DAVIS v. BERRYHILL

Filing 16

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/16/2018, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) 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
BILLIE JO DAVIS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV432

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Billie Jo Davis, 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, 14; see also Docket Entry 11 (Plaintiff’s Memorandum);
Docket Entry 15 (Defendant’s Memorandum)).

For the reasons that

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

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging an onset date of December
6, 2010.

(Tr. 166-67.)

Upon denial of that application initially

(Tr. 65-84, 102-05) and on reconsideration (Tr. 85-101, 111-18),
Plaintiff requested a hearing de novo before an Administrative Law

Judge (“ALJ”) (Tr. 119-20).1

Plaintiff, her attorney, and a

vocational expert (“VE”) attended the hearing.

(Tr. 37-64.)

The

ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 13-30.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 10-12, 262-64), 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] last met the insured status requirements
of the [] Act on December 31, 2015.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her [amended] alleged
onset date of September 28, 2012 through her date last
insured of December 31, 2015.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: irritable bowel syndrome
(IBS);
gastroesophageal
reflux
disease
(GERD);
obstructive
sleep
apnea;
pancreatitis;
migraine
headaches; sinusitis; cervical and lumbar radiculopathy;
history of cervical fusion; bipolar disorder; and
posttraumatic stress disorder (PTSD).
. . .
4.
Through the date last inured, [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 a range
1

Prior to the hearing before the ALJ, Plaintiff amended her onset date to
September 28, 2012. (See Tr. 16, 175.)

2

of light work . . . . She can occasionally climb stairs
and ramps.
She can never climb ropes, ladders or
scaffolds. She can occasionally bend, balance, crouch,
stoop, kneel, and crawl. She can frequently finger and
feel with the bilateral upper extremities.
She must
avoid concentrated exposure to extreme temperatures,
pulmonary irritants and workplace hazards. She requires
simple, routine tasks involving no more than simple,
short instructions and simple work-related decisions with
few work place changes, and occasional contact with
supervisors, co-workers and the public. She requires the
opportunity to alternate between sitting and standing
every 2 hours at the workstation, with standing and
walking a total of 4 hours in an 8-hour workday.
. . .
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 September 28, 2012, the
amended alleged onset date, through December 31, 2015,
the date last insured.
(Tr.

18-30

(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
3

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

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

4

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.
(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

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).

5

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
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,

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

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
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
(continued...)

7

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’s failure to properly account for [Plaintiff’s]
moderate limitations

in

concentration,

persistence,

[or]

pace

[(‘CPP’)] in her RFC is harmful error and reversal and remand for
further consideration is necessary” (Docket Entry 11 at 5 (bold
font and single-spacing omitted)); and
2) “[t]he ALJ’s failure to conduct a proper function-byfunction analysis of [Plaintiff’s] impairments and failure to
provide a logical bridge between the evidence in the record, [the
ALJ’s] conclusions regarding [Plaintiff’s] credibility and [the
ALJ’s] RFC findings is error as a matter of law; alternatively, it
prevents the ALJ’s conclusions regarding [Plaintiff’s] RFC from
being supported by substantial evidence” (id. at 12 (bold font and
single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 15 at 3-20.)

5

(...continued)
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. CPP
In Plaintiff’s first assignment of error, she contends that
“[t]he ALJ’s failure to properly account for [Plaintiff’s] moderate
limitations in [CPP] in [the ALJ’s] RFC is harmful error and
reversal

and

remand

for

further

consideration

is

necessary.”

(Docket Entry 11 at 5 (bold font and single-spacing omitted).)
More specifically, Plaintiff maintains that the United States Court
of Appeals for the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015), indicated its agreement with “‘other circuits that
an ALJ does not account for a claimant’s limitations in [CPP] by
restricting the hypothetical question to simple, routine tasks or
unskilled work’” (Docket Entry 11 at 6 (quoting Mascio, 780 F.3d at
638) (internal quotation marks omitted)), because “‘the ability to
perform simple tasks differs from the ability to stay on task . . .
[and] [o]nly the latter limitation . . . would account for a
claimant’s limitation in [CPP]’” (id. at 8 (quoting Mascio, 780
F.3d at 638)).

