Michael J. N v. Frank Bisignano, Commissioner of Social Security

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA MICHAEL J. N,

Plaintiff,

v. 1:25CV455

FRANK BISIGNANO, Commissioner of Social Security,

Defendant.

ORDER AND MEMORANDUM OPINION OF UNITED STATES MAGISTRATE JUDGE

The plaintiff, Michael J.N. of January 1, 2018. (Tr. 263-69.) The (“Michael”), has sought review of a application was denied initially and final decision of the Commissioner of upon reconsideration. (Tr. 127-30, Social Security denying his claim for 133-34.) After a hearing, the ALJ supplemental security income.1 The issued an unfavorable decision on Court has considered the certified May 24, 2023. (Tr. 105-117.) On administrative record and dispositive August 30, 2023, the Appeals Council briefs from each party. Because the remanded the case because the ALJ Administrative Law Judge’s (“ALJ”) admitted evidence into the record decision is legally correct, supported without also proffering it to Michael. by substantial evidence, and (Tr. 122-25.) The same ALJ had a new susceptible to judicial review, the hearing, proffered the evidence Court affirms the decision of the ALJ, properly, and then determined on as set forth below. June 11, 2024 in a new decision that Michael was not disabled under the I. PROCEDURAL HISTORY Act. (Tr. 17-32.) The Appeals Council denied a request for review, making In January of 2020, Michael filed an the ALJ’s decision the final decision application for supplemental security for review. (Tr. 1-6.) income alleging a disability onset date

