WILLIAMS V. COLVIN

Filing 21

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/14/2017, that Plaintiff's Motions to Supplement the Record (Docket Entries 18 , 19 ) are DENIED as moot. IT IS THEREFOR E RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 15 ) be granted, and that judgment be entered for Defendant. (Garland, Leah)

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

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1:17CV16

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Julius Lee Williams, 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

claim

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)

Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 15; see also Docket Entry 13
(Plaintiff’s Memorandum), Docket Entry 16 (Defendant’s Memorandum),

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).

Docket Entry 17 (Plaintiff’s Reply)).2

For the reasons that

follow, the Court should enter judgment for Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI, alleging an onset date of
September

3,

2009.

(Tr.

290-302.)

Upon

denial

of

those

applications initially (Tr. 136-65, 218-25) and on reconsideration
(Tr. 166-95, 226-43), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 244).

Plaintiff, his

attorney, one of Plaintiff’s mental health case workers, and a
vocational expert (“VE”) attended the hearing.

2

(Tr. 48-85.)

The

Following the completion of briefing on the parties’ cross-motions for
judgment, Plaintiff filed a Motion to Supplement the Record (Docket Entry 18)
with a “July 20, 2017 letter . . . [from] Presley Bright, a psychiatric social
worker therapist at Family Preservation Service of North Carolina in Durham”
(Docket Entry 18-1 at 3 (emphasis added)). Defendant did not oppose Plaintiff’s
Motion. (See Docket Entries dated Aug. 1, 2017, to the present.) Additionally,
on September 12, 2017, Plaintiff filed a second Motion to Supplement the Record
(Docket Entry 19) with treatment records from an August 30, 2017 office visit
with Duke Health (see Docket Entry 20). However, this Court may not consider new
evidence that Plaintiff did not submit to the ALJ or the Appeals Council. See
Smith v. Chater, 99 F.3d 635, 638 n.5 (4th Cir. 1996).
Instead, the Court can
remand the case under sentence six of 42 U.S.C. § 405(g) for the Commissioner to
consider the new evidence, if Plaintiff can demonstrate that the evidence
qualifies as both new and material, and that good cause exists for the failure
to submit the evidence to the ALJ or the Appeals Council. Wilkins v. Secretary,
Dep’t of Health & Human Servs., 953 F.2d 93, 96 n.3 (4th Cir. 1991). “Evidence
is material if there is a reasonable probability that the new evidence would have
changed the outcome.” Id. at 96. Here, Plaintiff’s proposed new evidence fails
to qualify as “material.” Mr. Bright opines that Plaintiff “has multiple health
issues that have prevented him from obtaining work at this time” (Docket Entry
18-1 at 3 (emphasis added)) and, thus, Mr. Bright makes clear that his opinion
applies to the time of his letter, i.e., July 20, 2017, which post-dates the
ALJ’s decision by nearly four years (see Tr. 41). Similarly, the August 30, 2017
medical record from Duke Health reflects follow-up treatment for dysarthria and
dysphagia, which the physician suspected resulted from tardive dyskinesia and
tardive dystonia caused by Plaintiff’s prior use of the anti-psychotic
medications Invega and Thorazine. (See Docket Entry 20 at 2.) Significantly,
the physician noted that Plaintiff had experienced those conditions “for about
two years” (id.), which indicates that the conditions arose approximately two
years after the ALJ’s decision (see Tr. 41). Accordingly, the undersigned will
deny Plaintiff’s Motions to Supplement the Record (Docket Entries 18, 19) as
moot.

2

ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 29-41.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 11-16, 25-28), 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] met the insured status requirements of
the [] Act through September 30, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since September 3, 2009, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
schizoaffective disorder, polysubstance abuse, hepatitis
C, obesity, and prostate cancer.
. . .
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 sedentary work . . . . Function by
function, he is capable of lifting, carrying, pushing,
and pulling ten pounds occasionally, can stand and walk
two hours in an eight-hour workday, and sit for six hours
in an eight-hour workday. [Plaintiff] can do no
balancing, climbing, working at heights, or around
dangerous machinery. In addition, he is limited to work
involving only simple, routine, repetitive tasks, meaning
[Plaintiff] can apply commonsense understanding to carry
out
instructions
furnished
in
written,
oral
or
diagrammatic form and deal with problems involving
several concrete variables in or from standardized
situations. [Plaintiff] can have only occasional
interaction
with
coworkers
and
supervisors,
no
3

interaction with the public, and is unable to work at
jobs requiring complex decision making, constant change,
or dealing with crisis situations.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from September 3, 2009, through
the date of this decision.
(Tr.

