OAKES v. BERRYHILL
MEMORANDUM OPINION AND RECOMMENDED RULING OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD on signed 2/8/2018. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing the Final Decision of the Commissioner of Social Security (Docket Entry 13 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 19 ) be granted, and that this action be dismissed with prejudice. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARTI ANNE OAKES,
NANCY A. BERRYHILL,
Acting Commissioner of Social
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Marti Anne Oakes, 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
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Defendant has filed the certified administrative record
(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 13, 19; see also Docket Entry 14
(Plaintiff’s Brief), Docket Entry 20 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Plaintiff applied for DIB and SSI, alleging an onset date of
April 30, 2007.
Upon denial of those applications
initially (Tr. 81-112, 145-73) and on reconsideration (Tr. 113-42,
Administrative Law Judge (“ALJ”) (Tr. 193-94).
attorney, and a vocational expert (“VE”) attended the hearing.
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
18-19, 334-35), 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:
[Plaintiff] meets the insured status requirements of
the . . . Act through June 30, 2012.
[Plaintiff] has not engaged in substantial gainful
activity since April 30, 2007, the alleged onset date.
. . .
[Plaintiff] has the following severe impairments:
carpal tunnel syndrome (CTS) and cerv[ic]algia and other
. . .
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
The record does not contain Plaintiff’s application for SSI.
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except [she] can
push and pull the same amount as lift and carry. She can
frequently handle, finger and feel bilaterally. She can
never climb ladders, ropes and scaffolds, never crawl,
never be exposed to unprotected heights and never be
exposed to extreme heat or cold. She can occasionally
use ramps and stairs, balance, stoop, kneel and crouch.
She can only occasionally operate a motor vehicle and
only occasionally be exposed to pulmonary irritants.
. . .
[Plaintiff] has no 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 [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from April 30, 2007, through
the date of this decision.
Both at the hearing (see Tr. 46-48, 73), and on a post-hearing form (see Tr.
265), Plaintiff indicated her intent to amend her alleged onset date to her date
last insured for DIB, June 30, 2012 (see Tr. 23, 25). However, the ALJ decided
the issue of disability for the period from April 30, 2007, Plaintiff’s original
alleged onset date, through September 2, 2016, the date of the ALJ’s decision.
(See Tr. 32.)
The ALJ’s error in that regard remains harmless under the
circumstances presented here, because a finding that Plaintiff did not qualify
as disabled from April 30, 2007, to September 2, 2016, necessarily encompasses
a determination that Plaintiff did not so qualify from June 30, 2012, to
September 2, 2016.
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).
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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).
the Court “must uphold the factual findings of the ALJ if they are
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
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
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
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.
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]
‘sequential evaluation process’ to determine whether a claimant is
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).4
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
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.
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).
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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
Id. at 179.5
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
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
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
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
Hines, 453 F.3d at 567.6
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred in failing to consider whether Plaintiff
met Listing 14.09A2 [(Inflammatory Arthritis)]” (Docket Entry 14 at
5 (bold font omitted));7
2) “[t]he RFC determination is not supported by substantial
evidence because the ALJ failed to follow the treating physician
rule and give more weight to Plaintiff’s treating physicians over
the non-examining state agency medical consultant” (id. at 8 (bold
font omitted)); and
substantial evidence” (id. at 14 (bold font omitted)).
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.”).
Pin citations refer to the page number appended to the bottom of each page upon
filing in the CM/ECF system.
Defendant contends otherwise and seeks affirmance of the ALJ’s
(Docket Entry 20 at 4-12.)
1. Listing 14.09A2
In Plaintiff’s first issue on review, she faults the ALJ for
(Docket Entry 14 at 5 (bold font
In particular, Plaintiff contends that the evidence
shows that “Plaintiff has persistent deformity of one or more
joints in each upper extremity” (id. at 6 (citing Tr. 729, 885,
935, 936, 939, 1029, 1030)), and “has an inability to perform fine
and gross movements effectively” (id. at 7 (citing Tr. 59, 61, 62,
282, 283, 285, 293-94, 729, 793, 910, 938)), as required by Listing
14.09A2, see 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 14.09A2.
According to Plaintiff, “[w]ithout a proper analysis explaining why
the ALJ rejected this evidence, the Court cannot determine if his
finding that Plaintiff does not meet a Listing is supported by
(Docket Entry 14 at 8 (citing Smith v.
Colvin, No. 4:15-CV-000175-RN, 2017 WL 27942, at *5 (E.D.N.C. Jan.
3, 2017) (unpublished)).)
Plaintiff’s arguments 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
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
categorized by the body system they affect.
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).
to satisfy a listing and qualify for benefits, a person must meet
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.”).
