South Carolina Cases November 15, 2021: Joni Son v. Kijakazi

Case Description

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REPORT AND RECOMMENDATION

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

Plaintiff Joni Son (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends the Court affirm the Commissioner's decision.

RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS

Plaintiff initially filed applications for DIB and SSI on August 8, 2017, alleging a disability onset date of April 14, 2017. (R. at 20.) Plaintiff was 37 years old on her alleged disability onset date. (R. at 32.) Plaintiff claimed disability due, inter alia , bipolar, “left arm issues, ” borderline

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diabetes, vertigo, obesity, and depression/anxiety. (R. at 287.) Plaintiff has a high school education and past relevant work as a fast food worker. (R. at 32.) Her applications were both denied initially and on reconsideration. (R. at 20.) After a telephone hearing before an Administrative Law Judge (“ALJ”) on July 31, 2020, the ALJ issued a decision on September 21, 2020, in which the ALJ found that Plaintiff was not disabled. (R. at 20-34.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.

In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.

(2) The claimant has not engaged in substantial gainful activity since April 14, 2017, the alleged onset date (20 CFR 404.1571 et seq. , and 416.971 et seq. ).

(3) The claimant has the following severe impairments: left arm dysfunction, obesity, affective disorder, and anxiety disorder (20 CFR 404.1520(c) and 416.920(c)). The claimant has the following non-severe impairments: urge incontinence and substance abuse. The claimant has the following impairments that are not medically determinable: borderline diabetes and vertigo.

(4) The claimant 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 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) over the course of an 8-hour workday, in 2-hour increments with normal and acceptable work breaks except the claimant can never climb ladders, ropes and scaffolds. She can occasionally climb ramps and stairs, kneel, crouch, and crawl. She can occasionally stoop to lift within the exertional level from the floor to the waist. She can frequently stoop to lift within the exertional level from waist height and above. She can frequently balance. Nondominant left overhead reaching can be performed frequently within the exertional level. She can occasionally

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be exposed to hazards associated with unprotected dangerous machinery or unprotected heights. She can concentrate, persist and maintain pace to understand, remember and carry out unskilled, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving the application of commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. She can deal with problems involving several concrete variables in or from standardized situations. She can adapt to occasional work place changes. Can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. She can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. She can respond appropriately to reasonable and customary supervision. She should not be openly exposed to controlled substances, including prescription medications (illustrative examples are work in a law enforcement evidence facility, forensic lab, pharmaceutical manufacturing plant, medical facility or pharmacy).

(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

(7) The claimant was born on March 14, 1980 and was 37 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

(8) The claimant has at least a high school education (20 CFR 404.1564 and 416.964).

(9) Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).

(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

(11) The claimant has not been under a disability, as defined in the Social Security Act, from April 14, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(R. at 20-34.)

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APPLICABLE LAW

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as 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 twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).

To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).

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The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker , 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater , 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin. , 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant , 699 F.2d at 191; Pass , 65 F.3d at 1203; Monroe v. Colvin , 826 F.3d 176, 180 (4th Cir. 2016).

The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin , 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill , 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin. , 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen , 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin. , 699 F.3d 337, 340 (4th Cir. 2012); Mascio , 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin. , 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).

“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling , 986 F.3d at 383 (citing Pearson v. Colvin , 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson , 810 F.3d at 207 (citing Hancock v. Astrue , 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence,

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make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996); Hancock , 667 F.3d at 472; Arakas , 983 F.3d at 95; Dowling , 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul , 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock , 667 F.3d at 472).

However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling , 986 F.3d at 383 (citing Lewis v. Berryhill , 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas , 983 F.3d at 99 (citing Lewis , 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas , 983 F.3d at 95 (quoting Monroe , 826 F.3d at 189).

DISCUSSION

Plaintiff asserts that the ALJ's decision is not supported by substantial evidence because the ALJ failed to properly evaluate the opinion of psychological consultative examiner, Ron O. Thompson, Ph.D. (Dkt. No. 11.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 12.)

Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned agrees that the ALJ thoroughly considered the evidence in the record to find that Plaintiff could perform sedentary work with certain limitations. The ALJ provided detailed reasons for his conclusion that Plaintiff is not disabled, and the undersigned finds the ALJ's decision is supported by substantial evidence. For these reasons, as discussed further below, the undersigned recommends the Court affirm the Commissioner's decision.

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A. Consideration of Opinion Evidence

Under the Social Security Administration (“SSA”) regulations, the ALJ must consider each medical opinion and prior administrative medical finding in the record. 20 C.F.R. §§ 404.1520c, 416.920c (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”). For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence and prior administrative medical findings. See Revisions to Rules Regarding the Evaluation of Medical Evidence , 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or prior administrative findings and need not give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions and prior administrative findings using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c).

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Supportability and consistency are the most important of the factors, and the ALJ must explicitly address how he considered these factors in evaluating each medical opinion and prior administrative finding. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. §§ 404.1520c(b)(2), 426.920c(b)(2). For supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are, ” the “more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Similarly, for consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical findings(s) is with evidence from other medical sources and nonmedical sources, ” the “more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).

Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis , 858 F.3d at 869 (quoting Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas , 983 F.3d at 98. Moreover, “an ALJ continues to have an obligation to include a narrative discussion describing how the evidence supports each conclusion.” Pearce v. Saul , No. CV 0:20-1623-PJG, 2020 WL 7585915, at *3 (D.S.C. Dec. 22, 2020) (internal quotations omitted); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“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).”).

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Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio , 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe , 826 F.3d at 189 (citation omitted).

B. Consultative Examiner's Opinion and the ALJ's Decision

The record shows that Dr. Thompson performed a one-time psychological consultative examination on February 14, 2018. (R. at 429-430.) In his report, under “Behavioral Observations, ” Dr. Thompson noted, inter alia , Plaintiff “maintains good eye contact and was accompanied by her husband who drove her to interview”; “personal hygiene is satisfactory”; “[a]mbulation is with a waddle and she was a bit slow to sit or rise from a chair”; “[p]sychomotor activity level remained within normal limits.” (R. at 429.) Under “Mental Status, ” Dr. Thompson noted,

Joni presents with moderate depression and moderate-to-severe anxiety. She describes her mood as “jittery.” Affect is congruent to mood with fair range and depth. She is alert, well-oriented, knew the president's name. Insight and judgment were intact and congruent to intellect which is estimated by way of tasks tapping abstraction to fall in the low average to average range of intelligence. Memory for recent and remote is intact as she remembers 3/3 unrelated items immediately and 2/3 unrelated items after 5 minutes of interference tasks. Stream of mental activity was goal-directed and relevant and she is able to spell world backwards correctly, recite the months of the year backward correctly and solve semi-difficult cash transaction albeit slowly. There was some anxiety short-circuiting and cognitive blocking due to neurovegetative symptoms of major depressive disorder and anxiety. Two similarities are interpreted correctly and two general abstractions are interpreted concretely. She does appear capable of managing benefits, however.

She denies any current SI, HI, or Pl. She states she has had problems with depression since she was 10 years old following the death of her father. As a youngster and a teenager, she states she was mostly a loner, although she did have friends. Examinee appears to be experiencing poor self esteem and self-confidence as she makes several deprecating statements about her abilities. Speech is coherent in a well-modulated voice. She reports receiving outpatient mental health treatment at the Newberry Mental Health Center in 2006 for depression but states that they pressed her to join a group which she did not want and did not follow-through with

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mental health treatment. She states that she has isolated herself and has problems with crowds, preferring to be alone or with her husband. She states that any changes in routine or new situations create a great deal of anxiety for her. She reports strong feelings of worthlessness and uselessness on a daily basis and crying spells every one or two days, particularly when she has thoughts of her father's death when she was youngster. She also does not like her current situation and wonders if she will ever be able to take care of herself or be well again. She did not appear in any acute psychiatric distress but clearly needs ongoing outpatient psychotherapy.

(R. at 429.)

