HUNTLEY v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAARON HUNTLEY, )

)

Plaintiff, )

)

v. ) 1:20CV862

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Daaron Huntley, brought this action pursuant to the

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

final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claims for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket

Entry 1.) Defendant has filed the certified administrative record

(Docket Entry 10 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 14, 16; see also Docket Entry

15 (Plaintiff’s Memorandum), Docket Entry 17 (Defendant’s

Memorandum)). For the reasons that follow, the Court should enter

judgment for Defendant.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties

need take any further action to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI (Tr. 236-42), alleging an

onset date of May 7, 2013 (see Tr. 236, 239).2 Upon denial of

those applications initially (Tr. 92-101, 119-22) and on

reconsideration (Tr. 102-13, 124-31), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 134-35).

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

the hearing. (Tr. 45-80.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 23-37.)

The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-6, 226, 341-42), making the ALJ’s ruling the

Commissioner’s final decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through September 30, 2018.

2. [Plaintiff] has not engaged in substantial gainful

activity since May 7, 2013, the alleged onset date.

3. [Plaintiff] has the following severe impairments:

osteoarthritis-right knee; obstructive sleep apnea;

pulmonary sarcoidosis; and obesity.

. . .

4. [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 Plaintiff’s application for SSI does not appear in the record.

2

. . .

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

capacity to perform sedentary work . . . except he is

prohibited from climbing ladders, ropes, and scaffolds.

He would need to avoid concentrated exposure to extreme

cold and heat, to humidity and wetness, and to irritants

such as fumes, odors, dust, gases, and poorly ventilated

areas. He would also need to avoid concentrated exposure

to slippery and uneven surfaces as well as hazardous

machinery, unprotected heights, and open flames.

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

10. Considering [Plaintiff’s] age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

. . .

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

defined in the . . . Act, from May 7, 2013, through the

date of this decision.

(Tr. 28-36 (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 [the Court’s] review of [such a] decision . . . is extremely

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

3

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,

the Court “must uphold the factual findings of the ALJ 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 citations and

quotation marks omitted). “If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

is substantial evidence.” Hunter, 993 F.2d at 34 (internal

quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence

4

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

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)).3 “To regularize the

adjudicative process, the Social Security Administration has . . .

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]

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

benefits to disabled persons who have contributed to the program while employed.

[SSI] . . . 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

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 the Soc. Sec. Admin., 174 F.3d 473, 475

n.2 (4th Cir. 1999).4 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

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

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

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

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

4 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

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

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.5 Step four then requires the ALJ to assess

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 claimant’s RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.6

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 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.

6 A claimant thus can establish disability via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

the claimant’s favor, whereas, on the second path, the claimant must prevail at

steps one, two, four, and five. Some short-hand judicial characterizations of

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

(continued...)

7

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 erred by failing to consider Plaintiff’s

[degenerative disc disease (‘DDD’)] in the lumbar and thoracic

spine a severe impairment and include resulting limitations in the

RFC” (Docket Entry 15 at 4 (bold font and single-spacing omitted));

2) “the ALJ erred by evaluating Plaintiff’s obesity under

[Social Security Ruling 02-1p, Titles II and XVI: Evaluation of

Obesity, 2002 WL 34686281 (Sept. 12, 2002) (‘SSR 02-1p’)], which

was rescinded, instead of [Social Security Ruling 19-2p, Titles II

and XVI: Evaluating Cases Involving Obesity, 2019 WL 2374244 (May

20, 2019) (‘SSR 19-2p’)]” (id. at 7 (bold font and single-spacing

omitted)); and

3) “[t]he ALJ erred by failing to perform a proper function-

by-function evaluation of Plaintiff’s ability to sit, stand, and

walk when forming the RFC” (id. at 10 (bold font and single-spacing

omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 17 at 6-16.)

6 (...continued)

review does not proceed to the next step.”).

8

1. DDD

In Plaintiff’s first issue on review, he contends that “[t]he

ALJ erred by failing to consider Plaintiff’s DDD in the lumbar and

thoracic spine a severe impairment and include resulting

limitations in the RFC.” (Docket Entry 15 at 4 (bold font and

single-spacing omitted).) In that regard, Plaintiff contends that

“the record contains medical documentation of medically

determinable impairments that could cause [Plaintiff]’s back pain

a[s well as] ongoing complaints and treatment for his back pain.”

(Id. at 5; see also id. at 5-6 (outlining testimony and evidence

Plaintiff believes supports the severity of his back impairments

(citing Tr. 66-69, 73, 364, 401-02, 429, 445, 488, 530, 556, 580,

583)).) According to Plaintiff, his DDD qualifies as a “severe

impairment because the degree of pain he suffers and the impact of

the condition on his ability to sit, stand, and walk indicates that

this condition is obviously more than a ‘slight abnormality’ and

would interfere with his ability to work.” (Id. at 6 (quoting

Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984)).) Plaintiff

deems that alleged step-two error by the ALJ harmful, because the

ALJ did not “consider[ Plaintiff]’s limitations resulting from []

DDD in [the] RFC determination,” such as “limitations on how long

[Plaintiff] can stand or walk at one time” and “limitations . . .

on [Plaintiff]’s ability to sit.” (Id. at 7 (citing Dowling v.

9

Commissioner of Soc. Sec., 986 F.3d 377, 388 (4th Cir. 2021)).)

Plaintiff’s contentions miss the mark.

“At step 2 of the [SEP], [the ALJ] determine[s] whether an

individual has a severe medically determinable physical or mental

impairment or combination of impairments that has lasted or can be

expected to last for a continuous period of at least 12 months or

end in death.” Social Security Ruling 16-3p, Titles II & XVI:

Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at

(Oct. 25, 2017) (“SSR 16-3p”) (emphasis added). The

Commissioner’s regulations provide that a medically determinable

impairment “must result from anatomical[ or] physiological .. .

abnormalities that can be shown by medically acceptable clinical

and laboratory diagnostic techniques[ and] - . . must be

established by objective medical evidence from an acceptable

medical source.” 20 C.F.R. §§ 404.1521, 416.921 (emphasis added) □□

Furthermore, an ALJ cannot rely on a claimant’s own “statement of

symptoms, a diagnosis, or a medical opinion to establish the

existence of a[ medically determinable] impairment[ ].” Id.