An ALJ must identify the relevant listed impairments and
compare them to a claimant’s symptoms only where “there is ample
claimant’s impairment] met or equalled [sic] one of the [ ]
impairments listed in Appendix 1 . . . .”
Cook v. Heckler, 783
F.2d 1168, 1172 (4th Cir. 1986) (emphasis added); see also Russell
v. Chater, No. 94–2371, 60 F.3d 824 (table), 1995 WL 417576, at *3
(4th Cir. July 7, 1995) (unpublished) (“Cook . . . does not
establish an inflexible rule requiring an exhaustive point-by-point
discussion [of listings] in all cases.”); Ollice v. Colvin, No.
explicitly identify and discuss every possible listing; however, he
meaningful judicial review of his step three determination where
the ‘medical record includes a fair amount of evidence’ that a
claimant’s impairment meets a disability listing.” (emphasis added)
(quoting Radford, 734 F.3d at 295)), recommendation adopted, slip
op. (M.D.N.C. Jan. 10, 2017) (Osteen, Jr., C.J.).
Listing 14.09A2 requires proof of “[i]nflammatory arthritis
. . . [w]ith [p]ersistent inflammation or persistent deformity of
. . . [o]ne or more major peripheral joints in each upper extremity
resulting in the inability to perform fine and gross movements
effectively, as defined in [Section] 14.00C7.”
20 C.F.R. Pt. 404,
Subpt. P, App'x 1, § 14.09A2 (italics omitted and emphasis added).8
“Inability to perform fine and gross movements effectively means an
extreme loss of function of both upper extremities; i.e., an
impairment(s) that interferes very seriously with the individual’s
ability to initiate, sustain, or complete activities.”
§ 1.00B2c (emphasis added).
In this case, the ALJ evaluated Plaintiff’s arthralgias under
In turn, Section 14.00C7 provides that the “[i]nability to perform fine and
gross movements effectively has the same meaning as in [Section] 1.00B2c.” 20
C.F.R., Pt. 404, Subpt. P, App’x 1, § 14.00C7 (italics omitted).
(referencing 20 C.F.R., Pt. 404, Subpt. P., App’x 1, § 1.02)), and
Plaintiff’s ulcerative colitis under Listing 5.06 (Inflammatory
Bowel Disease) (see Tr. 26-27 (referencing 20 C.F.R., Pt. 404,
Subpt. P., App’x 1, § 5.06)), and found that Plaintiff’s signs and
symptoms did not meet the requirements of either listing (see id.).
In considering Listing 1.02, which contains the same requirement
effectively as Listing 14.09A2, the ALJ found that “the evidence
difficulty in performing fine and gross movements as defined in
The ALJ did not expressly consider
(See Tr. 26-27.)
Plaintiff has not established grounds for reversal or remand,
because the evidence upon which she relies shows neither that
“ample evidence” existed that her impairment met or medically
equaled Listing 14.09A2, Cook, 783 F.2d at 1172, nor that remand
for an express discussion of Listing 14.09A2 by the ALJ would lead
to a different outcome in her case, Fisher v. Bowen, 869 F.2d 1055,
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”).
Significantly, Plaintiff has not shown that she suffered from
inflammatory arthritis, as required by Listing 14.09A2, see 20
C.F.R., Pt. 404, Subpt. P., App’x 1, § 14.09.A2.
that, “[a]t the hearing, Plaintiff testified that her doctor told
her some people with ulcerative colitis also have problems with
their joints, which suggests that her hand pain and joint problems
are inflammatory arthritis due to her ulcerative colitis.” (Docket
Entry 14 at 4 (emphasis added) (citing Tr. 60).)9
Plaintiff testified as follows about a possible connection between
her ulcerative colitis and her joint pain:
So what are they telling you is wrong
with your hands?
I believe they call it arthropathy. And
she said it’s the people who have
ulcerative colitis, 30% of people who
have [ulcerative colitis] will get – the
colitis will travel outside of the
digestive tract and into their joints and
the bones, and that’s where I come in.
It’s gone into – the ulcerative colitis
has gone outside and traveled into –
. . .
– [my] knees, and hands, and back, and
establishes, at most, that an unidentified doctor informed her on
an unknown date that her ulcerative colitis had caused arthropathy,
Plaintiff also maintains that “[t]he consultative examiner [Dr. Romeo B.
Atienza] determined that Plaintiff’s] hand arthralgia was steroid-induced
arthritis.” (Id. (citing Tr. 732) (emphasis added).) Plaintiff does not explain
how Dr. Atienza’s finding of “steroid-induced arthritis” (Tr. 732 (emphasis
added)) demonstrates that Plaintiff suffered from inflammatory arthritis. (See
Docket Entry 14 at 5-8.)
diagnosed her with inflammatory arthritis.
orthopedist, Dr. Mark Brenner, diagnosed Plaintiff with carpal
tunnel syndrome, DeQuervain’s tenosynovitis, and knee pain (see Tr.
