CHESNEY v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 3/5/2025; that the Commissioner's decision finding no disability is AFFIRMED, and that this action is DISMISSED with prejudice. (sh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KRISTIN E. C.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
LELAND C. DUDEK,
Acting Commissioner of Social
Security,
Defendant.1

1:24CV500

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kristin E. C., brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of the
final decision of Defendant, the Acting Commissioner of Social
Security

(the

“Commissioner”),

denying

Plaintiff’s

claim

for

Disability Insurance Benefits (“DIB”) and Disabled Widow’s Benefits
(“DWB”).

(Docket Entry 2.)

The Commissioner has filed the

certified administrative record (Docket Entry 5 (cited herein as
“Tr. __”)), and both parties have submitted dispositive briefs in
accordance
Security

with

Actions

Rule

5

of

the

Supplemental

under

42

U.S.C.

§

405(g)

Rules

for

(Docket

Social

Entry

11

(Plaintiff’s Brief); Docket Entry 14 (Commissioner’s Memorandum);

1

President Donald J. Trump appointed Leland C. Dudek as the Acting
Commissioner of the Social Security Administration on February 17, 2025.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland C. Dudek
should substitute for Martin J. O’Malley as the defendant in this suit. No
further action need be taken 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).

Docket Entry 15 (Plaintiff’s Reply)). For the reasons that follow,
the Court will enter judgment for the Commissioner.2
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 164-71), alleging a disability
onset date of March 31, 2020 (see Tr. 164, 167).
that

application

initially

(Tr.

84-93,

Upon denial of

107-11)

and

on

reconsideration (Tr. 94-102, 113-17), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 118-19).
Following the death of her husband on December 21, 2022, Plaintiff
added a claim for DWB.

(See Tr. 42, 184-93.)3

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 40-78.)

The ALJ subsequently ruled that Plaintiff did not

2

On consent of the parties, this “case [wa]s referred to [the undersigned]
United States Magistrate Judge [] to conduct all proceedings . . ., to order the
entry of judgment, and to conduct all post-judgment proceedings []herein.”
(Docket Entry 8 at 1.)
3

“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 December 21, 2022, the date her
husband died (see Tr. 42, 187) and, thus, Plaintiff had to establish that her
disability began on or before April 30, 2026, 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) (Webster, M.J.) (citing 20 C.F.R. §§ 404.1505(a),
404.1520(a)(2)), recommendation adopted, slip op. (M.D.N.C. Feb. 18, 2014)
(Eagles, J.).

2

qualify as disabled under the Act.

(Tr. 20-38.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-5,
161-63), thereby making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In

rendering

that

decision,

the

ALJ

made

the

following

findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2025.
2.
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] . . . .
3.
The prescribed period [for DWB] ends on April 30,
2026.
4.
[Plaintiff] has not engaged in substantial gainful
activity since March 31, 2020, the alleged onset date.
5.
[Plaintiff] has the following severe impairments:
lumbar degenerative disc disease and psoriatic arthritis.
. . .
6.
[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.
. . .
7.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except she could
occasionally climb ladders, ropes, and scaffolds and
frequently climb ramps and stairs.
. . .
8.
[Plaintiff] is capable of performing past relevant
work as a Medical Assistant and Clinic Clerk. This work
3

does not require the performance of work precluded by
[Plaintiff]’s residual functional capacity.
. . .
In addition to past relevant work, there are other jobs
that exist in significant numbers in the national economy
that [Plaintiff] can also perform, considering [her] age,
education, work experience, transferable skills, and
residual functional capacity.
. . .
9.
[Plaintiff] has not been under a disability, as
defined in the . . . Act, from March 31, 2020, through
the date of th[e ALJ’s] decision.
(Tr.

25-33

(bold

font

and

internal

II.

DISCUSSION

parenthetical

citations

omitted).)

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

Hines v.

