JACKSON v. SAUL
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/19/2021, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (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. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Acting Commissioner of Social
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Daniel Jackson, 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
(Docket Entry 1.)
Defendant has filed the
certified administrative record (Docket Entry 10 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 14, 16; see also Docket Entry 15 (Plaintiff’s Memorandum);
Docket Entry 17 (Defendant’s Memorandum)).
For the reasons that
follow, the Court should enter judgment for Defendant.
President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action 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).
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 1 of 28
Plaintiff applied for DIB, alleging a disability onset date of
August 2, 2017.
Upon denial of that application
initially (Tr. 70-86, 108-17) and on reconsideration (Tr. 87-103,
Administrative Law Judge (“ALJ”) (Tr. 127-28). Plaintiff, his nonattorney representative, and a vocational expert (“VE”) attended
The ALJ subsequently ruled that
Plaintiff did not qualify as disabled under the Act.
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 175-76), 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 August 2, 2017, the alleged onset date.
. . .
[Plaintiff] has the following severe impairments:
obesity; bilateral carpal tunnel syndrome; degenerative
disc disease; gout; post-traumatic stress disorder;
anxiety; depression; sleep apnea; degenerative joint
disease; tinnitus/hearing loss; diabetes mellitus.
. . .
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 2 of 28
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
. . . [Plaintiff] had the residual functional
capacity to perform light work . . . with the following
provisos: he can frequently reach, handle, finger, push,
pull, and/or operate hand controls with the upper
extremities; occasionally push, pull and/or operate foot
controls with the lower extremities; occasionally climb
ramps and stairs, but no climbing of ladders, ropes or
scaffolds; occasionally balance, stoop, kneel, crouch,
crawl; avoid concentrated exposure to noise, further
defined to mean a maximum noise rating of 3 (moderate)
according to the [Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles
(‘SCO’)]; avoid concentrated exposure to vibration; avoid
concentrated exposure to workplace hazards, such as
dangerous moving machinery and unprotected heights; he
can understand and perform simple, routine, repetitive
tasks; he can maintain concentration, persistence and
pace for 2-hour periods over the course of a typical 8hour work day with normal breaks in order to perform such
tasks, in a low-stress setting, further defined to mean
no production-pace or quota-based work; rather, he
requires a goal-oriented job primarily dealing with
things instead of people; no more than occasional social
interaction with supervisors and/or co-workers, but no
work with the public, such as sales or negotiation,
though incidental or casual contact is not precluded as
it might arise; he requires the ability to alternate
sitting and standing at 30 minute intervals.
. . .
[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 [he] can perform.
. . .
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 3 of 28
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from August 2, 2017, 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
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 4 of 28
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),
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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.
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
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
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 6 of 28
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).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
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].”
Id. at 179.4
then requires the ALJ to assess whether, based on that RFC, the
“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).
“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.
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 7 of 28
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]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to perform a necessity analysis
of  Plaintiff’s need for a hand-held assistive device” (Docket
Entry 15 at 5 (bold font and single-spacing omitted)); and
2) “[t]he ALJ erred by failing to perform a function-byfunction assessment of Plaintiff’s ability to use his [upper
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.”).
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 8 of 28
extremities] for work-related activities” (id. at 10 (bold font and
Defendant contends otherwise and seeks affirmance of the ALJ’s
(Docket Entry 17 at 4-15.)
1. Need for Hand-Held Assistive Device
Plaintiff’s first assignment of error maintains that “[t]he
Plaintiff’s need for a hand-held assistive device.”
15 at 5 (bold font and single-spacing omitted).)
In that regard,
Plaintiff contends that “the medical record contains ample evidence
that corroborates [Plaintiff]’s claims” that “he started using the
cane ‘right before [he] got out of the service’” and “that he
use[d] a cane ‘all the time.’”
(Id. (quoting Tr. 44); see also id.
at 5-6 (describing evidence Plaintiff believes supports his medical
need for a cane (citing Tr. 44-45, 48-49, 53, 360, 364-65, 485,
556, 1151-53, 1181, 1196, 1235, 1206, 1240, 1270)).)
argues that the ALJ, “despite th[e corroborating] testimony and
[Plaintiff]’s need for an assistive device and did not articulate
a rationale for excluding such a limitation from the RFC.”
6 (citing Tr. 21-24).)
