WARD v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TINA KAYE WARD, )

)

Plaintiff, )

)

v. ) 1:19CV1239

)

ANDREW M. SAUL, )

Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Tina Kaye Ward, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security,

denying Plaintiff’s claim for Disability Insurance Benefits

(“DIB”). (Docket Entry 2.) Defendant has filed the certified

administrative record (Docket Entry 8 (cited herein as “Tr. __”)),

and both parties have moved for judgment (Docket Entries 11, 13;

see also Docket Entry 12 (Plaintiff’s Memorandum); Docket Entry 14

(Defendant’s Memorandum)). For the reasons that follow, the Court

should enter judgment for Defendant.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of

December 31, 2015. (Tr. 212-18.) Upon denial of that application

initially (Tr. 80-93, 109-12) and on reconsideration (Tr. 94-108,

117-24), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 125-27). Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 41-79.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 19-34.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

188-93, 319-20), thereby making the ALJ’s ruling the Commissioner’s

final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2021.

. . .

2. [Plaintiff] engaged in substantial gainful activity

during the following periods: January 2016 through March

2016.

. . .

3. [ T]here has been a continuous 12-month period

during which [Plaintiff] did not engage in substantial

gainful activity. The remaining findings address the

period [Plaintiff] did not engage in substantial gainful

activity.

4. [Plaintiff] has the following severe impairments:

degenerative disc disease with radiculopathy, status post

surgery; and bursitis and osteoarthritis of the right

hip.

. . .

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.

2

. . .

6. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . except: she

occasionally can balance, crouch, kneel, stoop, and climb

ramps, stairs, ladders, and scaffolds; she frequently can

push, pull, reach (other than overhead reaching), handle,

finger, and feel bilaterally; she occasionally can reach

overhead; she occasionally can push and pull and operate

foot controls with her lower extremities; she needs to

avoid work environments with bright lights and hazards

such as unprotected heights, machines with moving

mechanical parts, and driving employer vehicles; she will

be off task five percent of the day due to alternating

between sitting and standing and or attention and

concentration lapses; she will miss work once a month.

. . .

7. [Plaintiff] is capable of performing past relevant

work as a stylist, [Dictionary of Occupational Titles

(‘DOT’)] number 332.271-018, which is light work, with a[

Specific Vocational Preparation (‘SVP’)] of 6. This work

does not require the performance of work-related

activities precluded by [Plaintiff]’s residual functional

capacity.

. . .

8. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from December 31, 2015, through

the date of this decision.

(Tr. 24-34 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”

3

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 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 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

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adopted by the Social Security Commissioner].” Mastro, 270 F.3d at

176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is not whether [the claimant] is disabled,

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

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.” Craig v. Chater, 76 F.3d

585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

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)).1 “To regularize the

1 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

5

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 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

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).2 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

2 “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).

6

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.3 Step four

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

claimant can “perform past relevant work”; if so, the claimant

does not qualify as disabled. 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]

3 “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 work-

related 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

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.4

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ’s failure to properly evaluate and account for

[Plaintiff]’s mental limitations in the RFC is harmful error”

(Docket Entry 12 at 5 (bold font and single-spacing omitted)); and

2) “[t]he ALJ’s failure to conduct a proper

function-by-function analysis of [Plaintiff]’s impairments and

failure to provide a logical bridge between the evidence in the

record, his conclusions and his RFC findings is error that prevents

the ALJ’s conclusions regarding [Plaintiff]’s RFC from being

supported by substantial evidence” (id. at 12 (bold font and

single-spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 5-24.)

4 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

1. Mental Limitations

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

ALJ’s failure to properly evaluate and account for [Plaintiff]’s

mental limitations in the RFC is harmful error.” (Docket Entry 12

at 5 (bold font and single-spacing omitted).) More specifically,

Plaintiff asserts that “the ALJ fail[ed] to analyze the impact that

[Plaintiff]’s mild limitations in the functional area of

interacting with others and/or adapting or managing oneself would

have on her RFC” and “provide[d] only a cursory discussion of the

evidence that [the ALJ] contend[ed] support[ed] his conclusions.”

