Harrell
v.
Berryhill

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISIONOct 30, 2018
5:17-CV-484-D (E.D.N.C. Oct. 30, 2018)

5:17-CV-484-D

10-31-2018

JENNIFER RENEE HARRELL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


MEMORANDUM AND RECOMMENDATION

In this action, plaintiff Jennifer Renee Harrell ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") 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. 15, 17. Both filed memoranda in support of their respective motions. D.E. 16, 18. 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 19 March 2018 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be allowed, plaintiff's motion be denied, and the final decision of the Commissioner be affirmed.

BACKGROUND

I. CASE HISTORY

Plaintiff filed an application for DIB on 10 June 2014, alleging a disability onset date of 30 June 2011. Transcript of Proceedings ("Tr.") 11. The application was denied initially and upon reconsideration, and a request for a hearing before an administrative law judge ("ALJ") was timely filed. Tr. 11. On 24 August 2016, the hearing was held at which the witnesses were plaintiff, who was represented by counsel; plaintiff's sister; and a vocational expert. Tr. 20-67. On 3 October 2016, the ALJ issued a decision denying plaintiff's application. Tr. 11-19. The decision also denied an application for DIB filed by plaintiff on 4 September 2013, which the ALJ had reopened pursuant to 20 C.F.R. § 404.988. Tr. 11, 19.

Plaintiff timely requested review by the Appeals Council. Tr. 171. On 24 July 2017, the Appeals Council denied the request for review. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 21 September 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Ord. Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).

The versions of the regulations and Social Security Rulings cited by the undersigned herein are those applicable to plaintiff's claim and the ALJ's decision, although several have subsequently been modified.

II. STANDARDS FOR DISABILITY

The 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); 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). 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).

The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

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 [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; 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 [R]egulations (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 numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2);

416.1429. 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).

See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to Supplemental Security Income ("SSI"). The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.

See also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(2); 404.929.

III. ALJ'S FINDINGS

Plaintiff was 27 years old on the alleged disability onset date and 32 on the date of the hearing. See Tr. 18 ¶ 7. The ALJ found that plaintiff, who testified that she graduated from college, had at least a high school education. Tr. 18 ¶ 8; 28. The ALJ also found that plaintiff had past relevant work as a user support analyst, airline security representative, and surveillance system monitor. Tr. 17-18 ¶ 6.

Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 30 June 2011, the alleged disability onset date. Tr. 13 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: bipolar disorder, depressive disorder, and obesity. Tr. 13 ¶ 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. 13 ¶ 4.

The ALJ next determined that plaintiff had the RFC to perform a limited range of medium work:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform medium work, as defined in 20 CFR 404.1567(c) and SSR 83-10, except she can frequently handle objects and finger with the right

upper extremity and have occasional exposure to unprotected heights, hazardous machinery or hazardous moving mechanical parts. Her work is limited to simple, routine and repetitive tasks but not at a production rate pace; simple work-related decisions; and occasional interaction with the public, co-workers, and supervisors.

Tr. 15 ¶ 5.

Under this regulation, "medium work" is defined as work as work that "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "M-Medium Work," 1991 WL 688702. The terms for exertional level as used in the Regulations have the same meaning as in the DOT. 20 C.F.R. §404.1567.

Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform any past relevant work. Tr. 17-18 ¶ 6. At step five, relying on the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that she could perform, including jobs in the occupations of hospital cleaner, counter supply clerk, and industrial cleaner. Tr. 18-19 ¶ 10. The ALJ accordingly concluded that plaintiff was not under a disability from the alleged disability onset date, 30 June 2011, through the date of the decision, 3 October 2016. Tr. 19 ¶ 11.

IV. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), 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.

The 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). 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.

Before 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); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

DISCUSSION

I. OVERVIEW OF PLAINTIFF'S CONTENTIONS

Plaintiff contends that the ALJ's decision should be reversed and benefits awarded, or in the alternative, that the case should be remanded for a new hearing on the grounds that the ALJ erred in determining plaintiff's RFC and assessing her statements regarding her impairments, that is, her symptoms. Each ground is examined in turn below.