According to Plaintiff, Social Security Ruling 96-9p, Policy
Interpretation Ruling Titles II and XVI: Determining Capability to
Do Other Work – Implications of a[n RFC] for Less Than a Full Range
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 9 of 28
of Sedentary Work, 1996 WL 374185, at *7 (July 2, 1996) (“SSR 969p”), “requires ALJ’s [sic] to determine whether nor not a handheld assistive device is medically necessary,” and that “[t]he ALJ
. . . must determine whether the device is needed all the time,
periodically or only in certain situations such as long distances
or uneven terrain.”
(Docket Entry 15 at 6.)
argues that “‘a prescription or the lack of a prescription for an
necessity’” (id. (quoting Fletcher v. Colvin, No. 1:14CV380, 2015
WL 4506699, at *8 (M.D.N.C. July 23, 2015) (unpublished) (Webster,
M.J.), recommendation adopted, slip op. (M.D.N.C. Aug. 14, 2015)
(Biggs, J.))), as well as that “remand [i]s required where the ALJ
‘fail[s] to explicitly address whether Plaintiff’s need for a
[hand-held assistive device] was medically necessary and, at most,
seems to tacitly reject the notion that it could be’” (id. (quoting
Fletcher, 2015 WL 4506699, at *9 (emphasis added), and citing Smith
v. Saul, No. 5:18CV282, 2019 WL 5800086, at *9-10 (E.D.N.C. July
16, 2019) (unpublished), recommendation adopted, 2019 WL 3820094
(E.D.N.C. Aug. 14, 2019) (unpublished), McLaughlin v. Colvin, No.
1:12CV621, 2014 WL 12573323, at *2 (M.D.N.C. July 25, 2014) (Dever,
C.J., E.D.N.C. by designation), and Steigerwald v. Commissioner of
Soc. Sec., No. 1:12CV2739, 2013 WL 5330837, at *5 (N.D. Ohio Sept.
23, 2013) (unpublished))).
Plaintiff deems “[t]he ALJ’s error
. . . significant as the [VE] testified at the hearing that if a
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 10 of 28
cane [were] necessary for both standing and ambulation, then no
jobs would be available at the light range of exertion” and
Plaintiff “would ‘grid’ and be found disabled under [Rule 201.14
of] the Medical Vocational Guidelines.”
(Id. at 9 (citing 20
C.F.R. Pt. 404, Subpt. P, App’x 2, § 201.14).)
contentions miss the mark.
As Plaintiff has argued, “the legal issue does not turn on
whether a cane was ‘prescribed’ . . . but whether a cane was
(10th Cir. 2010).
Spaulding v. Astrue, 379 F. App’x 776, 780
However, “[t]o 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
SSR 96-9p, 1996 WL 374185, at *7 (emphasis added).
Proper application of these principles defeats this assignment of
First, Plaintiff’s assertion that the ALJ failed to “perform
an analysis of [Plaintiff]’s need for an assistive device” (Docket
Entry 15 at 6) entirely ignores the following analysis by the ALJ:
[Consultative medical examiner Dr. William A. Gartlan’s]
opinion that [Plaintiff]’s use of a cane is medically
necessary is not consistent with evidence, including [Dr.
Gartlan’s] own exam findings and consistent exam findings
throughout the medical evidence of record showing
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 11 of 28
[Plaintiff] retained full motor strength in the upper and
lower extremities and had no focal neurologic deficits.
Dr. Gartlan noted [Plaintiff] refused to attempt to heel
or toe walk without the cane due to knee and foot pain.
(Tr. 25; see also Tr. 21 (observing that, although, “[a]t times,
[Plaintiff] was noted to walk with an antalgic gait and use a cane,
 the record d[id] not demonstrate focal neurological deficits
Thus, Plaintiff’s argument that “remand [i]s
required [because] the ALJ ‘failed to explicitly address whether
Plaintiff’s need for a [hand-held assistive device] was medically
necessary and, at most, seem[ed] to tacitly reject the notion that
it could be’” (Docket Entry 15 at 5 (quoting Fletcher, 2015 WL
4506699, at *9 (emphasis added))) falls short.
Moreover, to the
extent Plaintiff attacks the sufficiency of the ALJ’s medical
challenge also fails.
(Docket Entry 15 at 5-6 (citing Tr. 44-45, 48-
49, 53, 360, 364-65, 485, 556, 1151-53, 1181, 1196, 1206, 1240,
More specifically, Plaintiff relies on his own testimony
regarding his cane usage (see id. at 5 (citing Tr. 44-45, 48-49,
53)), imaging tests of his lower back and feet (see id. (citing Tr.
