North Carolina Cases August 10, 2022: Cratch v. Kijakazi

Case Description

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MEMORANDUM AND RECOMMENDATION

Brian S. Meyers, United States Magistrate Judge

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-15, -17] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Lisa Whitley Cratch (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions. [DE-16, -18]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings [DE-15] be denied, Defendant's Motion for Judgment on the Pleadings [DE-17] be allowed, and the final decision of the Commissioner be upheld.

I. STATEMENT OF THE CASE

Plaintiff protectively filed an application for a period of disability and DIB on February 13, 2020, alleging disability beginning December 19, 2019. Transcript of Proceedings (“Tr.”) 72, 185-91.

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Her claim was denied initially. Tr. 72-86. Plaintiff filed a request for reconsideration (Tr. 120), and was denied upon reconsideration on June 24, 2020 (Tr. 87-103, 121-29). On July 1, 2020, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 130-31. A hearing before the ALJ was held on December 2, 2020, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 44-71. On January 14, 2021, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 24-43.

On February 4, 2021, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 181-84. On April 2, 2021, the Appeals Council denied Plaintiff's request for review. Tr. 1-7. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq. , 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). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze , 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood , 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws , 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting

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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 v. Chater , 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds , 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers , 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler , 715 F.2d 148, 150 (4th Cir. 1983).

III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.

Albright v. Comm'r of the Soc. Sec. Admin. , 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater , 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with

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the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).

IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 39. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since December 19, 2019, the alleged onset date. Tr. 29.

Next, at step two, the ALJ determined Plaintiff had severe impairments of scoliosis and degenerative disc disease lumber spine. Tr. 29. The ALJ also found Plaintiff had non-severe impairments of: mild obesity; tachycardia; menorrhagia; dysmenorrhea; hemorrhoids; constipation; sinusitis; vitamin B12 deficiency; allergies; insomnia; chronic kidney disease; Henoch-Schonlein purpura; moles; leg cramps; perianal fistula; neck strain; upper respiratory infection; influenza; bronchitis; headaches; allergies; otitis media; urinary retention; overactive bladder; nocturia; hematuria; urinary tract infection; depression; and anxiety. Tr. 29-30. However, at step three, the ALJ concluded these impairments, both physical and mental, 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. Tr. 31.

Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental

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impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing oneself. Tr. 30-31.

Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:

she can stand, walk, and sit 6 hours each in an 8 hour workday; lift and carry 20 pounds occasionally and 10 pounds frequently and can push and pull in accordance with those lifting and carrying limitations; occasionally climb; occasionally balance as that term is defined in the Dictionary of Occupational Titles ; occasionally stoop, kneel, crouch, crawl; must have the flexibility to alternate between sitting and standing every thirty minutes.

Tr. 32. In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 33.

At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work as actually or generally performed as: a nurse, licensed practical; dental assistant; or telecommunicator/dispatcher. Tr. 37. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of

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making an adjustment to other work that exists in significant numbers in the national economy. Tr. 37.

V. OVERVIEW OF PLAINTIFF'S CONTENTIONS

In this case, Plaintiff alleges the ALJ erred by: (1) finding Plaintiff had the RFC to perform light work; and (2) finding Plaintiff's statements were not consistent with the medical evidence. Pl.'s Mem. [DE-16] at 3. Both are discussed below.

VI. DISCUSSION

A. RFC assessment that Plaintiff can perform “light work”

Plaintiff contends that the ALJ erred by finding that Plaintiff had the RFC to perform light work. Pl.'s Mem. [DE-16] at 3, 7. Specifically, at issue is whether the ALJ's RFC determination is supported by substantial evidence. Id. at 7-10. Plaintiff argues that it is not, as the ALJ fails to assess relevant functions, fails to explain how the evidence supports his RFC conclusions, and fails to consider the effects of Plaintiff's medications on her ability to work. Id. at 8-10. The undersigned disagrees.

“A Social Security claimant's RFC represents ‘the most [he] can still do despite [his] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin. , 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). In assessing an individual's RFC, an ALJ considers that person's “ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). Further, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul , 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin , 826 F.3d 176, 178 (4th Cir. 2016)).