Under “Psychosocial History, ” Dr. Thompson noted, inter alia , that Plaintiff “smokes one- half PPD and drinks 12 pack of beer per week” and she “did openly admit to a history of crack cocaine addiction but indicates that she has been clean and sober for 17 years.” (R. at 430.) Dr. Thompson noted under “Activities of Daily Living:”

The examinee states that she is a “neat freak” and on days that she is not staying in bed which she estimates for two or three days a week. She is cleaning and keeping busy in her household. She reports that she spends most of the time with her husband or herself and does not really have any friends. She states her husband is disabled and retired from the military. She does drive short distances, and shops at grocery store but prefers to take her husband with her. The examinee states that she will attend church, as there is a church at the lake where she lives that people attend in their cars like a drive-in movie and never have to get out of the cars.

(R. at 430.)

In the “Conclusion” section of the examination report, Dr. Thompson stated:

This 37 year-old was a good informant. She also states that she is concerned about her weight and is considering gastric bypass surgery but has made no efforts in that regard presently due to her hesitancy about impending surgery. She certainly is capable of managing benefits in her own best interest. She needs intensive psychotherapy and is a good candidate for cognitive behavior therapy with exposure techniques due to anxiety disorder which appears to be somewhat crippling for her and would give her difficulty maintaining pace and persistence in a typical work environment, where she would be expected to interact with coworkers. Her anxiety and inattentiveness also likely would be expected to intensify under the stresses of typical work place making it a danger to herself or others, in that she likely would not be able to perceive and avoid danger in a timely manner.

(R. at 430.)

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In his decision, the ALJ described Dr. Thompson's examination at various points in his decision:

At a consultative evaluation on February 14, 2018, the claimant went to a consultative evaluation. The examiner noted that she had a history of crack cocaine addiction, but also noted that she had maintained sobriety for the past 17 years (Exhibit 3F). . . .

At a consultative evaluation on February 14, 2018, the claimant stated that she was a “neat freak” and on days that she was not staying in bed, which she estimated was two or three days a week, she was cleaning and keeping busy in her household. She reported that she spent most of the time with her husband or herself and did not really have any friends. She stated her husband was disabled and retired from the military. She drove short distances, and shopped at the grocery store but preferred to take her husband with her. The claimant stated that she would attend church, as there was a church at the lake where she lived, that people attended in their cars like a drive-in movie and she never had to get out of her car (Exhibit 3F). . . .

On February 14, 2018, the claimant presented to a consultative psychological evaluation. Upon examination, she presented with moderate depression and moderate-to-severe anxiety. She described her mood as "jittery." Affect was congruent to mood with fair range and depth. She was alert, well-oriented, and knew the president's name. Insight and judgment were intact and congruent to intellect, which was estimated by way of tasks tapping abstraction to fall in the low average to average range of intelligence. Memory for recent and remote was intact as she remembered 3/3 unrelated items immediately and 2/3 unrelated items after 5 minutes of interference tasks. Stream of mental activity was goal-directed and relevant and she was able to spell WORLD backwards correctly, recite the months of the year backward correctly, and solve a semi-difficult cash transaction albeit slowly. There was some anxiety short-circuiting and cognitive blocking due to neurovegetative symptoms of major depressive disorder and anxiety. Two similarities were interpreted correctly and two general abstractions were interpreted concretely. She did appear capable of managing benefits, however (Exhibit 3F).

(R. at 23, 26, 29.)

In his assessment of the opinion evidence, the ALJ discussed Dr. Thompson's examination and opinion as follows:

The claimant presented to a consultative psychological examination with Ron O. Thompson, Ph.D. on February 14, 2019. Dr. Thompson diagnosed the claimant with a long history of social anxiety disorder, moderate; a history of crack cocaine

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addiction (maintains sobriety past 17 years); a burgeoning panic disorder with agoraphobia; and a report of chronic neck and low back pain (Exhibit 3F). Dr. Thompson opined that she certainly was capable of managing benefits in her own best interest. However, he then opined that she needed intensive psychotherapy and was a good candidate for cognitive behavior therapy with exposure techniques due to anxiety disorder, which appeared to be somewhat crippling for her and would give her difficulty maintaining pace and persistence in a typical work environment, where she would be expected to interact with coworkers. Her anxiety and inattentiveness also likely would be expected to intensify under the stresses of the typical work place making it a danger to herself or others, in that she likely would not be able to perceive and avoid danger in a timely manner (Exhibit 3F).

