PATTERSON v. SAUL

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/10/2022; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 15 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 18 ) be granted, and that this action be dismissed with prejudice. (Hicks, Samantha)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MONICA PATTERSON,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of
Social Security,
Defendant.1

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1:20CV1030

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Monica Patterson, brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”) to obtain
judicial review of a final decision of Defendant, the Commissioner
of Social Security, denying Plaintiff’s claims for Disabled Widow’s
Benefits (“DWB”).

(Docket Entry 1.)

Defendant has filed the

certified administrative record (cited herein as “Tr. __”), and
both parties have moved for judgment (Docket Entries 15, 18; see
also Docket Entry 16 (Plaintiff’s Memorandum); Docket Entry 19
(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-01030-CCE-LPA Document 20 Filed 01/10/22 Page 1 of 30

I. PROCEDURAL HISTORY
Plaintiff applied for DWB (Tr. 188-95), alleging a disability
onset date of December 11, 1996 (see Tr. 189).2
that

application

initially

(Tr.

65-76,

Upon denial of

110-13)

and

on

reconsideration (Tr. 77-109, 122-27), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 120-21,
129).

Plaintiff, her attorney, and a vocational expert (“VE”)

attended the hearing (Tr. 39-64), during which Plaintiff amended
her

onset

date

to

July

10,

2017

(see

Tr.

210).

The

ALJ

subsequently ruled that Plaintiff did not qualify as disabled
within the meaning of the Act.

(Tr. 12-31.)

The Appeals Council

thereafter denied Plaintiff’s request for review (Tr. 1-6, 313-21),
thereby making the ALJ’s ruling the Commissioner’s final decision
for purposes of judicial review.

2
“For [DWB], in addition to showing disability, a claimant must show that
she is a widow who has attained the age of fifty and is unmarried (unless one of
the exceptions in 20 C.F.R. § 404.335(e) [] appl[ies]) and that her disability
began before the end of the prescribed period.” Fraley v. Astrue, No. 2:10-cv00762, 2011 WL 2681647, at *2 (S.D.W. Va. July 11, 2011) (unpublished) (citing
42 U.S.C. § 402(e) and 20 C.F.R. § 404.335). “The prescribed period [for DWB]
ends with the month before the month in which the claimant attains age 60, or,
if earlier, either 7 years after the worker’s death or 7 years after the widow
was last entitled to survivor’s benefits, whichever is later.” Fraley, 2011 WL
2681647, at *2 (citing 42 U.S.C. § 402(e)(4) and 20 C.F.R. § 404.335(c)(1)). In
this case, Plaintiff’s prescribed period began on September 21, 2017, the date
her husband died (see Tr. 15) and, thus, Plaintiff had to establish that her
disability began on or before June 30, 2022, the last day of the month before the
month in which Plaintiff will attain age 60, in order to obtain DWB. “The
definition of disability for [DWB] is the same as for the standard disability
case and the five-step sequential evaluation process is applicable to [DWB]
cases.” Lavender v. Colvin, No. 1:10CV903, 2014 WL 237980, at *2 & n.4 (M.D.N.C.
Jan. 22, 2014) (unpublished) (citing 20 C.F.R. §§ 404.1505(a), 404.1520(a)(2)).

2

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 2 of 30

In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
It was previously found that [Plaintiff] is the
unmarried widow of the deceased insured worker and has
attained the age of 50.
[Plaintiff] met the nondisability requirements for [DWB] . . . .
2.

The prescribed period ends on June 30, 2022.

3.
[Plaintiff] has not engaged in substantial gainful
activity since July 10, 2017, the amended alleged onset
date.
4.
[Plaintiff] has the following severe impairments:
lumbar radiculopathy with mild anterolisthesis of L4 on
L5, L5-S1; right shoulder bursitis/adhesive capsulitis
status-post right rotator cuff repair in February 2018;
neurofibromatosis; and osteoarthritis of the left knee.
. . .
5.
[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.
. . .
6.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . with the following
exceptions. She can frequently climb ladders, ropes and
scaffolds. She can frequently climb ramps or stairs,
balance, stoop, crouch, kneel and crawl.
She can
frequently reach overhead with her upper right extremity.
. . .
7.

[Plaintiff] has no past relevant work.

. . .
11. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
3

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 3 of 30

. . .
12. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from July 10, 2017, through the
date of this decision.
(Tr.

18-30

(bold

font

and

internal

parenthetical

citations

omitted).)3
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

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

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

In

this case, Plaintiff has not shown entitlement to relief under the
extremely limited review standard.
A.

Standard of Review

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

Instead,

the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal

3
Although the ALJ found that Plaintiff had severe “right shoulder
bursitis/adhesive capsulitis status-post right rotator cuff repair in February
2018” and had a “history of a total left knee replacement” (Tr. 18 (emphasis
added); see also Tr. 21, 23, 27), the record fails to reflect that Plaintiff
underwent either procedure (see Tr. 361-62, 464, 1178-82 (documenting Plaintiff’s
conservative treatment for right shoulder pain), 1030, 1190, 1258 (containing
imaging of Plaintiff’s left knee failing to reflect a total knee replacement)).