(Id. at 6 (citing Tr. 26-27).) According to Plaintiff, “the ALJ’s

failure to account for these limitations in the RFC is harmful

. . . since the ALJ determined that [Plaintiff] could return to a

skilled position that requires a high degree of social interaction

with clients.” (Id.; see also id. at 6-7 (citing Selected

Characteristics of Occupations Defined in the Revised [DOT], Pt. A,

§ 09.02.01 (“Cosmetology”), No. 332.271.-018 (“Hair Stylist”) (U.S.

Dep’t of Labor 1993) (“SCO”), for proposition that job of Stylist

requires frequent talking and hearing), 8 (citing DOT, App’x B

(“Explanation of Data, People and Things”), 1991 WL 688701, to

argue that “job requirements of Stylist include significant social

interaction, customer service, reasoning and problem solving

abilities”).) Plaintiff points out that this Court has found

remand appropriate under Mascio v. Colvin, 780 F.2d 632, 638 (4th

9

Cir. 2015), where the “‘ALJ[] failfed] to account for mild

limitations in the RFC.’” (Id. at 11 (quoting McMichael v. Colvin,

No. 1:15CV528, 2016 WL 4556768, at *12 (M.D.N.C. Aug. 31, 2016)

(unpublished) (Webster, M.J.) (brackets added), recommendation

adopted, slip op. (M.D.N.C Sept. 29, 2016) (Schroeder, J.), and

citing Ashcraft v. Colvin, No. 3:13CV417, 2015 WL 9304561, at *6-11

(W.D.N.C. Dec. 21, 2015) (unpublished), and Wedwick v. Colvin, No.

2:14CV267, 2015 WL 4744389, at *22-23 (E.D. Va. Aug. 7, 2015)

(unpublished) (district judge adopting magistrate judge’s

recommendation)).} Plaintiff’s contentions miss the mark.

The United States Court of Appeals for the Fourth Circuit, in

finding that an ALJ failed to account for the claimant’s moderate

limitation in concentration, persistence, or pace (“CPP”) in the

RFC, held in Mascio that “the ability to perform simple tasks

differs from the ability to stay on task” and that “[o]nly the

latter limitation would account for a claimant’s limitation in

[CPP] .” Mascio, 780 F.3d at 638. However, as a neighboring

district court has explained:

Mascio does not broadly dictate that a claimant’s

moderate impairment in [CPP] always translates into a

limitation in the RFC. Rather, Mascio underscores the

ALJ’s duty to adequately review the evidence and explain

the decision... .

Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10 (W.D. Va.

Aug. 20, 2015) (magistrate judge’s recommendation adopted by

district judge) (unpublished) (emphasis added); see also Mascio,

10

780 F.3d at 638 (“Perhaps the ALJ can explain why [the plaintiff’s]

moderate limitation in [CPP] at step three does not translate into

a limitation in [her RFC].” (emphasis added)).

Furthermore, it remains unclear whether Mascio applies to mild

as opposed to moderate limitations, and to limitations in broad

functional areas other than CPP. As an initial matter, contrary to

Plaintiff’s assertion that Wedwick remanded under Mascio due to the

ALJ’s failure to address a mild limitation in CPP (see Docket Entry

12 at 9), that court actually addressed a moderate limitation in

CPP, Wedwick, 2015 WL 4744389, at *22. Furthermore, although

McMichael and Ashcraft both remanded for an ALJ’s failure to

adequately account for mild limitations in the broad areas of

functioning, see McMichael, 2016 WL 4556768, at *2-6 (CPP);

Ashcraft, 2015 WL 9304561, at *6-11 (daily activities, social

functioning, and CPP), many cases exist to the contrary, see Martin

v. Saul, No. 9:18CV3172, 2020 WL 2813788, at *8 (D.S.C. Jan. 16,

2020) (unpublished) (noting that “most district court decisions [in

the Fourth Circuit] have found to the contrary”), recommendation

adopted, 2020 WL 1329395 (D.S.C. Mar. 23, 2020) (unpublished);