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“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill , 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “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 , 826 F.3d at 189 (quoting Mascio v. Colvin , 780 F.3d 632, 636 (4th Cir. 2015)). Indeed, “the ALJ's logical explanation is just as important as the other two [components] . . . and our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas , 916 F.3d at 311 (citing Woods v. Berryhill , 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r of Soc. Sec. , 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio , 780 F.3d at 637.

Additionally, “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” McNeill v. Saul , No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio , 780 F.3d at 636). And while there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[,]” courts have found remand warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status ....” Dowling , 986 F.3d at 388-89 (remanding case where the ALJ failed to evaluate the plaintiff's ability to sit when it was a contested function critical to

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determining the plaintiff's disability status, and stating that the ALJ should have included “an analysis [of plaintiff's ability to sit] that was separate from the ALJ's appraisal of [the plaintiff's] ability to perform other functions, and [this analysis] should have been accompanied by ‘a narrative discussion describing' the evidence supporting it”).

Here, the ALJ found that Plaintiff had the following RFC:

After careful consideration of the entire record, the undersigned finds that [Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can stand, walk, and sit 6 hours each in an 8 hour workday; lift and carry 20 pounds occasionally and 10 pounds frequently and can push and pull in accordance with those lifting and carrying limitations; occasionally climb; occasionally balance as that term in defined in the Dictionary of Occupational Titles ; occasionally stoop, kneel, crouch, crawl; must have the flexibility to alternate between sitting and standing every thirty minutes.

Tr. 32.

In her memorandum, Plaintiff appears to assert three separate arguments relating to the ALJ's RFC evaluation. First, Plaintiff argues that, overall, “[t]he ALJ failed to explain how the evidence supports the RFC determination that [Plaintiff] can perform light work on a regular and continuing basis.” Pl.'s Mem. [DE-16] at 10. Second, Plaintiff argues that “the ALJ failed to assess [Plaintiff's] physical capacity to perform relevant functions despite contradictory evidence in the record.” Id. at 8. Finally, Plaintiff argues that “[t]he ALJ also did not consider the effects of medication on [her] ability to perform work activity.” Id. at 9.

Contrary to Plaintiff's assertions, the ALJ here assesses Plaintiff's ability to perform all relevant functions and includes a narrative discussion of his RFC findings. In assessing Plaintiff's RFC, the ALJ first discusses Plaintiff's own testimony relating to her limitations and underlying impairments. For example, the ALJ discusses Plaintiff's testimony “that she is disabled because she is unable to do anything due to her back pain.” Tr. 33. The ALJ also discusses Plaintiff's

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testimony that she is “unable to drive or ride in a car for longer than 15 minutes because of pain[,] . . . unable to clean her home or cook meals, and she relies on her husband, mother, and children to perform all household tasks.” Tr. 33. However, the ALJ finds that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ” Tr. 33.

The ALJ also considers and discusses the statements of Plaintiff's husband Stephen Cratch. Mr. Cratch stated that Plaintiff “cannot sit, stand, bend, or walk very far[,] . . . [and has] poor sleep due to pain.” Tr. 36. And, that Plaintiff “cannot cook, clean, do laundry, or grocery shop and that she needs help with personal care.” Tr. 36.

Following his review of the relevant testimony, the ALJ next discusses objective and other medical evidence relating to Plaintiff's limitations and underlying impairments. For example, the ALJ notes that “[c]onsistent with [Plaintiff's] testimony, treatment records document musculoskeletal complaints that caused pain.” Tr. 33. The ALJ summarizes Plaintiff's treatment during November and December of 2019, including that both x-ray and MRI studies of Plaintiff's spine were performed. Tr. 33. The ALJ states that on December 20, 2019, Plaintiff “underwent L4-5, L5-S1 laminotomy for some stenosing features to address several years of back and bilateral leg pains. However, following surgery, [Plaintiff] reported no relief (Exhibits 4F, 11F).” Tr. 33. It is also noted in the ALJ's written decision that repeat MRI imaging was taken in January 2020, which “demonstrated some reduction in the stenosing elements[,] . . . postoperative findings with fluid collections dorsal to the laminectomies, small residual left paracentral disc protrusion

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contacting the dural sac and left SI root at ¶ 5-S1 but no definite residual or recurrent disc protrusion at ¶ 4-5 (Exhibit 2F/6-7).” Tr. 33.