Plaintiff asserts that the RFC’s “limitations for

dealing with supervisors, co-workers and the public are social in
nature,” and that “limitations regarding [the] skill level of work
tasks, work-related decisions and work-place changes are consistent
with unskilled work activity but do not specifically account for
[Plaintiff’s]

moderate

limitations

in

[CPP].”

(Id.

at

6.)

According to Plaintiff, “[t]he ALJ’s error is especially important
. . . where there is evidence to suggest that [Plaintiff] would

9

have

significant

limitations

in

her

ability

to

maintain

her

concentration and persistence or sustain an adequate pace for
competitive work activity secondary to her combined impairments.”
(Id. at 10 (citing, inter alia, Tr. 1002 (reflecting treating
neurologist Dr. Andreas Runheim’s opinion that Plaintiff would have
severe limitations in her ability to maintain CPP as a result of
her pain)).)

Plaintiff has not established an entitlement to

relief.
The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”

Mascio, 780 F.3d at 638.

However, that

court also allowed for the possibility that an ALJ could adequately
explain why moderate limitation in CPP would not result in any
limitation in the RFC.

Id.

A neighboring district court had

occasion to discuss this very point:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by

10

district judge) (unpublished) (emphasis added); see also Hutton v.
Colvin, No. 2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,
2015)

(unpublished)

(finding

reliance

on

Mascio

“misplaced,”

because ALJ “gave abundant explanation” for why unskilled work
adequately accounted for claimant’s moderate limitation in CPP, by
highlighting
physicians’

the

claimant’s

opinions).

Here,

daily
the

activities
ALJ’s

and

decision

treating

provides

a

sufficient explanation as to why restrictions to simple, routine
tasks involving no more than simple, short instructions and simple
work-related decisions, with few work place changes and occasional
contact with co-workers, supervisors, and the public (see Tr. 21)
sufficiently accounted for Plaintiff’s moderate deficit in CPP.
First, the ALJ discussed Plaintiff’s testimony regarding her
mental symptoms, but found her statements “not entirely credible
for the reasons explained in th[e] decision.”

(Tr. 22.)6

As

explained in the context of Plaintiff’s second assignment of error,
the ALJ did not err and provided substantial evidence to support
her assessment of Plaintiff’s subjective symptom reporting.
Second, the ALJ summarized Plaintiff’s medical treatment,
making the following, pertinent observations:
•

At a March 20, 2014, visit with Daymark, Plaintiff
“reported
Seroquel
was
helping
her

6

Notably, beyond stating that her medications caused her to feel sleepy (see Tr.
46-47, 49-53), Plaintiff did not testify to experiencing any difficulties
concentrating or maintaining pace during the hearing (see Tr. 42-56), even when
her counsel specifically asked Plaintiff to describe the mental health symptoms
that kept her from being able to work (see Tr. 53-54).

11

significantly[,]” that “she was sleeping well with
the nighttime dose[,]” that she “felt her mood had
been level[,]” and that she “had no complaints”
(Tr. 24; see also Tr. 878);
•

“On April 2, 2015, [Plaintiff] followed up at
Daymark and stated she has been doing well since
her visit five months prior[,]” and, “[o]n mental
status examination, she was cooperative, appeared
at ease with good eye contact, speech was normal,
mood was euthymic, affect was full range, and she
was alert and oriented times four” (Tr. 25; see
also Tr. 1004);

•

“Follow up notes show [Plaintiff’s] pancreatitis
improved with medications” and Plaintiff’s treating
gastroenterologist
“reported
[Plaintiff’s]
pancreatitis, IBS and GERD were stable” (Tr. 26;
see also Tr. 553-69, 956-62);

•

“With medications, [Plaintiff] . . . reported a
decrease
in
the
frequency of
her
migraine
headaches” (Tr. 26; see also Tr. 517-48, 940-55,
1047-58);

•

Plaintiff’s treating neurologist “administered
injections for radiculopathy, to which [Plaintiff]
responded well and [which] she reported were quite
effective” (Tr. 26; see also Tr. 940-55, 1047-58).7

Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.

(See Tr.