34-41

(bold

font

and

internal

parenthetical

citations

omitted).)
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).

4

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, 390 (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) (internal citations and
quotation marks omitted).

“If there is evidence to justify a

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

5

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.
(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. (internal citations omitted).

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

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

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).

6

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
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

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).

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 . . .
(continued...)

7

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

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
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 argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:

5

(...continued)
[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.
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) the ALJ erred by failing to consider Listing 12.03, and by
finding that Plaintiff’s mental impairment did not meet or equal
the criteria of Listing 12.04B (Docket Entry 13 at 1-2);
2) the ALJ overemphasized Plaintiff’s medical noncompliance in
formulating the RFC (id. at 2-3);
3) “[t]he ALJ was further in error in his dismissal, or his
giving little weight to, the informed professional opinion of
[Plaintiff’s] primary care physician, Dr. Veronica Ray” (id. at 3);
4)

the

ALJ

committed

error

by

failing

to

evaluate

the

“February 21, 2013” decision of the North Carolina Department of
Health and Human Services (“NCDHHS”) “finding [Plaintiff] disabled
for Medicaid purposes” (id. at 4 (emphasis added); see also Docket
Entry 17 at 1-2); and
5) the ALJ neglected to evaluate the combined effect of all of
Plaintiff’s impairments (docket Entry 13 at 4).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 16 at 4-21.)
1. Listings 12.03 and 12.04

In Plaintiff’s first issue on review, he faults the ALJ for
failing to expressly consider whether Plaintiff’s schizoaffective
disorder

met

or

equaled

the

requirements

of

Listing

12.03

(Schizophrenic, Paranoid and Other Psychotic Disorders), see 20
C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.03.
at 1-2.)

(See Docket Entry 13

In addition, Plaintiff maintains that the ALJ erred in

9

rating Plaintiff as having only moderate limitation in activities
of daily living and social functioning in connection with the
paragraph B criteria of Listing 12.04 (Affective Disorders).
at 2 (citing Tr. 35).)

(Id.

According to Plaintiff, he “has indeed

evidenced marked restriction of activities of daily living and
marked difficulties in maintaining social functioning.”

(Id.

(emphasis added) (citing Tr. 501, 503, 505, 508, 514, 527).)7
Plaintiff’s contentions fall short.
“Under Step 3, the [Social Security Administration’s SEP]
regulation states that a claimant will be found disabled if he or
she has an impairment that ‘meets or equals one of [the] listings
in [A]ppendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the
duration requirement.’”

Radford v. Colvin, 734 F.3d 288, 293 (4th

Cir. 2013) (quoting 20 C.F.R. § 404.1520(a)(4)(iii)) (internal
bracketed numbers omitted).

“The listings set out at 20 CFR [P]t.

404, [S]ubpt. P, App[’x] 1, are descriptions of various physical
and

mental

illnesses

and

abnormalities,

categorized by the body system they affect.

most

of

which

are

Each impairment is

defined in terms of several specific medical signs, symptoms, or
laboratory test results.” Sullivan v. Zebley, 493 U.S. 521, 529-30
(1990) (internal footnote and parentheticals omitted).

“In order

to satisfy a listing and qualify for benefits, a person must meet

7

Plaintiff’s citation to page 899 of the record constitutes a typographical
error (see Docket Entry 13 at 2), as the record in this case ends at page 764.