1 Transcript citations refer to the Undersigned to conduct all proceedings Administrative Transcript of Record filed in this case pursuant to 28 U.S.C. § manually with the Commissioner’s 636(c). See Docket Entry 13. Answer. See Docket Entry 5. By Order of Reference, this matter was referred to the II. STANDARD OF REVIEW 472-73 (4th Cir. 2012) (citing 20 C.F.R. §§ 416.920(a)(4), While Section 405(g) of Title 42 of the 404.1520(a)(4)). United States Code “authorizes judicial review of the Social Security Under this process, the Commissioner’s denial of social Commissioner asks, in security benefits,” see Hines v. sequence, whether the Barnhart, 453 F.3d 559, 561 (4th Cir. claimant: (1) worked during the 2006), the scope of that review is alleged period of disability; (2) specific and narrow, see Smith v. had a severe impairment; (3) Schweiker, 795 F.2d 343, 345 (4th had an impairment that met or Cir. 1986). Specifically, review is equaled the requirements of a limited to determining if there is listed impairment; (4) could substantial evidence in the record to return to her [or his] past support the Commissioner’s decision. relevant work; and (5) if not, 42 U.S.C. § 405(g); Hunter v. could perform any other work Sullivan, 993 F.2d 31, 34 (4th Cir. in the national economy. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In Id. at 472. A finding adverse to the reviewing for substantial evidence, claimant at any of several points in the Court does not re-weigh this five-step sequence forecloses a conflicting evidence, make credibility disability designation and ends the determinations, or substitute its inquiry. Id. at 473. “Through the judgment for that of the fourth step, the burden of production Commissioner. Craig v. Chater, 76 and proof is on the claimant. If the F.3d 585, 589 (4th Cir. 1996). Put claimant reaches step five, the burden simply: the issue before the Court is shifts to the Secretary to produce not whether Michael is disabled but evidence that other jobs exist in the whether the finding that he is not national economy that the claimant disabled is supported by substantial can perform considering his age, evidence and based upon a correct education, and work experience.” application of the relevant law. Id. Hunter, 993 F.2d at 35 (internal citations omitted). III. THE ALJ’S DECISION Here, the ALJ determined at step one The ALJ followed the correct process, that Michael had not engaged in set forth in 20 C.F.R. § 416.920, to substantial gainful activity since determine disability. See Albright v. January 9, 2020, the application date. Comm’r of Soc. Sec. Admin., 174 F.3d (Tr. 19.) The ALJ next found the 473, 475 n.2 (4th Cir. 1999). following severe impairments at step two: “obesity, lumbar and right “The Commissioner uses a five-step thumb arthralgias, post-traumatic process to evaluate disability claims.” stress disorder (PTSD), borderline Hancock v. Astrue, 667 F.3d 470, intellectual functioning, antisocial personality disorder, and cannabis evidence.” Docket Entry 9 at 3. use.” (Tr. 19.) The ALJ then found that Second, Michael contends that “[t]he Michael did not have an impairment ALJ erred in discounting the severity or combination of impairments listed of [his] mental impairments based on in, or medically equal to one listed in, limited treatment when the evidence Appendix 1. (Tr. 19.) of record demonstrates [he] faced mental deficits and financial The ALJ next set forth Michael’s constraints that limited his ability to Residual Functional Capacity (“RFC”) obtain treatment.” Id. at 16. As set and determined that he could perform forth below, neither objection has medium work merit. except he can frequently handle A. Standard for the RFC and finger [and] understand, Determination. remember, and carry out simple instructions. They can The RFC measures the most a be detailed but not complex. claimant can do in a work setting [He] can focus on tasks for two despite the physical and mental hours at a time, learned by limitations of his or her impairments demonstration in 30 days or and any related symptoms (e.g., pain). less. He cannot have contact See 20 C.F.R. § 416.945; see also with the public and only Dunn v. Colvin, 607 F. App’x 264, 272 occasional contact with co- (4th Cir. 2015) (unpublished) workers and supervisors. He is (claimant’s RFC is “[a] medical capable of routine changes but assessment of what an individual can cannot perform work with daily do in a work setting in spite of the quotas. functional limitations and environmental restrictions imposed (Tr. 21.) by all of his or her medically determinable impairment(s)”) At the fourth step, the ALJ (internal citation omitted); Hines v. determined that Michael was unable Barnhart, 453 F.3d 559, 562 (4th Cir. to perform his past relevant work. (Tr. 2006). The RFC includes both a 29.) Last, at step five, the ALJ “physical exertional or strength concluded that there were other jobs limitation” that assesses the that Michael could perform. (Tr. 29.) claimant’s “ability to do sedentary, light, medium, heavy, or very heavy IV. DISCUSSION work,” as well as “nonexertional limitations (mental, sensory, or skin Michael first contends that “[t]he ALJ impairments).” Hall v. Harris, 658 erred in discounting all the medical F.2d 260, 265 (4th Cir. 1981). opinion evidence of record, leaving the ALJ’s assessment of [his] RFC “Social Security Ruling 96-8p unsupported by substantial explains that the RFC assessment must include a narrative discussion (alteration in original) (quoting describing how the evidence supports Monroe, 826 F.3d at 189). An ALJ’s each conclusion, citing specific failure to do so constitutes reversible medical facts (e.g., laboratory error. See Lewis v. Berryhill, 858 F.3d findings) and nonmedical evidence 858, 868 (4th Cir. 2017). Where an (e.g., daily activities, observations).” ALJ’s “analysis is incomplete and Monroe v. Colvin, 826 F.3d 176, 189 precludes meaningful review,” (4th Cir. 2016) (internal quotations remand is appropriate. Monroe, 826 omitted). An ALJ need not discuss F.3d at 191. every piece of evidence in making an RFC determination. See Reid v. Beyond this, the longstanding Comm. of Soc. Sec., 769 F.3d 861, 865 requirements calling for adjudicators (4th Cir. 2014). Yet the ALJ “must to weigh medical opinions and give build an accurate and logical bridge special deference to treating source from the evidence to [the] opinions have changed. See 20 C.F.R. conclusion.” Brown v. Commissioner, § 416.920c(a) (effective March 27, 873 F.3d 251, 269 (4th Cir. 2017). 2017). Now, adjudicators “will not “The RFC assessment must first defer or give any specific evidentiary identify the individual’s functional weight, including controlling weight, limitations or restrictions and assess to any medical opinion(s) or prior his or her work-related abilities on a administrative medical finding(s), function-by-function basis . . . . Only including those from [a claimant’s] [then] may RFC be expressed in terms medical sources.” Id. Nevertheless, an of the exertional levels of work, ALJ must consider and articulate in sedentary, light, medium, heavy, and the administrative decision how very heavy.” SSR 96-8p, 1996 WL persuasive he or she finds each 374184, at *1. medical opinion or prior medical finding in a claimant’s case record. The Fourth Circuit has held that See id. § 416.920c(b). When a medical “meaningful review is frustrated when source provides more than one an ALJ goes straight from listing opinion or finding, the ALJ will evidence to stating a conclusion.” evaluate the persuasiveness of such Thomas v. Berryhill, 916 F.3d 307, opinions or findings as a class. See id. 311 (4th Cir. 2019) (explaining that “a § 416.920c(b)(1). The ALJ is “not proper RFC analysis has three required to articulate how [he] components: (1) evidence, (2) logical considered each medical opinion or explanation, and (3) conclusion”). prior administrative medical finding Thus, the ALJ “must both identify from one medical source evidence that supports his conclusion individually.” Id. and ‘build an accurate and logical bridge from [that] evidence to his In evaluating persuasiveness, the ALJ conclusion.’” Woods v. Berryhill, 888 must articulate two factors: F.3d 686, 694 (4th Cir. 2018) supportability and consistency. Id. § 416.920c(b)(2). Supportability is an internal check that references Correct and Well Supported. objective medical evidence and supporting explanations that come Michael contends that “[t]he ALJ from the source itself. Id. § erred in discounting all the medical 416.920c(c)(1); see also Revisions to opinion evidence of record, leaving Rules, 82 Fed. Reg. at 5853. the ALJ’s assessment of [his] RFC Consistency is an external check that unsupported by substantial references evidence from other evidence.” Docket Entry 9 at 3. He medical and nonmedical sources. Id. § contends further that “the ALJ 416.920c(c)(2); see also Revisions to discounted every medical opinion Rules, 82 Fed. Reg. at 5853. The ALJ regarding [his] psychological RFC must only address the three other and provided invalid reasons for persuasiveness factors—relationship doing so.” Id. at 12. As a result, with the claimant, specialization, and Michael concludes, the ALJ’s RFC the catchall “other factors”—when two determination is “based on the ALJ’s or more medical opinions, or prior own interpretation of the medical administrative medical findings about evidence of record.” Id. As explained the same issue, are equally persuasive below, this objection lacks merit. in terms of supportability and consistency. Id. §§ 416.920c(b)(3), The RFC constitutes an 416.920c(c)(3)-(5). administrative finding, not a medical assessment, and the responsibility for Furthermore, “[s]tatements that assessing a plaintiff’s RFC rests solely [claimants] are or are not disabled, . . with the ALJ. See 20 C.F.R. § . able to work, or able to perform 404.1546(c). As a result, “[t]he ALJ regular or continuing work,” are was not required to obtain an expert statements on an issue reserved to the medical opinion as to [Michael’s]’s Commissioner. 20 C.F.R. § RFC,” Felton-Miller v. Astrue, 459 F. 416.920b(c)(3). Under the revised App’x 226, 231 (4th Cir. 2011) regulations, statements on issues (unpublished), or to rely upon a reserved to the Commissioner are specific medical opinion in fashioning deemed evidence that “is inherently the RFC, see Wykle v. Saul, No. neither valuable nor persuasive to the 1:19CV155, 2020 WL 697445, at *6 issue of whether [a claimant is] (W.D.N.C. Feb. 11, 2020) (“[T]here is disabled.” 20 C.F.R. § 416.920b(c)(1)- no requirement that an ALJ base his (3). For such claims, “we will not RFC finding, or any particular provide any analysis about how we limitation in it, on a medical opinion”) considered such evidence in our (citing Felton-Miller, 459 F. App’x at determination or decision.” 20 C.F.R. 230-31). See also Moore v. Colvin, § 416.920b(c). No. 15CV425, 2016 WL 1714117 (D.S.C. Apr. 29, 2016) (“[T]he ALJ is B. The RFC Finding Is Legally not required to rely on medical opinions to formulate an RFC assessment, as the ‘ALJ is not precluded from reaching RFC speech was unremarkable. Overall, determinations without outside the content of the claimant’s speech medical expert review of each fact was noted to be relevant, coherent, incorporated into the decision[.]’”) and logical. His attitude was positive, (quoting Chandler v. Commissioner and level of cooperation and effort of Soc. Sec., 667 F.3d 356, 362 (3d Cir. were positive and appropriate. He was 2011)); Howze v. Kijakazi, No. 4:23- able to answer all questions presented CV-00061, 2024 WL 1919203, at *4 and was able to give specific (S.D. Tex. May 1, 2024) (“[T]he mere information and dates without fact that the ALJ did not find any difficulty. He alleged depressed medical opinions persuasive is not mood, loss of interest in activities, reversible error.”). irritability, sleep disturbances, appetite disturbances, loss of energy, Put differently, an ALJ’s decision not psychomotor agitation or retardation, to fully adopt any of the medical all of which started after his opinions in the record alone does not grandmother’s death in 2008. He establish improper substitution alleged symptoms from PTSD that his/her lay opinion. See Mark A. B. v. began in childhood. He also alleged Kijakazi, No. 1:22CV834, 2023 WL witnessing murders in prison, 9381904, at *8 (M.D.N.C. Dec. 15, including when he saw someone cut a 2023) (collecting cases). Where the guy’s head off and he watched it roll ALJ discussed medical and across the floor. He had been in prison nonmedical evidence leading to the for 14 years and he was released in RFC assessment, specifically 2010. He alleged attempting suicide addressing each relevant impairment, in prison. The claimant was diagnosed the ALJ’s decision was supported by with major depressive disorder, substantial evidence.2 PTSD, borderline personality disorder, and cannabis abuse, and i. Dr. Felix Ortiz, Psy.D. was noted as having a history of trauma. Consultative examiner Dr. Felix Ortiz, Psy.D., evaluated Michael on March Dr. Ortiz noted that the claimant’s 9, 2011, Tr. 427-30, and the ALJ symptoms appeared to be severely summarized it thus: impacting his activities of daily living, vocational performance, and On March 9, 2011, the claimant saw interpersonal interactions (Exhibit Dr. Ortiz for a psychological 2F). This opinion is unpersuasive as it consultative evaluation. He drove to is far removed from the relevant the appointment with his girlfriend. period and vague, not noting specific The claimant’s speech was functional limitations rather noting unremarkable, and the quality of his that the claimant’s symptoms severely

