ELY v. ASTRUE

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 7/1/2014, recommending the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 8 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that this action be dismissed with prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CALVIN ELY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,1
Defendant.

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1:12CV75

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Calvin Ely, brought this action pursuant to Section
205(g) of the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Commissioner of Social
Security, denying Plaintiff’s claims for Disability Insurance
Benefits (“DIB”) under Title II of the Act.

(Docket Entry 1.)

The

Court has before it the certified administrative record (cited
herein as “Tr. __”), as well as the parties’ cross-motions for
judgment (Docket Entries 8, 11).

For the reasons that follow, the

Court should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB in early August 2008, alleging a
disability onset date of May 1, 2005.

(Tr. 98-99, 127-39.)

Upon

1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution as Defendant, pursuant to
Federal Rule of Civil Procedure 25(d).

denial of the application initially (Tr. 67) and on reconsideration
(Tr. 68), he requested a hearing de novo before an Administrative
Law Judge (“ALJ”) (Tr. 77-78).

Plaintiff, his attorney, and a

vocational expert (“VE”) attended the hearing in 2010.
66.)

(Tr. 37-

The ALJ then ruled Plaintiff not disabled under the Act.

(Tr. 7-21.)

The Appeals Council subsequently denied Plaintiff’s

request for review, making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.

(Tr. 1-3.)

In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since . . . the alleged onset date . . . .
3.
[Plaintiff] has the following severe impairments:
hypertensive heart disease and post traumatic stress
disorder (PTSD) . . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 . . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) with environmental and mental restrictions.
[Plaintiff] can stand and/or walk 6 hours in an 8-hour
workday; can sit 6 hours in an 8-hour workday; can lift
and/or carry 10 pounds frequently and 20 pounds
occasionally; requires the option to sit or stand every
60 minutes with a cane; cannot tolerate extremes of heat
or cold temperature; and can occasionally interact with
the public and frequently interact with co-workers and
supervisors.

2

(Tr. 12-13.) In light of the foregoing findings regarding residual
functional capacity (“RFC”), the ALJ concluded that Plaintiff could
not perform his past relevant work.

(Tr. 19.)

However, based on

the VE’s testimony, as well as consideration of Plaintiff’s age,
education, work experience, and RFC, the ALJ concluded that “there
are jobs that exist in significant numbers in the national economy
that [Plaintiff] can perform.”
omitted).)

(Tr. 20 (parenthetical citation

Accordingly, the ALJ found that Plaintiff did not

suffer from a “disability,” as defined in the Act, at any time from
the alleged onset date through the date of decision.

(Tr. 21.)

DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [judicial] review of [such] a decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

“The courts are not to try the case de novo.”
495 F.2d 396, 397 (4th Cir. 1974).

Oppenheim v. Finch,

Instead, “a reviewing court

must uphold the factual findings of the ALJ [underlying the denial
of benefits] if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hines,
453 F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”

3

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and

4

that, in this context, “disability” means the “‘inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).2

“To regularize the adjudicative process,

the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”

Hall, 658 F.2d at 264.

“These regulations

establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the [RFC] to (4) perform [the
claimant’s]

past

work

or

(5)

any

other

work.”

Albright

v.

Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir.
2
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).

5

1999).3

A finding adverse to the claimant at any of several points

along the SEP forecloses a benefits award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].”

Id. at 179.

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant does
not qualify as disabled.

Id. at 179-80.4

However, if the claimant

establishes an inability to return to prior work, the analysis

3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citation omitted).
4
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

6

proceeds to the fifth step, whereupon the ALJ must decide “whether
the claimant is able to perform other work considering both [the
claimant’s RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner

cannot carry the “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.

Hines, 453 F.3d at 567.5

Assignment(s) of Error
According to Plaintiff, substantial evidence fails to support
certain of the ALJ’s finding(s) at step two, as well as aspects of
the ALJ’s formulation of Plaintiff’s RFC (and thus, by implication,
the ALJ’s decision adverse to Plaintiff at step five), and/or the
ALJ misapplied the law concerning such matters. (Docket Entry 9 at
4-6.)

In those regards, Plaintiff asserts that the ALJ “did not

address [Plaintiff’s] cold weather injury to the left foot, extreme
obesity and degenerative disc disease . . . .”

(Id. at 4.)

More

specifically, Plaintiff complains that the ALJ “neither considered
them ‘severe’ at Step 2, nor did he consider them during the RFC
assessment . . . .”

(Id.; see also id. at 6 (contending ALJ did

5

A claimant thus can establish disability via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

7

not

properly

evaluate

Security Ruling).)6
substantial

evidence

obesity

pursuant

to

applicable

Social

Defendant argues otherwise and urges that
supports

(Docket Entry 12 at 6-18.)

the

finding

of

no

disability.

Defendant’s position should prevail.

For purposes of step two, an impairment fails to qualify as
“severe” if it constitutes only “a slight abnormality . . . that
has no more than a minimal effect on the ability to do basic work

6

To the extent Plaintiff’s brief alleges error at step four (see Docket
Entry 9 at 4, 6), it could establish no grounds for reversal or remand, because
(as documented in the Procedural History section) the ALJ ruled in Plaintiff’s
favor at that step by concluding that he could not return to his past relevant
work. In discussing obesity, Plaintiff’s brief also makes passing reference to
step three, but fails to develop any argument regarding any error at that step.
(See id. at 6; see also Tr. 188-91 (setting forth Plaintiff’s Hearing Memorandum
identifying only Listing 12.06 (pertaining to anxiety disorders, see 20 C.F.R.
Pt. 404, Subpt. P, App’x 1, § 12.06) as a listing that Plaintiff met or equaled
(“based on his chronic PTSD and depressive disorders”)).) As a result, Plaintiff
possesses no right to relief related to step three. See Burch v. Barnhart, 400
F.3d 676, 682-83 (9th Cir. 2005) (“As obesity is not a separately listed
impairment, a claimant will be deemed to meet the requirements if there is an
impairment that, in combination with obesity, meets the requirements of a
listing.
Equivalence may also be determined if a claimant has multiple
impairments, including obesity, none of which meets the listing requirement, but
which when viewed in the aggregate are equivalent to a listed impairment. . . .
Although [the plaintiff] contends that the ALJ erred in not considering obesity
in determining whether she meets or equals a listing impairment, she does not
specify which listing she believes she meets or equals. Further, she does not
set forth any evidence which would support the diagnosis and findings of a listed
impairment. . . . An ALJ is not required to discuss the combined effects of a
claimant’s impairments or compare them to any listing in an equivalency
determination, unless the claimant presents evidence in an effort to establish
equivalence. . . . [The plaintiff] has not pointed to any evidence of functional
limitations due to obesity which would have impacted the ALJ’s analysis. In
fact, the only evidence in the record relating to her obesity are notes from
doctors who observed weight gain, indicated that [she] is obese, and recommended
that she participate in a medically supervised weight loss program. We therefore
conclude that the ALJ did not commit reversible error by failing to consider [the
plaintiff’s] obesity in determining whether she met or equaled the requirements
of a listed impairment.” (internal citations and quotation marks omitted)); see
also Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012)
(“This issue is waived because [the plaintiff] fails to develop this argument to
any extent in its brief.”); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“[A] litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” (internal quotation marks omitted));
Nickelson v. Astrue, No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July 27,
2009) (unpublished) (“[A]s [the plaintiff] failed to develop these arguments in
his [b]rief, the court will not address them.”).

