HEGE v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREGORY SHANE HEGE, )

)

Plaintiff, )

)

v. ) 1:20CV1171

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Gregory Shane Hege, brought this action pursuant to

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

final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claims for Disability Insurance

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

Entry 1.) Defendant has filed the certified administrative record

(Docket Entry 7 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 10, 13; see also Docket Entry 11

(Plaintiff’s Brief), Docket Entry 14 (Defendant’s Memorandum);

Docket Entry 15 (Plaintiff’s Reply)). For the reasons that follow,

the Court should enter judgment for Defendant.

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

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

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

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

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

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

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI in 2005 (Tr. 105-14),

alleging an onset date of October 31, 2003 (see Tr. 105, 111).

Upon denial of those applications initially (Tr. 38-39, 54-59, 298-

305, 315-31) and on reconsideration (Tr. 40-41, 61-70, 341-48, 351-

67), Plaintiff requested a hearing de novo before an Administrative

Law Judge (“ALJ”) (Tr. 73-74). Plaintiff and his attorney attended

the hearing. (Tr. 9-37.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 42-54.)2

The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-8), and Plaintiff sought judicial review in this

Court, Hege v. Colvin, No. 1:11CV908, Docket Entry 1 (M.D.N.C. Oct.

26, 2011). After this Court affirmed the Commissioner’s decision

denying benefits, Hege, No. 1:11CV908, Docket Entry 17 (M.D.N.C.

July 21, 2014) (Dever, III, C.J., E.D.N.C. by desig.), and denied

Plaintiff’s Motion to Alter or Amend Judgment under Rule 59(e) of

the Federal Rules of Civil Procedure, Hege, No. 1:11CV908, Docket

Entry 22 (M.D.N.C. Oct. 7, 2014), Plaintiff appealed to the United

States Court of Appeals for the Fourth Circuit, see Hege v. Colvin,

No. 14-2335 (4th Cir. Dec. 8, 2014).

The Commissioner filed a consent Motion for Remand Under

Sentence Four of 42 U.S.C. § 405(g), Hege, No. 14-2335, Docket

2 Plaintiff filed a second application for SSI on April 22, 2009 (see Tr. 532),

and a different ALJ, after a hearing, found Plaintiff disabled as of February 23,

2010, his amended alleged onset date (Tr. 521-32).

2

Entry 19 (4th Cir. Apr. 21, 2015), on the grounds that “the ALJ

stopped [Plaintiff]’s counsel from questioning [Plaintiff] during

the hearing, and stated that [the ALJ] would issue a fully

favorable decision [pending the receipt of outstanding mental

health records, but] . . . did not hold a supplemental hearing once

the medical record evidence was submitted and he determined that a

fully favorable decision was not warranted,” id. at 9. The Fourth

Circuit entered a Judgment remanding the matter back to the

Commissioner, Hege, No. 14-2335, Docket Entry 21 (4th Cir. June 4,

2015), and the Appeals Council, on August 12, 2019, issued an order

vacating the ALJ’s decision and remanding the case to an ALJ for

further proceedings (Tr. 511-16), on the grounds that the ALJ 1)

failed to afford Plaintiff “a full hearing” (Tr. 514), 2) found

Plaintiff moderately limited in concentration, persistence, or pace

(“CPP”), but failed to include in the RFC “specific limitations

related to [Plaintiff]’s abilities to focus attention on work

activities and stay on task at a sustained rate” (id. (internal

quotation marks omitted)), and 3) “gave substantial weight to the

[s]tate [a]gency psychological consultants,” but failed to explain

why he did not include in the RFC the consultants’ limitations to

a “low stress, nonproduction setting with limited interaction with

others” (Tr. 515 (internal quotation marks omitted)).3

3 The record lacks an explanation for the more than four-year delay between the

Fourth Circuit’s Judgment and the Appeals Council’s remand order. (See Tr. 515

(“The [Appeals] Council regrets the delay involved.”); see also Tr. 471 (post-

(continued...)

3

A new ALJ subsequently held a hearing, attended by Plaintiff,

his attorney, and a vocational expert (“VE”). (Tr. 461-510.) The

ALJ thereafter ruled that Plaintiff did not qualify as “disabled”

under the Act at any time from his onset date of October 31, 2003,

to February 22, 2010, the day before the ALJ adjudicating

Plaintiff’s second application for SSI found him disabled. (Tr.

433-60.) This action for judicial review followed.4

In rendering that disability determination, the ALJ made the

following findings:

1. [Plaintiff] met the insured status requirements of

the . . . Act through September 30, 2008.

. . .

2. From October 31, 2003, the alleged onset date,

through February 22, 2010, [Plaintiff] did not engaged

[sic] in substantial gainful activity.

. . .

3 (...continued)

remand ALJ’s statement during hearing: “I cannot explain why it’s spent as long

as it did at the Appeals Council. Mr. Hege, I apologize on behalf of the agency

for that delay. . . . I can’t tell from my end why that took so long.”); 533-65

(letter dated July 22, 2019, from Plaintiff’s counsel to Office of Appellate

Operations inquiring about status of case).)

4 “[W]hen a case is remanded by a [f]ederal court for further consideration, the

decision of the [ALJ] will become the final decision of the Commissioner after

remand on [a claimant’s] case unless the Appeals Council assumes jurisdiction of

the case. The Appeals Council may assume jurisdiction based on written

exceptions to the decision of the [ALJ] which [a claimant] file[s] with the

Appeals Council or based on its authority . . . to assume jurisdiction of [a

claimant’s] case even though no written exceptions have been filed.” 20 C.F.R.

