PRATT v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAMES PRATT, )

)

Plaintiff, )

v. ) 1:20CV679

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

Defendant. )

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Plaintiff James Pratt brought this action to obtain review of a final decision of the

Commissioner of Social Security1 denying his claims for disability insurance benefits

(“DIB”), a period of disability (“POD”), and supplemental security income (“SSI”). The

Court has before it the certified administrative record and cross-motions for judgment.2

I. PROCEDURAL HISTORY

In 2017, Plaintiff filed applications for DIB, a POD, and SSI, alleging a disability

onset date of January 16, 2017. (Tr. 15, 263-272.) The applications were denied initially and

upon reconsideration. (Tr. 176-186, 196-204.) After a hearing, an Administrative Law Judge

(“ALJ”) determined on July 18, 2019, that Plaintiff was not disabled under the Act. (Tr. 15-

37, 48-103.) The Appeals Council denied a request for review making the ALJ’s decision the

final decision for purposes of review. (Tr. 1-6.)

1 Kilolo Kijakazi was appointed the Acting Commissioner of Social Security on July 9, 2021

and should therefore be substituted for Andrew M. Saul as Defendant in this suit.

2 Transcript citations refer to the administrative record filed manually with the

Commissioner’s answer. (Docket Entry 10.)

II. STANDARD FOR REVIEW

The scope of judicial review of the Commissioner’s final decision is specific and

narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Review is limited to determining

if there is substantial evidence in the record to support the Commissioner’s decision. 42

U.S.C. § 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir. 1990). The Court does not re-weigh conflicting evidence, make

credibility determinations, or substitute its judgment for that of the Commissioner. Craig v.

Chater, 76 F.3d 585, 589 (4th Cir. 1996). The issue before the Court is not whether Plaintiff is

disabled but whether the finding that he is not disabled is supported by substantial evidence

and based upon a correct application of the relevant law. Id.

III. THE ALJ’S DECISION

The ALJ followed the well-established sequential analysis to ascertain whether the

claimant is disabled, which is set forth in 20 C.F.R. §§ 404.1520, 416.920.3 See Albright v.

Comm’r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The ALJ determined at step

one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date

of January 16, 2017. (Tr. 17.) The ALJ next found the following severe impairments at step

3 “The Commissioner uses a five-step process to evaluate disability claims.” Hancock v.

Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012) (citing 20 C.F.R. § 416.920(a)(4)). “Under this process,

the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of

disability; (2) had a severe impairment; (3) had an impairment that met or equaled the requirements

of a listed impairment; (4) could return to his [or her] past relevant work; and (5) if not, could

perform any other work in the national economy.” Id. A finding adverse to the claimant at any of

several points in this five-step sequence forecloses a disability designation and ends the inquiry. Id.

“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 Secretary to produce evidence that other jobs exist in the

national economy that the claimant can perform considering his age, education, and work

experience.” Hunter, 993 F.2d at 35 (internal citation omitted).

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two: ischemic microangiopathy of the brain with neurocognitive effects, gastroesophageal

reflux disease, diverticulitis, obstructive sleep apnea, diabetes mellitus, hypertension,

glaucoma, carpal tunnel syndrome, tinnitus, degenerative joint disease of the right upper

extremity, depressive disorder, sleep disturbance, and posttraumatic stress disorder. (Tr. 17-

18.) At step three, the ALJ found that Plaintiff did not have an impairment or combination

of impairments listed in, or medically equal to, one listed in Appendix 1. (Tr. 18.)

The ALJ next set forth Plaintiff’s Residual Functional Capacity (“RFC”) and

determined that he could perform light work

except with frequent climbing of ramps and stairs, but only

occasional climbing of stepladders up to four vertical feet in

height, with no climbing of higher ladders or of ropes of

scaffolds of any height. He can frequently balance, stoop, kneel,

crouch, and crawl. He can frequently reach overhead with the

dominant right upper extremity. He can have occasional

exposure to vibration, atmospheric conditions, moving

mechanical parts and high exposed places. He can have

exposure up to and including moderate noise. He can have

occasional interactions with supervisors and coworkers, but

only superficial and incidental interaction with the public,

defined as no more than 1 hour during the workday, with no

greater than 10 minutes occurring during any one sustained

period of time. He is limited to unskilled work, as defined by

SSR 83-10, and cannot perform production pace work on

assembly lines. He can tolerate occasional changes to the work

setting and the manner and method of performing the assigned

work. He must have the ability to wear corrective lenses when

performing the assigned work with frequent near and far visual

acuity requirements, and with frequent accommodation and

field of vision requirements. He can have occasional driving

requirements.