27-28.) Notably, the ALJ gave “significant weight” to the opinions
of the state agency psychological consultants (Tr. 28), who each
found that, notwithstanding moderate limitation in CPP (see Tr. 75,
94), Plaintiff “retain[ed] the capacity for [CPP] for 1-3 step
instructions for 2 hour periods over an 8 hour day throughout a
7

Plaintiff alleged that, in addition to the adverse impact on her ability to
concentrate from her mental impairments and medication, pain from her
radiculopathy, migraine headaches, and pancreatitis “also negatively impact[ed]
her ability to focus and concentrate.” (Docket Entry 11 at 11.)

12

week” (Tr. 80, 98 (emphasis added)), and could perform SRRTs (Tr.
76, 94, 99).8
Under these circumstances, the ALJ adequately explained why
restrictions to simple, routine tasks involving no more than
simple, short instructions and simple, work-related decisions with
few work place changes and occasional contact with co-workers,
supervisors, and the public (see Tr. 21) sufficiently accounted for
Plaintiff’s moderate limitation in CPP. See Sizemore v. Berryhill,
878 F.3d 72, 81 (4th Cir. 2017) (rejecting the plaintiff’s argument
under Mascio where ALJ relied on opinions of consultative examiner
and

state

agency

psychologist

that,

notwithstanding

moderate

deficit in CPP, the plaintiff could sustain attention sufficiently
to perform SRRTs).
2. RFC
In Plaintiff’s second and final assignment of error, she
asserts that “[t]he ALJ’s failure to conduct a proper function-by-

8

The state agency psychological consultant at the initial level of review also
included a restriction to a “low production environment” in the mental RFC (Tr.
76), and the consultant at the reconsideration level opined that Plaintiff could
“perform[] SRRTs in a non-production role [with] low social demands” (Tr. 94,
99). The ALJ captured the requirement for low social demands by restricting
Plaintiff to only occasional interaction with co-workers, supervisors, and the
public (see Tr. 21); however, despite giving “significant weight” to the state
agency psychological consultants’ opinions (see Tr. 28), the ALJ did not include
a restriction to a low production environment or a non-production role in the RFC
(see Tr. 21). Neither Plaintiff nor the Commissioner addressed this apparent
inconsistency between the consultants’ opinions and the RFC in their briefing to
this Court.
(See Docket Entries 11, 15.)
The Court thus need not further
address that subject. See generally United States v. Zannino, 895 F.2d 1, 17
(1sr Cir. 1990) (“[A] litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever holds its peace.”); Hughes v. B/E
Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)
(unpublished) (Schroeder, J.) (“A party should not expect a court to do the work
that it elected not to do.”).

13

function analysis of [Plaintiff’s] impairments and failure to
provide a logical bridge between the evidence in the record, [the
ALJ’s] conclusions regarding [Plaintiff’s] credibility and [the
ALJ’s] RFC findings is error as a matter of law . . . [and/or]
prevents the ALJ’s conclusions regarding [Plaintiff’s] RFC from
being supported by substantial evidence.”
(bold font and single-spacing omitted).)

(Docket Entry 11 at 12
Additionally, Plaintiff

contends that the ALJ erred by assigning no weight to the opinions
of Dr. Runheim, and by failing to adopt the handling restriction
opined by state agency medical consultant Dr. Pamela Jessup.
at 22-23.)
a.

(Id.

Plaintiff’s contentions fail as a matter of law.

Credibility Analysis
Plaintiff maintains that the ALJ erred in three respects in

evaluating Plaintiff’s credibility by (1) finding that Plaintiff’s
“activities of daily living were inconsistent with her allegations”
(id. at 15 (citing Tr. 26)); (2) observing that Plaintiff “stopped
working

for

reasons

not

related

to

the

allegedly

disabling

impairments because she was fired” (id. at 17 (quoting Tr. 26));
and (3) drawing an adverse credibility inference from Plaintiff’s
“participation in a church trip to Stone Mountain in September
2012” (id. at 18 (citing Tr. 26)).

None of those allegations has

merit.
Social Security Ruling 96-7p, Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims,

14

1996 WL 374186 (July 2, 1996) (“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.9

“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.’”
at 594 (quoting 20 C.F.R. § 404.1529(b)).

Id.