(R. at 30.)

The ALJ found Dr. Thompson's opinion “not persuasive, ” explaining, “With no longitudinal treatment or examination history, the doctor relied heavily on the claimant's subjective presentation, which rendered the opinion less persuasive. Furthermore, the severity of the opined cognitive limitations are not supported longitudinally in other medical records (See e.g. Exhibit 15F and Exhibit 20F).” (R. at 30.)

C. Analysis

Plaintiff argues that the ALJ erred in his assessment of Dr. Thompson's opinion by failing to adequately address the factors of supportability and consistency under § 404.1520c and § 416.920c. (Dkt. No. 11 at 25-27.) He first takes issue with the ALJ's assessment that Dr. Thompson's opinion was “less persuasive” because “[w]ith no longitudinal treatment or examination history, the doctor relied heavily on the claimant's subjective presentation.” ( Id . at 23.) Plaintiff vaguely contends that this assessment did not sufficiently address the supportability of Dr. Thompson's opinion because it did not acknowledge that Dr. Thompson also conducted an objective examination and provided objective observations in addition to his recording of Plaintiff's subjective complaints ( Id. )

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Upon careful review, the undersigned finds no issue with the ALJ's decision to discount Dr. Thompson's opinion in part because: (1) Dr. Thompson provided no longitudinal treatment for Plaintiff; (2) Dr. Thompson had no examination history with Plaintiff; and (3) Dr. Thompson “relied heavily” on Plaintiff's “subjective presentation” in rendering his opinion. (R. at 30.) Under the applicable regulations, “supportability” means “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1).

As an initial matter, the ALJ discussed in detail Dr. Thompson's objective examination findings and observations. (R. at 29.) Indeed, his decision reflects careful consideration of the entirety of Dr. Thompson's examination and the findings and opinions contained within. (R. at 23, 26, 29, 30.) Further, an ALJ may appropriately discount opinion evidence where it relies heavily on the claimant's subjective complaints. See , e.g ., Jeffries v. Berryhill , No. 1:18-CV-51, 2019 WL 1005501, at *11 (M.D. N.C. Mar. 1, 2019) (finding ALJ properly assigned little weight to opinion evidence because, inter alia , the “evaluation relied quite heavily on [Plaintiff's] subjective complaints of pain”), adopted by , 2019 WL 2468241 (M.D. N.C. Mar. 29, 2019); Schaller v. Colvin , No. 5:13-CV-334-D, 2014 WL 4537184, at *14 (E.D. N.C. Sept. 11, 2014) (finding ALJ properly assigned little weight to a medical opinion because, inter alia , “it was largely reliant on Claimant's subjective complaints”). In short, the ALJ's analysis here constitutes sufficient articulation of the supportability of Dr. Thompson's opinion. See , e.g ., Hubbard v. Kijakazi , No. 2:20-CV-00025, 2021 WL 5103892, at *12 (W.D. Va. Nov. 3, 2021) (finding the ALJ appropriately assessed the supportability of consultative examiner's opinion where, inter alia , “the ALJ correctly noted that Dr. Hines did not regularly treat [claimant]”).

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Relatedly, Plaintiff briefly argues that the ALJ's assessment here was “unreasonable” because he found the opinion of another consultative examiner, Dr. Taj Burnside Reid, was persuasive, even though that examiner “had no longitudinal treatment or examination history with [Plaintiff] either.” (Dkt. No. 11 at 25.) The undersigned finds no merit to this argument. Unlike Dr. Thompson, Dr. Reid performed a medical examination and gave an opinion consistent with the ALJ's RFC finding. (R. at 30, 432-35.) The ALJ found Dr. Reid's opinion was persuasive because “the opinion is well supported by examination findings and reasonably consistent with the longitudinal medical evidence, which focus on the claimant's mental health, rather than physical ailments.” (R. at 30.) There is no inherent error in the ALJ's finding that the opinions of the consultative examiners were entitled to different levels of persuasiveness.