(emphasis added) .®

7 The regulations define “objective medical evidence” as “laboratory findings”

and/or “signs,” i.e., “abnormalities that can be observed, apart from [a

ioe statements (symptoms).” 20 C.F.R. §§ 404.1502(f), (g), 416.902(f),

® Applicable to benefits claims filed on or after March 27, 2017 (such as

Plaintiff’s DIB and SSI claims (see Tr. 26, 236)), the SSA amended the section

governing the establishment of medically determinable impairments. See Revisions

to Rules Regarding the Evaluation of Medical Evidence, 82 F.R. 5844-01, 5868-69,

2017 WL 168819 (Jan. 18, 2017). Prior to those amendments, an ALJ considered

(continued...)

10

“After [the ALJ] establish[es] that [a claimant] ha[s] a

medically determinable impairment[], then [the ALJ] determine[s]

whether [that] impairment is severe.” Id. An impairment fails to

qualify as “severe” if it constitutes “only a slight abnormality

. . which would have no more than a minimal effect on an

individual’s ability . . . to perform basic work activities.”

Social Security Ruling 85-28, Titles II and XVI: Medical

Impairments that Are Not Severe, 1985 WL 56856, at *3 (1985) (“SSR

85-28"). Applicable regulations further identify physical “basic

work activities” as including “walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, [and] handling.” 20 C.F.R.

404.1522 (b), 416.922(b). Plaintiff bears the burden of proving

severity at step two. Hunter, 993 F.2d at 35; see also Kirby v.

Astrue, 500 F.3d 705, 708 (8th Cir. 2007) (“Severity is not an

onerous requirement for the claimant to meet, but it is also nota

toothless standard ... .” (internal citation omitted)).

® (...continued)

medical signs, laboratory findings, and a claimant’s own statements to determine

the presence of a medically determinable impairment. See 20 C.F.R. §§ 404.1508,

416.908 (version effective prior to Jan. 18, 2017). The amendments recodified

the rule at Sections 404.1521 and 416.921 and now preclude ALJs from considering

a claimant’s “statement of symptoms, a diagnosis, or a medical opinion to

establish the existence of a[ medically determinable] impairment[].” 20 C.F.R.

S§ 404.1521, 416.921; see also SB v. Commissioner of Soc. Sec. Admin., No.

CV-20-1842, 2021 WL 5150092, at *4 (D. Ariz. Nov. 5, 2021) (unpublished) (“To the

extent that [prior district court and appellate cases within the Ninth Circuit]

hold that medical opinions and diagnoses are relevant to determine an impairment

at step two, that has been expressly foreclosed by the text of $ 404.1521.

Instead, as discussed above, the [c]lourt finds that only the objective medical

evidence in [the p]laintiff’s medical records can be relevant to whether she had

a medically determinable impairment . .. .” (internal citation omitted)).

11

The ALJ provided the following analysis supporting his step-

two finding regarding Plaintiff’s lower back pain:

[Plaintiff ] alleges he has lower back pain. Pain or

other symptoms may be an important factor contributing to

functional loss. However, [SSR] 16-3p states that “an

individual’s statements of symptoms alone are not enough

to establish the existence of a physical or mental

impairment or disability” and “symptoms, such as pain,

fatigue, shortness of breath, weakness, nervousness, or

periods of poor concentration will not be found to affect

the ability to perform work-related activities . . .

unless medical signs or laboratory findings show a

medically determinable impairment is present.”

In accordance with 20 CFR 404.1520(c) and 416.920(c), “if

you do not have any impairment or combination of

impairments which significantly limits your physical or

mental ability to do basic work activities, we will find

that you do not have a severe impairment.” In this case,

the record does not clearly establish the pain was a

symptom of a medi[c]ally determinable impairment of the

lower back that significantly limits [Plaintiff]’s

physical ability to do basic work activities.

Accordingly, [the ALJ] find[s] that the alleged pain is

non-severe . . . .

(Tr. 29 (emphasis added).) As the language emphasized above shows,

the ALJ’s analysis improperly conflated the two distinct findings

at step two of the SEP, i.e., 1) whether Plaintiff had a medically

determinable lower back impairment under 20 C.F.R. §§ 404.1521 and

416.921 and, if so, 2) whether that impairment qualified as severe

under 20 C.F.R. §§ 404.1522(b) and 416.922(b). If “the record

d[id] not clearly establish [that Plaintiff’s lower back pain] was

a symptom of a medi[c]ally determinable impairment” (Tr. 29), that

finding should have ended the ALJ’s analysis of Plaintiff’s lower

back pain at step two, as a finding of a medically determinable

12

impairment constitutes a prerequisite to rating the severity of

that impairment, see 20 C.F.R. $§ 404.1521, 416.921. In this case,

however, the ALJ proceeded to also find that Plaintiff’s lower back

pain did not “significantly limit[ Plaintiff]’s physical ability to

do basic work activities” and therefore qualified as “non-severe.”

(Tr. 29.) The ambiguity of the ALJ’s step two finding regarding

Plaintiff’s low back pain, however, does not amount to prejudicial

error, because the ALJ’s threshold finding that Plaintiff’s low

back pain did not constitute a medically determinable impairment

enjoys the support of substantial evidence in the record.

Most significantly, the record lacks any objective evidence

that confirms the presence of a medically determinable lower back

impairment. Although Plaintiff asserts that his obesity prevented

him from obtaining an MRI of his lumbar spine (see Docket Entry 15

at 5), he does not assert that his obesity prevented him from

obtaining other imaging tests of his lower back, such as a CT scan

or x-ray, or precluded his medical providers from gauging his gait,

strength, range of motion, or other musculoskeletal and

neurological functioning (see id.), and Plaintiff bears the burden

of demonstrating the existence of a medically determinable lower

back impairment, see generally Bowen v. Yuckert, 482 U.S. 137, 146

(1987); accord Hunter, 993 F.2d at 35; see also Shrecengost v.