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

techniques”).

of

medically

acceptable

laboratory

diagnostic

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:

9

Applicable to ALJ decisions on or after March 28, 2016, the Social Security
Administration 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.
The ALJ’s decision in this case predates the effective date of SSR 16-3p (see Tr.
30) and, thus, this Recommendation will apply SSR 96-7p to Plaintiff’s argument
regarding the ALJ’s subjective symptom evaluation.

15

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
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted) (emphasis
added). “[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.”
1996 WL 374186, at *6 (emphasis added).

SSR 96-7p,

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.)

Plaintiff first takes issue with the ALJ’s finding that
Plaintiff’s “activities of daily living were inconsistent with her
allegations.”

(Docket Entry 11 at 15.)

In that regard, Plaintiff

challenges the ALJ’s reliance on Plaintiff’s role as primary
caregiver of a teenage daughter to discount Plaintiff’s credibility
(see Docket Entry 11 at 15 (citing Tr. 26)), noting that, “by the
date of the hearing[, Plaintiff’s] daughter was in college and only
saw [Plaintiff] weekly” (id. (citing Tr. 42, 50)).

According to

Plaintiff, “it is unclear how being the primary caregiver of a
teenage daughter would support a determination that [Plaintiff’s]
16

impairments and limitations were not as severe as alleged or a
finding that she was not disabled.”

(Id.)

A claimant’s ability to care for others clearly constitutes a
permissible area of inquiry and consideration for an ALJ in terms
of the credibility of a claimant’s statements regarding disability.
The Social Security Administration’s Function Report - Adult Third Party forms (“Function Reports”) ask individuals if the
claimant takes care of anyone else and, if so, what kinds of
activities the claimant can still perform for others.
Tr. 209, 228.)

(See, e.g.,

On Function Reports dated May 14, 2013, and October

4, 2013, Plaintiff’s fiancé, Rickey Lee Kipp, indicated that
Plaintiff cooked meals and cleaned for her daughter (see Tr. 208,
209, 228), prepared her daughter for school (see Tr. 226), and
“ma[de] sure [her daughter] ha[d] a ride to where ever she need[ed]
to be for school” (Tr. 228). That evidence possesses some tendency
to show that, despite Plaintiff’s impairments, she retained the
mental and physical functional ability to perform a limited range
of simple, light work.

Moreover, the ALJ did not solely rely on

Plaintiff’s role as caregiver of her daughter, either to support
the ALJ’s decision to discount Plaintiff’s credibility or in
formulating Plaintiff’s RFC.
Plaintiff’s

accusation

that

the

ALJ

“ignored

or

mischaracterized the information in [] Kipp’s [Function] [R]eports
that did not support her conclusions” falls short.

17

(Docket Entry

11 at 15.)

The ALJ’s discussion of Kipp’s Function Reports

consisted of the following:
[Plaintiff] testified that she does not do any chores,
but her 73-year-old retired mother does all of them.
However, her boyfriend reported otherwise.
. . .
The [ALJ] has considered the [Function Reports] by []
Kipp and finds his statements more accurately reflect
[Plaintiff’s] activities and are given partial weight
because [Plaintiff] has alleged numerous symptoms that
are not supported by objective medical evidence.
However, the [ALJ] gives little weight to [] Kipp’s
comments as to the severity of [Plaintiff’s] impairments
because he is biased as her boyfriend.
(Tr. 27 (emphasis added) (internal citations omitted).)

The ALJ’s

observation of the conflict between Plaintiff’s testimony that she
did not perform any housework, and Kipp’s statements that Plaintiff
did perform some chores, harmonizes with the record.

(Compare Tr.

50, with Tr. 208, 209, 210, 229; see also Tr. 573 (reflecting
Plaintiff’s

August

29,

2013,

report

to

consultative

medical

examiner Dr. Stephen Burgess that she can sweep, fold laundry, wash
dishes, cook, dust, make beds, and clean).)10

