USCA4 Appeal: 23-1830 Doc: 33 Filed: 10/02/2024 Pg: 1 of 11

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1830

BARRY L. SCHARBROUGH, c/o Mary Ann Scharbrough,

Plaintiff - Appellant,

v.

COMMISSIONER, SOCIAL SECURITY,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Brendan A. Hurson, Magistrate Judge. (1:22-cv-02421-BAH)

Submitted: August 12, 2024 Decided: October 2, 2024

Before THACKER and BENJAMIN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Andrew N. Sindler, LAW OFFICES OF ANDREW N. SINDLER, LLC, Severna Park, Maryland, for Appellant. Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; Brian C. O’Donnell, Associate General Counsel, David N. Mervis, Office of Program Litigation, Office of the General Counsel, Erica Adams, Special Assistant United States Attorney, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1830 Doc: 33 Filed: 10/02/2024 Pg: 2 of 11

PER CURIAM:

Barry L. Scharbrough 1 appeals the district court’s order affirming the Social

Security Administration’s (“SSA”) decision to deny his application for disability benefits.

On appeal, Scharbrough makes numerous assertions of error by both the Administrative

Law Judge (“ALJ”) and the district court. We affirm.

“We review an SSA decision only to determine if it is supported by substantial

evidence and conforms to applicable and valid regulations.” Patterson v. Comm’r of Soc.

Sec. Admin.,

(4th Cir. 2017). Accordingly, we “must uphold the ALJ’s

decision if the ALJ applied correct legal standards and if the factual findings are supported

by substantial evidence.” Dowling v. Comm’r of Soc. Sec. Admin.,

, 382-83

(4th Cir. 2021) (internal quotation marks omitted). In this context, “[s]ubstantial evidence

is that which a reasonable mind might accept as adequate to support a conclusion. Though

the threshold for such evidentiary sufficiency is not high, it requires that more than a mere

scintilla of evidence support the ALJ’s findings.”

(cleaned up). We do not

“reweigh conflicting evidence, make credibility determinations, or substitute [its]

judgment for that of the ALJ” in evaluating whether a decision is supported by substantial

evidence; “[r]ather, where conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled,” we “defer to the ALJ’s decision.” Shinaberry v. Saul,

, 123 (4th Cir. 2020) (cleaned up).

1 Scharbrough is deceased. His widow, Mary Ann Scharbrough, pursues this case in his place. This opinion refers to Barry Scharbrough as “Scharbrough” throughout and, for ease and clarity, addresses the arguments as if Scharbrough himself was making them.

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The Commissioner uses a five-step process to evaluate a disability claim.

(a)(4) (2022). “Steps 1 through 3 ask: (1) whether the claimant is working;

(2) if not, whether []he has a severe impairment; and (3) if []he does, whether the

impairment meets or equals a listed impairment.” Patterson,

(internal

quotation marks omitted). “If the claimant fails at step [3], the ALJ must then determine

the claimant’s residual functional capacity (“RFC”),” which is the most a claimant can still

do despite his physical and mental limitations. Brown v. Comm’r Soc. Sec. Admin.,

(4th Cir. 2017). “After determining the claimant’s RFC, the ALJ proceeds

to step [4]” and determines whether the claimant is “able to perform his past work.”

(internal quotation marks omitted). If the claimant is unable to perform his past work,

“the ALJ finishes at step [5], where the burden shifts to the Commissioner.”

To

withhold benefits, “the Commissioner must prove . . . that the claimant can perform other

work that exists in significant numbers in the national economy, considering the claimant’s

RFC, age, education, and work experience.”

(cleaned up).

On appeal, Scharbrough argues that the ALJ incorrectly analyzed whether and how

much Scharbrough’s pain impacted his ability to work. The ALJ noted that Scharbrough’s

statements about the intensity and limiting effects of his conditions were inconsistent. The

ALJ relied upon his stated daily activities, his conservative treatment, improvement of

symptoms, and failure to follow up as directed. The ALJ carefully reviewed Scharbrough’s

medical records and noted the dearth of complaints of pain during the relevant time period.

The ALJ also found that the generally normal or mild testing/imaging findings did not

support a finding of debilitating pain.

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Scharbrough first contends that it was inappropriate for the ALJ to rely on the

imaging results because it is “well settled in the medical community” that MRI’s are

required to diagnose the severity of arthritic conditions and no MRI’s were done on

Scharbrough’s relevant body parts. (Appellant’s Br. (ECF No. 19) at 25). In support,

Scharbrough cites to a medical journal and cases involving fibromyalgia and migraine

headaches. (Id. at 25-26). Scharbrough contends that the ALJ improperly rejected his

complaints of severe pain based upon “irrelevant” testing/imaging findings.