4

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 4 of 30

standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks

omitted).

“Substantial

evidence

means

‘such

relevant

evidence as a reasonable mind might accept as adequate to support
a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.

1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.”

Mastro v. Apfel, 270 F.3d

171, 176 (4th Cir. 2001) (internal citations and quotation marks
omitted).

“If there is evidence to justify a refusal to direct a

verdict were the case before a jury, then there is substantial
evidence.”

Hunter, 993 F.2d at 34 (internal quotation marks

omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted).

“The issue before [the reviewing court], therefore, is

not whether [the claimant] is disabled, but whether the ALJ’s
finding that
substantial

[the

claimant]

evidence

and

was

is

not

disabled

reached

based

is

supported

upon

a

by

correct

5

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 5 of 30

application of the relevant law.”

Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).

“To

regularize

the

adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

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

Id. (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
6

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 6 of 30

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

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.”
270 F.3d at 177.

Mastro,

Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.5

Step four then requires the ALJ to assess

4
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
5
“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-01030-CCE-LPA Document 20 Filed 01/10/22 Page 7 of 30

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

See id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.6
B.

Assignments of Error

Plaintiff contends 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 proper functionby-function evaluation of Plaintiff’s ability to lift, stand and
walk when formulating Plaintiff’s RFC” (Docket Entry 16 at 4 (bold
font and single-spacing omitted)); and

6
A claimant thus can establish disability via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

8

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 8 of 30

(2) “[t]he ALJ failed to account for Plaintiff’s need to
elevate her lower extremities in the RFC” (id. at 11 (bold font and
single-spacing omitted)).
Defendant contends otherwise, and seeks affirmance of the
ALJ’s decision.

(See Docket Entry 19 at 10-18.)
1. Function-by-Function Evaluation

In Plaintiff’s first issue on review, she alleges that “[t]he
ALJ erred by failing to perform a proper function-by-function
evaluation of Plaintiff’s ability to lift, stand and walk when
formulating Plaintiff’s RFC.” (Docket Entry 16 at 4 (bold font and
single-spacing

omitted).)

According

to

Plaintiff,

her

neurofibromatosis causes Plaintiff to have “bumps all over her
body, from her head to the bottoms of her feet” (id. (citing Tr.
46)), that limit her ability to stand, walk, and lift (id. at 4-5
(citing Tr. 46-47, 50-52)).7

Plaintiff contends that the record

contains “extensive documentation of [her neurofibromatosis]” (id.
at 5; see also id. at 5-8 (detailing evidence Plaintiff believes
documents severity and limiting effects of her neurofibromatosis
(citing Tr. 324, 328, 372, 378, 404, 443, 453, 457, 473, 729, 740,
751, 753, 756, 814, 819-20, 829, 871, 916-18, 921, 937, 1015-17,
1023, 1030, 1049, 1053, 1061, 1077, 1086, 1122, 1130, 1134, 1137,

7

“Neurofibromatosis is a genetic disorder of the nervous system.
It
mainly affects how nerve cells form and grow.
It causes tumors to grow on
nerves. . . . Usually the tumors are benign, but sometimes they can become
cancerous.” https://medlineplus.gov/neurofibromatosis.html (last visited Dec.
14, 2021).

9

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 9 of 30

1152, 1155-56, 1202, 1208, 1215, 1235, 1257))) and that, despite
that evidence, “the ALJ found that [Plaintiff] could perform the
full range of lifting, standing and walking that is required of
medium work” (id. at 8 (emphasis supplied by Plaintiff) (citing Tr.
22)).
Plaintiff further asserts that “[w]hat little explanation is
offered by the ALJ runs afoul of longstanding Fourth Circuit
precedent . . . regarding the evaluation of complaints of pain”
(id. at 9 (citing Arakas v. Commissioner of Soc. Sec., 983 F.3d 83
(4th Cir. 2020))), in that the ALJ improperly relied on “normal
range of motion and benign physical examination results” (id. at 10
(citing Tr. 27)), which “‘simply have no relevance to the severity,
persistence, or limiting effects’ of the painful neurofibromas that
cover [Plaintiff]’s body” (id. (citing Arakas, 983 F.3d at 97-98))
and “penalize[d Plaintiff] for only seeking treatment that is
consistent with how her condition is generally treated” (id.
(citing Arakas, 983 F.3d at 101)).

Plaintiff maintains that the

ALJ’s errors prejudiced her because, had the ALJ limited her to
less than medium work, Rule 202.04 of the Medical-Vocational
Guidelines would have directed a conclusion of disabled.