10

Moreover, the ALJ

Plaintiff describes her statements throughout the record, as well as those of
Kipp, regarding her ability to engage in daily activities (see Docket Entry 11
at 15-17), and then argues that “[g]iven th[at] evidence it is unclear where the
ALJ found evidence to support her conclusion that [Plaintiff] has ‘no problems
with taking care of her personal needs, [] drives and prepares food, does light
housework including vacuuming, cleaning, straightening up, dusting, sweeping,
folding laundry, washing dishes, cooking, dusting and making beds, and watches
television’” (id. at 17 (quoting Tr. 26)). However, the ALJ cited to Kipp’s
Function Reports and Dr. Burgess’s consultative examination (see Tr. 26 (citing
Tr. 208-15, 226-34, 572-76)), all of which provide support for the finding in
question. To the extent other statements by Plaintiff exist in the record that
conflict with the evidence cited by the ALJ, the ALJ resolved those conflicts,
as the ALJ must do, and explained that she found that Kipp’s “statements more
accurately reflect[ed] [Plaintiff’s] activities” (Tr. 27).

18

indicated that she had “careful[ly] consider[ed] [] the entire
record” (Tr. 21 (bold font omitted)), and “‘there is no rigid
requirement that the ALJ specifically refer to every piece of
evidence in h[er] decision,’” Reid v. Commissioner of Soc. Sec.,
769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395
F.3d 1206, 1211 (11th Cir. 2005)).

Thus, Plaintiff has not shown

that the ALJ ignored or mischaracterized any information in Kipp’s
Function Reports.
Next, Plaintiff disputes the ALJ’s reliance on the fact that
Plaintiff stopped working for reasons unrelated to her alleged
disability to support the ALJ’s adverse credibility finding.
Docket Entry 11 at 17 (citing Tr. 26).)

(See

According to Plaintiff,

“evidence that [Plaintiff] was fired in 2010” does not conflict
with her allegation that her disability began on September 28,
2012, “since [Plaintiff] did not contend that she stopped working
secondary to her impairments.”
the mark.
stopped

(Id.)

Plaintiff’s argument misses

On her Disability Report, Plaintiff indicated that she
working

on

December

6,

2010,

“[b]ecause

of

[her]

conditions,” as well as because “[she] was fired,” and reported
that she “believe[d] [her] condition(s) became severe enough to
keep [her] from working” on December 6, 2010.
added).)

(Tr. 189 (emphasis

Although Plaintiff amended her onset date to September

28, 2012 (see Tr. 16, 175), she acknowledged that she did so, in

19

part, because of her collection of unemployment compensation after
December 6, 2010 (see Tr. 175).
Plaintiff

additionally

faults

the

ALJ

for

“cit[ing]

to

[Plaintiff’s] participation in a church trip to Stone Mountain in
September 2012 as a piece of evidence that support[ed] that she was
not as limited as would be expected, given her complaints of
disabling symptoms and limitations.”
(citing Tr. 26).)

(Docket Entry 11 at 18

In that regard, Plaintiff notes that the trip

predated her amended onset date of September 28, 2012, as well as
that she “reported an increase in pain and symptoms following the
trip and that there [wa]s no further mention of [Plaintiff] taking
any trips in the record.”
indicated

that

her

trip

(Id.)
to

As an initial matter, Plaintiff
Stone

Mountain

took

place

on

approximately September 9, 2012, which predates Plaintiff’s amended
onset date of September 28, 2012, by just 19 days.
Plaintiff

does

not

allege

that

she

(See Tr. 923.)

experienced

a

sudden

exacerbation of her impairments between September 9 and 28, 2012,
so

as

to

render

the

ALJ’s

consideration

of

Plaintiff’s

participation in outdoor activities at a mountainous state park 19
days before her amended onset date improper.
11.)

(See Docket Entry

Moreover, although Plaintiff did allege pain following her

outing to Stone Mountain, she complained of pain and swelling in
her right foot that did not radiate to any other area, and did not

20

allege that the trip exacerbated any of the impairments for which
she claims disability.

(See Tr. 923.)

Simply put, Plaintiff has not established prejudicial error
with respect to the ALJ’s analysis of Plaintiff’s credibility.
b.

Logical Bridge Between Evidence and RFC
Plaintiff next maintains that “[t]he ALJ failed to build an

accurate and logical bridge between [Plaintiff’s] medical evidence
. . . and [the ALJ’s] RFC findings.”
(internal quotation marks omitted).)

