VIDRO-OJEDA v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALVIN VIDRO-OJEDA, )

)

Plaintiff, )

)

v. ) 1:20CV238

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Alvin Vidro-Ojeda, 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 claim for Disability Insurance

Benefits (“DIB”). (Docket Entry 1.) Defendant has filed the

certified administrative record (Docket Entries 10, 11 (cited

herein as “Tr. __”)), and both parties have moved for judgment

(Docket Entries 13, 15; see also Docket Entry 14 (Plaintiff’s

Memorandum); Docket Entry 16 (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, alleging a disability onset date of

May 19, 2017. (Tr. 211-17.) Upon denial of that application

initially (Tr. 83-97, 118-21) and on reconsideration (Tr. 98-117,

165-72), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 125-26). Plaintiff, his

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

(Tr. 40-82.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 11-34.) The Appeals

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

208-10, 342-44), thereby making the ALJ’s ruling the Commissioner’s

final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2022.

2. [Plaintiff] has not engaged in substantial gainful

activity since May 19, 2017, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairments:

severe arthrosis of the left ankle, status-post fusion;

bilateral patella femoral pain syndrome; degenerative

disc disease of the lumbar spine; obstructive sleep

apnea; insomnia; post-traumatic stress disorder; and

adjustment disorder.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

2

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

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

capacity to perform sedentary work . . . except, he can

occasionally operate foot controls with the left foot.

He can occasionally climb ramps and stairs; never climb

ladders, ropes, or scaffolds; and occasionally balance,

stoop, kneel, crouch, and crawl. He can occasionally

work around unprotected heights and moving mechanical

parts. He is limited to work environments with a maximum

noise level of “moderate” as defined in the [Selected

Characteristics of Occupations Defined in the Revised

Dictionary of Occupational Titles (“SCO”)]. He can

perform simple, routine, and repetitive tasks and make

simple work-related decisions. He can frequently

interact with supervisors; occasionally interact with

coworkers, but should not perform any tandem or teamwork

type activity; and can never have work related

interaction with the general public, though occasional

superficial contact can be tolerated.

. . .

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 19, 2017, through the

date of this decision.

(Tr. 16-34 (bold font and internal parenthetical citations

omitted).)

3

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

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

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

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

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

not established entitlement to relief under the extremely limited

review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a

reviewing court must uphold the factual findings of the ALJ

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

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

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

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

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

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

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

conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled, the responsibility for that

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

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

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

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

is supported by substantial evidence and was reached based upon a

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

585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

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

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

and that, in this context, “disability” means the “‘inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

5

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).2 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

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

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

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

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2

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

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

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

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

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

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

citations omitted).

6

(4th Cir. 1999).3 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

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

the ALJ must assess the claimant’s [RFC].” Id. at 179.4 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

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

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

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

4 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

7

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the RFC] and [the claimant’s] vocational capabilities (age,

education, and past work experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65. If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]

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

claimant qualifies as disabled. Hines, 453 F.3d at 567.5

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 evaluate Listing 1.03”

(Docket Entry 14 at 4 (bold font omitted));

2) “[t]he ALJ erred in her evaluation of the medical opinion

evidence” (id. at 7 (bold font omitted)); and

3) “[t]he ALJ erred in her evaluation of Plaintiff’s

testimony” (id. at 15 (bold font omitted)).

5 A claimant thus can qualify as disabled via two paths through the SEP.

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

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

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

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

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

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

8

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 16 at 5-16.)

1. Listing 1.03

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

ALJ erred by failing to evaluate Listing 1.03 [(‘[r]econstructive

surgery or surgical arthrodesis of a major weight-bearing

joint’)].” (Docket Entry 14 at 4 (bold font omitted).) According

to Plaintiff, “the record contains evidence of all the relevant

criteria” of Listing 1.03 (id. at 5), as he “underwent a left ankle

fusion surgery with hardware placement (arthrodesis)” on May 19,

2017 (id. (citing Tr. 454, 703-07)), and “the evidence reveals that

over a year after his May 2017 left ankle arthrodesis, [he] had not

returned to effective ambulation” (id. at 7; see also id. at 6

(describing testimony and other evidence Plaintiff believes

supports his inability to ambulate effectively (citing Tr. 52-53,

55-56, 62-64, 67-68, 71, 1174, 1178, 1783, 1799-1803, 1835, 1889,

1893-94))). Plaintiff further points out that, “[w]hile the ALJ

found (when assessing Listings 1.02 and 1.04) that [Plaintiff] did

not suffer an inability to ambulate effectively because he only

used a cane sometimes and this did not limit both of his upper

extremities (see [Tr.] 18), the ALJ failed to evaluate

[Plaintiff’s] ‘inability to walk a block at a reasonable pace on

rough or uneven surfaces’ which is another way that a claimant can

9

meet the criteria of inability to ambulate effectively.” (Id. at

7 (quoting 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.00B2b, and

citing Ezzell v. Berryhill, 688 F. App’x 199, 201 (4th Cir.

2017)).)

“Under Step 3, the [SSA’s SEP] regulation states that a

claimant will be found disabled if he or she has an impairment that

‘meets or equals one of [the] listings in appendix 1 of [20 C.F.R.

Pt. 404, Subpt. P] and meets the duration requirement.’” Radford

v. Colvin, 734 F.3d 288, 293 (4th Cir. 2013) (quoting 20 C.F.R.

§ 404.1520(a)(4)(iii) (internal bracketed numbers omitted)). “The

listings set out at 20 CFR pt. 404, subpt. P, App. 1, are

descriptions of various physical and mental illnesses and

abnormalities, most of which are categorized by the body system

they affect. Each impairment is defined in terms of several

specific medical signs, symptoms, or laboratory test results.”

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote

and parentheticals omitted).

“In order to satisfy a listing and qualify for benefits, a

person must meet all of the medical criteria in a particular

listing.” Bennett v. Sullivan, 917 F.2d 157, 160 (4th Cir. 1990)

(citing Zebley, 493 U.S. at 530, and 20 C.F.R. 404.1526(a)); see

also Zebley, 493 U.S. at 530 (“An impairment that manifests only

some of those criteria [in a listing], no matter how severely, does

not qualify.”). “An impairment or combination of impairments

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medically equals a listing when it is at least equal in severity

and duration to the criteria of any listed impairment.” Grimes v.

Colvin, No. 1:14CV891, 2016 WL 1312031, at *4 (M.D.N.C. Mar. 31,

2016) (unpublished) (Osteen, Jr., C.J.) (citing 20 C.F.R.

§ 416.926(a)-(b)) (emphasis added); see also Lewis v. Apfel, 236

F.3d 503, 514 (9th Cir. 2001) (“A finding of medical equivalence

must be based on medical evidence only.” (citing 20 C.F.R.

§ 404.1529(d) (3)) (emphasis added)). “A claimant cannot qualify

for benefits under the ‘equivalence’ step by showing that the

overall functional impact of [her] unlisted impairment or

combination of impairments is as severe as that of a listed

impairment.” Zebley, 493 U.S. at 531 (emphasis added).