2 Because Michael is only challenging his limits its analysis accordingly herein. mental RFC determination, the Court impact his functioning. The examiner old and new regulations regarding appeared to base his findings on the ALJ analysis of medical opinions, claimant’s subjective reports and not vagueness as to vocational limitations the examination. As this opinion is far is grounds for an ALJ to discount a removed from the relevant period and medical opinion in whole or in part.3 vague, it is unpersuasive. Beyond this, an ALJ may also (Tr. 23 (paragraph break inserted).) discount medical opinions based on a claimant’s subjective complaints, The ALJ did not err in concluding that which is what the ALJ did here. See 20 Dr. Ortiz’s opinion was unpersuasive. C.F.R. § 416.920c(c)(1)-(2).4 In He generated it years before the 2018 support thereof, the ALJ pointed to a alleged onset date and the 2021 date considerable amount of record of Michael’s application for SSI. It evidence inconsistent with Dr. Ortiz’s therefore provides limited insight opinion, to the extent it set forth work regarding Michael’s condition during preclusive limitations. the relevant period. Courts in the Fourth Circuit have found no error in For example, prior to his application ALJ decisions deeming medical date, Michael received infrequent opinions predating the alleged onset mental health treatment while he was date to be of limited relevance. See in prison (Tr. 22, 396-424), and Tianna B. v. Kijakazi, No. during the relevant period, he neither 2:22CV392, 2023 WL 3743879, at *8 required psychiatric hospitalization (E.D. Va. Apr. 26, 2023) (collecting nor did he receive mental health cases). Additionally, under both the treatment.5 (Tr. 25, 28, 48-49, 59.)