10

all of the medical criteria in a particular listing.” Bennett, 917
F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20 C.F.R.
§ 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment
that manifests only some of th[e] criteria [in a listing], no
matter how severely, does not qualify.”).
evidence

in

the

record

to

support

“[When] there is ample

a

determination

that

[a

claimant’s impairment] met or equalled [sic] one of the [ ]
impairments listed in Appendix 1 . . . [and the claimant’s]
symptoms appear to correspond to some or all of the requirements of
[such listings,] . . . [t]he ALJ should [ ] identif[y] the relevant
listed impairments . . . [and] should then [ ] compare[ ] each of
the listed criteria to the evidence of [the claimant’s] symptoms.”
Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986) (emphasis
added).
Here, given the ALJ’s finding at step 2 of the SEP that
Plaintiff suffered from severe schizoaffective disorder (see Tr.
34),

the

ALJ

should

have

assessed

the

degree

of

functional

limitation resulting from Plaintiff’s schizoaffective disorder
pursuant

to

criteria

in

Listing

12.03,

which

governs

“[s]chizophrenic, paranoid and other psychotic disorders,”

20

C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.03, rather than Listing
12.04, which governs “[a]ffective disorders,” id., § 12.04.
Tr.

35.)

However,

that

error

remains

harmless

under

(See
the

circumstances of this case, see generally Fisher v. Bowen, 869 F.2d

11

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”), where the ALJ
proceeded to evaluate whether Plaintiff’s schizoaffective disorder
met the paragraph B criteria of Listing 12.04, which match the B
criteria of Listing 12.03 (see id.; compare 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 12.03B, with id., § 12.04B).
Paragraph B of Listings 12.03 and 12.04 contains four broad
functional

areas:

functioning;

3)

1)

activities

concentration,

of

daily

persistence,

living;
or

2)

pace;

social
and

4)

episodes of decompensation. See 20 C.F.R. Pt. 404, Subpt. P, App’x
1, § 12.03B; see also 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3).
Pertinent to the instant matter, the ALJ must rate the degree of
limitation in the first three broad functional areas using a “fivepoint scale: [n]one, mild, moderate, marked, and extreme.”

20

C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). In that regard, to meet
or equal the requirements of Listings 12.03B or 12.04B, Plaintiff
must show that his schizoaffective disorder:
B. Results in at least two of the following:
1.
Marked restriction of activities of daily
living; or
2.
Marked difficulties in maintaining social
functioning; or
3.
Marked
difficulties
in
maintaining
concentration, persistence, or pace; or
12

4.
Repeated episodes of decompensation, each
of extended duration[.]
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.03B, 12.04B (emphasis
added). In this context, to qualify as “marked,” a limitation must
“interfere

seriously

independently,
basis.”

with

[one’s]

ability

appropriately, effectively, and

to
on

function

a

sustained

Id., § 12.00(C).

The ALJ cited specific record evidence to support his finding
of moderate limitation in activities of daily living and social
functioning:
In activities of daily living, [Plaintiff] has moderate
restriction. He has been homeless for long periods of
time but is independent with [h]is activities of daily
living.
In addition, [Plaintiff] is able to count
change, shop, and go out alone. In social functioning,
[Plaintiff] has moderate difficulties. He has reported
that he will isolate himself at times; however, the
record shows he does have friends he can go to for
advice. [Plaintiff] also testified that he has a good
relationship with his son and goes to church on occasion.
(Tr. 35 (internal citation omitted) (emphasis added).)
Notably, Plaintiff does not dispute the accuracy of the
evidence upon which the ALJ relied in finding moderate limitation
in these functional areas.

(See Docket Entry 13 at 2.)

Instead,

Plaintiff points to other record evidence (not expressly cited by
the ALJ in connection with the step three analysis) as proof of a
marked limitation in these areas.

(Id.)

More specifically,

Plaintiff refers the Court to “the records of hospitalizations in
Goldsboro in 2010-2011, replete with references to auditory/visual

13

hallucinations and suicidal thoughts.”

(Id. (citing Tr. 501, 503,

505, 508, 514, 527).)
Although the evidence Plaintiff cites arguably could have
supported findings of marked limitation in activities of daily
living and social functioning, none of that evidence compelled such
findings.

