LEE v. BERRYHILL

Filing 13

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 6/4/2018. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 7 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 10 ) be granted, and that this action be dismissed with prejudice. (Daniel, J)

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

)
)
)
)
)
)
)
)
)
)
)

1:17CV475

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rhonda Faye Lee, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Benefits (“DIB”).

Plaintiff’s

claim

(Docket Entry 1.)

for

Disability

Insurance

Defendant has filed the

certified administrative record (Docket Entry 5 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 7, 10; see also Docket Entry 9 (Plaintiff’s Memorandum);
Docket Entry 11 (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 June 27,
2011.

(Tr. 174-75.)

Upon denial of that application initially

(Tr. 62-74, 95-103) and on reconsideration (Tr. 75-91, 105-12),
Plaintiff requested a hearing de novo before an Administrative Law

Judge (“ALJ”) (Tr. 113). Plaintiff, her attorney, and a vocational
expert

(“VE”)

attended

the

hearing.

(Tr.

33-61.)

The

ALJ

subsequently ruled that Plaintiff did not qualify as disabled under
the Act.

(Tr. 10-28.)

The Appeals Council thereafter denied

Plaintiff’s request for review (Tr. 1-6, 7-9, 228-35), 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] meets the insured status requirements of
the [] Act through December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 27, 2011, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease of the lumbar spine, arthritis
of the bilateral knees, depressive disorder, and bipolar
disorder.
. . .
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] has the residual functional
capacity to perform light work . . . except [Plaintiff]
can occasionally climb ladders, ropes or scaffolds,
stairs or ramps.
[Plaintiff] can occasionally stoop,
crouch, kneel, crawl and occasionally engage in
activities requiring balance. [Plaintiff] must avoid
concentrated exposure to operational control of moving
machinery or unprotected heights. [Plaintiff] is able to
2

perform simple, routine and repetitive tasks and work in
[a] low-stress job defined as occasional decision-making
and occasional changes in the work setting.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from June 27, 2011, through the
date of this decision.
(Tr.

15-28

(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).

3

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
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

4

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)).1

“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]
medical

condition.”

Id.

“These

regulations

establish

a

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

Id.

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

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).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

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).

6

(‘RFC’).”

Id. at 179.3

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 567.4

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 . . .
[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

B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ “failed to follow Fourth Circuit precedent in
completely failing to provide an explanation for the weight that he
accorded to the opinions of [Plaintiff’s] treating physician and
physical therapist and the consultative examiner” (Docket Entry 9
at 6 (standard capitalization applied and single-spacing omitted));
and
2) the ALJ erred in finding that [Plaintiff] has the [RFC] to
perform

a

reduced

range

of

light

work”

(id.

at

7

(standard

capitalization applied and single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 11 at 3-16.)
1. Medical Opinion Evidence

In Plaintiff’s opening assignment of error, she contends that
the ALJ “failed to follow Fourth Circuit precedent in completely
failing to provide an explanation for the weight that he accorded
to the opinions of [Plaintiff’s] treating physician and physical
therapist and the consultative examiner.”

(Docket Entry 9 at 6

(standard capitalization applied and single-spacing omitted).)

In

particular, Plaintiff asserts that the ALJ’s conclusory reasoning
for according little weight to the opinions of treating physician
Dr. Woodward Burgert III and physical therapist Sangini Rane, as

8

well as some weight to the opinions of the consultative medical
examiner

Dr.

Ramnik

Zota,

“fail[ed]

to

provide

sufficient

specificity for a reviewing court to engage in meaningful review.”
(Id. at 7 (citing Tr. 26, Monroe v. Colvin, 826 F.3d 176 (4th Cir.
2016), and Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013)).)
According to Plaintiff, “[t]he opinion of a treating physician is
entitled to great weight and may only be disregarded if there is
persuasive contradictory evidence.”

(Id. at 6 (citing Coffman v.

Bowen, 829 F.2d 514 (4th Cir. 1987)).)

