HARMON v. BERRYHILL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/24/2018, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice.(Taylor, Abby)

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

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1:17CV417

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Johnny Monroe Harmon, 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 2.)

for

Disability

Insurance

Defendant has filed the

certified administrative record (Docket Entry 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Brief);
Docket

Entry

13

(Defendant’s

(Plaintiff’s Response)).

Memorandum);

Docket

Entry

14

For the reasons that follow, the Court

should enter judgment for Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging an onset date of March 1,
2010. (Tr. 75, 139-40.) Upon denial of that application initially
(Tr. 56-63, 78-86) and on reconsideration (Tr. 64-72, 87-93),

Plaintiff requested a hearing de novo before an Administrative Law
Judge

(“ALJ”)

representative,
hearing.

(Tr.
and

94-95).
a

(Tr. 31-55.)

Plaintiff,

vocational

expert

his

(“VE”)

non-attorney
attended

the

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.

1-6,

14-15,

204-05),

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] meets the insured status requirements of
the . . . Act through December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 1, 2010, the alleged onset date.
. . .
3.
[Plaintiff] had the following severe impairment:
degenerative disc disease of the lumbar spine.
. . .
4.
Plaintiff]
does
not
have
an
impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] had the residual functional
capacity to perform a range of medium work . . . except
that he is limited to no more than frequent stooping,
kneeling, crouching, [and] crawling.
. . .

2

6.
[Plaintiff] is capable of performing past relevant
work as a laborer, poultry farm.
This work does not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] can also
perform.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the . . . Act, from March 1, 2010, through the
date of this decision.
(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).

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
3

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
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

4

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)).1

“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

1

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).

5

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).2

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

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

Id. at 179.3

Step four then requires the ALJ to assess

2

“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).

3

“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
(continued...)

6

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 567.4
B.

Assignments of Error

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

3

(...continued)
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4

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.”).

7

1) “[t]he ALJ failed to properly analyze the opinions of the
[SSA’s] own examining specialist (neurology), Dr. [James] Nelson,
consistent with the regulations and Fourth Circuit precedent”
(Docket Entry 11 at 5 (single-spacing, bold font, and underlining
omitted); see also Docket Entry 14 at 1-7); and
2) “[t]he ALJ’s credibility assessment is generally deficient
because of the ALJ’s errors [in evaluating Dr. Nelson’s opinions],
but

also

for

[the

ALJ’s]

failure

to

acknowledge

or

discuss

Plaintiff’s exemplary (39 consecutive year) work history” (Docket
Entry

11

at

19

(single-spacing,

bold

font,

and

underlining

omitted); see also Docket Entry 14 at 7-8).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 13 at 4-22.)
1. Analysis of Dr. Nelson’s Opinions

In Plaintiff’s first issue on review, he contends that “[t]he
ALJ failed to properly analyze the opinions of the [SSA’s] own
examining specialist (neurology), Dr. Nelson, consistent with the
regulations and Fourth Circuit precedent.” (Docket Entry 11 at 5
(single-spacing,

bold

font,

and

underlining

omitted).)

More

specifically, Plaintiff asserts that the ALJ failed to “acknowledge
or discuss” the facts that Dr. Nelson constituted both an examining
source and a specialist, which should have “weigh[ed] very heavily
in favor of giving the opinion great weight.”

(Id. at 11-12

(italics omitted) (citing Tr. 24, and 20 C.F.R. §§ 404.1527(c)(1),

8

(5)); see also Docket Entry 14 at 2.)

Moreover, according to

Plaintiff, “[t]he ALJ failed to provide good/specific/supported
reasons for rejecting Dr. Nelson’s opinions.”

(Docket Entry 11 at

11 (single-spacing, bold font, and underlining omitted) (citing Tr.
24).)

Plaintiff maintains that, “[i]f the ALJ was dissatisfied

with Dr. Nelson’s assessments, [the ALJ] had numerous options to
develop the record, not one of which was to set her opinion against
[Dr. Nelson’s].”
the ALJ’s

(Id. at 17 (italics omitted).)

errors

in this

regard

prejudicial,

Plaintiff deems
given

that the

“Medical-Vocational Guidelines (or ‘Grid[s] . . .’) direct a
finding of ‘disabled’ even if Dr. Nelson’s opinion is interpreted
as limiting Plaintiff to light exertion level work.”