First, that evidence consists of psychiatric treatment

Plaintiff received on March 29, 2009, February 20, 2011, and April
15, 2011, prior to his obtaining sobriety from alcohol and drugs.
(See Tr. 501, 503, 505, 508, 514, 527; see also Tr. 56 (reflecting
Plaintiff’s testimony he has abstained from drugs and alcohol since
March 23, 2011).)8
Plaintiff’s

Second, as noted by the ALJ (see Tr. 37, 39),

treatment

providers

suspected

malingering

and/or

possible ulterior motivation for Plaintiff’s reports of psychotic
and/or suicidal ideation, because Plaintiff needed to find a place
to live (see Tr. 501 (reflecting Plaintiff’s homelessness), 503
(reporting that providers “suspected [Plaintiff] of malingering his
symptoms”,

that

Plaintiff

remained

“noncompliant

with

group

[therapy] and was not motivated for change,” and that Plaintiff
“was vague and evasive” when questioned about his suicidality or
hallucinations), 508 (remarking that homeless shelter had asked
Plaintiff to leave the day before and describing Plaintiff’s
suicidal ideation as “vague”), 514 (noting Plaintiff’s status as
8

Plaintiff’s reported date of sobriety, March 23, 2011 (see Tr. 56), conflicts
with the April 15, 2011 record from Waynesboro Memorial Hospital, which reflects
that Plaintiff tested positive on that date for both cocaine and alcohol (see Tr.
508).

14

“homeless”)). Third, in contrast to the evidence of activities and
social interaction cited by the ALJ (see Tr. 35), none of those
psychiatric records reflect specific problems with Plaintiff’s
ability to engage in daily activities or to function socially (see
Tr. 501, 503, 505, 508, 514, 527).
Accordingly, as the ALJ supported the moderate limitation in
activities of daily living and social functioning with substantial
evidence, Plaintiff did not contest the accuracy of the evidence
upon which the ALJ relied, and Plaintiff did not describe any
evidence that compelled the ALJ to find a marked limitation,
Plaintiff has not shown entitlement to relief on this front.9
2. RFC
Plaintiff next asserts that the ALJ overemphasized Plaintiff’s
“spotty record of medication compliance” in formulating the RFC.
(Docket Entry 13 at 2.)

In addition, Plaintiff challenges the

ALJ’s observation that Plaintiff’s diuretic medication, Lasix,
“cost only $4 at Wal-Mart and Target” (Tr. 38), because the
transcript pages cited by the ALJ as support for that observation
do not contain “any reference to the retail price of Lasix, whether
at Wal-Mark, Target, or anywhere else” (Docket Entry 13 at 2
(citing Tr. 477-81, 496-560)).

Plaintiff’s arguments in this

regard do not entitle him to reversal or remand.
9

Plaintiff did not expressly assign error to the ALJ’s findings that
Plaintiff’s mental impairments caused moderate limitation in concentration,
persistence, or pace, and no episodes of decompensation. (See Docket Entry 13
at 1-2; see also Tr. 35.)

15

“[T]he [claimant’s] statements may be less credible if the
level or frequency of treatment is inconsistent with the level of
complaints, or if the medical reports show that the [claimant] is
not following the treatment as prescribed and there are no good
reasons for this failure.”

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 3741856, at *7 (July 2, 1996).10

“However, the

[ALJ] must not draw any inferences about [the claimant’s] symptoms
and their functional effects from a failure to seek or pursue
regular

medical

treatment

without

first

considering

any

explanations that the [claimant] may provide, or other information
in the case record, that may explain infrequent or irregular

10

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. 41), 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.). In any event, SSR 16-3p lacks relevance to
the instant matter because, as noted above, the ALJ did not make an adverse
credibility determination based on Plaintiff’s medication noncompliance. (See
Tr. 37, 39.)

16

medical visits or failure to seek medical treatment,” such as an
inability “to afford treatment.”

Id. at *7-8.

Here, the ALJ did not discuss Plaintiff’s lack of medication
compliance

in

connection

with

the

assessment

of

Plaintiff’s

credibility (see Tr. 37, 39); rather, the ALJ merely summarized, in
his

recitation

of

Plaintiff’s

medical

history,

the

repeated

observations of Plaintiff’s treatment providers that Plaintiff
remained largely non-compliant with his medications (see Tr. 3738).
Moreover, the ALJ based his observation that Lasix “cost only
$4 at Wal-Mart and Target” (Tr. 38) on a January 13, 2011 treatment
record from Wayne Memorial Hospital (see Tr. 521). In that record,
Dr. Frederick L. Potts noted Plaintiff’s statement that he did not
fill his Lasix prescription because “he could not afford it,” and
advised Plaintiff “that if he can afford [alcohol and tobacco], he
should be able to afford his medicine” and that Lasix “can be
gotten from Wal-Mart or Target for $4.”
Furthermore,

the

ALJ

did

not

(Id.)

improperly

base

the

RFC

determination on Plaintiff’s medication noncompliance; rather, the
ALJ appropriately considered the clinical findings in the objective
medical

evidence,

Plaintiff’s

opinion evidence of record.

subjective

complaints,

and

the

(See Tr. 37-39.)