See 20 C.F.R. § 404.1528(a) (defining symptoms as a claimant's statements about his impairments). Plaintiff uses the term "credibility" in describing the ALJ's assessment of plaintiff's symptoms (Pl.'s Mem. 3, 9), but use of that term is outdated. See Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2, 13 (25 Oct. 2017) (applicable on 28 Mar. 2016) (rescinding Soc. Sec. Ruling 96-7p pursuant to Social Security Administration's decision to eliminate use of the term "credibility" from its sub-regulatory policy).

II. ALJ'S RFC DETERMINATION

As discussed, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. § 404.1545(a)(3). The assessment includes evaluation of the claimant's symptoms. See, e.g., Mascio, 780 F.3d at 639; Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *12 (25 Oct. 2017); Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5, 7. An ALJ's decision must state his RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7.

The court finds that the ALJ's RFC determination and the findings underlying it are supported by substantial evidence and are otherwise proper. This evidence includes plaintiff's treatment records, which the ALJ reviewed as follows:

The above RFC is supported by the objective medical evidence of record and other evidence of record. The record demonstrates that in June 2011, the claimant presented to the hospital with suicidal ideation and depression. It was noted that she had not been on her medications. When she was placed on medication during this admission, she did very well. Her depression much improved. Her mood was fine and stable. (Exs. 2F and 3F).
The following month, the claimant had an unremarkable mental status exam. In December 2011, she reported trying to do some baking to make some money. In February 2012, overall, she had been doing well, but not taking her medication regularly. In November 2012, treating providers related that the claimant had not been seen since the prior February (Ex. 3F). In January 2013, the claimant told treating providers she had made bad grades in school last semester. Apparently, she was in school at this time, despite the alleged severity level of her impairments (Ex. 3F).

The claimant took herself off her bipolar medication when she found out she was pregnant. As a result, in May 2013, she went to the hospital due to volatile behavior with homicidal thoughts (Ex. 4F). The following month, treating providers indicated that the claimant had not been seen since the previous January. In September 2013, the claimant mentioned she enjoyed the hobby of baking. The following month, she was doing well. In December 2013, the claimant had been doing well. Her mood was pretty good. She had been taking her bipolar medication and attending weekly therapy. (Exs. 3F and 4F).
In February 2014, mental status exam was within normal limits. Her mood was okay. The following April, her mood had been pretty good. In May 2014, the claimant was doing good. (Exs. 3F and 12F). In July 2014, she reported doing well that week. The following month, her mood was pretty good (Ex. 11F). In October 2014, the claimant's mood was stable (Ex. 8F).
In January 2015, the claimant's concentration was good and her mood was pretty good. The following April, she was doing well with no complaints. In June 2015, the same was noted. It was reported she was stable now (Ex. 8F). The following September, the claimant was doing okay. She had no major problems (Ex. 9F). In February 2016, she was stable on her current medications (Ex. 10F). In May 2016, the claimant had had no severe mood swings or depression. Treating providers continued her on her current medication and therapy regimens (Ex. 12F).

Tr. 15-16 ¶ 5.

The ALJ's RFC determination is also supported by the evaluation of the sole examining consulting mental health professional, psychiatrist Anthony G. Carraway, M.D. Tr. 411-15. The ALJ summarized Dr. Carraway's opinions, giving them substantial weight, as follows:

The claimant underwent a consultative psychological examination with Dr. Anthony G. Carraway in November 2013, at which time she felt her mood was mildly depressed (Ex. 5F). There was no report of any current manic symptoms, psychotic symptoms, or neurovegetative symptoms. She had a couple of friends, but her manic behaviors had impaired some friendships in the past. She did laundry, cleaned the dishes and bathroom, and took out the trash. The claimant went grocery shopping, cooked, baked, and walked; went to church; and could dress and groom herself. She indicated that not taking her medication keeps her from not functioning. On exam, the claimant was cooperative. No substantial findings were noted.
Dr. Carraway indicated that claimant has rather moderate impairment of short-term memory and mild impairment of attention and concentration. Her ability to understand, retain and perform instructions is rather mildly impaired for simplistic instructions. She may have more mild to moderate difficulty with complicated

instructions. Her ability to perform simple repetitive tasks and to persist at those tasks appears to be rather mildly to moderately impaired. Her stress tolerance appears to be rather moderately impaired. She appears to have rather moderate to moderately significant social and interpersonal difficulty present at this time.
The undersigned provided substantial weight to this opinion. It is consistent with Dr. Carraway's thorough examination and the evidence of record as a whole, which reflects no substantially debilitating mental problems, as described herein.

