JOE L. WEBSTER, Magistrate Judge.
Plaintiff, Sheila Wilds, brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain review of a final decision of the Commissioner of Social Security denying her claims for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Act. The Court has before it the certified administrative record and cross-motions for judgment.
Plaintiff protectively filed applications for a POD, DIB, and SSI benefits in December 2008 alleging a disability onset date of April 5, 2008. (Tr. 163, 167.)
Plaintiff was 44 years old on the alleged disability onset date, had completed tenth grade, was able to communicate in English, and had past relevant work as a housekeeper. (Id. at 48, 163.)
The Commissioner held that Plaintiff was not under a disability within the meaning of the Act. Under 42 U.S.C. § 405(g), the scope of judicial review of the Commissioner's final decision is specific and narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). This Court's review of that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. § 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hunter, 993 F.2d at 34 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). It "consists of more than a mere scintilla" "but may be somewhat less than a preponderance." Id. (quoting Laws v. Celebreze, 368 F.2d 640, 642 (4th Cir. 1966)).
The Commissioner must make findings of fact and resolve conflicts in the evidence. Hays, 907 F.2d at 1456 (citing King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)). The Court does not conduct a de novo review of the evidence nor of the Commissioner's findings. Schweiker, 795 F.2d at 345. In reviewing for substantial evidence, the Court does not undertake to re-weigh conflicting evidence, to make credibility determinations, or to substitute its judgment for that of the Commissioner. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Hays, 907 F.2d at 1456). "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 [Commissioner's] designate, the ALJ)." Craig, 76 F.3d at 589 (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). The denial of benefits will be reversed only if no reasonable mind could accept the record as adequate to support the determination. See Richardson v. Perales, 402 U.S. 389, 401 (1971). The issue before the Court is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See id.; Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The Social Security Regulations define "disability" for the purpose of obtaining disability benefits under the Act as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment
The Commissioner follows a five-step sequential analysis to ascertain whether the claimant is disabled, which is set forth in 20 C.F.R. § 404.1520, 416.920. See Albright v. Comm'r of Soc. See. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The ALJ must determine in sequence:
20 C.F.R. § 404.1520, 416.920.
Here, the ALJ reached the fourth step of the sequence, at which point he determined that Plaintiff was not disabled from April 5, 2008 through the date of the decision. (Tr. at 39.) The ALJ first determined that Plaintiff had not engaged in substantial gainful activity at any time since her alleged onset date. (Id. at 35.) The ALJ next found in step two that Plaintiff had severe impairments: psoriasis, uterine fibroids, and anemia. (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1. (Id. at 36.) At step four, the ALJ concluded that Plaintiff could perform her past relevant work "as a cleaner in housekeeping." (Id. at 39.)
Prior to step four, the ALJ determined Plaintiffs RFC based on the ALJ's evaluation of the evidence, including Plaintiff's testimony and the findings of treating and examining health care providers. (Id. at 36-39.) Based on the evidence as a whole, the ALJ determined that Plaintiff retained the RFC to perform light work with no contact with the public. (Id. at 36.) In reaching a conclusion about Plaintiff's RFC, the AU considered the evidence, including Plaintiff's testimony, and found that "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (Id. at 38.)
The ALJ found in step four that Plaintiff could perform her past relevant work "as a cleaner in housekeeping." (Id.)
Plaintiff raises five issues. First, Plaintiff contends that the ALJ erred in rejecting the medical opinion of Plaintiff's treating physician. (Docket Entry 13 at 3.) Second, Plaintiff argues that the Aq failed to properly evaluate her credibility. (Id. at 4.) Third, Plaintiff contends the ALJ erred by determining Plaintiff's RFC prior to evaluating her credibility. (Id. at 8.) Fourth, Plaintiff contends the ALJ failed to make a "function-by-function analysis." (Id. at 10.) Last, Plaintiff contends that the ALJ erred in failing to attribute "great weight" to Plaintiff's testimony. (Id. at 11.) As explained below, these arguments lack merit.
Plaintiff contends that the ALJ erred in rejecting the medical opinion of Plaintiff's treating physician, Dr. Acharya. (Docket Entry 13 at 3.) Dr. Acharya met with Plaintiff a number of times in 2009 and 2010. (See, e.g., Tr. 235-39, 242, 253, 256, 321.) In July 2009 she wrote that Plaintiff "has some medical problems she can not work due to her medical condition" and "[a]bility to work: none." (Id. at 246.) The ALJ gave this opinion "little weight" (Tr. 38) because "the doctor's opinion[ ] is contrary to and unsupported by her own medical notes."