(Id. at 10

(citing 20 C.F.R., Pt. 404, Subpt. P, App’x 2, § 202.01); see also
Docket Entry 14 at 1.)5

Plaintiff’s contentions miss the mark.

Consultative examiners such as Dr. Nelson do not constitute
treating
§

sources

404.1527(c)(2),

under
and

the
thus

regulations,
their

opinions,

see
as

20
a

C.F.R.
general

proposition, do not warrant controlling weight, Turberville v.
Colvin, No. 1:11CV262, 2014 WL 1671582, at *6 (M.D.N.C. Apr. 23,

5

“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).

9

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

evaluate

consultative

However, the ALJ must

opinions

using

the

factors

outlined in the regulations, and expressly indicate and explain the
weight

he

or

she

affords

to

such

opinions.

See

20

C.F.R.

§ 404.1527(c) (“Regardless of its source, [the ALJ] 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. § 404.1527(c)(1)-(6)] in deciding
the weight [to] give to any medical opinion.” (emphasis added)).
Dr. Nelson first evaluated Plaintiff on October 11, 2013, for
complaints of back pain, knee pain, and wrist pain.
13.)

(See Tr. 210-

Plaintiff reported to Dr. Nelson that pain limited Plaintiff

to one hour of sitting, 30 minutes of standing, minimal walking,
and lifting of three to five pounds.

(See Tr. 210.)

Dr. Nelson

conducted a comprehensive physical examination, which resulted in
largely normal findings, including symmetric pulses and reflexes,
normal gait, no muscle spasm, 5/5 strength including grip strength,
no joint swelling, erythema, effusion, or deformity, and negative
straight leg raising tests bilaterally.

(See Tr. 210-11.)

Dr.

Nelson detected decreased sensation in Plaintiff’s thumbs, found
some tenderness in Plaintiff’s wrists and knees, noted Plaintiff
had some difficulty rising from a squatting position, and recorded
decreased range of motion in Plaintiff’s thumbs and lumbar spine.

10

(See Tr. 211-12.)
percent

X-rays of Plaintiff’s lumbar spine revealed 50

narrowing

of

the

L4-5

joint

space,

Plaintiff’s knees reflected no abnormality.

but

x-rays

(See Tr. 213.)

of
Dr.

Nelson concluded that Plaintiff “exhibit[ed] moderate physical
limitations due to lumbar back pain, bilateral knee pain, [and]
bilateral

wrist

pain

.

.

.

[and]

d[id]

not

exhibit

environmental restrictions based on [the] examination.”

any
(Id.

(emphasis added).)
During the hearing, the ALJ noted that the record did not
contain much medical treatment (see Tr. 40) and, as a result,
ordered a second consultative examination (see Tr. 42), which Dr.
Nelson conducted on February 5, 2016 (see Tr. 219-27).

Dr.

Nelson’s second consultative examination yielded benign physical
findings similar to his first examination, including 5/5 strength,
normal

gait,

no

muscle

spasm,

no

joint

swelling,

erythema,

effusion, tenderness, or deformity, negative straight leg tests
bilaterally, and symmetric pulses and reflexes.
In

addition,

Dr.

Nelson’s

second

(See Tr. 222-24.)

examination

noted

some

improvements as compared to the first examination, such as normal
sensation, an ability to squat and rise with ease, and full range
of motion in all joints except for a decrease in forward flexion
and extension of the lumbar spine.
224-26.)

(Compare Tr. 211-12, with Tr.

Dr. Nelson noted that Plaintiff could pinch, grasp, and

manipulate objects with “slight difficulty.”

11

(Tr. 226 (emphasis

added).)

Although Dr. Nelson stated that Plaintiff “[wa]s able to

walk up to one mile, stand up to 20 minutes and lift up to 10
[pounds]”

(Tr.

