THOMAS v. BERRYHILL

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/14/2018, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL J. THOMAS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV386

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michael J. Thomas, 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

Income (“SSI”).

claim

(Docket Entry 2.)

for

Supplemental

Security

Defendant has filed the

certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries

11,

12;

see

also

Docket

Entry

11-1

(Plaintiff’s

Memorandum); Docket Entry 13 (Defendant’s Memorandum)).

For the

reasons that follow, the Court should enter judgment for Defendant.

I.

PROCEDURAL HISTORY
(Tr. 150-53.)1

Plaintiff applied for SSI.
that

application

initially

(Tr.

65-74,

Upon denial of
87-89)

and

on

reconsideration (Tr. 75-84, 93-97), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 98-100).
Plaintiff, his attorney, and a vocational expert (“VE”) attended
the hearing.

(Tr. 32-64.)

The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act.

(Tr. 16-27.)

The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-4, 14-15), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since October 28, 2013, the application date.
. . .
2.
[Plaintiff] has the following severe impairments:
degenerative disc disease of the lumbar spine; chronic
obstructive pulmonary disease (COPD); and bilateral elbow
arthritis.
. . .
3.
[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.

1

The record contains only an application for Disability Insurance Benefits
(“DIB”) filed by Plaintiff on October 28, 2013. (Tr. 150-53.) However, all
subsequent administrative records reflect that the Social Security Administration
treated Plaintiff’s claim as one for SSI, rather than for DIB.

2

. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform less than the full range of light
work . . . .
[Plaintiff] can occasionally stoop and
climb ramps and stairs. He cannot climb ropes, ladders,
or scaffolds.
He can have no more than occasional
exposure to fumes, dusts, gases, poor ventilation, or
extremes of heat, cold, and humidity. He cannot drive an
automobile for the completion of job tasks. He can have
occasional exposure to hazards. He can perform frequent
handling and fingering with occasional reaching overhead.
. . .
5.

[Plaintiff] has no past relevant work.

. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [Act], since October 28, 2013, the date
the application was filed.
(Tr.

21-27

(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).

3

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

Standard of Review

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

Instead,

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

by

substantial

evidence

and

were

reached

through

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

“Substantial

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

Hunter v. Sullivan,

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

“It consists of more than a mere scintilla

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

“If there is evidence to justify a

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

4

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.
(quoting

42

U.S.C.

§

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

“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]

2

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).

5

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
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

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

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
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

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.

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,
(continued...)

7

B.

Assignment of Error

In Plaintiff’s sole issue on review, he contends that “[t]he
ALJ failed to properly weigh the opinion of consultative examiner
Dr. [David J.] Johnson.”

(Docket Entry 11-1 at 5 (italics and

single-spacing omitted).)

According to Plaintiff, because Dr.

Johnson’s opinion constitutes “the only opinion in the record from
a source who examined [] Plaintiff during the relevant period . . .
the ALJ [wa]s required under 20 C.F.R. § 416.927 to generally give
this opinion more weight than non-examining sources” (id. at 6
(citing Tr. 586-93)), which “[wa]s inconsistent with the ALJ
relying on the opinion . . . of [s]tate [a]gency medical consultant
Dr. [Robert] Whittier, who did not examine [] Plaintiff at all”
(id. at 7 (citing Tr. 25-26); see also Tr. 80-81).

Additionally,

Plaintiff asserts that the record contains “significant evidence
. . . that supports Dr. Johnson’s opinion” (Docket Entry 11-1 at 7)
including a March 21, 2015, MRI of Plaintiff’s lumbar spine (see
id. (citing

Tr.

664)),

and

a

2009 opinion

from

consultative

examiner Dr. Stanley Rabinowitz (id. at 9 (citing Tr. 267)).6
Finally, Plaintiff asserts that “the ALJ’s argument that Dr.
Johnson’s opinion is based on subjective complaints is without

5

(...continued)
review does not proceed to the next step.”).
6

Plaintiff describes the date of Dr. Rabinowitz’s examination as “February 9,
2008.”
(Docket Entry 11-1 at 9.)
Although the outset of Dr. Rabinowitz’s
evaluation reflects the date of the report as “February 9, 2008” (Tr. 264
(emphasis added)), the remainder of the report shows the examination date as
“February 7, 2009” (id. (emphasis added); see also Tr. 265, 266, 267, 270).