§§ 404.984, 416.1484. Here, the record reflects neither that Plaintiff filed

written exceptions to the post-remand ALJ’s decision with the Appeals Council nor

that the Appeals Council assumed jurisdiction of his case under its own

authority.

4

3. From October 31, 2003, the alleged onset date,

through February 22, 2010, [Plaintiff] had the following

severe impairments: depression; anxiety; post-concussive

syndrome; and alcohol use disorder.

. . .

4. From October 31, 2003, the alleged onset date,

through February 22, 2010, [Plaintiff] did not have an

impairment or combination of impairments that met or

medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1.

. . .

5. . . . [F]rom October 31, 2003, the alleged onset

date, through February 22, 2010, [Plaintiff] had the

residual functional capacity to perform a full range of

work at all exertional levels but [] he could never climb

ladders, ropes, or scaffolds, and he could have no

exposure to unprotected heights or hazardous machinery.

He was limited to understanding, remembering, and

carrying out simple instructions, which is defined to

mean activity that is consistent with a reasoning level

of “two” or “three,” as defined in the [Dictionary of

Occupational Titles (“DOT”)]; and he could sustain

concentration, attention, and pace well enough to carry

out those simple instructions for two-hour intervals over

the course of an eight-hour workday. He was limited to

working in proximity to, but not in coordination with,

coworkers and supervisors, but would still have been able

to interact with others sufficiently to complete a 30-day

training period. He was limited to working in a low

stress setting, which is specifically defined to mean: no

paced production, such as on an assembly line; only

simple, work-related decisions; few or no changes in the

work setting; no dealing with emergent situations as an

essential function of the job; and only superficial

contact with the public, where “superficial” is defined

to mean the contact is incidental and not an essential

function of the job.

. . .

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

work.

. . .

5

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] was not been [sic] under a disability,

as defined in the . . . Act, from October 31, 2003,

through February 22, 2010.

(Tr. 439-53 (bold font, internal parenthetical citations, and

footnotes omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

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

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

of [the Court’s] review of [such a] decision . . . is extremely

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

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

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

the Court “must uphold the factual findings of the ALJ if they are

supported by substantial evidence and were reached through

application of the correct legal standard.” Hines, 453 F.3d at 561

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Hunter v. Sullivan,

6

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402

U.S. 389, 390 (1971)). “It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro

v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and

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

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

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

quotation marks omitted).

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

undertake to re-weigh conflicting evidence, make credibility

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

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

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’s finding that [the

claimant] is not disabled is supported by substantial evidence and

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

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

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

7

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

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

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

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

(quoting 42 U.S.C. § 423(d)(1)(A)).5 “To regularize the

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

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

age, education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id. (internal citations omitted).

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

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

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

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

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

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

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

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

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

[SSI] . . . provides benefits to indigent disabled persons. The statutory

definitions and the regulations . . . for determining disability governing these

two programs are, in all aspects relevant here, substantively identical.” Craig,

76 F.3d at 589 n.1 (internal citations omitted).

8

n.2 (4th Cir. 1999).6 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 residual functional capacity

(‘RFC’).” Id. at 179.7 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. Id. at

179-80. However, if the claimant establishes an inability to

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

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

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

7 “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.

9

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the claimant’s RFC] and [the

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

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

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

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

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.8

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 . . . found that [Plaintiff]’s post-concussion

syndrome [(‘PCS’)] c[ould] reasonably be expected to cause his

claimed alterations of awareness, but failed to determine the

extent to which [Plaintiff] actually experience[d] such episodes[,

and] . . . therefore committed a reversible error [under Monroe v.

Colvin, 826 F.3d 176 (4th Cir. 2016),] on the basis that it cannot

be determined whether the ALJ’s hypothetical questions to [the VE]

include[d] all of [Plaintiff]’s functional limitations” (Docket

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

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

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

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

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

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

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

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

10

Entry 11 at 8 (bold font and single-spacing omitted); see also

Docket Entry 15 at 2-6);

2) “[Plaintiff]’s [PCS] is a medically determinable impairment

that results in the entirely subjective symptom of non-epileptic

alterations of awareness[, and Plaintiff] is therefore entitled

[under Arakas v. Commissioner of Soc. Sec. Admin., 983 F.3d 83 4th

Cir. 2020),] to rely exclusively on subjective evidence to prove

the severity, persistence, and limiting effects of his non-

epileptic alterations of awareness” (Docket Entry 11 at 11 (bold

font and single-spacing omitted); see also Docket Entry 15 at 6-

16); and

3) “[t]he ALJ . . . cited the regulatory standards for

evaluating symptoms, but not the standards for evaluating [RFC

and] . . . therefore committed a reversible error [under Dowling v.

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

relying on an incorrect regulatory framework to assess

[Plaintiff]’s [RFC]” (Docket Entry 11 at 15 (bold font and single-

spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 8-15.)

1. Error Under Monroe

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

ALJ . . . found that [Plaintiff]’s [PCS] c[ould] reasonably be

expected to cause his claimed alterations of awareness, but failed

11

to determine the extent to which [Plaintiff] actually experience[d]

such episodes[, and] . . . therefore committed a reversible error

[under Monroe] on the basis that it cannot be determined whether

the ALJ’s hypothetical questions to [the VE] include[d] all of

[Plaintiff]’s functional limitations.” (Docket Entry 11 at 8 (bold

font and single-spacing omitted); see also Docket Entry 15 at 2-6.)