3 See, e.g., Wesley v. Kijakazi, No. cases). 1:20CV364, 2021 WL 4129234, at *11 (M.D.N.C. Sept. 9, 2021) (“Vagueness constitutes a permissible grounds for an 4 See also, e.g., Craig v. Chater, 76 F.3d ALJ to discount a medical opinion. “) 585, 590 (4th Cir. 1986) (“All Keller gave (collecting cases); Betty C. v. Comm’r, here was a conclusory opinion based Soc. Sec. Admin., No. 1:23-CV-00246- upon Craig’s subjective reports of pain.”); JMC, 2023 WL 7386206, at *5 (D. Md. Cummings v. Comm’r of Soc. Sec., 2023 Nov. 8, 2023) (collecting cases); Samuel WL 8945826, at *2 (4th Cir. 2023) (“Dr. P. v. Comm’r of Soc. Sec., No. 20-5881, Perkis based that statement solely on 2021 WL 5769404, at *6 (W.D. Wash. Cummings’s reported symptoms rather Dec. 6, 2021); Langford v. Comm’r of Soc. than objective evidence[.]”); Wood v. Sec. Admin., No. 1:22-CV-00665-CEH, Comm’r of Soc. Sec. Admin, 2022 WL 2023 WL 3058160, at *26 (N.D. Ohio Apr. 997306, at *2 (4th Cir. 2022). 24, 2023); Chiccola v. Comm’r of Soc. Sec., No. 1:18 CV 2940, 2020 WL 1031488, at *8 (N.D. Ohio Mar. 3, 2020) 5 There is record evidence that Michael (internal citations omitted) (collecting received about an hour of mental health Michael also opted to use marijuana 25, 336, 460-62, 464, 466-68, 500, daily (up to seven times per day) 513, 540, 546-47, 553-54.) rather than psychotropic medications for his mental health symptoms. (Tr. Michael also engaged in a wide array 23-25, 27). The record showed that of daily activities despite his mental Michael flushed his medications impairments. (Tr. 22, 24, 27.) He down the toilet, stopped taking them lived in a home with his longtime due to side effects, or refused to take girlfriend, drove, cared for his them because he did not believe in personal needs, cared for his dog, them (Tr. 22, 402, 24, 48-49, 294 shopped in stores, cleaned, cooked, (“[H]e doesn’t believe in taking went to bars, went to the racetrack medications, said even if he was with his neighbor, and socialized with prescribed medication he wouldn’t friends (Tr. 22, 24, 27, 43, 52-53, 459, take it ‘unless it’s marijuana I’m not 466, 331-46.) He also maintained taking it’.”), 459, 462.) He reported membership in a motorcycle club that only marijuana helped his mood. where he spent time riding (Tr. 23, 24, 27, 451, 459, 462, 532, motorcycles, painting clubhouses, 542, 549.) and “chilling” with people in the motorcycle club world. (Tr. 24, 459, Michael’s mental status examinations 462.) For all these reasons, the ALJ were also normal. (Tr. 21, 24-25, 460- did not err in finding Dr. Ortiz’s 62, 466-68, 500, 513, 540, 546-47, opinion unpersuasive to the extent it 553-54.) Apart from some mild set forth work preclusive limitations. irritability, he generally demonstrated normal appearance, orientation, ii. Crystal Ray, M.A, LPA memory, recall, thought processes, behavior, speech, cooperation, and Consultative examiner Crystal Ray, attention/concentration. (Tr. 21, 24- M.A., LPA examined Michael on care during the relevant multi-year any event, even if the ALJ somehow erred period at issue. He visited with Daymark in this regard (which is not the case), the Recovery Services, Inc. for a clinical error here would be harmless given all psychological assessment on December the other evidence the ALJ cited for 12, 2023 for 35 minutes and a follow up discounting the medical opinions on December 20, 2023 for 31 minutes. described herein. See Pratt v. Kijakazi, (Tr. 539-50.) Given that the ALJ No. 1:20CV679, 2021 WL 4975405, at *4 examined this evidence extensively (Tr. n.4 (M.D.N.C. Oct. 6, 2021) (“[E]ven 25), his conclusion that Michael received assuming for the sake of argument that “no mental health treatment” rather than Plaintiff is correct here, any error is “almost no mental health treatment” or harmless given all the other reasons the “about an hour of mental health ALJ provided—all of which are discussed treatment” is sound. Additionally, any above—that warrant discounting Dr. argument that the ALJ improperly McLemore’s opinion.”). penalized Michael for failing to seek more treatment is unpersuasive. And, in September 5, 2020, Tr. 457-63, and an endorsement. He reported the ALJ assessed her opinion as that the previous day he had follows: gone to a bar and then visited a friend. The claimant reported After the application date, on smoking marijuana daily which September 5, 2020, the he believes helps with his mood claimant saw Crystal Ray, and reported that he refuses to Licensed Psychological take medications. However, the Associate (LPA), for a claimant reported depressed psychological consultative mood “all the time” with evaluation. The claimant drove irritability, tearfulness, poor himself to the exam and was motivation, poor energy, poor accompanied by his girlfriend. sleep, and decreased appetite. He reported living with his girlfriend for 11 years, and he The claimant’s mental status lived in a house his grandfather exam was grossly normal, with gave him. The claimant mood noted as the claimant ambulated normally, his describing his mood as “alright hygiene and grooming were until somebody says something fair, he was cooperative and stupid;” the claimant’s insight interacted appropriately, but was noted as appearing poor, was noted as making minimal but otherwise mental status eye contact and looked at the exam was normal. His thought floor when not speaking. processes were logical, However, when speaking the coherent, and goal directed. claimant’s speech was clear, he The claimant was diagnosed spoke loudly and was quite with antisocial personality demonstrative and expansive in disorder, cannabis use his responses. He reported disorder. Ms. Ray found that getting angry easily and having the claimant would have no problems with authority. The difficulty understanding, claimant reported trying to get retaining, and following simple a job but that no one wanted to instructions. She opined he give him work. The claimant would have trouble sustaining reported joining a motorcycle attention to perform simple club 3 months ago and repetitive tasks. He would also spending a lot of time out on demonstrate difficulty motorcycles, painting tolerating stress and pressures clubhouses, and “chilling” with of day-to-day work activities. people in the motorcycle club She opined his biggest problem world. He did have pending would be in relating to and charges of speeding and getting along with co-workers operating a motorcycle without and supervisors (Exhibit 6F). This opinion is vague and reports (Tr. 21, 24-25, 460-62, 466- speculative, noting that the 68, 500, 513, 540, 546-47, 553-54) as claimant would have a big well as Michael’s admission to problem with social interaction performing a wide array of daily and difficulty in tolerating activities, such as joining and stress; these terms are not participating extensively in a defined and overly vague, and motorcycle club (Tr. 22, 24, 27, 43, therefore unpersuasive. The 52-53, 459, 466, 331-46). An ALJ may mental status evaluation was discount opinion evidence in the face essentially normal and she of contradictory evidence or when appeared to base her that opinion is based on no more than restrictions on his subjective a claimant’s subjective allegations, statements. Due to the vague which is what the ALJ did here. There nature of these opinions was no error in this assessment. finding consistency and supportability is difficult as the iii. Dr. Julia Brannon, PhD degree of limitation is unknown, it is not persuasive. Consultative examiner Dr. Julia Brannon, PhD evaluated Michael on Tr. 24 (paragraph breaks inserted). August 2, 2021, Tr. 464-68, and the ALJ assessed her opinion as follows: The ALJ gave good reasons for finding this opinion unpersuasive. As noted, On August 2, 2021, the vagueness constitutes a permissible claimant saw Dr. Brannon for a grounds for an ALJ to discount a psychological consultative medical opinion in whole or in part. evaluation. The claimant was Ms. Ray’s assertions that Michael accompanied by his girlfriend would have “trouble,” “difficulty,” and of 12 years, was casually a “big[] problem” in various dressed, was cooperative in functional domains (i.e., sustaining answering questions although attention, social interaction, he was noted as answering tolerating stress) did not use impulsively and with irritation vocationally relevant terms. (Tr. 24.) at times. He stated that the In any event, deficits in these domains examiner had denied his were also accommodated in disability since he had been vocationally relevant terms in the there before. The claimant RFC finding that the ALJ ultimately reported having a motorcycle adopted. (Tr. 21.) accident in 2020 and going to the emergency room but having Likewise, the ALJ provided additional no ongoing treatment. During support for discounting Ms. Ray’s the evaluation the claimant was opinion: she based her restrictions on noted as irritable and tense. Michael’s subjective statements, The claimant was diagnosed despite grossly normal mental status with PTSD, unspecified personality disorder with health treatment throughout antisocial traits, and rule out the relevant period (Exhibits cannabis use disorder. Dr. 8F; 9F; 13F). Furthermore, the Brannon found that the claimant has no mental health claimant could understand, treatment and no retain, and follow simple hospitalizations (for mental instructions, but has more health), which does not support difficulty with sustaining this level of limitation. attention and concentration and focus, and is able to (Tr. 24-25 (paragraph break manage and retain information inserted).) and perform duties in a sustained manner. The The ALJ found Dr. Brannon’s opinion claimant demonstrated lo[t]s of only partially persuasive. First, the impulsivity and difficulty with ALJ relied upon evidence of Michael’s managing his temper and is extensive social activities to discount aggressive towards others. The Dr. Brannon’s conclusion that claimant could perform daily Michael was unable to manage his living skills and self-care skills, temper and aggression towards but his social skills and others. (Tr. 25, 52-53, 459, 466, 335, judgment are below average 342.) Second, the ALJ pointed to (Exhibit 7F). Michael’s grossly normal mental status reports, which did not The undersigned finds this demonstrate aggression, mental opinion partially persuasive, as difficulties, or symptoms not while some of the opinions have otherwise accounted for by the RFC. support, finding that the (Tr. 25, 336, 460-62, 464, 466-68, claimant has difficulty 500, 513, 540, 546-47, 553-54.) Third, managing his temper and is the ALJ noted that Michael had aggressive to others is essentially no mental health inconsistent with the claimant’s treatment and no hospitalizations for reports of being in a motorcycle mental health related issues during club, doing club activities, and the relevant period. (Tr. 25.) Thus, the testifying that he can shop twice ALJ’s assessment of Dr. Brannon’s a week. Furthermore, the opinion is legally correct and well undersigned notes that the supported. claimant’s reports of temper and aggressiveness are iv. Dr. John Smith, M.D. subjective reports, while the Dr. John Smith, M.D. performed a claimant has not been noted as March 18, 2024 consultative aggressive nor exhibited any examination on Michael, which the mental difficulties or symptoms ALJ assessed as follows: during physical and mental John R. Smith, M.D., correctly that a quarter and a consultative examiner, dime would total 35 cents. An evaluated the claimant on estimate of the claimant’s March 18, 2024 (Exhibit 14F). intellectual level of functioning The claimant was driven to the was within the average range. examination by a Medicaid His ability to sustain services van, since he told the concentration was reasonable. provider he did not have a valid Dr. Smith opined the claimant license since his release from could understand, retain and prison. His girlfriend was with follow instructions on a general him. He alleged he was not basis though he would likely given any medication while easily become distracted and incarcerated that he could have difficulty focusing. He felt recall. The claimant reported it was unlikely that he could issues with anger management sustain attention for long and PTSD symptoms. periods of time to perform simple, repetitive tasks and Upon exam, he was pleasant could not relate to others, and cooperative and was noted including fellow workers and to be quite talkative. His stream supervisors, as he has low of mental activity was frustration tolerance, easy spontaneous, but he could be irritability and for the same circumstantial though he reasons would likely not be able generally responded well to to tolerate the stress and redirection. He gives no pressure associated with day- evidence of hallucinations or to-day work activity. delusional thought and has no homicidal or suicidal thought. This opinion is partially His mood and affect were persuasive. It is somewhat somewhat irritable. The supported by Dr. Smith’s exam claimant was oriented with but not completely. For regard to time, person, place example, the claimant was and situation. He could repeat generally pleasant and three out of three words cooperative. His mood and immediately and recall all three affect were only “somewhat words after a few minutes. He irritable.” Dr. Smith appears to could name the current have relied mostly upon the President and the number of claimant’s subjective states in the United States. He statements regarding his can state correctly that 100 symptoms. Further, the minus 7 would be 93 but then opinion is inconsistent with the states that 93 minus 7 would claimant’s relatively normal equal 84. He could state presentation at other exams (Exhibit 8F; 9F; 13F). Regular non-examining state agency mental mental status exams only noted health professionals, Drs. Harrison a mildly blunted mood/affect and Gregory, as follows: and were otherwise normal (Exhibit 13F). Dr. Harrison, the state agency consulting physician who (Tr. 25-26 (paragraph break reviewed the medical records inserted).) available on October 2, 2020, found that the claimant could The ALJ found Dr. Smith’s opinion understand and remember only partially persuasive. First, the simple instructions, but [sic] ALJ rejected Dr. Smith’s conclusion “likely have” difficulty with that Michael could not relate to others detailed instructions; could in a work environment because it was concentrate and persist on based on Michael’s subjective simple tasks; would “likely allegations and at odds with Smith’s function best” in a setting that conclusion that Michael was generally does not require social contact; pleasant and cooperative upon and could adapt to a setting that examination and only “somewhat does not require simple tasks. irritable.” (Tr. 26, 460, 466, 540, 547, Dr. Harrison also noted in 553, 432-33, 402, 451.) This another area that the claimant conclusion was also inconsistent with was able to perform simple, Michael’s relatively normal routine, repetitive tasks presentation at other exams and (Exhibit 2A). grossly normal mental status exams. (Tr. 26, 460-62, 464, 466-68, 500, Dr. Gregory reiterated the same 513, 540, 546-47, 553-54.) Beyond limitations as Dr. Harrison; this, Michael participated in a wide however, Dr. Gregory also array of daily activities (Tr. 22, 24, 27, noted that the claimant could 43, 52-53, 459, 466, 331-46) and had understand, retain and follow essentially no mental health simple instructions. He has treatment and no hospitalizations for more difficulty with sustaining mental health related issues during attention and concentration the relevant period. For all these and focus and is able to manage reasons, the ALJ’s assessment of Dr. and retain information and Smith’s opinion is legally correct and perform duties in a sustained well supported. manner. He does demonstrate lo[t]s of impulsivity and v. Drs. Jacquelyn Harrison, difficulty with managing his PhD and Bonny Gregory, temper and is aggressive M.D. towards others. He can perform daily living skills and self-care The ALJ also assessed the prior skills, but his social skills and administrative medical findings of the judgment are below average (Exhibit 3A). claimant has no mental health treatment, which does not The undersigned notes that support this level of limitation. these opinions are internally inconsistent, at one point (Tr. 28 (paragraph break inserted).) noting that the claimant is capable of work limited to The ALJ found Drs. Harrison and simple, routine, repetitive Gregorys’ opinions somewhat tasks; and at another point unpersuasive. First, as the ALJ noting that the claimant cannot correctly pointed out, these opinions perform work that requires are internally inconsistent, at one adapting to simple tasks. The point noting that Michael is capable of undersigned finds these work limited to simple, routine, opinions somewhat repetitive tasks; and at another point unpersuasive, as while some of noting that he cannot perform work the opinions have support, that requires adapting to simple finding that the claimant can tasks.6 (Tr. 28.) adapt to a setting that does not require simple tasks appears to Second, the ALJ accurately pointed suggest that the claimant could out that Michael had not presented as not work and adapt to a simple aggressive or having work preclusive work environment, but both mental difficulties or symptoms consultants found that the during his physical treatment. (Tr. claimant could work. The 28, 471-523, see also Tr. 460-62, 464, undersigned notes that the 466-68, 500, 513, 540, 546-47, 553- claimant’s reports of temper 54.) Third, the ALJ pointed to and aggressiveness are Michael’s lack of mental health subjective reports, while the treatment as another reason for claimant has not been noted as partially rejecting the non-examining aggressive or any mental state agency opinions. (Tr. 28.) difficulties or symptoms during Fourth, elsewhere in the decision, the physical treatment in ALJ also pointed to Michael’s December 2020, December extensive activities of daily living. (Tr. 2021, and early 2022 (Exhibits 22, 24, 27, 43, 52-53, 459, 466, 331- 8F and 9F). Furthermore, the 46.) The ALJ’s assessment of Drs.

