ALLEN v. BERRYHILL

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/01/2018, that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence four o f 42 U.S.C. § 405(g), for further administrative proceedings, to include reevaluation of Plaintiff's symptom reporting in conformity with 20 C.F.R. § 404.1529, SSR 16-3p, and applicable authority. As a result, Plaintiff's Motio n for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing (Docket Entry 9 ) should be granted in part (i.e., to the extent it requests remand) and Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) should be denied. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANITA G. ALLEN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

1:17CV277

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Anita G. Allen, 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

Benefits (“DIB”).

Plaintiff’s

claim

(Docket Entry 1.)

for

Disability

Insurance

Defendant has filed the

certified administrative record (Docket Entry 7 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 9, 12; see also Docket Entry 10 (Plaintiff’s Memorandum);
Docket Entry 13 (Defendant’s Memorandum)).

For the reasons that

follow,

matter

the

Court

should

administrative proceedings.

remand

this

for

further

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging an onset date of April 1,
2010.

(Tr. 169-78.)1

Upon denial of that application initially

(Tr. 62-74, 93-101) and on reconsideration (Tr. 75-90, 103-10),
Plaintiff requested a hearing de novo before an Administrative Law
Judge

(“ALJ”)

representative,
hearing.

(Tr.
and

111-12).
a

(Tr. 29-61.)

Plaintiff,

vocational

expert

her

(“VE”)

non-attorney
attended

the

The ALJ subsequently ruled that Plaintiff

did not qualify as disabled under the Act.

(Tr. 10-22.)

The

Appeals Council thereafter denied Plaintiff’s request for review
(Tr. 1-6, 7-8, 280-82), 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] last met the insured status requirements
of the . . . Act on September 30, 2013.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her alleged onset date of
May 1, 2011 through her date last insured of September
30, 2013.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: cervical degenerative disc
disease status post-ACDF; left shoulder strain status
post-surgery; lumbar degenerative disc disease; right
knee strain status post-tibial plateau fracture, chronic
obstructive pulmonary disease (COPD); and obesity.

1

Due to Plaintiff’s reported earnings from employment in 2011, the Social
Security Administration amended Plaintiff’s onset date to May 1, 2011, the date
she stopped working. (See Tr. 203, 204, 217-18, 225-27.) Plaintiff did not
challenge that determination. (See Tr. 224.)

2

. . .
4.
Through the date last insured, Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform sedentary
work . . . except [she] can never climb ladders, ropes or
scaffolds, can frequently climb ramps and stairs, can
occasionally balance, can frequently kneel, stoop, and
crouch, and can occasionally crawl. [Plaintiff] can never
push or pull with the left upper extremity and can never
reach overhead with the left upper extremity, which is
the non-dominant hand. [Plaintiff] would need to avoid
concentrated exposure to fumes, odors, dusts, gases, poor
ventilation, extreme heat and hazards.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.

was

. . .
10. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from May 1, 2011, through
September 30, 2013, the date last insured.
(Tr.

15-22

(bold

font

and

internal

omitted).)

3

parenthetical

citations

II.

DISCUSSION

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

Hines v.

However, “the scope

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

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

Even given those limitations, the Court should remand this case for
further administrative proceedings.
A.

Standard of Review

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

Instead,

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

by

substantial

evidence

and

were

reached

through

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

“Substantial

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

Hunter v. Sullivan,

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

“It consists of more than a mere scintilla

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

“If there is evidence to justify a

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

4

is

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

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

to

re-weigh

conflicting

evidence,

make

credibility

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

Mastro, 270 F.3d at 176 (internal

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

the

responsibility

for

that

decision

falls

on

the

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

any

substantial

gainful

activity

by

reason

of

any

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

5

(quoting

42

U.S.C.

§

423(d)(1)(A)).2

“To

regularize

the

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

condition.”

Id.

“These

regulations

establish

a

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

Id.

