SOLOMON v. SAUL
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 4/28/2021; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing the Commissioner of Social Security (Docket Entry 14 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that judgment be entered dismissing this action. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELISSA FAITH SOLOMON,
ANDREW M. SAUL,
Commissioner of Social
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Melissa Faith Solomon, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Commissioner of Social Security,
(Docket Entry 1.)
Defendant has filed the certified
administrative record (Docket Entry 11 (cited herein as “Tr. __”)),
and both parties have moved for judgment (Docket Entries 14, 16;
see also Docket Entry 15 (Plaintiff’s Brief); Docket Entry 17
For the reasons that follow, the Court
should enter judgment for Defendant.
Plaintiff applied for DIB, alleging a disability onset date of
January 19, 2016.
Upon denial of that application
initially (Tr. 150-65, 180-83) and on reconsideration (Tr. 166-79,
Administrative Law Judge (“ALJ”) (Tr. 195-96).
attorney, and a vocational expert (“VE”) attended the hearing.
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
Council thereafter denied Plaintiff’s request for review (Tr. 1-7,
256-57, 386-87), thereby making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2021.
[Plaintiff] has not engaged in substantial gainful
activity since January 19, 2016, the alleged onset date.
. . .
[Plaintiff] has the following severe impairments:
obesity; right knee medial meniscus tear; synovitis;
illiotibial band syndrome; adjustment disorder with mixed
anxiety and depressed mood; depressive disorder; chronic
obstructive pulmonary disease (COPD); arthritis of the
feet; sciatica; degenerative disc disease of the lumbar
spine with stenosis and spondylosis; right elbow
bursitis; and left knee degeneration.
. . .
[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.
. . .
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except [she] can
occasionally push or pull or operate foot controls with
both lower extremities. [She] can frequently reach and
handle with the right upper extremity.
occasionally kneel, crouch, stoop, balance, and crawl,
and can occasionally climb stairs and ramps. [She] can
never climb ladders, ropes, or scaffolds, and can never
be exposed to unprotected heights and moving mechanical
[She] can have occasional exposure to dust,
mists, gases, noxious odors, fumes, pulmonary irritants,
and poor ventilation.
[She] can tolerate occasional
exposure to vibration.
[She] is able to understand,
carry-out, and remember simple instructions, and make
simple work related decisions. [She] will be off task 10
percent of the workday.
. . .
[Plaintiff] is unable to perform any past relevant
. . .
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 [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from January 19, 2016, through
the date of this decision.
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).
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
not established entitlement to relief under the extremely limited
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).
[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).
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
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).
conflicting evidence allows reasonable minds to differ as to
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
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.
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
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
addition to [the claimant’s] medical condition.”
determine whether a claimant is disabled.” Id. (internal citations
This sequential evaluation process (“SEP”) has up to five
“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
relevant here, substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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 179.3
then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.
work”; if so, the claimant
Id. at 179-80.
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.
If, at this step, the government cannot
carry its “evidentiary burden of proving that [the claimant]
“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.
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.
Hines, 453 F.3d at 567.4
Assignment of Error
In Plaintiff’s sole issue on review, she faults the ALJ for
“committ[ing] a reversible error by failing to conduct a proper
capacities and by failing to explain how the evidence supports the
hearing decision’s [RFC]” (Docket Entry 15 at 2-3 (bold font and
single-spacing omitted)) in violation of Social Security Ruling 968p, Policy Interpretation Ruling Titles II and XVI: Assessing [RFC]
in Initial Claims, 1996 WL 374184 (July 2, 1994) (“SSR 96-8p”), and
Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (see Docket
Entry 15 at 3-5).
In particular, Plaintiff argues that “[t]he
ALJ’s RFC assessment is inadequate to establish that [Plaintiff]
retains the ability to perform the light occupations cited at step
five of [the SEP] because the ALJ failed to address [Plaintiff]’s
exertional capacity to lift, carry, stand, walk, or sit.” (Id. at
7 (citing Tr.108-12).) In that regard, Plaintiff notes that “[t]he
RFC assessment finding itself does not specify how much weight
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.”).
[Plaintiff] can lift or carry, nor how many hours of an 8-hour
workday she can stand, walk, or sit (id. (citing Tr.108)), as well
as that “the section of the hearing decision devoted to the RFC
assessment only summarizes the medical evidence . . . [and] fails
to discuss or specify how much of these five strength demands
[Plaintiff] is capable of performing” (id. (citing Tr. 108-12)).
Plaintiff further asserts that “[t]he ALJ’s reference in the
RFC assessment to the regulatory definition of light work does not
clarify this issue” (id. at 7 (referencing Tr. 108 (in turn citing
20 C.F.R. § 404.1567(b)))), because that definition provides “that
work can be classified as light because it requires lifting 20
pounds at a time with frequent lifting of 10 pounds[,] . . .
because it requires significant standing or walking[,] . . . [or
because] it involves sitting most of the time with some pushing and
pulling of arm or leg controls” (id. at 8). Plaintiff additionally
restricted ability to stand and walk due to pain.”