Morrison v. Berryhill, No. 1:16CV337, 2018 WL 1311207, at *5

(W.D.N.C. Feb. 8, 2018) (unpublished) (finding that the plaintiff's

“heavy reliance on Mascio .. . [wa]s misplaced” and noting that,

since “about a month after the Mascio decision,” many cases in the

Western District of North Carolina “have held that the requirements

11

of Mascio do not necessarily apply where a plaintiff is found to

have mild limitations in CPP”), recommendation adopted, 2018 WL

1308139 (W.D.N.C. Mar. 13, 2018) (unpublished); Thorp v. Berryhill,

3:16CV70, 2018 WL 325318, at *3 (W.D.N.C. Jan. 8, 2018)

(unpublished) (holding that the “case differ[ed] markedly from

Mascio” because the plaintiff “had mild difficulties maintaining

[CPP]” (emphasis added)); Williamson v. Berryhill, No. 7:16CV284,

2017 WL 4293408, at *5 (E.D.N.C. Sept. 27, 2017) (unpublished)

(deeming the “plaintiff’s reliance on Mascio [] inapt” where ALJ

found “only mild limitations in activities of daily living, social

functioning, or CPP”); Franklin v. Berryhill, 1:16CV211, 2017 WL

4274190, at *2-3 (W.D.N.C. Sept. 26, 2017) (unpublished) (“This

Court does not interpret Mascio’s holding as applying to all

restrictions.”); Gilbert v. Berryhill, 5:16CV100, 2017 WL 1196452,

at *3 (W.D.N.C. Mar. 29, 2017) (unpublished) (“As this case

concerns only ‘mild difficulties,’ it does not trigger the RFC

discussion requirements of Mascio per se.” (emphasis § added)

(internal quotation marks omitted)); Guest v. Colvin, No.

1:15cV776, 2016 WL 4007612, at *6 (M.D.N.C. July 26, 2016)

(unpublished) (expressing “doubt [] as to whether Mascio’s holding

with regards to [CPP] should apply to” a case involving mild

limitations in social functioning, “particularly given that the

Fourth Circuit made clear its CPP-based holding rested on the

distinction between the ability to perform simple tasks and the

12

ability to stay on task, and such a distinction does not clearly

apply in the social functioning context” (internal citation

omitted), recommendation adopted, slip op. (M.D.N.C. Aug. 24, 2016)

(Schroeder, J.); Thompson v. Colvin, 1:15CV234, 2016 WL 3610161, at

*3 (W.D.N.C. July 1, 2016) (unpublished) (“The Court does not read

Mascio to impose a duty on ALJs to automatically or necessarily

account for mild limitations in the RFC.” (emphasis added)). The

weight of post-Mascio authority among the district courts in the

Fourth Circuit does not favor extending Mascio to mild limitations

in the broad functional areas.

Moreover, even assuming Mascio applies to 1) mild limitations

in the broad areas of functioning (i.e., the lowest of four levels

above “none”), and 2) functional areas other than CPP, Plaintiff

has not shown prejudicial error here. First, the ALJ included an

allowance for Plaintiff to remain off-task for up to five percent

of the workday in the RFC (see Tr. 28), and Plaintiff neither

argues that such an allowance fails to account for her mild

deficits in social interaction and adaptation, nor suggests what

additional limitations the ALJ should have included in the RFC to

account for those mild limitations (see Docket Entry 12 at 5-12).

That failure precludes relief. See Humphries v. Colvin, No.

3:15CV376, 2016 WL 8223429, at *5 (W.D.N.C. Oct. 17, 2016)

(rejecting similar claim where “it d[id] not appear that [the

pllaintiff [wa]s actually alleging based on contradictory evidence

13

in the record that she ha[d] limitations that [we]re not addressed

by the RFC; rather, she [wa]s simply arguing that her ‘at most,

mild limitations’ [we]re cause for remand because the ALJ’s

decision d[id] not apply the same analysis the Fourth Circuit [in

Mascio] would require for review of ‘moderate’ limitations in

[CPP]” (emphasis added)), recommendation adopted, 2017 WL 525666

(W.D.N.C. Feb. 8, 2017) (unpublished).

Second, the ALJ’s step two evaluation cites to substantial

evidence to support the lack of additional mental restrictions in

the RFC. The ALJ provided the following analysis to support his

findings of mild limitation in interaction and adaptation:

The second functional area is interacting with others.

