SINEATH v. COLVIN, No. 1:2016cv00028 - Document 14 (M.D.N.C. 2016)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/09/2016. For the reasons stated herein, this Court RECOMMENDS that Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 9 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be GRANTED, and that the final decision of the Commissioner be upheld.(Taylor, Abby)
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SINEATH v. COLVIN Doc. 14 IN THE UNITED STATES DISTRIÇT COURT FOR THE MIDDLE DISTRICT OF NORTH ÇAROLINA WANDA SINEATH, ) ) ) ) ) ) ) ) ) ) Plaintiff, v C,A.ROLYN \)ø. COLVIN, Acting Commissionet of Social Security, Defendant. 1,:1,6CY28 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, lTanda Sineath, seeks review of Secutity denying her claims for a Period a final decision of the Commissioner of Social of Disability and Disability Insurance Benefits ("DIB") and Social Security Income ("SSI"). The Coutt has befote it the certified administtative record and cross-motions for reasons discussed below, judgment. Q)ocket Entries 6,9,1.1,1.3.) For it is recommended that Plaintiff s motion fot judgment tevetsing the Commissioner (Docket Entry 9) be denied, Defendant's motion fot judgment on the pleadings pocket Entry 11) be grantetl, ald thaL lhe Cotrurússiurret's decision be afFu'mcd. I. PROCEDURAL HISTORY Plaintiff applied for DIB and SSI on October 1.7,201.2, alleging a disability onset date of June 1.9, 201,2. Çr. 1,71-183.)t Her applications were denied initialiy and upon r Transcrþt citations refer to the sealed administrative recotd which Answer. (Docket Entry 8.) was filed with Defendant's 1, Dockets.Justia.com reconsideration. Qr. 76-77, 100-01.) Theteaftet, Plaintiff requested a hearing de novo before an '\dministrative Law Judge 1"ALJ"). Çr. 1,33-34.) Plaintiff, her attotney, vocational expert appeared at the hearing on March 28,201,4. Qr.23-55.) A decision was issued onJune 16,2014, upholding the denial of Plaintiffls application fot 9-22.) On November 1.7 ,2015, the Appeals Council and a DIB and SSI. (It. denied PlainufPs request fot review of the decision, theteby making the ALJ's detetmination the Commissionet's final decision fot purposes of judicial teview. Çr. 1,-a.) II. STANDARD OF REVIEW The scope of judicial review of the Commissioner's fìnal decision is specific and rrarrov/. Smith u. Schweiker, 795 tr.2d 343, 345 (4th Cir. 1986). Review is limited to determining decision. if there is substantial evidence in the record to support the 42 U.S.C. $ a05(g); Hønteru. Sø11iuan,993F.2d31,34 (4th 907 F.2d 1453,1,456 (4th Cir. Commissionet's Cit. 1,992);Ha1s u. Salliuan, 1990). In reviewing for substanttal evidence, the Court does not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissionet. Craig u. Chater, 7 6 F .3d 585, 589 (4th Cit. 1996). The issue before the Court, therefore, is not whether Plaintiff is disabled but whether the Commissioner's finding that he is not disabled is suppotted by substantial evidence and was reached based upon ^ cortect application of the relevant law. Id. III. THE ALJ'S DISCUSSION The ALJ followed the well-established fìve-step sequential analysis to ascettain whethet Plaintiff is disabled, which is set forth in 20 C.F.R. 2 S 404.1520 and 41.6.920. See Albright u. Comm'r of Soe Sec. determination, the Admin.,174F.3d 473,475 n.2 (4th Cir. 1,999). In tendedng his disability A{ made the following findings later adopted by Defendant: 1,. The claimant meets the insured status tequirements of the Social Security ct [the "Act"] on December 31, 20L6. 2. The claimant has not engaged in substantial gainful activity since June 19, 2012, the alleged onset date (20 CFR 404.1511, et seq., and 20 CF'R 41,6.971, et seq.). has the following sevete impafuments: degenerative joint disease of the right hip, lumbar spinal stenosis, carpal tunnel syndtome, and obesity (20 CFR 404.1520(c) and20 CFR 416.920(c)). 