227),

that

statement

appears

in

a

paragraph

containing many of Plaintiff’s subjective complaints and, thus, the
examination report does not clarify if Dr. Nelson based that
statement on the examination’s physical findings or on Plaintiff’s
subjective complaints. Dr. Nelson repeated his conclusion from the
first examination that Plaintiff “exhibit[ed] moderate physical
limitations due to lumbar back pain, bilateral knee pain, [and]
bilateral

wrist

pain

.

.

.

[and]

d[id]

not

exhibit

environmental restrictions based on [the] examination.”

any
(Id.

(emphasis added).)
Dated the same day as the second examination, Dr. Nelson also
completed a “Medical Source Statement of Ability to Do Work-Related
Activities (Physical)” (“MSS”) (see Tr. 229-34), opining that (over
the course of a standard eight-hour work-day) Plaintiff could
occasionally lift and carry up to ten pounds (see Tr. 229), sit for
two hours at one time and for three hours and 30 minutes total,
stand for 20 minutes at one time and for 30 minutes total, and walk
for 15 minutes at a time and for one hour total, and needed to lie
down for the remaining three hours (see Tr. 230).

Dr. Nelson

further stated that Plaintiff could never push or pull, could
occasionally reach, handle, finger, feel, and use foot controls
(see Tr. 231), could never climb ladders or scaffolds, stoop, or

12

crawl, and could occasionally climb stairs and ramps, balance,
kneel, and crouch.
that

Plaintiff

(See Tr. 232.)

could

never

Lastly, Dr. Nelson indicated

tolerate

exposure

to

unprotected

heights, moving mechanical parts, pulmonary irritants, and extreme
temperatures,

and

could

only

handle

occasional

exposure

operating a motor vehicle, humidity/wetness, and vibrations.

to
(See

Tr. 233.)
The ALJ discussed Dr. Nelson’s findings at the first and
second consultative examinations in a fair amount of detail (see
Tr. 23-24), and then evaluated and weighed Dr. Nelson’s opinions on
the MSS as follows:
As for the opinion evidence, Dr. Nelson opined that
[Plaintiff] is able to walk up to one mile, stand up to
20 minutes, and lift up to 10 pounds. Dr. Nelson further
opined [Plaintiff] has postural, handling, fingering, and
environmental limitations. I afford Dr. Nelson’s opinion
little weight as his opinion appears to rely heavily on
[Plaintiff’s] subjective allegations and because it is
inconsistent with his findings upon examination.
[Plaintiff’s]
condition
had
remained
generally
unremarkable and unchanged from 2013 to 2016. Although
he demonstrated some reduction in back extension, he
showed improvement in his range of motion with regard to
lateral
flexion,
rotation,
and
forward
flexion.
[Plaintiff] demonstrated no difficulty with sitting,
standing, or walking, and could even hop on one foot
bilaterally. Furthermore, [Plaintiff] reported he takes
only over the counter medication as needed.
(Tr. 24 (internal citations omitted).)
Plaintiff first faults the ALJ for failing to “acknowledge or
discuss” the facts that Dr. Nelson constituted both an examining
source and a specialist, which should have “weigh[ed] very heavily

13

in favor of giving the opinion great weight.”
11-12

(italics

omitted)

(citing

Tr.

(Docket Entry 11 at

24,

and

20

§§ 404.1527(c)(1), (5)); see also Docket Entry 14 at 2.)
argument lacks merit.

C.F.R.
That

The ALJ clearly recognized that Dr. Nelson

constituted an examining source, as the ALJ ordered the February 5,
2016, consultative examination herself (see Tr. 42), and discussed
Dr. Nelson’s findings arising from both consultative examinations
in some detail (see Tr. 23-24).
Although the ALJ did not expressly discuss Dr. Nelson’s
speciality as a neurologist in the decision (see Tr. 23-24), as the
Commissioner argues (see Docket Entry 13 at 15), the regulations
require the ALJ to consider the factors listed in 20 C.F.R.
§ 404.1527(c)(1) through (6), but do not mandate that the ALJ
discuss each factor in the decision, see Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007) (“That the ALJ did not explicitly
discuss all the § 404.1527([c]) factors for each of the medical
opinions before him does not prevent this court from according his
decision meaningful review.