6 The state agency experts’ reports appear totality of evidence in file, [Michael] has to contain a typographical error that a severe mental impairment that imposes should have stated Michael “can adapt to functional limitations on day-to-day a setting that requires simple tasks” activities but not great enough to rather than “[c]an adapt to a setting that preclude all work. [Michael] is able to does not require simple tasks.” (Tr. 84, perform [simple, routine, repetitive, 98.) Elsewhere in their reports, the tasks].” (Tr. 80, 95.) consultants stated that “[b]ased on Harrison and Gregorys’ opinions is For all of the reasons set forth above, legally correct and well supported. Michael’s objections are unpersuasive.7 vi. Michael’s Objections to the Contrary Are Not C. The Subjective Complaints Persuasive. Assessment is Legally Correct and Well Supported. Michael’s objections to the contrary are not persuasive. He contends that Michael’s challenge to the ALJ’s the ALJ discounted every medical assessment of his subjective opinion regarding his psychological complaints is likewise unpersuasive. RFC and provided invalid reasons for “An ALJ assesses the credibility of a doing so. Docket Entry 9 at 12. But claimant’s subjective statements this is not so. All of the medical about his condition as part of the RFC sources who evaluated the issue assessment,” Ladda v. Berryhill, 749 agreed that Michael could F. App’x 166, 170 (4th Cir. 2018) understand, retain, and follow simple (unpublished), using a two-part test: instructions. (Tr. 24, 463 (Ray), 25, “First, there must be objective 468 (Brannon), 26, 554 (Smith), 28, medical evidence showing ‘the 80, 83, 95, 97-98 (Harrison and existence of a medical impairment(s) Gregory).) The ALJ reached the same which results from anatomical, conclusion. (Tr. 21). physiological, or psychological abnormalities and which could Additionally, to the extent the ALJ did reasonably be expected to produce the reject a limitation set forth in one of pain or other symptoms alleged,’” the opinions discussed above, she Craig, 76 F.3d at 594 (citing 20 C.F.R. gave multiple good reasons for doing §§ 416.929(b), 404.1529(b)). so. These reasons included Michael’s performance of a wide array of daily If such an impairment exists, the ALJ activities, little to no mental health must then consider, as the second treatment and no hospitalization prong of the test, all available related to mental health during the evidence, including the claimant’s relevant period, and grossly normal statements about pain, to determine mental status examination with only whether the claimant is disabled. Id. mild irritability and blunted affect. at 595-96. In so doing, the ALJ need