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

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

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

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

2

The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
The Supplemental Security Income Program . . . 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).
3

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

6

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

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

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

Id. at 179.4

Step four then requires the ALJ to assess

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

See id. at

However, if the claimant establishes an inability to

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

4

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

7

experience) to adjust to a new job.”

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

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

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.5
B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ . . . accepted testimony from a [VE] that
appears to conflict with the [Dictionary of Occupational Titles
(“DOT”)] yet [the ALJ] failed to obtain an explanation from the
[VE]”

(Docket

Entry

10

at

2

(single-spacing

and

bold

font

omitted)); and
2)

“the

ALJ

found

[Plaintiff’s]

testimony

not

entirely

credible but the ALJ d[id] not give legally sufficient reasons
supported

by

substantial

evidence

for

finding

[Plaintiff’s]

testimony not entirely credible” (id. at 7 (single-spacing and bold
font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 13 at 3-17.)

5

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. Conflict Between VE’s Testimony and the DOT
In Plaintiff’s first issue on review, she contends that “[t]he
ALJ . . . accepted testimony from a [VE] that appears to conflict
with the [DOT] yet [the ALJ] failed to obtain an explanation from
the [VE].”

(Docket Entry 10 at 2 (single-spacing and bold font

omitted).)

More specifically, Plaintiff asserts that the ALJ

failed to resolve an apparent conflict between the VE’s testimony
and the DOT in violation of Social Security Ruling 00-4p, Policy
Interpretation Ruling: Titles II and XVI: Use of Vocational Expert
and Vocational Specialist Evidence, and Other Reliable Occupational
Information in Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000)
(“SSR 00-4p”), and Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015).
(Id. at 2-7.)

According to Plaintiff, the VE’s testimony that an

individual with Plaintiff’s RFC, which includes a prohibition on
overhead reaching with the left, non-dominant upper extremity, can
perform the jobs of Document Preparer, Microfilming (DOT No.
249.587-018,

1991

WL

672349

(4th

ed.

rev.

1991)),

Telephone

Solicitor (DOT No. 299.357-014, 1991 WL 672624), and Touch-Up
Screener, Printed Circuit Board Assembly (DOT No. 726.684-110, 1991
WL 679616)) (see Tr. 50-51), conflicts with the DOT’s job listings
for all three jobs, which require either frequent or occasional
reaching (see Docket Entry 10 at 6-7).

Plaintiff maintains that

“[t]he [VE] noted the [DOT] d[id] not differentiate reaching in
different

directions but

the

ALJ

9

failed to

obtain

a

further

explanation about these jobs and the requirements for overhead
reaching.”

(Id. at 7.)

Plaintiff’s contentions miss the mark.

SSR 00-4p places an affirmative duty on an ALJ to elicit an
explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the DOT:
Occupational evidence provided by a VE . . . generally
should be consistent with the occupational information
supplied by the [DOT].
When there is an apparent
unresolved conflict between VE . . . evidence and the
[DOT], the [ALJ] must elicit a reasonable explanation for
the conflict before relying on the VE . . . evidence to
support a determination or decision about whether the
claimant is disabled. At the hearings level, as part of
the [ALJ’s] duty to fully develop the record, the [ALJ]
will inquire, on the record, as to whether or not there
is such consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added).

“[A]n ALJ has

not fulfilled his affirmative duty merely because the [VE] responds
‘yes’ when asked if her testimony is consistent with the [DOT],”
Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus,
“[t]he ALJ independently must identify . . . where the [VE’s]
testimony seems to, but does not necessarily, conflict with the
[DOT],” id. at 209 (emphasis added); see also id. (rejecting the
Commissioner’s argument that an “apparent” conflict meant only an
“obvious” one).
Here, after the VE testified that an individual with an RFC
which included, inter alia, occasional overhead reaching with the
left, non-dominant upper extremity, could not perform any of
Plaintiff’s past relevant work (see Tr. 48-49), the ALJ queried the

10

VE whether such an individual could perform any other jobs existing
in significant numbers in the national economy (see Tr. 49.)