3. The claimant 4. The claimant did not have an impairment ot combination of impairments that met or medically equaled the sevetity of one of the üsted impaitments in 20 CFR Part 404, Subpart P, ,\ppendix 1, Q0 CFR 404.1520(d), 404.L525, 40 4.1. 526, 41, 6.9 20 (d), 41. 6 .9 25 and 41 6.9 26) . 5. After careful consideration of the entite tecord, the undersigned finds that the claimant has the residual functional capacity IRtrC] to perfotm light wotk as defined tn 20 CF'R 404.1567(b) and 20 CF'R 416.967þ) with additional ümitations. Specifically, the claimant can lift or c^ffy up to 20 pounds occasionally and 10 pounds frequently. She can sit, stand, or rvalk, each for up to 6 houts in a notmal 8-hour day, but tequires a sit/stand option at 60-minute intervals. The claim^nt caî occasionally push or pull with the dght lower extremity, and can frequently handle with the bilatetal upper extremities. She can occasionally balance, stoop: kneel, ctouch, ctawl, and climb ramps or staits, but never climb ladders, ropes ot, scaffolds. She must avoid concentrated exposure to workplacehazards such as dangerous moving machinery and unprotected heights. Qr.11,-1,4.) -) In light of the above fìndings regarding Plaintiffls RFC, the '\LJ detetmined that Plaintiff was unable to perform her past wotk as an injection molding machine operator. Çr.21.) Based upon PlaintifPs age, education, work experience, and het RFC, the .LJ concluded that "there wete jobs that existed in signifìcant numbers in the national economy that the claimant could have performed." (Id. (ciang 20 C.F'.R. SS 404.1569, 404.1.569(a), 416.969, and 41,6.969(a)). -Accordingly, the ALJ concluded that Plaintiff was not disabled. (r.22.) IV. ANALYSIS Plaintiff contends that the Commissioner ered in determining that she was not disabled for putposes of the Act. (Docket Entry 10). Plaintiff raises three atguments.2 First, Plaintiff contends that the ALJ conducted an imptoper ctedibility analysis. (Id. at 4- 12.) Second, Plainuff contends that "[t]he ALJ erred by failing to petfotm a function by function assessment of televaflt, cofltested functions when assessing the 14.) Lastly, Piaintiff argues that the ALJ etted in his assessment RFC." (Id. at 12- of the medical opinion evidence. (Id. at14-1,6.) ,{. The ALJ Conducted a Proper Credibility Analysis First, Plaintiff contends that the ALJ's credibility analysis requires 12). temand. (Id. at 4- The Fourth Citcuit Cout of Appeals has adopted a two-step process by which the AtJ must evaluate a claimant's symptoms. The fitst step requires the ALJ to detetmine if the 2 lØhile Plaintiff organtzed her claims into two separate arguments, Plaintiffs function by function assessment claim can be separated into two diffetent issues. 4 claimant's medically documented impairments could reasonably be expected claimant's alleged symptoms . C-tg,7 6 F .3d ^t 594. The second to cause the step includes an evaluation of subjective evidence, considering the claimant's "statements about the intensity, persistence, and limiting effects of fthe claimant's] symptoms." Id. 41.6.929(c)(4) and ^t 595 (citing 20 C.F'.R. SS a0aJ,529(c)()). "The ALJ must consider the following: (1) a claimant's testimony and other statements concetning pain ot othet subjective complaints; (2) claimant's medical history a¡dlaboratory findings; (3) any objective medical evidence of pain; and (4) any other evidence televant to the severity of the impairment." Grwbb1 u. Astrue, No. 1:09cv364, 201,0WL5553677,atx3 CX/.D.N.C. Nov. 18,201,0) (unpublished) (citing Craig16F.3dat595; 20 C.F.R. $ 40a.1529(c). "Other evidence" refers to factots such as claimant's daily activities, dutation and frequency of pain, treatment other than medication teceived for relief of symptoms, and any othet measures used to relieve claimant's alleged pain. Id. Moreover, SSR 96-8p requires that: The adjudic tot must considet all allegations of physical and mental