In that regard, Plaintiff notes that, in Monroe, the plaintiff

“‘testified that he would lose consciousness about two or three

times per day and would need to take several breaks during the day

because of fatigue[,]’ [b]ut the ALJ ‘never made specific findings

about whether [the plaintiff]’s apnea or narcolepsy would cause him

to experience episodes of loss of consciousness or fatigue

necessitating breaks in work and if so, how often th[o]se event

would occur’” (Docket Entry 11 at 9 (internal citation omitted)

(quoting Monroe, 826 F.3d at 188)) and thus the court could not

“‘determine whether the hypothetical questions posed to the VE

included all of [the plaintiff]’s functional limitations’” (id. at

9-10 (quoting Monroe, 826 F.3d at 188)). According to Plaintiff,

“[t]he facts of this case are remarkably similar to the facts of

Monroe” (id. at 10), because “[t]he ALJ found [PCS] to be a severe

medically determinable impairment” (id. (citing Tr. 440)), and that

Plaintiff’s “‘medically determinable impairments could reasonably

be expected to cause the alleged symptoms’” (id. (quoting Tr.

444)), “[b]ut[,] in assessing [Plaintiff]’s RFC, [the ALJ] did not

12

discuss the effect of non-epileptic alterations of awareness” (id.

(citing Tr. 451)). Plaintiff’s contentions miss the mark.’

As an initial matter, Plaintiff overstates the ALJ’s findings

by asserting that “[t]he ALJ . . . found that [Plaintiff]’s [PCS]

c[ould] reasonably be expected to cause his claimed alterations of

awareness.” (Id. at 8 (emphasis added) (bold font and single-

spacing omitted); see also Docket Entry 15 at 2.) The ALJ actually

found that Plaintiff’s “medically determinable impairments could

reasonably be expected to cause the [] symptoms” Plaintiff alleged.

(Tr. 444 (emphasis added).) The ALJ further found that Plaintiff’s

“medically determinable impairments” included ‘“depression[, ]

anxietyl[,] [PCS,] and alcohol use disorder” (Tr. 440), and

described his symptoms as “problems with equilibrium, lack of

coordination, cognitive problems, [] memory problems[,] spells of

semi-consciousness and sensitivity to light and sound” (Tr. 444).

Thus, the ALJ did not specifically find that Plaintiff’s PCS could

° Plaintiff additionally argues that “[t]he ALJ [] failed to perform the

function-by-function assessment of [Plaintiff]’s non-epileptic alterations of

awareness.” (Docket Entry 11 at 11; see also Docket Entry 15 at 5.) With regard

to the function-by-function analysis, the relevant administrative ruling states:

“The RFC assessment must first identify the individual’s functional limitations

or restrictions and assess his or her work-related abilities oon a

function-by-function basis. ... Only after that may RFC be expressed in terms

of the exertional levels of work, sedentary, light, medium, heavy, and very

heavy.” Social Security Ruling 96-8p, Policy Interpretation Ruling Titles II and

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

(“SSR 96-8p”). Plaintiff, however, did not identify any specific “functions”

that the ALJ should have analyzed; rather, Plaintiff’s argument more generally

faults the ALJ for failing to discuss the effects of Plaintiff’s “alterations of

awareness” on the RFC. (See Docket Entry 11 at 6-11; see also Docket Entry 15

at 2-6.) Accordingly, this Recommendation will focus on whether the ALJ

sufficiently explained her consideration of Plaintiff’s alleged blackout spells

in formulating the RFC.

13

cause “alterations of awareness” (Docket Entry 11 at 8 (emphasis

added)). (See Tr. 451 (“[T]he 2009 neuropsychological evaluation

cast doubt what limitations, if any, were being caused by

[Plaintiff]’s [PCS].” (emphasis added)).)*°

Even more significantly, “[w]hen an ALJ finds in a claimant’s

favor at part one, he or she merely finds that objective medical

evidence shows that the claimant possesses impairments that could

reasonably be expected to cause the symptoms alleged, and not that

the claimant actually suffers from the symptoms alleged.” Pickard

v. Colvin, No. 1:14CV583, 2015 WL 4644792, at *5 (M.D.N.C. Aug. 4,

2015) (unpublished), recommendation adopted, 2015 WL 5344027

(M.D.N.C. Sept. 14, 2015) (unpublished) (Schroeder, J.). Here,

although the ALJ did not make a specific finding discounting

Plaintiff’s testimony about his blackout spells (see Tr. 443-51),

the ALJ’s decision nevertheless adequately explains how she

addressed those spells in the RFC.

To begin, the ALJ’s discussion of Plaintiff’s subjective

symptom reports explains the ALJ’s decision-making regarding

10 Indeed, the record contains conflicting evidence regarding the cause of

Plaintiff’s alleged blackout spells. (See Tr. 284-96 (mental health providers

considering whether Plaintiff’s blackout spells constituted panic attacks), 258

(neurologist characterizing blackout spells as “probably” from PCS but also as

“possible panic attacks”), 683 (therapist discussing whether childhood emotional

trauma caused Plaintiff’s “dissociative episodes”), 736 (psychiatrist reporting

difficulty in knowing whether Plaintiff had “conversion or factitious symptoms

or poor coping skills”), 738 (same psychiatrist noting difficulty determining

whether Plaintiff’s spells resulted from “personality vs. anxiety vs. .. . some

type of organic problem” and indicating “doubt” as to organic problem

involvement), 747 (neuropsychologist opining that “nothing” about Plaintiff’s

“clinical profile [] suggested old brain injury as the nexus of his difficulties”

and that “even 3 concussions should not produce the kinds of cognitive deficits”

seen on evaluation) .)