“[TO]nly where there is ample evidence in the record to support

a determination that a claimant’s impairment meets or equals one of

the listed impairments must the ALJ identify the relevant listed

impairments and compare them to evidence of a plaintiff’s

symptoms.” Reynolds v. Astrue, No. 3:11CV49, 2012 WL 748668, at *4

(W.D.N.C. Mar. 8, 2012) (unpublished) (emphasis added) (citing Cook

v. Heckler, 783 F.2d 1168, 1172-73 (Ath Cir. 1986)); see also

Russell _v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL

417576, at *3 (4th Cir. July 7, 1995) (unpublished) (“Cook,

however, does not establish an inflexible rule requiring an

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exhaustive point-by-point discussion [of listings] in all

cases.”).°

To satisfy the criteria of Listing 1.03, Plaintiff must show

that he underwent “[r]econstructive surgery or surgical arthrodesis

of a major weight-bearing joint, with inability to ambulate

effectively, as defined in [§] 1.00B2b, and return to effective

ambulation did not occur . . . within 12 months of onset.” 20

C.F.R. Pt. 404, Subpt. P, App’x 1, §$ 1.03. In turn, the

regulations define “[i]neffective ambulation” as “an extreme

limitation of the ability to walk” and as “having insufficient

lower extremity functioning to permit independent ambulation

without the use of a hand-held assistive device that limits the

functioning of both upper extremities,” 20 C.F.R. Pt. 404, Subpt.

° The Cook court’s confinement of the ALJ’s duty to explicitly identify

listings and compare their elements to the record to situations in which the

claimant comes forward with “ample evidence” that an impairment meets a listing

makes sense. “Step two of the [SEP] is a threshold question with a de minimis

severity requirement,” Felton-Miller v. Astrue, 459 F. App’x 226, 230 (4th Cir.

2011) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)), but “[t]he criteria

in the medical listings [at step three] are demanding and stringent,” Falco v.

Shalala, 27 F.3d 160, 162 (5th Cir. 1994) (internal quotation marks omitted); see

also Zebley, 493 U.S. at 532 (“[The Social Security Administration] has set the

medical criteria defining the listed impairments at a higher level of severity

than the statutory [disability] standard.”). Accordingly, the mere fact that

an impairment qualifies as severe at step two does not suggest that it meets a

listing at step three. No reason thus exists for courts to require ALJs to

document the manner in which every impairment deemed severe at step two fails to

meet a listing at step three; rather, common sense supports the Fourth Circuit’s

decision in Cook to insist that ALJs discuss a specific listing only when the

claimant marshals “ample evidence” that an impairment actually meets the criteria

for that listing. Nor does the more recent ruling in Radford counsel otherwise.

Although the Fourth Circuit there remanded due to an ALJ’s “insufficient legal

analysis” at step three, it did so consistently with the standard set in Cook,

as the record contained “probative evidence strongly suggesting that [the

claimant] me[t] or equalled a particular listing].” Radford, 734 F.3d at 295.

12

P, App’x 1, § 1.00B2b1 (emphasis added), i.e., “a walker, two

crutches or two canes,” id., § 1.00B2b2. Other “[e]xamples of

ineffective ambulation include, but are not limited to, . . . the

inability to walk a block at a reasonable place on rough or uneven

surfaces, the inability to use standard public transportation, the

inability to carry out routine ambulatory activities, such as

shopping and banking, and the inability to climb a few steps at a

reasonable pace with the use of a single hand rail.” Id. (emphasis

added).

Here, as Plaintiff observed (see Docket Entry 14 at 5), the

ALJ did not evaluate whether Plaintiff’s left ankle impairment met

or equaled the criteria of Listing 1.03 (see Tr. 18); however, that

omission, if error at all, remains harmless error under the

circumstances of 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 perfect opinion unless there is reason to believe that

the remand might lead to a different result”). The ALJ expressly

determined that Plaintiff’s left ankle condition failed to meet or

equal Listings 1.02 and 1.04, because Plaintiff had not shown an

inability to ambulate effectively:

As to degenerative disc disease of the lumbar spine, this

impairment, considered singly and in combination with

[Plaintiff]’s other impairments, does not meet or equal

[L]isting 1.04. Listing l.04 requires “A. evidence of

nerve root compression” or “B. spinal arachnoiditis” or

13

“Cc. lumbar spinal stenosis”, resulting in the inability

to ambulate effectively. “Inability to ambulate

effectively means an extreme limitation of the ability to

walk”. Consideration was given to Radford v. Colvin, 734

F.3d 288 (4th Cir. 2013) and the [SSA]’s Acquiescence

Ruling 15-1(4), with regard to Listing 1.04A.

Findings of neurological deficits are required to meet

Listing 1.04A, which are not present in this matter, as

detailed in the [RFC] discussion. Further, there is no

evidence of spinal arachnoiditis in the record with

respect to 1.04B. Moreover, the record demonstrates that

[Plaintiff] does not have the inability to ambulate

effectively, with respect to 1.04C, for the reasons

detailed in . . . the [RFC] discussion regarding

assistive device use. For example, while [Plaintiff]

testified that he has been using a cane for the past two

years, he also testified that he does not necessarily use

it all the time (using it depending on “distance”), and,

in any event, listing 1.04 would additionally require

“use of a hand-held assistive device(s) that limits the

functioning of both upper extremities”. Here, a cane

only limits the use of one upper extremity, at most.

Accordingly, the evidence does not support a finding that

[Plaintiff] meets the criteria for Listing 1.04 for spine

disorders.

As to severe arthrosis of the left ankle and bilateral

knee patella femoral pain syndrome, these impairments,

considered singly, in combination, and in combination

with [Plaintiff]’s other impairments, do not meet or

equal listing 1.02. Here, the record fails to show an

“inability to ambulate effectively”, for the reasons set

forth in the above analysis of listing 1.04. Therefore,

listing 1.02 is not met or equaled.

(Tr. 18 (emphasis added) (internal parenthetical citations

omitted).) As Listing 1.03 also requires an inability to ambulate

effectively, compare 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.03,

with id., §§ 1.02, 1.04, remanding for an express discussion of

Listing 1.03 by the ALJ would not result in a different outcome of

Plaintiff’s claim.

14

Plaintiff challenges the ALJ’s underlying finding that

Plaintiff had not demonstrated an inability to ambulate

effectively, noting that “the evidence reveals that over a year

after his May 2017 left ankle arthrodesis, [he] had not returned to

effective ambulation.” (Docket Entry 14 at 7; see also id. at 6

(describing testimony and other evidence Plaintiff believes

supports his inability to ambulate effectively (citing Tr. 52-53,

55-56, 62-64, 67-68, 71, 1174, 1178, 1783, 1799-1803, 1835, 1889,

1893-94))). That argument falls short for three reasons.