[The plaintiff] cites no law, and we

have found none, requiring an ALJ’s decision to apply expressly
each of the six relevant factors in deciding what weight to give a
medical opinion.”); Todd v. Berryhill, No. 7:15-CV-00258-RJ, 2017
WL 1051113, at *3 (E.D.N.C. Mar. 20, 2017) (unpublished) (“The ALJ
is not required . . . to discuss all of the[ Section 1527(c)]
factors.”).

As explained in more detail below, despite the ALJ’s

14

failure to expressly discuss Dr. Nelson’s area of speciality, the
Court can still meaningfully review the ALJ’s decision to afford
Dr. Nelson’s opinions “little weight” (Tr. 24).
Next, Plaintiff asserts that “[t]he ALJ failed to provide
good/specific/supported
opinions.”

reasons

for

rejecting

Dr.

Nelson’s

(Docket Entry 11 at 11 (single-spacing, bold font, and

underlining omitted) (citing Tr. 24).)

In particular, Plaintiff

maintains that the ALJ’s decision to discount Dr. Nelson’s opinions
because such opinions “appear[ed] to rely heavily on [Plaintiff’s]
subjective allegations” (Tr. 24) constitutes “pure[] speculati[on]”
(Docket

Entry

11

at

12;

see

also

Docket

Entry

14

at

5-6).

According to Plaintiff, the ALJ “never explained how she arrived at
this conclusion; nor is there . . . [any] independent basis in
th[e] record to assume that Dr. Nelson was not able to sort through
the subjective and objective evidence before arriving at his
conclusions[.]”

(Docket

Entry

11

at

12-13

(quoting

Ryan

v.

Commissioner of Soc. Sec., 528 F.3d 1194, 1200 (9th Cir. 2008)
(“[It is]

improper for an ALJ to reject the findings of [a

consultative examiner] on the ground that they are based on a
claimant’s subjective complaints where, as here, there is nothing
in the record to suggest that [the examiner] relied more on the
claimant’s subjective complaints than on his or her own clinical
observations in determining the nature of the claimant’s functional
abilities and limitations.”).)

15

As an initial matter, Dr. Nelson supplied his MSS on a checkbox form, and did not complete any of the sections of that form
that requested that he “[i]dentify the particular medical or
clinical findings (i.e., physical exam findings, x-ray findings,
laboratory test results, history, and symptoms, including pain,
etc.) which support [his] assessment or any limitations and why the
findings support the assessment.” (Tr. 229; see also Tr. 230, 231,
232, 233.)

The MSS form expressly cautions, in bold font, that

“[i]t is important that you relate particular medical or clinical
findings to any assessed limitations in capacity: [t]he usefulness
of your assessment depends on the extent to which you do this.”
(Tr. 229.)
found

Moreover, although Dr. Nelson, on both examinations,

Plaintiff’s

impairments

caused

only

“moderate

physical

limitations” and no “environmental restrictions based on [the]
examination” (Tr. 213, 227 (emphasis added)), he included both
extreme

physical

limitations

and

multiple

restrictions on the MSS (see Tr. 229-33).

environmental

Thus, unlike in Ryan,

“the [administrative] record [here] suggest[s] that [Dr. Nelson]
relied more on [Plaintiff’s] subjective complaints than on his
. . . own clinical observations in determining the nature of
[Plaintiff’s] functional abilities and limitations.”

Ryan, 528

F.3d at 1200.
Plaintiff

also

challenges

“the

ALJ’s

statement

that

Dr.

Nelson’s opinions were inconsistent with his examination findings

16

because Plaintiff used . . . over-the-counter medications and was
able to lift, carry and handle light objects, arise from a sitting
position, and walk on his heels and toes with a normal gait.”
(Docket Entry 11 at 13 (citing Tr. 24) (footnote and internal
quotation marks omitted).)

