KIMBERLY A. SWANK, Magistrate Judge.
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Linda Simmons Brooks (Plaintiff) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #14] be denied, Defendant's Motion for Judgment on the Pleadings [DE #22] be granted, and the Commissioner's decision be upheld.
Plaintiff applied for a period of disability, DIB, and SSI on April 3, 2013, with an alleged onset date of June 1, 2011. (R. 19, 229, 236.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 19, 94-95, 118-19, 152-53.) A hearing was held on April 20, 2015, before Administrative Law Judge (ALJ) Katherine D. Wisz, who issued an unfavorable ruling on May 20, 2015. (R. 19, 30.) The Appeals Council denied Plaintiff's request for review on October 21, 2016. (R. 1.) Plaintiff seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (first quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); then quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id.
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since June 1, 2011, the alleged onset date. (R. 21.) Next, the ALJ determined Plaintiff had the following severe impairments: "arthritis in both knees, reconstructive surgery of the knee, degenerative disc disease of the lumbar spine, diabetes mellitus, hypertension, carpal tunnel syndrome, and obesity." (Id.) The ALJ also found Plaintiff's premature ventricular contractions to be a non-severe impairment. (R. 22.)
At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22-23.) The ALJ analyzed Listings 1.02, 1.04, 2.02-2.04, 4.02, 4.04, 6.02, 11.04, and 11.14. (Id.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (RFC) and found that Plaintiff had
(R. 23.) In making this assessment, the ALJ found Plaintiff's statements about the severity of her symptoms "not entirely credible." (R. 24.) At step four, the ALJ concluded Plaintiff was able to perform her past relevant work as a medical assistant as that job is "generally performed." (R. 29.) Because the ALJ concluded Plaintiff could perform past relevant work, she concluded that Plaintiff was not disabled as defined in the Social Security Act. (Id.)
Plaintiff raises eight arguments on review. (Pl.'s Brief Supp. Mot. J. Pldgs. [DE #15] at 22-30.) She alleges the ALJ erred by
(Id.) But for argument (1), Plaintiff's arguments are interrelated and depend primarily on whether substantial evidence supports the ALJ's RFC finding. The undersigned addresses Plaintiff's arguments in the order they arise in the sequential disability evaluation process described above.
Plaintiff contends she meets the Paragraph A criteria of Listing 1.04 (Disorders of the spine). (Pl.'s Brief Supp. Mot. J. Pldgs. at 22-23.) More specifically, Plaintiff argues that a diagnosis of "nerve root encroachment" from an April 7, 2015, MRI constitutes "evidence of nerve root compression" such that it was error for the ALJ to find that Plaintiff did not meet this listing. (Id.) However, even if Plaintiff is correct about "nerve root encroachment" constituting evidence of nerve root compression, she fails to identify how she meets additional criteria of Paragraph A, namely "motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss" and "positive straight-leg raising test." 20 C.F.R. Pt. 4, Subpt. P, App. 1, § 1.04(A). Plaintiff concedes there is no evidence of a positive straight-leg raising test. (Pl.'s Brief Supp. Mot. J. Pldgs. at 23.) Thus, substantial evidence supports the ALJ's finding as to Listing 1.04.
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). It is based upon all relevant evidence and may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." SSR 96-8p, 1996 WL 374184, at *7.
In practice, formulating the RFC requires that an ALJ conduct a "function-by-function analysis" of a claimant's work abilities before expressing any conclusions about limits on the RFC. Mascio v. Colvin, 780 F.3d 632, 635-36 (4th Cir. 2015); SSR 96-8p, 1996 WL 374184, at *3. This `function-by-function analysis' requires an ALJ to discuss a Plaintiff's ability to perform work-related actions listed in 20 C.F.R. §§ 404.1545(b)-(d), 416.945(b)-(d). See Mascio, 780 F.3d at 636 & n.5.
Crucially, the RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations." Monroe v. Calvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). In other words, the ALJ must "build an accurate and logical bridge from the evidence to his conclusion." Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). If necessary, an ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7.