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(Tr. 22.) At the fourth step, the ALJ determined that Plaintiff was unable to perform his past

relevant work. (Tr. 35.) At step five, the ALJ also determined that that were other jobs in the

national economy that Plaintiff could perform. (Tr. 36.)

IV. ISSUES AND ANALYSIS

Plaintiff raises two objections. First, Plaintiff contends that “[t]he ALJ misevaluated

the medical opinions of Drs. McLemore, West, and Staten.” (Docket Entry 16 at 5.) Second,

Plaintiff contends that “[t]he [Appeals Council] erred by failing to evaluate and consider the

medical opinion submitted at the [Appeals Council].” (Id. at 9.) For the following reasons,

these objections lack merit.

I. Medical Opinions

As noted, Plaintiff first contends that “[t]he ALJ misevaluated the medical opinions

of Drs. McLemore, West, and Staten.” (Docket Entry 16 at 5.) The treating source rule

requires an ALJ to give controlling weight to the opinion of a treating source regarding the

nature and severity of a claimant’s impairment. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Yet, not all treating sources or treating source opinions merit the same deference. The nature

and extent of each treatment relationship appreciably tempers the weight an ALJ affords an

opinion. See 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii). A treating source’s opinion, like

all medical opinions, deserves deference only if well-supported by medical signs and

laboratory findings and consistent with the other substantial evidence in the case record. See

20 C.F.R. §§ 404.1527(c)(2)-(4), 416.927(c)(2)-(4); SSR 96-2p, 1996 WL 374188, at *1 (July 2,

1996). When a treating source’s medical opinion is not given controlling weight, the ALJ

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should consider the following factors in deciding what weight to give a medical opinion: (1)

the length of the treatment relationship, (2) the frequency of examination, (3) the nature and

extent of the treatment relationship, (4) the supportability of the opinion, (5) the consistency

of the opinion with the record, (6) whether the source is a specialist, and (7) any other

factors that may support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)(i-vi),

416.927(c)(2)(i-vi). “[I]f a physician’s opinion is not supported by clinical evidence or if it is

inconsistent with other substantial evidence, it should be accorded significantly less weight.”

Craig, 76 F.3d at 590. The ultimate issue of whether a claimant is disabled is reserved for the

Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d).

a. Dr. McLemore

Dr. Cynthia McLemore, one of Plaintiff’s treating physicians, opined that Plaintiff

was limited to sedentary activity, lifting and carrying no more than five pounds, with

standing/walking on occasion, and only six-to-eight hours of sitting, along with other

postural and manipulative limitations. (Tr. 608.) The ALJ evaluated Dr. McLemore’s opinion

as follows:

The undersigned gives little weight to[ ] the opinions of his

primary care provider, Dr. Mclemore. In March 2017, Dr.

Mclemore opined the claimant has severe anxiety and

depression and may not be able to work in a gainful

employment (13F/19). In May 2017, Dr. Mclemore opined the

claimant has multiple problems, which include multiple organ

involvement and that “His illness will and do affect his lively

hood as he will not be able to perform .. [sic] any work and

therefore cannot continue any gainful employment now or in

the future.. [sic]”(8F/l). In January 2018, Dr. Mclemore opined

the claimant was capable of sedentary activity, but could lift less

than 5 pounds, and could only bend 5%, climb 5%, occasionally

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reach, never kneel, squat, or crawl (15F/3; 29F/15). She also

opined he could perform simple grasping, pinching, fine

manipulation, power grip and repetitive motion with both upper

extremities (l5F/3). However, she noted the claimant was stable

physically, and that the claimant asked to be given these

limitations secondary to his PTSD (15F/2-3). Dr. Mclemore’s

opinion is a conclusory [one] and is on an issue ultimately

reserved to the Commissioner. More importantly, her opinions

are inconsistent with her own treatment records, which show

unremarkable physical examinations (E.g., 12F; 13F).

(Tr. 34, 607-608, 589, 474, 1480, 551-602.)

