SHOOK v. COLVIN

Filing 18

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/05/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that judgment be entered for Defendant.(Taylor, Abby)

DIN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN EDWARD SHOOK,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.

1:16CV1237

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, John Edward Shook, 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 2.)

Defendant has filed the certified administrative record

(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 16; see also Docket Entry 13
(Plaintiff’s

Memorandum),

Docket

Entry

17

(Defendant’s

Memorandum)).

For the reasons that follow, the Court should enter

judgment for Defendant.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI, alleging an onset date of
March 15, 2009.

(Tr. 213-24.)

Upon denial of those applications

initially (Tr. 71-102, 139-43) and on reconsideration (Tr. 103-38,
147-53),

Plaintiff

requested

a

hearing

de

Administrative Law Judge (“ALJ”) (Tr. 156-58).

novo

before

an

Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing (Tr.
43-70), at which Plaintiff amended his onset date to August 1, 2013
(Tr. 46-48, 234).

The ALJ subsequently ruled that Plaintiff did

not qualify as disabled under the Act.

(Tr. 22-37.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
15-21, 321-23), making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] me[t] the insured status requirements of
the [] Act through December 31, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 1, 2013, the amended alleged onset
date.
3.
[Plaintiff] has the following severe impairments:
hypertension;
spinal
stenosis,
hypertrophy,
and
osteoarthritis; chronic obstructive pulmonary disease
(COPD); history of alcoholism; history of polysubstance
abuse; and borderline intellectual functioning.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals

2

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 light work . . . except [Plaintiff]
may occasionally climb ladders. [Plaintiff] must avoid
concentrated
exposure
to
fumes.
Additionally,
[Plaintiff] may perform simple, routine, and repetitive
tasks in a stable environment at a nonproduction pace.
. . .
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 [he] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from August 1, 2013, through the
date of this decision.
(Tr.

27-37

(bold

font

and

internal

parenthetical

citations

omitted).)
II.

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 [the Court’s] review of [such a] decision . . . is extremely
limited.”

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

3

Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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).

Instead,

the Court “must uphold the factual findings of the ALJ 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 citations 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

4

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 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)).2

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
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]

2

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

condition.”

Id.

“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 residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3

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).
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

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 citations omitted).

6

is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.4

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 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 its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.5

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 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.

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,
(continued...)

7

B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ’s failure to consider, or even discuss, the
impact of [Plaintiff’s] prescribed use of an oxygen tank on [the]
RFC is harmful error that prevents the ALJ’s decision from being
supported by substantial evidence” (Docket Entry 13 at 6 (bold font
omitted)); and
2) “[t]he ALJ’s failure to resolve the apparent conflict
between . . . his RFC findings and his other findings is harmful
error that prevents the ALJ’s decision from being supported by
substantial evidence” (id. at 13 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 17 at 3-14.)
1. Impact of Plaintiff’s Oxygen Use on RFC

In Plaintiff’s first issue on review, he faults the ALJ for
“fail[ing]

to

consider,

or

even

discuss,

the

impact

of

[Plaintiff’s] prescribed use of an oxygen tank on [the] RFC”
(Docket Entry 13 at 6 (bold font omitted)), and for neglecting to
incorporate his use of oxygen into the hypothetical question to the
VE (see id. at 12-13 (citing Walker v. Bowen, 889 F.2d 47, 50 (4th
Cir. 1989))).

In particular, Plaintiff alleges that he “presented

5

(...continued)
review does not proceed to the next step.”).

8

evidence that he required oxygen at night in mid-2014 due to the
progression of his COPD” (id. at 6 (emphasis added) (citing Tr.
513, 526)), but when he “failed to improve he was instructed to use
his oxygen tank during the day and, as he testified, he required
his oxygen with any increased activity to prevent him from feeling
faint”

(id.

(emphasis

added)

(citing

Tr.

54-55,

549,

558)).

According to Plaintiff, the ALJ acknowledged in his decision that
Plaintiff “‘wore 2.5 liters (L) of oxygen at home during the
night’”

(id.

(emphasis

added)

(quoting

Tr.

33)),

but

“never

discusse[d] [Plaintiff’s] need for oxygen during the day or the
impact that this limitation might have on [Plaintiff’s] RFC” (id.
at 6-7 (emphasis added)).

Plaintiff’s arguments in this regard do

not provide a basis for relief.
RFC measures the most a claimant can do despite any physical
and

mental

limitations.

Hines,

§§ 404.1545(a), 416.945(a).

453

F.3d

at

562;

20

C.F.R.

An ALJ must determine a claimant’s

exertional and non-exertional capacity only after considering all
of a claimant’s impairments, as well as any related symptoms,
including

pain.

