WOODARD v. COLVIN

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/20/2016, that the Plaintiff's Motion for Judgment Reversing the Decision of the Commissioner of Social Security (Docket Entry 9 ) should be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) should be granted, and that this action should be dismissed with prejudice. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WANDA H. WOODARD,

)
)
)
)
)
)
)
)
)
)
)

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

1:14CV882

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Wanda H. Woodard, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Plaintiff’s

claim

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”).
Docket

Entry

1.)

The

Court

has

before

it

the

(See

certified

administrative record (Docket Entry 7 (cited herein as “Tr.

”)),

as well as the parties’ cross-motions for judgment (Docket Entries
9, 11; see also Docket Entry 10 (Plaintiff’s Brief); Docket Entry
12 (Defendant’s Memorandum)).

For the reasons that follow, the

Court should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging a disability onset
date of January 1, 2011.

(Tr. 236-49.)

Upon denial of those

applications initially (Tr. 154-71) and on reconsideration (Tr.
172-89),

Plaintiff

requested

a

hearing

de

Administrative Law Judge (“ALJ”) (Tr. 150-51).

novo

before

an

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing
(Tr. 33-58), at which Plaintiff amended her alleged onset date to
March 1, 2010 (see Tr. 35-36).

The ALJ subsequently determined

that Plaintiff did not qualify as disabled under the Act. (Tr. 1530.) The Appeals Council thereafter denied Plaintiff’s request for
review, thus making the ALJ’s determination the Commissioner’s
final decision for purposes of judicial review.

(Tr. 1-6.)

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 March 31, 2010.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 1, 2010, the amended alleged onset
date.
3.
[Plaintiff] has the following severe impairment:
lumbar facet arthropathy.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except [Plaintiff] can lift
and/or carry 10 pounds occasionally and less than 10
2

pounds frequently. [Plaintiff] can sit up to 6 hours in
an 8-hour workday and can stand and/or walk 2 hours in an
8-hour workday. [Plaintiff] cannot climb ladders, but
can occasionally balance and stoop. [Plaintiff] can
frequently crouch, kneel, crawl and climb stairs.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff]’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from January 1, 2007, through
the date of this decision.
(Tr.

20-26

(bold

font

and

internal

parenthetical

citations

omitted).)
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 . . . review of [such] a decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has

not shown entitlement to relief under the extremely limited review
standard.

3

A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
reviewing

court must

uphold

the

factual

findings

Instead, “a
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.’”
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 Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).

“Where

conflicting evidence allows reasonable minds to differ as to
4

whether

a

claimant

is

disabled,

the

responsibility

for

that

decision falls on the [Social Security 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 take 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 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)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
promulgated . . . detailed regulations incorporating longstanding
1

The Act “comprises two disability benefits programs. [DIB]
. . . provides benefits to disabled persons who have contributed to
the program while employed.
[SSI] . . . 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

medical-vocational evaluation policies that take into account a
claimant’s age, education, and work experience in addition to [the
claimant’s] medical condition.”

Id.

“These regulations establish

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

Id.

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 residual functional capacity
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. 1999).2

A finding adverse to the claimant at any of

several points in the SEP forecloses an 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).

2

“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 [government] . . . .”
Hunter, 993 F.2d at 35
(internal citations omitted).
6

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 residual functional capacity
(‘RFC’).”

Id. at 179.3

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.
179-80.

Id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the 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.

3

If, at this

“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 work-related 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.
7

step, the government cannot carry its “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 567.4
B.

Assignment of Error

Plaintiff assigns error to the ALJ’s alleged failure “to fully
evaluate consultative examiner Dr. Gremillion’s medical opinion
regarding [Plaintiff]’s functional limitations.”
at 1.)

(Docket Entry 9

In particular, Plaintiff contends that “[t]he ALJ did not

address Dr. Gremillion’s opinion that [Plaintiff] can sit for no
more than 4 hours per day, that she requires use of a medically
necessary cane to ambulate, and that she cannot use her feet to
operate foot controls.”
also Tr.

459-70

(Dr.

(Docket Entry 10 at 5 (citing Tr. 24); see
Gremillion’s

consultative

examination).)