(Docket Entry 11 at 18

Plaintiff does not challenge

as erroneous any of the ALJ’s specific descriptions of Plaintiff’s
medical treatment, but rather lists objective medical findings and
her own subjective complaints of symptoms regarding her cervical
and lumbar radiculopathy, migraine headaches, pancreatitis, and
IBS, that she believes show she suffered greater limitations than
found by the ALJ in the RFC.

(See id. at 18-22.)

However,

Plaintiff misinterprets this Court’s standard of review. The Court
must determine whether substantial evidence, defined as “more than
a mere scintilla of evidence but may be somewhat less than a
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), supported the ALJ’s findings and not
whether other record evidence weighs against the ALJ’s findings,
see Lanier v. Colvin, No. CV414–004, 2015 WL 3622619, at *1 (S.D.
Ga. June 9, 2015) (unpublished) (“The fact that [the p]laintiff
disagrees with the ALJ’s decision, or that there is other evidence

21

in the record that weighs against the ALJ’s decision, does not mean
that the decision is unsupported by substantial evidence.”).
Here, the ALJ supported with substantial evidence her findings
with regard to the impact on the RFC of Plaintiff’s cervical and
lumbar radiculopathy, migraine headaches, pancreatitis, and IBS:
[Plaintiff] has a history of IBS, GERD, and pancreatitis
for which she takes medications as prescribed by her
gastroenterologist. Follow up notes show [Plaintiff’s]
pancreatitis improved with medications. Thereafter, [her
treating gastroenterologist] reported her pancreatitis,
IBS and GERD were stable. . . . [Plaintiff] has cervical
and lumbar radiculopathy for which she takes medications,
and migraines.
With medications, she also reported a
decrease in the frequency of her migraine headaches. Dr.
Runheim later administered injections for radiculopathy,
to which she responded well and she reported were quite
effective. On physical examinations, she did not appear
to be in distress and no significant abnormalities were
noted.
(Tr. 25-26 (internal citations omitted).)

This analysis, along

with the ALJ’s preceding discussion of the medical evidence,
confirms that substantial evidence supports the ALJ’s RFC findings.
c.

Medical Opinion Evidence
Lastly, Plaintiff contends that the ALJ erred by assigning no

weight to the opinions of treating neurologist Dr. Runheim, and by
failing to adopt the handling restriction opined by state agency
medical consultant Dr. Pamela Jessup.

(Id. at 22-23.)

Neither

contention has merit.
The treating source rule does generally require an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
22

See 20 C.F.R.

§ 404.1527(c)(2) (“[T]reating sources . . . provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports

of

examinations

individual
or

brief

examinations,

such

hospitalizations.”).

as
The

consultative
rule

also

recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords an opinion. See 20 C.F.R. § 404.1527(c)(2)(ii). Moreover,
as subsections (2) through (4) of the rule describe in great
detail, a treating source’s opinion, like all medical opinions,
deserves deference only if well-supported by medical signs and
laboratory findings and consistent with the other substantial
evidence in the case record.

See 20 C.F.R. § 404.1527(c)(2)-(4).

“[I]f a physician’s opinion is not supported by clinical evidence
or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight.”

Craig, 76 F.3d at 590

(emphasis added).
In this case, on February 2, 2015, Dr. Runheim completed a
Physical Capacities Evaluation (Tr. 998-1003), diagnosing Plaintiff
with “lumbar [and] cervical radiculopathy, [CTS], [and] migraine
headaches” (Tr. 998).

Dr. Runheim opined that, as a result of

those impairments, Plaintiff could lift and/or carry less than ten

23

pounds occasionally, had limited ability to operate foot controls
(see Tr. 999), could stand, walk, and sit each for 30 minutes total
in an eight-hour workday, could never climb, balance, stoop, kneel,
crouch, or crawl, had limited ability to reach, handle, and finger
(see Tr. 1000), and could only have limited exposure to extreme
temperatures,

wetness,

humidity,

noise,

irritants, and hazards (see Tr. 1001).

vibration,

pulmonary

In addition, Dr. Runheim

opined that Plaintiff would need to change positions at irregular
intervals, lie down or recline periodically, and take frequent or
unscheduled breaks.

(See Tr. 1003.)

Dr. Runheim concluded that

Plaintiff “is 100% disabled to [sic] all of the above diagnosis
[and] medication side effects.”

(Tr. 1003.)