In this area, [Plaintiff] has mild limitation. In her

function report, [Plaintiff] denied having problems

getting along with others. Her husband reported that

[Plaintiff] had engaged in a verbal altercation with an

employee at _ her workplace. [(Tr. 274.)] However, that

appears to be an isolated incident. Her husband also

checked that [Plaintiff] did not have a problem getting

along with others and noted that she was working three to

five days a week. He also noted that she got along well

with authority figures and handled stress well. [ (Tr.

272-74.) ] In a September 2017 report, [Plaintiff]

reported that she had increased stress at home and

complained of panic attacks at night two to three times

a week. [(Tr. 1045.)] Medical records for the period

under consideration do not show that she has more than

mild limitation in this area.

The fourth functional area is adapting or managing

oneself. In this area, [Plaintiff] has a mild

limitation. In a function report, [she] indicated that

she could go out on her own and did not need to be

reminded to go places. [(Tr. 264.)] As discussed [in

14

subsequent portions of the ALJ’s decision], the record

documents violations of [Plaintiff]’s narcotic contracts.

However, [the ALJ] do[es] not find emergency room records

of injury from inability to see and avoid hazardous

conditions or behaviors. [Plaintiff]’s medical records

for the period under consideration do not show that she

has more than mild limitation in this area.

(Tr. 26-27.)

The above-quoted discussion clarifies why, notwithstanding

finding Plaintiff mildly limited in interaction and adaptation, the

ALJ did not include additional mental limitations in the RFC.

Although the ALJ noted the reports of Plaintiff’s altercation with

a co-worker in the past and nighttime panic attacks, he also found

the altercation “an isolated incident,” noted that both Plaintiff

and her husband denied that Plaintiff had problems getting along

with others, and observed that Plaintiff’s husband felt that

Plaintiff “handled stress well.” (Tr. 26.) With regard to

adaptation, although the ALJ acknowledged Plaintiff’s violations of

her narcotics agreements, he pointed out that those violations had

not resulted in injuries. (See Tr. 27.) The ALJ further noted

that Plaintiff’s “medical records . . . do not show that she

received more than routine mental health care” and that she

remained “able to take care of her personal grooming, cook quick

meals, do basic cleaning, drive, shop, in stores, and handle

money.” (Tr. 26.)

Third, the ALJ’s RFC discussion lends further support to the

omission of additional mental restrictions in the RFC to account

15

for mild deficits in interaction and adaptation. After recounting

the physical impairments Plaintiff listed in a disability report

(Tr. 28 (noting that, “[i]n a March 2016 adult disability report,

[Plaintiff] alleged that degenerative disc disease, status four

back surgeries, post laminectomy syndrome, sacroiliitis, pyriformis

syndrome, spondylosis with radiculopathy, and chronic pain syndrome

limited her ability to work”); see also Tr. 252), the ALJ

summarized Plaintiff’s hearing testimony about her disabling

impairments, which also did not identify any mental impairments

(see Tr. 28, 48-70).5 The ALJ additionally discussed Dr. Mary

Bodea’s observation in June 2018 that “Cymbalta was working well

for [Plaintiff]’s depression” (Tr. 32; see also Tr. 719) and

afforded “significant weight” (Tr. 32) to the opinion of the state

agency psychological consultant at the initial level of review that

Plaintiff’s mental impairments qualified as non-severe (see Tr.

87).

In sum, as the ALJ’s decision provides an “accurate and

logical bridge,” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir.

2018) (internal quotation marks omitted), between the ALJ’s

findings of mild limitations in interaction and adaptation at step

5 At the outset of the hearing, Plaintiff’s then-attorney conceded that

Plaintiff’s anxiety qualified as non-severe and did not even mention depression

as an impairment. (Tr. 46.) Additionally, although Plaintiff described some

difficulty with concentration and memory, as well as a tendency to stay by

herself, that testimony occurred in the context of a discussion of Plaintiff’s

insomnia and pain rather than any mental impairment. (See Tr. 65-66.)

16

two of the SEP and the RFC, Plaintiff’s first assignment of error

fails as a matter of law.

