United States District Court, M.D. North Carolina
ROBY A. TURNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE
Roby A. Turner, seeks review of a final decision of the
Commissioner of Social Security denying his claim for
supplemental security income (“SSI”). The Court
has before it the certified administrative
record and cross-motions for judgment, (ECF Nos.
filed an application for SSI on January 7, 2013,
alleging a disability onset date of January 1, 1997, later
amended to December 26, 2012. (Tr. 275-280, 297, 337.) The
applications were denied initially and again upon
reconsideration. (Id. at 176-83, 185-202.) A hearing
was then held before an Administrative Law Judge
(“ALJ”) at which Plaintiff, his attorney, and a
vocational expert (“VE”) were present.
(Id. at 46-84.) On January 12, 2016, the ALJ
determined that Plaintiff was not disabled under the Act.
(Id. at 18-39.) On August 2, 2016, the Appeals
Council denied Plaintiff's request for review, making the
ALJ's determination the Commissioner's final decision
for purposes of review. (Id. at 1-7.)
STANDARD FOR REVIEW
scope of judicial review of the Commissioner's final
decision is specific and narrow. Smith v. Schweiker,
795 F.2d 343, 345 (4th Cir. 1986). Review is limited to
determining if there is substantial evidence in the record to
support the Commissioner's decision. 42 U.S.C. §
405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th
Cir. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). “In reviewing for substantial
evidence, [the Court] do[es] not undertake to re-weigh
conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the
[Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996). The issue before the Court, therefore,
is not whether Plaintiff is disabled but whether the
Commissioner's finding that he is not disabled is
supported by substantial evidence and was reached based upon
a correct application of the relevant law. Id.
THE ALJ'S DECISION
followed the well-established sequential analysis to
ascertain whether the claimant is disabled, which is set
forth in 20 C.F.R. §§ 404.1520 and 416.920. See
Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d
473, 475 n.2 (4th Cir. 1999). Here, the ALJ first determined
that Plaintiff had not engaged in substantial gainful
activity since his amended alleged onset date of December 26,
2012. (Tr. 23-24.) The ALJ next found that Plaintiff suffered
from the following severe impairments: anxiety and
status-post left rotator cuff repair. (Id. at
24-27.) At step three, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or
medically equaled one listed in Appendix 1. (Id. at
to step four, the ALJ determined Plaintiff's residual
functional capacity (“RFC”). (Id. at
28-37.) Based on the evidence as a whole, the ALJ determined
that Plaintiff retained the RFC to perform a range of light
work as defined in 20 C.F.R. §416.967(b), with the
following additional limitations:
[Plaintiff] can frequently climb ladders, ropes and
scaffolds. He can frequently stoop and crouch. He can
frequently reach overhead with his left upper extremity.
[Plaintiff] should avoid concentrated exposure to unprotected
heights. His work is limited to simple, routine tasks. He can
have occasional interaction with his co-workers.
(Id. at 29.) At the fourth step, the ALJ determined
that Plaintiff was capable of performing past relevant work
as a production helper and landscaper. (Id. at 37.)
In the alternative, the ALJ found at step five that there
were other jobs that existed in significant numbers in the
national economy that Plaintiff could perform. (Id.
at 38.) These jobs included sorter of agricultural products,
laundry classifier, and bakery worker. (Id.)
Consequently, the ALJ determined that Plaintiff was not
disabled from the amended alleged onset date through the
decision date. (Id. at 39.)
ISSUES AND ANALYSIS
argues that the ALJ committed three errors that warrant
remand. (ECF No. 10 at 5-19.) First, Plaintiff contends that
the ALJ failed to find Plaintiff's back and knee
impairments severe at step two and then failed to consider
the effects of those non-severe impairments when conducting
her RFC assessment. (Id. at 6-14.) Second, Plaintiff
argues that the ALJ improperly weighed the opinion evidence.
(Id. at 14-18.) Third, Plaintiff contends that the
RFC for light work is not supported by substantial evidence.
(Id. at 18-19.) For the following reasons, the Court
The ALJ's Step-Two Finding is Supported by Substantial
first argument, Plaintiff contends that the ALJ erred at step
two, first by failing to find that his back and knee
impairments were severe, (id. at 6-12), then by
failing to consider the effects of these impairments in her
RFC assessment, (id. at 12-14). Step two requires
the ALJ to determine if the claimant has any severe medically
determinable impairments. 20 C.F.R. § 416.920(a)(4)(ii).
A severe impairment is one that “significantly limits
[a claimant's] physical or mental ability to do basic
work activities.” Id. at § 416.920(c).