8

merit” (id. at 8; see also Tr. 25), and that the ALJ improperly
discounted Dr. Johnson’s opinion because he “failed to include
environmental and reaching limitations in his opinion” (id. (citing
Tr. 25)).

Plaintiff’s contentions fall short.

Consultative examiners do not constitute treating sources
under the regulations, see 20 C.F.R. § 416.927(c)(2), and thus
their

opinions,

as

a

general

proposition,

do

not

warrant

controlling weight, Turberville v. Colvin, No. 1:11CV262, 2014 WL
1671582,

at

*6

(M.D.N.C.

Apr.

23,

2014)

(unpublished),

recommendation adopted, slip op. (M.D.N.C. May 15, 2014) (Eagles,
J.).

However, the ALJ must nevertheless evaluate consultative

opinions

using

the

factors

outlined

in

the

regulations,

and

expressly indicate and explain the weight he or she affords to such
opinions.
[the

ALJ]

See 20 C.F.R. § 416.927(c) (“Regardless of its source,
will

evaluate

every

medical

opinion

[he

or

she]

receive[s]” and, where an opinion does not warrant controlling
weight, the ALJ must “consider all of the . . . factors [in 20
C.F.R. § 416.927(c)(1)-(6)] in deciding the weight [to] give to any
medical opinion.” (emphasis added)); Social Security Ruling 96–5p,
Medical Source Opinions on Issues Reserved to the Commissioner,
1996 WL 374183, at *5 (July 2, 1996) (“SSR 96–5p”) (noting that
ALJs “must weigh medical source statements . . . [and] provid[e]
appropriate explanations for accepting or rejecting such opinions”
(emphasis added)).

9

On December 20, 2013, Dr. Johnson conducted a consultative
medical

examination

of

Plaintiff

(Tr.

586-93),

reporting

Plaintiff’s diagnoses as “[s]evere lumbar injury in 1995” and
“[a]rthritis . . . involv[ing] multiple joints” (Tr. 590).

As a

result of those impairments, Dr. Johnson concluded that Plaintiff
“is limited in his ability to sit, stand or walk and lift[] . . .
and cannot do repeated bending, stooping or lifting.”

(Id.)

Johnson

“makes

further

opined

that

Plaintiff’s

arthritis

Dr.
it

difficult for him to have sustained gripping of things and he tends
to drop things easily[,]” although “[h]e can do most fine motor
skills.”

(Id.)

The ALJ discussed Dr. Johnson’s findings on

examination in a fair amount of detail (see Tr. 24), and then
weighed Dr. Johnson’s opinions as follows:
The [ALJ] affords Dr. Johnson’s opinion little weight due
to the brevity of Dr. Johnson’s examination of
[Plaintiff] and the inconsistency of his findings with
the overall objective record. Specifically, the record
does not show that [Plaintiff’s] arthritis affects
multiple joints other than [Plaintiff’s] bilateral
elbows.
It appears that Dr. Johnson’s opinion relies
upon [Plaintiff’s] subjective allegations. However, Dr.
Johnson appropriately identified [Plaintiff’s] mild hand
weakness and the need to limit [Plaintiff’s] exertional
activities due the degenerative changes in his spine.
Dr. Johnson failed to identify environmental limitations
and reaching limitations in light of [Plaintiff’s] COPD
and elbow arthritis.
(Tr. 25.)
Plaintiff first argues that, because Dr. Johnson’s opinion
constitutes “the only opinion in the record from a source who
examined [] Plaintiff during the relevant period . . . the ALJ
10

[wa]s required under 20 C.F.R. § 416.927 to generally give this
opinion more weight than non-examining sources” (Docket Entry 11-1
at

6

(emphasis

added)

(citing

Tr.