(Id. at

11 (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2, § 202.04).)
Plaintiff’s contentions fail to warrant relief.
RFC measures the most a claimant can do despite any physical
and

mental

limitations.

Hines,

453

F.3d

at

562;

20

C.F.R.

10

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 10 of 30

§ 404.1545(a).

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 v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)
(internal emphasis, quotation marks, and brackets omitted).
the

role

of

the

function-by-function

analysis

in

As to
that

determination, the relevant administrative ruling states: “The RFC
assessment

must

first

identify

the

individual’s

functional

limitations or restrictions and assess his or her work-related
abilities on a 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:
11

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 11 of 30

Assessing [RFC] in Initial Claims, 1996 WL 374184, at *1 (July 2,
1994) (“SSR 96-8p”).
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, it

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
be appropriate where an ALJ fails to assess a claimant’s capacity
to perform relevant functions, 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)).

Here, the ALJ did not perform a function-by-function

analysis of Plaintiff’s abilities to lift, stand, and walk (see Tr.
22-29); however, no basis for remand exists, because 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

her

findings

that

Plaintiff’s

neurofibromatosis (A) qualified as severe (see Tr. 18) but (B) did
not cause limitations greater than the lifting, standing, and
walking requirements of medium work (see Tr. 22).

12

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 12 of 30

First, the ALJ’s analysis of Plaintiff’s subjective symptom
reporting

explains

limitations.

the

ALJ’s

Although

lifting,

Plaintiff

standing,

cites

a

and

large

walking

quantity

of

objective evidence to support the existence and extent of her
neurofibromatosis (see Docket Entry 16 at 5-8 (citing Tr. 324, 328,
372, 378, 404, 443, 453, 457, 473, 729, 740, 751, 753, 756, 814,
819-20, 829, 871, 916-18, 921, 937, 1015-17, 1023, 1030, 1049,
1053, 1061, 1077, 1086, 1122, 1130, 1134, 1137, 1152, 1155-56,
1202, 1208, 1215, 1235, 1257)), Plaintiff relies primarily on her
own

subjective

statements

to

support

the

argument

that

her

neurofibromatosis symptoms should have compelled the ALJ to include
greater lifting, standing, and walking limitations in the RFC (see
id. at 4 (reciting Plaintiff’s testimony that, “if she stands more
than 15 minutes, the bumps on her feet become irritated” (citing
Tr. 46), and “that she cannot walk more than a block at a time in
shoes” (citing Tr. 50); see also id. at 5 (pointing out Plaintiff’s
testimony that “[i]t is hard for her to lift boxes because of the
bumps on her hands” (citing Tr. 53)).

The ALJ acknowledged

Plaintiff’s

limitations

testimony

regarding

alleged

from

her

neurofibromatosis (see Tr. 23, 29), as well as her statement on a
Function

Report

“that

she

had

great

pain

due

to

her

neurofibromatosis and she was in pain more than half the day” (Tr.
23 (citing Tr. 238)), but found that Plaintiff’s

“statements

concerning the intensity, persistence, and limiting effects of
13

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 13 of 30

[her] symptoms [we]re not entirely consistent with the medical
evidence and other evidence in the record” (Tr. 23).

As detailed

below, the ALJ did not reversibly err with respect to that finding.
Plaintiff maintains that the ALJ erred by “requiring objective
evidence to support subjective pain symptoms[, which] improperly
increase[d

Plaintiff]’s

burden

of

proof[,]

as

[Plaintiff]

is

‘entitled to rely exclusively on subjective evidence to prove’ her
symptoms are severe enough to prevent her from performing work
activity.”
96).)

(Docket Entry 16 at 9-10 (quoting Arakas, 983 F.3d at

In that regard, Plaintiff faults the ALJ for noting “that

diagnostic imaging, surgical history, and lab reports d[id] not
support [Plaintiff]’s allegations” (id. (citing Tr. 23)), because
“multiple

scans

performed

over

many

years

have

indicated

[Plaintiff]’s extensive lesions, she has had three excisions of
particularly painful lesions during the relevant time period, and
her lesions are visible to the eye and have been noted by multiple
doctors” (id.). Plaintiff further challenges the ALJ’s reliance on
“normal range of motion and benign physical examination results”
(id. at 10 (citing Tr. 27)), which “‘simply have no relevance to
the severity, persistence, or limiting effects’ of the painful
neurofibromas that cover [Plaintiff]’s body” (id. (citing Arakas,
983 F.3d at 97-98)).
observation

of

Plaintiff additionally objects to the ALJ’s

“routine

and

conservative

treatment

for

[Plaintiff]’s pain” (id. (citing Tr. 29)), asserting that “[t]he
14

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 14 of 30

ALJ cannot penalize [Plaintiff] for only seeking treatment that is
consistent with how her condition is generally treated” (id.
(citing Arakas, 983 F.3d at 101)).
As an initial matter, Plaintiff overstates the
Arakas.

reach of

That case holds only “that ALJs may not rely on objective

medical evidence (or the lack thereof) — even as just one of
multiple factors — to discount a claimant’s subjective complaints
regarding symptoms of fibromyalgia or some other disease that does
not produce such evidence.”