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 12 of 28
360, 364-65)), his subjective statements to providers about his
observations by treatment providers of Plaintiff’s cane use from
November 2017 to January 2019 (see id. at 5-6 (citing Tr. 1152,
Plaintiff’s antalgic gait pattern (see id. at 5 (citing Tr. 1152)),
and Dr. Gartlan’s inability to further assess Plaintiff’s gait due
to his pain-based refusal to attempt mobility testing (see id. at
5-6 (citing Tr. 1153)).
In pointing to evidence that Plaintiff believes supports his
cane’s necessity, he misinterprets this Court’s standard of review.
The Court must determine whether the ALJ supported his analysis of
medical necessity with substantial evidence, defined as “more than
a mere scintilla of evidence but . . . somewhat less than a
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), and not whether other record evidence
weighs against the ALJ’s analysis, Lanier v. Colvin, No. CV414–004,
2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015) (unpublished) (“The
fact that [the p]laintiff disagrees with the ALJ’s decision, or
that there is other evidence in the record that weighs against the
ALJ’s decision, does not mean that the decision is unsupported by
substantial evidence.”). Here, the ALJ made the following findings
regarding the medical evidence of Plaintiff’s back, knee, and foot
impairments and their impact on his ability to ambulate:
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 13 of 28
at an office visit with orthopedic specialist Dr.
Charles Huang on September 8, 2016, Plaintiff “was
noted to ambulate to the clinic with a steady
gait[,] . . . [r]ecent x-rays of the bilateral
knees showed minimal arthritic changes[, and] . . .
“[m]otor strength was 5/5 in the muscles of the
hips and lower extremities” (Tr. 22 (emphasis
added); see also Tr. 680-83); and
Dr. Gartlan “examined [Plaintiff] on November 16,
2017” and noted “an antalgic gait pattern with need
of a cane” as well as “mild difficulty getting on
and off the exam table, and up and out of a chair,”
but “[r]ange of motion was normal in all major
extremities,” “[s]traight leg raise testing was
negative bilaterally[, m]otor strength was 5/5
bilaterally in the upper and lower extremities,”
and “Dr. Gartlan assessed . . . mild functional
[l]imitation resulting from bilateral plantar
fasciitis and pes planus feet” (Tr. 23 (emphasis
added); see also Tr. 1150-55).
Those findings constitute substantial evidence to support the ALJ’s
determination that a cane did not qualify as medically necessary
for Plaintiff (see Tr. 21, 25).
The ALJ’s evaluation of the opinion evidence also supports his
finding that Plaintiff’s impairments did not necessitate a cane.
As an initial matter, none of Plaintiff’s treating providers
offered an opinion of medical necessity as to Plaintiff’s cane or
delineated the circumstances under which Plaintiff must use the
cane, i.e., for ambulation and/or balance, or on standard and/or
Under SSR 96-9p, that fact alone would support
the ALJ’s finding that Plaintiff’s cane did not reach the level of
See SSR 96-9p, 1996 WL 374185, at *7 (emphasis
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 14 of 28
added) (“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).”).
In addition, both state agency medical consultants found
Plaintiff remained capable of up to six hours each of standing or
walking in an eight-hour workday, frequent climbing of ramps and
stairs, frequent balancing, stooping, kneeling, and crouching,
unlimited climbing of ladders, ropes, and scaffolds, and did not
find a cane medically necessary.
(See Tr. 78-80, 95-97.)
found those opinions “generally consistent with the evidence” that
the consultants reviewed and “thus  somewhat persuasive,” but
also found that “the record in its entirety support[ed ] greater
limitations . . ., particularly the evidence in May 2018 and July
(Tr. 25; see also Tr. 26.)
Based on the evidence post-
dating the consultants’ review, the ALJ crafted the RFC to include,
movements and climbing, but the ALJ neither reduced the total
amount of standing or walking Plaintiff could perform nor included
the need for a hand-held assistive device. (Compare Tr. 78-80, 9597, with Tr. 19.)
Thus, the ALJ’s analysis of the consultants’
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 15 of 28
opinions further supports the ALJ’s medical necessity finding
regarding Plaintiff’s cane.
Gartlan’s] opinion [as stating] that [Plaintiff]’s use of a cane
[wa]s medically necessary” (Tr. 25; see also id. (deeming such
opinion “not consistent with the evidence”)), a review of Dr.
Plaintiff’s cane medically necessary.