First, the ALJ's decision to attribute to attribute "little weight" to Dr. Acharya's medical opinion is supported by substantial evidence. The "treating physician rule," 20 C.F.R. § 404.1527(c)(2) generally provides more weight to the opinion of a treating source, because it may "provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) [which] may bring a unique perspective to the medical evidence." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Significantly, as subsections (2) through (4) of the rule describe in great detail, a treating source's opinion, like all medical opinions, must be both well-supported by medical signs and laboratory findings as well as consistent with the other substantial evidence in the case record. Id. §§ 404.1527(c)(2)-(4), 416.927(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; accord Mastro v. Apfel, 270 at 178. Opinions by physicians regarding the ultimate issue of whether a plaintiff is disabled within the meaning of the Act never receive controlling weight because the decision on that issue remains for the Commissioner alone. 20 C.F.R. § 404.1527(d), 416.927(d).
In light of this well-established law, the ALJ was permitted to disregard Dr. Acharya's conclusory assertion that Plaintiff was disabled. As explained, that is a determination reserved for the mi. Additionally, the Ali was also permitted to find Dr. Acharya's opinion was "contrary to and unsupported by her own medical notes." (Tr. 38). This is because, as the ALJ further discussed, "rolther than noting [Plaintiff] appeared chronically ill and would require a blood transfusion for her bleeding, [Dr. Acharya], found [that Plaintiff's] examination was essentially normal."
The ALJ also opined that Dr. Acharya's "own reports fail to reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant were in fact disabled, and the doctor did not specifically address this weakness." (Tr. 38). Plaintiff calls this "conclusory" and "boilerplate," but it is an accurate assessment of the record. (Docket Entry 13 at 3.) As alluded to, Dr. Acharya's notes stated that Plaintiff was in little or no pain and in no distress. (Id. at 251, 253, 254, 255, 256.) Dr. Acharya's notes also showed that Plaintiff's extremities were grossly intact. (Id. at 252, 255).
It is also noteworthy that Plaintiff seems to agree with the conclusion that Dr. Acharya's notes do not demonstrate that Plaintiff is disabled. (Docket Entry 13 at 3, "a prudent ALJ would not have granted [her] claim on the basis of Dr. [Acharya's] brief, conclusory opinion.") Nevertheless, Plaintiff still maintains that the ALJ's decision should be reversed. First, Plaintiff argues that the ALJ should have obtained a full medical source statement from Dr. Acharya. (Id. at 3-4.) However, as Defendant points out, a request was made for a full medical source statement (Tr. 373) and, in fact, Dr. Acharya's opinion states that she was "providing additional information regarding [Plaintiffs] medical condition at your request." (Id. at 246.) As such, any failure in Dr. Acharya's records is not properly attributable to the Aq in this case.
Plaintiff is perhaps further contending that, given Dr. Acharya's opinion, the AL) was obliged to recontact her until he fulfilled his statutory duty to obtain a full medical source statement. Yet, the ALJ was only required to recontact Dr. Acharya if the record was inadequate to make a disability determination. See Scarberry v. Chater, No. 94-2000, 1995 WL 238558, at *4 n. 13 (4th Cir. 1995) (unpublished); Hutchinson v. Astrue, No. 1:09-cv-57, 2012 WL 1267887, at * 6 (M.D.N.C. Apr. 16, 2012); Parker v. Astrue, 792 F.Supp.2d 886, 895 (E.D.N.C. 2011). That is not the case here.
Here, as Defendant accurately points out, the record showed that Plaintiff was not regularly taking any prescription medication for her pain (Tr. 202, 230); that she went years without seeing a dermatologist despite suffering from psoriasis all her life (id. at 230); that she had a normal range of motion in her extremities (id. at 229); that she had 5/5 muscle strength (id. at 232), despite claiming that she was unable to lift 10 pounds (id. at 62); that she was able to do heel and toe walking, squat, and rise (id. at 232); and that she was able to perform dexterous hand movements with complaints of pain (id. at 232). Additionally, the medical evidence revealed that Plaintiff denied anything more than mild pain, and also denied stiffness, swelling, joint limitation, headaches (at times), weakness, change in gait (id. at 270, 298), and sensory or motor deficits (id. at 270, 299, 325). The record revealed further that Plaintiffs movements were within normal limits (id. at 288) and that she had good movements in all her extremities (id. at 327). This is substantial evidence to determine that Plaintiff was not disabled. The ALJ was not required to recontact Dr. Acharya.