limitations ot restrictions and make everT reasonable effort to ensure that the file contains sufficient evidence to assess RFC. Cateful considetation must be given to any avallable infotmation about symptoms because subjective desctiptions may indicate more severe limitations or Íestrictions than can be shown by objective medical evidencc alonc. SSR 96-8P, 1.996 WL 3741.84, at SSR 96-7p, instructs the A{ x5. Similatly, in determining the credibility of a claimant, to "consider the entite case record" and requires a credibility determination to "contain specific reasons for the finding on ctedibility, supported by the evidence in the case record[.]" SSR 9ó-7p ,WL3741,86 atx2. An ALJ's credibility finding is entitled to "substantial deference." Saye u. Chater, No. 95-3080, 1.997 WL 2.32305, at 5 xl (4th Cit. May 8, 1991) (unpublished). In this case, upon completing the two-step Craig analysis, determination, the as laid out in his ALJ sufficiendy explained his teasoning with respect to Plaintiffs subjective allegations giving several reasons fot not finding Plaintiff credible. (It. 19.) The ALJ begins his analysis by acknowledging PlaintifPs diagnoses for osteoarthritis of the bilatetal hips and spinal stenosis but notes that "the exact etiology of fPlaintiffs] pain remains unclear." (Id.) The AfJ also states that there weÍe a numbet'of teferences to x-rays and MRIs and descdptions of PlaintifPs degenerative joint disease ranging from mild to severe but the studies are not patt of the record. Qd.) Further, the ALJ notes that both of Plaintiffs hips have full stength and are neurovasculady intact. (Id,) Next, the '\LJ reasoned that Plainuffs spadng use of pain mediation prepare meals." Qd.) Next, she was despite still able to do "light housework, laundry, and the ALJ noted Plaintiff was not furthet tteated for her carpal tunnel syndrome aside from being prescdbed splinting pteviously. The ALJ also teasoned that thete were no opinions from consultative examinations ot thitd paties regarding specific functional limitations imposed by Plaintiffs impairments. The Coutt is able to "trace the path" of the ALJ's reasoning for finding Plaintiff not entitely credible. Id.; Able 1.:1,4CY1,078,201,6 u. Coluin,No. WI- 1229086, at x6 (I4.D.N.C. Mat. 28,201,6) (unpublished) (concluding that the ALJ's analysis of the claimant's credibility ptovided multiple reasons fot finding the claimant not entirely ctedible and complied with Craigby aliowing the Court path" of the AIJ's reasoning); Cammings u. Coluin, No. 1:14CV00520, 2016 W to "trace the 698081, at *6 (1\4.D.N.C. Feb. 19, 2016) (unpublished) (concluding that the ALJ's thorough discussion 6 of the plaintiffs testimony with respect to daily activities ptovided a logical bddge between the plaintiffs datly acttvities and the ALJ's conclusion that the plaintiff lacked cteditability regatding the impact of her disabling symptoms); Miller u. Coluin, No. 1:14CV948, 2016 WI430496, at *4 (I\,{.D.N.C. Feb. 3, 201,6) (unpublished) (the ALJ conducted a proper ctedibility analysis by assessing all evidence including the claimant's testimony, activities of daily living, and specific inconsistencies tegatding the claimant's complaints of disabling symptoms and limitations) Plaintiff atgues that the ALJ's teliance on Plaintiff living do not bear 10 at 8.) a Howevet, s ability to conduct activities of daily meaningful telationship to the activities of the workplace. Q)ocket Entty as noted above, activities of daily living is a factor that is considered when evaluating credibility. B1as, 201.5 WL 3791444, at *3; Craig 16 F.3d ^t 595. Futthermote, Plaintiffs headng testimony tegatding activities of daily living are inconsistent with other statements made by Plaintiff in the tecotd. In a functional report Plaintiff walk in a store for up to 30 minutes. Qr 234.) However, stated that she can at the headng, Plaintiff testified to only being able to walk 