Plaintiff with “unspecified arthropathy” (Tr. 968; see also Tr. 936
(diagnosing unspecified arthropathy at multiple sites)), and tests
reflected negative results for signs of arthritis (see Tr. 940
(documenting Plaintiff’s negative laboratory test for rheumatoid
arthritis), 953 (7/1/15 xray of wrists showing “[n]o radiographic
features of arthritis”), 954 (7/1/15 xray of knees recording “[n]o
radiographic features of arthritis”), 963 (7/28/15 xray of lumbar
spine and pelvis reflecting no acute fracture or dislocation and
“[n]o significant degenerative changes”).
Furthermore, all other xrays of record showed no evidence of
arthritis in Plaintiff’s hands, knees, spine, or pelvis.
807 (5/24/13 xray of cervical spine reporting no fracture or
subluxation, well-preserved disc spaces, no facet hypertrophy, and
no significant disc disease), 808 (1/11/13 xray of hands reflecting
no significant degenerative changes), 810 (1/11/13 xray of knees
demonstrating no significant degenerative changes), 868 (11/26/13
xray of knees indicating no fracture or effusion, well-maintained
joint spaces, and no hypertrophic spurring), 869 (11/26/13 xray of
hands showing no fracture or dislocation, normal bone mineral
significant degenerative changes).
inflammatory arthritis diagnosis, Plaintiff cannot meet Listing
14.09A2’s specific requirements.10
Plaintiff first maintains that
the evidence shows “persistent deformity of one or more joints in
each upper extremity,” and points to Dr. Melton’s documentation of
deformity in Plaintiff’s proximal interphalangeal (“PIP”), distal
interphalangeal (“DIP”), and metacarpophalangeal (“MCP”) joints
over a 9-month period in 2015 and 2016.
(Docket Entry 14 at 6
(emphasis added) (citing Tr. 935, 936, 939, 1029, 1030).) However,
Listing 14.09A2 requires “[p]ersistent deformity of . . . [o]ne or
more major peripheral joints in each upper extremity.”
Pt. 404, Subpt. P, App'x 1, § 14.09A2 (italics omitted and emphasis
added). “[M]ajor peripheral joints” of the upper extremity include
the “shoulder, elbow, [and] wrist-hand . . ., as opposed to the
other peripheral joints (e.g., the joints of the hand).”
Plaintiff made no argument that her joint impairment medically equaled Listing
14.09A2. (See Docket Entry 14 at 5-8.)
deformity in Plaintiff’s finger joints do not demonstrate deformity
of “major peripheral joints,” i.e., Plaintiff’s wrist-hand joints.12
Plaintiff also argues that “[t]he evidence suggests Plaintiff
has an inability to perform fine and gross movements effectively.”
(Docket Entry 14 at 7.) However, Plaintiff relies primarily on her
own subjective reports of difficulty performing such movements (see
id. (citing Tr. 59, 61, 62, 282, 283, 286, 729, 793, 938)), and the
persistence and limiting effects of [her] symptoms . . . not
entirely consistent with the medical evidence and other evidence in
(Tr. 28.) For the reasons explained more fully below
in connection with Plaintiff’s third assignment of error, the ALJ
supported his analysis of Plaintiff’s credibility with substantial
Similarly, Plaintiff points to “a third party function
report completed on January 27, 2014, [on which] Edward Oakes
“The wrist and hand are considered together as one major joint . . . .”
C.F.R., Pt. 404, Subpt. P, App’x 1, § 1.00F.
Plaintiff also relies on Dr. Atienza’s October 13, 2009, finding of swelling
in Plaintiff’s PIP joints, and Dr. Brenner’s January 13, 2015, finding of “very
subtle swelling involving both [of Plaintiff’s] hands” to support her argument
that she demonstrated the “persistent deformity” required by Listing 14.09A2.
(Docket Entry 14 at 6 (citing Tr. 729, 885).) As an initial matter, findings of
swelling do not demonstrate deformity of the joints, but rather inflammation.
In any event, Plaintiff still cannot show “persistent inflammation” of “[o]ne or
more major peripheral joints in each upper extremity,” 20 C.F.R. Pt. 404, Subpt.
P, App'x 1, § 14.09A2 (italics omitted and emphasis added).
finding of PIP joint swelling does not involve a “major peripheral joint.” (See
Tr. 729.) Moreover, although Dr. Brenner did not indicate the specific location
of Plaintiff’s “very subtle” hand swelling (see Tr. 885), even if that swelling
occurred in Plaintiff’s wrist-hand joint, such an isolated finding would not
qualify as “persistent inflammation.”
reported that [Plaintiff] could hardly hold a book to read and her
hands were weak, so she would not hold on to things or open them.”