Colvin, No. 14CV506, 2015 WL 5126117, at *3 (W.D.N.Y. Sept. 1,

2015) (unpublished) (“[The pllaintiff bears the burden of

13

establishing a [medically determinable] severe impairment at step

two by furnishing medical and other evidence of the existence

thereof as the Commissioner may require, and will not be considered

disabled if such evidence is not provided.” (citing 42 U.S.C.

§ 423(d)(5)(A))).

Plaintiff points out that orthopedic records reflect

assessments of “chronic axial low back pain” due to “mild lumbar

[DDD]” (Docket Entry 15 at 5 (emphasis added) (citing Tr. 364);

see also Tr. 362 assessing “probable very mild DDD” (emphasis

added)), but those (limited and equivocal) treatment notes do not

establish a medically determinable lower back impairment for two

reasons. First, all but one of those treatment notes pre-date

Plaintiff’s alleged onset date (see Tr. 362-75) and thus, in large

part, they do not reflect Plaintiff’s condition during the relevant

period in this case. Second, and more significantly, the treatment

notes in question are devoid of any objective findings

substantiating the presence of a medically determinable lower back

impairment. (See generally Tr. 362-375; see also Tr. 362 (noting

negative straight leg raise); 364 (documenting “[p]leasant

appearing healthy male . . . in no obvious distress”); 375

(recording no severe acute distress and Plaintiff’s ability to walk

unassisted)). As discussed above, a diagnosis and/or a medical

opinion, without supporting “anatomical[ or] physiological . . .

abnormalities that can be shown by medically acceptable clinical

14

and laboratory diagnostic techniques[ and] . . . established by

objective medical evidence from an acceptable medical source,” 20

C.F.R. §§ 404.1521, 416.921 (emphasis added), do not suffice to

establish a medically determinable impairment, see 20 C.F.R.

§§ 404.1521, 416.921; see also SB v. Commissioner of Soc. Sec.

Admin., No. CV-20-1842, 2021 WL 5150092, at *6 (D. Ariz. Nov. 5,

2021) (unpublished) (finding no error where ALJ did not consider

two doctors’ “medical opinions at step two[, because] such evidence

is clearly precluded by 20 C.F.R. § 404.1521”); Laggner v.

Commissioner of Soc. Sec., No. 1:20CV166, 2021 WL 5077590, at *3

(N.D. Ind. Nov. 2, 2021) (unpublished) (“[The plaintiff] argues

that [her] neuropsychologist . . . diagnosed [the plaintiff] with

traumatic brain injury and that this demonstrated a medically

determinable impairment which should have been considered in the

RFC. . . . However, what [the plaintiff] fails to point to is any

objective evidence establishing the existence of traumatic brain

injury. . . . [M]ere diagnosis from an acceptable medical source,

without objective medical evidence, is not sufficient to establish

a medically determinable impairment at [s]tep [two of the SEP].”);

Jeffrey G. v. Commissioner of Soc. Sec., No. 5:20CV1016, 2021 WL

4844146, at *6 (N.D.N.Y. Oct. 18, 2021) (unpublished) (“[The]

plaintiff’s subjective complaints alone are insufficient to satisfy

his burden of proving a medically determinable impairment, and the

record is devoid of any diagnostic test results during the period

15

in question indicating the presence of carpal tunnel syndrome.”);

Saric v. Kijakazi, No. 4:20CV414, 2021 WL 4439279, at *3 (E.D. Mo.

Sept. 28, 2021) (unpublished) (finding “that substantial evidence

support [ed] the ALJ’s determination that [the p]laintiff’s

neuropathy [wa]s not a medically determinable impairment” where,

“upon a complete and thorough review of the medical record, any

objective indicia of neuropathy [wa]s missing from the record”);

Jamie L. V. v. Kijakazi, No. 3:20CV263, 2021 WL 4243438, at *8

(E.D. Va. Sept. 17, 2021) (unpublished) (“The ALJ did not err in

concluding that [the p]laintiff’s blackouts were not a ‘medically

determinable’ impairment. .. . [The p]laintiff has not identified

any laboratory finding or other medical observation to confirm her

blackouts.”).

Plaintiff additionally notes that “a chest radiograph showed

degenerative change in the thoracic spine” (Docket Entry 15 at 5

(emphasis added) (citing Tr. 556)), as well as that “CT imaging of

the chest without contrast revealed moderate thoracic spondylosis”

(id. (emphasis added) (citing Tr. 580)). However, Plaintiff

underwent those tests to determine the cause of his breathing

difficulties, and, notably, the tests reflected incidental findings

of degenerative changes in the thoracic spine (see Tr. 556, 580;

see also Tr. 480 (another chest CT reflecting degenerative changes

in Plaintiff’s thoracic spine)), rather than Plaintiff’s lumbar

16

spine where Plaintiff complained of pain (see, e.g., Tr. 370, 374,

400).

Plaintiff further emphasizes that consultative medical

examiner Mark L. Fields found tenderness in Plaintiff’s paraspinal

muscles from T8 to L5 (see Docket Entry 15 at 5 (citing Tr. 401)),

but that finding confirmed only the presence of pain in Plaintiff’s

lower back, which the ALJ acknowledged (see Tr. 29, 32). Moreover,

although Dr. Fields documented a positive supine straight leg

raising test bilaterally at 30 degrees, he recorded a negative

straight leg raising test in the sitting position (see Tr. 401),

and he diagnosed only “[l]ow back pain with radicular symptoms”

(Tr. 402 (emphasis added)). Given the ALJ’s discussion of

consistently normal gait, strength, neurological, and range of

motion findings in the record (see Tr. 32-33 (citing Tr. 386, 429-

35, 445, 452, 459, 472, 484, 488, 528, 530, 532, 583, 585)), that

one-time, partially positive straight leg raising test would not

have compelled the ALJ to find a medically determinable lower back

impairment.

Moreover, even if the ALJ should have deemed Plaintiff’s back

condition both a medically determinable impairment and severe, any

such error would remain harmless under the circumstances presented

by this case. See generally Fisher v. Bowen, 869 F.2d 1055, 1057

(7th Cir. 1989) (observing that “[n]o principle of administrative

law or common sense requires us to remand a case in quest of a

17

perfect opinion unless there is reason to believe that the remand

might lead to a different result”). Where an ALJ finds at least

one severe impairment, any failure to identify more generally

cannot constitute reversible error, because, “upon determining that

a claimant has one severe impairment, the [ALJ] must continue with

the remaining steps in his disability evaluation.” Maziarz v.

