# VIDRO-OJEDA v. KIJAKAZI

> District Court, M.D. North Carolina · September 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10253941

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253941

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

4
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

10
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

11

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]
37
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,
38

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
39
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
40
(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
41
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
42
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253941. Public record. Not legal advice.