“An impairment or combination of impairments is not
severe if it does not significantly limit [a claimant's]
physical or mental ability to do basic work
activities.” § 404.1522(a).
present matter, at step two, the ALJ found that
Plaintiff's anxiety and status-post left rotator cuff
repair constituted severe impairments. (Tr. 24.) The ALJ also
found that Plaintiff had “other non-severe impairments
as well that [we]re medically managed, acute, resolved with
treatment, or otherwise ha[d] not been shown to have more
than a minimal effect on [Plaintiff's] ability to engage
in work-related activities.” (Id.) As to
Plaintiff's back impairment, the ALJ found as follows:
[Plaintiff] has a remote history of “mild” lumbar
and thoracic strain in November 1998 for which he received
conservative treatment. Exhibit 2F:1. In January 2014,
[Plaintiff's] physician still only recommended
conservative treatment for his complaints of back pain.
Exhibit 15F:127. An x-ray from July 2010 showed minimal
osteophytosis at ¶ 1-L-4. Exhibit 8F:87. An x-ray from
September 2013 showed some degenerative changes at ¶ 3-4
and minimal changes at ¶ 4 through S1. Exhibit 11F:2. An
x-ray from October 2013 showed only “mild”
interval progression in degenerative changes centered at
¶ 3-4. Exhibit 15F:35, 41. Moreover, a MRI of
[Plaintiff's] lumbar spine from November 2013 showed only
“mild” degenerative disc disease without canal or
foraminal stenosis. Exhibit 15F:44. An MRI of
[Plaintiff's] lumbar spine from April 2014 showed facet
joint degeneration at ¶ 3-4 bilaterally and at ¶ 5
on the right. Exhibit 12F:9, 16. Notes throughout the record
state that his straight leg-raising test was negative.
Exhibit 9F:5; Exhibit 15F:48, 66, 90. Based on this evidence,
the undersigned finds that [Plaintiff's] back sprain and
degenerative disc disease are non-severe. His remote back
strain resolved with conservative treatment.
[Plaintiff's] back pain due to degenerative disc disease
has been episodic and medically managed, and has not been
shown to have more than a minimal effect on [Plaintiff's]
ability to engage in work-related activities.
(Id. (referencing Tr. 445, 1112, 630, 728,
1020, 1026, 1029, 742, 749, 710, 1033, 1051, 1075).) The
ALJ's analysis appears well-supported and error free for
the reasons described, and the evidence cited, above.
Plaintiff counters that the ALJ ignored imaging
evidence and findings on examination that, he argues,
are consistent with Plaintiff's reports of pain and
support opinions significantly limiting his ability to stand
and walk. (ECF No. 10 at 7-10.) Plaintiff's arguments are
specifically found that neither the above-cited imaging
evidence nor the treatment notes showing only conservative
treatment supported either Plaintiff's allegations about
the severity of his pain, (id. at 30), or opinions
that more significantly limited Plaintiff's ability to
stand or walk, (id. at 33-37). See Dunn v.
Colvin, 607 F. App'x 264, 273 (4th Cir. 2015)
(unpublished) (“[T]he conservative nature of
Appellant's treatment is an adequate basis to support the
ALJ's conclusion that Appellant's testimony of her
disabling condition was incredible.”); Somerville
v. Colvin, No. 1:12CV1360, 2015 WL 1268258, at *3 (M.D.
N.C. Mar. 19, 2015) (unpublished) (concluding that the
ALJ's decision to give the physician's opinion less
than controlling weight was supported by substantial evidence
because the physician's opinion was inconsistent with the
conservative treatment given to the plaintiff which included
injections, medication, “a hand splint, physical
therapy, and chiropractor treatment”). Plaintiff has
not challenged the ALJ's credibility analysis and, as
will be discussed in greater detail below, the ALJ gave good
reasons for giving little weight to such opinions. (Tr. 33-
37.) Moreover, it is well-established that an ALJ need not
provide a written evaluation for each document in the record.
See Brittain v. Sullivan, 956 F.2d 1162, at *6 (4th
Cir. 1992) (unpublished) (“An ALJ need not comment on
all evidence submitted.”); see also Brewer v.
Astrue, No. 7:07-CV-24-FL, 2008 WL 4682185, at *3 (E.D.
N.C. Oct 21, 2008) (unpublished table decision) (“While
the ALJ must evaluate all of the evidence in the case record,
the ALJ is not required to comment in the decision on every
piece of evidence in the record, and the ALJ's failure to
discuss a specific piece of evidence is not an indication
that the evidence was not considered.”).
as demonstrated above, and despite Plaintiff's argument
to the contrary, the ALJ did discuss the imaging
evidence. (Tr. 24.) As to the examination findings,
although the ALJ did not specifically mention Plaintiff's
“abnormal gait” or certain other specific
treatment notes, the record supports her conclusion that
Plaintiff's back pain was episodic and medically managed.