Plaintiff’s contentions

fall short.
a. Dr. Burgert/Ms. Rane
As an initial matter, Plaintiff misrelies on Coffman and the
“persuasive contradictory evidence” standard. (Id.) That phrasing
of the “treating physician rule” no longer represents the governing
standard. See Stroup v. Apfel, No. 96-1722, 205 F.3d 1334 (table),
2000 WL 216620, at *5 (4th Cir. Feb. 24, 2000) (unpublished) (“The
1991 regulations supersede the ‘treating physician rule’ from our
prior case law.”); Shrewsbury v. Chater, No. 94-2235, 68 F.3d 461
(table), 1995 WL 592236, at *2 n.5 (4th Cir. Oct. 6, 1995)
(unpublished) (“As regulations supersede contrary precedent, the
cases cited by [the plaintiff] defining the scope of the ‘treating
physician rule’ decided prior to 20 C.F.R. § 416 and related
regulations are not controlling.” (internal citation omitted));
accord Brown v. Astrue, Civil Action No. CBD-10-1238, 2013 WL

9

937549, at *4 (D. Md. Mar. 8, 2013) (unpublished); Benton v.
Astrue, Civil Action No. 0:09-892-HFF-PJG, 2010 WL 3419272, at *1
(D.S.C. Aug. 30, 2010) (unpublished); Pittman v. Massanari, 141 F.
Supp. 2d 601, 608 (W.D.N.C. 2001); Ward v. Chater, 924 F. Supp. 53,
55-56 (W.D. Va. 1996).
Under the proper standard, 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. 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 individual
examinations,

such

as

hospitalizations.”).

consultative

examinations

or

brief

The 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.
C.F.R. § 404.1527(c)(2)(ii).

See 20

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

10

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 May 15, 2014, Ms. Rane completed a Medical
Source

Statement

of

Ability

to

Do

Work-Related

Activities

(Physical) (Tr. 355-58), which Dr. Burgert signed on June 5, 2014
(see Tr. 358).
demonstrated

Ms. Rane noted that an evaluation of Plaintiff

“[d]ecreased

lumbo

pelvic

and

pelvic

femoral

stability, poor core strength[,] limited lumbar [and] thoracolumbar mobility[,] [and a] lack[] [of] frontal plane control
resulting in muscle compensation [and] pain[.]” (Tr. 356.)

Dr.

Burgert/Ms. Rane opined that, as a result of those impairments,
Plaintiff could lift and/or carry less than ten pounds occasionally
(see Tr. 355), could stand and/or walk for less than two hours and
sit for less than about six hours in an eight-hour workday, could
never

squat,

occasionally

bend,
balance

climb,
(see

kneel,

Tr.

356),

crawl,
could

or

stoop,

occasionally

could
reach

overhead (see Tr. 357), and required limited exposure to vibration
(see Tr. 358).
The ALJ assessed the opinions of Dr. Burgert/Ms. Rane as
follows:
The undersigned accords little weight to the treating
source statement completed by [Plaintiff’s] physical
therapist, [Ms. Rane] and signed by [Dr. Burgert] in June
2014. They opine [Plaintiff] is capable of a less than
sedentary exertion, and is unable to squat or bend,
climb, kneel, crouch, or crawl but can occasionally
11

balance. Furthermore, [Plaintiff] is limited in reaching
and can occasionally be exposed to vibration. While Dr.
Bu[rgert] is [Plaintiff’s] treating and examining primary
care physician, and [Ms.] Rane is [Plaintiff’s] treating
and examining physical therapist, their opinion is not
consistent with the evidence as a whole. Furthermore,
evidence received at hearing level reflects [Plaintiff]
is not as limited as opined. As such, the opinion is
accorded little weight.
(Tr. 26 (internal citations omitted).)

Plaintiff challenges the

ALJ’s rejection of those opinions as “‘not consistent with the
evidence as a whole’” and because “‘evidence received at the
hearing level reflect[ed] that [Plaintiff] [wa]s not as limited as
alleged’” (Docket Entry 9 at 7 (citing Tr. 26)), arguing that the
ALJ’s rationale constituted “precisely the kind of conclusory
analysis that the Fourth Circuit held in Monroe and Radford did not
allow for meaningful substantial evidence review” (id.).
The ALJ did not reversibly err in his evaluation of the
opinions of Dr. Burgert/Ms. Rane.

