JACKSON v. SAUL

Filing 18

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
DANIEL JACKSON,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.1

)
)
)
)
)
)
)
)
)
)
)

1:20CV592

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
Security,

denying

Benefits (“DIB”).

Plaintiff’s

claim

(Docket Entry 1.)

for

Disability

Insurance

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.

1

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

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of
August 2, 2017.

(Tr. 177-80.)

Upon denial of that application

initially (Tr. 70-86, 108-17) and on reconsideration (Tr. 87-103,
119-26),

Plaintiff

requested

a

hearing

de

novo

before

an

Administrative Law Judge (“ALJ”) (Tr. 127-28). Plaintiff, his nonattorney representative, and a vocational expert (“VE”) attended
the hearing.

(Tr. 34-69.)

The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act.

(Tr. 9-28.)

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.
In

rendering

that

decision,

the

ALJ

made

the

following

findings:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2021.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 2, 2017, the alleged onset date.
. . .
3.
[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.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
2

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.
. . .
5.
. . . [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.
. . .
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.
. . .
3

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.
(Tr.

14-27

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

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, “a

reviewing

of

court

must

uphold

the

factual

findings

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

4

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).

“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
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),
5

Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 5 of 28

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 [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account

a

claimant’s

age,

education,

and

work

experience

addition to [the claimant’s] medical condition.”

Id.

regulations

process’

establish

a

‘sequential

evaluation

in

“These
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

2

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

6

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

Step four

then requires the ALJ to assess whether, based on that RFC, the

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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
4

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

7

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.
B.

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

5

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

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
single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 17 at 4-15.)
1. Need for Hand-Held Assistive Device

Plaintiff’s first assignment of error maintains that “[t]he
ALJ

erred

by

failing

to

perform

a

necessity

analysis

Plaintiff’s need for a hand-held assistive device.”
15 at 5 (bold font and single-spacing omitted).)

of

[]

(Docket Entry

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)).)

Plaintiff

argues that the ALJ, “despite th[e corroborating] testimony and
medical

evidence,

.

.

.

did

not

perform

an

analysis

of

[Plaintiff]’s need for an assistive device and did not articulate
a rationale for excluding such a limitation from the RFC.”

(Id. at

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
9

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.)

Plaintiff further

argues that “‘a prescription or the lack of a prescription for an
assistive

device

is

not

necessarily

dispositive

of

medical

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
10

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).)

Plaintiff’s

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
‘medically required.’”
(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
information).”

SSR 96-9p, 1996 WL 374185, at *7 (emphasis added).

Proper application of these principles defeats this assignment of
error.
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
11

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
that

result[ed]

consistently

in

showed

extremities”).)

motor
5/5

weakness,
strength

as

in

the

the

clinical

upper

and

exams
lower

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
necessity

analysis,

as

discussed

in

more

detail

below,

that

challenge also fails.
In

that

overlooking

regard,
evidence

Plaintiff’s cane.

Plaintiff
supporting

initially
the

faults

medical

the

ALJ

for

necessity

of

(Docket Entry 15 at 5-6 (citing Tr. 44-45, 48-

49, 53, 360, 364-65, 485, 556, 1151-53, 1181, 1196, 1206, 1240,
1270).)

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.
12

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
physical

limitations

(see

id.

(citing

Tr.

485,

556,

1151)),

observations by treatment providers of Plaintiff’s cane use from
November 2017 to January 2019 (see id. at 5-6 (citing Tr. 1152,
1181,

1196,

1206,

1240,

1270)),

Dr.

Gartlan’s

notation

of

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:
13

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
joints
in
the
bilateral
upper
and
lower
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
uneven surfaces.

Under SSR 96-9p, that fact alone would support

the ALJ’s finding that Plaintiff’s cane did not reach the level of
medical necessity.

See SSR 96-9p, 1996 WL 374185, at *7 (emphasis
14

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.)

The ALJ

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
2018.”

(Tr. 25; see also Tr. 26.)

Based on the evidence post-

dating the consultants’ review, the ALJ crafted the RFC to include,
inter

alia,

a

sit/stand

option

and

only

occasional

postural

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’

15

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.
Moreover,

notwithstanding

the

ALJ’s

treatment

of

“[Dr.

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.
Gartlan’s

report

does

not

establish

Plaintiff’s cane medically necessary.

that

he

actually

found

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
cane.”

(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,
tandem

walking

or

squatting

due

to

pain,”

as

well

as

that

Plaintiff’s “[b]ilateral plantar fasciitis and pes planus feet”
caused only “mild functional limitation” (Tr. 1154).