However, Scharbrough presents no legal support for his conclusions that x-ray

results and physician testing are irrelevant in cases of arthritis or back, neck, or foot pain

and that the severity of back, neck, and/or foot conditions are not detectable by such

methods. See Craig v. Chater,

(4th Cir. 1996) (noting that evaluation of

the limiting effects of claimant’s pain must take into account “medical signs, and laboratory

findings”). Further, even if Scharbrough is correct that these tests were of little probative

value, the ALJ appropriately relied on Scharbrough’s own statements generally denying

pain during the relevant time period. In support of his contentions that his pain was more

severe than determined by the ALJ, Scharbrough points to evidence outside the relevant

time period, complaints during the relevant time period that were few and far between, and

the Department of Veterans Affairs’s (“VA”) conclusions. However, the ALJ explicitly

considered this evidence but found it outweighed by the contrary evidence, a finding that

is not generally reviewable by this court.

Next, Scharbrough argues that the ALJ failed to consider how his pain would affect

his attention and concentration. Again, however, Scharbrough points to no actual evidence

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of attention or concentration limitations; instead, he relies upon a “pure common sense”

argument that a claimant with any level of pain will have some interference with attention,

focus, persistence or pace. (Appellant’s Br. at 28-29). However, in his disability report,

Scharbrough himself denied any mental component to his conditions. While Scharbrough

and his wife testified that his medication rendered him essentially nonfunctional, his

treatment records do not show that he complained of attention or concentration issues, and

his treating physicians did not note any limitations on examination. As such, we find that

the ALJ’s conclusions were based on substantial evidence and that the ALJ did not err in

analyzing either Scharbrough’s complaints of pain or any possible limitations in attention

or concentration.

Next, Scharbrough asserts that the ALJ erred by improperly relying on the fact that

Scharbrough was treated conservatively. Scharbrough contends that there is no “invasive

treatment available and/or indicated for these conditions.” (Appellant’s Br. at 31). Again,

Scharbrough does not cite to any evidence supporting this contention. Scharbrough was

treated at various times with pain medication, heating pads, foot massages, night splints,

cortisone injections (in his feet) and orthotics. However, such treatments have been

recognized as conservative. See, e.g., Plessinger v. Berryhill,

(7th Cir.

2018) (recognizing that “injection therapies” and pain medications were “conservative pain

management approaches” and discussing back surgery for degenerative disc disease);

Singh v. Apfel,

(8th Cir. 2000) (noting that nerve block injections were

a conservative modality and that epidural steroid injections and surgery were available to

relieve back and neck pain); see also Craig,

(noting that ALJ should consider

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any medical treatment taken to alleviate pain). Accordingly, Scharbrough’s assertions that

no other treatments were available is unsupported, and the ALJ did not err by labelling his

treatment as conservative.

Scharbrough also asserts that the ALJ improperly relied upon periods of normal

findings or improvement when the full record reflected consistent and worsening

symptoms. However, the only evidence cited by Scharbrough that supported a finding of

consistent and worsening symptoms during the relevant time period was claimant’s wife’s

testimony (given after the relevant time period). She asserted that Scharbrough’s condition

deteriorated prior to his date last insured and that he had difficulty sitting, standing, or

walking for extended periods of time. She testified that Scharbrough increased his pain

medication during that period and that the medication rendered him unable to function.

The ALJ rejected this testimony, noting that Scharbrough’s own testimony, prior to

his death, supported lesser limitations and was given closer in time to his date last insured.

Thus, the ALJ found Scharbrough’s testimony more reliable than his wife’s later testimony.

Moreover, contrary to Scharbrough’s argument that the ALJ cherry-picked the record to

find periods of improvement, the ALJ thoroughly discussed the medical evidence and

testimony (including that on which Scharbrough relies), weighed that testimony, and made

findings of fact and credibility determinations. These rulings are generally not reviewable

by this court when they are, as here, supported by substantial evidence.

Scharbrough further asserts that the ALJ erred by relying upon his activities of daily

living to discount his and his wife’s testimony. Specifically, Scharbrough contends that

the ALJ should not have considered Scharbrough’s ability to sit through the hearing given

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his testimony that he was stiffening and later testimony that he was unable to drive home.

Scharbrough also avers that the record contains substantial evidence that his activities of

daily living were either overstated, irrelevant to his ability to work, or caused excessive

fatigue making prolonged work impossible.

However, the ALJ considered Scharbrough’s January 2013 function report, which

was closer in time to his date last insured than any of the hearing testimony. The ALJ noted

that Scharbrough asserted that he had limitations in standing, sitting, or walking for more

than short periods and that his medication caused slow reaction time and excessive

drowsiness. The ALJ considered Scharbrough’s testimony that he suffered from severe

pain in his back, neck, and feet and that he also experienced stiffness and numbness. The

ALJ explicitly considered Scharbrough’s assertions that, while he could complete certain

tasks, he could not do so for a prolonged period of time and often needed rest afterwards

or was rendered nonfunctional by medication.