However, “the scope

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

Plaintiff has

not established entitlement to relief under the extremely limited
review standard.
A.

Standard of Review

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

Instead, “a

reviewing

of

court

must

uphold

the

factual

findings

the

ALJ

[underlying the denial of benefits] if they are supported by
4

substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“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 Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
5

was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
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 . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account

a

claimant’s

age,

education,

and

work

experience

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

Id.

regulations

process’

establish

a

‘sequential

evaluation

in

“These
to

determine whether a claimant is disabled.” Id. (internal citations
omitted).
This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
6

that the claimant does not possess the residual functional capacity
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any
other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).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.
determines

if

the

claimant

benefits are denied.”

is

‘severely’

The second step

disabled.

If

not,

Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177.

Alternatively, if a claimant clears steps one and

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

Id. at 179.5

Step four

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
[government] . . . .” 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

7

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.

work”; if so, the claimant

Id. at 179-80.

However, if the

claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.

If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.
B.

Hines, 453 F.3d at 567.6

Assignment of Error

Plaintiff’s first and only assignment of error maintains that
“[t]he RFC determination is not supported by substantial evidence
because

the

ALJ

failed

to

properly

evaluate

[rheumatologist] Dr. [Robert J.] Kipnis.”

the

opinion

of

(Docket Entry 11 at 7

(bold font and block formatting omitted); see also Docket Entry 15

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.
6

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

8

at 1-2.)

In particular, Plaintiff faults the ALJ for failing to

“identify . . . and independently evaluate” Dr. Kipnis’s opinion
that “Plaintiff had ‘achieved maximal response to therapy’” and
“‘continue[d] to have debilitating peripheral joint complaints and
low back pain which prevent[ed] her from working, even in a
sedentary position, on a regular basis.’”
(quoting Tr. 545).)

(Docket Entry 11 at 9

In Plaintiff’s view, the ALJ’s rationale for

rejecting Dr. Kipnis’s opinion, i.e., because he “‘assessed [it] in
connection

with

[Plaintiff]’s

short

and

long-term

disability

claims’” (id. (quoting Tr. 30)), qualifies as “meaningless” (id.),
because

Dr.

Kipnis’s

“medical

opinion

is

about

[Plaintiff’s]

exertional limitations, not whether she qualified under th[e SSA]’s
metrics” (id. at 10).

According to Plaintiff, “[t]he ALJ is

ordered by the [SSA]’s own regulations to determine if Dr. Kipnis’
opinion is supported and consistent[, and] . . . should have []
determined that the opinion was persuasive and adopted Dr. Kipnis’
less

than

sedentary

limitations[,

which]

.

.

.

would

have

eliminated Plaintiff’s past relevant work . . ., likely resulting
in

a

favorable

determination.”

(Id.

at

11.)

Plaintiff’s

contentions miss the mark.
For benefits applications filed on or after March 27, 2017
(such as Plaintiff’s (see Tr. 164-71, 184-93)), the SSA has enacted
substantial revisions to the regulations governing the evaluation
of

opinion

evidence,

see

Revisions
9

to

Rules

Regarding

the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL
168819

(Jan.

narrowed

18,

the

2017).

Significantly,

definition

of

“medical

the

new

opinions”

regulations
by

removing

“statements . . . that reflect judgments about the nature and
severity

of

claimant’s]

[a

claimant’s]

symptoms,

impairment(s),

diagnosis

and

including

prognosis”

from

[the
that

definition, compare 20 C.F.R. § 404.1527(a)(1) (applicable to
claims filed before Mar. 27, 2017) (defining “medical opinions” as
“statements . . . that reflect judgments about the nature and
severity

of

[a

claimant’s]

impairment(s),

including

[the

claimant’s] symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant’s] physical
and

mental

restrictions”

(emphasis

added)),

with

20

C.F.R.