Under the heading “Physical
Examination” and the sub-heading “Ambulation,” Dr. Gartlan noted
that “[Plaintiff] has an antalgic gait pattern with a need of a
(Tr. 1152 (capitalization omitted) (emphasis added).)
However, later in the report, under the sub-heading “Gait,” Dr.
Gartlan documented Plaintiff’s “[a]ntalgic gait with use of a cane”
(Tr. 1153 (emphasis added)) and, under the heading “Impression,”
Dr. Gartlan opined that Plaintiff “had an antalgic gait with the
use of a cane and refused to attempt ambulation on his toes, heels,
Plaintiff’s “[b]ilateral plantar fasciitis and pes planus feet”
caused only “mild functional limitation” (Tr. 1154).
the record does not show that Dr. Gartlan in fact offered an
opinion that Plaintiff’s cane qualified as medically necessary.
Even if Dr. Gartlan’s statement(s) constituted a medical
necessity opinion, Plaintiff has not shown that the ALJ erred in
discounting that opinion. In that regard, Plaintiff complains that
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 16 of 28
the ALJ “misse[d] the point” by finding that “the record d[id] not
Gartlan’s opinion that Plaintiff’s cane qualified as medically
(Docket Entry 15 at 9 (citing Tr. 21).)
points out that he “d[id] not assert that he need[ed] a cane
because of weakness but rather . . . because he [wa]s in pain.”
(Id. (citing Tr. 44-45, 1151-53).) That argument fails because, as
discussed above, the ALJ noted objective findings other than
necessity, such as full range of motion in the lower extremities
and normal gait, while also discounting Plaintiff’s subjective
Plaintiff (see Docket Entry 15).
Next, Plaintiff objects to the ALJ “not[ing] in his Step 3
[listings] analysis that [Plaintiff] testified that he did not use
his cane when he attended the local community college” (Docket
Entry 15 at 8 (citing Tr. 15)), because Plaintiff actually “said he
‘might be able to not use a cane depending’” (id. (quoting Tr. 49
(emphasis added))), “and later indicated that if he walked further
than 50 feet at the grocery store he would need to use a motorized
cart” (id. (quoting Tr. 53)).
According to Plaintiff, “it is
possible, if not likely, that the ALJ’s seeming misunderstanding of
[Plaintiff]’s testimony colored his analysis, or lack thereof, in
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 17 of 28
distances while attending community college classes:
[ALJ:] . . . [T]here’s some suggestion that maybe you
were trying to take some kind of classes of some kind?
. . .
[Plaintiff:] Yeah, I took some classes
Fayetteville Technical Community College[.]
[ALJ:]  Was that recently or this year sometime?
[Plaintiff:] Yes sir it was recent[.]
. . .
[ALJ:] How long did you end up doing the class total?
[Plaintiff:] Just one semester.
[ALJ:] Okay, which was what full time?
[Plaintiff:] Four, four months.
Yeah one time, once.
[ALJ:] Is that something that you had to actually had go
to the community college to do?
[Plaintiff:] Yes sir.
[ALJ:] Were you able to get there? You know there’s –
with the cane and walking and all that, you took that
[Plaintiff:] Yeah [ALJ:] - each time and did it?
[Plaintiff:] Most of the time I had – you know I got
these knee braces I put on too.
[Plaintiff:] If I walk a short distance I might be able
to not use a cane depending, but if I –
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 18 of 28
[ALJ:]  Okay, okay.
So you wore the knee braces?
[Plaintiff:] Yeah and I used the cane too.
(Tr. 47-49 (emphasis added).)
In light of the above-quoted testimony, the ALJ erred by
finding that “[Plaintiff] testified he was able to attend classes
at a community college and did not use his cane there” (Tr. 15
(emphasis added); see also Tr. 20 (containing ALJ’s summarization
of Plaintiff’s testimony that “[h]e does not use his cane for short
distances” (emphasis added))); however, that error remains harmless
under the circumstances here, 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”).
Notably, the ALJ
expressly acknowledged Plaintiff’s testimony that “he use[d] his
cane any time he [wa]s on his feet” (Tr. 20 (emphasis added)), but
found Plaintiff’s statements concerning the intensity, persistence
and limiting effects of his pain not entirely consistent with the
medical evidence and other evidence in the record (Tr. 21), and
Plaintiff has not challenged that finding by the ALJ (see Docket
In sum, Plaintiff’s first assignment of error fails as a
matter of law.