8

activities.”

Social Security Ruling 96-3p, Policy Interpretation

Ruling Titles II and XVI: Considering Allegations of Pain and Other
Symptoms in Determining Whether a Medically Determinable Impairment
is Severe, 1996 WL 374181, at *1 (emphasis added).

Applicable

regulations further identify “basic work activities” as:
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers
and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b).
Plaintiff bears the burden of proving severity at step two.
Hunter, 993 F.2d at 35; see also Kirby v. Astrue, 500 F.3d 705, 708
(8th Cir. 2007) (“Severity is not an onerous requirement for the
claimant to meet, but it is also not a toothless standard . . . .”
(internal citation omitted)).

To carry that burden, Plaintiff

“must provide medical evidence showing . . . an impairment(s) and
how severe it is . . . .”

20 C.F.R. § 404.1512(c) (emphasis

added); see also Social Security Ruling 85-28, Titles II and XVI:
Medical Impairments that Are Not Severe (“SSR 85-28”), 1985 WL
56856, at *4 (“A determination that an impairment(s) is not severe

9

requires

a

careful

evaluation

of

the

medical

findings

which

describe the impairment(s) and an informed judgment about its
(their) limiting effects on the individual’s physical and mental
ability(ies) to perform basic work activities . . . .

At the

second step of [the SEP], then, medical evidence alone is evaluated
in order to assess the effects of the impairment(s) on ability to
do

basic

work

activities.”

(emphasis

added));

Williamson

v.

Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003) (“The step two
severity determination is based on medical factors alone . . . .”
(emphasis added)); Washington v. Astrue, 698 F. Supp. 2d 562, 579
(D.S.C. 2010) (“A severe impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.
. . .

A claimant’s own description of her physical or mental

impairments is not enough . . . .

[SSR] 85-28 specifically

provides that medical evidence alone is evaluated in order to
assess the effects of the impairment(s) on ability to do basic work
activities.” (internal quotation marks omitted) (emphasis added));
Flint v. Sullivan, 743 F. Supp. 777, 782 (D. Kan. 1990) (“A
claimant’s statements regarding the severity of an impairment are
not sufficient.”), aff’d, 951 F.2d 264 (10th Cir. 1991).
As a final matter, when (as in this case) the ALJ finds at
least one severe impairment at step two, any failure to identify
additional

impairments

as

severe

generally

does

not

warrant

reversal or remand because, “upon determining that a claimant has
10

one severe impairment, the [ALJ] must continue with the remaining
steps in [the] disability evaluation.”

Maziarz v. Secretary of

Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); accord
Wells v. Colvin, 727 F.3d 1061, 1068 & n.6 (10th Cir. 2013); Arnett
v.

Astrue,

676

F.3d

586,

591

(7th

Cir.

2012);

Heatly

v.

Commissioner of Soc. Sec., 382 F. App’x 823, 824-25 (11th Cir.
2010); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); McLain
v. Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23,
2014)

(unpublished)

(Schroeder,

J.);

Prince

v.

Colvin,

No.

5:11CV763FL, 2013 WL 1786634, at *2 (E.D.N.C. Apr. 25, 2013)
(unpublished); Powell v. Astrue, 927 F. Supp. 2d 267, 274-75
(W.D.N.C. 2013); Kenney v. Astrue, Civil Action No. CBD-10-1506,
2011 WL 5025014, at *5 (D. Md. Oct. 20, 2011) (unpublished); Clark
v. Commissioner of Soc. Sec., No. 2:09CV417, 2010 WL 2730622, at
*11 (E.D. Va. June 3, 2010) (unpublished), recommendation adopted,
2010 WL 2731380 (E.D. Va. July 9, 2010) (unpublished); Lauver v.
Astrue, No. 2:08CV87, 2010 WL 1404767, at *4 (N.D.W. Va. Mar. 31,
2010) (unpublished); Washington, 698 F. Supp. 2d at 579.
Left Foot Cold Weather Injury and Degenerative Disc Disease
In applying for DIB, Plaintiff cited “back prob” and “3rd
degree

frost

bit

[sic]

in

L/foot”

as

among

the

“illnesses,

injuries, or conditions that limit[ed] [his] ability to work.”
(Tr. 132.)

During testimony before the ALJ, however, Plaintiff

mentioned only problems with his “heart,” “lower back,” “knees,”

11

“hear[ing],” and “patience,” when asked “why would you say that
you’re not able to work now?”

(Tr. 45.)

He further described his

lower back pain as “[c]hronic” and “constant” (since an incident
“in ‘90 . . . [or] ‘92, ‘93 [when his] parachute collapsed”),7 but
acknowledged:
the pain.”

“[with] [t]he medication I take . . . I don’t feel

(Tr. 45-46.)

Although Plaintiff omitted any reference

to his left foot when questioned about his disabling conditions at
his hearing, he later averred that, during military “cold weather
training, [he] had third degree frostbite on [his] foot,” which
continues to cause constant numbness that at times progresses up
his leg and even to his back.

(Tr. 46-47; see also Tr. 749

(setting forth Plaintiff’s report, during “Compensation and Pension
Examination Cold Injury Protocol” at a Veterans Administration
Medical Center (“VAMC”), that he suffered “frostbite to left toe
. . . in cold weather training in Korea in 1995 and another time
[in]

1996,

[to]

same

toe

at

Fort

Bragg”).)

Plaintiff

described related foot pain he treated with medication.

also

(Tr. 47.)