In

response, the VE opined that such an individual would remain
capable

of

performing

the

jobs

of

(1)

Document

Preparer,

Microfilming, (2) Telemarketer/Telephone Solicitor, and (3) TouchUp Screener, Printed Circuit Board Assembly, and provided the
corresponding DOT codes for those three jobs, as well as their
incidence in the national economy.

(See Tr. 50-51.)

The ALJ

thereafter asked the VE whether those three jobs would remain
available

if the

ALJ altered

the

hypothetical

to

reflect

no

overhead reaching with the left, non-dominant upper extremity, and
the VE responded that the jobs would remain appropriate.
51.)

(See Tr.

The ALJ then inquired about the impact that amending the

hypothetical to occasional reaching in all directions would have on
the available jobs, and the VE eliminated the Document Preparer and
Touch-Up Screener jobs, but testified as follows regarding the
Telephone Solicitor job:
The telephone solicitor . . . per the [DOT] lists
occasional for both reaching and handling. It does not
distinguish between . . . whether it’s one [extremity],
or the other, or bilateral.
It’s just a general
statement.
But based on professional experience with
that occasional, it does . . . [c]ertainly fall within
the [DOT] description.
(Tr. 52 (emphasis added).)

11

After

cross-examination

of

the

VE

by

Plaintiff’s

representative, the following exchange occurred between the ALJ and
the VE:
ALJ: [I]s your testimony consistent with the [DOT]?
VE: Yes, Your Honor, and there is no conflict in any of
my testimony with the [DOT]. I would just specifically
state that for those matters that the [DOT], or the
[Selected
Characteristics
of
Occupations],
its
accompanying volume, do not address – those issues would
be based on my professional experience . . . . The [DOT]
does not make a differentiation between bilateral or
unilateral use of limbs or any type of postural
movements. It would be general statements.
. . .
Also differentiating the types of reaching whether in any
specific direction, it does not deal with that.
So in those cases that I just mentioned, those issues
with the testimony would be based upon my professional
experience, but, again, no conflict with the [DOT].
(Tr. 59 (emphasis added).)
The

ALJ

subsequently

adopted

the

VE’s

testimony

as

Plaintiff’s ability to perform the three jobs in question:
To determine the extent to which [the RFC’s limitations]
erode the unskilled sedentary occupational base, through
the date last insured, [the ALJ] asked the [VE] whether
jobs existed in the national economy for an individual
with [Plaintiff’s] age, education, work experience, and
[RFC].
The [VE] testified that given all of these
factors the individual would have been able to perform
the requirements of representative sedentary, unskilled
([Specific Vocational Preparation (“SVP”)] 2) or semiskilled (SVP 3) occupations such as document preparer,
[DOT] # 249.587-018, with 14,000 jobs available
nationwide; telemarketer, [DOT] # 299.357-014, with
258,000
jobs
available
nationwide;
and
touch-up
screener/printed
circuit
board
assembler,
[DOT]
# 726.684-110, with 1,300 jobs available nationwide.
12

to

Pursuant to SSR 00-4p, [the ALJ] ha[s] determined that
the [VE’s] testimony is consistent with the information
contained in the [DOT].
Based on the testimony of the [VE], [the ALJ] conclude[s]
that, through the date last insured, considering
[Plaintiff’s] age, education, work experience, and [RFC],
[Plaintiff] was capable of making a successful adjustment
to other work that existed in significant numbers in the
national economy.
(Tr. 22 (emphasis added).)
As Plaintiff argues (see Docket Entry 10 at 7), both the
Document Preparer, Microfilming, and Touch-Up Screener/Printed
Circuit Board Assembly jobs require frequent reaching, see DOT No.
249.587-018 (Document Preparer, Microfilming), 1991 WL 672349; DOT
No.