2. RFC

In Plaintiff’s second and final issue on review, she faults

the ALJ for “fail[ing] to conduct a proper function-by-function

analysis of [Plaintiff]’s impairments and fail[ing] to provide a

logical bridge between the evidence in the record, his conclusions

and his RFC findings . . . that prevents the ALJ’s conclusions

regarding [Plaintiff]’s RFC from being supported by substantial

evidence” (Docket Entry 12 at 12 (bold font and single-spacing

omitted)) in violation of Mascio, 780 F.3d at 636, and Social

Security Ruling 96-8p, Policy Interpretation Ruling Titles II and

XVI: Assessing [RFC] in Initial Claims, 1996 WL 374184 (July 2,

1994) (“SSR 96-8p”) (Docket Entry 12 at 13). In particular,

Plaintiff argues that “the ALJ never addresse[d] or reconcile[d]

the evidence that [Plaintiff] experienced difficulty performing the

prolonged standing and other physical requirements of her job

duties as a Stylist on a part-time basis with his RFC findings.”

(Id. at 15.) In that regard, Plaintiff contends that “the only

explanation [the ALJ] provided for his conclusion that

[Plaintiff]’s ‘statements concerning the intensity, persistence and

limiting effects of [her] symptoms [we]re not entirely consistent

with the medical evidence and other evidence in the record’ was

this: ‘because although his [sic] impairments cause limitation they

17

do not preclude all work activity.’” (Id. at 14 (quoting Tr. 29).)

Plaintiff further asserts that “the medical records support her

allegations regarding her chronic pain and limitations, and if

properly considered, would support an RFC that would not allow her

to perform her past relevant work or any other work on a

competitive, sustained basis.” (Id.; see also id. at 15-16

(discussing evidence Plaintiff believes supports her claim of

disability (citing Tr. 59-61, 64-65, 261, 277, 279, 280, 282, 287,

291, 397, 401, 403, 407, 475, 476, 480, 498, 500, 504, 506, 539,

595, 605, 609-11, 632, 651, 660, 663, 668, 671, 694, 697, 713,

1023-27, 1050-51)).) Those arguments fail to warrant reversal or

remand.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 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. See

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

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).

18

An ALJ need not discuss every piece of evidence in making an

RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014). However, “the ALJ must both identify

evidence that supports his [or her] conclusion and build an

accurate and logical bridge from that evidence to [that]

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

marks, and brackets omitted). As to the role of the

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

administrative ruling states: “The RFC assessment must first

identify the individual’s functional limitations or restrictions

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.” SSR 96-8p, 1996 WL 374184,

at *1.

The Fourth Circuit has addressed this administrative ruling

and the issue of whether an ALJ’s failure to articulate a

function-by-function analysis necessitates remand. See Mascio, 780

F.3d at 636–37. 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,” Mascio, 780 F.3d 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

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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’s decision supplies the necessary “accurate and

logical bridge,” Woods, 888 F.3d at 694 (internal quotation marks

omitted), between the evidence and his findings that Plaintiff’s

back and hip impairments (A) qualified as severe (see Tr. 25) but

(B) did not cause limitations greater than the standing and walking

requirements of light work with, inter alia, an allowance to remain

off-task for up to five percent of the workday to permit

alternation between sitting and standing (see Tr. 28).

First, the ALJ’s evaluation of the opinion evidence supports

the RFC. In that regard, the ALJ noted that, although consultative

physical examiner Dr. Joseph J. Umesi found a 15-degree decrease in

Plaintiff’s lumbar forward flexion due to pain and bilateral

positive straight leg raising tests, Dr. Umesi also found that

Plaintiff “had 5/5 strength in all extremities and intact

sensation.” (Tr. 29; see also Tr. 476, 478.) Significantly, the

ALJ gave “significant weight” to Dr. Umesi’s “opinion that

[Plaintiff] did not need an assistive device at his examination,

because it [wa]s consistent with his examination results.” (Tr. 33

(emphasis added) (citing Tr. 477).) The ALJ also accorded

“significant weight” (id.) to the opinion of the state agency

medical consultant at the initial level of review that Plaintiff

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could perform the standing and walking required by light work (see

Tr. 89), but added environmental restrictions and limited Plaintiff

to only occasional climbing of ramps and stairs (see Tr. 28).