10 to 15 steps in the grocery stote without getting tired. Qr.37) Moreover, in a functional report, Plaintiff stated she is able to do light cleaning, laundry and cooking while sitting down. However, at the hearing, Plaintiff testified that she does not do chores. Gr. 38.) Thus, the ALJ ptopedy considered Plaintiffs activities of daily living and, in some instances, Plaintiffs heating testimony is inconsistent with other evidence in the recotd Plaintiff also contends that the ALJ should have tequested that the x-tays and MRIs be 7 produced since the ALJ acknowledged theit absence as one of the reasons for finding the Plaintiff not enrìrely credible in his analysis. Q)ocket Entty contends that it is the ALJ's duty to develop the 1,0 at 6-7.) Plaintiff further recotd. "The ALJ's duty to futhet develop the record arises when an inconsistency ot conflict in the evidence requites resolution ot when insufficient evidence exists to assess an impairment." Martin u. Coluin, No. 1:14CV51.6,201.5 WL 5944455, at x4 (À4.D.N.C. Oct. 13,2015);20 C.F.R. Here, the ALJ did not have SS 404.1519uþ), 41.6.91.9aþ). to further develop the recotd because he had enough infotmation about the x rays and MRIs to evaluate and draw a conclusion about the sevedty of Plaintiffs impafuments. \X4rile the ALJ did not have the acítalimaging studies, the medical record did provide information regarding the results of the studies. 391,.) Moreover, the A{ noted that the Qt. 284,322,340,355, x rays, MRIs, and descrþtions of Plaintiffs degenetative joint disease tanged ftom mild to severe. Inconsistent lab reports and medical findings ate factors evaluated to assess ctedibility. C*tg,76 F3d ^t 595. Thus, the ALJ correctly noted the discrepancies among the x rays and MRIs. Plaintiff also contends that according to Hines u. Barnhart,453 F.3d 561. (4th Cu. 2006), "the ALJ was not at liberty to reject fPlaintiffs] allegations tegarding the extent of het functional limitations stemming ftom þer] conditions" since she satisfied step one of the two step Craiganalysis by showing that the objective medical evidence indicates that het conditions reasonably likely cuse the pain alleged. (Docket Entry 10 at 1,1,.) However, as previously reasoned by this district lHinet) holds only that, at part two of the credibility assessment, 'subjective evidence of the pain, its intensity ot degtee can, by itself, support a finding of I disability.' Hines,453 F.3d 563. In other words, under the apptopriate ^t to tely exclusively on a claimant's subjective circumstances, an N-J mq choose complaints to find disabling pitn at part two of the credibility assessment. However, Hines does not nmpel ALJs to consider only subjective evidence at part two of the credibility assessment, as such a requitement conflicts with the tegulations, which plainly tequire ALJs to consider a vanety of factots in evaluating the intensity, persistence, and limiting effects of pain. Ma¡on u. Coluin, No. 1:13CV1150,2015 WI- 4460348, at *5 (À4.D.N.C. July 21,2015) (unpublished) (emphasis in the odginal). Thus, the ,\LJ ptopedy took into account medical signs and laboratory findings, daily activities, testimony about the natute and location medication and othet treatment used of pain, to alleviate pain, along with medical opinions from examining and non-examining sources to assess Plaintiffs credibility at step two of the Crøig analysis. Lastly, Plaintiff asserts that the ,ALJ failed to mention that the reason Plaintiff did not use the medication Tramadol (Jltram) was because 1,0 at 6.) it did not help her pain. (Docket Entty The record indicates that Tramadol and Vicodin provide mild relief. Gr. 3ó9.) IØhile the medication only provides mild relief, Plaintiff toletated more pain than she would have if she had taken the medication. In any event, failure to mention that the medication only had a mild positive effect was harmless error. "fl]here is no teason to believe that but for the ptesumed error, this case would resolve diffetently." Tlms 201,4 1 :1 a. Coluin, No. 1:10CV856, WL 509195, ar x10 (I\4.D.N.C. Feb. 7, 201,4) reþort and recomrnendation adopted, No. 0CV856, 201 4 WL 1,338270 (1VLD.N. C. Apt. 1, B. 201. 