§ 404.1513(a)(2) (applicable to claims filed on or after Mar. 27,
2017) (defining “medical opinion” as “statement . . . about what [a
claimant] can still do despite [his or her] impairment(s) and
whether

[the

claimant]

ha[s]

one

or

more

impairment-related

limitations or restrictions in the [] abilities” to perform the
physical, mental, or other “demands of work activities” or “to
adapt

to

environmental

conditions”),

and

reclassifying

such

judgments as “other medical evidence,” 20 C.F.R. § 404.1513(a)(3)
(defining “[o]ther medical evidence” as “evidence from a medical
source that is not objective medical evidence or a medical opinion,
including judgments about the nature and severity of [a claimant’s]
10

impairments, [his or her] medical history, clinical findings,
diagnosis,

treatment

prescribed

with

response,

or

prognosis”

(emphasis added)).
Furthermore, the new regulations clarify the types of evidence
deemed “inherently neither valuable nor persuasive to the issue of
whether [a claimant is] disabled . . . under the Act.”
§

404.1520b(c).

Relevant

to

this

case,

20 C.F.R.

“inherently

neither

valuable nor persuasive” evidence, id., includes “[s]tatements on
issues reserved to the Commissioner” which “would direct [the
ALJ’s]

determination

or

decision

that

[a

claimant

is] . . . disabled . . . within the meaning of the Act,” 20 C.F.R.
§ 404.1520b(c)(3), such as “[s]tatements that [a claimant is] or
[is] not disabled, . . . able to work, or able to perform regular
or continuing work,” 20 C.F.R. § 404.1520b(c)(3)(i), as well as
“[s]tatements about what [a claimant’s RFC] is using [the SSA’s]
programmatic terms about the functional exertional levels in Part
404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions
about [the claimant’s] functional abilities and limitations,” 20
C.F.R. § 404.1520b(c)(3)(v). The new regulations do not require an
ALJ to “provide any analysis about how [he or she] considered such

11

evidence

in

[the]

determination

or

decision.”

20

C.F.R.

§ 404.1520b(c) (emphasis added).7
On May 5, 2021, Dr. Kipnis addressed a letter “To Whom It May
Concern”

which

contained,

in

pertinent

part,

the

following

statements:
[Plaintiff] is currently under my medical care and may
not return to [sic] at this time. Unfortunately, despite
aggressive
medical
therapy
(intermittent
steroid
injections, Stelara, leflunomide) she continues to have
debilitating peripheral joint complaints and low back
pain which prevent her from working, even in a sedentary
position, on a regular basis. She should be considered
for permanent disability as she is felt to have achieved
maximal response to therapy.
(Tr. 545.)
The ALJ evaluated those statements by Dr. Kipnis, together
with similar statements from other providers, as follows:
The multiple statements from medical sources that
[Plaintiff] is debilitated, not employable at this time,
unable to work, should be considered for disability, or
is prevented from working were assessed in connection
7
Moreover, under the new regulations, ALJs need not assign an evidentiary
weight to medical opinions or accord special deference to treating source
opinions. See 20 C.F.R. § 404.1520c(a) (providing that ALJs “will not defer or
give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) . . ., including those from [a claimant’s] medical sources”).
Instead, an ALJ must determine and “articulate in [the] . . . decision how
persuasive [he or she] find[s] all of the medical opinions . . . in [a
claimant’s] case record.”
20 C.F.R. § 404.1520c(b) (emphasis added).
Additionally, the SSA deems supportability and consistency “the most important
factors” and thus the ALJ must address those two factors in evaluating the
persuasiveness of a medical opinion.
20 C.F.R. § 404.1520c(b)(2).
“Supportability” means “[t]he extent to which a medical source’s opinion is
supported by relevant objective medical evidence and the source’s supporting
explanation.”
Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.
§ 404.1520c(c)(1). “Consistency” denotes “the extent to which the opinion is
consistent with the evidence from other medical sources and nonmedical sources
in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.
§ 404.1520c(c)(2).