Arakas, 983 F.3d at 97 (emphasis

added).

Here, Plaintiff has readily admitted that

evidence

such

as

“multiple

scans

performed

over

objective

many

years”

document her neurofibromatosis, as well as that “her lesions are
visible to the eye.”

(Docket Entry 16 at 9.)

Thus, unlike

fibromyalgia, neurofibromatosis does not constitute a “disease that
does not produce [objective medical] evidence,” Arakas, 983 F.3d at
97.
In addition, although Arakas “reiterate[d] the long-standing
law in [the Fourth C]ircuit that disability claimants are entitled
to rely exclusively on subjective evidence to prove the severity,
persistence, and limiting effects of their symptoms,” Arakas, 983
F.3d at 98, long-standing cases containing the substance of that
holding, such as Craig and Hines (among others), clarify that,
“[a]lthough a claimant’s allegations about her pain may not be
discredited solely because they are not substantiated by objective
15

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 15 of 30

evidence of the pain itself or its severity, they need not be
accepted to the extent they are inconsistent with the available
evidence,

including

objective

evidence

of

the

underlying

impairment, and the extent to which that impairment can reasonably
be expected to cause the pain the claimant alleges she suffers,”
Craig, 76 F.3d at 595 (emphasis added); see also Hines, 453 F.3d at
565 n.3 (quoting Craig, 76 F.3d at 595).

In other words, under the

appropriate circumstances, an ALJ may choose to rely exclusively on
a claimant’s subjective symptom reports to find disabling symptoms;
however, Arakas does not compel ALJs to consider only subjective
evidence,

as

such

a

requirement

would

conflict

with

the

regulations, which plainly require ALJs to consider a variety of
factors, including objective medical evidence, in evaluating the
intensity, persistence, and limiting effects of symptoms.

See 20

C.F.R. § 404.1529(c) (directing ALJs to assess a claimant’s medical
history, medical signs and laboratory findings, daily activities,
testimony about nature and location of pain, medication and other
treatment used to alleviate pain, along with medical opinions from
examining
§

and

423(d)(5)(A)

established

by

non-examining

sources);

(“Objective

medical

medically

acceptable

see

evidence

also
of

clinical

42

pain
or

U.S.C.
.

.

.

laboratory

techniques (for example, deteriorating nerve or muscle tissue) must
be

considered

in

reaching

a

conclusion

as

to

whether

[an]

individual is under a disability.” (emphasis added)).
16

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 16 of 30

Here, in compliance with Arakas, Hines, and Craig, the ALJ
considered the objective medical evidence as one part of her
evaluation

of

neurofibromatosis.

the

limiting

effects

of

Plaintiff’s

The ALJ additionally considered the opinion

evidence of record (see Tr. 27-28) (discussed in greater detail
below), and Plaintiff’s daily activities, observing that, despite
complaints of disabling pain, Plaintiff remained able to “shop in
stores, prepare meals and do housework” (Tr. 20), as well as
“tend[] to her personal care needs[,] . . . walk [for exercise] and
use public transportation” (Tr. 23).
type

and

effectiveness

of

The ALJ also commented on the

Plaintiff’s

treatment,

noting

that

Plaintiff “received mostly routine and conservative treatment for
her impairments” (Tr. 27; see also Tr. 29), that she “routinely
reported that her medications were adequately controlling her pain
symptoms” (id.; see also Tr. 29), and “that she recovered well from
her surgical procedures and was able to ambulate normally, without
the use of [a] cane or assistive device” (Tr. 28; see also Tr. 29).
The record supports those observations by the ALJ.

A large

quantity of Plaintiff’s treatment consisted of discrete complaints
of a variety of symptoms which resolved quickly with treatment.
(See, e.g., Tr. 400 (8/10/17 orthopedic visit with complaint of
right

shoulder pain after heavy lifting treated with steroid

injection without follow-up), 464 (3/14/18 visit with orthopedist
for right shoulder pain after loading garbage cart treated with
17

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 17 of 30

steroid injection), 761 & 1026-30 (August 2018 ER visits reporting
left knee pain after fall treated with steroid injection and
Naproxen), 907-14 & 1279-83 (November 2018 ER visits for toe
fracture after walking into couch treated with splint and pain
medications), 1010-14 (8/2/18 treatment at ER for injury to left
leg after hitting it on dolly in airport), 1254-58 (12/27/18
emergent visit for left knee pain after fall).)
bears

out

the

ALJ’s

observation

Plaintiff’s more chronic symptoms.

