# NEBLETT v. KIJAKAZI

> District Court, M.D. North Carolina · April 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10254218

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254218

## 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”
- rejecting challenge to ALJ’s finding for lack of sufficient detail where other discussion in decision adequately supported finding and stating “that the ALJ need only review medical evidence once in his decision”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHERYL NEBLETT, )
)
Plaintiff, )
)
v. ) 1:21CV267
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social )
Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Cheryl Neblett, 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 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 13; see also Docket Entry 12
(Plaintiff’s Memorandum); Docket Entry 14 (Defendant’s
Memorandum)). For the reasons that follow, the Court should enter
judgment for Defendant.
1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI (Tr. 165-67, 266-77),
alleging a disability onset date of February 7, 2018 (see Tr. 165,
266, 271). Upon denial of those applications initially (Tr. 117-
38, 172-91) and on reconsideration (Tr. 139-64, 192-97, 424-36),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 199-201). Plaintiff, her attorney, and a
vocational expert (“VE”) attended the hearing. (Tr. 78-116.) The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 49-59.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 37-42, 262-63), thereby making
the ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the [] Act through June 30, 2022.
2. [Plaintiff] has not engaged in substantial gainful
activity since February 7, 2018, the alleged onset date.
3. [Plaintiff] has the following severe impairments:
degenerative disc disease of the lumbar spine and
obesity.
. . .
4. [Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
2
5. . . . [Plaintiff] has the residual functional
capacity to perform light work . . . except she can never
climb ladders, ropes, or scaffolds; and can climb stairs
and ramps, stoop, kneel, crouch, and crawl occasionally.
She can push and[/]or pull consistent with the weights
associated with light work.
. . .
6. [Plaintiff] is capable of performing past relevant
work as a storage facility clerk and customer service
representative. This work does not require the
performance of work-related activities precluded by [her]
residual functional capacity.
. . .
7. [Plaintiff] has not been under a disability, as
defined in the [] Act, from February 7, 2018, through the
date of this decision.
(Tr. 55-59 (bold font and internal parenthetical citations
omitted).)
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.” Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
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
3
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, 401 (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) (brackets and internal
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
4
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting 42 U.S.C. § 423(d)(1)(A)).2 “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.
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
2 The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
provides benefits to indigent disabled persons. The statutory definitions and
the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
5
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).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 residual functional capacity
(‘RFC’).” Id. at 179.4 Step four then requires the ALJ to assess

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
[Commissioner] . . . .” 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
(continued...)
6
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled. See id. at
179-80. However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs available in the community,” the claimant qualifies as
disabled. Hines, 453 F.3d at 567.5
B. Assignments of Error
Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:

4 (...continued)
“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.
5 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.”).
7
1) “the ALJ’s [RFC] assessment is unsupported by substantial
evidence and frustrates meaningful review” (Docket Entry 12 at 5
(bold font and single-spacing omitted)); and
2) “[t]he ALJ erred by discrediting [Plaintiff]’s symptoms
pursuant to an incorrect legal standard and improperly increased
her burden of proof” (id. at 13 (bold font and single-spacing
omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (Docket Entry 14 at 5-15.)
1. RFC
Plaintiff’s first issue on review maintains that “the ALJ’s
[RFC] assessment is unsupported by substantial evidence and
frustrates meaningful review.” (Docket Entry 12 at 5 (bold font
and single-spacing omitted).) In particular, Plaintiff argues that
the ALJ 1) “erred [under Dowling v. Commissioner of Soc. Sec.
Admin., 986 F.3d 377, 387-88 (4th Cir. 2021)] by assessing
[Plaintiff]’s RFC pursuant to an incorrect framework and without