For the following reasons, the ALJ’s decision to give Dr. McLemore’s opinion “little

weight” was both legally correct and supported by substantial evidence. First, the ALJ

correctly pointed out that, to the extent Dr. McLemore opined upon an issue reserved to the

Commissioner (i.e., that of disability), her opinion should be disregarded. 20 C.F.R. §§

404.1527(d), 416.927(d). Second, the ALJ also accurately pointed out that Dr. McLemore

found Plaintiff to be “stable” and accurately pointed out further that many of the physical

limitations Dr. McLemore ultimately adopted were apparently adopted solely on the basis of

a request from Plaintiff. (Tr. 34, 607-608.) The ALJ was permitted to reduce the weight he

attributed to Dr. McLemore’s opinion to the extent it simply restated without support

Plaintiff’s alleged limitations. See Comer v. Colvin, No. 1:16CV199, 2016 WL 7176602, at *7

(M.D.N.C. Dec. 8, 2016) (subjective complaints, without more, do not amount to objective

clinical medical evidence).

Third, although the ALJ found that Plaintiff had certain physical impairments in the

decision, he accurately noted that they were generally well-controlled. For example, although

Plaintiff was diagnosed with diabetes, sleep apnea, and hypertension, they were all well-

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controlled with medicine. (Tr. 23, 26, 32, 68-69 (Plaintiff testifying that medication helps

with his blood pressure), 547 (“Diabetes, under good control with current regimen.”), 548

(“Obstructive sleep apnea, apparently fairly well controlled on current treatment.”), 548

(“Hypertension, stable on current regimen.”), 1687 (“sleeping 5-7 hours, energy intact”).)

Although Plaintiff testified that he had pain in his shoulder from a degenerative joint disease,

he also testified that he used a cream to manage the pain. (Tr. 23, 69-70, see Tr. 1349 (noting

that diclofenac helped with Plaintiff’s joint pain).) Plaintiff also often told his medical

providers that he was in no pain. (Tr. 27-28, 717 (“Pain level: 0”), 739, 1229, 1356, 1694,

1736, 1796.) Moreover, an x-ray of Plaintiff’s shoulder was unremarkable, except for mild

degenerative changes of the AC joint. (Tr. 27, 1725.)

Fourth, as noted by the ALJ (Tr. 32, 34-35, 25-27), Plaintiff’s physical examinations

were often unremarkable. Plaintiff regularly exhibited full or normal range of motion (Tr.

430, 547, 552, 554, 557, 560, 564, 572, 592, 595, 599); normal muscle tone or bulk (Tr. 552,

554, 557, 560, 564, 572, 592, 595, 599); 5/5 (full) muscle strength (Tr. 553, 557, 560, 564,

573, 592, 599, 1577); and normal gait (Tr. 553, 564, 573, 595, 599, 1018, 1086, 1189

(independent mobility), 1232, 1537, 1580 (“ambulating normally”)). These benign clinical

findings—a number of which were recorded by Dr. McLemore herself (Tr. 551-603)—

supported the RFC finding for a reduced range of light exertional work.

Fifth, Plaintiff’s activities of daily living—as cited by the ALJ throughout his decision

(see Tr. 21, 24, 31-32)—further demonstrated that Plaintiff could perform reduced, light

work. For example, Plaintiff admitted that he was able to mow his lawn during part of the

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alleged period of disability. (Tr. 24, 76, 320, 777 (indicating that yardwork was one of his

recreational activities).) Plaintiff also engaged in daily activities consistent with the standing

and walking aspects of light work. For example, Plaintiff exercised, including walking and

utilizing a stationary bike. (Tr. 29, 32, 487 (Plaintiff “has been doing exercise”), 539 (Plaintiff

sometimes rides a stationary bicycle), 490 (advised to continue exercising), 1097, 1687

(Plaintiff was “trying to walk a little more”), 1729 (“Has been looking at trying to exercise

more.”), see also Tr. 1496 (“no exercise intolerance”), 1518, 1536, 1580.) He also travelled

interstate, which required sitting, standing, walking, and changing position often. (Tr. 22,

1091, 1370-71.)

Sixth, in his function report, Plaintiff almost exclusively alleged mental limitations

and made minimal notes about physical limitations. (Tr. 318-25, 35 (referencing “statements

made by the claimant”).) He stated that his impairments did not affect his ability to lift,

squat, bend, stand, reach, sit, kneel, climb stairs, or use his hands (Tr. 323), and Plaintiff’s

friend largely confirmed this (Tr. 35, 334). The only physical limitation he alleged was

walking, but he failed to quantify any specific walking limitations. (Tr. 323 (“How far can

you walk before needing to stop and rest? [I] don’t know.”).)

Seventh, the ALJ also considered the opinion of a state agency medical consultant

who found that Plaintiff was able to work at a reduced medium exertional level. (Tr. 33, 150-

152, 155.) Although the ALJ ultimately found Plaintiff more physically restricted than the

state agency consultant did, the state agency consultant was another person who reviewed

the record and found Plaintiff far more capable than opined by Dr. McLemore. See 20 C.F.R.