Tr. 16 ¶ 5.

Additional support is found in the evaluations of the nonexamining state agency consultants, psychologists Sharon J. Skoll, Ph.D. (Tr. 74-79) and Brian Grover, Psy.D. (Tr. 91-97), on 18 July 2014 and 13 October 2014, respectively. The ALJ reviewed these evaluations, affording them substantial weight, as follows:

The undersigned placed substantial weight in the State agency psychological assessments contained in the file . . . . The psychological consultants found that claimant had mild to moderate restrictions and could perform simple, routine, repetitive tasks with social interaction limitations. . . . Their opinions are consistent with the overall longitudinal record, which demonstrates the claimant functions fairly well from a mental health standpoint when following her treatment regimen . . . .

Tr. 17 ¶ 5.

The RFC determination is also supported by the ALJ's findings on the special technique for mental impairments or the so-called paragraph B criteria and the evidence he cites in support of these findings. The ALJ stated:

The Regulations require an ALJ to use the special technique, as described in 20 C.F.R. § 404.1520a(b)-(e), to evaluate any medically determinable mental impairments the ALJ finds the claimant to have. 20 C.F.R. § 404.1520a(a). Under the special technique, an ALJ rates the degree of a claimant's functional limitation in four broad areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The first three functional areas are rated on a five-point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). A four-point scale is used to rate the fourth functional area: none, one or two, three, and four or more. 20 C.F.R. § 404.1520a(c)(4). The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity. 20 C.F.R. § 404.1520a(c)(4). Because the criteria, including the associated ratings, in the special technique are the same as those in paragraph B of many of the Listings relating to mental impairments, they are often referred to as the paragraph B criteria. See Listing 12.00.C; see also, e.g., Listings 12.02.B., 12.03.B.

In activities of daily living, the claimant has mild restriction. She can cook, dress herself, take care of her personal hygiene, clean, take out the trash, take care of her son, and drive without major difficulties. In social functioning, the claimant has moderate difficulties. Although she has manic episodes affecting relationships, she still has some friends and is able to go shopping and go to church (Ex. 5F and Hearing Testimony). She had no major problems interacting with treating providers or the consultative examiner. With regard to concentration, persistence or pace, the claimant has moderate difficulties. Although she has problems in this category, her concentration was deemed good in January 2015 (Ex. 8F). As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration.

Tr. 14 ¶ 4. The fact that the paragraph B criteria are addressed at step three of the sequential analysis does not, of course, render them irrelevant to the RFC determination because the ALJ's decision must be read as a whole. See, e.g., Bailey v. Berryhill, No. 4:17-CV-32-FL, 2018 WL 3298078, at *8 n.7 (E.D.N.C. 10 Jan. 2018), mem. & recomm. adopted, 2018 WL 1410414 (21 Mar. 2018).

The ALJ's findings on the first three paragraph B criteria are the same as those of Dr. Skoll and Dr. Grover. See Tr. 74, 91. While on the fourth criterion Dr. Skoll found, like the ALJ, that plaintiff had no repeated episodes of decompensation of extended duration, Dr. Grover found that she had one or two. Tr. 74, 91. --------

Providing further support for his RFC determination, the ALJ elaborated on plaintiff's activities of daily living in explaining his RFC determination:

Of note, the claimant testified she has a driver's license and drives. She said she did Work First, wherein a person looks for work, and when someone cannot work, he or she does volunteer work. The claimant testified she worked as a volunteer for the Salvation Army from March 2016 to July 2016. She also testified she cooks, cleans up her bedroom and the bathroom, and shops for her son and herself. She takes her son to daycare; takes care of him; can dress herself; and takes care of her personal hygiene.