(Docket Entry 14 at 8 (citing Tr. 293-94).)13
However, the ALJ
declined to give significant weight to Mr. Oakes’ statements (see
Tr. 30-31), and Plaintiff did not challenge the ALJ’s decision in
that regard (see Docket Entry 14).
physical therapist Kelly Tolentino noted Plaintiff had functional
limitations gripping and writing.”
(Id. at 7 (citing Tr. 910).)
However, Ms. Tolentino’s notation of functional limitations in
gripping and writing appears in a portion of the treatment record
containing Plaintiff’s subjective complaints, such as her estimated
pain level, type of pain, as well as aggravating and alleviating
factors. (See Tr. 910.) That treatment record later reflects that
Ms. Tolentino “deferred” a grip strength test, and does not reflect
that she gauged Plaintiff’s writing ability.
event, Ms. Tolentino treated Plaintiff approximately one month
after a motor vehicle accident in which Plaintiff dislocated her
right middle finger and injured her right shoulder.
(See Tr. 901,
A follow-up note on August 7, 2014, noted that physical
therapy on Plaintiff’s right middle finger and shoulder “helped,”
and that Plaintiff did not have “much pain” at that point.
The record does not clarify the relationship between Edward Oakes and
Plaintiff. (See Tr. 289-86.)
In contrast to Plaintiff’s largely subjective evidence, the
ALJ noted Dr. Atienza’s findings that Plaintiff “was able to make
a fist with minimal discomfort[,] . . . her grip/pinch were strong
bilaterally[,] [and] [s]he had no trouble picking up, g[r]asping,
or manipulating small/large objects.”
(Tr. 29 (referencing Tr.
Substantial evidence thus supports the ALJ’s determination
that “the evidence d[id] not demonstrate that [Plaintiff] ha[d] the
degree of difficulty in performing fine and gross movements as
defined in [Section] 1.00B2c.”
Under such circumstances, Plaintiff has shown neither that the
record contains “ample evidence” that her joint symptoms met or
medically equaled Listing 14.09A2, Cook, 783 F.2d at 1172, nor that
a remand for an express discussion of Listing 14.09A2 by the ALJ
would lead to a different outcome in her case, see Gower v.
Commissioner of Soc. Sec., Civ. No. 13–14511, 2015 WL 163830, at
*29 (E.D. Mich. Jan. 13, 2015) (unpublished) (finding step three
remand not justified where “[a]ny further discussion [by the ALJ at
step 3] would simply expound upon the absence of evidence”); see
also Fisher, 869 F.2d at 1057 (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”).
In sum, Plaintiff’s first assignment of error fails to entitle
her to relief.
2. Treating Physician Rule
Plaintiff next maintains that “[t]he RFC determination is not
supported by substantial evidence because the ALJ failed to follow
the treating physician rule and give more weight to Plaintiff’s
treating physicians over the non-examining state agency medical
(Docket Entry 14 at 8 (bold font omitted).)14
particular, Plaintiff argues that “[t]he reasons provided by the
ALJ for the weight he gave to . . . opinions [from treating sources
Drs. Brenner and Melton] do not provide a sufficient analysis to
enable the Court to review [the ALJ’s] determination.”
(citing Fox v. Colvin, 632 F. App’x 750, 756 (4th Cir. 2015), and
Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016)).)
to Plaintiff, “[t]he ALJ’s rejection of Dr. Brenner’s and Dr.
Melton’s opined limitations was harmful,” because “a limitation
. . . to allow Plaintiff the option to change positions every
thirty minutes . . . [would render Plaintiff] unable to perform any
of the jobs provided by the [VE] and relied on by the ALJ[,] [and]
[t]here is no evidence to support a finding that Plaintiff could
perform any jobs if she were limited to less than occasional
Plaintiff did not make any further argument that the ALJ erred by according
more weight to the opinions of the non-examining state agency medical consultant
than to those of Plaintiff’s treating physicians, focusing instead on challenging
the ALJ’s grounds for discounting the opinions of Plaintiff’s treating
physicians. (See Docket Entry 14 at 8-14.) Accordingly, Plaintiff has waived
that aspect of her argument. 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) (Schroeder, J.) (“A party should not
expect a court to do the work that it elected not to do.”).
reaching, handling, and fingering.”
(Id. at 14 (citing Tr. 72).)
Plaintiff’s contentions miss the mark.