586-93)),

which

“[wa]s

inconsistent with the ALJ relying on the opinion . . . of [s]tate
[a]gency medical consultant Dr. Whittier, who did not examine []
Plaintiff at all” (id. at 7 (citing Tr. 25-26); see also Tr. 8081). However, the applicable regulations make clear that, although
as a general matter, opinions from an examining source warrant more
weight than those from a non-examining source, see 20 C.F.R.
416.927(c)(1), non-examining state agency consultants constitute
“highly qualified physicians, psychologists, and other medical
specialists who are also experts in Social Security disability
evaluation[,]” 20 C.F.R. § 416.927(e)(2)(i), and that ALJs must
weigh opinions from non-examining state agency consultants using
the same factors the ALJs use to weigh any other medical opinions,
see 20 C.F.R. § 416.927(e)(2)(ii).
Indeed, ALJs can permissibly credit the opinions of nonexamining state agency consultants, who typically render their
opinions without the benefit of a full record, over those of even
a treating physician, to the extent the non-examining source’s
opinions remain consistent with the evidence received subsequent to
their opinions.

See Lapeer v. Astrue, No. 5:08–CV–256–D(1), 2009

WL 2487038, at *7 (E.D.N.C. Aug. 13, 2009) (unpublished).

11

Thus,

the ALJ did not err merely by assigning more weight to Dr.
Whittier’s opinions than to Dr. Johnson’s opinions.
Moreover, contrary to Plaintiff’s allegations (see Docket
Entry 11-1 at 7), the ALJ did not fully rely on Dr. Whittier’s
opinion in formulating the RFC. (See Tr. 25-26.)

The ALJ accorded

Dr. Whittier’s opinion only “partial weight,” because Dr. Whittier
“failed to identify the need for environmental limitations or
reaching limitations” (Tr. 26 (emphasis added)), which constituted
one of the reasons the ALJ also discounted Dr. Johnson’s opinions
(see Tr. 25).

Thus, the ALJ permissibly credited Dr. Whittier’s

opinions only to the extent those opinions remained consistent with
the evidence of record subsequent to his opinions.

See Lapeer,

2009 WL 2487038, at *7.
Plaintiff next asserts that the record contains “significant
evidence . . . that supports Dr. Johnson’s opinion” (Docket Entry
11-1 at 7), including a March 21, 2015, MRI of Plaintiff’s lumbar
spine

(see

id.

(citing

Tr.

664)),

and

a

2009

opinion

from

consultative examiner Dr. Stanley Rabinowitz (id. at 9 (citing Tr.
267)). Plaintiff maintains that, in light of the MRI’s findings of
mild, chronic degenerative desiccation, disc bulges, and possible
irritation of the right L5 nerve root (id. at 7 (citing Tr. 664)),
the ALJ “must acknowledge some level of consistency between Dr.
Johnson’s opinion and the medical record” (id. at 8). In addition,
Plaintiff contends that Dr. Johnson’s opinion harmonizes with Dr.

12

Rabinowitz’s conclusion that, “even [in February 2009], Plaintiff
had probable degenerative joint disease and chronic lumbothoracic
and cervical spine pain syndromes probably secondary to discogenic
disease, with lower extremity radiculopathy.”

(Id. at 9 (citing

Tr. 267).)
Plaintiff’s argument regarding the March 2015 MRI proceeds
from a faulty premise, i.e., that the ALJ found no consistency
between Dr. Johnson’s opinions and the record evidence regarding
Plaintiff’s spinal impairment.

(See Docket Entry 11-1 at 7-8.)

Although the ALJ discounted Dr. Johnson’s opinions due to “the
inconsistency of his findings with the overall objective record[,]”
in the next sentence, the ALJ clarified that “the record d[id] not
show that [Plaintiff’s] arthritis affect[ed] multiple joints other
than [Plaintiff’s] bilateral elbows.”

(Tr. 25 (emphasis added).)

Moreover, the ALJ also ruled that “Dr. Johnson appropriately
identified

.

.

.

the

need

to

limit

[Plaintiff’s]

exertional

activities due the degenerative changes in his spine.”
(emphasis added).)

(Id.

Furthermore, the ALJ expressly noted that the

radiologist who interpreted the March 2015 MRI “did not see a
finding that would explain [Plaintiff’s complaints of] generalized
gait disturbance[,]” and concluded that the MRI did “not support
the alleged severity of [Plaintiff’s] back pain and need for a
cane.”

(Tr. 24 (citing Tr. 664).)