An ALJ "is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner." SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996). As part of this consideration and explanation, an ALJ must evaluate all medical opinions in the record. 20 C.F.R §§ 404.1527(b)-(c), 416.927(b)-(c); SSR 96-8p, 1996 WL 374184, at *7. Medical opinions are "statements from physicians . . . or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
The lack of objective medical evidence in the record is not, standing alone, a sufficient basis to reject a claimant's statements about the severity of her symptoms. See Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)); SSR 96-7p, 1996 WL 374186, at *1. The regulations require "an ALJ [to] follow[] a two-step analysis when considering a claimant's subjective statements about impairments and symptoms." Lewis, 858 F.3d at 865-66 (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). As explained by the Fourth Circuit:
Id. at 866 (citations omitted); see also SSR 96-7p, 1996 WL 374186, at *2. An ALJ may find a claimant's statements regarding the severity of her symptoms less credible if these statements are inconsistent with medical evidence in the record and if the ALJ explains how she weighed all of the relevant evidence, including the claimant's statements. See SSR 96-7p, 1996 WL 374186, at *2; Mascio, 780 F.3d at 636-37 (reversing and remanding to Commissioner because, among other things, the ALJ did not sufficiently explain how he arrived at the RFC assessment).
Plaintiff contends the ALJ erred by assessing an RFC that (i) did not include a limit that cannot sit for six hours in an eight-hour workday; (ii) only limited Plaintiff to frequent fingering and handling; (iii) did not allow for Plaintiff to lie down; and (iv) did not allow for Plaintiff to be absent from work more than two days per month. (Pl.'s Brief Supp. Mot. J. Pldgs. at 26.)
Preliminarily, Plaintiff cites no medical evidence or opinion in the record indicating she is limited in the ways described in the preceding paragraph. See (Pl.'s Brief Supp. Mot. J. Pldgs. at 24-26). Independent review of the record also indicates no such evidence or opinion. In fact, the record indicates Plaintiff attended seven physical therapy sessions from July 7, 2014, through August 11, 2014. (R. 441-47). The accompanying treatment notes do not indicate Plaintiff is as severely limited as she claims. (Id.) Therefore, this is a case where the ALJ's RFC assessment will survive judicial review if the ALJ adequately explained (i) how she arrived at the functional limitations based on evidence in the record and (ii) her reasons for not fully crediting Plaintiff's subjective statements about the severity of her symptoms.
Here, the ALJ sufficiently explained her reasons for assessing Plaintiff's RFC without the limitations sought by Plaintiff. (R. 25-28.) The ALJ summarized the evidence relating to Plaintiff's knee problems (R. 25), degenerative disc disease (R. 25-26), diabetes (R. 26), hypertension (R. 26), leg edema (R. 27), carpal tunnel syndrome (R. 27), obesity (R. 27), and gout (R. 27). Following each summary, the ALJ stated how the evidence impacted the respective functional limitations she assessed in the RFC, thus building the requisite "logical bridge" from the evidence to her conclusions. See Monroe, 826 F.3d at 189.
The ALJ also explained that she assigned "great weight" to the opinions of consultative examiner Dr. Michael Bunch because his opinions were consistent with the medical evidence in the record. (R. 28.) Dr. Bunch examined Plaintiff in May 2013 and wrote a report summarizing his findings and offering opinions about Plaintiff's functional abilities. (R. 354-57.) The only significant limitation that Dr. Bunch noted regarding Plaintiff's ability to "sit, stand, or move about" was that Plaintiff should be excluded from squatting due to her knee problems. (R. 357.) Aside from her own testimony, Plaintiff identifies no evidence inconsistent with Dr. Bunch's findings and opinions.
The ALJ's discussion of Plaintiff's carpal tunnel syndrome does contain errors, though. After summarizing Dr. Bunch's clinical findings regarding Plaintiff's carpal tunnel syndrome, the ALJ stated that Plaintiff had neither "complained to any treating physician regarding carpal tunnel syndrome" nor "sought any treatment options" for her carpal tunnel syndrome. (R. 27.) The ALJ also stated that Plaintiff did not wear wrist braces. However, the record contains treatment notes from the Jewett Orthopaedic Clinic indicating Plaintiff sought treatment for carpal tunnel syndrome in November and December 2007 and received an injection into each wrist. (R. 348-42.) Treatment notes from September 2007 also indicate Plaintiff underwent a nerve conduction study regarding her hands, wrists, and upper extremities. (R. 343-44.) Furthermore, in the function report submitted with her application, Plaintiff stated she was directed to wear a wrist brace by a doctor and did so at nighttime "when needed." (R. 280.)