that

The record also

medications

improved

(See, e.g., Tr. 403 (8/18/17

pain management treatment note reflecting Plaintiff had “good
relief” of back pain on ibuprofen and Norco), 473 (3/22/18 primary
care visit noting that Lasix helped “some” with Plaintiff’s lower
extremity swelling), 786 (8/15/18 orthopedist report documenting
that previous steroid injection reduced Plaintiff’s right shoulder
pain),

933-66

(2018

surgical

records

referencing

Plaintiff’s

successful recovery from neurofibroma excisions), 1202 (1/9/19
primary care treatment document recording that Plaintiff reported
0/10 on pain scale).)
Moreover, Plaintiff’s criticism of the ALJ for relying upon
objective findings such as “diagnostic imaging, surgical history,
and lab reports” (Docket Entry 16 at 9 (citing Tr. 23)), as well as
“normal range of motion and benign physical examination results”
(id. at 10 (citing Tr. 27)) to discount Plaintiff’s subjective
reports

of

neurofibromatosis

symptoms

falls

short.

Those

18

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 18 of 30

observations by the ALJ occur in paragraphs in which she analyzed
Plaintiff’s treatment for multiple physical impairments, rather
than just neurofibromatosis.

(See Tr. 23 (noting Plaintiff “ha[d]

a treatment history for several physical impairments” and detailing
Plaintiff’s array of reported symptoms), 27 (summarizing impact of
all of Plaintiff’s impairments on RFC).)
Furthermore, Plaintiff’s objection to the ALJ’s observation of
“routine and conservative treatment for [Plaintiff]’s pain” (Docket
Entry 16 at 10 (citing Tr. 29)), because “[t]he ALJ cannot penalize
[Plaintiff] for only seeking treatment that is consistent with how
her condition is generally treated” (id. (citing Arakas, 983 F.3d
at 101)) ultimately fails to establish grounds for remand. The ALJ
did find at one point in the decision that Plaintiff “received only
routine and conservative treatment for her pain symptoms” (Tr. 29
(emphasis added)), which would conflict with the record evidence of
Plaintiff’s surgeries to remove painful neurofibromas (see Tr.
1061-67, 1077-81, 1086-91).

However, earlier in the decision, the

ALJ found that Plaintiff “received mostly routine and conservative
treatment for her impairments” (Tr. 27 (emphasis added)), expressly
acknowledged that Plaintiff “underwent an amputation of her toe and
surgical removal of several nodules” (id.), as well as found that
Plaintiff’s

“surgical

procedures

went

well

and

without

complications” (Tr. 29), and that she “recovered from her surgeries
and

ambulated

normally,

without

an

assistive

device”

(id.).

19

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 19 of 30

Moreover,

although

conservative

the

treatment”

ALJ’s
(Tr.

observation
29)

may

about

lack

“routine

applicability

and
to

Plaintiff’s neurofibromatosis, the ALJ made that observation when
discussing Plaintiff’s treatment for the pain she alleged from any
of her claimed impairments, including lumbar radiculopathy, right
shoulder bursitis/adhesive capsulitis, and osteoarthritis of the
left knee (see id. (citing Tr. 360-409, 471-84, 725-84, 874-914,
922-71, 1010-1177, 1222-84)). Plaintiff makes no argument that the
ALJ

improperly

described

Plaintiff’s

treatments

impairments as “routine and conservative” (Tr. 29).

for

those

(See Docket

Entry 16 at 4-11.) Given that consideration and the other adequate
grounds for discounting Plaintiff’s symptom severity reporting made
manifest in the ALJ’s decision, to the extent the ALJ described
Plaintiff’s

treatment

for

neurofibromatosis

as

“routine

and

conservative” (Tr. 29), she committed, at most, harmless error
which does not warrant relief.

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”); see also Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an
error is harmful normally falls upon the party attacking the
agency’s determination.”).

20

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 20 of 30

Second, the ALJ’s evaluation of the opinion evidence further
explains the sitting, standing, and walking limitations in the RFC.
In that regard, the ALJ found “persuasive” (Tr. 27) the opinions of
the

state

agency

medical

consultants

that

Plaintiff

remained

capable of lifting 50 pounds occasionally, 25 pounds frequently,
and six hours total of standing and walking in an eight-hour
workday

(see

Tr.

72-73,

86-87,

102-03),

but

added

postural

restrictions (see Tr. 22), to further account for Plaintiff’s left
knee pain (see Tr. 28).

Moreover, none of Plaintiff’s medical

providers opined that Plaintiff’s neurofibromatosis necessitated
any (let alone greater) lifting, standing, or walking limitations,
which significantly undermines Plaintiff’s argument. See Pineda v.
Astrue, 289 F. App’x 710, 713 (5th Cir. 2008) (holding that “ALJ
properly noted[ that] the record d[id] not contain any specific
opinions from treating or examining physicians, based on objective
evidence, indicating that [the plaintiff] ha[d] limitations greater
than

those

8:17CV2412,

determined
2019

WL

by

the

92620,

ALJ”);

at

*6

Nava

(M.D.

v.