See

Hines,

453

F.3d

at

562–63;

20

C.F.R.

§§ 404.1545(b), 416.945(b). The ALJ then must match the claimant’s
exertional

abilities

to

an

appropriate

level

sedentary, light, medium, heavy, or very heavy).
§§ 404.1567, 416.967.

of

work

(i.e.,

See 20 C.F.R.

Any non-exertional limitations may further

9

restrict a claimant’s ability to perform jobs within an exertional
level.

See 20 C.F.R. §§ 404.1569a(c), 416.969a(c).

An ALJ need not discuss every piece of evidence in making an
RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014) (citing Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005)). Moreover, an ALJ need only “adopt credibly
established limitations when formulating the RFC.”

Fuerst v.

Colvin, No. 1:15CV1054, 2016 WL 5957602, at *9 n.13 (M.D.N.C. Oct.
13, 2016) (unpublished) (Webster, M.J.), recommendation adopted,
slip op. (M.D.N.C. Nov. 15, 2016) (Eagles, J.); Bryant v. Colvin,
No. 3:13-CV-349-JAG, 2014 WL 896983, at *12 (E.D. Va. Mar. 6, 2014)
(unpublished) (District Judge adopting recommendation of Magistrate
Judge) (noting ALJ must “only . . . include those limitations that
the ALJ considers credibly established”).

However, the ALJ “must

build an accurate and logical bridge from the evidence to [the]
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Here, the ALJ did not err by omitting Plaintiff’s alleged need
to use oxygen during the day from the RFC or the hypothetical
question to the VE.

Plaintiff alleges that, in mid-2014, when his

COPD “failed to improve,” an unidentified individual “instructed
[him] to use his oxygen tank during the day.”
6 (citing Tr. 549, 558).)

(Docket Entry 13 at

However, a review of the transcript

pages Plaintiff cites does not support Plaintiff’s allegation
regarding daytime oxygen use.

From September 27, 2014, to October

10

10, 2014, Plaintiff received inpatient treatment for pneumonia in
his left lung base.

(See Tr. 533-50.)

Although, upon discharge,

Dr. Smitha R. Pasula noted that Plaintiff “will be needing home
oxygen,” Dr. Pasula did not indicate that Plaintiff needed to use
such oxygen during the daytime.
(reflecting same statement).)6

(Tr. 549; see also Tr. 550

Dr. Pasula’s statement does not

amount to a recommendation (much less a prescription) for daytime
oxygen use.

See Harris v. Colvin, No. 2:14-CV-02092 AC, 2016 WL

4721461, at *6 (E.D. Cal. Sept. 9, 2016) (unpublished) (finding no
error in ALJ’s refusal to construe physician’s “treatment notes as
a prescription for ‘24/7’ oxygen use or an opinion that such oxygen
use was medically necessary”).
Moreover, on October 21, 2014, Plaintiff returned to the
hospital complaining of shortness of breath, indicated that he used
2.5 liters of oxygen at home every night and that, during that same
week, “he was written a prescription for oxygen during the day but
ha[d] not received a canister yet.” (Tr. 527 (emphasis added); see
also Tr. 530 (reflecting Plaintiff’s report to treatment providers
that he had “recently been recommended to transition to daily
oxygen in addition to his night time oxygen therapy”).)

6

Notably,

The other transcript page Plaintiff cited to support his claim that an
individual “instructed” him to use oxygen during the day (Docket Entry 13 at 6)
simply reflects a visit to his primary care physician at Statesville Family
Medicine on November 4, 2014, at which family nurse practitioner Ashley Rogers
administered a nebulizer treatment and prescribed Symbicort, Ventolin, Spiriva,
and albuterol to treat Plaintiff’s shortness of breath (see Tr. 558). Nurse
Rogers did not mention oxygen usage at all in the treatment note. (See id.)

11

however, the record contains neither a prescription for daytime
oxygen nor a treatment note reflecting a medical provider’s opinion
deeming such oxygen medically necessary.
In addition, Plaintiff used oxygen during the hearing (see Tr.
54-55) and testified that, after his discharge from hospital in
October 2014, a male doctor (whom Plaintiff saw one time and whose
name Plaintiff could not remember) prescribed oxygen which he used
when “go[ing] out . . . to the store or to the doctor’s office”
(Tr.

55).

However,

the

ALJ

found

Plaintiff’s

“statements

concerning the intensity, persistence and limiting effects of [his]
symptoms

not

entirely

credible”

(Tr.

