United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge
action, plaintiff Leida Paula Maldonado ("plaintiff or,
in context, "claimant") challenges the final
decision of defendant Acting Commissioner of Social Security
Nancy A. Berryhill ("Commissioner") denying her
applications for a period of disability and disability
insurance benefits ("DIB") and Supplemental
Security Income ("SSI") on the grounds that she is
not disabled. The case is before the court on the
parties' motions for judgment on the pleadings. D.E. 20,
24. Both filed memoranda in support of their respective
motions (D.E. 21, 25), and plaintiff filed a reply (D.E. 26).
The motions were referred to the undersigned magistrate judge
for a memorandum and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). See 24 May 2018 Text Ord. For the
reasons set forth below, it will be recommended that the
Commissioner's motion be granted, plaintiffs motion be
denied, and the Commissioner's decision be affirmed.
filed an application for DIB and an application for SSI on 16
June 2012, alleging a disability onset date of 12 June 2009
in both. Transcript of Proceedings ("Tr.") 18. The
applications were denied initially and upon reconsideration,
and a request for a hearing was timely filed. Tr. 18; 141. On
12 April 2016, a hearing was held before an administrative
law judge ("ALJ"), at which plaintiff, represented
by counsel, and a vocational expert testified. Tr. 18; 41-60.
At the hearing, plaintiff amended the alleged disability
onset date to 16 June 2012, the date she filed her
applications for DIB and SSI. Tr. 18; 44 (ALJ's reference
at hearing to change); 234 (form stating change signed by
plaintiff). The ALJ issued a decision denying plaintiffs
claims on 13 June 2016. Tr. 18-35.
timely requested review by the Appeals Council. Tr. 189-93.
On 11 July 2017, the Appeals Council denied the request. Tr.
1. At that time, the ALJ's decision became the final
decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1481. On 8 September 2017, plaintiff commenced this
proceeding for judicial review of the ALJ's decision,
pursuant to 42 U.S.C. §§ 405(g) (DIB) and
1383(c)(3) (SSI). See In Forma Pauperis
("IFP") Mot. (D.E. 1); Order Allowing IFP Mot.
(D.E. 4); Compl. (D.E. 5).
Standards for Disability
Social Security Act ("Act") defines disability 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 12 months." 42 U.S.C. §
423(d)(1)(A); see Id. § 1382c(a)(3)(A);
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
"An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy." 42 U.S.C. § 423(d)(2)(A); see
Id. § 1382c(a)(3)(B). The Act defines a
physical or mental impairment as "an impairment that
results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques."
Id. §§ 423(d)(3), 1382c(a)(3)(D).
disability regulations under the Act
("Regulations") provide a five-step analysis that
the ALJ must follow when determining whether a claimant is
To summarize, the ALJ asks at step one whether the claimant
has been working; at step two, whether the claimant's
medical impairments meet the [Regulations' severity and
duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the
[Regulations; at step four, whether the claimant can perform
her past work given the limitations caused by her medical
impairments; and at step five, whether the claimant can
perform other work.
The first four steps create a series of hurdles for claimants
to meet. If the ALJ finds that the claimant has been working
(step one) or that the claimant's medical impairments do
not meet the severity and duration requirements of the
[Regulations (step two), the process ends with a finding of
"not disabled." At step three, the ALJ either finds
that the claimant is disabled because her impairments match a
listed impairment [i.e., a listing in 20 C.F.R. pt. 404,
subpt. P, app. 1 ("the Listings")] or continues the
analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive
determination, the ALJ then assesses the claimant's
residual functional capacity ["RFC"], which is
"the most" the claimant "can still do
despite" physical and mental limitations that affect her
ability to work. [20 C.F.R.] § 416.945(a)(1). To make this
assessment, 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. Id. § 416.945(a)(2)
The ALJ then moves on to step four, where the ALJ can find
the claimant not disabled because she is able to perform her
past work. Or, if the exertion required for the
claimant's past work exceeds her [RFC], the ALJ goes on
to step five.