13

Accordingly, Plaintiff has

failed to show how the MRI’s results should have compelled the ALJ
to accord more weight to Dr. Johnson’s opinions.
Similarly, Plaintiff has not demonstrated how Dr. Rabinowitz’s
February 2009 evaluation required the ALJ to accord more weight to
the opinions of Dr. Johnson.
findings,

but

reasoned

The ALJ discussed Dr. Rabinowitz’s

that,

“[b]ecause

th[at]

consultative

examination occurred well before [Plaintiff’s] alleged onset date,
the [ALJ] affords the examination evidence and Dr. Rabinowitz’s
opinion little weight.”

(Tr. 24; see also Tr. 26 (“The [ALJ] gives

little weight to the consultative examination from 2009, due to
remoteness

of

the

evaluation.”

(internal

citation

omitted).)

Plaintiff did not challenge the ALJ’s rejection of Dr. Rabinowitz’s
opinions, offered over four and a half years before Plaintiff’s
alleged onset date, on the grounds of remoteness (see Tr. 24, 26).
(See Docket Entry 11-1.)
Next, Plaintiff asserts that “the ALJ’s argument that Dr.
Johnson’s opinion is based on subjective complaints is without
merit.”

(Id. at 8; see also Tr. 25.)

In support of that

assertion, Plaintiff details various of Dr. Johnson’s objective
findings, such as decreased range of motion in the cervical and
lumbar spines, decreased grip strength on the left, swelling in
Plaintiff’s hands, difficulty with postural movements, and xrays
showing

thoracic

and

Johnson’s opinions.

lumbar

spondylosis,

that

supported

(Id. (citing Tr. 587, 588, 590, 592).)

14

Dr.

That argument fails for two reasons. First, the ALJ expressly
discussed the objective findings in Dr. Johnson’s report (see Tr.
24), and credited his opinions regarding Plaintiff’s “mild hand
weakness and the need to limit [Plaintiff’s] exertional activities
due the degenerative changes in his spine” (Tr. 25).

Second, a

comparison of Plaintiff’s subjective symptom reporting at the
outset of the examination, with Dr. Johnson’s conclusions at the
end of the report, supports the ALJ observation that “[i]t appears
that Dr. Johnson’s opinion relies upon [Plaintiff’s] subjective
allegations.”

(Tr. 25.)

For example, Plaintiff reported to Dr. Johnson that “[h]e can
sit for about 20 minutes, . . . [h]e can occasionally lift 20
pounds but cannot do repeated bending, stooping or lifting.”
586 (emphasis added).)

(Tr.

Plaintiff further claimed that “[h]e drops

things easily” and that “it takes him a while to button and tie
[his] shoes.”

(Id. (emphasis added).)

In comparison, Dr. Johnson

concluded that Plaintiff “is limited in his ability to sit, stand
or walk and lift” and “cannot do repeated bending, stooping or
lifting.”

(Tr. 590 (emphasis added).)

Dr. Johnson also opined

that Plaintiff “tends to drop things easily” and that “he has
slowed

down

(emphasis

on

things

added).)

like

Given

buttons
the

and

similarity

tying

shoes.”

between

(Id.

Plaintiff’s

subjective symptoms reporting and Dr. Johnson’s conclusions, and
the fact that Dr. Johnson’s report does not reflect that he

15

objectively tested Plaintiff’s ability to sit, bend, stoop, lift,
hold objects, button items, or tie his shoes (see Tr. 586-93), the
ALJ did not err by discounting Dr. Johnson’s opinions, in part, as
based on Plaintiff’s subjective complaints.
Plaintiff

additionally

argues

that

the

ALJ

improperly

discounted Dr. Johnson’s opinions because he “failed to include
environmental and reaching limitations.”

(Docket Entry 11-1 at 8

(citing Tr. 25).) In particular, Plaintiff contends that, in order
for

Dr.

Johnson

to

include

environmental

limitations

in

his

opinions, he “would need to engage in what the ALJ just wrongly
accused him of engaging in – basing limitations on Plaintiff’s
subjective complaints.”

(Id. at 8-9.)

With respect to reaching,

Plaintiff maintains that “Dr. Johnson noted that Plaintiff has
problems

gripping,

limitations as well.”

which

would

presumably

involve

reaching

(Id. at 9 (citing Tr. 590).)