Secretary of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.

1987); accord Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir.

2007); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); Lauver

v. Astrue, No. 2:08CV87, 2010 WL 1404767, at *4 (N.D.W. Va. Mar.

31, 2010) (unpublished); Washington v. Astrue, 698 F. Supp. 2d 562,

579 (D.S.C. 2010); Jones v. Astrue, No. 5:07CV452, 2009 WL 455414,

at *2 (E.D.N.C. Feb. 23, 2009) (unpublished). Moreover, a finding

at step two that Plaintiff has a severe impairment does not require

the ALJ to include any limitations arising from such impairment in

the RFC:

The determination of a “severe” impairment at step two of

the sequential evaluation process is a de minimis test,

designed to weed out unmeritorious claims. See Bowen[],

482 U.S. [at 153 ]. A finding of de minimis limitations

is not proof that the same limitations have the greater

significant and specific nature required to gain their

inclusion in an RFC assessment at step four. See, e.g.,

Sykes v. Apfel, 228 F.3d 259, 268 n.12 (3d Cir. 2000).

Hughes v. Astrue, No. 1:09CV459, 2011 WL 4459097, at *10 (W.D.N.C.

Sept. 26, 2011) (unpublished).

Here, having found Plaintiff suffered from at least one severe

impairment (see Tr. 29), the ALJ proceeded to subsequent steps of

18

the SEP and adequately considered Plaintiff’s low back pain as part

of his RFC determination. First, the ALJ acknowledged Plaintiff’s

testimony “that he [wa]s unable to work because of . . . back

issues,” “that the most pain [wa]s in his back,” and “that he could

stand for about 10 minutes, walk the distance between a parking

spot and door of a grocery store, and sit for about 30 minutes

depending on the chair.” (Tr. 32; see also Tr. 66, 69-71.) The

ALJ, however, found that “the record d[id] not consistently

support” Plaintiff’s “statements about the intensity, persistence,

and limiting effects of his . . . symptoms” (Tr. 32), a finding

unchallenged by Plaintiff (see Docket Entry 15). In particular,

the ALJ deemed Plaintiff’s daily activities “inconsistent with the

alleged extent of [Plaintiff’s] difficulties,” noting that

Plaintiff lived in a two-story home and climbed the stairs “despite

the alleged difficulty,” prepared simple meals, drove, and “sought

any job that would hire him, including call-center and custodial

work.” Id. The ALJ further commented that “[a] review of

[Plaintiff’s] work history shows that he made minimal earnings

prior to the alleged disability onset date,” and that such a

“limited work history raise[d] a question as to whether his

unemployment was actually due to medical impairments in light of

inconsistent medical findings.” (Tr. 25.)

In addition, the ALJ discussed the objective findings in the

medical evidence, noting repeated findings of normal gait, range of

19

motion, and strength. (See Tr. 32-33 (citing Tr. 386, 429-35, 445,

452, 459, 472, 484, 488, 528, 530, 532, 583, 585).) Although, in

that discussion, the ALJ expressly mentioned only Plaintiff’s

medically determinable impairments of obesity and right knee

osteoarthritis (see Tr. 32), many of the treatment notes the ALJ

discussed reflected Plaintiff’s treatment for (and objective

findings regarding) both right knee and back pain (see Tr. 32-33

(citing Tr. 386, 429-35, 445, 484, 488, 528, 530, 532, 583, 585)).

Moreover, the ALJ expressly found, in light of Plaintiff’s

consistently normal gait, that “the record d[id] not support a

finding that a handheld assistive device was medically necessary.”

(Tr. 33.)

In light of those analyses, the ALJ sufficiently addressed

Plaintiff’s low back pain (whether classified as a medically

determinable, severe impairment or not) by including significant

limitations on lifting, carrying, pushing, and pulling (a maximum

of only 10 pounds), as well as a restriction to two hours total of

standing and walking, and a prohibition of climbing ladders, ropes,

and scaffolds in the RFC and dispositive hypothetical question to

the VE. (See Tr. 31, 76-77.) Significantly, beyond the assertion

that the RFC should have included unquantified “limitations on how

long [Plaintiff] can stand or walk at one time” and “limitations

. . . on [Plaintiff]’s ability to sit” (Docket Entry 15 at 7),

Plaintiff has not identified any specific, additional limitations

20

that a finding of a severe low back impairment would have compelled

the ALJ to include in the RFC, let alone demonstrated that such

additional limitations would have precluded him from performing the

jobs cited by the VE and adopted by the ALJ at step five of the SEP

(see id. at 4-7).

In sum, Plaintiff had not shown prejudicial error arising out

of the ALJ’s step two findings regarding Plaintiff’s lower back

pain.

2. Obesity

Plaintiff next asserts that “[t]he ALJ erred by evaluating

Plaintiff’s obesity under SSR 02-1p, which was rescinded, instead

of SSR 19-2p.” (Id. at 7 (bold font and single-spacing omitted).)

In particular, Plaintiff maintains that the SSA issued SSR 19-2p to

“‘reflect changes to the rules [the SSA has] published, and

advances in medical knowledge, since publication of SSR 02-1p.’”

(Id. at 8 (quoting SSR 19-2p, 2019 WL 2374244, at *2).) According

to Plaintiff, “SSR 19-2p indicates that the limiting effects of

obesity must be considered when assessing a person’s RFC,” “that

a[n obese] person may have limitations in sitting, standing, and

walking, and that fatigue may affect a[n obese] person’s physical

and mental ability to sustain work ability,” as well as “that the

combined effects of obesity with other impairments may be greater

than the effects of each of the impairments considered separately.”

(Id. (citing SSR 19-2p, 2019 WL 2374244, at *4).) Additionally,

21

Plaintiff argues that “[t]he ALJ’s statements that the [objective]

medical evidence d[id] not reflect exacerbation of other medical

impairments [by Plaintiff’s obesity] is incorrect” (id. at 9

(referencing Tr. 33), and that Plaintiff could “‘rely exclusively

on subjective evidence to prove the severity, persistence, and

limiting effects of [his] symptoms’” (id. at 9-10 (quoting Arakas

v. Commissioner of Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir.