Accordingly,

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
16

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
demonstrate

motor

weakness”

as

a

basis

for

discounting

Dr.

Gartlan’s opinion that Plaintiff’s cane qualified as medically
necessary.

(Docket Entry 15 at 9 (citing Tr. 21).)

Plaintiff

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
weakness

that

supported

his

finding

as

to

lack

of

medical

necessity, such as full range of motion in the lower extremities
and normal gait, while also discounting Plaintiff’s subjective
complaints

of

pain

(see

Tr.

21),

a

finding

unchallenged

by

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
this matter.”

(Id.)
17

Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 17 of 28

The

following

Plaintiff

regarding

exchange
his

need

took
for

place
a

between

cane

when

the

ALJ

walking

short

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[.]

down

at

[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.

and

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
with you?
[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.
[ALJ:] Okay.
[Plaintiff:] If I walk a short distance I might be able
to not use a cane depending, but if I –
18

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
Entry 15).
In sum, Plaintiff’s first assignment of error fails as a
matter of law.

19

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
activities.”
omitted).)
evidence

(Docket Entry 15 at 10 (bold font and single-spacing
According to Plaintiff, “the record contains ample

supporting

[Plaintiff]’s

contentions

that

he

has

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).)
Plaintiff

contends

that

“the

ALJ

summarized

a few

pieces

of

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)).)
Plaintiff

further

notes

that

“[t]he

VE

testified

that

if

an

individual was limited to occasional handling and fingering, in
addition to [Plaintiff]’s other limitations, then there would be no
20

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

remand.
RFC measures the most a claimant can do despite any physical
and

mental

limitations.

§ 404.1545(a).

Hines,

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.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).

See

The ALJ then

must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy).

See 20 C.F.R. § 404.1567.

Any non-exertional limitations

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

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).
evidence that

supports

accurate

logical

and

his

However, “the ALJ must both identify
[or

bridge

her]

from

conclusion
that

and

evidence

build
to

an

[that]

conclusion.”

Woods, 888 F.3d at 694 (internal emphasis, quotation

marks,

brackets

and

omitted).

As

to

the

role

of

the

function-by-function analysis in that determination, the relevant
administrative

ruling

states:

“The

RFC

assessment

must

first

identify the individual’s functional limitations or restrictions
21

Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 21 of 28

and

assess

his

or

her

work-related

function-by-function basis. . . .

abilities

on

a

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
and

the

issue

of

whether

an

ALJ’s

failure

to

function-by-function analysis necessitates remand.
Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015).

articulate

a

See Mascio v.

Specifically, that

court 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,” id. at 636, but that
“‘remand

may

claimant’s

be

appropriate

capacity

to

where

perform

an

ALJ

relevant

fails

to

functions,

assess

a

despite

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)).
22

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
function-by-function

discussion

of

Plaintiff’s

manipulative

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
findings

that

Plaintiff’s

cervical

degenerative

disc

disease

(“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.
19).
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
limitations.

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,
the

ALJ

found

that

Plaintiff’s

“statements

concerning

the

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

23

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
comfortable.
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
remote memory.
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.

Plaintiff did

(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

24

Case 1:20-cv-00592-LCB-LPA Document 18 Filed 07/19/21 Page 24 of 28

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, 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.”).
Here,

the

ALJ

discussed

the

following

objective

medical

evidence relating to Plaintiff’s abilities to lift, handle, and
finger:
•

“[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
added));

•

“[p]rimary care clinical notes dated November 28,
2017 showed [Plaintiff] . . . said his hands went
numb and he dropped things sometimes,” but “the
physical
exam
showed
no
significant
joint
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
25

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
level” (id.).

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
and

bilateral

CTS

warranted

a

limitation

to

light

work

and

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.
Significantly,

no

treatment

provider

of

record

offered

any

opinion(s) restricting Plaintiff’s lifting, handling, and fingering
capabilities.

As

discussed

above,

Dr.

Gartlan

Plaintiff’s CTS caused “no functional limitation.”
(emphasis added).)
at

the

initial

opined

that

(Tr. 1154

Moreover, the state agency medical consultant

level

of

review

found

Plaintiff

capable

of

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).
26

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
treatment

for

CTS

symptoms

(see

Tr.

1157-1311),

reduced

the

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
short.
III. CONCLUSION
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 on

the

Pleadings

(Docket

Entry

14)

be

denied,

that

27

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

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