Although the ALJ did not detail

the evidence that conflicted with those opinions in the same
paragraph in which the ALJ announced his weighing of them (see Tr.
26), the ALJ’s earlier discussion of the medical evidence permits
the Court to meaningfully review his evaluation.

See McCartney v.

Apfel, 28 F. App’x 277, 279-80 (4th Cir. 2002) (rejecting challenge
to

ALJ’s

finding

for

lack

of

sufficient

detail

where

other

discussion in decision adequately supported finding and stating
“that the ALJ need only review medical evidence once in his
decision”); Kiernan v. Astrue, No. 3:12CV459-HEH, 2013 WL 2323125,

12

at *5 (E.D. Va. May 28, 2013) (unpublished) (observing that, where
an “ALJ analyzes a claimant’s medical evidence in one part of his
decision, there is no requirement that he rehash that discussion”
in other parts of his analysis).

Earlier in the ALJ’s decision, he

concluded that “the objective medical evidence . . . d[id] not
reflect that [Plaintiff] [wa]s as limited as alleged” (Tr. 22), and
made the following pertinent findings:
C

Although
treatment
records
from
Greensboro
Orthopedic Center showed Plaintiff had a positive
straight leg raise test, she had no tenderness on
palpation or swelling (Tr. 22; see also Tr. 257);

C

Dr. David Spivey of Preferred Pain Management
“report[ed] th[at] epidural steroid injections have
reduced [Plaintiff’s] low back and leg pain[,]” and
that “[w]hile [Plaintiff] exhibited diminished
range of motion in flexion, [she had] no muscle
spasms” (Tr. 22; see also Tr. 303, 308);

C

Dr. Burgert’s own treatment records indicate that
Plaintiff’s “methadone [wa]s effective in managing
pain[,]” and that she “[wa]s more active with her
granddaughter” (Tr. 22; see also Tr. 315), as well
as that Plaintiff’s “back pain [wa]s in good
control” (Tr. 23; see also Tr. 427);

C

Although
notes
of
office
visits
at
Nova
Neurosurgery reflect that Plaintiff “had worsening
back pain after moving furniture and boxes[,] . . .
no
tenderness
to
palpation
was noted,
and
[Plaintiff] maintained a normal gait without leg
weakness or notable radiculopathy[,] . . . normal
muscle tone and alignment, [and] no range of motion
deficits, clubbing, edema, or loss of sensation in
her upper and lower extremities” (Tr. 22; see also
Tr. 264-65, 266, 270, 271, 273, 276, 277).

In

addition,

the

ALJ

noted

Plaintiff’s

medication

and

treatment non-compliance “demonstrate[d] a possible unwillingness

13

to do what [wa]s necessary to improve her condition . . . [and]
m[ight] be an indication that her symptoms are not as severe as she
purports.”

(Tr. 22.)

The ALJ also referenced Plaintiff’s daily

activities, including tending to her personal hygiene, preparing
simple

meals,

completing

household

chores,

caring

for

her

granddaughter during the day, driving, and packing and moving boxes
and furniture in the course of relocating her residence, which the
ALJ found “require[d] significant physical and mental demands,
[and]

[we]re

not

consistent

[Plaintiff] allege[d].”
Simply

put,

the

with

the

level

of

limitation

(Tr. 21.)
ALJ’s

earlier

discussion

of

evidence

inconsistent with the opinions of Dr. Burgert/Ms. Rane permits the
Court to meaningfully review the ALJ’s decision to discount those
opinions.
b. Dr. Zota
Consultative examiners such as Dr. Zota do not constitute
treating
§

sources

404.1527(c)(2),

under
and

the
thus

regulations,
their

see

opinions,

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,
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

14

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)); 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)).
On February 25, 2014, Dr. Zota conducted a consultative
medical

examination

of

Plaintiff

(Tr.

309-14),

reporting

Plaintiff’s diagnoses as “migraine headache, mental health issues,
anxiety,

nervousness,

chronic

lower

back

pain,

multilevel

degenerative disc disease, [and] moderate-to-severe arthritis in
both knees” (Tr. 311).

Dr. Zota indicated that, as a result of

those impairments, Plaintiff could sit and stand for 15 to 20
minutes at a time and for a total of three hours in an eight-hour
workday, walk two to three blocks, and could lift no more than ten
pounds, but had no limitations in carrying, handling objects,
hearing, speaking, or traveling.

