Opinion
2:21-CV-15-D
08-17-2022
DOUGLAS JEWELL RORRER, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR, MAGISTRATE JUDGE
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-18, -22] pursuant to Fed.R.Civ.P. 12(c). Claimant Douglas Jewell Rorrer (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income (“SSI”) payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI on November 21, 2018, alleging disability beginning July 15, 2014. (R. 15, 207-15). His claim was denied initially and upon reconsideration. (R. 15, 99-129). A hearing before the Administrative Law Judge (“ALJ”) was held on August 26,2020, at which Claimant, represented by counsel, and a vocational expert (“VE”)
appeared and testified. (R. 32-57). On September 9, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-31). On January 21, 2021, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .”42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-AO (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.
Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200,1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in (1) finding Claimant retained the RFC to perform a limited range of light work, (2) failing to properly assess Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms, and (3) failing to accurately set forth all of Claimant's physical and mental limitations in the hypothetical posed to the VE. Pl.'s Mem. [DE-19] at 22-28.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful activity since November 21,2018, the application date. (R. 17). Next, the ALJ determined Claimant's subdural hematoma due to skull fracture, history of alcohol abuse, headaches, and psoriasis were severe impairments. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 17-18).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 416.967(b).
the claimant can stand and walk a total of four hours in an eight-hour workday and the claimant requires the opportunity to alternate between sitting and standing every two hours at the workstation. The claimant can frequently climb stairs and ramps; never climb ropes, ladders, and scaffolds; and frequently balance, crouch, stoop, kneel, and crawl. The claimant should avoid concentrated exposure to workplace hazards that include unprotected heights and moving machinery. The claimant can perform simple, routine, repetitive tasks involving no more than simple, short instructions and simple work-related decisions with few workplace changes and with reasoning levels of 1 or 2. The claimant cannot work at a fixed production rate or pace. The claimant can have frequent contact with supervisors, coworkers, and the public. The claimant requires one reminder at the start of the workday.
(R. 18-24). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence in the record. (R. 19).
At step four, the ALJ concluded Claimant was unable to perform his past relevant work as a painter and a heating and air conditioning installer-servicer. (R. 24). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 24-25).
V. DISCUSSION
A. The RFC Assessment
Claimant makes two arguments of error related to the RFC assessment: (1) Claimant did not retain the RFC to perform a limited range of light work, and (2) Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms were not properly credited. Pl.'s Mem. [DE-19] at 22-27.
1. Claimant's Statements Regarding Subjective Symptoms
Claimant argues that the ALJ ignored his disabling subjective complaints of constant dizziness, inability to focus and concentrate, and memory problems, which he contends are supported by substantial evidence, and the ALJ did not consider his limited financial resources for medical care and treatment. Pl.'s Mem. [DE-19] at 24-27.
Federal regulation 20 C.F.R. § 416.929(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work,” Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. SSR 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 416.929(c)(3) (showing a complete list of factors); see Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020) (holding that “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.”). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with. objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
The ALJ recounted Claimant's testimony that he was unable to work because he constantly felt dizzy since his 2014 fall, his dizziness limited him to standing for no more than fifteen minutes at a time before having to sit down, he could walk for approximately ten to fifteen minutes at a time before he became dizzy and would fall, he could lift up to twenty pounds, he had a history of falling due to dizziness, and he needed assistance climbing stairs. (R. 19). The ALJ also noted Claimant's testimony that he did not receive any treatment or medications for his impairments because he could not afford treatment, and he would lie down for ten to twenty minutes at a time, at least ten times per day, to relieve his dizziness. Id. The claimant also testified that he had experienced seizures since his fall, stating that he had one daytime seizure, his first, and three seizures during his sleep in the past year. Id. As for the impact of his injury on his mental capacity, the ALJ noted Claimant's testimony that he could not remember any of his formal training, he could not remember what job he performed before his painting job, and he had difficulty with concentration, stating he would forget what he was doing and lose focus after five to ten minutes. Id. Finally, the claimant testified that he lost his driver license in 2007 after being charged with driving under the influence, but he does not feel that he has a problem with alcohol, stating he only has two or three drinks per day. Id.