4) (unpublished). Function by Function,\nalysis Next, Plaintiff contends that the AfJ failed to propedy conduct a function by function 9 analysis of the televant contested functions when assessing the RFC. (Docket Entry 10 at 12-1,4.) In patticulat, Plaintiff asserts that "the ALJ did not perform a function by function analysis of the contested functions of walking, standing, sitting, üfting and bending." (Id. at 13.) "[Ilh. process Monroe u. Coluin,No. for assessing [the] RFC is set out in Social Secutity Ruling 96-8p." 15-1098,2016WL3349355,atx9 (4th Cir.June 1,6,20I6)(unpublished) (citing Mascio,780 F.3d at 636). Accotding to Social Security Ruling 96-8p "[t]he RFC assessment must ftst identift the individual's functional limitations or restictions and assess his or het work-telated abilities on a function-by-function basis" including the functions listed in the tegulations. SSR 96-8P, 1,996 function analysis may u. ^îALJ WL 3741,84, at *1. "Only aftet such a function-by- express RFC in terms of the exertional levels of work." Monroe Coluin,2016WL3349355, at x9 (internal quotations and citations omitted). The Foutth Circuit has addtessed whethet an ALJ's failure to atticulate a function-by- function analysis necessitates remand. Mascio,780 F'.3d "that a per se rule is inappropdate given that temand ^t636-37. I¡Mascio the Court stated would prove futile in cases whete the ALJ does not discuss functions that are itrelevrrt or uncontested." Id. at 636. However, "remand may be apptopriate where an N,J fails to assess a clumant's capacity to perfotm relevant functions, despite conttadictory evidence in the tecotd, or where other inadequacies in the ALJ's analysis ftustrate meaningful review." Id. In addition,"fafn 1,J-J may satis$r the function-by-function analysis requirement by tefetencing a propedy conducted analysis of state agency consultants." Heren u. Coluin, No. 1:15-CV-00002-MOC,2015 WI- 5725903, at 10 x5 (\W.D.N.C. Sept. 30,201,5) (unpublished). Here, although the,\LJ does not conduct a function by function analysis, it is apparent how the -A.LJ determined PlaintifPs capacity to preform relevant functions. The ALJ gave signifìcant weight to the opinions of state agency consultants, Robert N. Pyle, M.D. and E. \Woods, M.S., M.D. and described the limitations found in their assessments in his decision. Qr. 20.) s mentioned above, a proper function by function agency consultant can satisfy an ,\LJ's requirement assessment. Herren,2015 ìíL 5725903, at analysis conducted by a state to condùct a function by x5. Both state ^geîcy function consultants found that Plaintiff could occasionallyhft20 pounds,lift 10 pounds frequently, stand andf or walk about 6 houts in an 8-hour workday, stoop, kneel, ctouch, crawl, stand and occasionally climb and balance. Çr.6'1.-62,84-85.) These function by function assessments, that the ALJ gave great weight, provide support for the ALJ's RFC determination and allow the Court to conduct meaningful review of the AIJ'. analysis. Cowle¡ u, Coluin, a No. 1:15CV105, 201,6WL 527063, at x5 (À4.D.N.C. Feb. 9, 201,6) (unpublished) (reasoning that although the ALJ did not conduct a complete function by function analysis, the A.LJ gave great weight to the opinions of the state agency consultant and explained that he did so because he found the opinions consistent with the other evidence in the record thereby removing the need to rehash state agency consultant's opinion); Wilds u. Coluin, a discussion of the No. 1:13CV318,2015 ì7L 339643, at*9 (À4.D.N.C. Jan.23,2015), reþort and retvmmendation adoþted, No. 1:13CV318, 2015 WL 1033009 (À,f.D.N.C. Mar.9,201,5) (unpublished) ("the ALJ gave weight to