(See id.)

The ALJ evaluated Dr. Zota’s opinions as follows:
[Dr. Zota] . . . opined that . . . [Plaintiff] would be
limited to standing 20 minutes, for a total of three
15

hours in an eight-hour workday, walking two to three
blocks, bending and lifting of no more than ten pounds
but would have no limitations in carrying, handling
objects, communication or travel.
Some weight is
accorded to this opinion. First, while Dr. Zota is an
acceptable medical source fully familiar with the Social
Security policies and regulations regarding disability,
she does not have a longitudinal treatment history with
[Plaintiff] for the alleged impairments. Furthermore,
she examined [Plaintiff] on one occasion.
Moreover,
evidence
received
at
[the] hearing level
shows
[Plaintiff] is not as limited as opined. For example,
the most current records reflect normal clinical findings
and normal gait.
As such, Dr. Zota is accorded some
weight.
(Tr. 26 (internal citation omitted)).

Plaintiff concedes that the

ALJ’s “reasoning for according some weight to [Dr. Zota’s opinions]
[wa]s slightly more explanatory, in that [the ALJ] stated that ‘the
most current records reflect normal clinical findings and [] normal
gait.’” (Docket Entry 9 at 7 (quoting Tr. 26).) However, Plaintiff
maintains that the ALJ’s analysis remains “deficient under Fourth
Circuit precedent, as ‘the most current records’ fails to provide
sufficient

specificity

meaningful review.”

for

a

reviewing

court

to

engage

in

(Id. (quoting Tr. 26).)

The ALJ did not commit an error warranting remand in his
evaluation of Dr. Zota’s opinions.

Plaintiff correctly notes that

the ALJ did not describe the evidence inconsistent with Dr. Zota’s
opinions in the above-quoted paragraph (see id.; see also Tr. 26);
however, the ALJ’s earlier discussion of the medical evidence
permits the Court to meaningfully review his evaluation of Dr.
Zota’s opinions.

See McCartney, 28 F. App’x at 279-80; Kiernan,

16

2013 WL 2323125, at *5.

As detailed above, earlier in the ALJ’s

decision, he concluded that “the objective medical evidence . . .
d[id] not reflect that [Plaintiff] [wa]s as limited as alleged”
(Tr. 22), and provided multiple examples of evidence inconsistent
with Dr. Zota’s opinions (see Tr. 21-22).
Moreover, contrary to Plaintiff’s allegation (see Docket Entry
9 at 7), earlier in the ALJ’s decision, he did detail more current
records that conflicted with Dr. Zota’s opinions.

In that regard,

the ALJ noted:
C

The more current records reflect [Plaintiff] has a
limited range of motion in her lumbar spine but a
negative straight leg [test] and normal clinical
findings[,] . . . a normal gait without difficulty
in heel and toe walking[,] [and] despite diffuse
tenderness with palpation, . . . full muscle
strength and sensation (Tr. 22-23 (citing Tr. 310,
313-14, 336) (emphasis added) (internal citations
omitted));

C

Dr. Burgert noted on April 13, 2014, that
Plaintiff’s “back pain [wa]s in good control” (Tr.
23 (quoting Tr. 427));

C

Records subsequent to Plaintiff’s October 4, 2013,
right knee arthroscopy “reflect [Plaintiff] had
full range of motion, stable ligaments[,] . . . was
in no acute distress[,] . . . [and] had a normal
gait, . . . and full strength” (id. (citing Tr.
328, 334, 339, 342)).

Thus, considering the ALJ’s decision in totality, the Court can
trace the path of the ALJ’s reasoning in declining to assign much
weight to Dr. Zota’s opinions.

17

In short, Petitioner has shown no basis for relief arising
from the ALJ’s decision to discount the opinions of Dr. Burgert/Ms.
Rane and Dr. Zota.
2. RFC
In Plaintiff’s second and final assignment of error, she
contends that the ALJ “erred in finding that [Plaintiff] has the
[RFC] to perform a reduced range of light work.”