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 19 of 28
2. Lifting, Handling, and Fingering Limitations
In Plaintiff’s second and final issue on review, he faults the
ALJ for “failing to perform a function-by-function assessment of
Plaintiff’s ability to use his [upper extremities] for work-related
(Docket Entry 15 at 10 (bold font and single-spacing
According to Plaintiff, “the record contains ample
difficulty handling and fingering objects as well as lifting them
(indeed dropping them) due to bilateral [upper extremity] pain and
sensory disturbance from his [CTS] and cervical radiculopathy.”
(Id. at 13; see also id. at 11-12 (citing Tr. 485, 502, 509, 523,
532, 534, 1157, 1177, 1181-82, 1201, 1203, 1224, 1297, 1320)
(detailing evidence Plaintiff believes supports his inability to
lift 20 pounds and/or perform frequent handling and fingering).)
evidence from the record in his decision,” but “fail[ed] to explain
how th[at] evidence support[ed] his conclusion that [Plaintiff]
could lift up to 20 pounds and perform frequent as opposed to
occasional handling and fingering in the RFC.”
(Id. at 10-11
(citing Tr. 21-24, Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir.
2016), and Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)).)
individual was limited to occasional handling and fingering, in
addition to [Plaintiff]’s other limitations, then there would be no
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 20 of 28
jobs in the national economy that he could perform.”
(citing Tr. 66-67).)
(Id. at 10
Those arguments do not warrant reversal or
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
RFC determination. 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
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 21 of 28
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.”
Social Security Ruling 96-
8p, Policy Interpretation Ruling Titles II and XVI: Assessing [RFC]
in Initial Claims, 1996 WL 374184, at *1 (July 2, 1994) (“SSR 968p”).
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.
court stated “that a per se rule is inappropriate given that remand
functions that are irrelevant or uncontested,” id. 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)); see also Britt v. Saul, No. 19-2177,
___ F. App’x ___, ___, 2021 WL 2181704, at *5 (4th Cir. May 28,
2021) (“Meaningful review is frustrated — and remand necessary —
only where ‘we are unable to fathom the [ ] rationale in relation
to evidence in the record.’” (quoting Cichocki, 729 F.3d at 177)).
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 22 of 28
Here, although the ALJ did not include in his decision an express
abilities (see Tr. 20-26), the ALJ’s decision nevertheless supplies
the necessary “accurate and logical bridge,” Woods, 888 F.3d at 694
(internal quotation marks omitted), between the evidence and his
(“DDD”) and bilateral CTS (A) qualified as severe (see Tr. 14) but
(B) did not cause limitations greater than the lifting requirements
of light work with, inter alia, “frequent reaching, handling,
fingering, pushing, pulling, and operating of hand controls” (Tr.
First, the ALJ’s evaluation of Plaintiff’s subjective symptom
reporting supports the ALJ’s finding that Plaintiff’s cervical DDD
and CTS did not warrant greater lifting, handling, and fingering
In that regard, the ALJ expressly acknowledged
Plaintiff’s testimony that he “ha[d] not had surgery on his hands
yet because his hemoglobin A1c was too high” (Tr. 20; see also Tr.
41) and that “[h]e drop[ped] things a lot, so his wife br[ought]
his coffee cup to him” (Tr. 21; see also Tr. 50, 57-58); however,
intensity, persistence and limiting effects of [his] symptoms
[we]re not persuasive of disability based upon the medical and
other evidence in the record, for the reasons explained in th[e
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 23 of 28
ALJ’s] decision” (Tr. 21).
In support of that finding, the ALJ
provided the following analysis:
As for [Plaintiff]’s statements about the intensity,
persistence, and limiting effects of his . . . symptoms,
they are inconsistent with [the] weight of the medical
evidence, with numerous exam reports noting he was well
appearing with normal mood and affect and appeared
At times, he was noted to walk with an
antalgic gait and use a cane, but the record does not
demonstrate focal neurologic deficits that result in
motor weakness, as the clinical exams consistently showed
5/5 strength in the upper and lower extremities.
Regarding his mental impairments, the mental status exams
in the record were largely within normal limits with no
indications of deficits in concentration or recent or
Most of the mental status exam note
normal or euthymic mood and affect, although at times he
was noted to appear anxious or worried. The record does
not reflect the frequency or severity of gout flares he
has alleged, although he does have a diagnosis of gout
and takes medication for it.
The record shows the
claimant has a history of obstructive sleep apnea
diagnosed per a November 2013 sleep study. Dr. Ahmed
Elaaggar noted [Plaintiff]’s obstructive sleep apnea was
mild and counseled him on sleep hygiene and recommended
a weight loss program.