2020))). Those contentions miss the mark.

Plaintiff correctly notes that “[t]he ALJ issued his

unfavorable decision on August 16, 2019” (id. at 8 (citing Tr. 23-

43)) and “state[d] that he considered [Plaintiff]’s obesity

pursuant to SSR 02-[]Jlp” (id. (citing Tr. 31)), but that the SSA

“rescinded and replaced” SSR 02-l1p with “SSR 19-2p effective May

20, 2019” (id. (citing SSR 19-2p, 2019 WL 2374244, at *5 (“This SSR

is applicable on May 20, 2019.”))). As the Commissioner argues,

however, Plaintiff failed to show “how SSR 19-2p presents a

materially different standard, compared to SSR 02-1p” (Docket Entry

17 at 12), because “each of Plaintiff’s references to SSR 19-2p

have a nearly identical provision in SSR 02-[]1p:

Sees ee

indicates that the limiting | consider any functional

effects of obesity must be|limitations resulting from the

considered when assessing alJobesity in the [RFC]

person’s [RFC].” ([Docket Entry | assessment.” SSR O2-[]lp, 2002

15 at] 8[.]) WL 34686281, at *7.

22

Plaintiff states that SSR 19-2p|SSR 02-[]lp stated, “[o]lbesity

“acknowledges that a person may | can cause limitation of function

have limitations in sitting, |. . . [a]n individual may have

standing, and walking, and that | limitations in any of the

fatigue may affect a person’s]|exertional functions such as

physical and mental ability to ]|sitting, standing, walking,

sustain work.” ([Docket Entry | lifting, carrying, pushing, and

15 at] 8[.]) pulling” and “Tijn cases

involving obesity, fatigue may

affect the individual’s physical

and mental ability to sustain

work.” [SSR 02-lp, 2002 WL

34686281,] at *5.

Plaintiff states that SSR 19-2p|SSR O2-[]lp stated, “the

“notes that the combined effects | combined effects of obesity with

of obesity with other | other impairments can be greater

impairments may be greater than |than the effects of each of the

the effects of each of the/impairments considered

impairments considered □ separately.” [SSR 02-1p, 2002 WL

separately.” ([Docket Entry 15 | 34686281,] at *1.

at] 8[.]) 1]

Plaintiff states, “SSR 19-2p|SSR O02-[]1lp stated, “[wle will

indicates that all symptoms, | also consider the effects of any

including pain, will be | symptoms (such aS pain or

considered.” ([Docket Entry 15 | fatigue) that could Limit

at] 9[.]) functioning.” [SSR 02-l1p, 2002

WL 34686281,] at *4.

(Docket Entry 17 at 13.) In light of those nearly identical

provisions, Plaintiff has not demonstrated that the ALJ’s error in

applying SSR 02-l1p prejudiced his claims in any way. See generally

Fisher, 869 F.2d at 1057 (observing that “[n]o principle of

administrative law or common sense requires us to remand a case in

guest of a perfect opinion unless there is reason to believe that

the remand might lead to a different result”).

Plaintiff’s Arakas-based argument fares no better. (See

Docket Entry 15 at 9-10.) As an initial matter, Plaintiff

23

overstates the reach of Arakas. That case holds only “that ALJs

may not rely on objective medical evidence (or the lack thereof) —

even as just one of multiple factors — to discount a claimant’s

subjective complaints regarding symptoms of fibromyalgia or some

other disease that does not produce such evidence.” Arakas, 983

F.3d at 97 (emphasis added). Plaintiff makes no effort to argue

that his obesity constitutes a “disease that does not produce

[objective medical] evidence,” id. (Docket Entry 15 at 9-10.)

Furthermore, although Arakas “reiterate[d] the long-standing

law in [the Fourth C]Jircuit that disability claimants are entitled

to rely exclusively on subjective evidence to prove the severity,

persistence, and limiting effects of their symptoms,” Arakas, 983

F.3d at 98, long-standing cases containing the substance of that

holding, such as Craig and Hines (among others), clarify that,

“La]lthough a claimant’s allegations about h[is] pain may not be

discredited solely because they are not substantiated by objective

evidence of the pain itself or its severity, they need not be

accepted to the extent they are inconsistent with the available

evidence, including objective evidence of the underlying

impairment, and the extent to which that impairment can reasonably

be expected to cause the pain the claimant alleges []he suffers,”

Craig, 76 F.3d at 595 (emphasis added); see also Hines, 453 F.3d at

565 n.3 (quoting Craig, 76 F.3d at 595). In other words, under the

appropriate circumstances, an ALJ may choose to rely exclusively on

24

a claimant’s subjective symptom reports to find disabling symptoms;

however, Arakas does not compel ALJs to consider only subjective

evidence, as such a requirement would conflict with the

regulations, which plainly require ALJs to consider a variety of

factors, including objective medical evidence, in evaluating the

intensity, persistence, and limiting effects of symptoms. See 20

C.F.R. §§ 404.1529(c), 416.929(c) (directing ALJs to assess a

claimant’s medical history, medical signs and laboratory findings,

daily activities, testimony about nature and location of pain,

medication and other treatment used to alleviate pain, along with

medical opinions from examining and non-examining sources).

Here, in compliance with Arakas, Hines, and Craig, the ALJ

considered the objective medical evidence as one part of his

evaluation of the limiting effects of Plaintiff’s obesity. In that

regard, the ALJ found Plaintiff’s obesity a severe impairment at

step two of the SEP (see Tr. 29), and, at step three, indicated

that he “ha[d] considered the combination of [Plaintiff]’s obesity

with the other impairments,” as well as “the added impact that

obesity ha[d] on [Plaintiff’s] symptoms,” but “f[ou]nd that the

added effect [did not] cause[] his impairments to meet or equal a

listing” (Tr. 31). The ALJ then provided the following analysis of

Plaintiff’s obesity in the discussion of the RFC:

The objective medical evidence does not consistently

reflect the alleged extent of limiting effects related to

the obesity and osteoarthritis of the right knee. The

July 2015 evidence shows that [Plaintiff] was obese with

25

splitting [sic] edema of the extremities. However, the

August 2015 evidence shows that he maintained normal gait

and strength as well as intact knees. The October 2015

right knee x-ray showed moderate osteoarthritis. The

evidence shows physical examination findings, including

being globally obese, but neurologically normal despite

edema of the extremities. These findings were unchanged

from July 2015. The November 2015 medical consultative

examination report shows that he weighed 475 pounds. The

report further shows that he had an antalgic gait

secondary to lower back pain and knee pain, but he did

not use assistive devices. This is consistent with the

July and August 2017 physical examination findings.