(Docket Entry 9

at 7 (standard capitalization applied and single-spacing omitted).)
More specifically, Plaintiff faults the ALJ for (1) failing to cite
to

substantial

Plaintiff’s

evidence

subjective

to

support

symptom

his

decision

reporting

(id.

to

at

discount

8-9),

and

“erroneously equat[ing] Plaintiff’s ability to engage in some
activities on her own schedule with an ability to work full-time”
(id. at 11); (2) not incorporating the opinions of Dr. Burgert/Ms.
Rane and Dr. Zota into the RFC (id. at 9-10); and (3) neglecting to
account

for

persistence,

Plaintiff’s
or

pace

moderate

(“CPP”)

in

limitation
the

RFC

in
(id.

concentration
at

10-11).

Plaintiff’s arguments miss the mark.
a. Subjective Symptom Reporting
Social Security Ruling 16–3p, Titles II and XVI: Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304 (Oct. 25, 2017)
(“SSR 16–3p”) and the Commissioner’s regulations provide a two-part
test for evaluating a claimant’s statements about symptoms.

18

See

SSR 16-3p, 2017 WL 5180304, at *3; see also 20 C.F.R. § 404.1529.5
First, the ALJ “must consider whether there is an underlying
medically determinable physical or mental impairment(s) that could
reasonably be expected to produce an individual’s symptoms, such as
pain.”

SSR 16-3p, 2017 WL 5180304, at *3.

A claimant must provide

“objective medical evidence from an acceptable medical source to
establish the existence of a medically determinable impairment that
could reasonably be expected to produce [the] alleged symptoms.”
Id.

Objective

(“anatomical,
established

medical

evidence

physiological,
by

medically

or

consists

of

medical

psychological

acceptable

clinical

signs

abnormalities
diagnostic

techniques”) and laboratory findings “shown by the use of medically
acceptable laboratory diagnostic techniques.”

Id.

Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work.
at *4.

See id.

In making that determination, the ALJ must “examine the

5

Applicable to ALJ decisions on or after March 28, 2016, the SSA superceded
Social Security Ruling 96-7p, Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”) with SSR 163p. The new ruling “eliminat[es] the use of the term ‘credibility’ from . . .
sub-regulatory policy, as [the] regulations do not use this term.” SSR 16-3p,
2017 WL 5180304, at *1.
The ruling “clarif[ies] that subjective symptom
evaluation is not an examination of the individual’s character,” id., and
“offer[s] additional guidance to [ALJs] on regulatory implementation problems
that have been identified since [the publishing of] SSR 96–7p,” id. at *1 n.1.
The ALJ’s decision in this case post-dates the effective date of SSR 16-3p (see
Tr. 28) and, thus, this Recommendation will apply SSR 16-3p to the ALJ’s analysis
of Plaintiff’s subjective complaints.

19

entire case record, including the objective medical evidence; an
individual’s

statements

about

the

intensity,

persistence,

and

limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.”
added).

Id. (emphasis

Where relevant, the ALJ will also consider the following

factors in assessing the extent of the claimant’s symptoms at part
two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
Id. at *7-8.

The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
the

degree

of

impairment-related

20

symptoms

alleged

by

the

individual.”

Id. at *5 (emphasis added).

In this case, the ALJ

found for Plaintiff on part one of the inquiry, but ruled, in
connection with part two, that her “statements concerning the
intensity, persistence and limiting effects of [her] symptoms
[we]re not entirely credible for the reasons explained in th[e]
decision.”

(Tr. 21 (emphasis added).)

As an initial matter, although not argued by Plaintiff (see
Docket Entry 9), the ALJ’s analysis of Plaintiff’s subjective
symptom reporting does not fully comply with SSR 16-3p.

As

discussed above, SSR 16-3p, which applies to the ALJ’s decision,
“eliminat[ed]

the

use

of

the

term

‘credibility’

from

.

.

.

sub-regulatory policy, . . . [and] clarif[ied] that subjective
symptom evaluation is not an examination of the individual’s
character.”

SSR 16-3p, 2017 WL 5180304, at *1 (emphasis added).