Tr. 17 ¶ 5.

Plaintiff challenges the ALJ's RFC determination on a range of grounds. For the most part, these grounds are not stated with specificity and do not include citation to the evidence underlying them. They are all meritless.

For example, plaintiff argues that "the ALJ failed to assess [her] mental capacity to perform relevant mental functions despite contradictory evidence in the record." Pl.'s Mem. 8. Plaintiff does not specify, at least at this point, the particular functions she alleges the ALJ failed to assess. The court finds that, as it believes the foregoing review of the ALJ's finding indicates, he did adequately review the relevant mental functions. Plaintiff's apparent suggestion that the purported presence of contradictory evidence on plaintiff's ability to perform relevant mental functions renders the ALJ's findings erroneous is baseless. A central task of an ALJ is to resolve conflicts in the evidence of record. The fact that substantial evidence must support the ALJ's findings obviously does not preclude the possibility that the record contains evidence contrary to them.

Plaintiff also contends that plaintiff's manic episodes have resulted in "hospitalizations" and show that she has marked limitations in social functioning. In fact, there appears to be only one hospitalization relating to a manic episode, in May 2013, and the ALJ discussed it. Tr. 16 ¶ 5. The portions of the ALJ's decision set out above indicate that the ALJ adequately considered plaintiff's bipolar disorder and her limitations in social functioning, and that his findings relating to them are supported by substantial evidence, including the evaluations of Dr. Carraway, Dr. Skoll, and Dr. Grover. Plaintiff has certainly not pointed to evidence requiring greater limitations relating to social functioning than the significant limitations included in the RFC determination—namely, only occasional interaction with the public, co-workers, and supervisors. Tr. 15 ¶ 5.

Plaintiff also argues that the ALJ did not adequately assess her limitations in concentration, persistence, or pace. She cites the lack of any reference by the ALJ to her purported reports of hallucinations in determining that she did not have marked, but rather moderate, limitations in concentration, persistence, or pace in his step-three analysis. Although it is not entirely clear, plaintiff may also be relying in support of this contention on plaintiff's history of hospitalizations due to bipolar disorder. Plaintiff states conclusorily that she would be off task a significant amount of the workday.

The record appears to show a report of hallucinations by plaintiff on only one occasion—at her visit with her psychological counsellor on 18 February 2016. Tr. 439 (Ex. 10F). There are numerous occasions of record on which plaintiff denied hallucinations. Tr. 261 (17 Sept. 2010); 265 (28 June 2011); 268 (23 June 2011); 272 (11 July 2011); 277 (19 July 2011); 378 (2 Dec. 2013). While the ALJ did not mention the hallucinations plaintiff reported on 18 February 2016 in his step-three analysis or elsewhere, he did address this visit in explaining his RFC determination, noting that plaintiff was found "stable on her current medications." Tr. 16 ¶ 5. The ALJ's omission of any reference to the report of hallucinations was not error additionally because an ALJ is not required to discuss every piece of evidence. Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014).

Moreover, as discussed, the decision must be read as a whole. The decision as a whole shows that the ALJ adequately considered the evidence of concentration, persistence, or pace. This evidence includes plaintiff's hospitalizations due to her bipolar disorder which, as the review of the ALJ's decision above indicates, the ALJ expressly discussed. Tr. 15 ¶ 5; 16 ¶ 5. Further, the ALJ's determination that plaintiff has moderate limitations in concentration, persistence, or pace is supported by the evaluations of the consulting psychological sources, among other evidence, as previously noted.

As with plaintiff's limitations in social functioning, plaintiff has not pointed to any evidence compelling inclusion of more restrictive limitations regarding concentration, persistence, or pace than those the ALJ included in his RFC determination, which include limitation to simple, routine, and repetitive tasks; not working at a production rate pace; and simple work-related decisions. Tr. 15 ¶ 5. Plaintiff notes the vocational expert's testimony, given in response to her counsel's question, that an individual off task 20 percent of the workday is not employable (Tr. 65), but she does identify evidence dictating the conclusion that she is such an individual.

