PATTERSON v. SAUL
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
Acting Commissioner of
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
(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
For the reasons that follow, the Court
should enter judgment for Defendant.
President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Case 1:20-cv-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
Upon denial of
reconsideration (Tr. 77-109, 122-27), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 120-21,
Plaintiff, her attorney, and a vocational expert (“VE”)
attended the hearing (Tr. 39-64), during which Plaintiff amended
subsequently ruled that Plaintiff did not qualify as disabled
within the meaning of the Act.
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.
“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)).
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:
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] . . . .
The prescribed period ends on June 30, 2022.
[Plaintiff] has not engaged in substantial gainful
activity since July 10, 2017, the amended alleged onset
[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.
. . .
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
. . . [Plaintiff] has the residual functional
capacity to perform 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.
frequently reach overhead with her upper right extremity.
. . .
[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.
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. . .
12. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from July 10, 2017, through the
date of this decision.
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
this case, Plaintiff has not shown entitlement to relief under the
extremely limited review standard.
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).
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
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)).
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
evidence as a reasonable mind might accept as adequate to support
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
“If there is evidence to justify a refusal to direct a
verdict were the case before a jury, then there is substantial
Hunter, 993 F.2d at 34 (internal quotation marks
“In reviewing for substantial evidence, the [C]ourt should not
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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
“The issue before [the reviewing court], therefore, is
not whether [the claimant] is disabled, but whether the ALJ’s
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application of the relevant law.”
Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
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]
‘sequential evaluation process’ to determine whether a claimant is
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
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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.
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
Id. at 179.5
Step four then requires the ALJ to assess
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
Case 1:20-cv-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.
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
Hines, 453 F.3d at 567.6
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
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.”).
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(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
Defendant contends otherwise, and seeks affirmance of the
(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
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,
“Neurofibromatosis is a genetic disorder of the nervous system.
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.
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.
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.
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
Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 10 of 30
An ALJ must determine a claimant’s exertional and
non-exertional capacity only after considering all of a claimant’s
impairments, as well as any related symptoms, including pain.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).
The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
See 20 C.F.R. § 404.1567.
Any non-exertional limitations
may further restrict a claimant’s ability to perform jobs within an
See 20 C.F.R. § 404.1569a(c).
An ALJ need not discuss every piece of evidence in making an
See Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014).
However, “the ALJ must both identify
conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)
(internal emphasis, quotation marks, and brackets omitted).
determination, the relevant administrative ruling states: “The RFC
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.”
Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:
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
function-by-function analysis necessitates remand.
Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015).
See Mascio v.
stated “that a per se rule is inappropriate given that remand would
prove futile in cases where the ALJ does not discuss functions that
are irrelevant or uncontested,” 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.
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),
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).
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
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
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
neurofibromatosis (see Tr. 23, 29), as well as her statement on a
neurofibromatosis and she was in pain more than half the day” (Tr.
23 (citing Tr. 238)), but found that Plaintiff’s
concerning the intensity, persistence, and limiting effects of
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).
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
‘entitled to rely exclusively on subjective evidence to prove’ her
symptoms are severe enough to prevent her from performing work
(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
[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)).
Plaintiff additionally objects to the ALJ’s
[Plaintiff]’s pain” (id. (citing Tr. 29)), asserting that “[t]he
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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
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
Here, Plaintiff has readily admitted that
document her neurofibromatosis, as well as that “her lesions are
visible to the eye.”
(Docket Entry 16 at 9.)
fibromyalgia, neurofibromatosis does not constitute a “disease that
does not produce [objective medical] evidence,” Arakas, 983 F.3d at
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
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
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
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.
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
techniques (for example, deteriorating nerve or muscle tissue) must
individual is under a disability.” (emphasis added)).
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Here, in compliance with Arakas, Hines, and Craig, the ALJ
considered the objective medical evidence as one part of her
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).
The ALJ also commented on the
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.
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
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
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).)
Plaintiff’s more chronic symptoms.
The record also
(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
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
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
complications” (Tr. 29), and that she “recovered from her surgeries
Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 19 of 30
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
impairments as “routine and conservative” (Tr. 29).
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
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
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
capable of lifting 50 pounds occasionally, 25 pounds frequently,
and six hours total of standing and walking in an eight-hour
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
(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
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
physicians indicating that the claimant [wa]s disabled or even
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.
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.
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
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
(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).)
Plaintiff deems that “oversight a
instructed by her doctors, would certainly impact her ability to
work a full-time job.”
Plaintiff’s contentions fall short.
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.”
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.
In a subsequent Disability Report, Plaintiff
commented only that her “[right] leg swells” (Tr. 258 (emphasis
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).)
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
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
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.
(unpublished) (rejecting the plaintiff’s “assert[ion] that the ALJ
. . . [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
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
Beyond Plaintiff’s failure to raise leg elevation as an issue
before the ALJ, Plaintiff has additionally not shown that any lower
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
physician, Dr. Tabe, of leg swelling, right greater than left.
Plaintiff’s right leg, but normal gait and no neurological deficit,
tenderness, or redness.
Dr. Tabe prescribed Lasix and
potassium supplements and ordered a venous Doppler ultrasound.
At a follow-up visit on December 8, 2017, Dr. Tabe informed
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).)
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
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
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
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.
Dr. Muradi did note non-pitting edema in Plaintiff’s
neurological function (id.), and did not advise
elevate her legs
(see Tr. 474).
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).
to elevate her legs (see Tr. 453, 1044, 1152).
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,
Plaintiff’s right lower extremity)).
Plaintiff thereafter visited Tricia Reich, NP, in January 2019
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,
As the above discussion makes clear, Plaintiff’s complaints of
lower extremity swelling occurred at most intermittently, and often
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
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]
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
In sum, Plaintiff’s second assignment of error misses the
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
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
Case 1:20-cv-01030-CCE-LPA Document 20 Filed 01/10/22 Page 30 of 30
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