12

with [her] short- and long-term disability claims. ([Tr.
281-86 (11/19/20 long-term disability approval letter
finding Plaintiff “unable to perform the[] duties [of her
Clinic Clerk job]” (Tr. 281)), 545 (Dr. Kipnis’s 5/5/21
letter), 668 (statement from Dr. Gordon Lam on 11/10/22
that Plaintiff’s “various medical conditions . . .
requiring aggressive immunomodulatory therapies . . .
prevent her from working, even in a sedentary position on
a regular basis,” and that “[h]er consideration for
permanent disability should be maintained”), 697-98
(2/23/23 statement from Dr. Lam deeming Plaintiff
“debilitated,”
“not
employable,”
and
“unable
to
work”).])[] Moreover, whether an individual is disabled
or unable to work is a finding that is reserved to the
Commissioner.
The definition of disability involves
legal, medical and vocational issues and physicians,
treating or otherwise, do not always consider these
factors.
(Tr. 30 (second internal parenthetical citation omitted).) For the
reasons discussed in more detail below, because Dr. Kipnis’s
statements do not qualify as “medical opinions” under Section
404.1513(a)(2), the ALJ did not err by failing to assess the
persuasiveness of those statements.
To begin, Dr. Kipnis’s statements that Plaintiff continued to
experience “debilitating peripheral joint complaints and low back
pain” despite “aggressive medical therapy (intermittent steroid
injections, Stelara, leflunomide),” and that she had “achieved
maximal

response

to

therapy”

(Tr.

545),

clearly

reflect

Dr.

Kipnis’s “judgments about the nature and severity of [Plaintiff’s]
impairments, . . . clinical findings, [and] treatment prescribed
with response” and thus qualify as “other medical evidence” under
20 C.F.R. § 404.1513(a)(3) (emphasis added), rather than “medical
13

opinions” under Section 404.1513(a)(2). See Coles v. Kijakazi, No.
1:22CV199, 2023 WL 2898680, at *12 (N.D. Fla. Mar. 10, 2023)
(unpublished) (“Statements by a medical source reflecting judgments
about a claimant’s diagnosis and prognosis are not considered
medical

opinions

perspectives

because

about

the

they

do

not

claimant’s

necessarily

functional

provide

abilities

and

limitations.”), recommendation adopted, 2023 WL 2895732 (N.D. Fla.
Apr. 11, 2023) (unpublished), aff’d sub nom. Coles v. Commissioner,
Soc. Sec. Admin., No. 23-11944, 2024 WL 3311318 (11th Cir. July 5,
2024) (unpublished).
Correspondingly,

Dr.

Kipnis’s

statement

that

Plaintiff’s

symptoms “prevent her from working, even in a sedentary position,
on a regular basis” (Tr. 545 (emphasis added)) clearly qualifies as
a “[s]tatement[] about what [Plaintiff’s RFC] is using [the SSA’s]
programmatic terms about the functional exertional levels in Part
404,

Subpart

description[]

P,

Appendix

about

2,

Rule

[Plaintiff’s]

200.00
functional

instead

of

[a]

abilities

and

limitations,” 20 C.F.R. § 404.1520b(c)(3)(v) (emphasis added), and
Dr. Kipnis’s recommendation that “[Plaintiff] should be considered
for permanent disability” (Tr. 545 (emphasis added)) constitutes a
“[s]tatement[] that [Plaintiff is] or [is] not disabled, . . . able
to work, or able to perform regular or continuing work,” 20 C.F.R.
§ 404.1520b(c)(3)(i).

The regulations deem such “[s]tatements on

issues reserved to the Commissioner,” 20 C.F.R. § 404.1520b(c)(3),
14

“inherently neither valuable nor persuasive to the issue of whether
[Plaintiff

is]

disabled

.

.

.

under

the

Act,”

20

C.F.R.