14

Plaintiff’s alleged spells. The ALJ expressly acknowledged

Plaintiff’s “report[s] that he had spells of semi-consciousness”

(Tr. 444; see also Tr. 158, 194, 491-96, 500-01), as well as his

statements to a neurologist “that he initially had spells where he

would black out about once per month, but that these had increased

to as many as 12 episodes per day” and “that he could see and hear

during these spells, but that everything was garbled” (Tr. 445; see

also Tr. 260). The ALJ, however, found that Plaintiff’s

“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 for the reasons

explained in th[e ALJ’s] decision” (Tr. 444).

In further support of that finding, the ALJ observed that

“[Plaintiff]’s allegations and even reports to treating and

examining sources have been at times inconsistent with the

documentary and contemporaneous records and at other times

complicated by his alcohol use[, and that, a]s a result of those

inconsistencies, the [ALJ] f[ou]nd[] that the objective findings

and documentation [we]re of greater value than [Plaintiff]’s

subjective and uncorroborated statements.” (Tr. 448 (emphasis

added).) The ALJ also noted that Plaintiff could “perform many

routine activities of daily living, such as grocery shopping,

preparing meals, performing housework, and taking care of his

animals,” as well as that “he enjoyed working on puzzles, reading,

15

[] playing video games[,] . . . work[ing] on his vegetable garden,

and perform[ing] mechanical work on cars and welding.” (Tr. 447.)

As discussed in more detail in the context of Plaintiff’s second

issue on review, the ALJ did not err in her evaluation of

Plaintiff’s subjective symptom reporting.

The ALJ’s evaluation of the opinion evidence additionally

explains the ALJ’s reasoning concerning Plaintiff’s claimed

blackouts. In that regard, the ALJ accorded “moderate weight” (Tr.

448) to the opinions of the state agency psychological consultants

that, notwithstanding Plaintiff’s complaints of “fainting episodes”

(Tr. 368), Plaintiff remained capable of “[simple, routine, and

repetitive tasks (‘SRRTs’)] in a low stress, nonproduction setting

with limited interaction with others” (Tr. 317; see also Tr. 367).

The ALJ noted that, although she agreed with the consultants’

limitations, she fashioned more specific, “vocationally

appropriate” restrictions in the mental RFC to further account for

“the updated evidence in the record” (Tr. 449). The ALJ

additionally afforded “significant weight” to the opinions of

neuropsychologist Dr. C. Thomas Gualtieri, who opined that “there

was nothing about [Plaintiff’s] present cognitive status that

should interfere with his ability to do the kinds of unskilled

labor that he did before [his alleged motor vehicle accidents in

the early 1990’s].” (Tr. 450 (emphasis added); see also Tr. 747.)

16

Furthermore, the ALJ’s discussion of the medical evidence

explains the ALJ’s consideration of Plaintiff’s blackout

allegations. In that regard, the ALJ noted that:

□ On May 4, 2005, neurologist “Dr. [Raymond S.] Kandt

observed that [Plaintiff] had a slow reaction time

and . . . mild disequilibrium, but that he had

normal heel and toe walking and no asymmetry,

ataxia, or falling with gait testing.” (Tr. 445

(citing Tr. 260-62) (emphasis added));

. “[O]n December 12, 2005[, Plaintiff] reported [to

psychiatrist Dr. Brent Joye] that . . . he was

continuing to abuse alcohol occasionally, but that

his main problem was that he was’ feeling

depressed.” (Id. (citing Tr. 271) (emphasis

added) });

° “By May 23, 2007, Dr. Joye reported that

[Plaintiff] appeared to be doing quite well ....

In November 2007, [Plaintiff ] reported that he was

lifting weights and using a NordicTrack to try to

get in shape ... . On March 3, 2008, Dr. Joye

continued to report that [Plaintiff] was doing

fairly well and... reported that [Plaintiff]’s

mood was mostly euthymic and that he had a full

affect.” (Tr. 446 (citing Tr. 417, 419, 422)

(emphasis added) (internal parenthetical citation

omitted) );

. “[O]n September 1, 2009[, Plaintiff] reported [to

psychiatrist Dr. Geri Snoke] that he felt that his

condition had improved[] and[,] . . . on September

9, 2009[, h]le reported that he . . . had apparent

panic attacks, but that he had been having them for

a_long time and had learned how to deal with them.

Upon a mental status examination, Dr. Snoke

observed that [Plaintiff] was calm, pleasant, and

composed, and that he appeared to have only some

mild cognitive problems.” (Id. (citing Tr. 740-41,

743) (emphasis added) (internal parenthetical

citation omitted)

* “On January 28, 2010, Dr. Snoke reported that

[Plaintiff] did not mention anything about his

cognitive spells, and he declined being interested

17

or able to attend group therapy. Dr. Snoke also

reviewed [Plaintiff]’s previous hospitalization

records [from one of his motor vehicle accidents in

1993 and from his February 2007 psychiatric

inpatient treatment], and noted that he had been

intoxicated at those times, so there was nothing

definite to corroborate his complaints of cognitive

problems.” (Tr. 446-47 (citing Tr. 736-37)

(emphasis added) (internal quotation marks and

parenthetical citation omitted));

. “On December 9, 2009, [Plaintiff] underwent a

neuropsychological evaluation conducted by [Dr.]

Gualtieri ... . Following his evaluation, Dr.