30),

and

noted

that

Plaintiff’s continued smoking might constitute “an indication that
his symptoms are not as severe as he purports” (Tr. 31).

Plaintiff

did not challenge the ALJ’s evaluation of Plaintiff’s subjective
complaints.

(See Docket Entry 13.)

Under these circumstances,

neither Plaintiff’s above-quoted reports to treatment providers nor
his testimony compelled the ALJ to include restrictions arising out
of the daytime use of oxygen in the RFC or hypothetical question.
See Harris, 2016 WL 4721461, at *5 (noting that the plaintiff’s
report to a physician “that she had been ‘set up’ on oxygen three
weeks previously” constituted neither a medical opinion on the
necessity of oxygen nor a prescription for oxygen); see also id. at
*6 (finding that ALJ did not err in discounting the “plaintiff’s
testimony regarding her need for oxygen” where “the medical record

12

contained no prescription for oxygen” and ALJ “identified numerous
inconsistencies in [the] plaintiff’s reports to medical providers
and her testimony regarding her respiratory problems and her
smoking”).
Furthermore, the ALJ accounted for Plaintiff’s COPD in the RFC
by precluding concentrated exposure to fumes (see Tr. 30), and
Plaintiff failed to point to any additional limitations the ALJ
should have included in the RFC on account of Plaintiff’s alleged
use of oxygen during the day (see Docket Entry 13 at 6-13).
circumstances support denial of relief.

Those

See Barnes v. Astrue, No.

1:11CV285-MR-DSC, 2012 WL 5457348, at *3 (W.D.N.C. Oct. 16, 2012)
(unpublished) (noting that “[the p]laintiff d[id] not specify any
work-related limitations resulting from her oxygen use that the ALJ
failed to consider” and that “[t]he ALJ’s RFC adequately accounted
for

[the

limit[ing]

p]laintiff’s
[the

concentrated
citations

respiratory

p]laintiff

exposure

omitted)),

to

to

difficulties

work

‘which

pulmonary

recommendation

.

does

.
not

irritants[,]’”
adopted,

2012

.

[by]

involve

(internal
WL

5457482

(W.D.N.C. Nov. 8, 2012) (unpublished).7

7

Plaintiff mentioned, but failed to develop his argument that the ALJ neglected
to perform a “function-by-function analysis, . . . to provide a narrative
discussion describing how the evidence supports each of his conclusions, . . .
[and] to explain how he considered contradictory evidence.” (Id. at 12 (citing
Mascio, 780 F.3d at 636, and referencing SSR 96-8p)).) That failure precludes
relief. See, e.g., 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
(continued...)

13

In short, Plaintiff’s first issue on review does not warrant
reversal or remand.
2. State Agency Consultants’ Opinions
Lastly, Plaintiff maintains that “[t]he ALJ’s failure to
resolve the apparent conflict between . . . his RFC findings and
his other

findings

is

harmful

error

that

prevents

the

decision from being supported by substantial evidence.”
Entry 13 at 13 (bold font omitted).)

ALJ’s

(Docket

In particular, Plaintiff

asserts that the ALJ “assigned ‘some weight[’] to the opinions of
the

[s]tate

[a]gency

medical

consultants”

because

“‘th[o]se

opinions were given prior to [] 2014, when [Plaintiff] underwent an
MRI of his spine and experienced multiple exacerbations of COPD’”
(Id. at 13-14 (quoting Tr. 34)).

According to Plaintiff, the ALJ

“acknowledge[d] that objective evidence support[ed] a finding that
[Plaintiff’s] lumbar impairment and COPD worsened or progressed in
severity after . . . the date that the [s]tate [a]gency medical
consultants issued their opinions[,] . . . but “concluded that
[Plaintiff’s] RFC was less restrictive th[an] the [consultants’]
RFC findings.”

(Id. at 14 (referencing Tr. 30, 80-81, 114-15).)

Plaintiff argues that “remand is appropriate where there are
7

(...continued)
marks omitted)); Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220,
at *1 n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should
not expect a court to do the work that it elected not to do.”).
Moreover,
Plaintiff’s criticism that the ALJ failed to “address[] or analyze[] any evidence
regarding [Plaintiff’s] COPD beyond June 2014” (Docket Entry 13 at 7 (citing Tr.
33)) misses the mark. The ALJ observed that Plaintiff “was hospitalized from
September 27, 2014 through October 10, 2014 due to exacerbated COPD, which was
slow to respond to treatment, with pneumonia.” (Tr. 33.)

14

material inconsistencies between an ALJ’s RFC determination and
other findings by the ALJ.”

(Id. (citing Stathis v. Sullivan, 964

F.2d 850, 851-52 (8th Cir. 1992)).)