the opinion of the non- examining state agency physician who assessed Plaintiffs wotk related limitations on 1,1, a function by function basis. The ALJ was not required to repeat these fìndings verbatim.") (internal citations and quotations omitted); Wry-4077672*8 Q).M. Aug. 1 2016);Unares see also Schlo¡¡nagle u. Coluin, u. Coluin, No. TMD 1.5-935,2016 No. 5:14-CV-00120,2015 \)fL 4389533, at *3 CX/.D.N.C. July 1,7,201,5) (unpublished) ("Because the ALJ based his RFC finding, in patt, on the function-by-function analysis of the State agency consultant, the ALJ's functionby-function analysis complied with SSR 96-8p."). The RtrC almost mirrors the findings of the state gency consultants. Fufthet, in light of evidence that was not seen by the state agency consultants, the ALJ added additional testrictions by providing a sit/stand option in the RFC explaining his reasons for doing WL 1,320504, at so. Qr. 20.) Shore u. Coluin, No. 1:10CV238,201.3 x2 (44.D.N.C. Mat. 29,20L3) (unpublished) (upholding the ,\LJ's decision notwithstanding the fact that the ALJ did not conduct a function by function analysis because the ALJ latgely adopted and descdbed the state agency physicians' RFCs and placed even gteater limitations on the plaintiff in the RFC).: Thus, the ALJ's failute to conduct a function by function analysis does not tequite temand. 3 The Court notes that tn Monroe the Fourth Circuit recently addressed the ,{LJ's obligation to do a function by function analysis. Monroe, 201.6 WL 3349355, ú *9-1.0. The Court held that the A{ should consider all of the plaintiffs "physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect his abiJity to work." Id. at 1,0. However, the Coutt has acknowledged that failure to conduct a function by function analysis alone "is not enough to require lemand." Harri¡on u. Colain,No. 5:15-CV-00108-MOC,201,6WL3679294, at x4 (lü/.D.N.C. July 11,,201,6) (unpublished); Mascio,780 F.3d at 636. In Monroe, the,ALJ failed to address the claimant's testimony that he would lose consciousness about two or three times pet day and needed to take sevetal bteaks during the day to battle being fatigued. Hete, the ALJ's ctedibility assessment addresses Plaintiffs testimony about hip pain, carpal tunnel syndrome and degenerati.ve joint disease. (Tt. 19.) Furthermore, as explained above the ALJ's failute to conduct a function by function analysis is harmless because the ALJ g ve greàt weight to the function by function ssessments of the non-examining consultants thereby allowrng the Court to conduct meaningful review of the ALJ's analysis. 1.2 Plaintiff also asserts that the ALJ did not draw a logical bddge between the evidence and the functional ssessments provided in the RFC by summarizing the medical evidence in the tecotd. Q)ocket Ent y 1,0 at 9; Docket Errtry 1,3 at 1,-2.) However, as detailed above, after the ALJ summarized the evidence he conducted a proper credibility analysis. In addition, the { discussed the weight given to the opinion evidence including giving gteat weight to the stte agency consultants. Cowles, 201,6 WI- 527063, at *5; Shore, 201,3 WL 1,320504, at *2. This analysis provides a logical bridge between the evidence and the ALJ's RFC findings. Thus, the ALJ did not merely summadze the objective medical evidence. C. The ALJ Correctly Assessed the Medical Opinion Evidence The Plaintiff contends that the ALJ ered in his evaluation of the medical opinion evidence because he did not considet and assign weight to the medical opinion of Dr. DiMichele. (Docket Entty 1,0 at1,4-1,6; Docket E.rtry 1,3 at2-3.) "[A]n ALJ labots under no obligation to comment on (et alone explicitly weigh) everT piece of medical evidence in the record." Hose u. Coluin, No. 1:15CV00662,201,6WL1627632, at *4 (À{.D.N.C. Apt.22,201,6) (unpublished) (citing Reid u. Commisioner of Soc. Îec.,769 F.3d 861, 865 (4th Cu.2014) (citing Dler u. Bamhørt,395 F.3d 1206, 1.21,1, (1,1th