The ALJ determined that Claimant's impairments could reasonably be expected to cause the alleged symptoms, but that Claimant's statements about his limitations were not entirely consistent with the medical and other evidence in the record. Id. A review of the evidence considered by the ALJ demonstrates that he did not “cherry pick” favorable evidence and ignore unfavorable evidence or require objective evidence to substantiate Claimant's complaints, the court can follow the ALJ's reasoning, and the ALJ's decision is supported by substantial evidence in the record.
The ALJ first discussed Claimant's head injury resulting from a fall while intoxicated on July 13,2014, which is Claimant's alleged onset date. (R. 19, 363). Claimant was diagnosed with an occipital skull fracture and subdural hematoma. Id. Claimant left the hospital but later returned with worsening symptoms, including altered sensorium, multiple episodes of emesis, and no longer verbally communicating. (R. 19, 365). Claimant was initially monitored and treated non-surgically, (R. 367-70), but on July 16 and 21, he was unable to arouse sufficiently for occupational or physical therapy, (R. 20, 371-74, 377). Claimant was able to receive some physical therapy on July 22, during which he demonstrated short attention span, required cues for attention to tasks, exhibited poor recall and short-term memory, and was able to ambulate fifteen feet with assistance for balance. (R. 20, 378). The claimant underwent a left craniectomy on July 24, 2014, which significantly improved his mass effect. (R. 20, 381-84, 396). The ALJ acknowledged that a speech-language cognitive-communicative assessment in August 2014 demonstrated moderate cognitive communicative disorder, and Claimant had difficulty with naming items in a category, recalling safety precautions, complex problem solving, inferring information, and performing complex reasoning tasks. (R. 20, 789-91). However, the ALJ noted that by September 2014, Claimant demonstrated significantly improved ability to recall details from a story and perform mathematical problems, though he still had difficulty with providing similarities and differences, providing items in a category, and determining safe solutions to situations, (R. 20, 787-88), and at a September 4, 2014 post-surgery follow up, Claimant reported doing well, but was a “little disinhibited,” on examination he was able to follow commands and his speech was fluent, and he was scheduled for a cranioplasty, (R. 20, 407-08).
Claimant continued to receive treatment related to his brain injury and underwent a left cranioplasty with autograft in November 2014, which found a left cranial defect greater than 5cm. (R. 20, 417-29). His condition was noted to be improved, and he was screened for physical and occupational therapy but required neither where he demonstrated good tolerance for positional change and bilateral upper extremity range of motion and strength relevant to complete tasks and activities of daily living. Id.
The record indicates that Claimant received no further treatment until December 2015, when he experienced a seizure while working that was witnessed by his employer and was described as having convulsions lasting less than one minute without loss of consciousness. (R. 20, 783). Claimant's CT scan showed no intracranial hemorrhage, mass, or evidence for acute infarction, minimal cortical atrophy, and bifrontal and left temporal encephalomalacia secondary to his previous brain injury. (R. 20, 786). It was noted that Claimant had not experienced headaches, there were no focal neurologic findings, and it was recommended he see his neurologist. (R. 786). The ALJ noted that since that time, Claimant was “lost to treatment,” and there were no emergency department or free clinic treatment records since December 2015. (R. 20).
The ALJ found that Claimant's records reflected “a history of traumatic head injury with some cognitive deficits, which seemed to improve with therapy; physical limitations, which also improved with physical therapy; and later-onset seizure, of which there is only one documented seizure,” and the ALJ concluded that the “treatment records do not reflect the degree of exertional or cognitive limitations alleged.” (R. 20). The ALJ explained that “[a]lthough the claimant initially had some difficulty with ambulation, there is no evidence that these problems persisted and the claimant exhibited normal range of motion, strength, and sensation in the extremities (Exhibits IF, 3F, 4F, and 6F),” and he also “quickly showed improvement in his cognitive functioning with treatment.” Id.