Gualtieri noted that [Plaintiff]’s performance was

what one might expect in a patient with chronic

mood disorder and long-standing problems with

alcoholism. However, he reported that there was

nothing about [Plaintiff]’s clinical profile that

suggested an old brain injury as the nexus of his

difficulties. [Dr. Gualtieri] reported that the

evaluation was ‘suggestive of exaggeration’ and

also noted that [Plaintiff] tended to do better on

harder tests and worse on easy tests; that he had a

speech problem that was not what [Dr. Gualtieri]

would normally associate with a closed head injury;

and that [Plaintiff] generated a number of invalid

indicators on the testing.” (Tr. 447 (citing Tr.

747-57) (emphasis added) (internal parenthetical

citation omitted)); and

* “On February 23, 2010, [Plaintiff] underwent a

psychological consultative evaluation conducted by

Cheri Anthony, Ph.D. .. . Upon a mental status

examination, Dr. Anthony observed that [Plaintiff]

had only minor difficulties with attention, and

that he generally did well with his memory.” (Id.

(citing Tr. 719-23) (emphasis added)).

The ALJ thereafter concluded, “[a]fter reviewing all of the

evidence, .. . that [Plaintiff] had some mental impairments, which

were complicated by heavy alcohol use for much of the period,” but

that “the evidence show[ed] that he should have been able to

understand, remember, and carry out simple instructions, and that

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he should have been able to sustain his concentration, attention,

and pace sufficient to carry out simple instructions for two-hour

periods over the course of an eight-hour workday in low stress work

settings.” (Tr. 451 (emphasis added).)

As a result of the ALJ’s thorough analysis of the record

evidence, the Court can trace the path of the ALJ’s reasoning with

regard to Plaintiff’s alleged blackout spells. The ALJ clearly did

not fully credit Plaintiff’s allegations regarding the intensity,

persistence, and limiting effects of the claimed spells (see Tr.

444, 448), but nevertheless included significant limitations in the

RFC to account for such spells, such as restrictions on climbing

and exposure to hazards, as well as limitations to simple

instructions and decisions, few or no changes in the work setting,

reduced interaction with others, and non-production work (see Tr.

443).

In sum, Plaintiff’s first issue on review does not warrant

relief.

2. Error Under Arakas

In Plaintiff’s second assignment of error, he asserts that

“[Plaintiff]’s [PCS] is a medically determinable impairment that

results in the entirely subjective symptom of non-epileptic

alterations of awareness[, and Plaintiff] is therefore entitled

[under Arakas] to rely exclusively on subjective evidence to prove

the severity, persistence, and limiting effects of his non-

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epileptic alterations of awareness.” (Docket Entry 11 at 11 (bold

font and single-spacing omitted); see also Docket Entry 15 at 6-

16.) In particular, Plaintiff maintains that the Fourth Circuit in

Arakas “noted that fibromyalgia is ‘a disease whose symptoms are

entirely subjective,’” (Docket Entry 11 at 12 (quoting Arakas, 983

F.3d at 96)), and thus “held that ‘ALJs may not rely on objective

medical evidence (or the lack thereof) – even as just one of

multiple medical factors – to discount a claimant’s subjective

complaints regarding symptoms of fibromyalgia or some other disease

that does not produce such evidence’” (id. (quoting Arakas, 983

F.3d at 97)). According to Plaintiff, “[t]here is ‘[n]o single

test’ to confirm diagnosis of [PCS]” (id. at 13-14 (quoting

https://www.mayoclinic.org/diseases-conditions/post-concussion-

syndrome/diagnosis-treatment/drc-20353357)), and “diagnosis of non-

epileptic alterations of awareness is not based on [] objective

medical evidence [such as electroencephalogram (‘EEG’) tests and

brain MRIs] because they do not result from electrical activity in

the brain” (id. at 14 (citing https://www.cedars-sinai.org/health-

library/diseases-and-conditions/n/non-epileptic-seizures.html)).

Accordingly, Plaintiff argues, “[l]ike fibromyalgia, [PCS] is

entirely subjective in that it is not susceptible to verification

by objective medical evidence.” (Id.) Plaintiff thus faults the

ALJ for finding that “‘the objective findings and documentation are

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of greater value tha[n Plaintiff]’s subjective and uncorroborated

statements.’” (Id. (quoting Tr. 448).) Those arguments lack merit.

As an initial matter, Plaintiff’s contentions that “‘[n]Jo

Single test’” exists “to confirm [a] diagnosis of [PCS]” (id. at

13-14 (emphasis added) (quoting https://www.mayoclinic.org/

diseases-conditions/post-concussion-syndrome/diagnosis-—-

treatment/drc-20353357)) and that “diagnosis of non-epileptic

alterations of awareness is not based on [] objective medical

evidence” (id. at 14 (emphasis added) (citing https://www.cedars-

sinai.org/health-library/diseases-and-conditions/n/non-epileptic-—

seizures.html)) miss the point. Arakas forbids the discounting of

symptoms that do not produce objective medical evidence, Arakas,

983 F.3d at 96-97, as clearly ALJUs may require objective evidence

of the disease itself at part one of the subjective symptom

reporting inquiry, see Craig, 76 F.3d at 595. Moreover, the ALJ

here found Plaintiff’s PCS a severe, medically determinable

impairment at step two of the SEP (see Tr. 440) and found, at part

one of the subjective symptom analysis, that Plaintiff’s “medically

determinable impairments could reasonably be expected to cause the

alleged symptoms” (see Tr. 444). Framed properly, the Court must

consider whether Plaintiff’s claimed symptoms of PCS, including his

blackout spells, qualify as “entirely subjective,” Arakas, 983 F.3d

at 96 (internal quotation marks omitted), such that the ALJ erred

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in considering objective evidence in discounting Plaintiff’s

subjective complaints at part two of the inquiry.