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
§§ 404.1527(c)(2), 416.927(c) (“[T]reating sources . . . provide a
impairment(s) and may bring a unique perspective to the medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.”).
also recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
416.927(c)(2)(ii). Moreover, as subsections (2) through (4) of the
rule describe in great detail, a treating source’s opinion, like
all medical opinions, deserves deference only if well-supported by
medical signs and laboratory findings and consistent with the other
§§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4).
“[I]f a physician’s
inconsistent with other substantial evidence, it should be accorded
significantly less weight.”
Craig, 76 F.3d at 590 (emphasis
a. Dr. Brenner
In this case, on February 4, 2015, Dr. Brenner completed an
RFC Questionnaire (Tr. 878-79), reporting Plaintiff’s diagnoses as
DeQuervain’s tenosynovitis and carpal tunnel syndrome which caused
symptoms of numbness in Plaintiff’s right hand (see Tr. 878).
“[s]eldom” would rate as “severe enough to interfere with the
attention and concentration required to perform simple work-related
tasks,” and that Plaintiff’s prognosis remained “good.” (Id.) Dr.
Brenner declined to evaluate Plaintiff’s abilities to sit, stand,
and walk in the absence of a functional capacities evaluation, but
did indicate that Plaintiff needed a job which permitted her to
change position from sitting, standing, or walking at will.
Ultimately, Dr. Brenner opined that Plaintiff could not lift or
carry any weight frequently and up to ten pounds occasionally, and
could only perform handling, fingering, and reaching for two
percent (or less than 10 minutes) of an 8-hour workday. (Tr. 879.)
The ALJ detailed the findings in Dr. Brenner’s treatment notes
(see Tr. 29) and then assessed his opinions as follows:
[Plaintiff] can occasionally lift and carry 10 pounds,
and can use her bilateral arms, hands, and fingers two
percent of the workday. I give Dr. Brenner’s opinions
little weight, as the evaluation being [sic] incomplete
His opinion noted need for further
functional capacity evaluation.
The ALJ did not reversibly err in his evaluation of Dr.
Plaintiff challenges the ALJ’s rejection of Dr. Brenner’s
opinions as “incomplete” (Docket Entry 14 at 11 (citing Tr. 30),
arguing “that Dr. Brenner[’s] refus[al] to opine limitations about
an impairment he did not treat and knew nothing about should not
mean his opinion is not entitled to weight, but instead that it is
entitled to more weight” (id. at 12).
Plaintiff’s argument does
not clarify which “impairment” Dr. Brenner “did not treat and knew
If Plaintiff meant to suggest that Dr.
Brenner treated only Plaintiff’s wrist and hand problems and, thus,
could not offer opinions regarding Plaintiff’s abilities to sit,
stand, or walk, Plaintiff overlooks her first visit with Dr.
Brenner on May 26, 2014.
(See Tr. 921-23.)
On that date,
Plaintiff complained of pain in her hands and knees for years, and
reported that she had trouble bending her knees.
(See Tr. 921.)
Dr. Brenner ordered a knee x-ray which showed mild degenerative
changes (see Tr. 922, 923), diagnosed Plaintiff with pain in her
medication and home exercises (see Tr. 923). Moreover, Dr. Brenner
failed to answer questions regarding side effects from Plaintiff’s
medications (see Tr. 878), whether Plaintiff would need unscheduled
breaks (see id.), how often Plaintiff would miss work due to her
impairments (see Tr. 879), and whether Plaintiff could perform
full-time work on a sustained basis (see id.), questions which do
not depend on the type of impairment that Dr. Brenner treated.
proposition that an ALJ may not discount a treating source’s report
on the basis, even in part, of incompleteness (see Docket Entry 14
Authority to the contrary ,however, abounds.
Walde v. Apfel, No. 00-1442, 242 F.3d 378 (table), 2000 WL 1705022,
at *1 (8th Cir. Nov. 15, 2000) (unpublished) (affirming ALJ’s
because, inter alia, such findings “were incomplete”); Wilson v.
Berryhill, No. 3:16CV1771, 2017 WL 2720344, at *11 (N.D. Ohio June
23, 2017) (unpublished) (discerning no error in ALJ’s decision to
discount treating physician’s opinion on check-box form, because,
in part, “any limits concerning [the p]laintiff’s ability to
stand/walk or sit were left blank”).
Plaintiff also faults the ALJ for discounting Dr. Brenner’s
opinions as conclusory.
(See Docket Entry 14 at 12-13 (citing Tr.
30).) That argument fails, because Dr. Brenner did not provide any
Plaintiff maintains that Dr. Brenner’s “failure to answer every question on
a pre-printed form is not a legitimate basis to reject his opinion, as it is
neither contradictory evidence nor one of the factor’s [sic] to be considered.”