The ALJ then discusses evidence relating to Plaintiff's post-operative treatment. The ALJ notes that in February 2020, Plaintiff “showed 1+ reflexes bilaterally in the knees and ankles with no obvious weakness on exam nor any tension signs[,] . . . [and] she was encourage [sic] to use a TENS unit and referred to a pain clinic (Exhibit 4F).” Tr. 34. Pain management records note that Plaintiff had a decreased range of motion in the lumbar spine and a positive straight leg raising test. Tr. 34. However, Plaintiff reported being in no acute distress and reported that she was able to perform activities of daily living independently and “able to wash dishes, wash clothes, care for the household, and cook meals.” Tr. 34. The ALJ notes that other medical records indicate that Plaintiff reported being unable to perform daily activities and that she suffered at least two falls from her “legs giving out,” but that her medications were at least somewhat effective. Tr. 34. Lastly, the ALJ discusses the findings of a November 2020 MRI and that Plaintiff “underwent transforaminal steroid injection on November 6, 2020 (Exhibit 16F).” Tr. 34. The ALJ notes that as of November 2020, additional surgery was not recommended for Plaintiff's spinal impairment, and it was recommended that Plaintiff discontinue injections because she reported that the injections were not effective. Tr. 34. A dorsal column stimulator was discussed with Plaintiff as a “reasonable treatment possibility,” yet Plaintiff “did not want to consider a trial stimulator at that time (Exhibit 17F).” Tr. 34.

Based on this in-depth review of the medical and other evidence, the ALJ concludes that “[i]n terms of her alleged physical conditions, [Plaintiff's] allegations of disability are not supported by the record in its entirety.” Tr. 33. The ALJ explains that:

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The above evidence supports the physical RFC assessment herein. The undersigned finds [Plaintiff's] lumbar DDD and scoliosis reasonably resuls [sic] in the limitation to light exertion and limited postural maneuvers adopted herein. [Plaintiff] has also alleged a need to shift positions frequently, and the undersigned has accordingly included a provision requiring [Plaintiff] be given the option to change positions every 30 minutes. To the extent that [Plaintiff] testified that she is more limited, that testimony is not consistent with the medical and other evidence of record. The undersigned is aware that [Plaintiff] has undergone surgery to her lumbar spine and is followed by pain management. However, her recent treatment has been routine and conservative in the form of injections, TENS unit, and prescription medications. She is not a candidate for additional surgery, and the treatment that has been recommended - a spinal cord stimulator - she has inexplicably declined. While imaging showed mild central disc protrusions, and some of the signs of listing 1.04 have been present such as limited range of motion and positive straight leg raising test, treatment records show no significant stenosing features or ongoing significant mechanical impaction of the nerve or other significant findings to explain her continued pain complaints or reports of lack of improvement with treatment. Additionally, despite allegations of significant daily pain, [Plaintiff] ambulated without use of an assistive device, and no physician prescribed one for her to use. Further, treatment notes indicate that pain medications do help [Plaintiff's] pain and increase her functioning. Additionally, there is no support in the medical evidence of record for [Plaintiff's] testimony concerning ongoing tachycardia and mental health symptoms.

As has been found above, [Plaintiff] does have severe impairments that limit her ability to perform work related functions. However, the issue here is not whether [Plaintiff] can be restored to full health, or even rendered free from pain. Rather, an individual's residual functional capacity (RFC) is what the individual can still do despite his or her impairments. Viewed in this light, to the extent that [Plaintiff] alleges limitations greater than those set forth in the current residual function capacity, those claims are not supported by the evidence. To be sure [Plaintiff] has severe impairments that limit her, but they are not so severe as to preclude all work, which is what this younger individual must establish.