726.684-110

(Touch-Up

Screener,

Printed

Circuit

Board

Assembly), 1991 WL 679616, and the Telephone Solicitor job requires
occasional reaching, DOT No. 299.357-014 (Telephone Solicitor),
1991 WL 672624, which, under Pearson, would apparently conflict
with the VE’s testimony that an individual unable to reach overhead
could still perform those jobs (see Tr. 51).

In that case, “[t]he

ALJ found [the claimant’s] nondominant arm could only occasionally
reach upward,” but for all three jobs cited by the VE, “the [DOT]
list[ed] frequent reaching as a requirement.” Pearson, 810 F.3d at
210 (emphasis in original).

The court observed: “Although the

[DOT] does not expressly state that the occupations identified by
the [VE] require frequent bilateral overhead reaching, the [DOT’s]
broad definition of “reaching” means that they certainly may

13

require such reaching.”

Id. at 211 (emphasis in original).

The

court found the ALJ had failed to resolve the apparent conflict and
remanded the case.

Id. at 211-12.

In contrast to Pearson, the ALJ here resolved the apparent
conflict between the DOT’s listings for the three jobs in question
reflecting

frequent

and

occasional

reaching,

see

DOT

No.

249.587-018 (Document Preparer, Microfilming), 1991 WL 672349; DOT
No.

726.684-110

Assembly),

1991

Solicitor),

1991

(Touch-Up

Screener,

WL

679616;

DOT

WL

672624,

and

No.
the

Printed

Circuit

299.357-014
VE’s

Board

(Telephone

testimony

that

an

individual unable to reach overhead could perform those jobs (see
Tr. 51).

As described above, the VE’s testimony reflects that he

expressly acknowledged that the DOT neither differentiated between
unilateral and bilateral reaching, nor specifically addressed the
direction of reaching involved (see Tr. 52, 59) and, thus, relied
on his own professional experience to opine that an individual who
could not reach overhead with the left, non-dominant arm could
still perform all three of the jobs in question (see Tr. 51).
Under such circumstances, the ALJ complied with SSR 00-4p and
Pearson by eliciting a reasonable explanation from the VE for the
apparent conflict in question.

Neither SSR 00-4p nor Pearson

require anything more of the ALJ here.
In sum, Plaintiff’s first assignment of error fails as a
matter of law.

14

2. Evaluation of Subjective Complaints
Lastly, Plaintiff asserts that “the ALJ found [Plaintiff’s]
testimony not entirely credible but the ALJ d[id] not give legally
sufficient reasons supported by substantial evidence for finding
[Plaintiff’s] testimony not entirely credible.”

(Docket Entry 10

at 7 (single-spacing and bold font omitted).)

In particular,

Plaintiff criticizes the ALJ’s use of “meaningless boilerplate” in
finding that Plaintiff’s “‘medically determinable impairments could
reasonably be expected to cause the alleged symptoms,’” but that
Plaintiff’s “‘statements concerning the intensity, persistence and
limiting effects of th[o]se symptoms [we]re not entirely credible
for the reasons explained in th[e] decision.’”

(Id. at 8 (quoting

Tr. 18, and citing Parker v. Astrue, 597 F.3d 920, 921 (7th Cir.
2010)).)

According to Plaintiff, the ALJ “simply recit[ed] the

medical evidence in support of her [RFC] determination,” and failed
“to specify which testimony she f[ound] not credible, [or] provide
legally sufficient reasons, supported by evidence in the record, to
support that credibility determination.”

(Id. at 8-9.)

Plaintiff

has established an error that entitles her to remand.6
6

Applicable to ALJ decisions on or after March 28, 2016, the SSA superceded
Social Security Ruling 96-7p, Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”), with Social
Security Ruling 16–3p, Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 2017 WL 5180304 (Oct. 25, 2017) (“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.” SSR 16-3p, 2017 WL 5180304, 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
(continued...)