Here, the ALJ cited SSR 96-7p at the outset of his RFC analysis
(see Tr. 20), and referred to Plaintiff’s credibility on four
separate occasions in the decision (see id. (noting that “whenever
statements

about

the

intensity,

persistence

or

functionally

limiting effects of pain or other symptoms are not substantiated by
the objective medical evidence, the [ALJ] must make a finding on
the credibility of the statements” (emphasis added)), Tr. 21
(finding

Plaintiff’s

“statements

concerning

the

intensity,

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

21

and concluding that “the record contains inconsistencies that bring
[Plaintiff’s] credibility into question” (emphasis added), Tr. 26
(commenting that Plaintiff’s “disability could only be based upon
subjective symptoms that the [ALJ] finds are not fully credible”
(emphasis added))).
However, any errors by the ALJ in that regard remain harmless
under the circumstances of this 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 us to
remand a case in quest of a perfect opinion unless there is reason
to believe that the remand might lead to a different result”).
Despite the ALJ’s use of the term “credibility” in his initial
recitation of applicable authority (see Tr. 20) and in certain
areas of the decision summarizing his findings (see Tr. 21, 26), in
the material portions of his subjective symptoms analysis, he
adhered to SSR 16-3p’s requirement that such analysis focus on “the
extent to which [a claimant’s] symptoms can reasonably be accepted
as consistent with the objective medical and other evidence in the
[claimant’s] record.”
added).
the

ALJ

SSR 16-3p, 2017 WL 5180304, at *2 (emphasis

For example, in analyzing Plaintiff’s daily activities,
stated

that,

“[w]ith

regard

to

the

consistency

of

statements about the intensity, persistence and limiting effects of
symptoms pursuant to 16-3p, the [ALJ] finds that [Plaintiff’s]
alleged daily activities are not entirely consistent with her

22

allegation

of

limitations.”

disabling

physical

and

mental

(Tr. 21 (emphasis added).)

symptoms

and

Similarly, the ALJ

observed that “the record contain[ed] inconsistencies” regarding
Plaintiff’s

medication

persuasiveness
added)),

and

[of]
further

compliance

[Plaintiff’s]
noted

“that

diminish[ed]

statements”

“inconsistencies”

(id.
with

the

(emphasis
respect

to

Plaintiff’s reported prior work history (Tr. 22 (emphasis added)).
Plaintiff first argues that the ALJ did not base his analysis
of Plaintiff’s subjective complaints of symptoms on substantial
evidence.

(See Docket Entry 9 at 8-9.)

In support of that

argument, Plaintiff summarized her hearing testimony (see id. at
8), and then asserted that her “testimony is strongly supported by
the record, as all of the symptoms that [Plaintiff] testified to
experiencing

have

been

repeatedly

documented

in

her

medical

records” (id. at 9 (citing Tr. 236, 238, 244, 249, 252, 257, 260,
273, 275, 283, 305, 308, 325, 359, 385, 387, 391, 393, 396, 397)).
However, Plaintiff misinterprets this Court’s standard of review.
The Court must determine whether the ALJ supported his analysis of
Plaintiff’s subjective symptom reporting with 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), and not whether
other record evidence weighs against the ALJ’s analysis, Lanier v.
Colvin, No. CV414–004, 2015 WL 3622619, at *1 (S.D. Ga. June 9,

23

2015) (unpublished) (“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 here

buttressed his finding that the record as a whole did not support
Plaintiff’s subjective complaints of symptoms, by noting that
Plaintiff’s alleged daily activities, medication non-compliance,
reports regarding her work history, and the objective medical
evidence did not harmonize with those complaints. (See Tr. 21-22.)
Regarding Plaintiff’s daily activities, she contends that the
ALJ “erred by suggesting that [Plaintiff’s] ability to perform
[daily activities] when she [wa]s able indicate[d] an ability to
perform light work on a sustained basis, five days a week, eight
hours per day.”
glosses

over

(Docket Entry 9 at 11.)

the

fact

that

the

ALJ

did

Plaintiff’s argument
not

base

his

RFC

determination solely on Plaintiff’s ability to engage in a wide
range

of

daily

activities.