At step five, the burden shifts to the Commissioner to prove,
by a preponderance of the evidence, that the claimant can
perform other work that "exists in significant No. in
the national economy," considering the claimant's
[RFC], age, education, and work experience. Id.
§§ 416.920(a)(4)(v); 416.960(c)(2);
The Commissioner typically offers this evidence through the
testimony of a vocational expert responding to a hypothetical
that incorporates the claimant's limitations. If the
Commissioner meets her burden, the ALJ finds the claimant not
disabled and denies the application for benefits.
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
2015) (some bracketing original).
was 36 years old on the amended alleged disability onset
date, and 40 years old on the date of the hearing and the
ALJ's decision. See, e.g., Tr. 34 ¶ 7; 45. The ALJ
found that plaintiff has at least a high school education
(Tr. 34 ¶ 8), having had two years of college education
(Tr. 23 ¶ 5), and past relevant work as a parts manager,
department manager, and cashier (Tr. 33¶6).
the five-step analysis of 20 C.F.R §§
404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one
that plaintiff had not engaged in substantial gainful
activity since the amended alleged disability onset date. Tr.
20 ¶ 2. At step two, the ALJ found that plaintiff had
the following severe medically determinable impairments:
systemic lupus erythematosus ("SLE"), migraine
headaches, degenerative disc disease of the lumbar spine,
fibromyalgia, thrombocytopenia, H. pylori infection,
Epstein-Barr virus, and depression. Tr. 21 ¶ 3. At step
three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that meets or
medically equals any of the Listings. Tr. 21 ¶ 4.
determined that plaintiff had the RFC to perform a limited
range of sedentary work as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the [RFC] to perform
sedentary work as defined in 20 CFR 404.1567(a) and
with some exceptions. The claimant can stand/walk 2 hours of
an 8-hour day, and sit for 6-hours of an 8-hour day. She can
lift/carry 10 pounds occasionally and push/pull 10 pounds
occasionally. The claimant is limited to frequently stooping,
crouching, kneeling, or crawling. She is limited to
frequently balancing on narrow, slippery, or moving
surfaces/climbing. The claimant cannot work at heights or
around dangerous machinery. She must avoid working at high
temperature extremes or loud noise. The claimant has a
decrease in the ability to concentrate on and attend to work
tasks to the extent that she can only do simple, routine,
repetitive tasks ["SRRTs"] (i.e., can apply
commonsense understanding to carry out instructions furnished
in written, oral, or diagrammatic form and deal with problems
involving several concrete variables in or from standardized
situations). She is able to concentrate for two-hour
increments with normal rest breaks (i.e., 15, 30, 15
Tr. 23 ¶ 5.
on his determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was unable to perform any of her
past relevant work. Tr. 33 ¶ 6. At step five, the ALJ
found that there were jobs existing in significant No. in the
national economy that plaintiff could perform, including jobs
in the occupations of order clerk, call-out operator, and
surveillance system monitor. Tr. 34-35 ¶ 10. The ALJ
therefore concluded that plaintiff was not disabled from the
amended alleged disability onset date, 16 June 2012, through
the date of his decision, 13 June 2016. Tr. 35¶ 11.
STANDARD OF REVIEW
42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review
of the final decision of the Commissioner is limited to
considering whether the Commissioner's decision is
supported by substantial evidence in the record and whether
the appropriate legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971);
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Unless the court finds that the Commissioner's
decision is not supported by substantial evidence or that the
wrong legal standard was applied, the Commissioner's
decision must be upheld. See Smith v. Schweiker, 795
F.2d 343, 345 (4th Cir. 1986); Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Perales, 402 U.S. at 401 (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). It is more than a scintilla of evidence, but
somewhat less than a preponderance. Id.
court may not substitute its judgment for that of the
Commissioner as long as the decision is supported by
substantial evidence. Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1992) (per curiam). In addition, the court
may not make findings of fact, revisit inconsistent evidence,
or make determinations of credibility. See Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v.