Tr. 34-35.

Finally, the ALJ discusses medical opinions addressing Plaintiff's abilities and underlying impairments. For example, the ALJ discusses the February 12, 2020 opinion of Plaintiff's treating orthopedist that he was unsure if or when Plaintiff would be able to return to work. Tr. 36. However, the ALJ finds the opinion to be “unpersuasive,” as it was intended to relate “only to that

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period of time immediately after surgery and was not intended to describe [Plaintiff's] permanent and ongoing condition.” Tr. 36. The ALJ finds the opinions of state agency consultants Ellen Huffman-Zechman, M.D., Margaret Barham, Ph.D., Frank Virgili, M.D., and Jennifer Fulmer, Ph.D. to be “generally persuasive.” Tr. 36 (citing Tr. 73-102). These providers opine “that [Plaintiff] had no severe mental impairments and that she was capable of light work with frequent performance of the postural functions, except for occasional stooping ....” Tr. 36. The ALJ states that these “experts offered support for their findings, citing objective findings and clinical signs from the records as constituted at the time their findings were made.” Tr. 36. However, the ALJ notes that he “has included greater postural limitations ” than the state agency consultants “to better account for [Plaintiff's] spinal impairments.” Tr. 36 (emphasis added).

As detailed above, the ALJ thoroughly discusses the medical evidence of record in formulating Plaintiff's RFC. The ALJ acknowledges Plaintiff's complaints of disabling pain due to her spinal impairments. However, the ALJ discusses treatment records in which Plaintiff noted that she was in no acute distress, that she was able to perform activities of daily living and some household chores, and that her medications were, at times, effective. The ALJ notes that following Plaintiff's surgery, “treatment records show no significant stenosing features or ongoing significant mechanical impaction of the nerve or other significant findings to explain [Plaintiff's] continued pain complaints or reports of lack of improvement with treatment.” Tr. 35. The ALJ also notes that, as a whole, Plaintiff has undergone routine and conservative treatment following her surgery. Tr. 34. And, that Plaintiff has “inexplicably” declined the use of a spinal cord stimulator which was recommended by her physician. Tr. 34-35. The ALJ's RFC assessment is also consistent with the opinions of each state agency medical consultant. In fact, the ALJ's RFC assessment finds

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Plaintiff to be more limited than each of the consultants opine. Notably, Plaintiff identifies no medical opinion finding her to be more limited than the current RFC assessment.

While Plaintiff may ultimately disagree with the RFC, the written decision reveals that the ALJ properly considered all potentially relevant functions and that the ALJ's decision is supported by substantial evidence. In particular, and contrary to Plaintiff's assertion, the ALJ includes a narrative discussion of his RFC findings. The ALJ also properly evaluates all of Plaintiff's relevant functions and includes limitations supported by the evidence of record. To the extent Plaintiff argues that additional limitations should be included in the RFC, Plaintiff fails to cite to any specific evidence supporting that any additional limitations are warranted. Indeed, aside from her subjective statements, Plaintiff does not cite to any specific evidence in support of her argument that the ALJ erred in his evaluation of Plaintiff's RFC.

Finally, to the extent Plaintiff also argues the ALJ did not consider the effect of Plaintiff's medication on her ability to work, the undersigned finds this argument unpersuasive. As discussed above, the ALJ properly considered the fact that Plaintiff took medications to treat her pain. However, Plaintiff once again fails to cite to any evidence, aside from her personal statements, that she is limited by the effects of her medication or that she suffers from adverse effects of her medication. And, to the contrary, Plaintiff testified at her hearing that she suffers from “very little side effects” as a result of her medications. Tr. 57.