The March 2018 evidence shows that [Plaintiff]’s BMI was

84.4, but the physical examination was generally normal,

including normal respiratory, musculoskeletal, and

neurological functioning. This is reasonably consistent

with the May 2018 evidence and physical examination

findings. Although he weighed 529 pounds as of August

2018, he still maintained normal range of motion. The

September 2018 evidence showed normal physical

examination findings, including normal gait,

cardiovascular, and respiratory functioning. The

September 2018 [sic] showed decreased breath sounds, but

there was no respiratory distress or wheezing. He also

maintained normal range of motion.

The October 2018 evidence shows normal gait in addition

to normal cardiovascular and respiratory functioning.

The November 2018 evidence shows that [Plaintiff]’s BMI

was 76.94. The November 2018 evidence shows that his

obesity limited evaluation of the abdomen and that he had

edema. However, he maintained normal gait, respiratory,

and cardiovascular functioning as of November 2018. The

December 2018 evidence showed normal gait as well as

normal cardiovascular and respiratory functioning despite

his BMI being 73.5. The January and February 2019

evidence shows normal physical examination findings,

including normal respiratory and cardiovascular

functioning as well as normal gait. Although these

objective medical findings support the existence of the

obesity, the findings of normal gait throughout the

record show that the obesity and osteoarthritis were not

significantly limiting beyond a sedentary restriction on

his ability to ambulate. Furthermore, the objective

medical evidence does not reflect that the obesity

exacerbated any related impairments.

26

(Tr. 32-33 (internal parenthetical citations omitted).)

Thereafter, the ALJ deemed Plaintiff’s daily activities

“inconsistent with the alleged extent of [Plaintiff’s]

difficulties,” noting that Plaintiff lived in a two-story home and

climbed the stairs “despite the alleged difficulty,” prepared

simple meals, drove, and “sought any job that would hire him,

including call-center and custodial work.” (Tr. 32.) The ALJ also

found “persuasive” the opinions of the state agency medical

consultants (Tr. 35), who included significant exertional

restrictions in the RFC expressly to account for Plaintiff’s

obesity (see Tr. 96-97, 108-09).9 The ALJ further commented that

“[a] review of [Plaintiff’s] work history shows that he made

minimal earnings prior to the alleged disability onset date,” and

that such a “limited work history raise[d] a question as to whether

his unemployment was actually due to medical impairments in light

of inconsistent medical findings.” (Tr. 25.) Thus, in analyzing

Plaintiff’s obesity, the ALJ properly considered the combined

effects of Plaintiff’s obesity with his other impairments,

9 The ALJ stated that the reconsideration-level consultant limited Plaintiff to

“occasionally lift[ing] 10 pounds, which is consistent with sedentary work.”

(Tr. 34-35 (citing Tr. 108).) That consultant actually limited Plaintiff to

occasionally lifting 20 pounds and frequently lifting 10 pounds (which is

consistent with light work, see 20 C.F.R. §§ 404.1567(b), 416.967(b)) but to two

hours total of standing and walking and six hours total of sitting (which is

consistent with sedentary work, see 20 C.F.R. §§ 404.1567(a), 416.967(a)). (See

Tr. 108-09.) The ALJ’s misstatement did not prejudice Plaintiff, as the ALJ

found Plaintiff more limited than the consultant in terms of Plaintiff’s ability

to lift/carry/push/pull, i.e., restricted him to sedentary work (see Tr. 31).

27

Plaintiff’s daily activities, Plaintiff’s work history, and the

opinion evidence, in addition to the objective medical evidence.

Plaintiff additionally argues that “[t]he ALJ’s statements

that the [objective] medical evidence d[id] not reflect

exacerbation of other medical impairments [by Plaintiff’s obesity]

is incorrect.” (Docket Entry 15 at 9 (referencing Tr. 33).)

According to Plaintiff, his “medical providers certainly seem[ed]

to believe that his obesity [wa]s impacting his other conditions

and that it [wa]s important to take even invasive means to lower

his weight.” (Id.) In support of that assertion, Plaintiff cites

a remark pre-dating his alleged onset date from Dr. Richard D.

Ramos in 2012 “‘that weight loss could definitely help with

[Plaintiff’s] knee pain’” and “‘may [or may not] help with his back

pain’” (id. (quoting Tr. 362)), as well as a statement from

bariatric surgeon Dr. Bruce Jon that duodenal switch surgery “would

be ‘most important’” for Plaintiff (id. (quoting Tr. 452)).

Plaintiff further points out that “it is impossible to know the

extent of several of [his] underlying conditions because his

obesity prevents proper medical assessment with objective testing.”

(Id.)

As an initial matter, the ALJ did not clarify what he meant by

“related impairments” in his statement that “the objective medical

evidence does not reflect that the obesity exacerbated any related

impairments.” (Tr. 33 (emphasis added).) Considered in the

28

context of the ALJ’s entire decision, however, the ALJ’s statement

could not mean that Plaintiff’s obesity had no impact on any of

Plaintiff’s other impairments. As discussed above, the ALJ noted

at step three of the SEP that he “ha[d] considered the added impact

[Plaintiff’s] obesity ha[d] on [his] symptoms.” (Tr. 31 (emphasis

added).) Moreover, the ALJ evaluated the objective medical

evidence relating to Plaintiff’s “obesity and osteoarthritis of the

right knee” together (Tr. 32) and found that, “[a]lthough these

objective medical findings support the existence of the obesity,

the findings of normal gait throughout the record show that the

obesity and osteoarthritis were not significantly limiting beyond

a sedentary restriction on his ability to ambulate” (Tr. 33

(emphasis added)). Thus, consistent with Dr. Ramos’s statement

that Plaintiff’s obesity impacted his knee pain,10 the ALJ found

that Plaintiff’s obesity and right knee arthritis, when considered

in combination, significantly limited Plaintiff’s ability to

ambulate and confined him to the sedentary level of exertion.