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§§ 404.1513a(b)(1), 416.913a(b)(1) (state agency medical consultants are “highly qualified and

experts in Social Security disability evaluation”). All this amounts to substantial evidence in

support of the ALJ’s decision.

Plaintiff’s arguments to the contrary are not persuasive. Plaintiff points to findings by

Dr. McLemore that he had a positive Romberg test, tremors, an antalgic gait, and used a cane.

(Docket Entry 16 at 6 referencing Tr. 560, 1504-05.) Plaintiff then asserts that this evidence is

consistent with other evidence in the record that Plaintiff used a cane.4 (Id. referencing Tr. at

547-548, 752, 1073, 1324, 1352, 1361, 1440.) Nevertheless, the ALJ gave good reasons

(described above) for giving Dr. McLemore’s opinion little weight. And, as explained further

below, the ALJ also gave good reasons for omitting a cane restriction from the RFC.

More specifically, an ALJ is required to consider the impact of “medically required”

hand-held assistive devices. SSR 96-9p, 1996 WL 374185, at *7; see Wimbush v. Astrue, No.

4:10CV00036, 2011 WL 1743153, at *2-3 (W.D.Va. May 6, 2011). A hand-held assistive

device is “medically required” if “medical documentation establish[es] the need for a hand-

held assistive device to aid in walking or standing, and describing the circumstances for which

it is needed.” SSR 96–9p, 1996 WL 374185, at *7. Moreover, a prescription or the lack of a

4 Plaintiff also asserts that the ALJ erred in pointing out that Dr. McLemore described him

as “stable,” contending that “‘stable’ does not mean ‘improvement’ or that the claimant is better.”

(Docket Entry 16 at 6.) However, even assuming for the sake of argument that Plaintiff is correct

here, any error is harmless given all the other reasons the ALJ provided—all of which are discussed

above—that warrant discounting Dr. McLemore’s opinion. Plaintiff also objects to the ALJ’s

decision to discount Dr. McLemore’s opinion to the extent it addressed the issue of disability itself.

(Id.) However, as noted earlier, the ultimate issue of whether a claimant is disabled is reserved for the

Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d).

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prescription for an assistive device is not necessarily dispositive of medical necessity. See

Staples v. Astrue, 329 F. App’x 189, 191-92 (10th Cir. 2009). Thus, under SSR 96-9P, Plaintiff

must have presented medical documentation (1) establishing the need for his cane and (2)

describing the circumstances for which it is needed. Absent such documentation, an ALJ is

not required to include the use of a cane or assistive device in a claimant’s RFC.

Here, Plaintiff has not presented the required medical documentation, and even his

own testimony is not compelling. Plaintiff testified that his doctor gave him a cane in her

office in early 2017 as a precaution because his medication made him dizzy. (Tr. 72-73.)

However, as noted by the ALJ, there is no objective medical evidence showing that a cane

was prescribed. (Tr. 33.) This Court has found that the lack of prescription may undermine a

plaintiff’s claim that a cane was required. See Mullaney v. Colvin, No. 1:10CV967, 2014 WL

689755, at *6 n.7 (M.D.N.C. Feb. 20, 2014) (agreeing that “the failure of any medical source

to prescribe the use of a cane could undermine Plaintiff’s need to use one to relieve pain

when walking”). Moreover, Plaintiff admitted that he never had any falls where he needed to

seek medical treatment (Tr. 33, 74), which again undermines his conclusion that a cane was

medically required. And, Plaintiff consistently told doctors that he had no side-effects from

his medication, despite now alleging that he was prescribed a cane because of side-effects.

(Tr. 33, 1359, 1414, 1687; see also Tr. 496, 518, 1084, 1132, 1332, 1448, 1729.)

As Plaintiff’s (then) counsel admitted (Tr. 90, 99), while there are some references to

Plaintiff using a cane, there are also many medical notes without references to a cane.

Specifically, Plaintiff’s medical providers repeatedly noted a normal or unremarkable gait.

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(Tr. 33, 408, 430, 444, 553, 564, 589, 22, 25, 29, 681, 755, 897, 931, 1134, 1232, 1334, 1416,

1450, 1637, 1689, 1731.) In instances where there is considerable conflicting evidence

whether a claimant used a cane regularly, other courts have routinely found that a cane was

not medically required, even when there was objective medical evidence that the cane was

prescribed. See, e.g., Wimbush, 2011 WL 1743153, at *3; Eason v. Astrue, 2:07-cv-30-FL, 2008

WL 4108084, at *16 (E.D.N.C. 2008). Here, as discussed, no such objective medical

evidence compels the conclusion that a cane was prescribed or medically required.