First, with regards to Plaintiff’s testimony, the ALJ

considered Plaintiff’s statements that he “ha[d] been using a cane

for two years, including when getting out of a chair to stand, but

. . . not . . . all the time (use of a cane ‘depend[ed] on

distance’)” (Tr. 21; see also Tr. 52), as well as his assertion

that “he could stand and balance without a cane for 3-4 minutes”

(Tr. 22; see also Tr. 52-53), but found that his “statements

concerning the intensity, persistence and limiting effects of [his]

symptoms [we]re not entirely consistent with the medical evidence

and other evidence in the record” (Tr. 22). As explained in more

detail in the context of Plaintiff’s third assignment of error, the

ALJ did not err with regard to her assessment of Plaintiff’s

subjective symptom reporting.

Second, the ALJ’s discussion of the medical evidence also

supports her conclusion that Plaintiff had not shown an inability

15

to ambulate effectively. As the above-quoted step three analysis

by the ALJ indicates, the ALJ incorporated her assistive device

discussion in the RFC analysis into her rationale at step three for

finding Plaintiff had not shown an inability to ambulate

effectively. That assistive device discussion, in turn, consisted

of the following remarks:

. . . [A]s to gait and assistive device use in

particular, the [ALJ] notes, [Plaintiff] reported regular

cane use, occasional walker use, and requiring a scooter

to “move about” in the treatment records. However, the

treatment records since the alleged onset date,

specifically, the DOD records, note [Plaintiff] only

temporarily being on a non-weight-bearing status during

which [he] presumably used an assistive device, though

one is not specified. The DOD records note [Plaintiff]

being on a non-weight-bearing status in a cast only after

his left ankle surgery on May 19, 2017 until a follow-up

appointment on June 7, 2017 at which time his provider

fitted [Plaintiff] with a short leg walking cast.

Shortly thereafter, his provider transitioned [Plaintiff]

to a Cam boot on June 28, 2017 with weight-bearing as

tolerated, and then, on August 2, 2017, his provider

indicated that [Plaintiff] could ambulate with regular

shoes and could use the Cam boot as needed going forward,

if he so chose.

Moreover, while [Plaintiff] presumably used an assistive

device when he was a non-weight bearing status after the

May 19, 2017 surgery until the June 7, 2017 appointment,

and while [Plaintiff] may currently use a cane at times,

the treatment records fail to document any noted

assistive device upon exam since the alleged onset date.

In fact, the last time that the record documented

assistive device use upon exam was in the form of

crutches at some exams in 2010, which is approximately

seven years prior to the alleged onset date. The

treatment records also otherwise reveal a normal or

steady gait or otherwise failed to reveal any noted

abnormalities in terms of gait upon exam since the

alleged onset date. In fact, [Plaintiff] testified,

while he subjectively requires a cane to stand from a

16

seated position, he also testified that be only uses a

cane depending on the distance. This intermittent use is

generally consistent with the treatment records failing

to regularly document assistive device upon exam since

the alleged onset date.

(Tr. 24 (internal parenthetical citations omitted).) That thorough

analysis further supports the ALJ’s finding that Plaintiff had not

shown an inability to ambulate effectively.

Moreover, the evidence on which Plaintiff relies would not

have compelled the ALJ to find Plaintiff unable to ambulate

effectively. (See Docket Entry 14 at 6 (citing Tr. 1783, 1799-

1803, 1835, 1889, 1893-94).) That evidence largely reflects

Plaintiff’s subjective statements to providers about his left ankle

condition (which the ALJ discounted (see Tr. 22)) and lacks

objective findings of gait impairment. (See Tr. 1783 (6/6/18 -

Plaintiff’s report of fewer activities and falls while walking to

psychologist during therapy without accompanying physical

examination or gait/cane observations), 1801-03 (4/24/19 - routine

follow-up appointment with physician assistant documenting

Plaintiff’s full range of motion, full strength, normal reflexes,

and normal neurological findings with no abnormal gait or cane use

noted), 1835 (11/8/18 - Plaintiff’s statements to psychiatrist that

he had “been falling down due to his foot” and that he was

“[s]upposed to wear [sic] a cane but [wa]s not using it” without

contemporaneous objective findings).)

17

The last remaining record cited by Plaintiff documented his

subjective complaint to a VA Compensation and Pension (“C&P”)

examiner that he could not “walk on uneven surfaces” (Tr. 1889), as

well as objective findings of no range of motion (see Tr. 1890) and

decreased strength (see Tr. 1893) in the left ankle, but also noted

neither gait abnormality nor the presence of a cane at the

examination (see Tr. 1889-97), no tenderness (see Tr. 1890), no

crepitus (see id.), no atrophy (see Tr. 1893), no instability (see

Tr. 1894), and no dislocation (see id.). The examiner further

noted that Plaintiff’s ankylosis remained in good weight-bearing

position (see id.) and opined that “pain, weakness, fatigability or

incoordination [would not] significantly limit [Plaintiff’s]

functional ability with repeated use over a period of time” (Tr.

1892). Ultimately, the examiner concluded that Plaintiff’s “ankle

condition m[ight] impact [his] ability to perform activity, such as

lifting, pushing, pulling, prolonged or repetitive squatting,

climbing stairs, walking, or standing.” (Tr. 1897 (emphasis

added) .) As the ALJ already accounted for that equivocal, non-

specific opinion by placing limits on all of those activities in

the RFC (see Tr. 20-21; see also Tr. 29 (finding opinion “vague”

and lacking “specific functional limitations” but noting that

Plaintiff “generally having exertional and postural limitations

[wa]ls consistent with the record”), Plaintiff has not shown that

18

this examination should have compelled the ALJ to find an inability

to ambulate effectively.

Third, Plaintiff’s contention that “the ALJ failed to evaluate

[Plaintiff’s] ‘inability to walk a block at a reasonable pace on

rough or uneven surfaces’” (Docket Entry 14 at 7 (quoting 20 C.F.R.

Pt. 404, Subpt. P, App’x 1, § 1.00B2b, and citing Ezzell, 688 F.

App’x at 201)) ultimately misses the mark. In support of that

argument, Plaintiff points to his “testi[mony] that he still

tripped on uneven surfaces such as bumpy carpet and grass in June

of 2019 – over two years after his fusion surgery” (id.

(referencing Tr. 62-63)), as well as “notations in the file that he

was having trouble with falls and could not walk on uneven surfaces

since his fusion surgery” (id. (referencing Tr. 1783, 1835, 1889)).

Although the ALJ did not expressly evaluate whether Plaintiff

could walk a block at a reasonable pace on rough or uneven surfaces

in his step three analysis (see Tr. 18), remanding on that basis

would not result in a more favorable outcome for Plaintiff.

Plaintiff’s attempt to rely solely on his own testimony and

“notations in the file,” i.e., his subjective statements to medical

providers about falls and difficulty walking, to establish his

inability to ambulate effectively (Docket Entry 14 at 7

(referencing Tr. 62-63, 1783, 1835, 1889)) fails for two reasons.

First, the determination of whether Plaintiff’s impairments caused

an inability to ambulate effectively constitutes a medical finding

19

requiring objective medical evidence. See 20 C.F.R.