Plaintiff also suggests that the fact that she has undergone treatment for mental impairments for an extended period shows that she is disabled. Treatment alone, though, does not establish disability. That is particularly true here where, as the ALJ points out, there is significant evidence that the treatment has been effective in controlling her mental impairments. See Tr. 15 ¶ 5; 16 ¶ 5; 17 ¶ 5.

Plaintiff further contends that she is unable to work on a regular and continuing basis—again, signifying eight hours a day, five days a week—as the ALJ implicitly found in determining that she has the RPC to work. Instead of working on that basis, plaintiff contends that she would be absent several days per month because of her bipolar disorder and the side effects of her medication.

The evidence reviewed by the ALJ supports his implicit determination that plaintiff can work on a regular and continuing basis, particularly the evidence that her mental impairments are effectively controlled with medication and the opinions of the consulting psychologists that plaintiff can work. Plaintiff does not cite evidence compelling the conclusion that she cannot work on a regular and continuing basis. While she does refer to the vocational expert's testimony, in response to her counsel's question, that an individual who had three unexcused absences a month would be unemployable (Tr. 65), she does not identify evidence establishing that she is such an individual.

As to side effects of plaintiff's medication, she cites her own testimony to the effect that her medication makes her too sleepy to work. Tr. 33-34. The ALJ found, though, that "[t]here is no substantial evidence in the record of any medication side effects that would prevent the claimant from performing work activity." Tr. 17 ¶ 5. Indeed, as the ALJ's finding indicates, there is scant medical evidence of side effects in the record. See Tr. 309 (7 Dec. 2011) (noting plaintiff's statement that "I'm too sedated."); 454 (15 Aug. 2014) ("[Plaintiff] reports taking care of her son has been challenging due to side effects from medications causing fatigue."); see also Tr. 261 (17 Sept. 2010) ("No side effects are reported or in evidence."); 413 (8 Nov. 2013) (Dr. Carraway's evaluation) ("[Plaintiff] has a rather Parkinsonian appearance, which may be a side effect of her Haldol."). The evidence the ALJ cites showing that plaintiff does well on her medications further substantiates his finding on side effects.

Plaintiff's challenge to the ALJ's RFC determination amounts largely to a request to the court to reweigh the evidence. This, of course, the court may not properly do. See Craig, 76 F.3d at 589. For this and the other reasons stated, the court rejects plaintiff's challenge to the ALJ's RFC determination.

III. ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS

A. Applicable Legal Principles

As noted, symptoms are defined under the Regulations as a claimant's own descriptions of his impairments. 20 C.F.R. § 404.1528(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; Craig, 76 F. 3d at 594-95; 20 C.F.R. § 404.1529(b), (c)(1).

In 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) ("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); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The 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 *9.

B. Analysis

Plaintiff testified to the effect that her mental impairments, along with her obesity, are disabling. See Tr. 22-51. The ALJ made the step one finding that "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 15 ¶ 5. However, at the second step, the ALJ found that "the claimant'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 for the reasons explained in this decision." Tr. 15 ¶ 5.

Plaintiff argues that her testimony shows that she cannot perform work on a regular and continuing basis, her testimony is consistent with the medical evidence of record, and the ALJ erred in finding that her testimony was not entirely consistent with the record. As previously discussed, the ALJ properly found that plaintiff can perform work on a regular and continuing basis and that any side effects from her medication do not prevent her from working. In making these findings, the ALJ rejected plaintiff's allegations to the contrary. The court finds that the ALJ's assessment of plaintiff's statements regarding her impairments is otherwise proper. It accordingly rejects plaintiff's challenge to this assessment.

CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 15) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 17) for judgment on the pleadings be DENIED, and the final decision of the Commissioner be AFFIRMED.

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 14 November 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

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).

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

This 31st day of October 2018.

/s/_________


James E. Gates


United States Magistrate Judge