The ALJ’s decision also includes a well-supported analysis of Plaintiff’s alleged need

for a cane, and clearly explains his finding that no limitation was warranted. (Tr. 32-33.) And,

despite determining that Plaintiff did not prove that he medically required a cane, the ALJ

did include limitations to account for Plaintiff’s alleged dizziness:

[T]he undersigned has accommodated his alleged difficulties

with dizziness and balance by limiting him to with frequent

climbing of ramps and stairs, but only occasional climbing of

stepladders up to four vertical feet in height, with no climbing

of higher ladders or of ropes of scaffolds of any height. He can

frequently balance, stoop, kneel, crouch, and crawl. He can have

occasional exposure to vibration, atmospheric conditions,

moving mechanical parts and high exposed places.

(Tr. 32.) As demonstrated above, substantial evidence supports the ALJ’s finding that

Plaintiff did not medically require a cane, and the ALJ appropriately included other

limitations in his RFC determination to account for Plaintiff’s alleged dizziness.5 For these

5 A recent Fourth Circuit case cited by Plaintiff (Docket Entry 16 at 8), Dowling v. Comm’r of

Soc. Sec., 986 F.3d 377 (4th Cir 2021), reiterated the principle that deficiencies in a narrative

explanation do not necessarily require a remand. Id. at 388. The Fourth Circuit in Dowling explained

that remand would be warranted where there were serious decisional deficiencies, as were present in

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reasons, the ALJ’s evaluation of Dr. McLemore’s opinion and the ALJ’s decision to omit an

assistive device from the RFC were both legally correct and well-supported.

b. Dr. West

Plaintiff was also evaluated by Dr. Tracey West, D.O., who concluded that that he

could perform a reduced range of sedentary work, could not drive, “need[ed] to be at home

under adult supervision at all times,” and was “not expected to return to work due to mental

health.” (Tr. 610.) The ALJ considered Dr. West’s medical opinion as follows:

The undersigned gives little weight to the opinions of Tracey

West, DO, who opined in February 2018, the claimant is

capable of sedentary activity with occasional postural activities,

pushing, pulling, and lifting up to 5 pounds occasionally,

performing all upper extremity functions, but cannot drive

(16F/2; 29F/10-11). She also noted the claimant needed to be

at home under adult supervision at all times and he was not

expected to return to work due to mental health (16F/2). The

only objective findings she used to support these opinions were

“upper GI, CT heat, colonoscopy, blood work” (16F/3). These

limitations were extreme and were not supported by his mental

health treatment records, which showed generally unremarkable

mental status examinations except for depressed and anxious

mood. His mental health treatment was also routine and

conservative. Her opinions are also not consistent with his

normal physical examinations.

(Tr. 34, 610-611, 1475-76.6)

that case. Id. at 388-89. In that case, Ms. Dowling had an anal fissure that made sitting painful, yet the

ALJ’s disability finding turned on her ability to sit. Id. at 388. The ALJ only found Dowling not

disabled because, the ALJ concluded, she could perform sedentary (primarily sitting) work activities.

Id. Dowling’s ability to sit, therefore, was both contested and “critically relevant to determining her

disability status.” Id. at 389. Yet, the ALJ never performed a functional assessment regarding the

claimant’s ability to sit. Id. at 388. Here, no analogous set of facts exists. As explained in this

Recommendation, the ALJ addressed Plaintiff’s alleged need for a cane directly, and thoroughly

explained why a cane was not medically required. (Tr. 33.)

6 The two opinions referenced above appear to be identical.

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Here, the ALJ gave good reasons for affording Dr. West’s opinion little weight. First,

Dr. West’s opinion was unsupported and therefore conclusory. See Brodskiy v. Comm'r of Soc.