Plaintiff’s medical record (as detailed below) fully supports
the ALJ’s decision to opt against listing left foot cold weather
injury and/or degenerative disc disease as severe impairments:
7

Plaintiff reported reserve military service during 1989-91, 1996-2003,
and 2005, as well as active military service during 1991-96 and 2003-05. (Tr.
148.) At his hearing, in addition to the parachute-related injury in 1990, 1992,
or 1993, Plaintiff appeared to attribute his back pain to a later event “when
[he] was in Korea . . . and [he] fell down the side of a mountain.” (Tr. 45.)
However, in connection with a “General Medical Examination” on March 31, 2006,
Plaintiff “state[d] he had a bad parachute jump in 1990 at Fort Bragg, and when
he reached to pick up parachute, he noted his back was hurting him. . . . The
only injury was with the parachute jump in 1990.” (Tr. 276 (emphasis added).)

12

May 19, 2005 – Plaintiff visited a VAMC emergency room seeking
treatment for a skin rash and bump on his right wrist, but “said
[he] feels fine otherwise” (Tr. 584 (emphasis added));
May 29, 2005 – Plaintiff underwent an examination at a VAMC,
during which he (A) cited a history of “Frostbite” and “Back
Injury” (Tr. 559), but (B) “denie[d] any complaints of pain in the
lumbar, thoracic, or cervical regions” (Tr. 560), (C) as to his
“Extremities,” he “denie[d] any pain, swelling, or injury other
than to his right knee” (id.), and (D) displayed “[f]ull range of
motion (ROM) of lumbar, thoracic, and cervical regions” (Tr. 561);
September

27,

2005

–

at

a

scheduled

VAMC

appointment,

Plaintiff “offer[ed] no complaints” and rated his “pain” as “0”
(Tr. 527 (emphasis added));
October 31, 2005 – at a scheduled VAMC appointment, Plaintiff
described feeling “pins and needles sensation in L foot, present
for over 1 year, occurred on [sic] while on active duty, had
frostbite injury[,] [b]ecoming more bothersome with colder weather”
(Tr. 515) and placed his “pain” at a level of “7,” but noted that
he was “not using any pain medications” (Tr. 516);
November 9, 2005 – during an outpatient VAMC mental health
visit, Plaintiff stated that “[h]e is also on gabapentin and no
longer has pain in his feet” (Tr. 512 (emphasis added));

13

December 8, 2005 – at a scheduled VAMC appointment, Plaintiff
“offer[ed] no complaints” (Tr. 509 (emphasis added)) and reported
a “pain level” of “0” (Tr. 510 (emphasis added));
March 31, 2006 – during a “Cold Injury Protocol Examination”
at a VAMC, regarding a claim for active-duty frost-bite damage to
Plaintiff’s “left great toe,” as to which: A) (notwithstanding the
above-referenced record of (efficacious) medical treatment in late
2005) he reported “no treatment since service,” other than selftreatment of “wear[ing] two pairs of socks each night and soak[ing]
his foot in warm Epsom Salts from time to time” (Tr. 273-74); and
B) the examiner diagnosed only “[m]inimal peripheral neuropathy
with numbness of the toe” (Tr. 275 (emphasis added));
March 31, 2006 – during a “General Medical Examination” at a
VAMC, the examiner observed that Plaintiff “walk[ed] with a cane,
and is slightly bent forward” (Tr. 275), but that, despite some
clinical signs of pain, as well as of some limited range of motion
and tenderness in his back, his “daily activities are not limited”
and he had experienced “[n]o incapacitation episodes” (Tr. 276),
resulting in a diagnosis of only a “low back strain” (id.);
August 29, 2006 – at a VAMC “PCP [Primary Care Physician]
Follow-up Visit,” Plaintiff reported “nonradiating lower back pain
which occurs with running or fast walking or riding stationary
bike” (Tr. 502 (emphasis added); see also Tr. 504 (claiming “pain
level” for “low back” of “9”)), but after an examination revealed,

14

inter alia, that he could “walk on heels and toes” (Tr. 502), the
examiner prescribed only “tylenol for discomfort” (Tr. 503);
September 29, 2006 – during a routine medication review and
blood pressure check in connection with attendance at a VAMC
weight-loss program session, Plaintiff gauged his “pain level” as
“8” attributable to “chronic, foot pain” (Tr. 498);
December 7, 2006 – at a scheduled “PCP Follow-up Visit,”
Plaintiff reported a “pain level” of “5” in “(L) Foot” (Tr. 495),
but that he was “[n]ot taking medications regularly . . . [and was]
[w]alk[ing] 3x/week” (Tr. 493; see also Tr. 494 (“OTC: Denies”));8
February 9, 2007 – during a “PCP Telephone Contact,” Plaintiff
stated that he “[h]a[d] been exercising” (Tr. 493);
April 4, 2007 – during a “Peripheral Nerve Examination” at a
VAMC, Plaintiff “did not mention his left foot,” “could walk on his
toes and heels and jog slowly,” and “could bend to put his head to
the table while standing” (Tr. 761 (emphasis added));
June 27, 2007 – as part of a “Nursing Admission Assessment”
related to a hospitalization for chest pain, Plaintiff displayed a
“[f]ull

range

of

motion

in

all

extremities”

and

had

“[n]o

orthopedic equipment in use” (Tr. 211);
November 30, 2007 – at a “routine visit” to a VAMC, Plaintiff
noted “intermittent throbbing pain in left foot [that] gets worse

8

“OTC” commonly stands for “over-the-counter,” i.e., non-prescription
strength, medications. See, e.g., American Home Prods. Corp. v. Federal Trade
Comm’n, 695 F.2d 681, 694 (3d Cir. 1982).

15

with cold weather . . . [and that he] used gabapentin previously
which was effective” (Tr. 476 (emphasis added)), resulting in the
prescribing of gabapentin with instructions to call if the dosage
proved ineffective (Tr. 477);9
June 4, 2008 – Plaintiff’s “Pre-operative Assessment” for a
colonoscopy at a VAMC contains:

A) a notation beside the line for

“No problems noted” but not beside the line for “Pain” under the
“Neurological” heading (Tr. 325); B) notations beside “edema” and
“pain” as to both feet under the “Circulatory” heading (Tr. 326);
and C) a notation beside “pain, History of LEFT foot” under the
“Musculoskeletal” heading (Tr. 327);
August 26, 2008 – during a “routine evaluation of chronic
medical problems,” Plaintiff reported “[c]hronic back and foot
pain, relieved with gabapentin and naprosyn” (Tr. 310 (emphasis
added); see also id. (documenting “no edema” in “ext”));
September 2, 2008 – at a scheduled VAMC appointment, Plaintiff
rated his “Pain level: 0” (Tr. 306 (emphasis added));
September 8, 2008 – during VAMC emergency room treatment for
a sore throat and cough, Plaintiff exhibited “Full Range of Motion
(ROM) of lumbar, thoracic, and cervical regions” (Tr. 301);
September 17, 2008 – during a VAMC “Cardiology Consult,”
Plaintiff

“denie[d]

any

pain,

swelling

or

injury”

in

his

“Extremities” (Tr. 294 (emphasis added));

9

The record does not reflect that Plaintiff thereafter made any such call.