explaining the related findings in the manner required by Social
Security Regulations” (Docket Entry 12 at 6 (bold font and single-
spacing omitted)), 2) “failed to adequately explain his evaluation
of the medical opinions” (id. at 8 (bold font and single-spacing
omitted)), and 3) “erred by expressing [Plaintiff]’s RFC first and
only then concluding that the limitations caused by her impairments
were consistent with that RFC” and “failed to assess [Plaintiff]’s
8
capacity to perform relevant functions, despite contradictory
evidence in the record,” both in violation of Monroe v. Colvin, 826
F.3d 176 (4th Cir. 2016) (Docket Entry 12 at 10 (bold font and
single-spacing omitted)). For the reasons explained more fully
below, none of those challenges carries the day.
a. Error under Dowling
Plaintiff first asserts that “[t]he ALJ erred [under Dowling]
by assessing [Plaintiff]’s RFC pursuant to an incorrect framework
and without explaining the related findings in the manner required
by Social Security Regulations.” (Docket Entry 12 at 6 (bold font
and single-spacing omitted).) According to Plaintiff, the Dowling
court “held[ that] ‘the ALJ relied on an incorrect regulatory
framework when he assessed [the claimant]’s RFC,’” because he
neither “‘cite[d] to 20 C.F.R. §$ 416.945’” nor “‘*to [Social
Security Ruling 96-8p, Policy Interpretation Ruling Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, 1996
WL 374184 (July 2, 1996) (“SSR 96-8p”),] and the ‘ALJ’s RFC
determination was based 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-
],’" which rulings “‘set out the process ALJs use to evaluate

the intensity and persistence of [a claimant’s] symptoms.’”
(Docket Entry 12 at 6 (quoting Dowling, 986 F.3d at 387) (internal
quotation marks omitted).) 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 7 (quoting Dowling,
986 F.3d at 387).) Plaintiff maintains that, “just like the ALJ in
Dowling, the ALJ in this case also based her [sic] RFC
determination on SSR 16-3p and failed to cite to 20 C.F.R.
§ 416.945 or SSR 96-8p.” (Id. (citing Tr. 57).) For the reasons
explained below, Plaintiff’s arguments fail as a matter of law.
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 assert that
the ALJ failed to cite the proper standards (see id. at 7 (citing
Tr. 57)), 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 her ability to
do physical and mental work activities on a sustained
basis despite limitations from her 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. 54 (emphasis added).) Moreover, “the ALJ went beyond his
findings relating to Plaintiff’s subjective complaints . . . [and]
10
specifically relied on the findings of the [s]tate agency
consultants in assessing Plaintiff’s RFC,” Key v. Kijakazi, No.
1:20CV552, 2021 WL 3887616, at *7 (M.D.N.C. Aug. 31, 2021) (Peake,
M.J.), recommendation adopted, slip op. (M.D.N.C. Sept. 24, 2021)
(Osteen, J.).
Simply put, the ALJ did not err under Dowling.
b. Evaluation of Opinion Evidence
Plaintiff next faults the ALJ for failing to provide a
“logical explanation” for finding “‘the opinion by [the initial-
level state agency medical consultant ] not consistent with the
evidence as a whole and [the reconsideration-level state agency
medical consultant]’s conclusions [] persuasive’” (Docket Entry 12
at 9 (quoting Tr. 58)), noting that “[t]he Fourth Circuit has
repeatedly held that an ALJ’s conclusions must be adequately
explained and [that] decisions lacking logical explanations
frustrate meaningful review” (id. (citing Thomas v. Berryhill, 916
F.3d 307, 311 (4th Cir. 2019), Patterson v. Commissioner of Soc.
Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017), and Mascio v.
Colvin, 780 F.3d 632, 637-40 (4th Cir. 2015))). In addition,
Plaintiff posits that “[t]he ALJ’s failure to explain how he
considered the medical opinions [of consultative medical examiner
Dr. Stephen Burgess] in evaluating [Plaintiff]’s RFC frustrates
meaningful review.” (Id. at 10 (citing Tr. 58, 420, 423).)
Plaintiff’s contentions ultimately fail to warrant relief.