§ 404.1520b(c), and thus did not require the ALJ to “provide any
analysis

about

how

[she]

considered

such

evidence

in

[the]

determination or decision,” 20 C.F.R. § 404.1520b(c) (emphasis
added).
Another district court recently evaluated an analogous set of
statements from a treating provider and found that those statements
did not constitute “medical opinions” under the new regulations,
providing the following, persuasive rationale:
[Dr. Bass’s] Medical Statement provides in relevant part
as follows:
[The plaintiff]
is currently under my
long-term neurological care and management for
highly-active
relapsing-remittingg
[sic]
multiple sclerosis. Due to this progressive,
inflammatory, neurodegenerative disease, the
[plaintiff] is suffering from double vision,
dizziness, imbalance, diffuse shooting pain,
numbness in the extremities, fatigue, and
trouble with over all mobility.
The
[plaintiff] has started treatment with Gilenya
in an attempt to reduce further clinical
relapse, reduce disease activity on MRI, and
slow down disability progression.
However,
unfortunately, due to the [plaintiff]’s
current neurological deficit and damage, she
is medically considered totally physically
disabled and UNABLE to work at this point.
. . .
[The plaintiff] argues that Dr. Bass’s statement
constitutes a “medical opinion” that had to be analyzed
for consistency and supportability, and the ALJ’s failure
to do so was reversible error. The [c]ourt disagrees.
15

. . .
[T]he ALJ did not explain how he considered the
supportability and consistency factors for Dr. Bass’s
opinion, instead stating summarily that [the ALJ]
considered the opinion “unpersuasive” because “the
determination whether a claimant is disabled and unable
to
work
are
legal
issues
reserved
to
the
Commissioner.” . . .
The ALJ did not err in his
treatment of Dr. Bass’s statement because it is not a
medical opinion.
Section [404.]1520b is clear that
[S]ection [404.]1520c does not require the ALJ to provide
any analysis about how statements that a claimant is
disabled or unable to work were considered.
Without
these statements, Dr. Bass’s statement is merely a
statement of symptoms (“the [plaintiff] is suffering from
double vision, dizziness, imbalance, diffuse shooting
pain, numbness in the extremities, fatigue, and trouble
with over all mobility”) and treatment, but does not
contain “an [acceptable] expression of judgment regarding
a claimant’s capabilities and restrictions.” [Winston v.
Berryhill, 755 F. App’x 395, 403 (5th Cir. 2018).]
Without this latter portion, the statement is not a
“medical opinion” . . . .
Dr. Bass’s statement was
therefore not required to be evaluated under the factors
listed
in
20
C.F.R.
§
[404.]1520c,
including
supportability and consistency.
[The plaintiff] contends that the ALJ was nevertheless
required to evaluate the supportability and consistency
of Dr. Bass’s statement that [the plaintiff] suffers from
double vision, dizziness, imbalance, diffuse shooting
pain, numbness, fatigue, and limited mobility due to her
multiple sclerosis under § 404.1520c. But § 404.1520c
applies only to medical opinions and the Commissioner
rightly argues that this portion of the statement would
be
considered
“other
medical
evidence[]”
[under
§ 404.1513(a)(3)].
Myers v. Saul, No. 20CV445, 2021 WL 4025993, at *4-7 (W.D. Tex.
Sept. 3, 2021) (unpublished).
In
Kipnis’s

Plaintiff’s
opinion

Reply,

that

she

places

Plaintiff’s
16

great

symptoms

emphasis

“prevent

on

Dr.

her

from

working, even in a sedentary position, on a regular basis” (Docket
Entry 15 at 2 (quoting Tr. 545) (emphasis added by Plaintiff)), and
argues (without citation to authority) that “Dr. Kipnis’ letter
absolutely

contains

an

opinion

about

Plaintiff’s

functional

limitations; he believes Plaintiff cannot perform even sedentary
work” (id. (citing Tr. 545)).