15

SSR 96-7p, as applied by the Fourth Circuit in Craig, 76 F.3d
at 594-95, provides a two-part test for evaluating a claimant’s
statements about symptoms. “First, there must be objective medical
evidence showing ‘the existence of a medical impairment(s) . . .
which could reasonably be expected to produce the pain or other
symptoms alleged.’”

Id. at 594 (quoting 20 C.F.R. § 404.1529(b)).

Objective medical evidence consists of medical signs (“anatomical,
physiological, or psychological abnormalities . . . shown by
medically

acceptable

clinical

diagnostic

techniques”)

and

laboratory findings (“anatomical, physiological, or psychological
phenomena . . . shown by the use of medically acceptable laboratory
diagnostic techniques”).

20 C.F.R. § 404.1528.

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 they affect his or her ability to work.
595.

Craig, 76 F.3d at

In making that determination, the ALJ:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily

6

(...continued)
publishing of] SSR 96–7p,” id. at *1 n.1. As the ALJ’s decision in this case
pre-dates the effective date of SSR 16-3p (see Tr. 22), this Recommendation will
apply SSR 96-7p to the ALJ’s analysis of Plaintiff’s subjective complaints.

16

activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id.

(internal

citations

and

quotation

marks

omitted).

“[A]llegations concerning the intensity and persistence of pain or
other symptoms may not be disregarded solely because they are not
substantiated by objective medical evidence.”
374186, at *6 (emphasis added).

SSR 96-7p, 1996 WL

In other words, “the absence of

objective medical evidence supporting an individual’s statements
about the intensity and persistence of pain or other symptoms . . .
must be considered in the context of all the evidence.”

(Id.)

In this case, the ALJ found for Plaintiff on part one of the
inquiry,

but

ruled,

in

connection

with

part

two,

that

her

“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely credible for the
reasons explained in th[e] decision.”

(Tr. 18.)

As an initial matter, Plaintiff’s challenge to the abovequoted language as “meaningless boilerplate” (Docket Entry 10 at 8)
falls short.

As Plaintiff concedes (see id.) and as the record

reflects (see Tr. 18), the ALJ here did not use the boilerplate
that the United States Court of Appeals for the Fourth Circuit
deemed problematic, see Mascio v. Colvin, 780 F.3d 632, 639 (4th
Cir. 2015) (ruling ALJ’s finding that the claimant’s “statements
concerning the intensity, persistence and limiting effects of these
symptoms [we]re not credible to the extent they [we]re inconsistent
with the . . . [RFC] assessment . . . gets things backwards by
17

implying that ability to work is determined first and is then used
to determine the claimants credibility” (emphasis added) (internal
quotation marks and citation omitted)); see also Linares v. Colvin,
No. 14-120, 2015 WL 4389533, at 86 (W.D.N.C. July 17, 2015)
(unpublished) (finding language similar to phrasing used by ALJ
here “distinguishable from the now suspect boilerplate language
used in Mascio” because “the ALJ’s language does not suggest that
he first assessed [the p]laintiff’s RFC and used that assessment to
determine credibility”).
However, as Plaintiff argues (see Docket Entry 10 at 7-11),
the ALJ failed to provide legally sufficient reasons to support her
analysis of Plaintiff’s subjective complaints.

The ALJ’s analysis

ran afoul of 20 C.F.R. § 404.1529(c)(2) and SSR 96-7p, 1996 WL
374186, at *6, because the ALJ’s expressed reasoning indicates that
she

relied

solely

on

objective

medical

evidence

to

discount

Plaintiff’s subjective complaints regarding her shoulder, lumbar,
knee, and respiratory impairments:
C

With regard to [Plaintiff’s] left shoulder strain
status
post-surgery,
the
record
notes
that
[Plaintiff] sustained a left shoulder injury due to
a fall in April 2011 and although x-rays were
normal, she experienced persistent soreness despite
physical
therapy
and
a
steroid
injection.
Orthopedic notes from August 2011 state that
[Plaintiff] exhibited tenderness at the anterior
and posterior aspects of the left shoulder, but
fairly full range of motion although pain with full
internal and external rotation. . . . [Plaintiff]
underwent an acromioplasty of the left shoulder
later that month.
Post-operative notes from
October to December 2011 do not indicate much
18

progress, but also state [Plaintiff]
participated in physical therapy.