According to Plaintiff, Dr. Nelson

“explicitly referred to Plaintiff’s limited range of motion as
supporting [Dr. Nelson’s] conclusion that Plaintiff was limited in
his ability to work by his pain” (id. (citing Tr. 225-27); see also
Docket Entry 14 at 2), and the “ALJ [wa]s not free to pick and
choose between positive and negative findings, and arrive[] at
h[er] own lay conclusion” (Docket Entry 11 at 14; see also Docket
Entry 14 at 2).
Plaintiff distorts the ALJ’s analysis by claiming that the ALJ
found Dr. Nelson’s opinions inconsistent with this examination
findings “because Plaintiff used . . . over-the-counter medications
and was able to lift, carry and handle light objects, arise from a
sitting position, and walk on his heels and toes with a normal
gait.”

(Docket Entry 11 at 13 (citing Tr. 24) (footnote and

internal quotation marks omitted).)

The ALJ actually provided the

following reasoning:
[Plaintiff’s]
condition
had
remained
generally
unremarkable and unchanged from 2013 to 2016. Although
he demonstrated some reduction in back extension, he
showed improvement in his range of motion with regard to
lateral
flexion,
rotation,
and
forward
flexion.
[Plaintiff] demonstrated no difficulty with sitting,
standing, or walking, and could even hop on one foot

17

bilaterally. Furthermore, [Plaintiff] reported he takes
only over the counter medication as needed.
(Tr. 24 (emphasis added)).

Thus, contrary to Plaintiff’s argument

(see Docket Entry 11 at 13-14; see also Docket Entry 14 at 2), the
ALJ

expressly

acknowledged

that

Plaintiff

“demonstrated

some

reduction in back extension” (Tr. 24) and, thus, did not “pick and
choose between positive and negative findings” to support her
decision to discount Dr. Nelson’s findings.

Moreover, Plaintiff

conceded the “‘normal’ aspects of Dr. Nelson’s examination” (Docket
Entry 11 at 13; see also Docket Entry 14 at 2), but pointed to a
single reference to a “reduction in back mobility” in one of Dr.
Nelson’s two lengthy reports as supportive of Dr. Nelson’s extreme
functional limitations (Docket Entry 11 at 13 (citing Tr. 225-27);
see also Docket Entry 14 at 2 (citing Tr. 225-27)), thus, himself
engaging in the very “pick[ing] and choos[ing]” for which he
condemns the ALJ (Docket Entry 11 at 13-14; see also Docket Entry
14 at 2).
Further, Plaintiff contends that the ALJ’s analysis “ignore[d]
. . . that . . . Dr. Nelson[] . . . evaluate[d] the impact of
Plaintiff’s impairments on his ability to work on a regular and
continuous

basis.”

(Docket

Entry

11

at

14.)

According

to

Plaintiff, “[i]t is simply common sense that impairments of the
type demonstrated in this case are aggravated by activities in
excess of a person’s limitations; in other words, if one does not
lift anything heavy, or stand or walk very much, it is not unusual
18

at all for someone with back or knee problems to experience less
symptoms and/or to need nothing more than an over-the-counter
medication to manage pain.”

(Id.)

Boiled down to its essence, Plaintiff’s argument amounts to an
expression of his disagreement with the ALJ’s conclusion that
Plaintiff remains capable of performing a limited range of medium
work.

Plaintiff presents no evidence in support of his assertion

that the ALJ “ignore[d]. . . that . . . Dr. Nelson[] . . .
evaluate[d] the impact of Plaintiff’s impairments on his ability to
work on a regular and continuous basis.”

(Id.)

The ALJ ordered

the post-hearing consultative examination that Dr. Nelson conducted
on February 5, 2016 (see Tr. 42), and provided Dr. Nelson with the
SSA’s

MSS

form,

which

instructed

Dr.

Nelson

“[t]o

determine

[Plaintiff’s] ability to do work-related activities on a regular
and continuous basis” (Tr. 229 (emphasis in original)); see also
Social Security Ruling 96–8p, Policy Interpretation Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, 1996
WL 374184, at *1 (July 2, 1996) (“RFC is an assessment of an
individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis.