In short, Plaintiff’s second issue on review does not warrant
reversal or remand.

17

3. Treating Physician’s Opinion
Next,
dismissal,

Plaintiff
or

his

maintains
giving

that

little

the

ALJ

weight

“err[ed]

to,

the

in

his

informed

professional opinion of [Plaintiff’s] primary care physician, Dr.
[] Ray.”

(Docket Entry 13 at 3.)

According to Plaintiff,

“[a]lthough [Dr. Ray’s] two statements . . . are very short, it
should

go

without

saying

[Plaintiff’s]

medical

[Plaintiff].”

(Id.)

that

chart

and

her

opinion

[Dr.

is

Ray’s]

premised

on

treatment

of

Plaintiff argues that Dr. Ray’s opinion

“bind[s] the ALJ unless contradicted by substantial evidence” (id.
(citing Schisler v. Heckler, 787 f.2d 76 (2d Cir. 1986)), and deems
the ALJ’s “slim justification for giving little weight to Dr. Ray’s
opinion” inadequate “under the standard of Byron v. Heckler, 742
F.2d 1232 (10th Cir. 1984)” (Docket Entry 13 at 3 (citing Tr. 39)).
Plaintiff’s arguments do not warrant relief.
Notwithstanding Plaintiff’s reliance on cases from the United
States Courts of Appeals for the Second and Tenth Circuits, the
plain language of 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, see
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), but recognizes that not
all treating sources or treating source opinions merit the same
deference.

For example, the nature and extent of each treatment

relationship appreciably tempers the weight an ALJ affords an

18

opinion.

See 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii).

Moreover, as subsections (2) through (4) of the rule 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 of
record.

See 20 C.F.R. §§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4).

Indeed, the Fourth Circuit has made clear that, “if 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.”
added).

Craig, 76 F.3d at 590 (emphasis

Finally, opinions by physicians regarding the ultimate

issue of disability and other such findings dispositive of a case
do not receive controlling weight because the Commissioner reserves
the

authority

to

render

such

decisions.

See

20

C.F.R.

§§ 404.1527(d), 416.927(d).
Dr. Ray submitted two letters, dated December 12, 2012, and
March 11, 2013, and addressed “To Whom It May Concern,” which
contain opinions regarding Plaintiff’s ability to work.
764.)

(Tr. 691,

In the first letter, Dr. Ray opined that Plaintiff “[wa]s

unable to work at this time” (Tr. 691), and, in the second letter,
Dr. Ray estimated that Plaintiff “[wa]s unable to work at this
time, and w[ould] be unable to work for the next six months” (Tr.
764).

19

Here, the ALJ’s evaluation of Dr. Ray’s opinions comports with
the above-cited regulations and Craig.

The ALJ found as follows:

On December 12, 2012, Veronica Ray, MD[], submitted a
letter stating that [Plaintiff] is being treated at
Lincoln Community [Health] Center and is unable to work
at this time.
This opinion is given little weight
because it is an opinion on the ultimate issue of
disability, is not supported by objective medical
evidence or treatment notes, does not specify any
functional limitations and is inconsistent with other
medical evidence and opinions.
(Tr. 39 (emphasis added).)11
As quoted above, the ALJ gave four reasons, each proper under
the governing standard, for his decision to discount Dr. Ray’s
opinion.

(Id.)

Even a facial review of Dr. Ray’s letter makes

clear that the ALJ did not err by discounting Dr. Ray’s opinion for
failing to specify any functional limitations and as regarding a
matter (i.e., ability to work) reserved to the Commissioner, see 20
C.F.R. §§ 404.1527(d), 416.927(d).

(Tr. 39.)