Nonetheless, the ALJ found that Scharbrough’s limitations were not as severe as he

and his wife alleged. In so doing, the ALJ noted that much of the testimony concerned

limitations outside the disability period. The ALJ relied, in part, on Scharbrough’s

self-stated activities of daily living, finding them inconsistent with a determination of

disability. The ALJ also noted that Scharbrough failed to attend a consultative examination

and cancelled a recommended CT scan due to improved symptoms. The ALJ appropriately

weighed this evidence and limited Scharbrough to a modest range of sedentary work

without prolonged sitting, standing, or walking. Such a ruling was not legal error, and we

do not reweigh the evidence on review. See Chaudhry v. Astrue,

(9th

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Cir. 2012) (finding failure to seek treatment or follow prescribed course of treatment

relevant to disability finding); Craig,

(noting that daily activities are relevant

in determining the severity of impairment); Wall v. Astrue,

(10th Cir.

2009) (explaining that “disability requires more than the mere inability to work without

pain” (internal quotation marks omitted)); Johnson v. Barnhart,

(4th

Cir. 2005) (finding ruling “logical” where ALJ found attending church, reading, watching

television, house cleaning, laundry, visiting, feeding pets, cooking, and managing the

household was inconsistent with complaints of excruciating pain); Burns v. Barnhart,

(3d Cir. 2002) (“Drowsiness often accompanies the taking of medication,

and it should not be viewed as disabling unless the record references serious functional

limitations.”).

Next, Scharbrough challenges the inclusion in his RFC of a sit/stand option that

required him to stand at least two times per hour for at least a couple of minutes while

remaining on task. Scharbrough avers that such was error due to its ambiguity and because

the ALJ failed to consider Scharbrough’s pain when determining that he could remain on

task. The ALJ posed a hypothetical to the vocational expert regarding an individual who

“could stand or walk for two hours out of an eight hour day but for no more than 15 to 20

minutes at one time, could sit for six hours out of an eight hour work day, would need to

stand up for a few minutes twice during the hour, at least twice during the hour while

remaining on task.” (J.A. 1227). Scharbrough did not object or seek to clarify the ALJ’s

questions or the expert’s testimony, despite questioning the expert on other issues.

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We conclude that the RFC was not ambiguous. The ALJ clearly described a

baseline minimum number of times that Scharbrough would need to stand, but essentially

provided an at-will requirement, permitting Scharbrough to change positions at his

discretion so long as he could keep on task. The ALJ's RFC findings and hypothetical were

consistent with an at-will sit-stand option, and no greater specificity was required. 2

Moreover, while Scharbrough argues in his brief that changing positions would not relieve

his pain, he does not point to any evidence that his pain level was not improved by changing

positions or that the resulting (presumably lower) pain level prevented him from remaining

on task. In fact, in his hearing testimony (nearly two years after his date last insured),

Scharbrough described the necessity for alternating between sitting and standing, averring

that he could stand “less than an hour” before needing to sit and could sit for “probably

about an hour” before needing to stand. (J.A. 150). Accordingly, we find no error in the

ALJ’s formulation of the RFC, which was actually more restrictive than Scharbrough’s

stated abilities a substantial period of time after his date last insured.

Scharbrough asserts that the ALJ erred by failing to consider his history of excessive

absenteeism due to his medical conditions and his inability to work without numerous

absences. Scharbrough contends that the ALJ should have considered the fact that he was

fired from his last job because he was unable to work due to his medical conditions. While

2 Scharbrough also argues that the limitation violated Social Security Ruling 96-9p, which provides that “[t]he RFC assessment must be specific as to the frequency of the individual’s need to alternate sitting and standing.” However, the Ruling only applies to analysis at Step Five. Because the instant case was decided at Step Four (ability to perform past relevant work), the Ruling is inapplicable.

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Scharbrough’s wife did testify to this, the ALJ noted that Scharbrough himself testified that

he was fired because he was absent for an extended period of time with walking pneumonia

and he could not meet his production requirements. 3 Given Scharbrough’s own testimony

and the fact that there is no evidence that the walking pneumonia was related to his

allegedly disabling conditions, the ALJ did not err in failing to discuss Scharbrough’s

absenteeism at his last job. Moreover, the ALJ did not err in failing to analyze how often

Scharbrough’s medical conditions would require him to be absent moving forward, given

that Scharbrough failed to provide any evidence of frequent or unplanned medical

treatment and that there was a lack of persuasive evidence of frequent, debilitating pain

during the relevant time period.

Finally, Scharbrough contends that the district court erred in not remanding for

many of the errors discussed above. However, given that such an argument assumes ALJ

error, the claims are without merit. Finally, Scharbrough asserts that the district court erred

in not finding that the ALJ violated the treating physician rule. However, this claim was

not raised below, and as such, we decline to address it. See Muth v. United States,

(4th Cir. 1993) (noting that claims raised for the first time on appeal generally

will not be considered absent exceptional circumstances of plain error or fundamental

miscarriage of justice).

3 Scharbrough claims that this testimony is not reliable or accurate because the ALJ cut him off. However, a review of the record reveals that the ALJ interrupted Scharbrough when he was speaking about the production requirements of his job and how a person needed to be physically present, not when he was explaining his illness or the reason for his firing.

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Accordingly, we affirm. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

AFFIRMED

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