7 Michael’s reliance on Brandon K. v. own interpretation of the raw medical O’Malley is also unpersuasive as it is evidence, and rejected the opinion of factually distinct. Docket Entry 9 at 15. Plaintiff’s treating neurologist in a See Brandon K. v. O’Malley, No. 22-cv- medically complex case without any 1041, 2024 WL 1331969, at *7-8 other medical review of the relevant (M.D.N.C. Mar. 28, 2024) (“[T]he ALJ imagining and records from 2020 appears to have based the RFC in this through 2022.”). case largely, and inappropriately, on her not credit them if they conflict with (vii) “Other factors concerning the objective medical evidence or if [the claimant’s] functional the underlying impairment could not limitations and restrictions reasonably be expected to cause the due to pain or other symptoms alleged. Id. Where the ALJ symptoms.” has considered the relevant factors, see 20 C.F.R. § 416.929(c)(3), and 20 C.F.R. § 416.929(c)(3). heard the claimant’s testimony and observed his or her demeanor, the Here, the ALJ completed the two- Court will defer to the ALJ’s step Craig analysis. As a preliminary determination regarding those matter, the ALJ summarized subjective complaints, Shively v. Michael’s subjective complaints. (Tr. Heckler, 739 F.2d 987, 989 (4th Cir. 22.) Specifically, Michael alleged that 1984). he was disabled because of “motorcycle accidents. He broke his Those relevant factors include: thumb and had chronic back pain. His back pain radiates down his right leg. (i) “[The claimant’s] daily Pain is more than 10 on a pain scale. activities;” He gets anxious. He does not get along (ii) “The location, duration, with others. . . . He is easily frequency, and intensity of sidetracked. He has problems [the claimant’s] pain or managing his reactions.” (Tr. 22, 42- other symptoms;” 59.) (iii) “Precipitating and aggravating factors;” The ALJ then concluded that (iv) “The type, dosage, Michael’s “medically determinable effectiveness, and side impairments could reasonably be effects of any medication expected to cause some of the alleged [the claimant] take[s] or symptoms . . . .” (Tr. 22.) Thus, the [has] taken to alleviate his ALJ performed the first step of pain or other symptoms;” the Craig analysis. Next, the ALJ (v) “Treatment, other than performed step two of the analysis, medication, [the claimant] concluding that Michael’s receive[s] or [has] received “statements concerning the intensity, for relief of his pain or other persistence and limiting effects of symptoms;” these symptoms are not entirely (vi) “Any measures [the consistent with the medical evidence claimant] use[s] or [has] and other evidence in the record for used to relieve his pain or the reasons explained in this other symptoms (e.g., lying decision.” (Tr. 22.) flat on [his] back, standing for 15 to 20 minutes every The ALJ then gave good reasons for hour, sleeping on a board, partially discounting Michael’s etc.); and” subjective allegations. For example, the ALJ relied on Michael’s largely work.”).) This is yet more substantial normal mental status examinations. evidence of conduct inconsistent with The ALJ noted that Michael’s allegations of total disability. For all orientation, memory, recall, thought these reasons, the ALJ’s assessment processes, attention and of Michael’s subjective complaints is concentration were grossly normal, legally correct and well supported. though his mood/affect was sometimes mildly irritable. (Tr. 21, Fourth, this is not a case where the 24-25, 460-62, 464, 466-68, 500, 513, ALJ completely rejected all of a 540, 546-47, 553-54, 336.) This is claimant’s subjective complaints. substantial evidence undermining Rather, here, for the many reasons set Michael’s assertions of total disability. forth above, the ALJ concluded that Michael’s symptom allegations, Second, the ALJ pointed to Michael’s including those of extreme social extensive daily activities, which limitations, should be partially included (among other things) discounted. Consequently, the ALJ driving, caring for his personal needs, limited Michael to understanding, caring for his dog, shopping in stores, remembering, and carrying out cleaning, cooking, going to bars and simple instructions that could be the racetrack, participating in a detailed but not complex; with no motorcycle club, and socializing with public contact and only occasional8 friends. (Tr. 22, 24, 27, 43, 52-53, 459, contact with co-workers and 462, 466, 331-46.) This is substantial supervisors; with only routine evidence of conduct inconsistent with changes; and without with daily allegations of total disability. quotas. (Tr. 21.) Beyond this, it is clear from the vocational testimony Third, Michael also testified that he that the jobs the ALJ ultimately did not feel that he needed mental concluded that Michael could perform health medication (Tr. 27, 49), that he (automobile detailer, store laborer, did not notice any difference with the and industrial cleaner) required even medication he had recently tried (Tr. “less than occasional contact with 50), and that he preferred instead to coworkers and supervisors.” (Tr. 30, self-treat with marijuana (Tr. 27, 294, 63-65.) In short, the ALJ’s subjective 451, 462, 459, 535, 542). He also complaints analysis is legally correct, reported looking for work but being well supported, and susceptible to unable to find it due to his prison judicial review. record. (Tr. 24, 457-58 (“I went to prison when I was 19 and stayed in Michael’s objections to the contrary there for 14 years, I’ve been trying to are not persuasive. He asserts that the get work, but no one wants to give you ALJ improperly discounted his