Fla.

Berryhill,
Jan.

3,

No.

2019)

(unpublished) (“Importantly, the ALJ noted that the record does not
contain any opinions from treating/examining doctors . . . that the
[p]laintiff has limitations greater than the RFC.”); Charrette v.
Commissioner of Soc. Sec., No. CV 15-10930, 2016 WL 7985332, at *8
(E.D. Mich. Aug. 4, 2016) (unpublished) (rejecting the plaintiff’s
argument that “RFC determination failed to account for exertional
21

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 21 of 30

limitations resulting from severe fatigue, pain, and bilateral
ankle impairment” where “ALJ appropriately noted[ that] the record
d[id]

not

contain

any

opinions

from

treating

or

examining

physicians indicating that the claimant [wa]s disabled or even
ha[d]

limitations

greater

than

those

determined

in

th[e]

decision”), recommendation adopted, 2016 WL 4561333 (E.D. Mich.
Sept. 1, 2016) (unpublished); Ortman v. Commissioner of Soc. Sec.,
No. 2:14CV1900, 2016 WL 2595111, at *2 (S.D. Ohio May 5, 2016)
(unpublished) (“[S]ignificantly, the record contains no medical
opinion of greater limitations than those that the [ALJ] included
in her RFC determination.”).8
In short, Plaintiff’s first assignment of error fails as a
matter of law.
2. Need to Elevate Lower Extremities
In Plaintiff’s second and final issue on review, she contends
that “[t]he ALJ failed to account for Plaintiff’s need to elevate
her lower extremities in the RFC.”

(Docket Entry 16 at 11 (bold

font and single-spacing omitted).) In particular, Plaintiff points
out that, “[o]n December 8, 2017, [she] indicated that the swelling
[of her right lower extremity] was worse with walking and Dr.

8
Plaintiff points to a notation in a cardiologist’s report on August 23,
2018, that Plaintiff “could not walk adequately for stress testing purposes.”
(Docket Entry 16 at 7 (citing Tr. 740).) The report reflects that Plaintiff
complained of chest pain “associated with [shortness of breath], leg pain and leg
edema” which caused “poor exercise tolerance” and “trouble walking up and down
the stairs at home.” (Tr. 741.) Thus, that notation does not establish that
Plaintiff’s neurofibromatosis caused her difficulty walking.

22

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 22 of 30

Wilson Tabe instructed her to keep her leg elevated” (id. (citing
Tr. 447)), as well as that, “[o]n August 2, 2018, [Plaintiff] was
again noted to have edema to a portion of her left lower leg and
she was again advised to elevate the extremity” (id. at 12 (citing
Tr. 1012-13)).

Plaintiff additionally references other occasions

occurring intermittently throughout the relevant period in this
case on which her providers noted edema and/or swelling in a lower
extremity.

(Id. at 11-12 (citing Tr. 443, 445-46, 448, 473, 751,

753, 1027, 1202, 1282).)

According to Plaintiff, “[d]espite that

evidence, the ALJ d[id] not evaluate [Plaintiff]’s need to elevate
her legs and d[id] not account for it in the RFC determination.”
(Id. at 12 (citing Tr. 22-29).)
significant
periodically

error,”
to

because

relieve

Plaintiff deems that “oversight a
“the

[her

need

lower

to

elevate

extremity]

her

legs

swelling,

as

instructed by her doctors, would certainly impact her ability to
work a full-time job.”
As

an

initial

(Id.)

matter,

Plaintiff’s contentions fall short.
Plaintiff

did

not

include

lower

extremity swelling/edema or a need to elevate her legs among the
nine conditions listed on her Disability Report as “limit[ing her]
ability to work.”

(Tr. 226.)

Similarly, neither Plaintiff’s

Function Report nor one completed by her sister make any mention of
lower extremity swelling or a need to elevate the legs.
238-45, 246-52.)

(See Tr.

In a subsequent Disability Report, Plaintiff

commented only that her “[right] leg swells” (Tr. 258 (emphasis
23

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 23 of 30

added)), and did not state that the swelling necessitated leg
elevation (see Tr. 257-66; see also Tr. 269-76 (final Disability
Report not addressing leg swelling or elevation).)

Moreover, in

her testimony before the ALJ, Plaintiff declared only that, if she
stood for five to six hours, her left knee would swell and hurt
(see Tr. 54), and did not mention any need to elevate her legs (see
Tr. 41-58).

The Court should not fault the ALJ for failing to

include a limitation in the RFC that Plaintiff and/or her counsel
did not deem worthy of inclusion in any of her disability-related
filings and statements.