11

For benefits applications filed on or after March 27, 2017
(such as Plaintiff’s (see Tr. 165-67, 266-77)), 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 are no
longer required to assign an evidentiary weight to medical opinions
or to accord special deference to treating source opinions. See 20
C.F.R. §§ 404.1520c(a), 416.920c(a) (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”). 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), 416.920c(b) (emphasis added). 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), 416.920c(b)(2). The ALJ must address the three
other persuasiveness factors — the nature and extent of the medical
source’s relationship with the claimant and area of specialization,
12
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),
416.920c(c)(3)-(5) — only 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),
416.920c(b)(3).
The state agency medical consultants each opined that
Plaintiff remained capable of medium exertion work (lifting,
carrying, pushing, and pulling 50 pounds occasionally and 25 pounds
frequently, see 20 C.F.R. §§ 404.1567(c), 416.967(c)), with
occasional climbing of ladders, ropes, and scaffolds, and frequent
climbing of ramps and stairs, kneeling, crouching, and crawling.
(See Tr. 122-23, 133, 145-46, 156-57.) The two consultants’
opinions differed in that the initial-level consultant “expedited,”
i.e., bypassed, a finding about Plaintiff’s ability to perform her
past relevant work (“PRW”) at step four of the SEP (Tr. 124, 135),
and proceeded to find, at step five, that she could perform three
inspecting jobs available in significant numbers in the national
economy (see Tr. 125, 136), whereas the reconsideration-level

consultant specifically found that Plaintiff retained the RFC to
perform her PRW as a customer service representative (see Tr. 148,
159).
The ALJ here provided the following analysis of the state
agency medical consultants’ opinions:
13
The [ALJ] has fully considered the medical opinions and
prior administrative medical findings as follows: [the
initial-level state agency medical consultant] examined
the records at the initial level and concluded that
[Plaintiff]’s impairments resulted in limiting her to
medium exertion, with additional limitation to no more
than occasionally climbing ladders, ropes, and scaffolds;
frequently climbing stairs or ramps, kneeling, crouching,
and crawling. [The reconsideration-level state agency
medical consultant] examined [Plaintiff]’s records at the
reconsideration level and concluded that [she] could
return to her past relevant work as a customer service
representative. The [ALJ] finds that the opinion by [the
initial-level consultant] is not consistent with the
evidence as a whole and [the reconsideration-level
consultant]’s conclusions are persuasive.
(Tr. 58 (emphasis added) (internal parenthetical citations
omitted).) Contrary to Plaintiff’s allegations (see Docket Entry
12 at 9), the Court can meaningfully review the ALJ’s
decisionmaking with regard to the consultants’ opinions.
At first blush, the ALJ’s decision to find only the
reconsideration-level consultant’s opinion persuasive would appear
to conflict with the fact that both consultants proffered
identical, medium-exertion RFCs (compare Tr. 122-23, 133, with Tr.
145-46, 156-57). Further comparison of the two consultants’
opinions, however, elucidates the ALJ’s reasoning. Although not
well-worded, the ALJ clearly meant to indicate that he did not find
either consultant’s opinion that Plaintiff remained able to perform
medium work persuasive, because that finding conflicted with the
evidence as a whole. The ALJ’s adoption of a light-exertion RFC
supports that interpretation. (See Tr. 57.) The ALJ then
specifically credited only the reconsideration-level consultant’s
14

finding that Plaintiff could still perform her (lower exertion
level) PRW as a customer service representative (see Tr. 58
(referencing Tr. 148, 159)), because, as discussed above, the
initial level consultant “expedited,” i.e., bypassed, the PRW
finding and proceeded to find other jobs Plaintiff could perform at
step five (see Tr. 125, 136). Moreover, although the ALJ did
not detail the evidence that conflicted with the consultants’
medium-exertion RFC opinions in the same paragraph in which the ALJ
discussed their persuasiveness (see Tr. 58), the ALJ’s earlier
discussion of the medical evidence permits the Court to
meaningfully review his evaluation, see McCartney v. Apfel, 28 F.
App’x 277, 279-80 (4th Cir. 2002) (rejecting challenge to ALJ’s
finding for lack of sufficient detail where other discussion in
decision adequately supported finding and stating “that the ALJ
need only review medical evidence once in his decision”); Kiernan
v. Astrue, No. 3:12CV459, 2013 WL 2323125, at *5 (E.D. Va. May 28,
2013) (unpublished) (observing that, where an “ALJ analyzes a
claimant’s medical evidence in one part of his decision, there is
no requirement that he rehash that discussion” in other parts of