Additionally, Dr. Jon’s remark that duodenal switch surgery “would

be most important” for Plaintiff (Tr. 452) does not aid his cause,

because that ambiguous remark does not link Plaintiff’s obesity to

any particular impairment and reflects a general sense that

Plaintiff’s obesity likely will negatively impact his long-term

10 Notably, Dr. Ramos offered only an ambiguous opinion as to whether Plaintiff’s

obesity impacted his back pain. (See Tr. 362 (opining that “weight loss . . .

may or may not help with [Plaintiff’s] back pain”).)

29

health, rather than a specific opinion that his obesity, at that

time, actually exacerbated in any concrete way any particular

impairment.

Furthermore, as discussed above, although Plaintiff alleges

that his obesity prevented him from obtaining an MRI of his lumbar

spine, he maintained neither that his obesity precluded him from

procuring other imaging tests, nor that his size prevented his

practitioners from testing his range of motion, gait, and strength

(see Docket Entry 15 at 5, 9), all of which, as the ALJ noted,

consistently tested normal (see Tr. 32-33 (citing Tr. 386, 429-35,

445, 452, 459, 472, 484, 488, 528, 530, 532, 583, 585)).

Accordingly, Plaintiff has not shown the “impossib[ility]” of

determining “the extent of . . . his underlying conditions.”

(Docket Entry 15 at 9.)

Put simply, Plaintiff’s second issue on review falls short.

3. Function-by-Function Analysis

Lastly, Plaintiff asserts that “[t]he ALJ erred by failing to

perform a proper function-by-function evaluation of Plaintiff’s

ability to sit, stand, and walk when forming the RFC.” (Id. at 10

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

Plaintiff highlights his testimony and the medical evidence he

believes supports greater limitations on his ability to sit, stand,

and walk (see id. at 10-11 (citing Tr. 67-70, 73, 267, 401)), and

argues that, “despite summarizing th[e medical] evidence which is

30

supportive of [Plaintiff]’s testimony, the ALJ did not then explain

why [Plaintiff] was not more limited with sitting, standing, and

walking, as [Plaintiff] testified” (id. at 11), and “further

fail[ed] to explain how long [Plaintiff] can maintain a sitting or

standing posture or sustain walking at one time [and] did not

address the frequency of position change in the RFC” (id. at 12

(citing Tr. 31)). According to Plaintiff, “[t]he calculation of

frequency of position change (much like the calculation of time off

task) can be outcome determinative and the ALJ needs to explain how

that number was arrived upon.” (Id. (citing Holland v.

Commissioner of Soc. Sec. Admin., Civ. No. 17-1784, 2018 WL

1970745, at *10 (D. Md. Apr. 25, 2018) (unpublished) (remanding

where ALJ “failed to explain how her factual findings translate[d]

into a finding that [the p]laintiff would be off-task less than 15%

of the day” (internal quotation marks omitted)).) Plaintiff

additionally points out that “[t]he Fourth Circuit recently . . .

determin[ed] that the ALJ should have specifically addressed the

claimant’s testimony regarding how long he [sic] was capable of

sitting, especially in light of a sedentary RFC, and, further, that

ALJs have to perform a function-by-function analysis of contested

and relevant functions.” (Id. (citing Dowling, 986 F.3d at 388-

89).) Plaintiff’s arguments do not entitle him to relief.

RFC measures the most a claimant can do despite any physical

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

31

§§ 404.1545(a), 416.945(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), 416.945(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, 416.967. 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), 416.969a(c).

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

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

861, 865 (4th Cir. 2014). 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 v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)

(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.” Social Security

32

Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:

Assessing [RFC] in Initial Claims, 1996 WL 374184, at *1 (July 2,

1994) (“SSR 96-8p”).

The Fourth Circuit has addressed this administrative ruling

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

function-by-function analysis necessitates remand. See Mascio v.

Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015). Specifically, it

stated “that a per se rule is inappropriate given that remand would

prove futile in cases where the ALJ does not discuss functions that

are irrelevant or uncontested,” id. at 636, but that “‘remand may

be appropriate where an ALJ fails to assess a claimant’s capacity

to perform relevant functions, despite contradictory evidence in

the record, or where other inadequacies in the ALJ’s analysis

frustrate meaningful review,’” id. (internal brackets and ellipsis

omitted) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.

2013)).

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

of Plaintiff’s abilities to sit, stand, and walk (see Tr. 31-35);

however, no basis for remand exists, because the ALJ’s decision

nevertheless supplies the necessary “accurate and logical bridge,”

Woods, 888 F.3d at 694 (internal quotation marks omitted), between

the evidence and his findings that Plaintiff’s obesity and right

knee osteoarthritis (A) qualified as severe (see Tr. 29) but (B)

did not cause limitations greater than the sitting, standing, and

33

walking requirements of sedentary work with additional restrictions

on climbing and exposure to environmental elements (see Tr. 31).

First, Plaintiff relies solely on his own subjective

statements to support his argument that the RFC should have 1)

included express limits on how long Plaintiff could sit, stand, and

walk at one time, and 2) addressed how often Plaintiff must change

position. (Docket Entry 15 at 10-12 (citing Tr. 67-70, 73, 267,

401).)11 The ALJ, however, found that, “[a]s for [Plaintiff]’s

statements about the intensity, persistence, and limiting effects

of his . . . symptoms, the record does not support the alleged

severity of the impairments” (Tr. 32), a finding Plaintiff did not

challenge (see Docket Entry 15). Moreover, none of Plaintiff’s

medical providers opined that Plaintiff’s impairments necessitated

greater limits on how long Plaintiff could sit, stand, or walk than

the RFC currently reflects, and none opined that Plaintiff needed

to change positions at any particular frequency, which

significantly undermines Plaintiff’s argument. See Lamonds v.