The ALJ did not err by discounting Dr. Johnson’s opinions, in
part, because they lacked environmental and reaching restrictions.
(See Tr. 25.)7

Regarding environmental restrictions, the Court

must consider the ALJ’s statement in the context of the timing of
Plaintiff’s COPD diagnosis.

Dr. Johnson offered his opinions in

December 2013 (see Tr. 586-593), which preceded Plaintiff’s March
2015 diagnosis of COPD (see Tr. 597-651), and Plaintiff neither
complained of any lung symptoms at Dr. Johnson’s examination (see
7

As discussed earlier, the ALJ also discounted Dr. Whittier’s opinion on this
basis. (See Tr. 26.)

16

Tr. 586-93), nor in his disability reports during the initial and
reconsideration levels of review (see 184, 190-92, 207-11, 214-18).
Thus, the ALJ did not fault Dr. Johnson for ignoring environmental
restrictions despite evidence that Plaintiff suffered from COPD,
but rather, discounted Dr. Johnson’s opinions because Plaintiff’s
subsequent diagnosis of COPD rendered those opinions insufficient
to capture all of Plaintiff’s limitations.

Moreover, Plaintiff’s

assertion that Dr. Johnson’s notation of Plaintiff’s diminished
grip on the left “presumably involve[d] reaching limitations as
well” (Docket Entry 11-1 at 9 (citing Tr. 590)) falls short, as the
Commissioner’s RFC policy clearly contemplates that handling (gross
manipulation)

and

reaching

constitute

distinct

manipulative

abilities, see Social Security Ruling 85-15, Titles II & XVI:
Capability to Do Other Work-The Medical-Vocational Rules As A
Framework for Evaluating Solely Nonexertional Impairments, 1985 WL
56857, at *7 (1985) (noting that “[r]eaching, handling, fingering,
and

feeling

extremities

require
to

progressively

perform

finer

work-related

usage

of

activities”

the

and

upper

defining

reaching as “extending the hands and arms in any direction” and
defining

handling

as

“seizing,

holding,

grasping,

turning

or

otherwise working primarily with the whole hand or hands” (emphasis
added)).
Finally,

Plaintiff

asserts

that

“Dr.

Johnson

opined

limitations that would put Plaintiff at a sedentary exertional

17

level or less,” and that the ALJ should therefore have found
Plaintiff disabled under Rule 201.09 of the Medical-Vocational
Guidelines (“Grids”).

(Docket Entry 11-1 at 9 (citing 20 C.F.R.,

Pt. 404, Subpt. P, App’x 2, § 201.09).)8

However, Plaintiff does

not explain how Dr. Johnson’s vague opinion that Plaintiff “is
limited in his ability to sit, stand or walk and lift[] . . . and
cannot do repeated bending, stooping or lifting[,]” which lacked
any specifics as to the degree of Plaintiff’s limitations in those
areas (Tr. 590), “would put Plaintiff at a sedentary exertional
level or less” (Docket Entry 11-1 at 9).

See 20 C.F.R. 416.967(a)

(defining sedentary work as “involv[ing] lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like
docket

files,

ledgers,

and

small

tools[,]”

and

“involv[ing]

sitting” and “walking and standing . . . occasionally” (emphasis
added)).
In sum, Plaintiff has failed to demonstrate reversible error
with respect to the ALJ’s evaluation of Dr. Johnson’s opinions.
II.

CONCLUSION

Plaintiff has not established an error warranting relief.

8

“The Grids categorize jobs by their physical-exertion requirements, namely,
sedentary, light, medium, heavy, and very heavy. There are numbered tables for
the sedentary, light, and medium level (tables 1, 2, and 3, respectively), and
a specific rule for the heavy and very heavy levels. Based on the claimant’s
RFC, the ALJ must first determine which table to apply, i.e., if the claimant’s
RFC limits h[er] to a sedentary exertional level, then Table No. 1 is the
appropriate table. Next, based on the claimant’s age, education, and previous
work experience, the [table or] rule directs a finding of ‘disabled’ or ‘not
disabled.’” Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D. Va.
Apr. 26, 2010) (unpublished) (internal citations and footnotes omitted),
recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).

18

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on

the

Pleadings

(Docket

Entry

11)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 14, 2018

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