his analysis). Earlier in the ALJ’s decision, he discussed
evidence, including Plaintiff’s hearing testimony, that post-dated
the consultants’ opinions and supported greater restrictions in the
RFC. (See Tr. 56-58.) Examples of that contrasting evidence
include the following:
15
° although Plaintiff stated on “a Function Report
dated October 15, 2018,” that “she use[d] a can[e]
only when her back and legs [we]re ‘very painful’”
(Tr. 58 (emphasis added) (quoting Tr. 316)), she
testified at the hearing that “[s]he began using a
cane when she walk[ed] because the back pain
radiate[d] into her legs and ma[de] them numb” (Tr.
57 (emphasis added) (referencing Tr. 85); see also
Tr. 89 (reflecting Plaintiff’s testimony that she
used a cane even when standing because of right-
sided weakness)); and
° “[Tl]lumbar spine x-rays [dated November 6, 2017, ]
revealed “no acute abnormality or compression other
than mild dextroconvex lumbar scoliosis and some
degenerative changes” (Tr. 56 (citing Tr. 401)),
but lumbar “x-rays taken April 27, 2020, [ ]
revealed mild scoliosis, multilevel degenerative
disc disease and facet arthropathy with some
narrowing of the L4-5 and L5-S1 disc spaces” (Tr.
57 (referencing Tr. 452)).
The progression of Plaintiff’s reported need to use a cane from
only at times of heightened pain to at all times when on her feet
and the radiographic evidence of interval worsening of her lumbar
degenerative disc disease from November 2017 to April 2020 support
the ALJ’s decision not to credit the consultants’ medium-exertion
RFC (see Tr. 58) and, instead, to adopt a light-exertion RFC with
greater postural restrictions (compare Tr. 57, with Tr. 122-23,
133, 145-46, 156-57).°
Plaintiff additionally contends that “[t]he ALJ’s failure to
explain how he considered [Dr. Burgess’s] medical opinions in

6 Although the ALJ did not include Plaintiff’s reported need for a cane in the
RFC (see Tr. 57), the VE testified that the need to use a cane at all times when
on one’s feet would not preclude Plaintiff from performing her PRW as a customer
service representative (see Tr. 112-13). Notably, Plaintiff did not allege error
arising out of the ALJ’s omission of the need for a cane in the RFC. (See Docket
Entry 12.)
16

evaluating [Plaintiff]’s RFC frustrates meaningful review.”
(Docket Entry 12 at 10 (citing Tr. 58, 420, 423).) Although the
ALJ discussed Dr. Burgess’s findings and opinions in a fair amount
of detail in the context of the ALJ’s analysis of whether
Plaintiff’s impairments met or equaled the requirements of any
listings at step three of the SEP (see Tr. 56), the ALJ did not
specifically make a finding as to the persuasiveness of those
opinions (see Tr. 58). That omission violates the Commissioner’s
regulations governing the evaluation of opinion evidence, which
require the ALJ to “articulate in [the] . . . decision how
persuasive [he] find[s] all of the medical opinions . . . in
[Plaintiff’s] case record,” 20 C.F.R. $§ 404.1520c(b), 416.920c (b)
(emphasis added); however, for the reasons discussed below, that
error by the ALJ remains harmless under the facts 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”).
Dr. Burgess conducted a consultative medical examination of
Plaintiff on November 28, 2018 (see Tr. 419-23), and found “mild”
tenderness in Plaintiff’s cervical and lumbar spines (see Tr. 421-
22 (emphasis added)), “some” tenderness over her sacroiliac joints
(Tr. 422 (emphasis added)), decreased hip flexion (see id.),