8 Regulations define the term 1983 WL 31251, at *5; S.S.R. 96-9p, 1996 “occasional” as “occurring from very little WL 374185, at *3. up to one-third of the time.” S.S.R. 83-10, subjective allegations based on his without considering possible limited mental health treatment reasons he or she may not without explanation and in the face of comply with treatment or seek evidence that he could not afford treatment consistent with the treatment, understand the degree of his or her complaints. appropriate treatment, or understand [The ALJ] may need to contact the need for consistent treatment. the individual regarding the Docket Entry 9 at 16-21. lack of treatment or, at an administrative proceeding, ask The United States Court of Appeals why he or she has not complied for the Fourth Circuit has held that with or sought treatment in a “[a] claimant may not be penalized for manner consistent with his or failing to seek treatment [he or] she her complaints. When [the cannot afford,” because “‘[i]t flies in ALJ] consider[s] the the face of the patent purposes of the . individual’s treatment history, . . Act to deny benefits to someone . . . [the ALJ] may consider (but [is] too poor to obtain medical treatment not limited to) one or more of that may help [her].’” Lovejoy v. the following: Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (quoting Gordon v. Schweiker, . . . . 725 F.2d 231, 237 (4th Cir. 1984)). An individual may not be able An administrative ruling provides to afford treatment and may further insight when a claimant is not have access to free or low- non-complaint with (or fails to seek) cost medical services. treatment as follows: . . . . . . . [I]f the frequency or extent of the treatment sought by an Due to various limitations individual is not comparable (such as language or mental with the degree of the limitations), an individual may individual’s subjective not understand the appropriate complaints, or if the individual treatment for or the need for fails to follow prescribed consistent treatment of his or treatment that might improve her impairment. symptoms, [the ALJ] may find the alleged intensity and . . . . persistence of an individual’s [An ALJ] will consider and symptoms are inconsistent address reasons for not with the overall evidence of pursuing treatment that are record. [The ALJ] will not find pertinent to an individual’s an individual’s symptoms case. [The ALJ] will review the inconsistent with the evidence case record to determine in the record on this basis whether there are explanations pointed to further evidence that for inconsistencies in the regardless of whether he had access to individual’s statements about mental health treatment, his symptoms and their effects, preference was to self-medicate with and whether the evidence of marijuana daily (sometimes up to record supports any of the seven times per day). (Tr. 23, 24, 25, individual’s statements at the 27, 535, 294, 459, 462, 451, 532, 542, time he or she made them. [The 549.) In fact, at one point about a year ALJ] will explain how [he or and a half before the alleged onset she] considered the date, Michael was spending $400 per individual’s reasons in [the month on marijuana. (Tr. 23, 448.)9 ALJ’s] evaluation of the individual’s symptoms. Beyond this, even after Michael had Medicaid, the record demonstrates SSR 16-3p, 2017 WL 5180304, at *9- that he only received mental health 10 (Oct. 25, 2017) (“SSR 16-3p”) services at Daymark twice for about a (emphasis added) (bullets omitted). total of one hour. (Tr. 539-50.) In any event, the ALJ both acknowledged Here, the ALJ complied with both Michael’s alleged inability to afford Lovejoy and Ruling 16-3p. She treatment and provided an addressed Michael’s ability to afford explanation for why she did not find treatment by noting that as of Michael’s alleged lack of funds a December 1, 2023 Michael “could get sufficient basis to justify the minimal treatment now that he had Medicaid, treatment.10 but he then said he did not believe in medications” and it was “unclear what Beyond this, even if Michael was type of treatment he was referring to.” experiencing financial hardship, he (Tr. 27, 46.) Thus, the ALJ failed to show that he did not have acknowledged Michael’s uninsured access to free or low-cost medical status until December of 2023, but services. Thus, the ALJ was permitted