See Crisco v. Kijakazi, No. 1:20CV239,

2021 WL 4414155, at *3-5 (M.D.N.C. Sept. 27, 2021) (unpublished)
(Osteen, J.) (finding no merit to the plaintiff’s argument that
“the ALJ failed to account for any limitations caused by [the
p]laintiff’s migraines in [the] RFC assessment,” because “[the
p]laintiff did not provide any testimony as to the severity or the
functional impact of her migraine headaches, . . . [and] did not
even include migraine headaches as a disabling impairment on her
Disability Report” (some brackets omitted)); Davis v. Commissioner
of Soc. Sec. Admin., No. 2:18CV10228, 2019 WL 2051899, at *8 (E.D.
Mich. Feb. 19, 2019) (unpublished) (“[W]here [the p]laintiff was
represented by counsel, the ALJ was entitled to rely on counsel to
present [the p]laintiff’s case and to develop her claims,” and
“[t]he regulations do not transform [the ALJ] into the claimant’s
solicitous companion.” (internal citations, quotation marks, and
24

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 24 of 30

some brackets omitted)), recommendation adopted, 2019 WL 1324239
(E.D. Mich. Mar. 25, 2019) (unpublished); Sturdevant v. Colvin, No.
15CV643,

2017

WL

9480895,

at

*4

(N.D.

Okla.

Jan.

5,

2017)

(unpublished) (rejecting the plaintiff’s “assert[ion] that the ALJ
erred

in

failing

to

identify

any

limitations

accounting

for

. . . [her] severe impairment of obesity,” where the plaintiff
“never mentioned or discussed her obesity or its effect on her
functional limitations in her adult function reports or in her
hearing testimony”), recommendation adopted, 2017 WL 1197825 (N.D.
Okla. Mar. 30, 2017) (unpublished); Frost v. Colvin, No. 3:16CV47,
2016 WL 6493971, at *12-13 (M.D. Tenn. Nov. 2, 2016) (unpublished)
(“[The p]laintiff argues that the ALJ erroneously . . . failed to
evaluate the exact degree of limitation [the p]laintiff’s physical
impairments

cause,”

impairments

or

but

resultant

“[the

p]laintiff

complications

on

alleged
his

[]

no

physical

disability

report[s].”), recommendation adopted, 2016 WL 7386471 (M.D. Tenn.
Dec. 21, 2016) (unpublished); Mayfield v. Colvin, No. 4:14CV740,
2015 WL 3460558, at *5-6 (W.D. Mo. June 1, 2015) (unpublished)
(finding ALJ did not err in “fail[ing] to incorporate the effects
of [the plaintiff’s] . . . back pain [] in the RFC,” where she “did
not list difficulty secondary to back pain in her Adult Function
Report”).
Beyond Plaintiff’s failure to raise leg elevation as an issue
before the ALJ, Plaintiff has additionally not shown that any lower
25

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 25 of 30

extremity swelling and/or edema that does appear in the record
constituted more than a temporary condition

(often caused by

discrete injuries) that improved with treatment. Plaintiff’s first
complaint of lower extremity swelling in the record occurred on
November

30,

2017,

when

she

complained

to

her

primary

care

physician, Dr. Tabe, of leg swelling, right greater than left.
(See

Tr.

448.)

On

examination,

Dr.

Tabe

found

swelling

in

Plaintiff’s right leg, but normal gait and no neurological deficit,
tenderness, or redness.

(Id.)

Dr. Tabe prescribed Lasix and

potassium supplements and ordered a venous Doppler ultrasound.
(Id.)

At a follow-up visit on December 8, 2017, Dr. Tabe informed

Plaintiff

of

her

normal

ultrasound

results,

could

no

longer

appreciate any swelling in Plaintiff’s right lower extremity, and
advised Plaintiff to “keep [her] leg elevated.” (Tr. 447; see also
Tr. 1151-53 (12/8/17 ER visit finding tenderness in Plaintiff’s
right calf, but normal gait and ultrasound).)

Plaintiff continued

her reports to Dr. Tabe of leg swelling on December 18, 2017 (see
Tr. 446), January 9, 2018 (see Tr. 445), and February 9, 2018 (see
Tr.

443).

Although

Dr.

Tabe

found

+2

edema

in

Plaintiff’s

extremities at two of those follow-up visits, he did not repeat his
advice to Plaintiff to elevate her legs.

(See Tr. 445-46.)9

9

At three emergency room visits during this time, Plaintiff complained of
ongoing right lower extremity pain and swelling (see Tr. 452, 1042, 1151), but
providers documented no edema, full range of motion, as well as normal strength,
sensation, pulses, and gait (see 453, 1043, 1152), and did not advise Plaintiff
(continued...)