17

reduced cervical flexion and extension (see Tr. 421), an
“equivocal” supine straight leg test (Tr. 422 (emphasis added)),
and crepitus in Plaintiff’s knees, left greater than right (see Tr.
421), while also noting that Plaintiff could “not fully squat
without assistance” (Tr. 422 (emphasis added)). On the other hand,
Dr. Burgess recorded a normal gait without a handheld assistive
device (see Tr. 420), normal heel and toe walk and tandem gait (see
Tr. 422), no edema (see Tr. 421), no spasm or trigger points
(see Tr. 421-22), full strength including Plaintiff’s grip (see Tr.
422), a negative seated straight leg raise test (see id.), and
normal sensation, coordination, and reflexes (see id.). As a
result of those findings, Dr. Burgess opined that Plaintiff’s
“ability to perform work-related activities such as bending,
stooping, lifting, walking, crawling, squatting, carrying,
traveling, pushing and pulling heavy objects, as well as the
ability to hear or speak, appear [ed] to be mildly and
intermittently more moderately impaired.” (Tr. 423 (emphasis
added) .)’
Plaintiff has not explained how the ALJ’s light-exertion RFC
with additional postural restrictions (see Tr. 57) conflicts with
Dr. Burgess’s mild-to-moderate limitations (see Docket Entry 12 at

’ Dr. Burgess’s report does not explain why he rated Plaintiff’s abilities to
hear and speak as “mildly and intermittently more moderately impaired” (Tr. 423),
especially given the lack of findings regarding Plaintiff’s speech (see Tr. 420-
22) and Dr. Burgess’s earlier finding that Plaintiff’s “hearing appear[ed] to be
adequate for normal conversation” (Tr. 420).
18

10). Thus, remand for an express evaluation by the ALJ of the
persuasiveness of Dr. Burgess’s opinions would serve no purpose, as
Plaintiff simply has not shown that the ALJ’s full adoption of Dr.
Burgess’s opinions would have changed the RFC in any material way
and/or resulted in a more favorable outcome in her claims.®
Cc. Error under Monroe
Plaintiff’s third and final complaint regarding the ALJ’s RFC
contends that he 1) “erred by expressing [Plaintiff]’s RFC first
and only then concluding that the limitations caused by her
impairments were consistent with that RFC,” and 2) “failed to
assess [Plaintiff]’s capacity to perform relevant functions,
despite contradictory evidence in the record,” both in violation of
Monroe. (Docket Entry 12 at 11 (citing Monroe, 826 F.3d at 188);
see _ also id. at 11-12 (detailing evidence Plaintiff believes
contradicts RFC (citing Tr. 85-87, 92, 94-95, 398, 401, 404, 408-
09, 420, 423, 441-42, 452)).) In Plaintiff’s view, “[t]he ALJ
failed to adequately explain how [Plaintiff] can perform the
assigned RFC five days per week, eight hours per day despite her
advanced age, severe physical impairments, symptoms, and need for

8 Notably, Dr. Burgess did not place any limitations on Plaintiff’s abilities to
sit or stand. (See Tr. 423.) Moreover, although not argued by Plaintiff
(see Docket Entry 12 at 10), even the ALJ’s full adoption of Dr. Burgess’s mild-
to-moderate limitation on Plaintiff’s ability to walk (see Tr. 423) would not
change the outcome of her claims, as the ALJ found (based on the VE’s testimony
(see Tr. 110-11)) that Plaintiff remained capable of returning to her PRW as a
customer service representative (see Tr. 59), which the VE placed at the
sedentary range of exertion (see Tr. 110).
19

cane.” (Id. at 12 (citing Tr. 57-58).) Plaintiff’s reliance on
Monroe fails on both fronts.
To begin, as a matter of formatting and organizational
structure, ALJs typically express the RFC as a numbered and bolded
heading (as they do all of the findings they make at other steps of
the SEP), and then discuss the evidence that supports that RFC
finding. See Sherah F. v. Berryhill, No. CV 18-1957, 2019 WL
2642833, at *9 (D. Md. June 27, 2019) (unpublished) (“In thle
c]ourt’s experience, ALJs will include their RFC findings in the
heading of the section of their decision discussing a claimant’s
RFC. In the body of the discussion that follows, the ALJs will
then discuss the evidentiary support and reasoning behind their
conclusion. When they do refer to the RFC again in the discussion,
it will usually be in general terms.”). The ALJ’s RFC finding here
conformed to that organizational format. (See Tr. 57.) The Sherah
F. court found “unclear” whether the ALJ’s mere placement of the
RFC in a heading preceding the supporting analysis constituted
“Yexpress[ing the] RFC first’” as prohibited by Monroe and its
progeny. id. (citing Thomas, 916 F.3d at 312, in turn citing
Monroe, 826 F.3d at 188); see also Jordan v. Berryhill, No.
1:16CV951, 2017 WL 8776509, at *8 &@ n.4 (E.D. Va. Nov. 3, 2017)
(unpublished) (assuming arguendo that ALJ’s placement of RFC in
heading constituted expressing RFC first under Monroe, but noting
that “the RFC assessment is bolded and structured as a heading” and