Therefore, Plaintiff argues that “[t]he ALJ failed to evaluate and
assign

weight

to

these

portions

of

Dr.

Gremillion’s

medical

opinion, as required by 20 C.F.R. § 404.1527(c), and failed to
explain why these portions of the opinion were not adopted, as
4

A claimant thus can qualify as disabled 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.”).
8

required by [Social Security Ruling 96–8p, Assessing Residual
Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (July
2, 1996) (“SSR 96–8p”)].”

(Docket Entry 10 at 5-6.)

According to

Plaintiff, “[u]nder the standards of [Social Security Ruling 96–9p,
Policy Interpretation Ruling Titles II and XVI:

Determining

Capability to Do Other Work—Implications of a Residual Functional
Capacity for Less Than a Full Range of Sedentary Work, 1996 WL
374185, at *7 (July 2, 1996) (“SSR 96–9P”)], the portions of Dr.
Gremillion’s opinion disregarded by the ALJ without explanation
would

significantly

sedentary work.”

impede

[Plaintiff]’s

(Docket Entry 10 at 6.)

ability

to

perform

Plaintiff’s contentions

do not warrant relief.
Consultative examiners do not constitute treating sources
under

the

regulations,

see

20

C.F.R.

§§

404.1527(c)(2),

416.927(c)(2), and thus their opinions, as a general proposition,
do not warrant controlling weight, Turberville v. Colvin, No.
1:11CV262,

2014

WL

1671582,

at

*6

(M.D.N.C.

Apr.

23,

2014)

(unpublished), recommendation adopted, slip op. (M.D.N.C. May 15,
2014).

The ALJ must nevertheless evaluate consultative opinions

using the factors outlined in 20 C.F.R. §§ 404.1527(c)(1) through
(6) and 416.927(c)(1) through (6), and expressly indicate and
explain the weight he or she affords to such opinions.

See 20

C.F.R. §§ 404.1527(c), 416.927(c) (“Regardless of its source, [the
ALJ] will evaluate every medical opinion [he or she] receive[s]”
9

and where an opinion does not warrant controlling weight, “[the ALJ
must]

consider

all

of

the

.

.

.

factors

[in

20

C.F.R.

§§

404.1527(c)(1)-(6), 416.927(c)(1)-(6)] in deciding the weight [to]
give to any medical opinion.” (emphasis added)); Social Security
Ruling 96–5p, Medical Source Opinions on Issues Reserved to the
Commissioner, 1996 WL 374183, at *5 (July 2, 1996) (noting that
ALJs “must weigh medical source statements . . . [and] provid[e]
appropriate

explanations

for

accepting

or

rejecting

such

opinions”).
The weight an ALJ ultimately assigns a medical opinion depends
upon the degree by which “a medical source presents relevant
evidence to support [the] opinion, particularly medical signs and
laboratory findings,” as well as the opinion’s consistency “with
the

record

as

a

416.927(c)(3)-(4);

whole.”

20

see

Craig,

also

C.F.R.
76

§§

404.1527(c)(3)-(4),

F.3d

at

590

(“[I]f

a

physician’s opinion is not supported by clinical evidence or if it
is inconsistent with other substantial evidence, it should be
accorded

significantly

statements

regarding

less

her

weight.”).

daily

Where

activities,

a

plaintiff’s

medical

treatment

evidence, or other opinion evidence contradict a medical opinion,
the ALJ may afford the opinion less weight.

See Jones v. Astrue,

585 F. App’x 275, 276 (4th Cir. 2014) (upholding an ALJ’s decision
to

assign

opinions

little

weight

conflicted

with

to

physician’s

other
10

medical

opinions
evidence

because
and

the

“[the

plaintiff]’s ability to drive, shop, attend church, and communicate
effectively at the hearings”).
Similarly, “[t]he [ALJ’s] RFC assessment must always consider
and address

medical

source

opinions.

If

the

RFC

assessment

conflicts with an opinion from a medical source, the [ALJ] must
explain why the opinion was not adopted.”

SSR 96–8p, 1996 WL

374184, at *7; see also Gordon v. Schweiker, 725 F.2d 231, 235 (4th
Cir.