In that regard, Plaintiff has alleged that his PCS caused him

to suffer blackout spells, slowed reaction times, memory

disturbance, disequilibrium, decreased concentration, speech

deficits, and reduced coordination (see Tr. 16-17, 19 23, 26, 158,

192, 194, 235, 257, 260, 276, 284, 338, 396, 399, 422, 426, 719-20,

738, 740, 744, 750), none of which qualify as “entirely

subjective,” Arakas, 983 F.3d at 96 (internal quotation marks

omitted). Significantly, unlike the pain, fatigue, and subjective

weakness of fibromyalgia, Plaintiff has readily admitted that his

blackout spells constitute observable phenomena, and that co-

workers and family members have witnessed him remaining in one spot

staring into space and not responding to others. (See Tr. 194

(“Friends and family have witnessed me trying to accomplish a

simple task (e.g. making a sandwich) and end up sitting or standing

idly with a blank stare uncomprehensively [sic] for long periods up

to hours.” (capitalization omitted)), 338 (complaining of “spells

where he has just blanked out and stood in the same spot for at

least a couple of hours according to his family members”), 495 (“My

father and I spend a lot of time watching TV now, and there are

times that he can recognize that I’m in that state.”), 738

(indicating that previous employers witnessed his spells and

thought “he was drunk or high or ‘playing possum’”), 744 (reporting

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that unidentified individual found Plaintiff during spell walking

on road behind his house and “it was like he was an elderly person

with Alzheimer’s,” as well as that his nephew saw Plaintiff sitting

or standing in kitchen for four hours).) Similarly, the record

contains numerous instances on which Plaintiff’s health care

providers objectively tested Plaintiff’s reaction times (see Tr.

257-58, 261, 741, 745), memory (see Tr. 261, 296, 308, 397, 403,

420, 424, 722, 753), equilibrium (or balance) (see Tr. 235, 257-58,

261, 753), concentration (see Tr. 397, 403, 420, 424, 722, 753),

speech (see Tr. 257-58, 306, 385, 390, 403, 420, 424, 719, 721,

753), and coordination (see Tr. 235, 257, 261, 308, 389, 753).

Accordingly, unlike “fibromyalgia — a disease whose symptoms are

entirely subjective, with the exception of trigger-point evidence,”

and where “[plhysical examinations will usually yield normal

results — a full range of motion, no joint swelling, as well as

normal muscle strength and neurological reactions,” Arakas, 983

F.3d at 96 (internal quotation marks and bracketed language

omitted), Plaintiff’s alleged PCS symptoms qualify as objectively

verifiable and thus Arakas lacks application to this case.

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

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

to rely exclusively on subjective evidence to prove the severity,

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

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

23

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

“La]lthough a claimant’s allegations about her [symptoms] may not

be discredited solely because they are not substantiated by

objective evidence of the [symptoms themselves] or [their]

severity, they need not be accepted to the extent they are

inconsistent with the available evidence, including objective

evidence of the underlying impairment, and the extent to which that

impairment can reasonably be expected to cause the [symptoms] the

claimant alleges []Jhe suffers,” Craig, 76 F.3d at 595 (emphasis

added); see also Hines, 453 F.3d at 565 n.3 (quoting Craig, 76 F.3d

at 595). In other words, under the appropriate circumstances, an

ALJ may choose to rely exclusively on a claimant’s subjective

symptom reports to find disabling symptoms; however, Arakas does

not compel ALJs to consider only subjective evidence, as such a

requirement would conflict with the regulations, which plainly

require ALJs to consider a variety of factors, including objective

medical evidence, in evaluating the intensity, persistence, and

limiting effects of symptoms. See 20 C.F.R. §§ 404.1529(c),

416.929(c) (directing ALJs to assess a claimant’s medical history,

medical signs and laboratory findings, daily activities, testimony

about nature and location of pain, medication and other treatment

used to alleviate pain, along with medical opinions from examining

and non-examining sources); see also 42 U.S.C. § (5) (A)

(“Objective medical evidence of pain... established by medically

24

acceptable clinical or laboratory techniques (for example,

deteriorating nerve or muscle tissue) must be considered in

reaching a conclusion as to whether [an] individual is under a

disability.” (emphasis added)).

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

considered the objective medical evidence as one part of her

evaluation of the intensity, persistence, and limiting effects of

Plaintiff’s alleged blackout spells. As detailed in the discussion

of Plaintiff’s first issue on review, the ALJ additionally

considered the opinion evidence of record (see Tr. 448-51) and

commented on the type and effectiveness of Plaintiff’s treatment,

noting that Plaintiff reported multiple times that his psychiatric

medications helped alleviate his symptoms (Tr. 445-46; see also Tr.

232, 271, 339-40, 406-07, 743). The ALJ also discussed Plaintiff’s

daily activities, observing that, despite complaints of disabling

symptoms, Plaintiff remained able to “perform many routine

activities of daily living, such as grocery shopping, preparing

meals, performing housework, and taking care of his animals,” as

well as that “he enjoyed working on puzzles, reading, [] playing

video games[,] . . . work[ing] on his vegetable garden, and

perform[ing] mechanical work on cars and welding” (Tr. 447 (citing

Tr. 418, 422, 426, 721, 757)).