While Claimant contends his symptoms, such as dizziness, focus, and concentration problems, “predicably flow from traumatic head or brain injury,” the ALJ found that his treatment records indicated his condition improved after surgery and that Claimant was not demonstrating the level of limitation to which he testified. If Claimant experienced repeated seizures and constant dizziness limiting his ability to walk for more than ten or fifteen minutes, to climb stairs unassisted, and requiring him to lie down ten times a day, one would reasonably expect he would have sought treatment from his neurologist or the emergency department, and the failure to seek treatment is a proper consideration in assessing a claimant's subjective complaints. See 20 C.F.R. § 416.929(c)(3)(v) (providing that factors relevant to symptoms that will be considered include “[t]reatment, other than medication, you receive or have received for relief of your pain or other symptoms”); see Dunn v. Colvin, 607 Fed.Appx. 264, 273 (4th Cir. June 1, 2015) (“[T]his Court has long, held that it is appropriate for the ALJ to consider the conservative nature of a plaintiff's treatment-among other factors-in judging the credibility of the plaintiff.”); Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005) (finding the ALJ properly evaluated the claimant's statements regarding her severe hand problems and noting that it was “surprising that in light of such [severe] symptoms, Johnson failed to seek help from a specialist or have an EMG, x-ray, MRI, or nerve conduction study performed on her hands.”); Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994) (“an unexplained inconsistency between the claimant's characterization of the severity of her condition and the treatment she sought to alleviate that condition is highly probative of the claimant's credibility”).
Claimant contends that the ALJ ignored Claimant's limited financial resources for medical care and treatment. Pl.'s Mem. [DE-19] at 26-27. The ALJ must “consider and address reasons for not pursuing treatment that are pertinent to an individual's case,” including whether a claimant is unable to afford treatment and lacks access to free or low-cost medical services. SSR 16-3p, 2016 WL 1119029, at *10; see Gordon v. Schweiker, 725 F.2d 231,237 (4th Cir. 1984) (“It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him.”). Claimant testified at the administrative hearing that he was not being treated for dizziness because he could not afford to go to the doctor, and he had gone to the emergency room only when he had his first seizure. (R. 43-44). Claimant also testified that no other treatments had been recommended for him. (R. 47). The ALJ did not ignore Claimant's testimony that he could not afford to go to the doctor, but rather expressly acknowledged that testimony. (R. 19). Furthermore, the ALJ also noted that there were no emergency department treatment records or free clinic treatment records in the medical evidence since December 2015, (R. 20). SeeMcAbeev. Berryhill, No. CV2:16-0457-TMC, 2017 WL 3613871, at *2 (D.S.C. Aug. 23, 2017) (“Where a claimant cannot afford medical treatment, they must ‘show that he has exhausted all free or subsidized sources of treatment and document his financial circumstances before inability to pay with be considered good cause [for failing to seek treatment].'”) (quoting Gordon, 725 F.2d at 237 (citing SSR 82-59, superseded by SSR 18-3p (Oct. 29, 2018)); Neely v. Colvin, No. L15-CV-983, 2017 WL 120931, at *8 (M.D. N.C. Jan. 12, 2017). Claimant did not return to the emergency room for treatment although he testified to having three more seizures. (R. 49). Claimant did not testify that he attempted but was unable to obtain treatment, and there is no other evidence in the record that he actually pursued but was unable to access treatment due to financial problems. Accordingly, the ALJ did not err in the consideration of Claimant's alleged inability to afford treatment.