1984)

(holding

that

reviewing

court

generally

“cannot

determine if findings are supported by substantial evidence unless
the [ALJ] explicitly indicates the weight given to all of the
relevant evidence”).
Here, when determining Plaintiff’s RFC, the ALJ specifically
considered Dr. Gremillion’s consultative examination, explaining
that:
I find that the medical evidence in the file and the
consultative examination by Dr. Gremillion demonstrate
that [Plaintiff] has more significant limitations [than
the State agency consultants determined, who limited
Plaintiff to medium work].
While I have given Dr.
Gremillion’s opinion some weight, I have not accepted his
conclusions that [Plaintiff] was limited to less than 8
hours of work per day. Similarly, I have not adopted the
postural, handling and environmental limitations which
are inconsistent with the [RFC].
I find that the
objective medical evidence does not support these
additional limitations.
Taking into consideration
[Plaintiff]’s testimony and the objective medical
evidence, I find [Plaintiff]’s back impairment causes
some limitations. However, such limitations have been
adequately addressed by reducing [Plaintiff]’s exertional
capacity to sedentary work and imposing some postural
limitations.
11

(Tr. 24-25 (emphasis added); see also Tr. 22 (summarizing Dr.
Gremillion’s consultative examination and stating, “[t]he opinion
of Dr. Gremillion was taken into consideration in formulating
[Plaintiff’s RFC]”).)

On this basis, the ALJ clearly considered

Dr. Gremillion’s consultative examination, assigned weight to the
examination, see 20 C.F.R. §§ 404.1527(c), 416.927(c), factored the
examination into the analysis of Plaintiff’s RFC, see SSR 96-8p,
and explained the decision not to adopt certain portions of the
examination.

As the ALJ stated, “[Plaintiff]’s testimony and the

objective medical evidence” do not support all of Dr. Gremillion’s
conclusions.
The

ALJ

(Tr. 24.)
did

not

specifically

discuss

the

rationale

for

rejecting Dr. Gremillion’s conclusions that Plaintiff can sit for
no more than 4 hours per day, that she requires use of a medically
necessary cane to ambulate, and that she cannot use her feet to
operate foot controls, as the ALJ’s statement that she did “not
adopt[] the postural, handling and environmental limitations” (Tr.
24) would not encompass limitations on sitting, the necessity of a
cane, or the use of foot controls.5

However, such failure by the

ALJ amounts to harmless error given the lack of record support for
those

limitations.

First,

although

5

Dr.

Gremillion

concluded

The ALJ did explicitly acknowledge Dr. Gremillion’s
consultative examination and Plaintiff’s reports regarding the use
of a cane. (See Tr. 21-23, 39, 47.)
12

Plaintiff’s cane was “medically necessary” and that she could not
use her feet to operate foot controls, he also determined that
Plaintiff’s extremities showed no signs of “clubbing, cyanosis, or
edema,” had a “well developed musculature that is symmetrical with
good strength,” and had no neurological deformities.

(Tr. 461.)

Moreover, Plaintiff conceded that no physician of record prescribed
her a cane. (Tr. 39; see also Tr. 324-470 (record medical evidence
establishing no doctor prescribed Plaintiff a cane).)6
Additionally, the record medical evidence establishes that
Plaintiff’s treating orthopedist, James E. Nitka, M.D., reviewed
numerous

structural

and

neurological

tests

of

Plaintiff

and

determined that Plaintiff “walks with her right leg turned inward,”
which “seems to be exaggerated,” that her “feet are normal,” and
that he “clinically do[es] not have any reason for why [Plaintiff]
has the difficulties in walking that she does.”

(Tr. 412, 421.)

Dr. Nitka further reported that Plaintiff’s MRI “is really on the
whole unremarkable,” her “[m]otor is normal [in] both legs,” and
6

At the hearing, Plaintiff suggested that her primary care
physician, Jeffrey C. Hooper, MD, told her that she “probably
needed to file for [her] disability and to get a cane because it
was getting too much.” (Tr. 39; see also Tr. 425 (Dr. Hooper’s
medical note acknowledging Plaintiff’s use of cane).) However, the
medical records from Dr. Hooper’s office do not show any
prescription for or statement explaining the medical necessity of
an assistive walking device.
(Tr. 340-61, 423-47, 452-56.)
Further, Plaintiff’s treating orthopedists did not prescribe
Plaintiff an assistive walking device, except for instructing
Plaintiff to use crutches while recovering from a fall.
(Tr.
403-22, 448-51.)
13

“[t]here is not a great deal of abnormality in [Plaintiff’s] MRI
scan that would [reveal] that she has nerve source of pain even
though she claims of weakness and paresthesias, [and she] tends to
hold the right leg internally rotated.”