With regard to the

ALJ’s finding that Dr. Ray’s opinion did not mesh “with other
medical evidence and opinions” (id.), the ALJ’s RFC analysis
discusses numerous objective findings on examination and medical
opinions which conflict with Dr. Ray’s opinion that Plaintiff

11

The record before the Court does not establish that the record before the ALJ
contained the March 11, 2013 letter from Dr. Ray.
At the hearing, the ALJ
admitted exhibits 1F through 19F into the record without objection from
Plaintiff’s attorney (see Tr. 51-52), and Dr. Ray’s March 11, 2013 bears the
label “EXHIBIT NO. 20F” (Tr. 764). Moreover, the Appeals Council indicated that
it “ha[d] received additional evidence which it is making part of the record”
which included Dr. Ray’s March 11, 2013 letter. (See Tr. 15 (emphasis added).)
However, even if the record before the ALJ contained the March 2013 letter, the
ALJ’s failure to expressly discuss that letter constitutes harmless error, as
both of Dr. Ray’s letters express essentially the same opinion, i.e., that
Plaintiff lacks the ability to work. (Compare Tr. 691, with Tr. 764.)

20

lacked the ability to work (see Tr. 37-39).

Moreover, beyond the

conclusory statement that “it should go without saying that [Dr.
Ray’s] opinion is premised on [Plaintiff’s] medical chart and [Dr.
Ray’s] treatment of [Plaintiff]” (Docket Entry 13 at 3), Plaintiff
makes no attempt to point the Court to specific evidence in
Plaintiff’s “medical chart” or Dr. Ray’s treatment notes that
supports her opinion (see id.).12

That failure forecloses relief.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[A]
litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” (internal quotation
marks omitted)); Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014
WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (“A
party should not expect a court to do the work that it elected not
to do.”).
Simply put, Plaintiff’s third assignment of error fails as a
matter of law.
4. Medicaid Disability Decision
In Plaintiff’s fourth issue on review, he faults the ALJ for
failing to evaluate and weigh the “February 21, 2013” decision of

12

The record before the Court reflects that, although Plaintiff visited the
Lincoln Community Health Center on multiple occasions in 2011 and 2012 (see Tr.
564-91, 616-30), Dr. Ray treated Plaintiff on only one occasion on April 19, 2012
(see Tr. 623-26). Thus, doubt exists whether, at the time Dr. Ray prepared the
opinion(s) in question, she would qualify as a treating physician under the
regulations. See 20 C.F.R. §§ 404.1527(c)(i), 416.927(c)(i) (“When the treating
source has seen [a claimant] a number of times and long enough to have obtained
a longitudinal picture of [the claimant’s] impairment, [the Social Security
Administration] will give the source’s opinion more weight then [the
Administration] would give it if it were from a nontreating source.”).

21

the NCDHHS (“Medicaid decision”) “reversing an earlier unfavorable
decision and finding [Plaintiff] disabled for Medicaid purposes
. . . .”

(Docket Entry 13 at 4 (emphasis added); see also Docket

Entry 17 at 1-2 (citing Social Security Ruling 06-03p, Titles II
and XVI: Considering Opinions and Other Evidence From Sources Who
Are

Not

“Acceptable

Medical

Sources”

in

Disability

Claims;

Considering Decisions on Disability by Other Governmental and
Nongovernmental Agencies, 2006 WL 2329939, at *6 (Aug. 9, 2006)
(providing that “evidence of a disability decision by another
governmental or nongovernmental agency cannot be ignored and must
be considered”)).)

Plaintiff has expressed certainty that the

Medicaid “decision . . . was bar-coded and faxed into the Social
Security record,” but has reported that he could not locate the
decision in the record.

(Docket Entry 13 at 4.)

Plaintiff posits

that “[t]he significance of the [Medicaid decision] is that it was
made

under

the

disability,”

exact

although

same

standards

Plaintiff

as

for

“concede[s]

Social
that

Security

the

Social

Security Administration is not bound by the [Medicaid decision]
. . . .”

(Id. (emphasis in original.)

These arguments do not

demonstrate grounds for reversal or remand.
As an initial matter, the NCDHHS issued the Medicaid decision
on February 21, 2014, not February 21, 2013 as Plaintiff alleges.
(See

Tr.