§ 404.1525(c)(3); see also Nutt v. Commissioner of Soc. Sec.

Admin., No. 20-CV-11674, 2021 WL 3828590, at *3 (E.D. Mich. Aug.

27, 2021) (unpublished) (rejecting the plaintiff’s “assert[ion]

that her testimony about . . . difficulty walking on uneven ground”

established an inability to ambulate effectively, and holding that

the plaintiff “[can]not rely solely on her subjective statements to

make her argument”); Bert H. v. Saul, No. 2:20CV4922, 2021 WL

2808692, at *5 (C.D. Cal. July 6, 2021) (unpublished) (holding that

“[the p]laintiff’s subjective complaints [do not] constitute[]

objective medical evidence of an inability to ambulate

effectively”); Nguyen v. Berryhill, No. 1:17CV1020, 2018 WL

2018067, at *4 (D.S.D. May 1, 2018) (unpublished) (“[The p]laintiff

claims that because she walks slowly, she is unable to walk at a

reasonable p[]ace on rough or uneven surfaces . . .[; h]owever,

there is no evidence in the record, beyond [the] plaintiff’s

subjective complaints, to support her claims.”); Gambill v. Colvin,

No. CIV-15-1271, 2016 WL 7324148, at *4 (W.D. Okla. Nov. 21, 2016)

(unpublished) (“[The plaintiff] does not . . . direct the court to

any authority holding that a step three finding of presumptive

disability can be made on the basis of her self-reports and

testimony alone.”), recommendation adopted, 2016 WL 7324088 (W.D.

Okla. Dec. 15, 2016) (unpublished); Roby v. Colvin, No. 1:14CV164,

2015 WL 13745721, at *5 (W.D. Ky. Nov. 3, 2015) (unpublished)

20

(finding no reversible error arising from ALJ’s failure to discuss

Listing 1.06 where “[t]he only support for [the plaintiff]’s

inability to ambulate effectively [wa]s his own subjective

testimony, which without corroborating objective medical evidence,

does not establish a substantial question [regarding whether he

meets Listing 1.06]” (citing Shavers v. Secretary of Health & Human

Servs., 839 F.2d 232, 234 (6th Cir. 1987))), recommendation

adopted, 2016 WL 164325 (W.D. Ky. Jan. 13, 2016) (unpublished).

Second, as noted above, the ALJ discounted Plaintiff’s statements

about the intensity and limiting effects of his symptoms (see Tr.

22) and, as detailed below in the context of Plaintiff’s third

issue on review, the ALJ did not err in that regard.

Plaintiff additionally cites to two Physical Medical Source

Statements (“MSS”) from Mary Kathryn Newell, PA-C (“PA Newell”),

and Chad E. Watts, PA-C (“PA Watts”), who each opined that

Plaintiff could walk for less than one block without rest or severe

pain (see Docket Entry 14 at 6 (citing Tr. 1174, 1178)). The ALJ,

however, found the opinions of PA Newell and PA Watts “not

persuasive” because they “failed to support their opinions with an

adequate citation to objective findings” and because “the extent of

the limitations suggested in th[o]se opinions [wa]s not consistent

with the record” (Tr. 29). As discussed in more detail infra in

connection with Plaintiff’s second assignment of error, the ALJ did

not err in discounting those opinions.

21

In sum, Plaintiff’s first assignment of error fails as a

matter of law.

2. Opinion Evidence

In Plaintiff’s second issue on review, he faults the ALJ for

erring “in her evaluation of the medical opinion evidence.”

(Docket Entry 14 at 7 (bold font omitted).) In particular,

Plaintiff contests the ALJ’s decision to discount the

persuasiveness of the MSSs from PA Newell and PA Watts as lacking

supporting objective findings (id. at 10-11), noting that PA Newell

and PA Watts “specifically cited to the conditions diagnosed . . .,

treatment undergone . . . and symptoms resulting therefrom . . .

which caused [Plaintiff’s] work related limitations” (id. at 10

(citing Tr. 1174-79)). Plaintiff additionally asserts that “the

record demonstrates, contrary to the ALJ’s reasoning, that

[Plaintiff] continued to struggle with ankle pain, weakness,

limited [range of motion], limited mobility, falls, inability to

manage uneven terrain and other difficulties associated with his

severe left ankle arthrosis and deformity . . . after his fusion

surgery.” (Id. at 15.) Plaintiff deems the ALJ’s alleged error in

that regard “harmful,” because the VE testified that an individual

“off task more than 10 percent” and “requiring [] hour long breaks”

could not “perform[ ] competitive, full time work.” (Id. (citing

Tr. 77-79).) Those arguments do not warrant reversal or remand.

22

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 211-17)), the SSA has enacted

substantial revisions to the regulations governing the evaluation

of opinion evidence. See Revisions to Rules Regarding the

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

168819 (Jan. 18, 2017). Under the new regulations, ALJs need not

assign an evidentiary weight to medical opinions or accord special

deference to treating source opinions. See 20 C.F.R.

§ 404.1520c(a) (2017) (providing that ALJs “will not defer or give

any specific evidentiary weight, including controlling weight, to

any medical opinion(s) or prior administrative medical finding(s),

including those from [a claimant’s] medical sources”).7 Instead,

an ALJ must determine and “articulate in [the] . . . decision how

persuasive [he or she] find[s] all of the medical opinions and all

of the prior administrative medical findings in [a claimant’s] case

record.” 20 C.F.R. § 404.1520c(b) (2017) (emphasis added).

Moreover, when a medical source provides more than one opinion or

finding, the ALJ will evaluate the persuasiveness of such opinions

or findings “together in a single analysis” and need not articulate

7 The new regulations define a “medical opinion” as “a statement from a

medical source about what you can still do despite your impairment(s) and whether

you have one or more impairment-related limitations or restrictions” in the

abilities to perform the physical, mental, or other demands of work activity or

to adapt to environmental conditions. 20 C.F.R. § 404.1513(a)(2) (2017). Those

regulations also define a “prior administrative medical finding” as a “finding,

other than the ultimate determination about whether [a claimant is] disabled,

about a medical issue made by [the SSA’s] Federal and State agency medical and

psychological consultants at a prior level of review.” 20 C.F.R.

§ 404.1513(a)(5) (2017).

23

how he or she considered those opinions or findings “individually.”

20 C.F.R. § 404.1520c(b)(1) (2017).

In evaluating the persuasiveness of an opinion or finding, the

SSA deems supportability and consistency “the most important

factors” and thus the ALJ must address those two factors in

evaluating the persuasiveness of an opinion or a finding. 20

C.F.R. § 404.1520c(b)(2) (2017).8 The ALJ must only address the

three other persuasiveness factors — the nature and extent of the

medical source’s relationship with the claimant and area of

specialization, as well as the catch-all “other factors that tend

to support or contradict” the opinion/finding, 20 C.F.R.

§ 404.1520c(c)(3)-(5) (2017) — when the ALJ finds two or more

opinions or findings about the same issue “[e]qually persuasive” in

terms of supportability and consistency, 20 C.F.R.