(Tr. 21 (internal parenthetical citation omitted).)
not challenge those findings by the ALJ.
(See Docket Entry 15.)
Plaintiff’s reliance on evidence he believes supports greater
lifting, handling, and fingering limitations (see id. at 11-12
(citing Tr. 485, 502, 509, 523, 532, 534, 1157, 1177, 1181-82,
1201, 1203, 1224, 1297, 1320)) again misinterprets this Court’s
standard of review.
The Court must determine whether the ALJ
supported his analysis of Plaintiff’s abilities to lift, handle,
and finger with substantial evidence, defined as “more than a mere
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 24 of 28
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), and not whether other record evidence
weighs against the ALJ’s analysis, Lanier, 2015 WL 3622619, at *1
(“The fact that [the p]laintiff disagrees with the ALJ’s decision,
or that there is other evidence in the record that weighs against
the ALJ’s decision, does not mean that the decision is unsupported
by substantial evidence.”).
evidence relating to Plaintiff’s abilities to lift, handle, and
“[a] cervical spine x-ray done on January 3, 2017
showed diffuse degenerative changes with no
evidence of significant dis[c] space narrowing or
intervertebral foramina encroachment” (Tr. 23);
despite Plaintiff’s complaints to Dr. Gartlan that
“he had pain in the bilateral thumbs associated
with numbness and tingling with overuse, and
reported dropping small objects,” Plaintiff’s
“[g]rip strength was 5/5 bilaterally, with normal
ability to finger-to-thumb, button, zipper, and
pick up coins” and “[m]otor strength was 5/5
bilaterally in the upper . . . extremities” and
“Dr. Gartlan assessed no functional limitations
resulting from [Plaintiff]’s [CTS]” (id. (emphasis
“[p]rimary care clinical notes dated November 28,
2017 showed [Plaintiff] . . . said his hands went
numb and he dropped things sometimes,” but “the
deformities, sensory exam was non-remarkable, 
deep tendon reflexes were equal and symmetrical[,
and m]uscle tone, strength and coordination were
normal” (Tr. 24); and
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 25 of 28
“Daniel Wayne Ingram, a physician assistant,
examined [Plaintiff] on October 18, 2018 for
complaints of neck and arm pain” and “[t]he exam
showed mild shoulder pain with range of motion,
with a negative Spurling maneuver[, ] 5/5 strength
in the grip, biceps, triceps and deltoids, and
reflexes were unremarkable” and “Ingram stated that
[a July 2018] MRI report did not support any
bilateral arm symptoms” and “recommended facet
injections and epidural injections at the C5-6
That analysis, along with the ALJ’s evaluation of Plaintiff’s
subjective symptom reporting discussed above, provides substantial
evidence to support the ALJ’s finding that Plaintiff’s cervical DDD
frequent, but not occasional, handling and fingering (see Tr. 19).
Third, the opinion evidence would not have compelled the ALJ
to adopt greater lifting, handling, and fingering limitations.
opinion(s) restricting Plaintiff’s lifting, handling, and fingering
Plaintiff’s CTS caused “no functional limitation.”
Moreover, the state agency medical consultant
performing the lifting/carrying/pushing/pulling requirements of
medium work (i.e., 50 pounds occasionally and 25 pounds frequently,
see 20 C.F.R. § 404.1567(c)) with frequent handling and fingering
(see Tr. 78-79), and the reconsideration-level consultant affirmed
that finding but adopted no limits on fingering (see Tr. 95-96).
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 26 of 28
The ALJ found those opinions “somewhat persuasive” as consistent
with evidence the consultants reviewed (Tr. 25; see also Tr. 26)
but, in light of later received evidence primarily reflecting
exertional level of the RFC from medium to light (see Tr. 19), and
added a restriction to frequent reaching, pushing, pulling, and
operation of hand controls (id.). Thus, even after accounting for
medical evidence “that support[ed ] greater limitations” (Tr. 25;
see also Tr. 26), the ALJ did not find restriction of lifting to
less than 20 pounds or the inclusion of only occasional handling
and fingering in the RFC warranted (see Tr. 19).
For the above-stated reasons, Plaintiff has failed to show
that the ALJ improperly evaluated Plaintiff’s abilities to lift,
handle, and finger, and his second assignment of error thus falls
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
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 27 of 28
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
July 19, 2021
Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 28 of 28
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