Claimant also contends that the ALJ cherry picked facts that support a finding of nondisability and ignored evidence supportive of the disability claims. Pl.'s Mem. [DE-19] at 27. Claimant, however, points to no evidence the ALJ failed to consider. As discussed above, the ALJ thoroughly discussed Claimant's testimony and treatment records. (R. 19-21). The ALJ also evaluated the opinion evidence from consultative examiners and state agency consultants, and Claimant has not challenged the ALJ's treatment of this evidence. Claimant implicitly asks the court to reweigh the evidence considered by the ALJ, but where the ALJ acknowledged contradictory evidence in the record and explained her reasoning, it is not the court's role to reweigh the evidence or to substitute its decision for the ALJ's. See 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, make credibility determinations, or substitute our judgment for that of the ALJ.") (citation omitted). Accordingly, the ALJ did not err in evaluating Claimant's subjective statements about his symptoms where the ALJ fully considered all the evidence and applied the appropriate framework, and the court can trace the ALJ's reasoning, which is supported by substantial evidence.
2. Claimant's Ability to Perform a Limited Range of Light Work
Claimant contends he cannot stand and walk for four hours, focus and concentrate for two-hour increments, understand, remember, and carry out very short and simple instructions, or regularly attend work as found by the ALJ. Pl.'s Mem. [DE-19] at 24. Claimant contends medical evidence confirms his diagnosis of traumatic head or brain injury with long term dizziness, memory problems, and his need to lie down during the workday to relieve his symptoms, which precludes work at all levels. Id.
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2,1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) (“[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.”) (citations omitted). “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “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).” Id. (quoting S.S.R. 96-8p).
As discussed above, the ALJ determined that Claimant's treatment records reflected “a history of traumatic head injury with some cognitive deficits, which seemed to improve with therapy; physical limitations, which also improved with physical therapy; and later-onset seizure, of which there is only one documented seizure,” and concluded that the “treatment records do not reflect the degree of exertional or cognitive limitations alleged.” (R. 20). The ALJ explained that “[a]lthough the claimant initially had some difficulty with ambulation, there is no evidence that these problems persisted and the claimant exhibited normal range of motion, strength, and sensation in the extremities (Exhibits IF, 3F, 4F, and 6F),” and the claimant “quickly showed improvement in his cognitive functioning with treatment.” (R. 20). Thus, Claimant's testimony that constant dizziness and the need to lie down throughout the day preclude him from working was contradicted by other evidence in the record and does not undermine the ALJ's finding that Claimant could perform a reduced range of light work. Claimant's assertion that the medical records demonstrate that he has functional limitations that preclude all work is not supported by the actual treatment records summarized above, and his diagnosis of traumatic head or brain injury is insufficient alone to support a finding of disability; “[t]here must be a showing of related functional loss.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Furthermore, the ALJ did provide some accommodation for Claimant's demonstrated reduced cognitive function based, in part, on the opinion evidence, which supports the RFC.
The ALJ evaluated the June 2015 and April 2019 consultative psychological evaluations of Craig Farmer as follows:
On June 6, 2015, C. Craig Farmer, Ph.D., completed a psychological consultative examination. The claimant presented with blunted/reserved affect and euthymic mood. His speech was clear, but somewhat slowed and his conversation was limited to brief responses. However, his thought process appeared clear and he was oriented. The claimant was able to accurately perform serial threes and subtract 82 from 100. He could remember two out of three unrelated items following five minutes and he could give a reasonably concise past history, suggesting adequate memory. The claimant appeared to be functioning within the average range of intellectual ability. His abstract thinking was somewhat limited, while his judgment appeared to be adequate. Dr. Farmer opined that the claimant appeared capable of understanding, retaining, and following instructions; sustaining attention and performing simple repetitive tasks; and tolerate the stressors and pressures of daily work. Dr. Farmer opined the claimant may have some difficulty retaining information and relating to others (Exhibit 5F). The undersigned finds these opinions persuasive, as they are supported by the objective examination findings and are consistent with the claimant's cognitive improvement with therapy, but with some residual limitations (Exhibits 6F and 8F).