The ALJ's failure to discuss these medical treatment records and function report is not sufficient to undermine the manipulative limitations included in Plaintiff's RFC. The orthopedic clinic notes indicate that the injection into Plaintiff's right hand "helped her condition" and that she returned for a similar procedure on her left hand. (R. 338.) The notes also indicate normal range of motion in both wrists and "essentially normal" grip power. (R. 338, 341.) Lastly, there are no notes following the second injection, which appears to have occurred on December 4, 2007 (R. 338). The orthopedic clinic notes are neither materially inconsistent with Dr. Bunch's findings and opinions, nor with the ALJ's finding that Plaintiff can only frequently handle and finger. Thus, the ALJ did not err by failing to discuss them. See SSR 96-8p, 1996 WL 374184, at *7.
The ALJ also adequately explained why she did not fully credit Plaintiff's statements about the severity of her symptoms. First, the ALJ found that Plaintiff's severe impairments could reasonably be expected to cause Plaintiff's alleged symptoms. (R. 24.) Next, the ALJ summarized, reviewed, and analyzed the objective medical evidence in the record and explained how this evidence was and was not consistent with Plaintiff's allegations about the severity of her symptoms. (R. 25-28.) The ALJ's explication of this evidence identified inconsistencies with Plaintiff's statements about her symptoms. For example, Dr. Bunch noted Plaintiff had a normal range of motion of all joints tested along her axial spine, had full muscle strength, was able to walk on heels and toes, had a normal gait, and did not need an assistive device to ambulate (R. 26, 356); there was no diagnosis of gout in the medical records in contrast with Plaintiff's testimony (R. 27-28, 54); and there were no medical findings of edema in contrast with Plaintiff's testimony (R. 27, 57-58). Such inconsistencies may properly inform an ALJ's credibility finding. See SSR 96-7p, 1996 WL 374186, at *5 ("One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record.").
The ALJ provided additional reasons for her decision not to credit fully Plaintiff's statements about her symptoms. The ALJ noted Plaintiff's use of over-the-counter pain relief medication and "scant" medical treatment records indicated Plaintiff did not suffer from pain as severe as she described. (R. 28.) The ALJ also noted Plaintiff's ability to travel from Florida to North Carolina for personal reasons undermined her statements about the severity of her symptoms. (Id.) These are considered acceptable reasons for discounting a claimant's credibility pursuant to SSR 96-7p, 1996 WL 374186, at *3, 7. Furthermore, substantial evidence supports the ALJ's findings in this regard, and Plaintiff cites nothing that undermines this conclusion (Pl.'s Brief Supp. Mot. J. Pldgs. at 27-28).
Plaintiff contends a note from Dr. Elizabeth Woods stating that Plaintiff is "fully credible" undermines the ALJ's credibility finding. (Pl.'s Brief Supp. Mot. J. Pldgs at 27 (citing R. 112).) However, Dr. Woods explained in narrative form in that same document how she assessed Plaintiff's credibility and RFC. (R. 112-13, 115-16.) While these narrative explanations may be evidence of Dr. Woods' evaluation of Plaintiff's credibility, they do not constitute, as Plaintiff contends, an agency determination that Plaintiff was "fully credible." See Yurek v. Astrue, No. 5:08-CV-500-FL, 2009 WL 2848859, at *6 n.4 (E.D.N.C. Sept. 2, 2009) (noting that, in the context of a mental RFC assessment form, the narrative explanation constitutes the opinion of the medical consultant completing the form rather than the worksheet entries). Furthermore, Plaintiff's position is undermined by Dr. Woods' further statement that "the severity of [Plaintiff's] allegations [is] not fully supported in evidence" (R. 115) and by the ALJ's assessment of a more limited RFC than that assessed by Dr. Woods (R. 28).