(citing Tr. 131, 132, 136).)
(Id. at 6
Plaintiff deems “[t]h[at] error by
the ALJ  highly significant,” because Plaintiff “was age 51 at
her alleged onset date of disability,” and “the Medical-Vocational
Rules direct a finding of disabled if [she] is restricted to
sedentary, rather than light work.”
fail to warrant reversal or remand.
(Id. at 9.)
RFC measures the most a claimant can do despite any physical
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.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).
The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
See 20 C.F.R. § 404.1567.
Any non-exertional limitations
may further restrict a claimant’s ability to perform jobs within an
See 20 C.F.R. § 404.1569a(c).
An ALJ need not discuss every piece of evidence in making an
See Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014).
However, “the ALJ must both identify
Woods, 888 F.3d at 694 (internal emphasis, quotation
function-by-function analysis in that determination, the relevant
identify the individual’s functional limitations or restrictions
function-by-function basis. . . .
Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.”
SSR 96-8p, 1996 WL 374184,
The Fourth Circuit has addressed this administrative ruling
function-by-function analysis necessitates remand.
Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015).
See Mascio v.
stated “that a per se rule is inappropriate given that remand would
prove futile in cases where the ALJ does not discuss functions that
are irrelevant or uncontested,” Mascio, 780 F.3d at 636, but that
contradictory evidence in the record, or where other inadequacies
in the ALJ’s analysis frustrate meaningful review,’” id. (internal
brackets and ellipsis omitted) (quoting Cichocki v. Astrue, 729
F.3d 172, 177 (2d Cir. 2013)).
Here, the ALJ’s decision supplies
the necessary “accurate and logical bridge,” Woods, 888 F.3d at 694
(internal quotation marks omitted), between the evidence and his
findings that Plaintiff’s back, knee, and foot impairments (A)
qualified as severe (see Tr. 105) but (B) did not cause limitations
greater than the lifting, carrying, standing, walking, and sitting
occasional pushing, pulling, and foot control operation with the
lower extremities as well as occasional postural movements (see Tr.
First, the ALJ’s evaluation of the opinion evidence supports
the exertional restrictions in the RFC.
The ALJ accorded “some
weight” (Tr. 110) to the opinion of the state agency medical
consultant that Plaintiff could occasionally lift 20 pounds and
frequently lift 10 pounds, as well as stand, walk, and sit each for
up to six hours in an eight-hour workday (see Tr. 174-75), and
specifically “credit[ed the consultant’s] review of [Plaintiff]’s
medical records and citation to specific references that support[ed
the consultant’s] opinion (Tr. 110 (citing Tr. 176)).
Plaintiff’s “frequent complaints regarding her knee and back pain,
in addition to noted tenderness upon physical examination and
observation of degenerative changes through radiographic imaging”
(Tr. 110-11 (citing Tr. 585, 638, 664, 677, 694, 711, 1093-94)),
the ALJ added limitations to occasional pushing, pulling, and foot
control operation with the lower extremities, as well as increased
the postural restrictions (see Tr. 108).
Plaintiff’s contention that the ALJ’s decision violated SSR
96-8p and Woods because “[t]he RFC assessment finding itself does
not specify how much weight [Plaintiff] can lift or carry, nor how
many hours of an 8-hour workday she can stand, walk, or sit”
(Docket Entry 15 at 7 (citing Tr. 108)) falls short.
The ALJ found
that Plaintiff retained the RFC to perform light work as defined by
regulation, as Plaintiff acknowledged (see Docket Entry 15 at 7),
defines light work to involve lifting/carrying/pushing/pulling 20
Moreover, the ALJ credited the reconsideration-
level state agency medical consultant’s opinion that Plaintiff can
lift up to 20 pounds occasionally, ten pounds frequently, and
stand, walk, and sit each for up to six hours in an eight-hour
workday (see Tr. 110-11, 174-75).
The ALJ’s citation of Section
exertional limitations permit the Court to ascertain the exertional
limitations the ALJ intended to adopt in the RFC.
See Hacker v.
Saul, No. 5:20CV132, 2021 WL 852197, at *3, *5 (N.D.W. Va. Feb. 18,
2021) (unpublished) (finding no error in ALJ’s expression of RFC as
“sedentary work as defined in 20 C.F.R. § 416.967(a),” where court
could look to SSA’s definition of sedentary work to determine
exertional limits of such work, and where “ALJ considered all of
the evidence and explained his determination at length, considering
[the p]laintiff’s testimony, the medical record evidence, and the
opinion evidence”), recommendation adopted, 2021 WL 851879 (N.D.W.