The

ALJ

additionally

evaluated

inconsistencies regarding Plaintiff’s medication compliance and
work history (see Tr. 21-22), the objective medical evidence (see
Tr. 22-24), and the opinion evidence of record (see Tr. 24-26) in
reaching his conclusion regarding Plaintiff’s RFC.
b. Opinion Evidence
Plaintiff next argues that the ALJ’s “finding that [Plaintiff]
can

perform

a

reduced

range

of

24

light

work

is

in

direct

contradiction with the assessments of [Dr. Burgert/Ms. Rane] and
[Dr. Zota].”

(Docket Entry 9 at 9.)

However, as discussed above

in connection with Plaintiff’s first assignment of error, the ALJ
did not reversibly err with respect to his decisions to discount
the opinions of Dr. Burgert/Ms. Rane and Dr. Zota and, therefore,
the ALJ labored under no obligation to include all of their
restrictions in the RFC.
c. CPP
Plaintiff additionally maintains that the ALJ’s “RFC analysis
failed to fully and accurately account for [Plaintiff’s] mental
limitations in [CPP].”

(Id. at 10.)

According to Plaintiff,

“[w]here a claimant has limitations in [CPP], an ALJ does not
account for such limitations by restricting a claimant’s [RFC] to
simple, routine tasks or unskilled work[,]” because “[t]he 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].”
(4th Cir. 2015)).)

(Id. (citing Mascio v. Colvin, 780 F.3d 632

Plaintiff thus argues that the ALJ failed to

account for Plaintiff’s moderate difficulties in CPP by “limit[ing]
[Plaintiff] to ‘simple, routine, repetitive tasks [(‘SRRTs’)] in a
low-stress

job,

defined

as

occasional

occasional changes in the workplace.’”

decision-making

and

(Id.)

The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and

25

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
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 SRRTs in a lowstress job (see Tr. 20) sufficiently accounted for Plaintiff’s
moderate deficit in CPP.

26

First, the ALJ discussed Plaintiff’s testimony regarding her
mental symptoms, including her claim that she “has difficulty with
maintaining

concentration

and

attention,

[and]

completion

of

tasks[,]” but found her statements not entirely persuasive of
disability.

(Tr. 21.)

As discussed above, the ALJ supported his

evaluation of Plaintiff’s subjective complaints with substantial
evidence.
Second, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
25-26.)

The

ALJ

accorded

“great

weight”

to

the

(See Tr.

opinion

of

consultative psychological examiner Dr. Melanie B. Malterer that
Plaintiff could “understand, follow and retain basic instructions[]
[and] maintain [CPP].”

(Tr. 25; see also Tr. 404.)

The ALJ also

gave “great weight” to the state agency psychological consultants’
opinions.

(Tr.

25.)

Notably,

both

consultants

found

that

Plaintiff suffered moderate limitation in CPP (see Tr. 67, 82), but
that, despite that concentrational deficit, Plaintiff remained
“able to remember and follow instructions” (Tr. 70, 86), and “able
to sustain and persist long enough to complete a workday” (Tr. 71,
87

(emphasis

added)).6

Under

6

these

circumstances,

the

ALJ

Both state agency psychological consultants also included a restriction to a
“low production work environment.” (Tr. 71, 87.) The ALJ, despite giving “great
weight” to the state agency psychological consultants opinions (see Tr. 25), did
not include a restriction to a low production setting in the RFC (see Tr. 20).
Neither Plaintiff nor the Commissioner addressed this apparent inconsistency
between the consultants’s opinions and the RFC in their briefing to this Court.
(See Docket Entries 9, 11.) The Court thus need not address that subject. See
generally Zannino, 895 F.2d at 17 (“[A] litigant has an obligation to spell out
(continued...)

27

adequately explained why restrictions to SRRTs in a low-stress job
(see

Tr.

20)

sufficiently

accounted

for

Plaintiff’s

moderate

limitation in CPP.
In sum, the ALJ did not err in finding that Plaintiff retained
the RFC to perform a reduced range of light work.
III.

CONCLUSION

Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment

on

the

Pleadings

(Docket

Entry

7)

be

denied,

that

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

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 4, 2018

6

(...continued)
its arguments squarely and distinctly, or else forever holds its peace.”);
Hughes, 2014 WL 906220, at *1 n.1 (“A party should not expect a court to do the
work that it elected not to do.”).

28