These arguments ultimately do

not establish reversible error.
Here,

the

ALJ’s

analysis

of

the

state

agency

medical

consultants’ opinions does not support the more restrictive RFC the
ALJ adopted. The ALJ analyzed the opinions as follows:
[The ALJ] gives some weight to the opinions of the
[s]tate
agency
medical
consultants
who
limited
[Plaintiff] to light work with frequent stooping,
kneeling, crouching, and crawling and avoiding even
moderate exposure to fumes, odors, dusts, gases, and poor
ventilation. At the initial level, the [s]tate agency
medical consultants opined that [Plaintiff] could do
light work with occasional stooping and crawling.
Additionally, they believed he should avoid concentrated
exposure to hazards and even moderate exposure to fumes,
odors, dusts, gases, and poor ventilation. . . . [T]hese
opinions were given prior to [] 2014, when [Plaintiff]
underwent an MRI of his spine and experienced multiple
exacerbations of COPD.
(Tr. 34 (emphasis added) (internal citations omitted).)

The ALJ’s

above-quoted explanation implies that he discounted the state
agency medical

consultants’

opinions,

because

the

consultants

offered their opinions prior to a worsening in Plaintiff’s spinal
and lung impairments, i.e., the ALJ found the consultants’ opinions
not restrictive enough.

(Id.)8

which

restrictive

contained

less

However, the ALJ formulated an RFC
postural

and

environmental

limitations than the state agency medical consultants’ limitations:
8

Although the MRI actually occurred on August 1, 2013 (see Tr. 490-91), it still
post-dated the state agency medical consultants’ opinions given on April 5, 2013,
and May 24, 2013 (see Tr. 71-100, 103-36).

15

. . . [Plaintiff] has the residual functional capacity to
perform light work . . . except [Plaintiff] may
occasionally climb ladders. [Plaintiff] must avoid
concentrated
exposure
to
fumes.
Additionally,
[Plaintiff] may perform simple, routine, and repetitive
tasks in a stable environment at a nonproduction pace.
(Tr. 30 (emphasis added).) Thus, the ALJ’s rationale for affording
the state agency medical consultants’ opinions “some weight” does
not support the RFC he ultimately adopted.
However,

the

ALJ’s

error

circumstances presented here.

remains

harmless

under

the

See generally Fisher v. Bowen, 869

F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of
administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result”). As the Commissioner
points out (see Docket Entry 17 at 13-14), even if the ALJ had
adopted the state agency medical consultants’ most restrictive
postural and environmental limitations, i.e., occasional stooping
and crawling (see Tr. 81, 96), frequent kneeling and crouching (see
Tr. 115, 132), avoidance of even moderate exposure to fumes, odors,
dusts, gases, and poor ventilation (see id.), and preclusion of
concentrated exposure to hazards such as unprotected heights and
dangerous, moving machinery (see Tr. 81, 96), Plaintiff would
remain able to perform the three jobs cited by the VE and adopted
by the ALJ at step five of the SEP, (see Tr. 36-37, 63-64).
Dictionary

of

Occupational

Titles

(“DOT”),

No.

See

920.685-078

(Packager, Machine), 1991 WL 687942 (G.P.O. 4th ed. rev. 1991)
16

(reflecting occasional stooping and “Not Present” for “Kneeling,”
“Crouching,” “Crawling,” “Moving Mech[anical] Parts,” “High Exposed
Places,” and

“Atmospheric

Cond[itions]”);

DOT

No.

222.387-030

(Linen-Room Attendant), 1991 WL 672098 (same); DOT No. 369.687-018
(Folder), 1991 WL 673072 (indicating “Not Present” for all of the
above conditions); see also Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles, App’x D,
¶ 7 (U.S. Dep’t of Labor 1993) (“SCO”) (defining “[a]tmospheric
[c]onditions” to include “fumes, noxious odors, dusts, mists,
gases, and poor ventilation, that affect the respiratory system”).
As such, Plaintiff has not shown that the ALJ’s error prejudiced
him.

See Knott v. Colvin, No. 1:13CV332, 2014 WL 2453302, at *6

(M.D.N.C. June 2, 2014) (unpublished) (Schroeder, J.) (concluding
that, even if ALJ erred by omitting certain limitations from the
RFC and hypothetical question, such error remained harmless where
inclusion of those limitations would not impact jobs cited by VE).
In sum, Plaintiff’s second assignment of error fails as a
matter of law.
III.

CONCLUSION

Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 12) be denied, that Defendant’s

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Motion for Judgment on the Pleadings (Docket Entry 16) be granted,
and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 5, 2017

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