Although not raised by Plaintiff on review (Pl.'s Brief Supp. Mot. J. Pldgs. at 27-28), the ALJ's discussion of Plaintiff's carpal tunnel syndrome treatment warrants closer review as to the credibility analysis. As noted above, the ALJ incorrectly stated that Plaintiff never complained to a treating physician about her carpal tunnel syndrome, never sought treatment for carpal tunnel syndrome, and did not wear wrist braces.
First, the treatment notes from the Jewett Orthopaedic Clinic (R. 338-42) are not materially inconsistent with the manipulative limitations in Plaintiff's RFC. These notes also do not indicate the treating physician recommended that Plaintiff wear wrist braces. Moreover, the record does not indicate—and Plaintiff does not allege otherwise (Pl.'s Brief Supp. Mot. J. Pldgs. at 3)—that Plaintiff sought treatment regarding her carpal tunnel syndrome after her second visit to the orthopedic clinic in December 2007.
Second, Dr. Bunch observed normal dexterity as to Plaintiff's ability to handle and finger.
Third, the ALJ did not fully discredit Plaintiff's subjective statements. Indeed, the ALJ rejected opinions from the Commissioner's medical consultants at the initial and reconsideration levels regarding Plaintiff's lifting ability based, in part, on Plaintiff's own testimony. (R. 28.)
Overall, the ALJ explained what evidence she relied upon when assessing Plaintiff's RFC, how she used that evidence in assessing Plaintiff's RFC, and why she relied upon that evidence. In doing so, she explained why she did not fully credit Plaintiff's subjective statements about the severity of her symptoms. While the ALJ made certain erroneous findings about Plaintiff's carpal tunnel syndrome treatment history, these errors, when considered alongside the other issues identified by the ALJ in her credibility analysis (most notably the inconsistencies with the objective medical evidence and Plaintiff's minimal treatment records), do not so undermine the ALJ's finding regarding Plaintiff's credibility as to warrant remand. See Sizemore v. Berryhill, 878 F.3d 72, 82-83 (4th Cir. 2017) (upholding an ALJ's credibility assessment despite "minor flaws").
Pursuant to Social Security regulations, a claimant is found disabled only if she is unable to perform past relevant work and is further unable to engage in other, substantial gainful employment. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant who can perform past relevant work is not disabled under Social Security regulations. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) ("If you can still do your past relevant work, we will find that you are not disabled."); Heckler v. Campbell, 461 U.S. 458, 460 (1983) ("If a claimant can pursue his former occupation, he is not entitled to disability benefits.").
Where a claimant has made a prima facie showing that she is unable to return to her former employment due to a medically determinable impairment, the burden shifts to the Commissioner at step five of the sequential disability evaluation process to show "that the claimant, considering [her] age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternate job and that this type of job exists in the national economy." Coffman, 829 F.2d at 518. To aid in the step five analysis, the Commissioner has developed a set of rules that "reflect the analysis of the various vocational factors (i.e., age, education, and work experience) in combination with the individual's residual functional capacity . . . in evaluating the individual's ability to engage in substantial gainful activity in other than his or her vocationally relevant past work." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a). The Medical-Vocational Guidelines, commonly known as the Grids, are a shorthand method of evaluating vocational factors in a particular case that eliminates the need for testimony from a Vocational Expert. See Coffman, 829 F.2d at 518 (noting that the Grids "provide an ALJ with administrative notice of classes of jobs available in the national economy" for claimants with only exertional limitations). "Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a).
Here, the ALJ found Plaintiff retained the capacity to perform light work with certain limitations. (R. 23.) As discussed above, substantial evidence supports this RFC. The VE testified that a person with Plaintiff's RFC could perform Plaintiff's past work as a medical assistant as that job is generally performed. (R. 62-64.) That Plaintiff previously worked as a medical assistant at the medium exertional level is of no moment because, according to the uncontroverted testimony of the VE (R. 62-63), that job is generally performed at the light exertional level and is consistent with Plaintiff's RFC. See Pass, 65 F.3d at 1207 ("[A] claimant will be found `not disabled' if he is capable of performing his past relevant work either as he performed it in the past or as it is generally required by employers in the national economy.") (citing SSR 82-61, 1982 WL 31387 (Jan. 1, 1982), and Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir. 1990)). Thus, the ALJ's finding that Plaintiff could perform past relevant work is supported by substantial evidence, namely the RFC and the VE's testimony as to the general performance of the medical assistant occupation in the national economy. Accordingly, the ALJ did not err by failing to apply Grid Rule 202.06.