420

(Medicaid

decision’s

signature

page

reflecting

typewritten date of February 21, 2013, with a handwritten “4”

22

marked over the “3”); see also Tr. 411 (cover letter dated February
26, 2014, signed by Plaintiff’s attorney, and addressed to the
Appeals Council indicating that he enclosed “[t]he February 21,
2014 favorable decision of the [NCDHHS]” (emphasis added)).) Thus,
the ALJ could not have discussed or weighed the Medicaid decision,
as that decision post-dated the ALJ’s July 24, 2013 decision by
nearly six months.

Moreover, the order of the Appeals Council

denying review makes clear that the Appeals Council considered the
Medicaid decision and incorporated it into the record (see Tr. 11,
15, 416-21), but “found that this information does not provide a
basis for changing the [ALJ’s] decision” (Tr. 12).

Significantly,

Plaintiff makes no argument that the Medicaid decision constitutes
new and material evidence before the Appeals Council that rendered
the ALJ’s decision unsupported by substantial evidence.

(See

Docket Entry 13; see also Docket Entry 17.)13
In sum, no error occurred in connection with the Medicaid
decision.

13

Defendant argues that, “even if the Medicaid decision had been submitted into
the record and considered by the ALJ and/or the Appeals Council, it would not
direct a different outcome” because “‘[t]he record did not contain any indication
of what medical evidence the . . . Medicaid decision was based upon[, and] [t]hus
. . . did not provide substantial evidence of [] Plaintiff’s alleged
disability.’” (Docket Entry 16 at 18 n.2 (quoting Lail v. Colvin, No. 5:13-cv00089-MR-DLH, 2014 WL 4793234, at *6 (W.D.N.C. Sept. 25, 2014) (unpublished)).)
Although the Medicaid decision contains a summary recitation of the evidence in
the record before the NCDHHS, that recitation makes clear that the NCDHHS
considered evidence from the latter half of 2013 and 2014 that the ALJ here did
not consider, as well as testimony from unidentified witnesses which may have
differed from the testimony before the ALJ. (See Tr. 416-18.) Thus, should the
Court reach the issue, like Lail, the Court should find that the Medicaid
decision does not render the ALJ’s decision unsupported by substantial evidence.

23

5. Combined Effect of Impairments
Lastly, Plaintiff contends that the ALJ neglected to evaluate
the combined effect of all of Plaintiff’s impairments.
Entry 13 at 4.)

(Docket

Plaintiff maintains that “[o]ne gets a wrong

impression of [Plaintiff] by looking at his various ailments and
historical events alone and isolated, out of context.”

(Id.)

According to Plaintiff, “the December 4, 2012 letter of Kimberli
Johnson at Alliance Behavioral Healthcare in Durham pretty much
says it all” and “is as fine a picture of [Plaintiff] as we have
anywhere, down to the slurred speech referenced in and in evidence
at the June 13, 2[0]13 ALJ hearing.”

(Id. (citing Tr. 689-90).)

Plaintiff’s contentions fail.
A well-reasoned decision from a neighboring court addresses an
ALJ’s obligation to consider the combined effect of a claimant’s
impairments:
When dealing with a claimant with multiple impairments,
the Commissioner “must consider the combined effect of a
claimant’s impairments and not fragmentize them.” Walker
v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (citing
Reichenbach v. Heckler, 808 F.2d 309 (4th Cir. 1985)[)].
This requires the ALJ to “adequately explain his or her
evaluation of the combined effects of the impairments.”
Id. The ALJ’s duty to consider the combined effects of
a claimant’s multiple impairments is not limited to one
particular aspect of review, but is to continue
“throughout the disability determination process.” 20
C.F.R. § 404.1523.
Following the Walker decision, the Fourth Circuit has
provided little elaboration on what constitutes an
“adequate” combined effect analysis.
. . . In an
unpublished opinion decided after Walker, the Fourth
Circuit . . . found that the district court “correctly
24