Califano, 599 F.2d 597, 599 (4th Cir. 1979). A
Commissioner's decision based on substantial evidence
must be affirmed, even if the reviewing court would have
reached a different conclusion. Blalock, 483 F.2d at 775.
a court can determine whether a decision is supported by
substantial evidence, it must ascertain whether the
Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative
evidence. See 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).
OVERVIEW OF PLAINTIFF'S CONTENTIONS
contends that the ALJ's decision should be reversed or,
in the alternative, that this case should be remanded for a
new hearing on the grounds that the ALJ erred by: (1)
improperly assessing her statements regarding his
impairments, that is, her symptoms; and (2) improperly
evaluating plaintiffs RFC. Each ground is addressed in turn
ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS
Applicable Legal Principles
noted, symptoms are defined under the Regulations as a
claimant's own descriptions of his impairments. 20 C.F.R.
§§ 404.1528(a), 416.928(a). The ALJ must employ a
two-step process for evaluating a claimant's symptoms:
First, we must consider whether there is an underlying
medically determinable physical or mental impairment(s) that
could reasonably be expected to produce an individual's
symptoms, such as pain. Second, once an underlying physical
or mental impairment(s) that could reasonably be expected to
produce an individual's symptoms is established, we
evaluate the intensity and persistence of those symptoms to
determine the extent to which the symptoms limit an
individual's ability to perform work-related activities
for an adult....
Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (25 Oct. 2017)
(effective 28 Mar. 2016); 20 C.F.R. §§ 404.1529(b),
(c)(1), 416.929(b), (c)(1); Craig, 76 F.3d at 594-95.
evaluating a claimant's symptoms at step two, the ALJ
must consider "the entire case record." Soc. Sec.
Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. §§
404.1529(c)(1), 416.929(c)(1) ("In evaluating the
intensity and persistence of your symptoms, we consider all
of the available evidence"); Craig, 76 F.3d at 595. The
evidence and factors that are considered, when relevant,
include: the claimant's history; medical signs and
laboratory findings; statements from the claimant, the
claimant's treating and nontreating sources, and other
persons about how the claimant's symptoms affect the
claimant, including medical opinions; the claimant's
daily activities; the location, duration, frequency, and
intensity of the claimant's pain or other symptoms;
precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of any medication the
claimant takes or has taken to alleviate his pain or other
symptoms; treatment, other than medication, the claimant
receives or has received for relief of his pain or other
symptoms; any measures the claimant uses or has used to
relieve his pain or other symptoms; and other factors
concerning the claimant's functional limitations and
restrictions due to pain or other symptoms. 20 C.F.R.
§§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); Soc. Sec.
Ruling 16-3p, 2016 WL 1119029, at *4-7.
there is evidence that a claimant has not followed the
prescribed treatment or the treatment sought is not
consistent with the degree of the claimant's subjective
complaints, the ALJ is required to consider possible reasons
for such noncompliance or inconsistency, which may include
• An individual may have structured his or her
activities to minimize symptoms to a tolerable level by
avoiding physical activities or mental stressors that
aggravate his or her symptoms.
• An individual may receive periodic treatment or
evaluation for refills of medications because his or her
symptoms have reached a plateau.
• An individual may not agree to take prescription
medications because the side effects are less tolerable than
• An individual may not be able to afford treatment and
may not have access to free or low-cost medical services.
• A medical source may have advised the individual that
there is no further effective treatment to prescribe or
recommend that would benefit the individual.
• An individual's symptoms may not be severe enough
to prompt him or her to seek treatment, or the symptoms may
be relieved with over the counter medications.
• An individual's religious beliefs may prohibit
• Due to various limitations (such as language or mental
limitations), an individual may not understand the
appropriate treatment for or the need for consistent
treatment of his or her impairment.
Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *8-9.
ALJ's decision "must contain specific reasons for
the weight given to the individual's symptoms, be
consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can
assess how the adjudicator evaluated the individual's
symptoms." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at
testified to the effect that she is disabled. See Tr. 45-55,
made the step one finding that "[a]fter careful
consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could
reasonably be expected to cause some of the alleged