§ 404.1520c(b)(3) (2017). The new regulations further deem

“inherently neither valuable nor persuasive,” 20 C.F.R.

§ 404.1520b(c) (2017), “[s]tatements on issues reserved to the

Commissioner,” 20 C.F.R. § 404.1520b(c)(3) (2017), such as

statements that a claimant does not qualify as disabled or remains

unable to work, 20 C.F.R. § 404.1520b(c)(3)(I) (2017).

8 “Supportability” means “[t]he extent to which a medical source’s opinion

is supported by relevant objective medical evidence and the source’s supporting

explanation.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(1) (2017). “Consistency” denotes “the extent to which the opinion

is consistent with the evidence from other medical sources and nonmedical sources

in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 404.1520c(c)(2) (2017).

24

On April 25, 2018, PA Newell completed a pre-printed MSS (Tr.

1174-75) on which she indicated that she had treated Plaintiff

since February 8, 2018, and opined that Plaintiff’s pain in his

left ankle, lower back, and right hip limited him to 1) walking

half a block without rest or severe pain, 2) sitting for a total of

less than two hours in a workday, 3) standing/walking for a total

of less than two hours in a workday, and 4) no stooping, bending,

crouching, or squatting (see Tr. 1174). In addition, PA Newell

believed that Plaintiff needed to lie down frequently (id.), to

take “very, very frequent[]” unscheduled breaks of at least one

hour in duration (Tr. 1174-75), and to use a cane for imbalance,

pain, weakness, and dizziness (Tr. 1175). PA Newell further opined

that Plaintiff could not engage in any lifting or carrying, would

remain off-task for more than 25 percent of a workday, and would

miss work more than four days per month. (Id.)

PA Watts completed the same pre-printed MSS on April 26, 2018

(Tr. 1178-79), and indicated that he had treated Plaintiff for more

than three years on a monthly basis (see Tr. 1178). PA Watts

diagnosed Plaintiff with lower back pain, left ankle pain, anxiety,

depression, and hearing loss which limited Plaintiff to 1) walking

less than one block without rest or severe pain, 2) sitting for a

total of less than two hours in a workday, 3) standing/walking for

a total of less than two hours in a workday, 4) no crouching and

squatting, and 5) rare stooping and bending. (See id.) According

25

to PA Watts, Plaintiff needed to shift positions at will (see id.),

multiple breaks of 40 to 60 minutes’ duration (see Tr. 1178-79},

and a cane for imbalance, pain, weakness, and dizziness (see Tr.

1179). PA Watts further opined that Plaintiff could occasionally

lift or carry less than 10 pounds, could rarely lift or carry 10 to

20 pounds, would remain off-task for more than 25 percent of a

workday, and would miss more than four days of work per month.

(See id.)

The ALJ evaluated the persuasiveness of the MSSs from PA

Newell and PA Watts as follows:

. . . [T]hese providers failed to support their opinions

with an adequate citation to objective findings. In

fact, they simply noted diagnoses, subjective

allegations/symptoms, or alleged medication side effects.

In other words, these opinions consist of conclusory

statements on checkbox-type forms without an adequate

citation to objective evidence. Further, the extent of

limitations suggested in these opinions is not consistent

with the record. In other words, the record fails to

reveal that [Plaintiff] is as limited as these opinions

suggest. For example, the VA records document exam

findings since the alleged onset date of subjective

lumbar spinal or foot area tenderness or pain [(Tr. 1086,

1092-93, 1095)], and painful or limited ranges of

bilateral knee [(Tr. 1099)] or left ankle motion [(Tr.

1079, 1890, 1962-63)]. These VA records also document

exam findings of decreased left ankle strength [(Tr.

1893)], decreased sensation in the left foot [(Tr.

1088)], left ankle ankylosis [(Tr. 1894)], flat feet

[(Tr. 1093)], an absent left ankle reflex [(Tr. 1088)],

knee crepitus [(Tr. 1099)], and an antalgic gait [(Tr.

1064)]. However, VA exams since the alleged onset date

otherwise failed to reveal any noted atrophy, assistive

device use, or deficits in terms of motor function,

strength, sensation, arm/hand use, or gait [(Tr. 1039-

1157, 1755-1972)]. Therefore, in light of the above,

these opinions are not persuasive.

26

(Tr. 29 (emphasis added).) Plaintiff contests both of the ALJ’s

above-emphasized rationales. (See Docket Entry 14 at 10-15.)

Plaintiff first challenges the ALJ’s rationale that PA Newell

and PA Watts “failed to support their opinions with an adequate

citation to objective findings” (id.), arguing that they

“specifically cited to the conditions diagnosed . . ., treatment

undergone . . . and symptoms resulting therefrom . . . which caused

[Plaintiff’s] work related limitations.” (Docket Entry 14 at 10

(citing Tr. 1174-79).) In that regard, Plaintiff points out that

“PA Newell noted [Plaintiff] would need breaks due to muscle

weakness, chronic fatigue, pain and adverse medication side effects

amongst other issues” (id. (citing Tr. 1175)), and that “PA Watts

noted that [Plaintiff] would [sic] breaks due to his muscle

weakness, pain/paresthesias, numbness, chronic fatigue and

medication side effects” (id. (citing Tr. 1179)). According to

Plaintiff, “the ALJ then [went] on to admit that those same

findings in the treatment record which PA Newell and PA Watts based

[Plaintiff]’s limitations upon – weakness, paresthesias, pain,

abnormal gait – are in fact present in the record” and “seem[ed] to

insinuate that th[o]se findings did not appear over a period of

time sufficient enough to support the medical opinions [on the

MSSs].” (Id. at 11 (citing Tr. 29).) Plaintiff further states

that “symptoms can appear intermittently and still be disabling as

27

long as they are occurring frequently enough to prevent the

claimant from holding a_ job for any significant length of time.”

(Id. (emphasis added) (citing Singletary v. Bowen, 798 F.2d 818,

821 (5th Cir. 1986), Brown v. Commissioner Soc. Sec. Admin., 873

F.3d 251, 264 (4th Cir. 2017), and Klaus v. Colvin, No. 1:13CV180,

2016 WL 1435687, at *6 (M.D.N.C. Apr. 11, 2016) (unpublished)

(Peake, M.J.), recommendation adopted, slip op. (M.D.N.C. May 31,

2016) (Beaty, Jr., S.J.)).)

Contrary to Plaintiff’s arguments (see Docket Entry 14 at 10-

11), the record supports the ALJ’s determination that PA Newell and

PA Watts did not provide adequate citations to objective findings

to support their extreme, check-box limitations (see Tr. 29).

Although both PAs listed various symptoms, such as weakness,

numoness, dizziness, medication side effects, and fatigue, as the

basis for the their opinions (see Tr. 1174-75, 1178-79), the record

supports the view that they included those symptoms based on

Plaintiff’s subjective reports, as their records did not document

any of those findings objectively on examination (see Tr. 1180-

1207, 1878-79).