In Plaintiffs second and third claims, she contends that the ALJ erred in assessing her credibility. (Docket Entry 13 at 4-10.) The Fourth Circuit Court of Appeals has adopted a two-step process by which the ALJ must evaluate a claimant's symptoms. The first step requires the ALJ to determine if the plaintiffs medically documented impairments could reasonably be expected to cause plaintiffs alleged symptoms. Craig, 76 F.3d at 594. The second step includes an evaluation of subjective evidence, considering claimant's "statements about the intensity, persistence, and limiting effects of [claimant's] symptoms." Id. at 595 (citing 20 C.F.R. §§ 416.929(c)(4) and 404.1529(c)(4).) "The ALJ must consider the following: (1) a claimant's testimony and other statements concerning pain or other subjective complaints; (2) claimant's medical history and laboratory findings; (3) any objective medical evidence of pain; and (4) any other evidence relevant to the severity of the impairment." Grubby v. Astrue, No. 1:09cv364, 2010 WL 5553677, at *3 (citing Craig, 76 F.3d at 595; 20 C.F.R. § 404.1529(c).) "Other evidence" refers to factors such as claimant's daily activities, duration and frequency of pain, treatment other than medication received for relief of symptoms, and any other measures used to relieve claimant's alleged pain. Id. Moreover, SSR 96-8p requires that:
SSR 96-8p, Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, *5. Similarly, in determining the credibility of a claimant, SSR 96-7p, Assessing the Credibility of an Individual's Statements, instructs the ALJ to "consider the entire case record" and requires a credibility determination to "contain specific reasons for the finding on credibility, supported by the evidence in the case record[.]" SSR 96-7p, 1996 WL 374186, at *4. Importantly, an ALJ's credibility determination is also entitled to "substantial deference." Sayre v. Chater, NO. 95-3080, 1997 WL 232305, at *1 (4th Cir. May 8, 1997) (unpublished); Salyers v. Chater, No. 96-2030, 1997 \VI, 71704, at *1 (4th Cir. Feb. 20, 1997) (unpublished).
Here, substantial evidence supports the ALJ's assessment of Plaintiff's credibility, including allegations of pain. In his Decision, the ALJ concluded that:
(Tr. 38-39.)
As noted, the ALJ "careful[ly] consider[ed]" the evidence and found that Plaintiff's impairments "could reasonably be expected to cause the alleged symptoms." (Id. at 38.) Thus, the ALJ performed the first step of the Craig analysis. Next, the ALJ performed step two of the analysis, concluding that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent" with the RFC.
Next, the Aq correctly pointed out further that Plaintiff's treatment was generally routine and conservative and that she had generally not received the medical treatment one would expect for a disabled person. (Id.) As mentioned, Plaintiff went years without seeing a doctor. (Id. at 55, 189, 230). She presented herself as being in considerable pain. (Id. at 60-62.) Plaintiff, however, was not receiving treatment for pain when she applied for benefits (id. at 201) and was not taking medication for pain aside from Tylenol and Advil (id. at 202) (See also Tr. 270, 298 (denies pain); id. at 301 (pain 0 out of 10).)
Also, at the time of the administrative hearing, Plaintiff was receiving conservative treatment for her arthritis and her doctors were not "giving [her] anything for it." (Id. at 56; see also id. at 57 (acknowledging that her arthritis treatment consisted of her "go[ing] and . . . report[ing] that [she had] some pain in [her] hands").) As for her anemia, Plaintiff's doctors discussed the possibility of hysterectomy for her "symptomatic uterine fibroids." (Id. at 347; see also id. at 252 (assessing Plaintiff with "anemia due to menorrhagia due to uterine fibroids").) Yet, at her hearing, Plaintiff's attorney informed the ALJ that Plaintiff had not received a hysterectomy. (Id. at 45; see also id. at 230 (Plaintiff "has a history of heavy menstruation, but she has not checked with the gynecologist").)
Additionally, as noted, Dr. Acharya concluded that Plaintiff could not work. However, the ALJ correctly concluded that opinions by physicians regarding the ultimate issue of whether a plaintiff is disabled within the meaning of the Act never receive controlling weight because the decision on that issue remains for the Commissioner alone. 20 C.F.R. § 404.1527(d). And, as explained earlier, Dr. Acharya's opinion was properly discounted by the ALJ. For all these reasons, the ALJ's credibility analysis is supported by substantial evidence.
Plaintiff's arguments to the contrary—which largely rely on unpublished, out-ofcircuit case law, much of which is factually distinct from this case—do not demonstrate otherwise. Plaintiff points to the ALJ's discussion of her activities of daily living. (Docket Entry 13 at 5 citing Tr. 38.) The ALJ acknowledged that Plaintiff testified that they were limited (Tr. 38 referencing 63-67), but concluded that her statements did not support her disability claim because her daily activities could not "be objectively verified with any reasonable degree of certainty." (Tr. 38.) Plaintiff contends that this was inappropriate (Docket Entry 13 at 5-7), and Defendant concedes "she is probably right" but that the "ALJ reached the right result by the wrong route" (Docket Entry 17 at 13.) However, even assuming error on the part of the ALJ, as discussed above, the ALJ still presented several other valid reasons firmly grounded in the record by ample evidence for finding Plaintiff's subjective complaints partially incredible. Any error here was at most harmless.