(Tr. 407; see also Tr. 21

(discussing Dr. Nitka’s evaluations).)

In terms of her gait, Dr.

Nitka explained that, “[a]t least on first impression it appears as
though [Plaintiff] has some type of rotational deformity of her
femur or tibia[,] but on clinical examination it is apparent that
her range of motion is actually fairly close to normal in her hips
and in her legs[,] and that when [Plaintiff] is supine . . . her
foot is in a normal[,] . . . external position of about 20 degrees
on both sides so that the tendency to intoeing in this case seems
to be a problem of either volitional internal rotation or rotation
that she performs to decrease pain about her hips.”

(Tr. 421.)

In like manner, another orthopedic specialist, Fred K. Newton,
M.D., reviewed Plaintiff’s EMG and NCV findings and concluded that
Plaintiff has an “[e]ssentially normal electrodiagnositc study of
both lower limbs” with “no significant electrodiagnostic evidence
of nerve entrapment [or] lumbar radiculopathy.” (Tr. 417 (emphasis
omitted).)

Similarly, James R. Hirsch, M.D., a brain and spine

specialist, conducted a neurosurgical consultation with Plaintiff
and concluded that Plaintiff’s “[g]ait is done pretty normally,
though [Plaintiff] favors mainly the right leg slightly” and that
“[t]here is really no surgical intervention indicated.”
14

(Tr. 365-

66.)

In sum, the record medical evidence does not reveal that

Plaintiff

has

any

significant

structural

or

neurological

deformities in her lower extremities, such that the ALJ did not err
in failing to adopt Dr. Gremillion’s conclusions that Plaintiff
requires a cane to walk and that she cannot use her feet to operate
foot controls.7
7

Plaintiff’s Reply (Docket Entry 13) cites two cases for the
proposition that “the [ALJ] committed a reversible error by failing
to determine whether [Plaintiff]’s use of a cane is medically
necessary and whether it limits her [RFC]” (id. at 1). The first
case, Holt v. Colvin, No. 12CV1001, 2015 WL 777657 (M.D.N.C. Feb.
24, 2015) (unpublished), involved a plaintiff who “was prescribed
both a walker and a four-pronged cane [after the ALJ’s decision],”
id. at *4.
There, the court determined that such “later
prescription” for a cane constitutes “new evidence that deserves
consideration.” Id. Thus, the court remanded the case to the ALJ
to consider the later prescribed cane.
Id.
The second case
Plaintiff cites, McLaughlin v. Colvin, No. 1:12-CV-621, Docket
Entry 17 (M.D.N.C. July 25, 2014) (unpublished), involved
circumstances where “[the plaintiff]’s physician assistant
prescribed a ‘walking cane’” and the plaintiff testified “that he
always uses the cane,” (id. at 3). The court remanded the case to
the ALJ after noting that the ALJ had failed to determine whether
the “cane was medically required and failed to include [the
plaintiff]’s use of a cane in both the RFC determination and in the
hypothetical questions to the VE.” Id.
In contrast to those two cases, here, Plaintiff testified that
her doctors have not prescribed her a cane (Tr. 39) and that she
does not use a cane “in the house” (Tr. 47).
Under these
circumstances, the ALJ did not err in failing to specifically
discuss the medical necessity of a cane or to include limitations
in the RFC arising out of Plaintiff’s use of a cane.
See SSR
96–9p, 1996 WL 374185, at *7 (“To find that a hand-held assistive
device is medically required, there must be medical documentation
establishing the need for a hand-held assistive device to aid in
walking or standing, and describing the circumstances for which it
is needed (i.e., whether all the time, periodically, or only in
certain situations; distance and terrain; and any other relevant
information).”); see also Mitchell v. Colvin, No. 13-CV-4594, 2014
15

The

record

similarly

fails

to

support

Dr.