(Docket Entry 14 at 11-12 (citing Meyer-Williams v. Colvin, 87 F. Supp. 3d 769,
772 (M.D.N.C. 2015) (Eagles, J.), and 20 C.F.R. §§ 404.1527(c)(2)-(6),
416.927(c)(2)-(6)).) However, Plaintiff then concedes that the incompleteness
of an opinion “could be considered under the last factor” in the regulations
governing the evaluation of medical opinions. (Id. at 12 (referencing 20 C.F.R.
§§ 404.1527(c)(6), 416.927(c)(6) (containing catchall provision permitting ALJ
to consider any other factors “which tend to support or contradict the
supporting rationale or objective findings to support his extreme
(See Tr. 878-79.)
Thus, the ALJ did not err by
discounting Dr. Brenner’s opinions as conclusory.
See Kepke v.
Commissioner of Soc. Sec., 636 F. App’x 625, 630 (6th Cir. 2016)
checklist opinion which “did not provide an explanation for [the
physician’s] findings”); Anderson v. Astrue, 696 F.3d 790, 794 (8th
Cir. 2012) (“recogniz[ing] that a conclusory checkbox form has
little evidentiary value when it ‘cites no medical evidence, and
provides little to no elaboration’” (quoting Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2009)); Smith v. Astrue, 359 F. App’x 313,
316 (3d Cir. 2009) (“[C]hecklist forms . . . which require only
that the completing physician ‘check a box or fill in a blank,’
rather than provide a substantive basis for the conclusions stated,
(quoting Mason v. Shalala, 994 F.2d 1058,
1065 (3d Cir. 1993))); Acosta v. Colvin, No. 1:14CV1056, 2016 WL
1229084, at *4 (M.D.N.C. Mar. 28, 2016) (unpublished) (Osteen,
well-supported” where the opinion “took the form of a checkbox
Whitehead v. Astrue, No. 2:10-CV-35-BO, 2011 WL 2036694, at *9
(E.D.N.C. May 24, 2011) (unpublished) (ruling ALJ correctly found
that treating physician’s check-box form did not merit controlling
weight where physician provided no explanation for her findings).
Although Plaintiff concedes that “Dr. Brenner did not provide
the reasons for his opinion[s]” on the RFC Questionnaire, Plaintiff
nevertheless urges that Dr. Brenner’s opinions harmonized “with his
416.927(c)(4)).) That argument fails, because the ALJ did consider
(and discuss) Dr. Brenner’s treatment records, noting that Dr.
Brenner found decreased range of motion, tenderness, and swelling
reflexes, and sensation bilaterally.
(See Tr. 30 (citing Tr.
888).) Plaintiff does not explain how those findings supported Dr.
occasional lifting and carrying and fewer than 10 minutes of
handling, fingering, and reaching in an eight-hour workday (see Tr.
(Docket Entry 14 at 12-13.)
b. Dr. Melton
On March 3, 2016, Dr. Melton completed an RFC Questionnaire
arthropathy” which caused symptoms of joint pain, lower back pain,
dry mouth and eyes, and paresthesias (Tr. 968).
indicated that Plaintiff could walk one to two blocks without
resting or significant pain, sit for 60 minutes at a time and for
a total of seven hours, stand and/or walk for 15 minutes at a time
and for a total of one hour, and needed a job which permitted her
to change position from sitting, standing, or walking at will.
(See id.) Further, Dr. Melton opined that Plaintiff could lift and
occasionally, and could only perform handling and fingering for 10
percent (48 minutes), and reaching for 50 percent, of an 8-hour
(See Tr. 969.)
Dr. Melton believed that Plaintiff’s
impairments would cause her to miss work three or four times per
month, and that Plaintiff could not work an eight-hour day, five
days per week on a sustained basis.
The ALJ discussed the findings in Dr. Melton’s treatment notes
(see Tr. 30) and then evaluated her opinions as follows:
Dr. Melton, a treating physician, opined that [Plaintiff]
can sit for seven hours and stand or walk up to one hour
in an eight-hour workday. [Plaintiff] can occasionally
lift and carry up to 20 pounds. [Plaintiff] would likely
miss three or four days of work per month.
further opined that [Plaintiff] was not capable of
working an eight-hour day, five days a week, on a
sustained basis. While [the ALJ] note[s] that an opinion
on whether an individual is disabled goes to an issue
reserved to the Commissioner and therefore cannot be
given special significance, such opinion should still be
considered in the assessment of [Plaintiff’s] [RFC]. I
give Dr. Melton’s opinions partial weight to the extent
they are consistent with the overall medical evidence and
(id. (internal citations omitted)).
The ALJ did not commit an
error warranting remand in his evaluation of Dr. Melton’s opinions.
Plaintiff challenges the ALJ’s evaluation of Dr. Melton’s
opinions on two grounds.