PA Newell had only treated Plaintiff on two occasions prior to

completing the MSS, in February and April 2018. (See Tr. 1180-

1207.) At the February visit, Plaintiff complained of right hip

pain secondary to his left ankle fusion, and right wrist pain (Tr.

1182), and PA Newell recorded decreased range of motion in

28

Plaintiff’s right wrist, and tenderness in the right wrist and

right hip, but normal reflexes, sensation, tone, and coordination

and documented no lower back or left ankle deficits, gait

disturbance, or cane usage (see Tr. 1183-84). In April, Plaintiff

complained of right-sided lower back pain (see Tr. 1199), and

reported that he had just returned from a visit to Puerto Rico and

“need[ed] a paper completed from [PA Newell] outlining his

disabilities” (Tr. 1200). On examination, PA Newell noted pain in

the right side of Plaintiff’s lower back, but found full range of

motion and made no other neurological findings regarding

Plaintiff’s back, hip, or ankle, and did not note gait abnormality

or cane use. (See Tr. 1201.) A lumbar spine x-ray taken that day

showed decreased lordosis, minimal retrolisthesis at L5-S1, mild

facet arthrosis and spondylosis, and maintained disc spaces. (See

Tr. 1202.)

Moreover, although PA Watts represented that he had been

treating Plaintiff for more than three years on a monthly basis

(see Tr. 1178), the record reflects that PA Watts treated Plaintiff

only one time, the same day he completed the MSS (see Tr. 1878-79).

At that “routine visit” (Tr. 1878), Plaintiff sought treatment for

lower back and left ankle pain (see id.), and requested that PA

Watts complete “[d]isability forms [] for [his] attempt at [DIB]”

(Tr. 1879). On examination, PA Watts noted pain and decreased

range of motion in Plaintiff’s lower back and left ankle (see Tr.

29

1879), but found Plaintiff in no acute distress (see Tr. 1878),

noted no abnormal neurological findings (see id.), did not record

gait disturbance or cane usage (see Tr. 1878-79), and merely

recommended that Plaintiff continue taking a non-steroidal, anti-

inflammatory drug (see Tr. 1879). In light of those largely benign

examinations, the ALJ did not err by discounting the persuasiveness

of the MSSs, in part, because PA Newell and PA Watts did not cite

to adequate objective findings to support their extreme limitations

(see Tr. 29.)

As to Plaintiff’s argument that the ALJ “admit[ted]” findings

existed that supported the opinions expressed in the MSSs (Docket

Entry 14 at 11 (citing Tr. 29)}, the ALJ did acknowledge that the

record contained some findings of decreased strength, sensation,

and range of motion in Plaintiff’s left ankle and subjective

complaints of lower back pain and knee pain (see Tr. 29). That

acknowledgment, however, harmonizes with the ALJ’s findings that

Plaintiff had severe “arthrosis of the left ankle, status-post

fusion,” “bilateral patella femoral pain syndrome, ” and

“degenerative disc disease of the lumbar spine” (Tr. 17), but that

those impairments did not meet or equal any listings (see Tr. 18)

or result in disabling functional limitations (see Tr. 20-21).°

° Notably, most of the findings the ALJ acknowledged took place at C&P

examinations on July 18, 2017, and February 16, 2018. (See Tr. 29 (citing Tr.

1064, 1079, 1086, 1088, 1092-93, 1095, 1099, 1890, 1893-94).) Thus, those

findings occurred in the setting of Plaintiff’s attempt to obtain VA disability

benefits and do not constitute findings made by physicians in the course of

30

More significantly, the ALJ then pointed out that “VA exams

since the alleged onset date otherwise failed to reveal any noted

atrophy, assistive device use, or deficits in terms of motor

function, strength, sensation, arm/hand use, or gait.” (Tr. 29

(emphasis added) (citing Tr. 1039-1157, 1755-1972).) The record

bears out that observation by the ALJ. Plaintiff visited the VA’s

primary care clinic on four occasions from January 2018 to April

2019, and none of those examinations documented “atrophy, assistive

device use, or deficits in terms of motor function, strength,

sensation, arm/hand use, or gait” (Tr. 29). (See Tr. 1960-68

(1/3/18 - Sekeya Durgan, NP-C), 1878-79 (4/26/18 - PA Watts), 1844-

45 (11/1/18 - Margaret D. Mabie, FNP), 1802-03 (4/24/19 - Rory J.

Saliger, PA). Thus, the record does not show that Plaintiff’s

symptoms “occurr[ed] frequently enough to prevent [him] from

holding a job for any significant length of time” (Docket Entry 14

at 11 (emphasis added)).

Plaintiff additionally attacks the ALJ’s reasoning that “the

extent of limitations suggested in the[ MSSs] is not consistent

with the record” (Tr. 29). (Id. at 11-15 (detailing evidence

Plaintiff believes holds consistency with the limitations on the

MSSs (citing Tr. 445-46, 449, 454, 456-57, 527, 529-30, 533-36,

544-46, 707, 880-81, 883, 929-30, 1038, 1052, 1055, 1059, 1064,

treating Plaintiff’s musculoskeletal impairments.

31

1079, 1080, 1083-86, 1088-89, 1425-26, 1158-59, 1164, 1169-71,

1783, 1799, 1801-02, 1835, 1878-79, 1889-90, 1893, 1895-97, 2097,

2493, 2268, 2574)).) In particular, Plaintiff asserts that “the

record demonstrates, contrary to the ALJ’s reasoning, that

[Plaintiff] continued to struggle with ankle pain, weakness,

limited [range of motion], limited mobility, falls, inability to

manage uneven terrain and other difficulties associated with his

severe left ankle arthrosis and deformity . . . after his fusion

surgery.” (Id. at 15.)

In pointing to evidence that, according to Plaintiff, bolsters

the limitations on the MSSs, he misinterprets this Court’s standard

of review. The Court must determine whether the ALJ supported his

determination that the restrictions on the MSSs lacked consistency

with the record with substantial evidence, defined as “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), and not whether other record evidence

weighs against the ALJ’s analysis, 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.”).

32

Here, in addition to pointing out that most of the VA records

did not support the limitations on the MSSs, the ALJ additionally

made the following pertinent findings regarding Plaintiff’s back,

knee, and foot impairments and their impact on his functional

abilities:

• “[A] physical consultative exam in December 2017

revealed . . . only ‘mildly’ abnormal tandem

walking and only ‘mild’ difficulty with squatting

and arising from that position, heel-toe walking on

the left and one-leg hopping on the left. In fact,

this exam [] revealed that [Plaintiff] was not in

acute distress and had [] normal ranges of motion

[other than neck extension and his left ankle],

normal strength (including bilateral handgrip), and

a normal gait, without any noted assistive device

use, atrophy, edema, swelling, joint instability,

joint laxity, or deformity. This exam also []

revealed intact cranial nerves, symmetrical

reflexes, good hand-eye coordination, no balance

problems, no muscle spasms, and negative straight

leg raise testing. This exam further [] revealed

. . . the ability to rise from a sitting position

‘without assistance’, and the ability to get up and

down from the exam table with ‘no difficulty’.