Sec., No. 19-CV-6211-EK, 2021 WL 2685418, at *2 (E.D.N.Y. June 30, 2021) (“An ALJ may

discount a treating physician’s opinion, however, when it is conclusory, the physician fails to

provide objective medical evidence to support the opinion, or the opinion is inconsistent with

the record.”). Second, Dr. West’s extreme limitations were inconsistent with Plaintiff’s

generally unremarkable physical examinations, discussed in more detail above. (Tr. 32, 34-35,

25-27, 430, 547, 552-54, 557, 560, 564, 572-73, 592, 595, 599, 1577, 1018, 1086, 1189, 1232,

1537, 1580.) Third, Dr. West’s extreme limitations were further at odds with Plaintiff’s

frequently unremarkable mental examinations and the fact that his mental health treatment

was routine and conservative. (Tr. 20, 28, 29, 31, 33-34, 486, 779, 1086, 1318, 1334, 1361,

1416, 1689, 1731.) Fourth, Dr. West’s extreme limitations were further at odds with Plaintiff’s

activities of daily living, discussed above. (Tr. 21, 22, 24, 29, 31-32, 76, 320, 777, 487, 490,

1097, 1687, 1729, 1496, 1518, 1536, 1580, 1091, 1370-71.) Fifth, Dr. West’s opinion was

inconsistent with evidence that Plaintiff’s symptoms were well-controlled. (Tr. 23, 26, 27-28,

32, 68-70, 547, 548, 1687, 1349, 717, 739, 1229, 1356, 1694, 1736, 1796, 1725.) For all these

reasons, the ALJ’s assessment of Dr. West’s opinion was legally correct and supported by

substantial evidence.

Plaintiff’s arguments to the contrary are unpersuasive. Plaintiff contends that the ALJ

“cherrypick[ed] evidence” in support of his conclusion and fails to “specify exactly the

physical examinations to which he is referring because . . . there are multiple physical

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examinations in the record that would be supportive of” a limitation to sedentary work.

(Docket Entry 16 at 6-7.) For the following reasons this argument is unpersuasive.

More specifically, as demonstrated earlier in this Recommendation, the ALJ gave

many good reasons for partially discounting Dr. West’s opinions and for concluding that

Plaintiff could perform a reduced range of light work. Additionally, the ALJ’s decision

specifically notes Plaintiff’s generally unremarkable physical examinations in, for example,

February, March, April, May, and August of 2017. (Tr. 25-26, 564, 566-67, 592, 599, 553.)

The ALJ also pointed to Plaintiff’s unremarkable physical examination in February and June

of 2018. (Tr. 26, 1350, 1318.) And, as explained repeatedly, Plaintiff also demonstrated a wide

array of daily activities. (Tr. 21, 22, 24, 29, 31-32, 76, 320, 777, 487, 490, 1097, 1687, 1729,

1496, 1518, 1536, 1580, 1091, 1370-71.) The ALJ’s evaluation of Dr. West’s opinions is both

legally correct and supported by substantial evidence. Plaintiff is, in effect, asking the Court

to reweigh the evidence, which this Court will not do. See Craig v., 76 F.3d at 589.7

c. Dr. Staten

Plaintiff was also examined by consultative examiner Dr. Elaine Staten, D.O., who

concluded that “[b]ecause of his complaint of hand pain, it would be difficult for him to hold

anything more than 5 or 10 pounds while using his cane.” (Tr. 548.) Dr. Staten also observed

7 Plaintiff also cites Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 107 n.16 (4th Cir. 2020)

(Docket Entry 16 at 8) for the principle that the ALJ must consider, when evaluating a medical opinion,

the regulatory factors set forth in 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, here, the ALJ

specifically said he considered those factors. (Tr. 22 (“The undersigned also considered opinion

evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927.”).) And, as

demonstrated throughout this Recommendation, the ALJ’s decision bears this conclusion out.

Moreover, Plaintiff has not persuasively demonstrated that the ALJ failed to properly evaluate a

particular factor or that such a failure may have impacted the outcome of the ALJ’s decision. Plaintiff’s

conclusory reference to the Arakas decision does not warrant a remand.

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“a mild limp on the right. He uses a simple cane, but is able to ambulate four feet in the exam

room.” (Tr. 547.) Dr. Staten also noted a reduced range in Plaintiff’s right hip and that his

“[t]andem gait [was] unsteady with some balance instability[.]” (Tr. 547, 549.)

The ALJ considered Dr. Staten’s opinion as follows:

The undersigned gives little weight to the opinions of

consultative examiner Dr. Staten, who opined the claimant

would have difficulty holding anything more than 5 or 10

pounds while using his cane due to complaints of hand pain

(11F/5). As discussed in detail above, there is little objective

medical evidence to support the claimant requires a cane for

ambulation, as there are a great number of references in the

record to a normal or unremarkable gait (E.g., 2F/2; 4F/13;

6F/3; 12F/3, 14; 13F/19, 22, 25, 29; 18F/51; 20F/12; 23F/8,

42; 25F/21; 26F/69, 167; 27F/77; 28F/41, 75; 30F/70; 31F/12,

54). His physical examinations have also consistently shown him

to have normal strength in his hands and upper extremities. Dr.