Second, by pointing to record evidence Plaintiff believes

supports greater limitations on her abilities to stand and walk,

she misinterprets this Court’s standard of review. The Court must

determine whether substantial evidence, i.e., “more than a mere

scintilla of evidence but . . . somewhat less than a

preponderance,” Mastro, 270 F.3d at 176 (brackets and internal

quotation marks omitted), supported the ALJ’s findings regarding

Plaintiff’s abilities to stand and walk, and not whether other

record evidence weighs against those findings, see Lanier v.

Colvin, No. CV414-004, 2015 WL 3622619, at *1 (S.D. Ga. June 9,

2015) (unpublished) (“The fact that [the p]laintiff disagrees with

the ALJ’s decision, or that there is other evidence in the record

that weighs against the ALJ’s decision, does not mean that the

decision is unsupported by substantial evidence.”). Here, the

ALJ’s discussion of the medical evidence relating to Plaintiff’s

back and hip impairments makes clear that the ALJ properly

considered the evidence regarding Plaintiff’s abilities to stand

and walk. In that regard, the ALJ noted that:

• “[a]n MRI taken on December 30, 2015, the day

before [Plaintiff’s] alleged onset date, did not

reveal any disc herniation, significant central

canal or foraminal stenosis, cord compression, or

acute bony abnormality. The impression for that

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report notes [Plaintiff]’s status post L5-SI

[posterior lumbar interbody fusion] without

residual stenosis. A December 30, 2015 emergency

department report notes that [Plaintiff] complained

that her narcotic medication was not effective.

However, a review of a [s]tate controlled

substances database did not reveal any prescription

for narcotics from a pain management specialist in

the preceding six-month period, and her MRI was

negative for acute findings” (Tr. 29 (internal

citations omitted) (citing Tr. 952-54));

• Plaintiff’s “treatment records document instances

of narcotic pain management contract violations.

Nevertheless, she continued to receive pain

management treatment despite those violations, and

benefitted from that treatment. . . . [T]hose

records [do not] show that her chronic pain

persisted at a level of severity that would

reasonably preclude work within the [RFC]” (id.

(internal citations omitted) (citing Tr. 512-36,

609-75));

• “[a] report for a September 17, 2016 MRI of

[Plaintiff]’s lumbar spine . . . notes good

appearance of the decompression, discectomy and

fusion at L5-S1 and mild adjacent segment

degenerative disc disease at L4-L5” (Tr. 30 (citing

Tr. 742));

• Plaintiff reported to Dr. Bodea in April 2017 that

the “regimen of Fentanyl and oxycodone had been

fairly effective with no side effects” and,

although Plaintiff “had 4/5 strength in her right

lower extremity,” she “had a non-painful and full

range of motion in her hips, and negative straight

leg raising tests” (Tr. 31-32 (internal citations

omitted) (citing Tr. 604-05));

• “In an April 20, 2018 report, Courtney Forcucci,

PA, a primary care provider, noted that [Plaintiff]

reported that she exercised by walking in the

evening and usually walked for 20 to 30 minutes a

day” (Tr. 32 (citing Tr. 1038)); and

• Plaintiff’s “medical records for the period under

consideration [do not] show that she required an

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assistive device for a continuous 12-month period.

In his May 8, 2016 [s]tate agency consultative

examination report, Dr. Umesi stated that

[Plaintiff] did not need an assistive device at his

examination. In a September 27, 2016 report, Dr.

Jones noted that [Plaintiff] reported that she had

fallen 12 times in the preceding year, and that her

falls resulted in back pain. However, a September

12, 2016 report from that source noted that she

reported one fall in the last year. Dr. Jones

noted that [Plaintiff] reported falling, and noted

that with respect to assistive devices, he advised

[Plaintiff] to use safety measures when available.

Dr. Jones appeared to base his advice on

[Plaintiff]’s subjective complaints” (Tr. 31

(internal citations omitted); see also Tr. 477,

728, 731).

That analysis suffices to show that the ALJ complied with Mascio

and SSR 96-8p by appropriately evaluating Plaintiff’s ability to

stand and walk.

For these reasons, Plaintiff’s second issue on review falls

short.

III. CONCLUSION

Plaintiff has not established grounds for relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Summary Judgment (Docket Entry 11) be denied, that Defendant’s

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Motion for Judgment on the Pleadings (Docket Entry 13) be granted,

and that judgment be entered dismissing this action.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 2, 2021

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