In sum, “reading the ALJ's decision as a whole, the ALJ built the requisite, accurate and logical bridge from the evidence in the record to his finding as to [P]laintiff's residual functional capacity.” Emanuel v. Saul , No. 7:19-CV-202-FL, 2021 WL 1217309, at *4 (E.D. N.C. Mar. 31, 2021); see also Arakas v. Comm'r, Soc. Sec. Admin. , 983 F.3d 83, 95 (4th Cir. 2020). The court is

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not “left to guess about how the ALJ arrived at his conclusions [about Plaintiff's] ability to perform relevant functions ....” Mascio , 780 F.3d at 637; see also Dennis v. Berryhill , 362 F.Supp.3d 303, 310 (W.D. N.C. 2019). Further, the ALJ's RFC assessment is supported by substantial evidence in the record. Accordingly, the undersigned recommends that remand is not required for this issue.

B. Evaluation of Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms

Plaintiff contends that the ALJ erred by finding that Plaintiff's statements were not consistent with the medical evidence. Pl.'s Mem. [DE-16] at 3, 10. Plaintiff argues that contrary to the ALJ's findings, her statements are consistent with the evidence, and establish that she suffered from greater limitations than the ALJ included in the RFC. Id. at 10-12. The undersigned disagrees.

The regulations provide “a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill , 858 F.3d 858, 867 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). As explained by the Fourth Circuit:

First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms. Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.

The second determination requires the ALJ to assess the credibility of the claimant's statements about symptoms and their functional effects.

Id. (citations omitted).

In assessing a claimant's credibility, an ALJ is not required to accept a claimant's statements at face value. Howley v. Colvin , No. 5:12-CV-260-FL, 2013 WL 6184954, at *15 (E.D. N.C. Nov. 14, 2013). Generally, “[a]n ALJ may find a claimant's statements regarding the

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severity of her symptoms less credible if these statements are inconsistent with the medical evidence in the record and if the ALJ explains how she weighed all of the relevant evidence, including the claimant's statements.” Brooks v. Berryhill , No. 2:16-CV-80-FL(2), 2018 WL 944382, at *4 (E.D. N.C. Jan. 23, 2018) (citing S.S.R. 96-7p, 1996 WL 374186, at *2 (July 2, 1996); Mascio v. Colvin , 780 F.3d at 636-37). However, the ALJ may not discredit a claimant's “statements about the intensity and persistence of [] pain or other symptoms or about the effect [] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [the] statements.” Lewis , 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)) (emphasis added). In discrediting a claimant's testimony, an ALJ must be sure to articulate what specific facts discredited the claimant. Lewis , 858 F.3d at 866 (citations omitted); Cobb v. Colvin , 4 F.Supp.3d 786, 790 (E.D. N.C. 2014).

Here, the ALJ summarized Plaintiff's testimony in the RFC as follows:

[Plaintiff] premises her claim for disability on a back condition. She testified that she is disabled because she is unable to do anything due to her back pain. She is unable to drive or ride in a car for longer than 15 minutes because of pain. She is unable to clean her home or cook meals, and she relies on her husband, mother, and children to perform all household tasks. She lives in a home with her husband and two teenage children. She described a history of back surgery. However, she reported that she continues to have severe pain that is not helped by medications. She has also had injections that provided little relief. She described nerve pain going from her hip to her toes. Her legs “give way,” and she has fallen. Her sleep is poor due to pain. According to [Plaintiff], she is able to lift five pounds and stand ten minutes before having pain. She must change positions every five to ten minutes. She requires help with daily activities, such as dressing (Hearing Testimony).

Tr. 33.

After concluding that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[,]” the ALJ determines that Plaintiff's “statements

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concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” Tr. 33. The ALJ states that “[i]n terms of her alleged physical conditions, [Plaintiff's] allegations of disability are not supported by the record in its entirety.” Tr. 33. After providing an in-depth summary of the objective and other medical evidence of record, the ALJ then further explains his decision to discredit Plaintiff's testimony as follows:

To the extent that [Plaintiff] testified that she is more limited, the testimony is not consistent with the medical and other evidence of record. The undersigned is aware that [Plaintiff] has undergone surgery to her lumbar spine and is followed by pain management. However, her recent treatment has been routine and conservative in the form of injections, TENS unit, and prescription medications. She is not a candidate for additional surgery, and the treatment that has been recommended - a spinal cord stimulator - she has inexplicably declined. While imaging showed mild central disc protrusions, and some of the signs of listing 1.04 have been present such as limited range of motion and positive straight leg raising test, treatment records show no significant stenosing features or ongoing significant mechanical impaction of the nerve or other significant findings to explain her continued pain complaints or reports of lack of improvement with treatment. Additionally, despite allegations of significant daily pain, [Plaintiff] ambulated without use of an assistive device, and no physician prescribed one for her to use. Further treatment notes indicate that pain medications do help [Plaintiff's] pain and increase her functioning. Additionally, there is no support in the medical evidence of record for [Plaintiff's] testimony concerning ongoing tachycardia and mental health symptoms.

Tr. 34-35.

Contrary to Plaintiff's assertion, the ALJ here did not err in finding Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms not entirely consistent with the medical evidence and other evidence in record. As evinced above, in finding Plaintiff's testimony not fully credible the ALJ considers several factors relevant to Plaintiff's symptoms and evaluates Plaintiff's statements in light of the entire record. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii). For example, the ALJ considers Plaintiff's daily activities, including

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that she was able to ambulate without the use of an assistive device despite her alleged significant pain. The ALJ also considers treatment records indicating that Plaintiff's medications help reduce Plaintiff's pain and increase her functioning. The ALJ discusses that Plaintiff's recent treatment has been routine and conservative, and that Plaintiff has “inexplicably declined” additional treatment recommended by providers. Tr. 35. And, that treatment records and objective findings do not fully support Plaintiff's continued reports of disabling pain and lack of improvement despite treatment.

Furthermore, Plaintiff fails to provide adequate support for her contention that the ALJ erred in his evaluation of Plaintiff's subjective complaints, because her “statements are consistent with the medical evidence.” Pl.'s Mem. [DE-16] at 12. In support of this contention, Plaintiff cites only to a single one-page treatment record from a “telephone encounter” with Scot Eric Reeg, M.D. Id. (citing Tr. 885). Dr. Reeg's record notes that Plaintiff “had a ruptured disc that was removed with some visible inflammation within the nerve brought on by the stenosing elements.” Tr. 885. However, the ALJ's written decision reveals that the ALJ properly considers Plaintiff's 2019 surgery in evaluating Plaintiff's subjective statements, yet still finds that Plaintiff's statements are inconsistent with the record as a whole. Tr. 34 (“The undersigned is aware that [Plaintiff] has undergone surgery to her lumbar spine ....”). It is also notable that Dr. Reeg's record itself appears to indicate that Plaintiff's spinal impairment may not be that severe. The treatment record states that after surgery, a “follow-up MRI show[ed] no significant stenosing features or ongoing significant mechanical impaction of the nerve.” Tr. 885; see also Tr. 35 (“[T]reatment records show no significant stenosing features or ongoing significant mechanical impaction of the nerve or other significant findings to explain her continued pain ....”). Aside

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from this one-page treatment record, Plaintiff cites to no other evidence to support her contention that her subjective complaints were fully supported by the medical evidence, contrary to the ALJ's determination.

In sum, the “ALJ [here] ha[d] full discretion to weigh [Plaintiff's] subjective statement[s] with the objective medical evidence and other matters of record.” Murphy v. Saul , No. 5:19-CV-00010-FL, 2020 WL 2845275, at *6 (E.D. N.C. Jan. 9, 2020) (citing Craig , 76 F.3d at 595). In weighing Plaintiff's statements, the ALJ determined that Plaintiff's subjective statements were inconsistent with the medical and other evidence of record. Because the ALJ adequately explained his conclusion, articulating specific facts in support of the conclusion, the ALJ did not err by determining that Plaintiff's testimony concerning her symptoms and their effects was not fully credible. See Lewis , 858 F.3d at 866; Brooks , 2018 WL 944382, at *4. Accordingly, the undersigned recommends that remand is not required for this issue.

VII. CONCLUSION

For the reasons stated above, IT IS RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-15] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, and the final decision of the Commissioner 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 August 24, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct 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;

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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. Any response to objections shall be filed within 14 days of the filing of the objections.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will 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).