16

November 24, 2008 – a “Cold Injury Protocol Examination”
report from a VAMC: A) describes Plaintiff’s “cold sensitivity” as
“[m]ild” (Tr. 751 (emphasis added)); B) states “No” by line for
“history of decreased or lost sensations (numbness)” (id. (emphasis
added)); C) documents “Gait findings: Normal” (Tr. 752 (emphasis
added)); D) cites as “Reasons Given for Unemployment: States he
felt a lack of energy due to other medical problems and feels
incapable of physically performing work – general lethargy” (Tr.
754 (emphasis added)); and E) diagnoses “Frostbite to left great
toe with residual paresthesis,” but “General Occupational Effect:
No Significant Effects” (id. (emphasis added));
December 22, 2008 – at a “North Carolina Department of Health
and Human Services Disabiity Determination Services” evaluation:
A) Plaintiff complained of “lower back pain [and] pain in . . .
left foot” (Tr. 602; see also Tr. 598 (citing same at uncompleted
evaluation four days earlier)); and B) examination showed a “slight
limp on left . . . [with] [l]umbar spine, somewhat limited range of
motion [but] [s]traight leg raise test negative” (Tr. 603-04);10
March 5, 2009 – Plaintiff sought treatment at a VAMC emergency
room for “[b]ack and left foot pain x3 days” (Tr. 682), at which
time:

A) Plaintiff assessed his “Pain” at “10,” but the examiner

found “ROM within normal limits [and] [n]o acute distress” (id.)

10

“A straight leg-raising test is used to evaluate possible nerve root
irritation.” Phillips v. Barnhart, 91 F. App’x 775, 777 n.4 (3d Cir. 2004).

17

and observed that Plaintiff was “able to rise and sit and ambulate
without apparent pain or difficulty” (Tr. 683); and B) Plaintiff
“[s]tate[d] he is out of meds” and received a prescription (id.);
March

26,

2009

–

during

a

scheduled

VAMC

appointment,

Plaintiff reported “sever [sic] back pain, but state[d] he took 2
pain pills about 15 min[utes] ago” (Tr. 679), thus indicating his
expectation that the recently-prescribed medication would continue
to provide relief sufficient to allow normal physical activity,
circumstances further confirmed by his attendance at an exercisebased weight-loss class less than three weeks later (Tr. 678-79);
April 21, 2009 – while at a VAMC for a “Podiatry Risk
Assessment” related to “diabetic foot care” (Tr. 676), Plaintiff
saw a “kinesiotherapist” who conducted “an evaluation for a walking
cane,” during which Plaintiff complained of “pain of L foot” and
after which a “[w]alking cane [was] issued” (Tr. 675);11
October 5, 2009 – Plaintiff visited a VAMC emergency room
complaining of “pain in lower back and right hip” (Tr. 821) due to
his “back flar[ing] up last night” (Tr. 822), whereupon (despite
Plaintiff’s claimed pain of level “8” (Tr. 821) or “9” (Tr. 832))
the examiner noted only “[m]ild distress” and Plaintiff’s ability
to “get up and sit without problem” (Tr. 822; see also Tr. 823-24
(prescribing pain medicine); Tr. 829 (“ROM within normal limits.
11
“For purposes of establishing the existence of an impairment, a
kinesiotherapist is not an acceptable medical source.”
Lacy v. Astrue, No.
2:10CV847SRW, 2012 WL 642122, at *4 n.5 (M.D. Ala. Feb. 28, 2012) (unpublished)
(citing 20 C.F.R. § 416.913(a)).

18

No acute distress noted . . . .

[M]oving slowly with stiff gait.

[Plaintiff] denies any other discomfort . . . .”));
October

6,

2009

–

a

“Radiology

Report”

documented

that

Plaintiff’s “vertebral bodies and [his] disc spaces appear within
normal limits” and that “[n]o significant degenerative changes are
seen” (Tr. 800 (emphasis added));
October 14, 2009 – at a “PCP Follow-up Visit” to Plaintiff’s
emergency room treatment (which he described as having occurred
because he “[d]eveloped pain and stiffness in [his] back after
playing baseball with his son” (Tr. 817)), the examiner “instructed
[Plaintiff]

on

stretching

exercises

and

weight

loss

[and]

encouraged [him] to ambulate without assistive device” (Tr. 818);
December 18, 2009 – a “Physical Examination” of Plaintiff at
a

Fort

Bragg

medical

facility:

A)

confirmed

that

his

“intervertebral disc spaces are maintained” (Tr. 981 (emphasis
added)); B) revealed “no evidence of acute traumatic, neoplastic,
or significant arthritic change of the lumbar spine” (id. (emphasis
added)); and C) indicated only “[m]ild degenerative disc disease of
the lower thoracic spine” (id. (emphasis added)); and
January 26, 2010 – Plaintiff underwent a “MRI Lumbar Spine
Without Contrast” that showed his “[i]ntevertebral disc spaces are
well maintained” and that he has only “[m]ild degenerative disc
disease” (Tr. 982 (emphasis added)).
In sum, the record establishes that:

19

1) in May 2005, shortly after his alleged disability onset
date, Plaintiff twice indicated that his back and left foot felt
“fine” and that they did not cause him “any” pain (Tr. 560, 584);
2) in September 2005, Plaintiff again reported “no complaints”
about and “0” pain in his back and left foot (Tr. 527);
3) in October 2005, Plaintiff claimed pain in his left foot
(Tr.

515-16),

but

acknowledged,

within

10

days

of

starting

medication, that he “no longer ha[d] pain” (Tr. 512);
4) in December 2005, Plaintiff admitted that he experienced no
back or left foot problems or pain (Tr. 509-10);
5) in 2006, Plaintiff twice reported back pain (that did not
impact his daily activities in the first instance (Tr. 276) and
that only arose during intense exercise in the second (Tr. 502),
resulting in a diagnosis of a “strain” on one occasion (Tr. 276)
and treatment with “tylenol” on the other (Tr. 503), after which he
made no back complaints for over two years, admitted in August 2008
that medicine “relieved” his back pain, and confirmed in September
2008 that he experienced no back pain and enjoyed full range of
motion in his back (Tr. 301, 306, 310; see also Tr. 325-27, 761);
6) meanwhile, in March 2006, Plaintiff underwent an evaluation
of his left foot cold weather injury (during which he failed to
reveal the recent successful treatment with medicine) and received
a determination that deemed the condition “minimal” (Tr. 273-75);