(See Docket Entry 14 at 13-14 (citing Tr.
First, Plaintiff faults the ALJ for “not explain[ing] which
evidence, nor why he rejected other limitations.”
(citing Tr. 30).)
(Id. at 13
However, comparison of Dr. Melton’s opinions
with the RFC adopted by the ALJ makes clear which of Dr. Melton’s
opinions the ALJ credited and which he rejected.
(Compare Tr. 27,
with Tr. 968-69.)
“fail[ing] to explain why th[at] evidence d[id] not support Dr.
Melton’s opined limitations.”
(Docket Entry 14 at 13 (citing Tr.
935-36, 939, 940, 1029-30).)
However, the ALJ did not expressly
evaluate the consistency of Dr. Melton’s limitations with her own
treatment notes but rather discounted Dr. Melton’s opinions to the
extent they remained inconsistent with other medical evidence of
(See Tr. 30.)
Such a finding suffices to justify the
ALJ’s discounting of Dr. Melton’s opinions.
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,
Moreover, although the ALJ did not detail the evidence that
conflicted with Dr. Melton’s opinions in the same paragraph in
which the ALJ weighed those opinions (see Tr. 30), the ALJ’s
earlier discussion of the medical evidence permits the Court to
meaningfully review his evaluation of Dr. Melton’s opinions.
McCartney v. Apfel, 28 F. App’x 277, 279-80 (4th Cir. 2002)
(rejecting challenge to ALJ’s finding for lack of sufficient detail
where other discussion in decision adequately supported finding and
stating “that the ALJ need only review medical evidence once in his
decision”); Kiernan v. Astrue, No. 3:12CV459-HEH, 2013 WL 2323125,
at *5 (E.D. Va. May 28, 2013) (unpublished) (observing that, where
an “ALJ analyzes a claimant’s medical evidence in one part of his
decision, there is no requirement that he rehash that discussion”
in other parts of his analysis).
In his decision, the ALJ
specifically discussed normal xrays of Plaintiff’s hands, knees,
and spine, and treatment records which showed good range of motion,
full strength, normal sensation, symmetric reflexes, full pulses,
no edema, redness, or warmth, and normal gait and station.
28-30 (citing Tr. 728-31, 807-10, 868-69, 884-923, 934-63).)
addition, the ALJ noted Plaintiff’s daily activities, including
handling personal care, taking care of her children, preparing
simple meals, completing light household chores, shopping, reading,
watching television, socializing, attending church, and driving,
which the ALJ found inconsistent with Plaintiff’s allegations of
disability “and further support[ed] the finding that [Plaintiff]
can perform a range of light work tasks and activities.
(citing Tr. 281-88.)16
In short, Petitioner has shown no basis for relief arising
from the ALJ’s decision to discount the opinions of Drs. Brenner
3. Credibility Evaluation
determination is not supported by substantial evidence.”
Entry 14 at 14 (bold font omitted).)
More specifically, Plaintiff
maintains that “[t]he ALJ failed to apply the proper legal standard
by requiring objective evidence of Plaintiff’s symptoms,” because
“Plaintiff’s symptoms cannot be rejected solely because they are
not substantiated by the objective medical evidence.”
(Id. at 15
(citing Social Security Ruling 16-3p, Titles II and XVI: Evaluation
of Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,
2017) (“SSR 16-3p”), Stitley v. Colvin, 621 F. App’x 148, 150 (4th
Cir. 2015), and Tanner v. Commissioner of Soc. Sec., 602 F. App’x
95, 99 (4th Cir. 2015)).)
According to Plaintiff, “[t]he ALJ
further erred by claiming that Plaintiff’s complaints were not
consistent with the preponderance of the opinions and medical
With regard to driving in particular, the ALJ “noted that driving an
automobile for any distance . . . requires significant physical abilities such
as sitting in one place for a period of time, turning the steering wheel, and
maneuvering one’s body in positions as to see in all directions and angles, while
simultaneously operating foot controls.” (Tr. 28.)
(Id. at 16 (referencing Tr. 31).)
warrant no relief.
See SSR 16-3p, 2017 WL 5180304, at *3; see also 20
C.F.R. §§ 404.1529, 416.929.17
First, the ALJ “must consider
whether there is an underlying medically determinable physical or
mental impairment(s) that could reasonably be expected to produce
an individual’s symptoms, such as pain.”
SSR 16-3p, 2017 WL
reasonably be expected to produce [the] alleged symptoms.”
Objective medical evidence consists of medical signs (“anatomical,
laboratory findings “shown by the use of medically acceptable
laboratory diagnostic techniques.”
Applicable to ALJ decisions on or after March 28, 2016, the Social Security
Administration superceded Social Security Ruling 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims, 1996 WL
374186 (July 2, 1996) (“SSR 96-7p”), with SSR 16-3p.