Staten also did not address his other severe physical

impairments.

(Tr. 35, 548, 408, 430, 444, 553, 564, 589, 592, 595, 599, 681, 755, 897, 931, 1134, 1232, 1334,

1416, 1450, 1637, 1689, 1731.)

The ALJ’s decision to afford Dr. Staten’s opinion little weight is well supported. First,

Dr. Staten’s reference to hand pain is a restatement of Plaintiff’s subjective allegation, not an

opinion expressed by Dr. Staten. When read in context, it is evident that the statements under

the “Pain Questionnaire” heading were made in response to questions by the doctor:

Pain Questionnaire: He states that he uses a cane whenever he is

up and walking. He avoids stairs. He avoids unlevel ground. His

cane was prescribed through the VA Medical Center. Because

of his complaint of hand pain, it would be difficult for him to

hold anything more than 5 or 10 pounds while using his cane.

(Tr. 548 (emphasis added).)

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Beyond this, and in any event, the ALJ correctly found that Dr. Staten’s purported

holding and lifting limitations were inconsistent with and unsupported by the longitudinal

medical record. This evidence includes Plaintiff’s generally unremarkable physical examinations

(Tr. 32, 34-35, 25-27, 430, 547, 552-54, 557, 560, 564, 572-73, 592, 595, 599, 1577, 1018, 1086,

1189, 1232, 1537, 1580), his activities of daily living (Tr. 21, 22, 24, 29, 31-32, 76, 320, 777, 487,

490, 1097, 1687, 1729, 1496, 1518, 1536, 1580, 1091, 1370-71), and evidence that his symptoms

were well-controlled (Tr. 23, 26, 27-28, 32, 68-70, 547, 548, 1687, 1349, 717, 739, 1229, 1356,

1694, 1736, 1796, 1725).8 Also, this is not a case where the ALJ simply disregarded Plaintiff’s

alleged limitation. Here, the ALJ took into account Plaintiff’s impairments by fashioning an

RFC for a reduced range of light work that included many additional postural, environmental,

social, and mental accommodations. (Tr. 22.) For all these reasons, Plaintiff’s challenge to the

ALJ’s evaluation of Dr. Staten’s opinion and his entire first objection are unpersuasive.

II. Appeals Council

Plaintiff next contends that “[t]he [Appeals Council] erred by failing to evaluate and

consider the medical opinion submitted at the [Appeals Council].” (Docket Entry 16 at 9.) As

explained in greater detail below, this argument has no merit.

8 Plaintiff also contends that “[t]he ALJ . . . seemed to misunderstand Dr. Staten’s statements

regarding [his] hand pain. Contra the ALJ’s assertion that [he] could not be as limited as alleged because

his strength was normal, Dr. Staten is carful [sic] to indicate that [his] strength is normal but that his

pain is consistent with neuropathy.” (Docket Entry 16 at 7 citing Tr. 548.) As explained above,

however, the ALJ gave good reasons for affording little weight to the opinions of Drs. McLemore,

West, and Staten, including the fact that Plaintiff was able to perform a wide array of activities during

the relevant period. Beyond this, Dr. Staten herself found that Plaintiff “appears to have good strength

to the hands and good fine finger control.” (Tr. 548.) The Court remains unpersuaded by Plaintiff’s

contention that the ALJ prejudicially erred in evaluating Dr. Staten’s opinion.

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The Appeals Council must consider evidence submitted by a claimant with the request

for review if the additional evidence is (1) new, (2) material, and (3) relates to the period on or

before the date of the ALJ’s decision. Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d

93, 95-96 (4th Cir. 1991). Evidence is new if it is not duplicative or cumulative. See Wilkins, 953

F.2d at 96. Evidence is material if there is a reasonable probability that the additional evidence

would change the outcome of the decision.9 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5) (2017).

Here, after the ALJ issued his decision, Plaintiff submitted a form from Dr. West dated

August 2019. (Tr. 44-46.) It stated that Plaintiff’s gait was slow and unsteady and that he had

decreased fine motor skills. (Tr. 45-46.) As a result, Dr. West opined that Plaintiff could not

stand for long periods of time, that he was a fall risk, and that he needed an aid (like a cane,

brace, crutch, or another person) to walk one block.10 (Id.) The Appeals Council found that the

evidence did “not show a reasonable probability that it would change the outcome of the

decision,” and did not exhibit it. (Tr. 2.)