Gremillion’s

conclusion that Plaintiff can sit for no more than four hours in an
eight-hour workday.

As an initial matter, although Plaintiff

testified that she can only sit “about 15, 20 minutes” before she
needs to get up (Tr. 43), Dr. Gremillion concluded that Plaintiff
can sit for three hours “[a]t [o]ne [t]ime without [i]nterruption”
(Tr. 464).

Moreover, Dr. Gremillion provided no explanation for

why Plaintiff can sit for three consecutive hours, but not more
than four total hours, in an eight-hour workday (see Tr. 459-70),
and Plaintiff cites to no record medical evidence to support these
conclusions or her own testimony about her sitting difficulties
(see Docket Entries 9, 10, 13).

As discussed above, the record

medical evidence reveals that Plaintiff has no major structural or
neurological deformities.

In reference to her lower back and

pelvic region where she reports feeling the most pain (Tr. 39,

WL 7051754, at *11-12 (N.D. Cal. Dec. 12, 2014) (unpublished)
(concluding that, even though a non-treating medical examiner
“found that the [plaintiff’s] cane was ‘medically necessary,’” the
ALJ did not err in determining that “[the plaintiff] had a
‘nonantalgic and unassisted gait’” where “the evidence of [the
plaintiff]’s need for a cane was unclear, and substantial [record]
evidence existed [to support the ALJ’s determination]”); Demery v.
Colvin, No. 2:13-CV-28-D, 2014 WL 2159347, at *3 (E.D.N.C. Apr. 28,
2014) (unpublished) (concluding that “the ALJ was not required to
consider the impact of [the p]laintiff’s use of a hand-held
assistive device,” where there was no “evidence documenting the
medical necessity of a cane”); Stewart v. Colvin, No. 1:12–CV–39,
2013 WL 1979738, at *4–6 (N.D. Tex. May 14, 2013) (unpublished)
(upholding as supported by substantial evidence ALJ’s decision not
to include limitations in RFC based on the plaintiff’s use of cane,
where no evidence existed of medical necessity).
16

406), Plaintiff’s CT scan revealed a “[n]ormal bony pelvis” with
“[n]o

fracture

or

dislocation”

as

“the

sacrum/coccyx

appears

intact,” her “lower lumbar spine is within normal limits,” and her
“[b]ilateral hip joint spaces are preserved.”

(Tr. 408-09.)

Upon

review, Dr. Nitka reported “that [Plaintiff’s] MRI scan of [her]
lumbar spine shows no significant nerve compression and [that the]
EMG nerve conduction studies seem to back this up.”

(Tr. 450.)

For pain treatment, Dr. Nitka suggested that “steroid injections in
[Plaintiff’s] joints do seem to be of benefit.”

(Id.)

Similarly,

Dr. Newton reported that, after administering a facet injection to
Plaintiff’s right side, Plaintiff reported that it “really helped
her more than any other shot that she received anywhere else.”
(Tr. 406.)
“received

On this basis, the ALJ determined that Plaintiff
appropriate

treatment

to

address

her

ongoing

pain

symptoms,” and that her “symptoms improved significantly with facet
injections.”

(Tr. 24.)

Moreover, the State agency consultants found Plaintiff capable
of performing “medium work,” rather than only “sedentary work.”
(Tr. 168-69, 186-87.)

In particular, the state agency consultants

determined, inter alia, that Plaintiff can lift and/or carry 50
pounds occasionally and 25 pounds frequently, stand and/or walk 6
hours in an 8-hour workday, and occasionally climb ladders.

(Tr.

168, 186.) The ALJ considered these exertional limitations against
the backdrop of the other record medical evidence, including Dr.
17

Gremillion’s
concluding

consultative

that

Plaintiff

examination,
“can

lift

and

varied

and/or

carry

downward,
10

pounds

occasionally and less than 10 pounds frequently,” “stand and/or
walk 2 hours in an 8-hour workday,” and never “climb ladders.”
(Tr. 23.)