9 The ALJ also states that Michael received a $13,900.00 settlement after 10 Michael’s reliance on Howe v. one of his motorcycle accidents but used Kijakazi, No. 7:22-CV-66-FL, 2023 WL those funds to buy a motorcycle and a 5363719, at *5 (E.D.N.C. July 31, 2023) is van, which would undermine his plea of also unpersuasive as it is factually poverty. (Tr. 27.) Although Michael does distinct. Docket Entry 9 at 20. Howe v. not challenge this finding, the ALJ does Kijakazi, No. 7:22-CV-66-FL, 2023 WL not cite to evidence of its location in the 5363719, at *5 (E.D.N.C. July 31, 2023) record, the Commissioner has not relied (“[T]he ALJ failed to consider why upon it in its briefing, and the Court has Claimant was noncompliant with her been unable to locate it. Thus, the Court medications. This was error[.]”). has not relied upon it in assessing the decision for substantial evidence. to conclude that his symptoms were for his mental health symptoms, even not as severe as alleged. See Dooley v. though he did so for his physical Commissioner of Soc. Sec., 656 F. complaints (Tr. 24, 26, 496-523.) App’x 113, 120 (6th Cir. 2016) Thus, the record fails to credibly (“[A]lthough Dooley said that he demonstrate that Michael’s mental could not afford to see a specialist for illness prevented him from seeking mental health treatment, the record medical treatment. does not indicate that he ever sought mental health treatment from no-cost Last, assuming arguendo that the ALJ to low-cost providers within his somehow erred here, the error was community. The ALJ could therefore harmless. The ALJ’s subjective reasonably conclude that Dooley’s complaints analysis turns on much failure to seek more aggressive more than a negative credibility medical treatment indicated that his determination based on a failure to pain and other symptoms were not as seek treatment. By way of example, severe as he alleged.”). Michael’s grossly normal mental status reports, his extensive activities Michael’s argument that the ALJ of daily living, and his active search failed to explain whether his non- for employment were on their own compliance was a symptom of his substantial evidence supporting the mental illness is equally unavailing. ALJ’s subjective complaints Docket Entry 9 at 21. Michael’s assessment.11 While Michael mental impairments did not prevent disagrees and points to evidence that him from self-medicating with the ALJ already considered to argue marijuana daily because marijuana for greater limitations, it does not allegedly was the only substance that follow that the ALJ’s decision was helped with his mood. (Tr. 23, 24, 25, erroneous or that Michael can ask this 27, 535, 294, 459, 462, 451, 532, 542, Court to reweigh the evidence to 549.) And despite not taking any arrive at a different conclusion. For all psychotropic medications, Michael these reasons, Michael’s objection is never sought emergency room care without merit.

11 See Magruder v. Colvin, No. 2:16-CV- (M.D.N.C. Apr. 22, 2016); Turner v. 15, 2016 WL 6502531, at *17 (N.D.W. Va. Colvin, No. 3:12-CV-00422-MOC, 2013 Oct. 14, 2016), report and WL 1181603, at *4 (W.D.N.C. Mar. 21, recommendation adopted, No. 2:16-CV- 2013); McKinney v. Astrue, No. 5:06- 15, 2016 WL 6495587 (N.D.W. Va. Nov. CV-00998, 2008 WL 754109, at *14 2, 2016) (even if ALJ erred by holding (S.D.W. Va. Mar. 19, 2008); Daryl B. v. “Plaintiff’s failure to seek more extensive Saul, No. 3:19CV280 (DJN), 2020 WL treatment against her,” the error was 1471690, at *10 (E.D. Va. Mar. 26, 2020); harmless in light of the “otherwise Lopez v. Berryhill, No. 16 C 10532, 2017 thorough and well-reasoned credibility WL 3278844, at *6 (N.D. Ill. Aug. 2, determination”); Hose v. Colvin, No. 2017). 1:15CV00662, 2016 WL 1627632, at *6 V. CONCLUSION After careful consideration of the evidence of record, the Court finds that the Commissioner’s decision is legally correct, supported by substantial evidence, and susceptible to judicial review. Accordingly, IT IS HEREBY ORDERED that the final decision of the Commissioner is upheld.

ore □□ McFadden nited States Magistrate Judge May 6, 2026 Durham, NC