opinions of Dr. Setty, Dimmig, and
Gardner. The undersigned can find no error in her analysis that would warrant remand
pursuant to 20 C.F.R. § 416.927(c)(2), SSR 96-2p, or other authority.
The RFC is Supported By Substantial Evidence
In his third argument, Plaintiff contends that the RFC is not supported by substantial
evidence. (ECF No. 10 at 18-19.) Plaintiff again argues that the “uncontradicted evidence
of pain along with the objective evidence of gait disturbance and restricted range of motion in
both the knee and the lumbar spine is incompatible with a finding of no impairment in
standing and walking.” (Id. at 19.) As recounted above, the ALJ considered the objective
evidence of Plaintiff’s back and left knee impairments at step two and properly found that
they did not have “more than a minimal effect on [Plaintiff’s] ability to engage in work-related
activities.” (Tr. 24.) She also considered the effects of Plaintiff’s non-severe back and left
knee impairments when formulating the RFC. (Id. at 29–37.) This included a review of
Plaintiff’s subjective statements concerning his pain, as well as the opinion evidence submitted
by Plaintiff’s physicians. (Id.) Based on the entire record, the ALJ found Plaintiff capable of
a limited range of light work. (Id.) At every step, the ALJ explained her reasoning and cited
to evidence to support her conclusions. Plaintiff invites this Court again and again to reweigh evidence and substitute its judgment for that of the ALJ; the undersigned declines to
do so. See Craig, 76 F.3d at 589. The RFC is supported by substantial evidence, and this
Court can find no reason to disturb it.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is supported by substantial evidence.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse the Decision of
the Commissioner, (ECF No. 9), is DENIED, Defendant’s Motion for Judgment on the
Pleadings, (ECF No. 13), is GRANTED, and the final decision of the Commissioner is
This, the 13th day of March, 2018.
/s/ Loretta C. Biggs
United States District Judge
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