[Plaintiff] . . . was able to lift, carry, and

handle light objects, to pinch, grasp and

manipulate small and large objects ‘without

difficulty’, to fully extend his hands, to oppose

his fingers, and to make a fist.” (Tr. 22-23);

• “[R]ecords since the alleged onset date [] revealed

that [Plaintiff] was alert, fully oriented and/or

not in any noted acute distress, without any noted

assistive device use, atrophy, edema, swelling,

joint instability, joint laxity, or deformity.

These records also otherwise document exam findings

since the alleged onset date of normal ranges of

motion (spine, knees, right ankle, all

extremities), normal coordination, an intact

neuro-vascular status, intact capillary refill,

normal coordination, normal strength, intact

sensation, and/or no noted motor, sensation,

33

sensory, or arm/hand use abnormalities or

deficits.” (Tr. 23);

• “[L]eft ankle x-rays after the left ankle surgery

on the alleged onset date reveal post-surgical

changes, . . . a stable fusion and/or no noted

hardware malfunction. Moreover, bilateral knee

x-rays in July 2017 revealed no acute osseous

abnormalities. Finally, while lumbar spine x-rays

in February 2016 revealed degenerative changes at

the lower lumbar spine, they also revealed normal

alignment and normal vertebral body heights, and a

lumbar spine MRI in July 2016 revealed a normal

study. Most recently, lumbar spine x-rays in

December 2017 merely revealed ‘mild’ degenerative

disc disease and a decreased lordosis, without any

noted fracture or herniation[.]” (Tr. 24-25

(internal parenthetical citations omitted)); and

• Plaintiff “reported performing a wide variety of

activities, including performing personal care

activities, preparing simple meals, driving (albeit

with someone with him or only ‘once in a while’),

and watching television. He also reported shopping

in stores, spending time with others, going to

sporting events on a regular basis, attending

medical/mental health appointments, and going to

the mall (albeit ‘on good days’). Finally, he also

testified, while he subjectively requires a cane to

stand from a seated position, his cane use depends

on distance. In other words, he admittedly does

not necessarily use a cane all the time.” (Tr. 27).

Those findings constitute substantial evidence to support the ALJ’s

determination that the limitations on the MSSs lacked consistency

with the record. (See Tr. 29.)

For the above-stated reasons, Plaintiff has failed to show

that the ALJ improperly evaluated the MSSs from PA Newell and PA

Watts, and Plaintiff’s second assignment of error thus falls short.

34

3. Subjective Symptom Reporting

Lastly, Plaintiff maintains that “[t]he ALJ erred in her

evaluation of Plaintiff’s testimony.” (Docket Entry 14 at 15 (bold

font omitted).) More specifically, Plaintiff faults the ALJ for

“assess[ing Plaintiff] with a sedentary RFC finding that he could

stand/walk for up to two hours per day and sit for up to six hours

per day without any mention of his need to avoid uneven surfaces,

his inability to stand for more than three to four minutes at a

time without his cane or his need to take breaks to nap for a

couple of hours at a time.” (Id. at 16 (citing Tr. 20-21).)

Plaintiff states that “the ALJ seem[ed] to argue that[,] other than

[Plaintiff’s] invasive, non-conservative treatments, his treatment

was conservative” (id. (citing Tr. 22)), and “then [went] on to

list some findings from the record, most of which militate[d] in

[Plaintiff]’s favor” (id. (citing Tr. 22-24)). According to

Plaintiff, “the ALJ never actually explain[ed] how the findings in

the record mean[t] that [Plaintiff wa]s capable of standing more

than three to four minutes without his cane, c[ould] work an eight

hour workday without breaks due to pain and fatigue and c[ould]

walk on uneven surfaces without falling.” (Id. (citing Mascio v.

Colvin, 780 F.3d 632 (4th Cir. 2015), and Woods v. Berryhill, 888

F.3d 686, 694 (4th Cir. 2018)).)

Social Security Ruling 16-3p, Titles II and XVI: Evaluation of

Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,

35

2017) (“SSR 16-3p”) (consistent with the Commissioner’s

regulations) adopts a two-part test for evaluating a claimant’s

statements about symptoms. See SSR 16-3p, 2017 WL 5180304, at *3;

see also 20 C.F.R. § 404.1529. First, the ALJ “must consider

whether there is an underlying medically determinable physical or

mental impairment(s) that could reasonably be expected to produce

an individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL

5180304, at *3. A claimant must provide “objective medical

evidence from an acceptable medical source to establish the

existence of a medically determinable impairment that could

reasonably be expected to produce [the] alleged symptoms.” Id.

Objective medical evidence consists of medical signs (“anatomical,

physiological, or psychological abnormalities established by

medically acceptable clinical diagnostic techniques”) and

laboratory findings “shown by the use of medically acceptable

laboratory diagnostic techniques.” Id.

Upon satisfaction of part one by the claimant, the analysis

proceeds to part two, which requires an assessment of the intensity

and persistence of the claimant’s symptoms, as well as the extent

to which those symptoms affect his or her ability to work. See id.

at *4. In making that determination, the ALJ must “examine the

entire case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

36

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.” Id. Where

relevant, the ALJ will also consider the following factors in

assessing the extent of the claimant’s symptoms at part two:

1. Daily activities;

2. The location, duration, frequency, and intensity of

pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of

any medication an individual takes or has taken to

alleviate pain or other symptoms;

5. Treatment, other than medication, an individual

receives or has received for relief of pain or other

symptoms;

6. Any measures other than treatment an individual uses

or has used to relieve pain or other symptoms (e.g.,

lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual’s

functional limitations and restrictions due to pain or

other symptoms.

Id. at *7-8. The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms

solely because the objective medical evidence does not substantiate

the degree of impairment-related symptoms alleged by the

individual.” Id. at *5 (emphasis added).

The ALJ here specifically acknowledged Plaintiff’s statements

that “he could stand and balance without a cane for 3-4 minutes,”

“[h]is conditions [] affect[ed] his [] walking,” and “[h]e ha[d]

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the medication side effect[] of sleepiness (ha[d] to take [a] nap

daily),” but found such statements “concerning the intensity,

persistence, and limiting effects of [his] symptoms not entirely

consistent with the medical evidence and other evidence in the

record.” (Tr. 22; see also Tr. 21 (reporting Plaintiff’s testimony

that he “nap[ped] 1-3 hours during the day”).) As further

explicated by the ALJ:

. . . [T]he extent of [Plaintiff]’s alleged limitations

is not entirely consistent with the record. In fact,

despite symptoms and alleged medication side effects,

other than three ankle surgeries prior to the alleged

onset date and one on the alleged onset date, all of

which occurred without reported complication, the record

reveals an otherwise conservative course of treatment and

generally normal, with only minimal, findings since the

alleged onset date.