According to Plaintiff, “[a]ny

argument to the contrary is not logical or truthful and must be
rejected by this Court.”

(Id.)

Contrary to Plaintiff’s (unsupported) assertion, courts that
have considered medical source statements that a claimant could not
perform even sedentary work have consistently held that such
statements do not constitute “medical opinions” under the new
regulations (and even under the prior definition of “medical
opinion” applicable to claims filed before March 27, 2017), because
they amount to statements that a claimant cannot work, rather than
opinions setting forth specific functional limitations. See, e.g.,
Mitchell v. Kijakazi, No. 23CV60321, 2023 WL 6907806, at *4 (S.D.
Fla. Oct. 19, 2023) (unpublished) (“[The treating physician’s]
statement regarding [the p]laintiff’s inability to perform even
sedentary work either does not qualify as a medical opinion, or at
the very least, is a statement on an issue reserved to the
Commissioner. . . .

[B]y opining that [the p]laintiff could not

perform work even at the sedentary level (the lowest exertional
level), [the physician] effectively opined that [the p]laintiff is
17

unable to work. Moreover, [the physician] used a programmatic term
regarding [the p]laintiff’s functional exertional level rather than
describing

any

of

[the

p]laintiff’s

functional

abilities

or

limitations.”); Hicks v. Commissioner of Soc. Sec. Admin., No.
3:21CV113, 2022 WL 3282273, at *13 (N.D. Ohio May 25, 2022)
(unpublished) (deeming ALJ’s finding that “doctor’s statement that
the claimant [wa]s . . . unable to perform even sedentary work” did
not qualify as medical opinion “consistent with the governing
regulations”) (objections to recommendation pending); Tatum v.
Commissioner of Soc. Sec., No. 1:19CV1263, 2020 WL 7640588, at *13
(E.D. Cal. Dec. 23, 2020) (unpublished) (finding no error in ALJ’s
rejection of treating physicians’ statements “that [the p]laintiff
could not sustain even sedentary work activity,” because such
statements “are not medical opinions, but are opinions on issues
reserved for the Commissioner”); Hounchell v. Commissioner of Soc.
Sec., No. 1:15CV660, 2016 WL 8667829, at *8 (S.D. Ohio Oct. 7,
2016) (unpublished) (holding that psychiatrist’s statement that the
plaintiff “[wa]s unable to perform even sedentary work” constituted
not a “medical opinion[,] . . . but instead [an] issue[] reserved
to the Commissioner”), recommendation adopted, 2016 WL 6395819
(S.D. Ohio Oct. 28, 2106 (unpublished); Phillips v. Colvin, No.
1:13CV3321,

2014

WL

6455395,

at

*15

(D.S.C.

Nov.

13,

2014)

(unpublished) (“[The physician]’s opinions that [the p]laintiff’s
complaints were severe enough to preclude even sedentary work on a
18

full-time

basis

.

.

.

addressed

an

issue

reserved

to

the

Commissioner because, if accepted, they would be dispositive of the
claim.”); Koerner v. Astrue, No. 1:09CV111, 2010 WL 3221912, at *6
(W.D.

Ky.

June

3,

2010)

(unpublished)

(deeming

physician’s

statement that “even sedentary work would cause [the plaintiff] to
have significant pain and discomfort . . . not [a] genuine medical
opinion[] . . . entitled to any special significance” (brackets and
internal quotation marks omitted)), recommendation adopted, 2010 WL
3221910 (W.D. Ky. Aug. 13, 2010) (unpublished).
In light of the foregoing analysis, Plaintiff has not shown
that the ALJ erred by failing to evaluate the persuasiveness of Dr.
Kipnis’s statements in his letter dated May 5, 2021, and, thus,
Plaintiff’s sole assignment of error falls short.
III. CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding

no

disability

is

AFFIRMED,

and

that

this

action

DISMISSED with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 5, 2025

19

is