Finally, Plaintiff argues that the ALJ did not sufficiently assess the consistency of Dr. Thompson's opinion because: (1) the ALJ ignored that Dr. Thompson's opinion was consistent with other opinion evidence, which the ALJ also found non-persuasive; and (2) the ALJ failed to explain how Dr. Thompson's opinions were not supported by the record evidence. (Dkt. No. 11 at 25-27.) Under the applicable regulations, consistency denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).

Upon careful review, the undersigned finds no error in the ALJ's consideration of the consistency of Dr. Thompson's opinion. The ALJ discounted Dr. Thompson's opinion in part because “the severity of the opined cognitive limitations are not supported longitudinally in other medical records (See e.g. Exhibit 15F and Exhibit 20F).” (R. at 30.) Here, the ALJ referenced specific exhibits that he found inconsistent with Dr. Thompson's opinion. Notably, earlier in his decision, the ALJ summarized these exhibits as demonstrating that “[r]ecent mental health findings

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show significant improvement. (Exhibit 15F, Exhibit 19F, and Exhibit 20F).” (R. at 29.) While Plaintiff argues that portions of these records “show reports of anxiety, depression, panic symptoms, sleep disturbances, and the consistent need for psychiatric medication, ” (Dkt. No. 11 at 26), these same records also contain findings that undermine Dr. Thompson's opinion. ( See , inter alia , R. at 1359, Plaintiff's “mental status” is “active and alert”, “recent memory normal and remote memory normal”; R. at 1362, Plaintiff's appearance is “well-developed”, her behavior is calm, affect is pleasant; R. at 1398, Plaintiff is “healthy-appearing, well-nourished, and well-developed, ” demonstrates “good judgement, normal mood and affect and active and alert.”) Plaintiff essentially asks the Court to reweigh the evidence here, which is not within the province of this Court. See Johnson v. Barnhart , 434 F.3d 650, 653 (4th Cir. 2005) (holding that a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ).

Further, while Plaintiff argues that Dr. Thompson's opinion is consistent with the opinions of Plaintiff's treating therapist and treating physician, the ALJ expressly found the opinions of these treating sources non-persuasive. (Dkt. No. 11 at 23, R. at 30-31.) There is no inconsistency in the ALJ's consideration of this opinion evidence, where he found all three opinions were non-persuasive. Notably, Plaintiff offers no argument that the ALJ erred in assessment of the opinions of his treating sources. In short, the undersigned finds the ALJ appropriately assessed the consistency of Dr. Thompson's opinion. See , e.g ., Rodney V. v. Kijakazi , No. 0:20-1379-JD, 2021 WL 3828825, at *4 (D.S.C. Aug. 27, 2021) (finding the ALJ appropriately found that one-time consultative examiner's opinion was “not entirely consistent and supported by the objective medical evidence, ” “Viewing the ALJ's decision as a whole reveals that the ALJ carefully

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considered both the positive and negative findings from Dr. Holt's examination as well as the imaging studies which consisted of mild to moderate findings.”).

CONCLUSION

It is therefore RECOMMENDED , for the foregoing reasons, that the Commissioner's decision be AFFIRMED .

IT IS SO RECOMMENDED.

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310 (4 Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn , 474 U.S. 140 (1985); Wright v. Collins , 766 F.2d 841 (4th Cir. 1985); United States v. Schronce , 727 F.2d 91 (4th Cir. 1984).

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Notes:

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Under Rule 25(d) of the Federal Rules of Civil Procedure, she is automatically substituted for Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

“[T]he definition of disability is the same under both DIB and SSI. . . .” Morgan v. Saul , 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue , No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).

20 C.F.R. § 416.920c has replaced the “Treating Physician Rule” for claims filed after March 27, 2017; see also Marshall v. Berryhill , Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the Treating Physician Rule, a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas , 983 F.3d at 107 (emphasis in original).

The ALJ's notation that this examination occurred in 2019 appears to be a scrivener's error, as he otherwise correctly noted the date throughout his decision.

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