20

7) later in 2006, Plaintiff again complained of foot pain, but
also acknowledged that he had not taken medication and that the
pain did not impede him from walking (Tr. 493-95, 498);
8) by April 2007, any pain Plaintiff experienced from his cold
weather injury had diminished to the point that he “did not mention
his left foot” during a comprehensive examination (Tr. 761);
9) in November 2007, Plaintiff reported left foot pain and
received a prescription (Tr. 476-77), which he later confirmed
“relieved” any such pain (Tr. 310; see also Tr. 294, 306);
10) further close scrutiny of Plaintiff’s cold weather injury
in November 2008 documented only “Mild” sensitivity to cold and
“No” numbness in his left foot, a “Normal” gait, as well as
Plaintiff’s admission that issues with his left foot did not
contribute to his lack of employment (Tr. 751, 752, 754);
11) after over two years without back complaints, in late
December 2008, at disability evaluations, Plaintiff cited low back
pain (and left foot pain/numbness) as maladies (Tr. 598, 602);
12) in March and April 2009, Plaintiff claimed left foot pain
again (Tr. 675, 682-83), but, by October 2009, after resuming
medicine, he again verified that the pain dissipated (Tr. 829); and
13) in March 2009, Plaintiff reported recent onset of back
pain and received a prescription that resolved any problem until
October 2009, when he sought care for back pain that he attributed
to

playing

baseball,

whereupon

21

both

thorough

evaluation

and

sophisticated testing (extending into January 2010) documented his
condition as “mild” (Tr. 682-83, 800, 817, 821-24, 829, 981, 982).
This analysis belies Plaintiff’s assertion that “[p]ersistent
numbness and pain from a residual cold injury [and] degenerative
disc disease . . . are documented throughout the medical record.”
(Docket Entry 9 at 6 (emphasis added).)

To the contrary, the

medical record (as outlined above) conclusively establishes that:
1) Plaintiff (A) repeatedly denied any back problem throughout
2005, (B) only reported back pain twice in 2006 (neither under
circumstances

indicative

of

more-than-minimal

or

sustained

impairment of work-related functioning), (C) offered no complaints
about

his

back

for

more

than

two

years

until

a

disability

evaluation in late 2008, after which (D) he claimed two flare-ups
in 2009 and (E) underwent comprehensive screening, resulting in a
diagnosis

of

only

a

mild

condition

without

any

finding

of

associated limitation of basic work activities; and
2) Plaintiff (A) complained about left foot pain once in 2005
(after denying any left foot issue multiple times earlier that
year), (B) promptly reported such pain resolved by medication, (C)
secured a finding of only minimal injury in 2006 (after a searching
medical review), (D) claimed foot pain once late in 2006 (while not
on medication and without impact on his walking program), (E)
quickly recovered to the extent that, in early 2007, he did not
even mention his left foot during an extensive physical evaluation,

22

(F) obtained a prescription to address left foot pain once in late
2007, (G) confirmed in 2008 that the prescribed medicine addressed
any left foot pain and that left foot issues did not cause his
unemployment (at the same time a thorough work-up again validated
limited, if any, symptomatology), and (H) noted foot pain twice in
early 2009, but (upon securing medication) acknowledged relief.
Notably, Plaintiff cited no authority to support his assertion
that the ALJ should have found that left foot cold weather injury
and/or degenerative disc disease “have more than a minimal impact
on [Plaintiff’s] ability to function day to day.”
a number of reasons) could he.
condition

is

not

sufficient

(Id.)

Nor (for

First, “the mere presence of a
to

make

a

step-two

showing.”

Williamson, 350 F.3d at 1100; see also Higgs v. Bowen, 880 F.2d
860, 863 (6th Cir. 1988) (“The mere diagnosis of [a condition], of
course, says nothing about the severity of the condition.”); Money
v. Astrue, No. 5:09CV42RLV-DSC, 2009 WL 7449241, at *7 (W.D.N.C.
Dec.

9,

2009)

(unpublished)

(“[T]he

mere

fact

that

[the]

[p]laintiff was diagnosed with certain impairments [including
degenerative disc disease] . . . says nothing about the severity of
the

impairments.”),

recommendation

adopted,

2011

WL

666729

(W.D.N.C. Feb. 14, 2011) (unpublished).
Second, (as detailed above) the medical record shows that
Plaintiff suffers, at most, only mild or minimal forms of left foot
cold weather injury and degenerative disc disease (Tr. 275, 751-52,

23

800, 981, 982), but courts have recognized that mild or minimal
conditions do not equate (at least as a default matter) to severe
impairments, see, e.g., Leovao v. Astrue, No. 2:11CV54MR-DSC, 2012
WL 6189326, at *3 (W.D.N.C. Nov. 14, 2012) (unpublished) (“[T]he
diagnosis of a mild shoulder problem does not establish a severe
impairment.

The fact that an MRI revealed that [the] [p]laintiff

had ‘mild’ a.c. joint arthrosis and a ‘mild’ increased signal
. . . compatible with tendinopathy/tendinitis did not require the
ALJ

to

find

any

functional

limitations.”

(internal

citations

omitted)), recommendation adopted, 2012 WL 6186824 (W.D.N.C. Dec.
12, 2012) (unpublished); Washington, 698 F. Supp. 2d at 579
(upholding step-two ruling that arthritis did not qualify as severe
where doctor “described the findings as ‘minimal’”); Ferrante v.
Astrue, 755 F. Supp. 2d 206, 210 (D. Me. 2010) (rejecting challenge
to finding of non-severity at step two where record showed “only
mild degenerative disease in the lumbosacral area”).
Third, “nowhere in the record is there any evidence that
[Plaintiff’s]

failure

to

work

.

.

.

was

conditions].”

Williamson, 350 F.3d at 1100.

caused

by

[these

In fact, (as shown

above) the record reflects that, after Plaintiff filed his instant
DIB claim, he admitted that any left foot cold weather injury did
not represent a cause of his unemployment.

Although the record

does not contain quite so stark an admission from Plaintiff about
his back, the record also lacks medical evidence that his mild

24

degenerative disc disease imposed specific functional limitations.
That void defeats Plaintiff’s argument that the ALJ should have
listed degenerative disc disease as a severe impairment.

See,

e.g., Kirk v. Commissioner of Soc. Sec., 177 F. App’x 205, 207 n.3
(3d Cir. 2006) (“[T]he record lacks meaningful support of [the
plaintiff’s]

self-serving

allegations

of

[a]

debilitating

[condition]. Such allegations, standing alone, are insufficient to
sustain [his] burden of showing a severe impairment.”); Campbell v.
Astrue, No. 2:11CV563, 2013 WL 1213057, at *10 (E.D. Va. Mar. 1,
2013) (unpublished) (“[The plaintiff] bears the burden of proving
that

. . . [a condition] was a severe impairment.