Dr. Farmer completed a second psychological consultative examination on April 6, 2019. The claimant ambulated with a normal gait. He stated that he did not remember Dr. Farmer evaluating him in the past. He presented with flat affect and he was not really interactive, as his conversation was limited to brief responses in a monotone voice. The claimant was unable to remember three unrelated objects after five minutes. The claimant was able to count serial threes accurately and perform basic calculations. However, his fund of knowledge appeared poor and he was unable to interpret proverbs. Dr. Farmer noted that the claimant's immediate recall, short-term memory, remote memory, and concentration all appeared to be significantly below average. Dr. Farmer opined that the claimant appeared to be very limited in his ability to understand, retain, and follow instructions. Dr. Farmer further opined that the claimant's ability to sustain attention to perform simple repetitive tasks, relate to others, and tolerate stress were adequate (Exhibit 8F). The undersigned finds this opinion partially persuasive. The opinion that the claimant was limited in his ability to understand, retain, and follow instructions is supported by the examination findings and his cognitive testing shortly after his accident, but are not consistent with the findings of the previous consultative examination (Exhibits 5F and 6F). Nonetheless, the claimant was able to understand and follow instructions to perform the simple tasks asked of him during this examination. The remaining opinions are supported by the examination findings, but are not consistent with the claimant's blunted affect, slowed responses, and limited fund of knowledge, which support additional social and cognitive limitations, so they are not persuasive (Exhibits 5F, 6F, and 8F).
(R. 22-23, 778-80, 864-68). As noted above, Claimant did not challenge the ALJ's assessment of these opinions.
The ALJ limited Claimant to light work with further restrictions to alternate between sitting and standing every two hours; never climbing ropes, ladders, or scaffolding; frequent postural movements; no unprotected heights or moving machinery; simple, routine, repetitive tasks with no more than simple, short instructions and simple work-related decisions with few workplace changes and reasoning level one or two; no work at fixed production rate or pace; frequent contact with others; and a reminder at the start of the day. (R. 18). This RFC accommodates the residual cognitive and physical limitations from Claimant's head trauma and is consistent with Dr. Farmer's most recent finding that Claimant had memory problems but that his ability to sustain attention to perform simple repetitive tasks, relate to others, and tolerate stress were adequate. (R. 23-24, 867-68).
The ALJ considered all the medical evidence, opinion evidence, and Claimant's testimony in formulating the RFC, and the ALJ cited evidence in the record to support the determination that Claimant had the RFC to perform a reduced range of light work. See Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018) (finding no error in the ALJ's RFC determination where the ALJ used evidence from the record to explain his finding that the claimant was capable of light work, explained the weight assigned to statements made by the claimant and the opinion evidence, and provided a thorough discussion allowing the court to conclude the RFC was supported by substantial evidence). The court can trace the ALJ's reasoning, which is supported by substantial evidence. Accordingly, the ALJ did not err in the RFC determination.
B. Hypothetical to the VE
Claimant contends the ALJ failed to accurately set forth all of his physical and mental limitations in the hypothetical posed to the VE. Pl.'s Mem. [DE-19] at 27-28. This argument is foreclosed by the court's finding that the ALJ's RFC determination was without error.
The ALJ may utilize a VE at steps four and five “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be “relevant or helpful,” it must be given in response to a proper hypothetical question. Id. A proper hypothetical question “fairly set[s] out all of claimant's impairments” that are supported by the record as found by the ALJ. Id.', Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question “adequately contemplated all of [claimant's] impairments and resulting limitations” as evidenced by the record).
Here, the hypothetical to the VE included the limitations the ALJ found supported by the record that were ultimately imposed in the RFC. (R. 52-55); see King v. Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *8 (E.D. N.C. Dec. 6, 2018), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27,2018). The additional limitations Claimant suggests the VE should have considered were not included in the RFC by the ALJ. Claimant's argument here is derivative of the RFC argument addressed above and should be rejected for the same reasons.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-18] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE 22] be ALLOWED, 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 August 16, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).