[W]hile [Plaintiff] presumably used an assistive device

when he was a non-weight bearing status after the May 19,

2017 surgery until the June 7, 2017 appointment, and

while [Plaintiff] may currently use a cane at times, the

treatment records fail to document any noted assistive

device upon exam since the alleged onset date. In fact,

the last time that the record documented assistive device

use upon exam was in the form of crutches at some exams

in 2010, which is approximately seven years prior to the

alleged onset date. The treatment records also otherwise

reveal a normal or steady gait or otherwise failed to

reveal any noted abnormalities in terms of gait upon exam

since the alleged onset date.

[Plaintiff] reported performing a wide variety of

activities, including performing personal care

activities, preparing simple meals, driving (albeit with

someone with him or only ‘once in a while’), and watching

television. He also reported shopping in stores,

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spending time with others, going to sporting events on a

regular basis, attending medical/mental health

appointments, and going to the mall (albeit ‘on good

days’). Finally, he also testified, while he

subjectively requires a cane to stand from a seated

position, his cane use depends on distance. In other

words, he admittedly does not necessarily use a cane all

the time.

Simply stated, [Plaintiff]’s actions and admissions

reveal that he is not as limited as he alleged from a

physical or mental health standpoint. Therefore, taking

into consideration [Plaintiff]’s severe and non-severe

impairments, course of treatment, subjective allegations,

self-reported assistive device use, and alleged

medication side effects, this evidence fully supports the

assessed [RFC]. It does not support the assessment of

different or additional limitations.

(Tr. 22-27 (emphasis added) (internal parenthetical citations

omitted).)

Plaintiff’s argument that the ALJ assessed the RFC “without

any mention of [Plaintiff’s] need to avoid uneven surfaces, his

inability to stand for more than three to four minutes at a time

without his cane or his need to take breaks to nap for a couple of

hours at a time” (Docket Entry 14 at 16 (citing Tr. 20-21))

ultimately falls short. The above-emphasized language makes clear

that the ALJ did not credit Plaintiff’s subjective statement that

he could stand for only three to four minutes at a time without his

cane (see Tr. 53). (See Tr. 22-27.) Furthermore, although the RFC

analysis did not expressly address Plaintiff’s alleged inability to

walk on uneven surfaces or need to take daily naps, that omission

by the ALJ qualifies as harmless error under the facts of this

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case. 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 quest of a perfect opinion unless there is reason

to believe that the remand might lead to a different result”).

Remand for the ALJ to expressly discuss those matters would

not result in a more favorable outcome in Plaintiff’s case, as the

record does not contain any basis beyond Plaintiff’s subjective

statements for the ALJ to include such limitations in the RFC. For

example, the record lacks evidence documenting 1) medical treatment

for falls of any kind (let alone falls sustained while walking on

uneven surfaces), 2) a chronically fatigued appearance, 3)

complaints to medical providers of drowsiness or frequent napping,

or 4) requests by Plaintiff to change medications or to try

alternative remedies due to drowsiness as a medication side effect.

Moreover, no medical sources of record have opined that Plaintiff

must avoid uneven surfaces or take naps during the daytime. (See

Tr. 457 (ankle surgeon’s statement two and a half months post-

fusion releasing Plaintiff to ambulate with regular shoes and to

slowly increase his activities and lacking any limitation regarding

uneven surfaces), 1084 (C&P exam restricting Plaintiff only from

prolonged walking, standing, and stair climbing secondary to

Plaintiff’s left ankle fusion), 1091 (C&P exam precluding heavy

physical duties requiring running, jumping, and heavy

lifting/carrying due to lumbar degenerative disc disease), 1097

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(C&P exam limiting only prolonged running and standing on account

of plantar fasciitis), 1105 (C&P exam concluding that Plaintiff’s

obstructive sleep apnea did not affect his ability to work), 1159

(Plaintiff’s statement to consultative psychological examiner that

he did not take naps), 1174-75 & 1178-79 (opinions of PA Newell and

PA Watts (discounted by the ALJ) that Plaintiff needed frequent,

unscheduled breaks during the work day but not indicating that he

needed to nap for one to three hours), 1897 (C&P exam finding only

that Plaintiff’s ankle condition might impact his ability to lift,

push, pull, squat repetitively, climb stairs, walk, and stand).

Plaintiff additionally accuses the ALJ of “argu[ing] that[,]

other than [Plaintiff’s] invasive, non-conservative treatments, his

treatment was conservative.” (Docket Entry 14 at 16 (citing Tr.

22).) That argument glosses over the ALJ’s modifiers, i.e., “the

record reveals an otherwise conservative course of treatment . . .

since the alleged onset date” (Tr. 22 (emphasis added)). In other

words, the ALJ acknowledged that Plaintiff had undergone multiple

ankle surgeries up to and including the onset date, but noted,

accurately, that Plaintiff’s course of treatment after his alleged

onset date qualified as conservative. See Shaw v. Kijakazi, No.

1:20CV581, 2021 WL 3079905, at *6 (M.D.N.C. July 21, 2021)

(unpublished) (finding no contradiction in ALJ’s two observations

that the plaintiff’s symptoms remained in good control with

conservative treatment and that no symptom exacerbation occurred

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with lack of treatment, because the “statements in question

referred to two different times in [the p]laintiff’s treatment

history, one during which he received mental health treatment, and

one in which he did not”), recommendation adopted, slip op.

(M.D.N.C. Aug. 23, 2021) (Osteen, J.).

Plaintiff further faults the ALJ for “list[ing] some findings

from the record, most of which militate[d] in [Plaintiff]’s favor.”

(Docket Entry 14 at 16 (emphasis added) (citing Tr. 22-24).) That

contention falters because, as discussed above, the ALJ

acknowledged that the record contained some findings of decreased

strength, sensation, and range of motion in Plaintiff’s left ankle

and subjective complaints of lower back pain and knee pain (see Tr.

23-24, 29). The ALJ then pointed out, however, that “records since

the alleged onset date otherwise revealed that [Plaintiff] was

alert, fully oriented and/or not in any noted acute distress,

without any noted assistive device use, atrophy, edema, swelling,

joint instability, joint laxity, or deformity[ with] . . . normal

ranges of motion (spine, knees, right ankle, all extremities),

normal coordination, an intact neuro-vascular status, intact

capillary refill, normal coordination, normal strength, intact

sensation, and/or no noted motor, sensation, sensory, or arm/hand

use abnormalities or deficits.” (Tr. 23 (emphasis added); see also

Tr. 29 (“VA exams since the alleged onset date otherwise failed to

reveal any noted atrophy, assistive device use, or deficits in

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terms of motor function, strength, sensation, arm/hand use, or

gait.” (emphasis added)).)

Put simply, Plaintiff has not demonstrated reversible error

with respect to the ALJ’s evaluation of Plaintiff’s subjective

symptom reporting.

III. CONCLUSION

Plaintiff has not established grounds for relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

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

Judgment on the Pleadings (Docket Entry 13) be denied, that

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

be granted, and that judgment be entered dismissing this action.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 3, 2021

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