Cir. every medical opinion received regardless of its u. Attrwe, No. 1:10CV189, 201.1 2005). Nonetheless, the soutce. Hose,2016WL 1.627 AIJ must weigh 632, at*4; Collins WL 6440299, at x2 CX/.D.N.C. Dec. 21.,2011) (unpublished). A medical opinion has a distinct definition. "Medical opinions are statements from physicians and psychologists or other acceptable medical sorúces that reflect judgments about the natute and sevedty of [the claimant's] impafument(s), including fthe claimant's] symptoms, 1,3 diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and fthe claimant's] physical 1,627632, at ot mental testtictions." 20 C.F.R. S 404J,527 (u)Q); Ho¡e, 201,6 VlL *4; Dixon Oct. 3, 2007), afd wb C.F.R. u. Bamhart, ruom. \ a1,6.927 (a)Q). Dixon No. 1:04-CV-00921", 2007 WL u. Attrue,288 F'. 651,5463, at x4 (À,{.D.N.C. App'* 67 (4th Cir. 2008) (unpublished); 20 Furthermore, opinions fìnding that a claimant is disabled or unable to wotk ate opinions tegarding matters teserved to the Commissioner. Carter u. Coluin,No. 1,:1,3CY334,201,6 \)fL 1735885, at x13 (À,{.D.N.C. May 2,20'1,6) (unpublished);Ballard u. Coluin, 90 F. Supp.3d 470,417 (vl..D.N.C. 2015) (unpublished). Here, the ALJ cleady considered Dr. DiMichele's findings. The ALJ described the physical examination conducted by Dr. DiMichele noting that Plaintiff "had a positive sttaight leg test on the nght, pain with movement, obvious gart impaitment) and vaginal pain with no point tenderness but appeared to be in the postedor in the region of het ptiot surgery." (Tt. 1.6,31,0.) The AfJ also noted that Dr. DiMichele diagnosed Plaintiff with sprain of the hip and thigh, as well as pelvic and joint Dt. DiMichele pain. Cfr. 16, 310.) In addition, the AIJ recommended a course of explained that physical therapy and refetted Plaintiff to the Univetsity of Notth Carobna Hospital for futher evaluation. (Tr. 16,31,1..) ,{.dditionally, Dt. DiMichele stated in her physical examination notes that "due to the severity of hip pain/ hip injury and ongoing pelvic pain [Dt. DiMichele does] not feel [that Plaintiffl may return to flr. 315.) work. fPlaintiffl has had a severe decline in her daily functioning." As noted above, opinions tegatding whether the claimant is disabled ot unable to work are opinions concerning issues teserved to the Commissioner. Thetefote, Dt. 1,4 DiMichele's conclusion that Plaintiff is not able to work is an opinion that the ALJ is not required to weigh. Carter,201.6 WL 1735885, at*1.3 ("Dr. Tellez's opinion that Plaintiff is quite disabled' does not quali$r as a 'medical opinion' genetally entitled to deference Instead, Dr. Tellez's statement constitutes a legal opinion to which the ALJ owed no deference"); Ballard,90 F. Supp . 3d at 477 (ftnðtne that the AtJ correctly addressed a treating psychologist's medical opinions as to the claimant's employability and functional limitations and propedy disregarded the psychologist's opinion as to whether the claimant v/as disabled or unable to work). Additionally, it is unclear whether Dr. DiMichele's statement that "fPlaintif{ has had severe decline a in het daily functioning" and her conclusion that Plaintiff has severe hip and pelvic pain are sufficient to constitute a medical opinion. (Tr. 315.) Dr. DiMichele's statement regarding the decline in Plaintiffs daily function is vague and fails to detail any of Plaintiffs functional limitations, nor does it teveal what Plainttff can still do despite her impairments. Ho¡e u. Coluin, No. 1:15CV00662,201,6WL1,627632, t x4 (À4.D.N.C. Apr22, 201,6) (intetnal citation omitted) (reasoning that a tadiologist's conclusion that a MRI tevealed that the plaintiff had multiple impairments was not a medical opinion because it did not offer "judgments about'Plaintifls 'prognosis,'what she can still do despite het impairments' ot her physícal or mental restrictions"'); see also Birchfeld u. Coluin, at x3 (W.D.N.C. June 30,201,6) (finding