Berryhill, No. 1:16CV1145, 2017 WL 1906755, at *10 (M.D.N.C. May 9,

2017) (unpublished) (“[T]he ALJ’s omission of a sit/stand option

from the RFC . . . does not constitute error, because no medical

11 Although Plaintiff maintains that Dr. Fields noted that “‘[Plaintiff] is

unable to comfortably sit or stand for any period of time and he cannot lift any

weight or walk any distance comfortably’” (Docket Entry 15 at 10-11 (quoting Tr.

401)), that statement appears in the initial portion of Dr. Fields’s report and

clearly reflects Plaintiff’s subjective statements to Dr. Fields. Dr. Fields’s

physical examination led him to assess only unspecified “ambulatory limitations”

(Tr. 402), and Plaintiff has made no argument that the RFC’s limitation to

sedentary work did not adequately accommodate that vague opinion (see Docket

Entry 15).

34

source of record opined that [the p]laintiff required a sit/stand

option.”), recommendation adopted, slip op. (M.D.N.C. May 24, 2017)

(Schroeder, J.); Spicer v. Astrue, No. CIV. 11-3679, 2013 WL

951582, at *14 (D. Minn. Feb. 11, 2013) (unpublished) (rejecting

the plaintiff’s argument that “ALJ failed to include a sit/stand

option at will in the RFC finding,” which “[wa]s supported by her

testimony that she cannot sustain any posture for very long due to

constant pain,” where “[n]o physician gave her th[at] restriction”

and “the record d[id] not otherwise support a sit/stand at will

limitation”), recommendation adopted, 2013 WL 950850 (D. Minn. Mar.

12, 2013) (unpublished).

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

the sitting, standing, and walking limitations in the RFC. In that

regard, the ALJ found “persuasive” the opinions of the state agency

medical consultants that Plaintiff remained capable of two hours

total of standing and walking and six hours total of sitting in an

eight-hour workday (see Tr. 96-97, 108-09), but added significant

environmental restrictions (see Tr. 31), which further account for

Plaintiff’s obesity, see SSR 19-2p, 2019 WL 2374244, at *4

(“Obesity may also affect a person’s ability to . . . tolerate

extreme heat, humidity, or hazards.”).

Third, the ALJ’s discussion of the medical evidence relating

to Plaintiff’s obesity and right knee osteoarthritis makes clear

that the ALJ properly considered the evidence regarding Plaintiff’s

35

abilities to sit, stand, and walk. In that regard, the ALJ noted

that:

° “[T]he August 2015 evidence shows that [Plaintiff]

maintained normal gait and strength as well as

intact knees. ... The evidence shows physical

examination findings, including being globally

obese, but neurologically normal despite edema of

the extremities. These findings were unchanged

from July 2015.” (Tr. 32-33 (emphasis added)

(internal citations omitted) (citing Tr. 386, 429-

35))}

“The November 2015 medical consultative examination

report shows that he weighed 475 pounds. The

report further shows that he had an antalgic gait

secondary to lower back pain and knee pain, but he

did not use assistive devices. This is consistent

with the July and August 2017 physical examination

findings.” (Tr. 33 (emphasis added) (internal

citations omitted) (citing Tr. 401-02, 445));

“The March 2018 evidence shows that [his] BMI was

84.4, but the physical examination was generally

normal, including normal respiratory,

musculoskeletal, and neurological functioning.

This is reasonably consistent with the May 2018

evidence and physical examination findings.

Although he weighed 529 pounds as of August 2018,

he still maintained normal range of motion. The

September 2018 evidence showed normal physical

examination findings, including normal gait,

cardiovascular and respiratory functioning[,

and] . . . range of motion.” (Id. (emphasis added)

(internal citations omitted) (citing Tr. 450, 452,

459, 472, 484, 488));

° “The October 2018 evidence shows normal gait in

addition to normal cardiovascular and respiratory

functioning. The November 2018 evidence shows that

[his] BMI was 76.94[, but] . . . he maintained

normal gait, respiratory, and cardiovascular

functioning ... . The December 2018 evidence

showed normal gait as well as normal cardiovascular

and respiratory functioning despite his BMI being

73.5. The January and February 2019 evidence shows

normal physical examination findings, including

36

normal respiratory and cardiovascular functioning

as well as normal gait.” (Id. (emphasis added)

(internal citations omitted) (citing Tr. 517, 528,

530, 532, 583, 585)); and

• “[T]he record does not reflect that his ability to

ambulate was significantly limited to the extent

that required an assistive device[, as] the

evidence generally shows that his gait was

normal . . . .” (Id.)

As discussed above, the ALJ also observed that Plaintiff’s

daily activities and work history remained inconsistent with his

allegations of disabling symptoms. (See Tr. 32, 35.) That

analysis suffices to show that the ALJ complied with Mascio and SSR

96-8p by appropriately evaluating Plaintiff’s abilities to sit,

stand, and walk. Moreover, by pointing to record evidence

Plaintiff believes supports greater limitations on his abilities to

sit, stand, and walk, he 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 sit, 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.”).

37

Finally, as the Commissioner argues, “Plaintiff’s reliance on

Dowling[] is misplaced” (Docket Entry 17 at 15) because, in that

case, the plaintiff suffered from two medically determinable

impairments, inflammatory bowel disease and an anal fissure, which

“caused her to experience discomfort when she s[at] for a prolonged

period of time,” Dowling, 986 F.3d at 388. In contrast, here,

Plaintiff has supplied only vague and conflicting statements

explaining what limits his ability to sit. (See Tr. 69-70

(testifying: “[S]itting here, I’ve already needed to get up. I’ve

been sitting here, but just dealing with the pain, you know; I’m

uncomfortable. So, but then, in the chair, I could maybe sit for,

you know, 20 minutes, or 30 minutes . . .” (emphasis added)), 267

(checking box “Sitting” on Function Report and stating “I am unable

to complete the items checked due to morbid obesity” (emphasis

added)).)

In light of the foregoing analysis, the Court should deny

relief on Plaintiff’s third and final assignment of error.

III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

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

Judgment on the Pleadings (Docket Entry 14) be denied, that

38

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 16)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 9, 2021

39