At the least,

[he] was required to show not only that he had a diagnosed
impairment, but also that he had associated functional limitations
that

prevented

him

from

adequately

performing

work-related

activities.” (internal citation omitted)), recommendation adopted,
2013 WL 1213090 (E.D. Va. Mar. 25, 2013) (unpublished); Washington,
698 F. Supp. 2d at 579 (“[M]edical evidence alone is evaluated in
order to assess the effects of the impairment(s) on ability to do
basic work activities.” (internal quotation marks omitted)).
Fourth, “Plaintiff fails to acknowledge h[is] reports of pain
relief with medication.”

Money, 2009 WL 7449241, at *7.12

12

“If a

In particular, during testimony before the ALJ regarding his back,
Plaintiff stated: “[with] [t]he medication I take . . . I don’t feel the pain.”
(Tr. 46.) Similarly, during an examination after the filing of the instant DIB
claim, Plaintiff reported “back and foot pain, relieved with gabapentin and
naprosyn.” (Tr. 310.) Moreover, the record (detailed above) consistently shows
(continued...)

25

symptom can be reasonably controlled by medication or treatment, it
is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir.
1986). Consistent with that principle, courts will affirm an ALJ’s
finding that a condition does not qualify as severe where (as here)
the record shows medicinal relief.

See, e.g., Martise v. Astrue,

641 F.3d 909, 923-24 (8th Cir. 2011) (“[The plaintiff] argues that
the ALJ erred in finding that her migraine headaches were not a
severe impairment . . . .

Because [the plaintiff’s] migraine

headaches are controllable and amenable to treatment, they do not
support

a

finding

of

disability.”

(internal

quotation

marks

omitted)); Harris v. Commissioner of Soc. Sec., No. 12-14121, 2014
WL

793612,

at

*9

(E.D.

Mich.

Feb.

27,

2014)

(unpublished)

(upholding step-two finding of non-severity where “the record shows
the [plaintiff’s] treatment was routine and her conditions were
either

controlled

with

medications

or

asympomatic”

(internal

quotation marks omitted)); Barrow v. Astrue, No. 2:10CV698, 2011 WL
4500846, at *5 (E.D. Cal. Sept. 27, 2011) (unpublished) (“[B]ecause
the medical record confirms that [the] plaintiff’s foot impairments
responded to medication and treatment, the ALJ could properly find
that they were not severe impairments.”).
In light of all these considerations, the ALJ did not err by
declining

to

identify

left

foot

12

cold

weather

injury

and/or

(...continued)
a lack of pain and/or successful treatment of pain in Plaintiff’s left foot
and/or back. (See Tr. 294, 306, 476, 510, 512, 527, 559-61, 584, 761, 829.)

26

degenerative disc disease as severe impairments.

Moreover, to the

extent the ALJ did err in that regard, any such error does not
warrant

reversal

or

remand

because,

“upon

determining

that

[Plaintiff] ha[d] [other] severe impairment[s], the [ALJ properly]
continue[d] with the remaining steps,” Maziarz, 837 F.2d at 244.
Specifically, at step two, the ALJ found two severe impairments
(Tr. 12) and proceeded through step five (Tr. 12-21).
Nor, once at the RFC-formulation stage of the SEP, did the ALJ
misapply the law in regards to Plaintiff’s left foot cold weather
injury and/or degenerative disc disease.

As an initial matter,

although Plaintiff claims the ALJ failed to address said conditions
in devising the RFC (Docket Entry 9 at 4, 6), Plaintiff has not
identified a single restriction the ALJ should have included to
account for them (id. at 4-6).
contention,

in

developing

Further, contrary to Plaintiff’s

the

RFC,

the

ALJ

gave

“careful

consideration to the entire record” (Tr. 13), as confirmed by the
explicit discussion of and/or citation to Plaintiff’s testimony and
the pertinent medical evidence in the ALJ’s decision (see Tr. 1417).

Finally, the ALJ expressly (and adequately) dealt with

Plaintiff’s left foot cold weather injury and degenerative disc
disease (whether classified as severe impairments or not) by
restricting him to light work with added limitations of “the option
to sit or stand every 60 minutes with a cane . . . [and no]
extremes of . . . cold temperature[.]”

27

(Tr. 12-13; see also Tr. 18

(“[Plaintiff] complains of back pain, however diagnostics of the
lumbar spine showed mild disease. . . .

Aside from some decreased

sensation, clinical examination of [Plaintiff’s left great] toe was
unremarkable.”); Tr. 19 (“[Plaintiff] ambulates with a cane, which
may be associated with toe numbness and or low back pain. However,
related clinical and diagnostic examinations are not significantly
compelling enough to substantiate the need for a cane. . . .
Giving [Plaintiff] the benefit of the doubt, the use of a cane is
included in his [RFC], as well as a sit/stand option . . . .”).)13
Simply put, Plaintiff has shown no error in his RFC related to
his left foot cold weather injury and/or degenerative disc disease.
Accordingly,

any

alleged

error

at

step

two

regarding

those

conditions caused Plaintiff no prejudice (and thus warrants neither
reversal nor remand).

See Wells, 727 F.3d at 1068 & n.6; Arnett,

676 F.3d at 591; Heatly, 382 F. App’x at 824-25; Lewis, 498 F.3d at
911; Maziarz, 837 F.2d at 244; McLain, 2014 WL 2167832, at *4;
Prince, 2013 WL 1786634, at *2; Powell, 927 F. Supp. 2d at 274-75;
Kenney, 2011 WL 5025014, at *5; Clark, 2010 WL 2730622, at *11;
Lauver, 2010 WL 1404767, at *4; Washington, 698 F. Supp. 2d at 580.

13

Indeed, the restrictions adopted by the ALJ generally cohere with
Plaintiff’s own reported capacity.
For example, at his hearing, Plaintiff
conceded he could stand continually “for about 40 minutes to about a hour.” (Tr.
55.) Similarly, although Plaintiff’s testimony reflected an estimated tolerance
for continuous sitting of “[a]bout 40 minutes” (Tr. 56), he previously informed
a medical examiner that “a sit down job would be fine” (Tr. 276). Moreover, the
RFC prescribed by the ALJ provided for greater physical limits than the
consulting experts had recommended based on the record. (Tr. 608-15, 708-15.)

28

Obesity
As with his left foot cold weather injury and degenerative
disc disease, Plaintiff seeks relief on the grounds that the ALJ
“neither considered [obesity] ‘severe’ at Step 2, nor did he
consider [it] during the RFC assessment . . . .”