In Plaintiff’s Reply, he maintains that “[t]he ALJ in this

case discounted [Plaintiff]’s reports of [PCS] symptoms, in part,

25

because he engaged in daily activities such as performing

‘mechanical work on cars and welding’” (Docket Entry 15 at 12

(internal parenthetical citation omitted) (quoting Tr. 447)), but

“failed to consider [] qualifying statements by [Plaintiff]” (id.

at 13). In that regard, Plaintiff points to his testimony that

“‘[t]here were some days that [he] could do fairly good and work

for hours on it, and then there was [sic] days that [he] couldn’t

really do anything’” (id. at 12 (quoting Tr. 499)), and that he

worked on the truck “‘maybe three days’ a week over the course of

a year ‘and it was different lengths of time that [he] was able to

stay out there’” (id. at 13 (quoting Tr. 499)). Plaintiff notes

that the court “in Arakas held that the ALJ ‘erred by discrediting

[the plaintiff]’s subjective complaints as inconsistent with her

daily activities’ because the ALJ ‘improperly disregarded her

qualifying statements regarding the limited extent to which she

could perform daily activities.’” (Id. at 12 (quoting Arakas, 983

F.3d at 99).)

Plaintiff’s argument glosses over the fact that the record

contains competing descriptions of Plaintiff’s ability to engage in

mechanical and welding work. Although Plaintiff testified to

varying ability to work on his own truck (see Tr. 499; see also Tr.

418 (reflecting Plaintiff’s report to Dr. Joye that Plaintiff had

“been spending his summer working on his truck trying to make

repairs”)), other parts of the record cited by the ALJ reflect that

26

Plaintiff worked on vehicles other than his own truck and did

welding work for cash (see Tr. 447 (citing Tr. 422 (Plaintiff

“tr[ied] to stay busy working on rebuilding cars”), 426 (Plaintiff

“occasionally g[ot] frustrated because he c[ould]’t perform

continually as far as . . . being able to work on cars like he

want[ed] to” (emphasis added)), 757 (Plaintiff “d[id] mechanical

work and welding on the side”); see also Tr. 748 (Plaintiff “ma[d]e

small sums of money doing mechanical work, welding, etc., in the

cash economy”)). The ALJ apparently chose to credit Plaintiff’s

contemporaneous statements to medical providers over his self-

serving hearing testimony, and Plaintiff has not provided the Court

with any basis to disturb the ALJ’s resolution of that conflicting

evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.

1990) (“Ultimately, it is the duty of the [ALJ] reviewing a case,

and not the responsibility of the courts, to make findings of fact

and to resolve conflicts in the evidence.”).

Plaintiff’s Reply further challenges the ALJ’s observation

that “‘later evidence specifically evaluating [PCS] has shown only

mild cognitive deficits’ and that a ‘December 2009

neuropsychological evaluation even noted that there was nothing to

suggest that his closed head injury was the nexus for his

problems.’” (Docket Entry 15 at 13-14 (quoting Tr. 447).)

According to Plaintiff, “it is not true that the [PCS] evidence

only shows mild cognitive deficits,” because “[t]hat evidence also

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documents ongoing non-epileptic alterations of awareness” arising

out of his PCS. (Id. at 14; see also id. (citing Tr. 738, 740, 744

(“report[s] to his psychiatrist in [2009] that he was still having

such episodes”)).) Plaintiff further deems “the December 2009

neuropsychological evaluation . . . irrelevant to [Plaintiff]’s

episodes of non-epileptic alterations of awareness because the

report of the evaluation d[id] not address those episodes[,

and] . . . the neuropsychologist [neither] opine[d] that

[Plaintiff] d[id] not have [PCS n]or that he d[id] not have

non-epileptic alterations of awareness related to that condition.”

(Id. (citing Tr. 747-57).)

Plaintiff’s circular argument does not aid his cause. He

essentially argues that the ALJ should not have discounted

Plaintiff’s reports of blackout spells, because the evidence shows

he continued to complain of blackout spells. Moreover, the ALJ did

not misrepresent or “cherry-pick” the record when she pointed out,

correctly, that later evidence showed only “mild cognitive

deficits” (Tr. 447): the ALJ expressly discussed Dr. Anthony’s

observation in 2010 “that [Plaintiff] had only minor difficulties

with attention, and that he generally did well with his memory”

(id. (emphasis added) (citing Tr. 719-23)). Furthermore, Dr.

Gualtieri did consider Plaintiff’s reports of blackout spells in

the 2009 neuropsychological evaluation (see Tr. 749 (Dr.

Gualtieri’s statement in “History of the Present Condition” that

28

Plaintiff’s “psychiatrist diagnosed [PCS]”), 750 (Dr. Gualtieri’s

notation that Plaintiff “continues to complain . . . about problems

with . . . altered consciousness”)) and thus Dr. Gualtieri’s

conclusions that “there was nothing about [Plaintiff]’s clinical

profile that suggested an old brain injury as the nexus of his

difficulties” and that his testing results “suggest[ed ]

exaggeration” (Tr. 757 (emphasis added)) clearly hold relevance to

the ALJ’s evaluation of Plaintiff’s alleged spells.

Put simply, Plaintiff’s second assignment of error fails to

establish prejudicial error under Arakas.