Plaintiff contends the decision of the North Carolina Department of Health and Human Services to award her Medicaid based on disability should have been afforded substantial weight pursuant to Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012). (Pl.'s Brief Supp. Mot. J. Pldgs. at 26-27.)
The state agency awarded Plaintiff Medicaid based on application of the Social Security Administration's Grid Rule 202.06. (R. 323.) As the ALJ explained, she did not assign substantial weight to the state Medicaid decision because it relied on Grid Rule 202.06. (R. 28.) As set forth above, substantial evidence supports the ALJ's determination that Plaintiff could perform past relevant work, thus obviating application of Grid Rule 202.06.
"This is not a case where the ALJ failed to mention or to explain the consideration given another agency's disability decision." Johnson v. Colvin, No. 5:13-CV-509-FL, 2014 WL 4636991, at *8 (E.D.N.C. Sept. 16, 2014). Indeed, the ALJ explicitly referenced and explained why she did not assign substantial weight to the state agency decision. And the reasoning employed by the ALJ is based on a correct statement and application of Social Security regulations.
The core outcome-related difference between the state Medicaid decision and the ALJ's decision is that the state agency adjudicator found Plaintiff had the RFC to occasionally handle and finger (R. 323) while the ALJ found Plaintiff retained the capacity to frequently handle and finger (R. 23). See (R. 67-68) (testimony of VE stating that limitation to occasional handling and fingering would eliminate Plaintiff's ability to perform light work). However, Plaintiff does not identify any evidence before the state agency that was not presented to the ALJ. (Pl.'s Brief Supp. Mot. J. Pldgs. at 26-27.) Having concluded that substantial evidence supports the ALJ's RFC assessment, this appears to be a situation where different factfinders reached slightly different conclusions based on the same evidence. That is not a sufficient basis to disturb the Commissioner's decision. See Craig, 76 F.3d at 589 ("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)." (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987))).
The ALJ posed several hypothetical questions to the VE about someone with Plaintiff's past relevant work experience and various exertional and nonexertional work limitations. (R. 62-65, 68-70.) Counsel for Plaintiff cross-examined the VE and posed follow-up hypothetical questions with different exertional and nonexertional limitations. (R. 66-68.) Plaintiff contends the hypothetical questions the ALJ put to the VE did not "accurately set forth" all of Plaintiff's limitations. (Pl.'s Brief Supp. Mot. J. Pldgs. at 28-29.)
This appears merely to be a restatement of Plaintiff's objection to the ALJ's assessment of Plaintiff's RFC. Having concluded that substantial evidence supports the ALJ's RFC assessment, the ALJ did not err by posing hypothetical questions to the VE based on this RFC. See Koonce v. Apfel, 166 F.3d 1209, 1999 WL 7864, at *5 (4th Cir. 1999) (per curiam) (unpublished table decision) ("The ALJ . . . has great latitude in posing hypothetical questions and is free to accept or reject suggested restrictions so long as there is substantial evidence to support the ultimate question." (citing Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1989))). Moreover, Plaintiff's own questioning of the VE cured any insufficiency associated with the questions put to the VE by the ALJ. Thus, the ALJ's hypothetical questions to the VE do not constitute error.
Lastly, Plaintiff contends the ALJ erred by requiring her to show inability to work "everyday of her existence." (Pl.'s Brief Supp. Mot. J. Pldgs. at 30) (emphasis omitted). This appears to be based on the Fourth Circuit's holding in Radford v. Colvin, 734 F.3d 288, 292-94 (4th Cir. 2013), that a claimant's disabling symptoms need not be present simultaneously or constantly for that person to be disabled under the Social Security Act. However, Plaintiff cites no specific evidence in the record tending to show that the ALJ improperly imposed such a burden on her. (Pl.'s Brief Supp. Mot. J. Pldgs. at 30.) Due to the conclusory and unsupported nature of this argument, the undersigned declines to consider it further.
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #14] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE #22] be GRANTED, and the Commissioner's decision be upheld.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 6, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