A ‘regular and continuing basis’ means 8 hours a day, for

5 days a week, or an equivalent work schedule.” (“SSR 96-8p”)
(emphasis added)).

Under such circumstances, Plaintiff has not

shown that the ALJ disregarded that Dr. Nelson’s MSS opinions

19

addressed Plaintiff’s ability to perform work-related activities on
a regular and continuing basis.
Next, Plaintiff maintains that the ALJ failed to evaluate Dr.
Nelson’s opinions for consistency with the administrative record as
a

whole.

(Docket

§ 404.1527(c)(4)).)

Entry

11

at

16

(citing

20

C.F.R.

However, Plaintiff does not indicate how such

an evaluation could have resulted in a different outcome in his
case. See generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.
1989) (observing that “[n]o principle of administrative law or
common sense requires [a court] to remand a case in quest of a
perfect opinion [by an ALJ] unless there is reason to believe that
the remand might lead to a different result”).

The only other

medical opinion evidence in the administrative record consists of
the state agency consultants’ RFC opinions at the initial and
reconsideration stages of review.

(See Tr. 56-62, 64-71.)

Both

consultants found that Plaintiff remained capable of a full range
of medium work (see Tr. 60, 69), which harmonizes with the ALJ’s
RFC (see Tr.

22)

(with

the exception

of

additional

postural

restrictions, which the ALJ expressly noted (see Tr. 24)), and
sharply conflicts with Dr. Nelson’s opinions on the MSS (see Tr.
229-34).
consists

The only other evidence in the administrative record
of

Plaintiff’s

subjective

statements

concerning

his

limitations (see Tr. 38-42, 44, 46, 47), which the ALJ found “not
entirely consistent with the evidence” (Tr. 24).

20

For the reasons

described in more detail below, the ALJ supported her analysis of
Plaintiff’s subjective complaints with substantial evidence. Thus,
Plaintiff has not shown prejudicial error with respect to the ALJ’s
failure to explicitly compare the opinions on Dr. Nelson’s MSS with
the record as a whole.
Plaintiff additionally asserts that “[t]he ALJ’s rejection of
Dr. Nelson’s opinion[s] also ignores the ALJ’s motivation in
obtaining the examination in the first place . . .: the [SSA]
explicitly provides that consultative examinations . . . are
purchased [‘]to try to resolve an inconsistency in the evidence, or
when the evidence as a whole is insufficient to allow [the SSA] to
make a determination or decision on [a] claim.’”
at 15 (quoting 20 C.F.R. 404.1519a(b)).)

(Docket Entry 11

According to Plaintiff,

“[i]t defies reasonableness and logic to state, on one hand, that
the [SSA] required Dr. Nelson to perform such an examination twice
. . . because the record was insufficient to make a determination
and then, on the other, to reject his report because of the
incompleteness or insufficiency of the record that required the
examination in the first place.”

(Id. (second emphasis added).)

Plaintiff contends that, “[i]f ALJ was dissatisfied with Dr.
Nelson’s assessments, she had numerous options to develop the
record, not one of which was to set her opinion against his.”

(Id.

at 17 (italics omitted).) In that regard, Plaintiff maintains that
the ALJ “could have enlisted a review of the record and testimony

21

by a medical expert, recontacted Dr. Nelson for clarification of
his

opinions

examination

or,

with

for
a

that

matter,

different

scheduled

physician,

a

consultative

requested

additional

testing, and/or return[ed] the entire, expanded case record to the
State Agency for an updated review of the record by a medical
consultant.”

(Id. at 17-18 (citing Social Security Ruling 12-2p,

Titles II and XVI: Evaluation of Fibromyalgia, 2012 WL 3104869, at
*4 & nn.15 & 16 (2012), 20 C.F.R. § 404.1520b(c)(1), and Hearings,
Appeals, and Litigation Law Manual (HALLEX), § I-2-5-34).)
Plaintiff’s argument conflates the rejection of an examining
source’s opinion as unsupported by that source’s own examination
findings,

and

insufficient.

rejection

of

that

opinion

(See id. at 15, 17-18.)

as

incomplete

or

Here, the ALJ discounted

Dr. Nelson’s opinions because they (1) relied too heavily on
Plaintiff’s subjective complaints; and (2) lacked the support of
Dr. Nelson’s own examination findings.