(Id.) For example, Plaintiff cites some fifteen
occasions on which a medical provider documented a slow,
abnormal, or antalgic gait. (ECF No. 10 at 8.) However, the
record also shows that Plaintiff's treating physicians
frequently found his gait to be “within normal
limits.” (See, e.g., Tr. 1033, 1075, 1079,
1111, 1328.) Moreover, like straight-leg raise tests, which
yielded varied results, (see, e.g., Tr. 710, 1033,
1051, 1075 (negative straight-leg raise tests); Tr. 727,
1024, 1328, 1376 (positive straight-leg raise tests)),
Plaintiff's physicians only sporadically, rather than
consistently, found restricted range of motion, (see,
e.g., Tr. 1061, 1273, 1291, 1371 (finding normal range
of motion)), or paraspinal tenderness. See Ferrell v.
Astrue, No. 3:11-CV-00503, 2012 WL 4378131, at *13 (S.D.
W.Va. June 22, 2012) (unpublished) (“The [Commissioner]
is entitled to rely not only on what the record says, but
also on what it does not say.” (alteration in original)
(quoting Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d
Cir.1983))), report and recommendation adopted, 2012
WL 4378126 (S.D. W.Va. Sept. 25, 2012); Bostic v.
Astrue, No. 3:10CV630-GCM-DSC, 2011 WL 3667219, at *5
(W.D. N.C. July 22, 2011) (holding same), report and
recommendation adopted, 2011 WL 3667215 (W.D. N.C. Aug.
22, 2011), aff'd, 474 F. App'x 952 (4th Cir.
2012)). Further, as the ALJ noted, in spite of any findings
on examination, Plaintiff's physicians recommended only
conservative treatment. (Tr. 24.) The record therefore
supports a finding that Plaintiff's back impairment was
first argument, Plaintiff also contends that the ALJ erred in
finding his left knee impairment to be non-severe. (ECF No.
10 at 10-12.) As to Plaintiffs left knee impairment, the ALJ
found as follows:
[Plaintiff] has been assessed with osteoarthritis of the left
knee, according to an xray [sic] from May 2010. The x-ray
showed mild medial compartment joint space narrowing. Exhibit
8F:115. [Plaintiff] testified that he hurt his knee when he
was 15 years old (he is currently 52 years of age).
[Plaintiff] testified he has not had any surgery on his knee
since the 1980's. He receives conservative treatment of
injections about every [six] months. [Plaintiff] alleged in
testimony that his knee “gives out on him” but
was vague about how often this occurs. An x-ray of
[Plaintiff's] right knee from September 2013 states that
[Plaintiff] had “mild” medial compartment joint
space narrowing. Exhibit 15F:7. Additionally, an x-ray of
[Plaintiff's] left knee from September 2013 states that
[Plaintiff] had mild medial and lateral compartment joint
space narrowing with relative preservation of the
patellofemoral compartment joint space. Exhibit 15F:10.
Osteophytes were present with no joint effusion. Exhibit
15F:10. The record shows that [Plaintiff] was able to perform
some work despite these difficulties (self-employed as a
landscaper/painter at $10.00 per hour, 40 hours per week,
thru Dec. 2011 per Exh. 8E, and working as an assembler for
$10.00 per hour, 40 hours per week, from July to August 2012
per Exh. 4E). In addition, treatment notes reflect that
[Plaintiff] received good pain relief for six months after
his injections. Exhibit 8F:84. Therefore, the undersigned
finds [Plaintiff's] left knee osteoarthritis is
(Tr. 25 (referencing 658, 992, 995, 321-32, 349-57,
627).) Here, too, the ALJ's analysis appears
well-supported and error free for the reasons described, and
the evidence cited, above.
again argues that the ALJ ignored imaging and other
objective evidence that conclusively demonstrates that
Plaintiff's knee impairment constitutes a severe
impairment. (ECF No. 10 at 10-12.) As before, the ALJ's
failure to mention every aspect of the 2013 x-ray is
permissible because the record makes clear that the ALJ
considered that evidence in making her determination that
Plaintiff's left knee osteoarthritis was non-severe. (Tr.
25.) The ALJ concluded, and the record supports a finding,
that despite imaging evidence,  Plaintiff's left knee
pain was well controlled by bi-annual steroid injections.
(Id. (referencing Tr. 627); see,
e.g., Tr. 653-54, 993, 1106, 1143-44, 1294). See
also Gross v. Heckler,785 F.2d 1163, 1165-66 (4th Cir.
1986) (“If a symptom can be reasonably controlled by
medication or treatment, it is not disabling.” (citing
Purdham v. Celebrezze, 349 F.2d 828, 830 (4th Cir.
1965))); 20 C.F.R. § 404.1530. For example, many of the
findings to which Plaintiff refers were recorded on the same
day that Plaintiff received a steroid injection, (see,
e.g., Tr. 993-94, 1108, 1143-45, 1294-97) ...