Plaintiff next challenges the RFC assessment by contending that the ALJ erred by failing to make a function-by-function analysis of Plaintiffs abilities as required by Social Security Ruling 96-8p. (Docket Entry 13 at 10-11.) This argument is unpersuasive. "Plaintiff appears to be arguing that the Ruling requires an ALJ to articulate in his opinion an assessment of a claimant's ability in each of the functional categories, but there is a distinction between what the ALJ must consider and what he must articulate in the decision." Joyce v. Astrue, No. 1:06CV27, 2009 WL 313345, at *14 (M.D.N.C. Feb. 5, 2009) (unpublished). An ALJ is not required to discuss all of a claimant's abilities on a functionby-function basis but, rather, only to describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. Id. (citation omitted); see also Brubaker v. Astrue, No. 3:12-cv-423-REP, 2012 wt. 6493606, at *9 (E.D. Va. Nov. 21, 2012) (unpublished) adopted by 2012 WL 6541094 (E.D. Va. Dec. 12, 2012); Meadows v. Astrue, No. 5:11cv00063, 2012 WL 3542536, at *8 (W.D. Va. Aug. 15, 2012) (unpublished) (same) adopted by 2012 WL 4005455 (W.D. Va. Sept. 12, 2012).
Here, the ALJ adequately explained his RFC determination in narrative form in compliance with SSR 96-8p. The ALJ evaluated Plaintiff's treatment history, her (limited) medications and treatment, her credibility, and the opinion evidence. (Tr. 37-38.) This fully satisfied the requirements of SSR 96-8p. The ALJ then limited Plaintiff to light work and no contact with the public secondary to her psoriasis. (Id. at 36.)
Additionally, Plaintiff has failed to demonstrate any likelihood of prejudice, even assuming the ALJ erred in his analysis, because Plaintiff fails to point to any specific evidence that the ALJ failed to consider and which might have established the presence of an additional limitation. See, e.g., Weaver v. Astrue, Civil No. 3:10-CV-00568-GCM-DCK, 2011 WL 4596122, *11 (W.D.N.C. Aug. 10, 2011) (unpublished) adopted by 2011 WL 4596449 (Sept. 30, 2011). Instead, Plaintiff contends that "[f]or all the court knows, the ALJ himself does not know whether the claimant can lift 5 pounds or 50, because he has said nothing on the subject . . . ." (Docket Entry 13 at 11.) This is false. As noted, the ALJ considered all the evidence of record and found that Plaintiff could perform "light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)." (Tr. 36.) Light work, in pertinent part, is defined as lifting no more than 20 pounds at a time with frequently lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b), 416.967(b).
Moreover, the ALJ gave weight to the opinion of the non-examining state agency physician (Tr. 38), who assessed Plaintiff's work related limitations on a function by function basis (Id. at 273-79). The ALJ was not required to repeat these findings verbatim. See, e.g., Lind v. Astrue, 370 Fed. App'x 814, 817 (9th Cir. 2010).
Last, in a final contention overlapping Plaintiff's second and third allegations of error, Plaintiff claims that the AL.] was required to give "great weight" to her testimony because there was "more than a scintilla of evidence" in support of her allegations. (Docket Entry 13 at 11-12.) In support, Plaintiff cites Smith v. Astrue, No. 11-1574, 457 F. App'x 326 (4th Cir. 2011). (Id.) However, arguments such as this have been routinely rejected. For example, in Lusk v. Astrue, the United States District Court for the Western District of North Carolina reasoned that:
No. 1:11-cv-00196-MR, 2013 WL 498797, at * 7 (W.D.N.C. Feb 11, 2013).
After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is supported by substantial evidence. Accordingly, this Court
Mascio v. Colvin, No. 2:11-cv-65-FL, 2013 WL 3321577, at * 3 (E.D.N.C. July 1, 2013) (citing Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012)); see also Kamann v. Colvin, 721 F.3d 945, 951 (8th Cir. 2013) (rejecting an identical argument as "semantics and nothing more"). Furthermore, as the Seventh Circuit explained—and as Plaintiff acknowledges (Docket Entry 13 at 9)—"the inclusion of this language can be harmless . . . [i]f the ALJ has otherwise explained his conclusion adequately." Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). As discussed above, the ALJ adequately explained the credibility determination.