3. Error Under Dowling

Lastly, Plaintiff maintains that “[t]he ALJ . . . cited the

regulatory standards for evaluating symptoms, but not the standards

for evaluating [RFC and] . . . therefore committed a reversible

error [under Dowling] by relying on an incorrect regulatory

framework to assess [Plaintiff]’s [RFC].” (Docket Entry 11 at 15

(bold font and single-spacing omitted).) According to Plaintiff,

the Dowling court “held that, among other errors, an ALJ ‘relied on

an incorrect regulatory framework when he assessed [the

plaintiff]’s RFC[, because the ALJ neither] cite[d] to 20 C.F.R.

§ 416.945, . . . [a r]egulation[] that . . . explains how ALJs

should assess a claimant’s RFC, n]or . . . cite[d] to [Social

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

XVI; Assessing Residual Functional Capacity in Initial Claims, 1996

29

WL 374184 (July 2, 1996) (“SSR 96-8p”), which] provides guidance on

how to properly evaluate an RFC,’” but rather based the “‘RFC

determination . . . entirely on [Social Security Ruling 96-7p,

Policy Interpretation Ruling Titles II and XVI: Evaluation of

Symptoms in Disability Claims: Assessing the Credibility of an

Individual’s Statements, 1996 WL 374186 (July 2, 1996) (“SSR 96-

7p”)] and [Social Security Ruling 16-3p, Evaluation of Symptoms in

Disability Claims, 2017 WL 5180304 (Oct. 25, 2017) (“SSR 16-3p”)],

which set out the process ALJs use to evaluate the intensity and

persistence of [a claimant’s] symptoms.’” (Id. at 15-16 (internal

quotation marks omitted) (quoting Dowling, 986 F.3d at 387).)

Plaintiff notes that the court in Dowling found that, because “‘an

RFC assessment is a separate and distinct inquiry from a symptom

evaluation, [] the ALJ erred treating them as one and the same.’”

(Id. at 16 (quoting Dowling, 986 F.3d at 387).) Plaintiff

Maintains that, “[l]ike the ALJ in Dowling, the ALJ in this case

did not cite the regulatory provisions regarding assessment of RFC,

. . . [but iJnstead .. . cited 20 C.F.R. §§ 404.1529 and 416.929,

which are regulations regarding evaluation of symptoms, 20 C.F.R.

404.1527 and 416.927, which are regulations regarding evaluation

of medical opinions, and SSR 16-3p, which is a ruling regarding

evaluation of symptoms.” (Id. at 16-17 (citing Tr. 443) (internal

parenthetical citation omitted).) For the reasons explained more

fully below, Plaintiff’s arguments fail as a matter of law.

30

Contrary to Plaintiff’s arguments, the ALJ here did cite to

the correct standards governing the assessment of RFC. Although

Plaintiff focuses on one page of the ALJ’s decision to fault the

ALJ for failing to cite the proper standards (see Docket Entry 11

at 16-17 (citing Tr. 443)), Plaintiff ignores the following

recitation by the ALJ of the appropriate standards:

Before considering step four of the [SEP], the [ALJ] must

first determine [Plaintiff]’s [RFC] (20 CFR 404.1520 (e)

and 416.920(e)). An individual’s [RFC] is his ability to

do physical and mental work activities on a sustained

basis despite limitations from his impairments. In

making this finding, the [ALJ] must consider all of

[Plaintiff]’s impairments, including impairments that are

not severe (20 CFR 404.1520 (e), 404.1545, 416.920(e), and

416.945; SSR 96-8p).

(Tr. 439 (emphasis added).)'! In light of the above-quoted

paragraph, the ALJ did not err under Dowling.

In short, Plaintiff’s third issue on review lacks merit.

Significantly, Defendant’s Memorandum pointed Plaintiff to the above-cited

page of the ALJ’s ruling, which explicitly references the very regulatory

provisions that Plaintiff’s Brief falsely accused the ALJ of failing to cite

“[l]ike the ALJ in Dowling” (Docket Entry 11 at 16 (“[T]he ALJ in this case did

not cite the regulatory provisions regarding assessment of RFC.” (internal

citation omitted) (citing Tr. 443)); see also id. at 15 (identifying 20 C.F.R.

§ 416.945 and SSR 96-8p as regulatory provisions Fourth Circuit singled out as

missing in Dowling)). (See Docket Entry 14 at 15 (citing Tr. 439 as proof that

ALJ complied with Dowling’s directive to apply, inter alia, “20 C.F.R. § 416.945”

and “SSR 96-8p” in “determin[ing] the claimant’s RFC”).) Plaintiff’s Reply,

however, fails to acknowledge his prior misrepresentation that, “[l]ike the ALJ

in Dowling, the ALJ in this case did not cite th[ose] regulatory provisions

regarding assessment of RFC” (Docket Entry 11 at 16). (See Docket Entry 15 at

1-16.) Instead, Plaintiff’s Reply sub silentio abandons his Dowling claim. (See

id.) The Court expects better from members of its bar, particularly when a

member has, in the same filing that failed to admit, apologize for, or explain

an exposed misstatement of the record, hyperbolically accused Defendant’s counsel

of “an outright fabrication” (id. at 1), when the record, in fact, shows no such

thing, but instead shows, at most, an unwarranted characterization by Defendant’s

counsel of the tack taken in Plaintiff’s Brief. Put another way, all attorneys -

but especially attorneys who (over aggressively) attack the professionalism of

their adversaries - should take better care to take accountability for their own

(serious) mistakes.

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III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

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

Judgment Reversing the Decision of the Commissioner of Social

Security (Docket Entry 10) be denied, that Defendant’s Motion for

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

this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 23, 2022

32