(See Tr. 24.)

The ALJ did

not find, at any point in her decision, that Dr. Nelson’s second
consultative examination (or the administrative record as a whole)
qualified as incomplete or insufficient and, thus, no obligation
arose on the ALJ’s part to take any of the actions suggested by
Plaintiff to clarify or further develop the record.
In sum, Plaintiff’s first assignment of error fails as a
matter of law.

22

2. Evaluation of Subjective Complaints
Lastly,

Plaintiff

asserts

that

“[t]he

ALJ’s

credibility

assessment is generally deficient because of the ALJ’s . . .
failure

to

acknowledge

or

discuss

consecutive year) work history.”

Plaintiff’s

exemplary

(39

(Docket Entry 11 at 19 (single-

spacing, bold font, and underlining omitted); see also Docket Entry
14 at 7-8.)

In particular, Plaintiff notes that his “work history

dat[es] back to 1972, since he was 16 years old, resulting in 156
consecutive quarters of covered earnings” (Docket Entry 11 at 19
(citing Tr. 144-45)), and that he “performed his most recent work
as a poultry farm laborer, despite significant pain his back,
hands, and knees, up until he was laid off (id. (citing Tr. 39)).
According to Plaintiff, SSA policy “requires consideration of
‘evidence from attempts to work’ as part of the RFC assessment”
(id. at 19-20 (citing 20 C.F.R. § 404.1529(c)(3), SSR 96-8p, 1996
WL

374184,

at

*5,

and

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, at *5 (July 2, 1996) (“SSR 96-7p”))),
and “[c]ase law has long recognized the regulatory and rational
basis for this requirement, finding that it is unlikely someone
would trade in their productive, and lucrative, work career for the
far less lucrative ‘career’ of receiving disability benefits, and
requiring the [SSA] to consider this patently credibility-enhancing

23

factor” (id. at 20 (citing, inter alia, Newton v. Apfel, 209 F.3d
448, 455 n.3 (5th Cir. 2000), Taybron v. Harris, 667 F.2d 412 (3d
Cir. 1981), Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980),
and Moncus v. Colvin, No. 7:12-CV-76-BO, 2013 WL 4854518, at *3
(E.D.N.C. Sept. 11, 2013) (unpublished))).6

The Court should not

grant Plaintiff relief arising out of Plaintiff’s second assignment
of error.
This Court (via United States Magistrate Judge Joe L. Webster)
recently addressed a similar argument, raised by Plaintiff’s same
counsel in a different case, as follows:
[T]o the extent that Plaintiff contends that the ALJ
materially erred by not considering her work history,
Plaintiff is incorrect. A claimant’s prior work record
is relevant to a credibility analysis, but is only one
factor among many.
See 20 C.F.R. § 404.1529(c)(3)
(requiring ALJ to consider “information about [a
claimant’s] prior work record” in assessing credibility).
Thus, “while a long work history may be a factor
supporting credibility, it is not controlling.” Maner v.
Colvin, No. CA 1:12–2969–RBH, 2014 WL 4656383, at *5
(D.S.C. Sept. 17, 2014) (unpublished); see also Wavercak
v. Astrue, 420 F. App’x 91, 94 (2d Cir. 2011) (“That [the
claimant’s] good work history was not specifically

6

Applicable to ALJ decisions on or after March 28, 2016, the SSA superceded SSR
96–7p with 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”). 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. Although the
ALJ’s decision in this case post-dates the effective date of SSR 16-3p (see Tr.
27), the ALJ cited to SSR 96-7p rather than SSR 16-3p in her recitation of the
standards for evaluating a claimant’s subjective complaints (see Tr. 23).
However, the ALJ’s citation of the rescinded SSR amounts to harmless error, as
the ALJ’s analysis conformed with SSR 16-3p in that it did not utilize the term
“credibility,” but rather properly considered whether Plaintiff’s statements held
consistency with the evidence of record. (See Tr. 24.)