9 Long-standing Fourth Circuit law defined “material” as a reasonable possibility the new

evidence would have changed the outcome of the case. See Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir.

2011). However, the new versions of Sections 404.970 and 416.1470 increase a claimant’s burden from

showing a reasonable possibility to a reasonable probability, and make the obligation to show a

reasonable probability of a different outcome an additional requirement to showing materiality. The

new version of the regulation applies here as it was effective January 17, 2017, with compliance by

claimants required by May 1, 2017, see Ensuring Program Uniformity at the Hearing and Appeals Council Levels

of the Administrative Review Process, 81 Fed. Reg. 90987-01, 90987, 2016 WL 7242991 (Dec. 16, 2016).

10 Dr. West’s August 2019 form indicating that Plaintiff needed an aid to ambulate is not a

prescription for a cane (Tr. 46), does not state that Plaintiff required or used cane (id.), is inconsistent

with Plaintiff’s testimony that he used a cane because he got dizzy (Tr. 72-73), and is inconsistent with

the longitudinal medical record described throughout this Recommendation. Thus, to the extent

Plaintiff contends that this form undermines the ALJ’s finding that a cane was not prescribed or

required, he is mistaken.

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Upon review, the Court concludes that the Appeals Council was correct that there is not

a reasonable probability that the August 2019 form from Dr. West would have changed the

outcome of the decision.11 As noted repeatedly, the record reveals generally unremarkable

physical examinations (Tr. 32, 34-35, 25-27, 430, 547, 552-54, 557, 560, 564, 572-73, 592, 595,

599, 1577, 1018, 1086, 1189, 1232, 1537, 1580), unremarkable mental examinations (Tr. 20, 28,

29, 31, 33-34, 486, 779, 1086, 1318, 1334, 1361, 1416, 1689, 1731), robust activities of daily

living (Tr. 21, 22, 24, 29, 31-32, 76, 320, 777, 487, 490, 1097, 1687, 1729, 1496, 1518, 1536,

1580, 1091, 1370-71), and well-controlled symptoms (Tr. 23, 26, 27-28, 32, 68-70, 547, 548,

1687, 1349, 717, 739, 1229, 1356, 1694, 1736, 1796, 1725).

Nothing in the August 2019 form from Dr. West meaningfully undermines this

evidence or compels or suggests a different outcome. Dr. West’s form does not document any

alleged new impairments that would justify new or different functional limitations. It does not

support any of its conclusions with objective medical evidence or citations to other clinical

findings. In fact, the functional limitations articulated in the form appear based on Plaintiff’s

subjective symptoms. (See, e.g., Tr. 46 (“Patient has noted decreased fine motor skills . . .”;

“Patient has noted forgetfulness.”).) For the above reasons, the Appeals Council correctly

11 Not only was Dr. West’s 2019 opinion unlikely to change the outcome of the ALJ’s decision,

but it was also not “new.” In other words, the form is cumulative (e.g., it is not “new” as required by 20

C.F.R. §§ 404.970(a)(5), 416.1470(a)(5)) of evidence already considered by the ALJ, which was rejected

in the face of unremarkable physical findings documented in the longitudinal record, objective medical

evidence such as x-rays, and Plaintiff’s activities. For example, Plaintiff alleges that the form bolsters

opinions that he was limited to sedentary work and required a cane to ambulate. (Docket Entry 16 at 8

and 11.) But—as demonstrated above—these cumulative allegations were already expressly considered

by the ALJ and rejected. And again, the August 2019 form does not cite to any new impairment or

medical finding that would warrant deviating from the ALJ’s decision. Consequently, Plaintiff’s

contention that the Appeals Council prejudicially erred fails for this reason as well.

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found that the August 2019 form did not show a reasonable probability that it would change

the outcome of the decision. Therefore, the AL]’s decision should be affirmed.

V. CONCLUSION

After a careful consideration of the evidence of record, the Court finds that the

Commissioner’s decision is legally correct and supported by substantial evidence.

Accordingly, this Court RECOMMENDS that Plaintiffs Motion for Judgment (Docket

Entry 15) be DENIED, Defendant’s Motion for Judgment on the Pleadings (Docket Entry

17) be GRANTED, and the final decision of the Commissioner be upheld.

itis

Quel

United States Magistrate Judge

October 6, 2021

Durham, North Carolina

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