26

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 26 of 30

Plaintiff next sought to establish care with a new primary
care physician, Dr. Najibullah Muradi, on March 22, 2018, and
continued to complain of pain and swelling in her right leg.
Tr. 473.)
lower

(See

Dr. Muradi did note non-pitting edema in Plaintiff’s

extremities,

but

found

normal

gait,

strength,

neurological function (id.), and did not advise
elevate her legs

(see Tr. 474).

and

Plaintiff to

Notably, at visits to the

emergency room and to her neurofibromatosis surgeon, Dr. Leon
Stockton, in April, May, and June 2018, providers repeatedly found
no edema in Plaintiff’s lower extremities during examinations.
(See Tr. 936, 946, 956, 966, 1069.)
On August 2, 2018, Plaintiff presented to the emergency room
with complaints of left leg pain after hitting that leg on a dolly
in the airport.

(See Tr. 1010.)

Providers noted bruising and

swelling on Plaintiff’s left outer leg just above the ankle (see
Tr. 1012), and advised Plaintiff to “elevate her leg” and “apply
warm compresses” (Tr. 1013).

Shortly thereafter, Plaintiff sought

emergency department care after a fall while walking in the dark
that resulted in a left knee contusion (see Tr. 1026-28), but the
provider did not recommend leg elevation (see Tr. 1028), and
subsequent examinations in September, October, and November 2018
lacked any further findings of edema (see Tr. 880-912).

The record

9

(...continued)
to elevate her legs (see Tr. 453, 1044, 1152).

27

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 27 of 30

reflects two more emergency room visits in November and December
2018 related to specific injuries to Plaintiff’s lower extremities
(see Tr. 1254-58 (12/30/18 ER visit for fall on left knee during
walk resulting in recommendation for “RICE” protocol, i.e., rest,
ice,

compression,

fracturing

right

elevation),
fourth

toe

1279-83
on

couch

(11/23/18
and

ER

visit

finding

for

edema

in

Plaintiff’s right lower extremity)).
Plaintiff thereafter visited Tricia Reich, NP, in January 2019
to

establish

examination.

primary
(See

care

Tr.

and

undergo

1197-1202.)

an

Nurse

annual
Reich

physical

noted

mild

bilateral ankle edema (see Tr. 1202), changed Plaintiff’s Lasix to
HCTZ (see Tr. 1197), and recommended that Plaintiff elevate her
legs in the afternoon, decrease her salt intake, and increase her
physical activity (id.). Significantly, following that examination
no further findings of edema exist in the record.

(See Tr. 1224-

46; see also Tr. 1235 (specifically noting no edema on April 9,
2019).)
As the above discussion makes clear, Plaintiff’s complaints of
lower extremity swelling occurred at most intermittently, and often
in

the

context

extremities.

of

specific

injuries

to

Plaintiff’s

lower

Moreover, two of the four instances in which a

provider recommended leg elevation came in the context of emergency
room visits for discrete injuries that resolved.

(See Tr. 1013,

1258.) The remaining two leg elevation statements constituted one28

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 28 of 30

time, isolated suggestions from Plaintiff’s primary care providers
(see Tr. 447, 1197); however, a recommendation that a patient
undertake certain ameliorative measures does not equate to a
physical restriction or a judgment about what Plaintiff can still
do despite her impairments, see Cruz v. Commissioner of Soc. Sec.
Admin., No. CV-19-04460, 2020 WL 3567033, at *2 (D. Ariz. July 1,
2020) (unpublished) (holding that “ALJ was not obligated to include
a need to elevate the legs when sitting in the RFC finding,”
because the doctor “merely recommended that [the p]laintiff elevate
her legs when sitting” and “did not state it was necessary for
work” (internal quotation marks and brackets omitted)), aff’d, No.
20-16651, 2021 WL 5357231 (9th Cir. Nov. 17, 2021) (unpublished);
Valentine v. Commissioner of Soc. Sec. Admin., No. 1:18CV1887, 2019
WL 4395177, at *11 (N.D. Ohio July 23, 2019) (unpublished) (finding
doctor’s “recommend[ation] . . . that [the plaintiff] elevate his
legs to treat his varicose veins” and “discharge instructions after
an emergency room visit . . . to elevate his legs above the level
of [his] heart when at rest” failed to qualify as “medical opinions
that

[the

functional

plaintiff]’s
limitations”

varicose
(internal

veins

caused

quotation

marks

work-related
omitted)),

recommendation adopted, 2019 WL 4394168 (N.D. Ohio Sept. 13, 2019)
(unpublished); Carpenter v. Berryhill, Civ. No. 16-179, 2017 WL
2909413, at *2 (E.D. Ky. May 12, 2017) (unpublished) (noting lack
of clarity whether cardiologist’s “advice that [the plaintiff]
29

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 29 of 30

elevate his legs qualifie[d] as a ‘medical opinion,’” because
recommendation “never specified how high, how often, or for how
long” the plaintiff must “elevate his legs” and “failed to explain
how his treatment recommendation would restrict [the plaintiff]’s
physical activity or limit his ability to perform work-related
functions”).
In sum, Plaintiff’s second assignment of error misses the
mark.
III. CONCLUSION
Plaintiff has not established an error warranting 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

15)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 18)
be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 10, 2022

30

Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 30 of 30