Va. Mar. 5, 2021) (unpublished).
Given the ALJ’s exertional RFC
occupations in question qualified as light because they involved
the lifting requirements of light work, because they involved a
significant amount of standing and walking (neither of which would
entailed primarily sitting with the operation of arm controls (the
jobs could not have involved foot control operation, as the RFC
precluded that activity (see Tr. 108)), Plaintiff retained the
capacity to perform that work.
Plaintiff’s assertion that the ALJ’s RFC
for light work
significantly restricted ability to stand and walk due to pain”
(Docket Entry 15 at 6 (citing Tr. 131, 132, 136)) also misses the
The ALJ expressly acknowledged Plaintiff’s statements “that
she c[ould] only stand or walk for short periods due to swelling in
her feet and pain in her knees, and [wa]s unable to lift more than
10 pounds” (Tr. 109 (citing Tr. 338)), but found Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms  not entirely consistent with the
medical evidence and other evidence in the record for the reasons
explained in th[e ALJ’s] decision” (id.), and Plaintiff has not
challenged that determination (see Docket Entry 15).
supported that finding with the following analysis:
. . . Although the evidence supports [Plaintiff’s]
alleged impairments, it does not support the alleged
severity of such impairments. [Plaintiff] reported on a
number of occasions during the period at issue that she
continued to work as a waitress, and that she was
spending long hours on her feet (See, e.g., [Tr. 474,
575]). Such work indicates that [Plaintiff] retained the
ability to perform the modified light work as outlined in
her [RFC], as do [Plaintiff]’s reported activities of
daily living, including that she can shop for groceries,
drive, take care of her niece and granddaughter on
occasion, and prepare simple meals [(Tr. 331-40, 417)].
Finally, while [Plaintiff]’s physical examinations showed
some deficits, particularly regarding her lumbar spine
and bilateral knees, there was minimal to no neurological
deficits noted, and [Plaintiff] was consistently observed
to walk with a normal gait.
treatment records and described activities of daily
living are consistent with an ability to perform to [sic]
work as described in her [RFC] (See, e.g., [Tr. 415, 454,
544, 765, 1093]).
Plaintiff’s waitressing work during the relevant period, her varied
daily activities, and her consistently normal gait and neurological
reporting, see Social Security Ruling 16-3p, Titles II and XVI:
Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at
*5-8 (Oct. 25, 2017) (“SSR 16-3p”) (including “objective medical
evidence” and “daily activities” among permissible factors in
consideration of intensity, persistence, and limiting effects of
limitations in the RFC.
The ALJ’s discussion of the medical evidence relating to
Plaintiff’s orthopedic impairments additionally demonstrates that
the ALJ properly considered the evidence regarding Plaintiff’s
abilities to perform the exertional requirements of light work. In
that regard, the ALJ noted that:
“[e]xamination of the knee, in January 2016,
tenderness, but with full range of motion,
well-healed scars post-surgery, and . . . a normal
gait” (Tr. 109 (citing Tr. 415));
“treatment notes, from January 2017, showed
[Plaintiff] continued to complain of knee pain, but
[she] had not received treatment or pain management
since her surgery,” and “[t]reatment providers
[V]oltaren gel, and an Ace knee wrap” (id. (citing
“[s]ubsequent radiographic images of [Plaintiff]’s
left knee showed minimal degenerative changes” (id.
(citing Tr. 1094)), and “[d]uring more recent
treatment visits in 2018, [Plaintiff] . . . did not
mention any pain or limitations related to her
knees during several treatment visits” (id. (citing
Tr. 691, 698)); and
in 2017, “[x]-rays and MRI films of [Plaintiff]’s
lumbar spine showed some degenerative changes,
spondylosis, and moderate spinal stenosis at L4-5”
(id. (citing Tr. 711, 1094, 1171)), but “[p]hysical
[Plaintiff] was observed to show some back
tenderness to palpation, but with normal range of
motion[ and] strength, negative straight leg raise
testing, and largely normal neurological findings”
(id. (citing Tr. 701)), and Plaintiff’s “treatment
provider assessed there was no neurological deficit
to suggest emergent or surgical presentation” (id.
(citing Tr. 1095)).
Plaintiff’s orthopedic impairments, the ALJ “f[ound] that, given
[Plaintiff]’s treatment for elbow, spine, and knee impairments,
combined with her morbid obesity and observation of some deficits
upon physical examination, limitations are warranted, including to
modified light work.”
(Tr. 110 (emphasis added).)
suffices to show that the ALJ complied with Woods and SSR 96-8p by
exertional requirements of light work.
For these reasons, Plaintiff’s sole assignment of error fails
as a matter of law.
Plaintiff has not established grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing the Commissioner of Social Security (Docket
Entry 14) be denied, that Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 16) be granted, and that judgment be
entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 28, 2021
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