Notably, however, based on that same medical evidence,

the ALJ adopted the state agency consultants’ conclusions that
Plaintiff can “sit up to 6 hours in an 8-hour workday and can stand
and/or walk 2 hours in an 8-hour workday,” “occasionally balance
and

stoop,”

stairs.”

and

“frequently

crouch,

kneel,

crawl,

and

climb

(Compare Tr. 24, with Tr. 186-87); see also 20 C.F.R. §§

404.1527(e), 416.927(e) (“[ALJ’s] must consider findings and other
opinions of State agency medical . . . consultants . . . as opinion
evidence” because they are “highly qualified” and “experts in
Social

Security

disability”);

20

C.F.R.

§§

404.1527(c)(4),

416.927(c)(4) (noting that medical opinions that are consistent
with the record as a whole deserve more weight).

The state agency

consultants’ opinions, thus, support the ALJ’s conclusion that
Plaintiff’s postural and exertional limitations do not rise to the
level she alleges, particularly as to sitting (see, e.g., Tr. 43).
Equally, as the ALJ observed (Tr. 24), Plaintiff’s testimony
describing

her

daily

activities

does

Gremillion’s prescribed limitations.

not

support

all

of

Dr.

In that regard, the ALJ

highlighted that “[Plaintiff] testified [at the hearing that] she
lives in [her] home with her three grandkids.
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The youngest

grandchild is two years old and is always home with [Plaintiff].
[Plaintiff] assists the two year old boy alone throughout the
day. . . . [Plaintiff]’s activities of daily living include[]
cleaning the house, sweeping and mopping.”

(Tr. 23.)8

When

factoring Plaintiff’s testimony into the RFC computation, the ALJ
stated:
There is no evidence [Plaintiff]’s lumbar disease
significantly impairs her functional abilities as
[Plaintiff] reported she could take care of her personal
needs, prepare simple meals, sweep, wash clothes, shop in
stores for food, sit and socialize with family and
friends. Further, Plaintiff testified she takes care of
her three grandchildren and watches the two year old
every day all day.
(Tr. 24.)
As the ALJ properly explained, Plaintiff’s testimony of an
active daily schedule that involves taking care of her three
grandchildren by herself, including “watch[ing] the two year old
every day all day” (id.), conflicts with those portions of Dr.
Gremillion’s consultative examination assessing Plaintiff with
“additional limitations” (id.).

See Johnson v. Barnhart, 434 F.3d

650, 653 (4th Cir. 2005) (explaining that, “[w]here conflicting
evidence allows reasonable minds to differ as to whether a claimant
is disabled, the responsibility for that decision falls on the

8

At the May 10, 2013 hearing, Plaintiff testified that she
took her three grandchildren into her home beginning June 27, 2012,
and that at the time of the hearing the youngest grandchild was
three years old. (Tr. 37-38.)
19

[ALJ]”

(internal

quotation

marks

omitted)).

Indeed,

the

regulations mandate that the ALJ accord significantly less weight
to opinions derived from Dr. Gremillion’s consultative examination
that conflict with other substantial evidence.

See Craig, 76 F.3d

at 590.
Under

these

circumstances,

Plaintiff’s

testimony

and

the

objective medical evidence provide “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion”
that the ALJ properly discounted those portions of Dr. Gremillion’s
findings not adopted in the RFC.

Richardson, 402 U.S. at 390

(internal quotation marks omitted).

In other words, substantial

record evidence exists to uphold the ALJ’s decision rejecting Dr.
Gremillion’s position that Plaintiff cannot sit for more than four
hours in an eight-hour workday, walk more than two feet without a
cane, or use her feet to operate foot controls.

Moreover, given

the state of the record, any error the ALJ may have committed by
not specifically discussing each of these additional limitations
was harmless.

See generally Fisher v. Bowen, 869 F.2d 1055, 1057

(7th Cir. 1989) (“No principle of administrative law or common
sense requires us to remand a [Social Security] case in quest of a
perfect opinion unless there is reason to believe that the remand
might lead to a different result.”).
CONCLUSION
Plaintiff has not established an error warranting remand.
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IT IS THEREFORE RECOMMENDED that the Plaintiff’s Motion for
Judgment Reversing the Decision of the Commissioner of Social
Security (Docket Entry 9) should be denied, that Defendant’s Motion
for Judgment on the Pleadings (Docket Entry 11) should be granted,
and that this action should be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 20, 2016

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