The ALJ discussed Dr. Runheim’s proffered restrictions, and
then assessed the opinions as follows:
The [ALJ] accords no weight to this opinion because it is
clearly an exaggeration of [Plaintiff’s] condition. With
these limits, [Plaintiff] would likely have been confined
to bed. On August 26, 2015, office notes from the same
practice show [Plaintiff] is exercising regularly, not
sedentary, not feeling fatigued, has no breathing
difficulty, has arthralgias in the bilateral legs and
arms, but has no joint swelling or stiffness. She has
normal movements of all extremities, with some gait and
stance abnormality. She has had repeat lumbar epidural
steroid injections and cervical trigger point injections
and reports continued problems with her neck and low
back, but states that previous injections have worked
very well. She also reported reduced frequency of her
migraines and denied bowel symptoms.
(Tr. 27 (internal citations omitted).)

Plaintiff challenges the

ALJ’s reliance on Dr. Runheim’s August 26, 2015, treatment note to

24

support the ALJ’s rejection of Dr. Runheim’s opinions, arguing that
the ALJ “fail[ed] to mention that at the same office visit exam
findings

noted

weakness

of

the

bilateral

upper

and

lower

extremities, reduced sensation in a stocking-glove distribution,
hypoactive deep tendon reflexes, mild sensory ataxia and abnormal
gait” (Docket Entry 11 at 22 (citing Tr. 1048)), and “failed to
explain why [such findings] did not support any of Dr. Runheim’s
[opinions]” (id. at 22-23).
Plaintiff again misinterprets this Court’s standard of review.
The Court must determine whether the ALJ supported her decision to
reject Dr. Runheim’s opinions with substantial evidence, and not
whether other record evidence weighs against the ALJ’s analysis,
Lanier, 2015 WL 3622619, at *1 (“The fact that [the p]laintiff
disagrees with the ALJ’s decision, or that there is other evidence
in the record that weighs against the ALJ’s decision, does not mean
that the decision is unsupported by substantial evidence.”).

The

ALJ permissibly rejected Dr. Runheim’s opinions as inconsistent
with his own treatment notes (see Tr. 27), and Plaintiff does not
specifically challenge the ALJ’s above-quoted description of Dr.
Runheim’s findings (see Docket Entry 11 at 22-23).

Moreover, the

ALJ did not simply cherry-pick findings from Dr. Runheim’s August
26, 2015, treatment note that supported the ALJ’s findings – the
ALJ described Dr. Runheim’s objective findings both that reflected
Plaintiff’s pain and some degree of limitation (i.e., arthralgias

25

and abnormal gait and station), and those that did not (i.e., no
joint

swelling

extremities).

or

stiffness

and

normal

movements

of

all

(See Tr. 27.)

Next, Plaintiff asserts that “[t]he ALJ also committed error
by assigning partial weight to the opinion of Dr. Jessup, . . . but
failing to adopt her RFC findings that would limit [Plaintiff’s]
ability to handle objects.”

(Docket Entry 11 at 23 (citing Tr. 28)

(internal citations omitted).)

Plaintiff contends that “this is a

relevant limitation since a limitation on handling could negatively
impact [Plaintiff’s] ability to perform the jobs identified by the
VE.”

(Id.)

Plaintiff’s assertion falls short.

As the ALJ

accorded Dr. Jessup’s opinion only “partial weight” (Tr. 28), the
ALJ labored under no obligation to adopt all of Dr. Jessup’s
restrictions in the RFC.

Moreover, even if the ALJ had adopted Dr.

Jessup’s restriction to frequent handling (see Tr. 96-97), two of
the three jobs cited by the VE as available in significant numbers
in the national economy, Mail Clerk and Marker (see Tr. 59-60),
would remain appropriate because they each require no more than
frequent handling, Dictionary of Occupational Titles (“DOT”), No.
209.687-026 (“Mail Clerk”), 1991 WL 671813 (4th ed. rev. 1991);
DOT, No. 209.587-034 (“Marker”), 1991 WL 671802.
In short, Plaintiff has not established a basis for relief
arising out of the ALJ’s RFC determination.

26

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
Summary Judgment (Docket Entry 10) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 14) be granted,
and that this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 16, 2018

27