24

referenced in the ALJ’s decision does not undermine the
credibility assessment, given the [other] substantial
evidence . . . .”).
Here, the ALJ discussed Plaintiff’s work history in
detail during the administrative hearing, and in
connection with her finding that Plaintiff could perform
her past relevant work. The ALJ also indicated that she
considered the entire record in assessing Plaintiff’s
RFC. Moreover, as discussed above, the ALJ here also
considered significant additional evidence relevant to a
credibility analysis. Consequently, any error here is,
at most, harmless. Plaintiff has failed to demonstrate
any material error in the ALJ’s credibility analysis.
Neely v. Colvin, No. 1:15CV983, 2017 WL 120931, at *10 (M.D.N.C.
Jan. 12, 2017) (unpublished) (Webster, M.J.) (internal transcript
citations omitted), recommendation adopted, slip op. (M.D.N.C. Feb.
17, 2017) (Osteen, Jr., C.J.).
Here, just like in Neely, the ALJ “discussed Plaintiff’s work
history in detail during the administrative hearing,” Neely, 2017
WL 120931, at *10.

(See Tr. 35-39, 43.)

Further, as in Neely, the

ALJ mentioned Plaintiff’s work history again “in connection with
her finding that Plaintiff could perform h[is] past relevant work
. . . [and]

also indicated that she considered the entire record

in assessing Plaintiff’s RFC,” Neely, 2017 WL 120931, at *10. (See
Tr. 22, 25.)

Moreover, the ALJ “also considered significant

additional evidence,” Neely, 2017 WL 120931, at *10, in connection
with her analysis of Plaintiff’s subjective complaints, including
the following:
C

Plaintiff
reason.”

“stopped

working

25

for

a

non-medical

C

C

(Tr.

Plaintiff “has not participated in any medical
treatment following his alleged onset date, nor has
he taken anything more than over the counter
medications for [his] symptoms.”
Plaintiff “testified he performs all his household
chores, such vacuum, sweep, wash dishes, cook, and
wash clothes, with breaks.”
24).

permissible

Thus,

“[g]iven

factors

in

that

the

reaching

ALJ

the

relied

decision

on

multiple

to

discount

Plaintiff’s [subjective complaints], any failure by the ALJ to
expressly discuss Plaintiff’s work history amounts to harmless
error.”

Propst v. Colvin, 1:16CV00082, 2016 WL 5107093, at *8

(M.D.N.C.

Sept.

20,

2016)

(unpublished)

(Auld,

M.J.),

recommendation adopted, slip op. (M.D.N.C. Oct. 31, 2016) (Biggs,
J.); accord Wavercak, 420 F. App’x at 94 (“That [the claimant’s]
good work history was not specifically referenced in the ALJ’s
decision does not undermine the credibility assessment, given the
substantial evidence supporting the ALJ’s determination.”); see
also Fisher, 869 F.2d at 1057 (observing that “[n]o principle of
administrative law or common sense requires [a court] to remand a
case in quest of a perfect opinion [by an ALJ] unless there is
reason to believe that the remand might lead to a different
result”).
Although Plaintiff may disagree with the ALJ’s analysis of
Plaintiff’s

subjective

complaints,

such

determinations

“‘emphatically the province of the ALJ, not the court.’”

are

Vest v.

Colvin, No. 5:13CV00067, 2014 WL 4656207, at *2 (W.D. Va. Sept. 16,
26

2014) (unpublished) (quoting Dunn v. Colvin, 973 F. Supp. 2d 630,
649 (W.D. Va. 2013)).

So long as the record provides substantial

evidence to support the ALJ’s analysis, and the ALJ complies with
applicable law, as she did here, the reviewing court should not
disturb those findings.
In short, Plaintiff has not shown error with respect to the
ALJ’s analysis of Plaintiff’s subjective complaints and, thus,
Plaintiff’s second issue on review does not entitle him to relief.
III.

CONCLUSION

Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing or Modifying the Decision of the Commissioner
(Docket Entry 10) 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
April 24, 2018

27