determined that the ALJ had adequately explained his
evaluation of the combined effect of [the claimant’s]
impairments.” [Green v. Chater, No. 94-2049, 64 F.3d 657
(table), 1995 WL 478032, at *3 (4th Cir. Aug. 14, 1995)
(unpublished).] In reaching this conclusion, the court
focused on the ALJ’s conclusory statement that he had
considered all of the claimant’s impairments, both
singularly and in combination and then noted evidence
that was consistent with this conclusion.
Id.
This
evidence consisted of (1) the ALJ’s finding that the
claimant’s combination of impairments precluded heavy
lifting; (2) the ALJ’s listing and consideration of each
of the alleged impairments; and (3) the ALJ’s finding
that many of the claimant’s symptoms were treatable. Id.
. . . “Accordingly, the adequacy requirement of Walker is
met if it is clear from the decision as a whole that the
ALJ considered the combined effect of a claimant’s
impairments.” [Brown v. Astrue, 0:10-cv-01584-RBH, 2012
WL 3716792, at *6 (D.S.C. Aug. 28, 2012) (unpublished).]
Williams v. Colvin, Civ. No. 6:11-2344-GRA-KFM, 2013 WL 877128, at
*2 (D.S.C. Mar. 8, 2013) (unpublished).
Here, the ALJ provided a thorough discussion of the medical
evidence and discussed each of Plaintiff’s alleged impairments.
(Tr. 37-39.) At step three, the ALJ expressly found that Plaintiff
did “not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments.”

(Tr. 34 (emphasis added).)

In conjunction with the

RFC determination, the ALJ stated that he had “considered all
symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence.”

(Tr. 36.)

Moreover, the ALJ’s RFC, limiting

Plaintiff to sedentary work with no balancing, climbing, heights,
or

dangerous

machinery,

and

involving

25

simple,

routine,

and

repetitive

tasks,

no

interaction

with

the

general

public,

occasional interaction with co-workers and supervisors, and no
complex decision making, constant change, or crisis situations
(id.),

clearly

accounted

for

Plaintiff’s

physical

and

mental

impairments.

Thus, the ALJ’s decision, as a whole, adequately

demonstrates

that

combination.

he

considered

Plaintiff’s

impairments

in

See Paris v. Colvin, No. 7:12-CV-00596, 2014 WL

534057, at *12 (W.D. Va. Feb. 10, 2014) (unpublished) (holding that
“[i]t is apparent from the RFC itself that the ALJ accounted for
the cumulative impact of [the plaintiff’s] impairments as supported
in the record, providing restrictions that are both mental and
physical”);

Wilson-Coleman

v.

Colvin,

No.

1:11CV726,

2013

WL

6018780, at *3 (M.D.N.C. Nov. 12, 2013) (unpublished) (Webster,
M.J.) (concluding that “‘sufficient consideration of the combined
effects

of

a

claimant’s

impairments

is

shown

when

each

is

separately discussed in the ALJ’s decision, including discussion of
a claimant’s complaints of pain and level of daily activities’”
(quoting Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C.
2005), aff’d, 179 F. App’x 167 (4th Cir. 2006)) (internal brackets
omitted)), recommendation adopted, slip op. (M.D.N.C. Dec. 6, 2013)
(Schroeder, J.); Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL
455414, at *15 (E.D.N.C. Feb. 23, 2009) (noting that ALJ’s RFC
assessment

and

summarization

of

26

medical

records

as

to

each

impairment indicate ALJ “considered all of [the c]laimant’s mental
and physical limitations together”).
As a final note, even if the Court should find that the ALJ
did not adequately explain his analysis of the cumulative effect of
Plaintiff’s impairments, the Court need not remand this case,
because Plaintiff has not made any attempt to show how a more
complete analysis would have resulted in a more restrictive RFC or
a different outcome in the case (see Docket Entry 13 at 4).

See

Anderson v. Colvin, No. 1:10CV671, 2013 WL 3730121, at *7 (M.D.N.C.
Jul. 12, 2013) (Webster, M.J.) (unpublished) (“Plaintiff has failed
to

establish

how

further scrutiny

of

the

combination

of

her

impairments results in any greater functional limitations than
those already set forth in her RFC.”), recommendation adopted in
relevant part, 2014 WL 1224726 (M.D.N.C. Mar. 25, 2014) (Osteen,
C.J.) (unpublished).
Plaintiff’s fifth assignment of error thus provides no basis
for relief.
III.

CONCLUSION

Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE ORDERED that Plaintiff’s Motions to Supplement
the Record (Docket Entries 18, 19) are DENIED as moot.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
27

Summary Judgment (Docket Entry 11) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 15) be granted,
and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 14, 2017

28