had

not

. . .
Orthopedic
records
from
June
2012
note
[Plaintiff’s] continued complaints of left shoulder
weakness and instability and that the anterior and
posterior left shoulder were tender to palpation
and that range of motion was limited with abduction
and external rotation. The plan included an x-ray
of the left shoulder, which revealed no acute
fracture or join malalignment, an appropriately
located
left
humeral
head,
and
mild
acromioclavicular osteoarthritis.
Such stability
of [Plaintiff’s] left shoulder upon objective
medical testing after surgery suggests the severity
of [Plaintiff’s] left shoulder condition is not as
severe as alleged (Tr. 19 (emphasis added);
C

Regarding [Plaintiff’s] lumbar degenerative disc
disease, an x-ray of the lumbar spine from July
2013 revealed narrowing of the space at L1-2, but
no pathologic motion in flection or extension. An
MRI of the lumbar spine from the next month
revealed far left disc herniation at L3-4 with
associated osteo[]phyte formation, which narrow[ed]
the left neural foramen and contact[ed] the exiting
left L3 nerve root. The report also revealed far
right lateral disc herniation at L4-5, which
narrow[ed] the right neural foramen and may contact
the exiting right L4 nerve root.
Such mild to
moderate findings upon objective medical testing
suggests that the severity of [Plaintiff’s] lumbar
spine condition is not as severe as alleged (id.
(emphasis added); and

C

With regard to [Plaintiff’s] right knee strain
status post-tibial plateau fracture, an x-ray of
the right knee from September 2012 revealed a
rather subtle fracture of the lateral tibial
plateau with moderate joint effusion. Primary care
provider
notes
from
December
2012
state
[Plaintiff’s] report of overall improvement in her
right knee, but pain below the knee.
Regarding
[Plaintiff’s] COPD, primary care notes indicate
[Plaintiff’s] complaints of dyspnea and diagnosis
of this condition. However, a pulmonary function
19

analysis revealed no evidence obstructive defect
and a FEV1 value that was 76% of predicted. Such
mild findings upon objective medical testing of the
right knee and respiratory system suggests that the
severity of [Plaintiff’s] right knee condition and
COPD are not as severe as alleged (Tr. 19-20
(emphasis added)).
Moreover,

as

a

further

consequence

of

the

ALJ’s

failure

to

expressly rely on evidence beyond “objective medical testing” to
discount

Plaintiff’s

shoulder,

lumbar,

knee,

and

respiratory

symptoms, the ALJ also neglected to discuss Plaintiff’s ability to
engage in activities of daily living as part of her analysis of
Plaintiff’s subjective complaints (Tr. 18-20).
§ 404.1529(c)(3)(i); SSR 96-7p,

See 20 C.F.R.

1996 WL 374186, at *3.

Under such circumstances, the ALJ misapplied the law in
discounting Plaintiff’s symptom reporting, necessitating a remand.
III.

CONCLUSION

Plaintiff has demonstrated an error that warrants remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under

sentence

four

of

42

U.S.C.

§

405(g),

for

further

administrative proceedings, to include reevaluation of Plaintiff’s
symptom reporting in conformity with 20 C.F.R. § 404.1529, SSR 163p, and applicable authority.

As a result, Plaintiff’s Motion for

a Judgment Reversing or Modifying the Decision of the Commissioner
of Social Security, or Remanding the Cause for a Rehearing (Docket
Entry 9) should be granted in part (i.e., to the extent it requests

20

remand) and Defendant’s Motion for Judgment on the Pleadings
(Docket Entry 12) should be denied.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 1, 2018

21