that the ALJ did No. 1:15CV53,201.6 ]üvl,3566740, not have to adopt the findings of the plaintiffs physicians because the physicians did not offer judgments tegatding het ability to perform specific work-telated functions ot limitations resulting ftom her impairments). Cf 1,5 Il/hita,ker u. Coluin, No. 1:13CV423, 201,5 WL 9274932, at x5 (À{.D.N.C. Dec. 1,8, 201,5) (concluding that a physician's opinion "regarding Plaintifls ability to petfotm work-related functions, such as . . . occasional postural movements, and a 3O-minute cap on sitting, standing, and walking at one time . . . fall squately with the . . . definition of "medical opinion"'). Even if Dt. DiMichele's fìndings constitute an opinion, the ALJ's failute to weigh opinion is harmless. Dr. DiMichele's fìndings regatding Plaintiffs severe hip and pelvic the pa-rn and decrease in daily functioning were consistent with the assessmerits of the state agency consultants that the ALJ gave great weight. Gt. 66, determined that Plaintiff could petfotm light 68-69, 81,, g2.) The consultants still wotk. The only inconsistency between Dr. DiMichele's and the state agency consultants' findings is Dr. DiMichele's conclusion that Plaintiff cannot work which, as detetmined above, is an issue reserved to the Commissioner. Morgan u. Bamhart, 1,42tr. App'" 71,6,723 (4th Cir. 2005) (fìnding that the ALJ's failute to weigh the assumed medical opinion was harmless because it included the same limitations another examination relied on by the AL); see alsoYaengalu. Attrae, as No. 4:10-CV-42-FL,201,0 \)fL 5589102, at x9 (E.D.N.C. Dec. 17 , 201.0), report and rewrnruendarìon adopted, No. 4:10-CV42-FL,2011 WL 147297 (E.D.N.C. Jan. 18, 201"1), aÍtd,441 F. ,{.pp'x 168 (4th Cu. 201,1) (finding the ,{LJ's failure to weigh a medical opinion harmless because the opinion was identical to another opinion in the record addtessed by the same AL). Furthermore, during the visit that Dt. DiMichele concluded that Plaintiff would not be able to return to work, Plaintiff denied muscle and joint pain, muscle weakness, incoordination, tingling, and numbness. Çr. 313,1,5.) Moreover, as noted by the ALJ, the only function by function 1,6 assessments in the record were conducted by the state agency No. 5:11-CV-569-FL, 201.3 WL 2433515, consultants. See Naera u. Co/uin, at x5 (E.D.N.C. June 4, 201'3) (unpublished) (concluding that the ALJ's failute to weigh an opinion was hatmless because it "[did] not state that plaintiff is mote limited determination, which takes substantial evidence in the in het functioning than that exptessed in the ALJ's RFC into account plaintiffls limitations and was suppotted by tecord"). In addition, the ALJ cleatly considered Dr. DiMichele's findings because he detailed them in his discussion of the medical evidence. Coluin,No.3:14-CV-00396-MOC,2015WL1,2495J9,atx5 See Joines u. CX/.D.N.C. Mat. 1,8,201,5) (finding the ALJ's failure to weigh an opinion hatmless because the IJ's decision discussed the physician's findings and noted that there were no medical opinions indicating disability and no function by function assessments preventing the plaintiff from perfotming light wotk); Hilchen¡201,4WL 6977765, at x4 (finding that it was harmless error fot the A{ to not weigh the physicians'reports because the AtJ discussed the repotts at length clearly telied on the physicians'reports in making the RFC and detetmination). Therefote, failure to weigh Dt. DiMichele's findings, at most, was harmless error. 17 in his decision V. CONCLUSION For the reasons stated herein, this Coutt RECOMMENDS that Plaintiff Judgment Reversing the Commissioner (Docket E.rt"y 9) be DENIED, s Motion for that Defendant's Motion forJudgment on the Pleadings Q)ocket Entry 11) be GRANTED, and that the final decision of the Commissionet be upheld. L TF&ær $teær l*agirtnæ¡udgr August 9,201,6 Durham, North Carchna 18
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