The new ruling
“eliminat[es] the use of the term ‘credibility’ from . . . sub-regulatory policy,
as [the] regulations do not use this term.” Id. at *1. 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 postdates the effective
date of SSR 16-3p (see Tr. 33) and, thus, this Recommendation will apply SSR
16-3p to Plaintiff’s argument regarding the ALJ’s subjective symptom evaluation.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work.
In making that determination, the ALJ must “examine the
entire case record, including the objective medical evidence; an
limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.”
Where relevant, the ALJ will also consider the following
factors in assessing the extent of the claimant’s symptoms at part
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
Id. at *7-8.
The ALJ cannot “disregard an individual’s statements
about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
Id. at *5 (emphasis added).
In this case, the ALJ found for Plaintiff on part one of the
statements “concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely consistent with the
medical evidence and other evidence in the record for the reasons
explained in [the ALJ’s] decision.”
faults the ALJ for rejecting Plaintiff’s subjective complaints of
symptoms “solely because they [we]re not substantiated by the
objective medical evidence.”
(Docket Entry 14 at 15 (emphasis
considered the consistency of Plaintiff’s statements with the
regulations permit him to do, see SSR 16-3p, 2017 WL 5180304, at *4
(requiring ALJ to “examine the entire case record, including the
objective medical evidence” (emphasis added); see also 20 C.F.R.
objective medical evidence to substantiate her allegations.
In making the part two finding, the ALJ observed as follows:
. . . [Plaintiff’s] testimony and allegations [are] only
partially supported by the overall medical evidence of
record. [Plaintiff] is currently working part time and
has continued to work part time for over a year. She
continues to be able to perform activities of daily
living, continues to drive and recent records note
largely normal gait, strength and tone.
majority of [Plaintiff’s] allegations are subjective and
[Plaintiff] and [Plaintiff’s] representative conceded
that the ulcerative colitis was in remission since July
2011 and the records support that admission.
. . .
Records reflect that [Plaintiff’s] anxiety and asthma are
controlled with medication and remain stable.
. . .
Additionally, [Plaintiff] reported . . . that she is able
to take care of personal care, take care of her children,
prepare simple meals, do light household chores, shop and
handle her finances.
She also likes to read, watch
television and socialize daily.
She attends church
weekly and doctor’s appointments monthly. . . . As it
relates to driving, it is noted that driving an
automobile for any distance . . . requires significant
physical abilities such as sitting in one place for a
period of time, turning the steering wheel, and
maneuvering one’s body in positions as to see in all
directions and angles, while simultaneously operating
foot controls. Performance of activities such as these
tends to erode [Plaintiff’s] consistency, as it relates
to disabling allegations, and further supports the
finding that he [sic] can perform a range of light work
tasks and activities.
(Tr. 27-28 (emphasis added).)
As the language underscored above
makes clear, the ALJ considered Plaintiff’s continued part-time
work, her engagement in a wide range of daily activities, and her
ability to drive, as well as the objective medical evidence, in
finding Plaintiff’s statements about her symptoms not entirely
consistent with the evidence of record.
claiming that Plaintiff’s complaints were not consistent with the
preponderance of opinions and medical evidence.”
(Docket Entry 14
at 16 (referencing Tr. 31).) In particular, Plaintiff argues that,
of the three medical opinions in her case (“Dr. Brenner’s, Dr.
Melton’s, and the state agency medical consultant’s . . . at the
reconsideration level”), both “Dr. Brenner’s and Dr. Melton’s
opinions support Plaintiff’s claims” (id. (citing Tr. 878-79, 96869)), and “[t]he treatment notes of both physicians further support
preponderance of medical opinions and treatment records actually
rejecting the degree of [Plaintiff’s] allegations is not supported
by substantial evidence.”
Plaintiff’s argument glosses over a critical word in the ALJ’s
The ALJ concluded that “significant weight cannot be
given to the third party [function] report [completed by Edward
Oakes] because it, like [Plaintiff’s] allegations, is simply not
consistent with the preponderance of the opinions and observations
by medical doctors in this case.”
(Tr. 31 (emphasis added).)
ALJ’s use of the conjunctive word “and” means that he found
Plaintiff’s allegations contrary to the preponderance of opinions
and medical findings taken together.
As discussed above,
conflicted with Plaintiff’s allegations of disabling symptoms to
permit the Court to engage in meaningful judicial review.
Accordingly, the ALJ supported his analysis of Plaintiff’s
allegations of error fail as a matter of law.
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing the Final Decision of the Commissioner of Social
Security (Docket Entry 13) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 19) be granted, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 8, 2018
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