(Docket Entry 9

at 4; see also id. at 6 (arguing that ALJ failed to address obesity
adequately under applicable Social Security Ruling).)

In support

of that contention, Plaintiff’s brief asserts that he identified
“extreme obesity” as one of his “disabling impairments in his
application” (id. at 4 (citing Tr. 132)); however, a review of the
record page cited in Plaintiff’s brief confirms that he did not
(see Tr. 132 (“What are the illnesses, injuries, or conditions that
limit your ability to work? cordnary [sic] heart disease, back
prob, ptsd, hbp, 3rd degree frost bit [sic] in L/foot and knee, High
Cholesterol,

Prob

with

left

eye,

sleep

apnea”)).14

Nor

did

Plaintiff testify at his hearing that obesity limited his ability
to work (Tr. 41-62); instead, he noted that other conditions
impeded employment (Tr. 45 (mentioning only issues with “heart,”
“lower back,” “knees,” “hear[ing],” and “patience,” in answering
“why would you say that you’re not able to work now”)).

14
In his Hearing Memorandum, Plaintiff also omitted obesity from the list
of his “Diagnoses” (Tr. 188) and from the litany of conditions “[t]he combination
of [which] would prevent [him] from working at any exertional level on a regular
and consistent basis” (Tr. 191), although elsewhere therein Plaintiff stated that
he qualified as “obese under the [applicable Social Security Ruling]” (Tr. 190)
and claimed in conclusory fashion that his “obesity in combination with his other
physical impairments further impair[ed] his ability to work” (Tr. 191).

29

Those facts alone warrant denial of relief for any purported
error related to obesity.

See, e.g., Kushnir v. Commissioner of

Soc. Sec., No. 6:13CV711ORL18DAB, 2014 WL 2860328, at *4 (M.D. Fla.
June 23, 2014) (unpublished) (“The Commissioner contends that [the]
[p]laintiff never alleged that her weight . . . affected her
ability to work, nor did she claim her weight . . . caused any
limitations in the documents she submitted with her applications.
The Commissioner points out that when [the] [p]laintiff testified
at the hearing, she only identified neck pain and back pain as the
reasons why she could not work . . . .

[I]t was not error for the

ALJ to omit discussion of [the] [p]laintiff’s alleged obesity where
she had failed to allege it was an impairment or caused functional
limitations.” (internal citations omitted)); Thomas v. Colvin,
Civil Action No. 1:13-1294-RMG, 2014 WL 2611720, at *1-2, 13
(D.S.C. June 11, 2014) (unpublished) (adopting recommendation that
rejected argument that “ALJ erred by failing to discuss [the]
[p]laintiff’s obesity in the RFC analysis and failing to consider
how its effects combined with [his] other impairments limited his
ability to perform the function necessary to sustain gainful
employment . . . [where,] [i]n his testimony, [the] [p]laintiff did
not describe obesity as one of his impairments . . . [and he] did
not allege obesity as an impairment in his Disability Reports”);
Malin v. Astrue, No. 4:11CV1320TCM, 2012 WL 3762505, at *15 (E.D.
Mo. Aug. 29, 2012) (unpublished) (“[The] [p]laintiff did not cite

30

obesity as a condition affecting his functioning when applying for
DIB . . . or when testifying.

The burden of establishing that his

obesity is a severe impairment is on [the] [p]laintiff, which he
failed to carry.” (internal citation omitted)); Patton v. Astrue,
No. 7:10CV135HL, 2012 WL 645880, at *6 (M.D. Ga. Feb. 6, 2012)
(unpublished) (“[The] [p]laintiff does not allege that he is
disabled due to his obesity in his application for disability
benefits; rather, he stated that he was unable to work because of
problems with both knees, and his elbow.

Also, when questioned by

the

at

ALJ

about

his

medical

conditions

his

hearing,

[the]

[p]laintiff stated that he could not work due to numbness in his
feet, a stiff neck, numbness in his hands, deterioration of his
right chest, his left triceps disappearing, and due to a tear in
his shoulder. To the extent that [the] [p]laintiff is alleging the
ALJ did not properly discuss [the] [p]laintiff’s obesity, the ALJ
did not err because [the] [p]laintiff did not allege that his
obesity

caused

an

impairment.”

(internal

citation

omitted)),

recommendation adopted, 2012 WL 645852 (M.D. Ga. Feb. 28, 2012)
(unpublished); see also Frederick v. Commissioner of Soc. Sec.,
Civil Action No. 10-11349, 2011 WL 1518966, at *9 (E.D. Mich. Mar.
25, 2011) (unpublished) (“[T]he courts frown upon ‘sandbagging’
administrative decisions by presenting evidence or issues for the
first time upon judicial review which could have been raised before

31

the ALJ.”), recommendation adopted, 2011 WL 1518913 (E.D. Mich.
Apr. 20, 2011) (unpublished).
To the extent the Court opts to consider further Plaintiff’s
assignments of error regarding obesity, it again should find no
grounds for reversal or remand.
notes

that

the

fact

of

his

In his brief, Plaintiff rightly
obesity

“was

clearly

documented

throughout the record,” including at his hearing (Docket Entry 9 at
5 (discussing and citing Tr. 48, 216, 419, 505, 603-04, 675,
692));15 however, beyond that, Plaintiff offers only the bald
assertion that, in combination with his left foot cold weather
injury and degenerative disc disease, his obesity “ha[d] more than
a minimal impact on [his] ability to function day to day” (id. at
6).

Despite Plaintiff’s failure to identify any evidence that

obesity

actually

caused

any

functional

limitation(s),

he

nonetheless contends (without developed argument or citation of
authority) that the ALJ should have listed obesity as a severe
impairment at step two and “did not rectify this error . . . by
considering the effects of [Plaintiff’s obesity] in his RFC.”
(Id.; see also id. (“[T]he ALJ fail[ed] to correctly discuss []
Plaintiff’s obesity and it’s [sic] impact on his [RFC]. . . .
Steps

4

and

5,

obesity

must

be

15

evaluated

in

its

[I]n

functional

The citation to page 419 of the record appears in error and, instead,
likely should refer to record page 418. (See Tr. 418, 419.) Similarly, although
page 692 of the record documents Plaintiff’s participation in a weight-loss
program, record page 696 contains the related listing of his weight and body mass
index. (See Tr. 692, 696.)

32

limitations.

[The applicable Social Security Ruling] notes that

obesity may cause limitations in exertional and postural function
. . . [and] contemplates that one’s impairments may be greater than
without obesity.” (emphasis added)).)

Such an approach falls far

short of establishing entitlement to relief for numerous reasons.
First, “the mere presence of a condition is not sufficient to
make a step-two showing.”

Williamson, 350 F.3d at 1100; see also

Higgs, 880 F.2d at 863 (“The mere diagnosis of [a condition], of
course, says nothing about the severity of the condition.”); Ricci
v. Astrue, No. 5:11CV81, 2013 WL 393339, at *2 (W.D. Va. Jan. 31,
2013) (unpublished) (“[A] mere diagnosis of obesity does not mean
that such condition has an impact on [one’s] ability to perform
work.”).

Second, Plaintiff has not shown “that h[is] obesity

cause[d] vocationally significant limitations.

That is, []he did

not demonstrate that obesity significantly impact[ed] h[is] ability
to perform basic work activities in excess of the limitations found
by the ALJ in his decision.”

Spencer v. Astrue, No. 1:08CV71J,

2008 WL 5214230, at *2 (W.D. Ky. Dec. 12, 2008) (unpublished); see
also Russell v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL
417576, at *3 (4th Cir. July 7, 1995) (unpublished) (declining to
reverse disability denial based on “argu[ment] that the ALJ gave
short shrift to [the plaintiff’s] obesity,” where the plaintiff
“speculate[d] that his obesity may have somehow aggravated his neck
condition in a manner not fully considered by the ALJ, but [the

33

plaintiff] d[id] not fully explain the basis of this theory”);
Thompson v. Colvin, No. 3:12CV399, 2013 WL 4854418, at *8 (W.D.N.C.
Sept. 11, 2013) (unpublished) (refusing to remand given “[the]
[p]laintiff’s failure to set forth how her obesity further impaired
her ability to work, or to provide an explanation of how her
obesity would have impacted the ALJ’s five-step analysis” (internal
quotation marks omitted)); Yurek v. Astrue, No. 5:08CV500FL, 2009
WL 2848859, at *8 (E.D.N.C. Sept. 2, 2009) (unpublished) (rejecting
attack on RFC where the plaintiff “failed to do more than suggest
that the ALJ should have speculated as to what extent obesity
. . . may have impaired [the plaintiff’s] ability to work”).
Third, “an individual’s BMI [body mass index] level does not
correlate with any specific degree of functional loss . . . [and]
Plaintiff fails to explain why a limitation to light work [with
further restrictions added by the ALJ] d[id] not adequately account
for any limitations resulting from h[is] obesity.”

Barnes v.

Astrue,

16,

No.

1:11CV285MR-DSC,

at

*3

(W.D.N.C.

Oct.

2012)

(unpublished), recommendation adopted, 2012 WL 5457482 (W.D.N.C.
Nov. 8, 2012) (unpublished); see also Williams v. Astrue, No.
3:09CV103D, 2010 WL 517590, at *4 (N.D. Tex. Feb. 11, 2010)
(unpublished) (“The ALJ also limited [the plaintiff’s] RFC to
‘light capacity’ work, which would likely be consistent with any
obesity-related limitations.”).

Fourth, “the ALJ’s failure to

explicitly address Plaintiff’s obesity was offset by the ALJ’s

34

implied inquiry regarding [Plaintiff’s] obesity.

For example,

. . . Plaintiff [testified to his] height and weight at the hearing
and the ALJ adopted physicians’ records [documenting] the obesity.”
Thompson, 2013 WL 4854418, at *8 (internal citations and quotation
marks omitted); see also Chavis v. Astrue, No. 5:11CV220(TJM/TWD),
2012 WL 6150851, at *6 (N.D.N.Y. Sept. 21, 2012) (unpublished)
(“Since [the] [p]laintiff did not list or testify to obesity as a
disabling impairment and the medical evidence considered by the ALJ
made repeated references to [the] [p]laintiff’s weight and BMI,
. . . the ALJ’s failure to explicitly address [the] [p]laintiff’s
obesity does not warrant remand.”), recommendation adopted, 2012 WL
6139661 (N.D.N.Y. Dec. 11, 2012) (unpublished).
In

sum,

“[g]iven

that

neither

the

medical

records

nor

[Plaintiff’s] testimony demonstrates that h[is] obesity result[ed]
in additional work-related limitations, it was not error for the
ALJ’s opinion to omit specific discussion of obesity.” McNamara v.
Astrue, 590 F.3d 607, 612 (8th Cir. 2010). Indeed, this Court (per
United States District Judge Catherine C. Eagles) recently ruled in
the Commissioner’s favor under circumstances nearly identical to
the facts of this case:
[The plaintiff] contends that the ALJ erred at step two
of the [SEP] by failing to find [the plaintiff’s] obesity
a severe impairment, and further failed to comply with
[Social Security Ruling] 02-1p, Titles II and XVI:
Evaluation of Obesity[, 2002 WL 34686281,] by not
considering the impact of [the plaintiff’s] obesity on
his RFC. . . .

35

[The plaintiff] fails to meet [his] burden. The medical
evidence in the record shows, at most, a diagnosis of
obesity, which, standing alone, does not support a
severity finding. No medical evidence of record suggests
that his obesity had more than a minimal impact on his
ability to perform basic work activities. . . . [The
plaintiff] did not include obesity as an impairment on
Disability Reports submitted to the Social Security
Administration following his applications for benefits or
on appeal, nor did he mention obesity when the ALJ asked
him at the hearing what kinds of medical problems he had
and how these problems kept him from working.
Substantial evidence thus supported the ALJ’s conclusion
that [the] [p]laintiff’s obesity failed to qualify as a
severe impairment.
Further, the ALJ’s failure to expressly discuss [the
plaintiff’s] obesity (whether classified as severe or
not) in conjunction with his RFC assessment constitutes
harmless error.
In his arguments to the Court, [the
plaintiff] does not identify any unaddressed limitations
that he believes his obesity causes. As such, no basis
exists for a remand. See Rutherford v. Barnhart, 399
F.3d 546, 552–53 (3d Cir. 2005) (ruling remand for
express consideration of obesity unnecessary where [the]
plaintiff failed to specify how her obesity would impact
the ALJ’s analysis); accord Skarbek v. Barnhart, 390 F.3d
500, 504 (7th Cir. 2004); Miller v. Astrue, No.
2:06–00879, 2008 WL 759083, at *3 (S.D.W. Va. Mar. 19,
2008) (unpublished).
Cook v. Colvin, No. 1:11CV87, 2014 WL 317847, at *3 (M.D.N.C. Jan.
29, 2014) (unpublished) (some internal citations omitted).

The

Court should reach the same result here.
CONCLUSION
Plaintiff has established no grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment

on

the

Pleadings

(Docket

36

Entry

8)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 11)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 1, 2014

37