20

that, “[a]fter providing the RFC assessment, the ALJ analyzes the
medical evidence .. . [and] then states his findings and refers to
his previously provided RFC assessment” and thus that “it appears
that the ALJ expressing [the p]laintiff’s RFC assessment first was
merely an organizational feature of his decision” and that,
“[Lo]therwise, the ALJ did provide an analysis and then come to a
decision on [the pllaintiff’s RFC” (internal parenthetical
citations omitted)), recommendation adopted, 2018 WL 555716 (E.D.
Va. Jan. 23, 2018) (unpublished).
However, the Court need not resolve that issue because, even
assuming the ALJ here expressed the RFC before the supporting
analysis, unlike in Monroe, the ALJ here did not then find the
evidence “consistent” with that predetermined RFC. (See Tr. 57-
58.) The Monroe decision expressly relied on the Fourth Circuit’s
earlier decision in Mascio, wherein the Fourth Circuit found
erroneous an ALJ’s reliance on the “boilerplate” language that “the
claimant’s statements concerning the intensity, persistence and
limiting effects of his symptoms [we]re not credible to the extent
they [we]re inconsistent with the above [RFC] assessment,” holding
that such language “gets things backwards by implying that” the ALJ
first determined the RFC, and then used the RFC “to determine the
claimant’s credibility.” Mascio, 780 F.3d at 639 (emphasis added).
The ALJ here, however, did not use that forbidden language in
assessing Plaintiff’s subjective symptom reporting (see Tr. 58

21

(finding that Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms [we]re not
entirely consistent with the medical evidence and other evidence in
the record for the reasons explained in th[e] decision” (emphasis
added))) and thus Plaintiff has not demonstrated error under Monroe
in that regard, see Linares v. Colvin, No. 14-120, 2015 WL 4389533,
at 86 (W.D.N.C. July 17, 2015) (unpublished) (finding language
similar to phrasing used by ALJ here “distinguishable from the now
suspect boilerplate language used in Mascio” because “the ALJ’s
language does not suggest that he first assessed [the p]laintiff’s
RFC and used that assessment to determine credibility”).
Plaintiff’s second Monroe-based contention, that the ALJ
“failed to assess [Plaintiff]’s capacity to perform relevant
functions, despite contradictory evidence in the record” (Docket
Entry 12 at 11 (citing Monroe, 826 F.3d at 188)) similarly misses
the mark. Although Plaintiff detailed evidence she believed
contradicted the RFC (see id. at 11-12 (citing Tr. 85-87, 92, 94-
95, 398, 401, 404, 408-09, 420, 423, 441-42, 452)), she neither
identified any “relevant functions” the ALJ failed to consider, nor
explained how remand for further consideration of such functions
would result in a more favorable outcome in her claim (see id.).
That failure precludes relief. See United States v. Zannino, 895
F.2d 1, 17 (list Cir. 1990) (“[A] litigant has an obligation to
spell out its arguments squarely and distinctly, or else forever

22

hold its peace.” (internal quotation marks omitted)); Hughes v. B/E
Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C.
Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should not
expect a court to do the work that it elected not to do.”).
In light of the foregoing analysis, Plaintiff’s first
assignment of error falls short.
2. Evaluation of Subjective Symptoms
In Plaintiff’s second and final assignment of error, she
asserts that “[t]he ALJ erred by discrediting [Plaintiff]’s
symptoms pursuant to an incorrect legal standard and improperly
increased her burden of proof.” (Docket Entry 12 at 13 (bold font
and single-spacing omitted).) More specifically, Plaintiff
contends that “the regulations and Fourth Circuit precedent[
preclude] an ALJ [from] reject[ing] statements about the intensity
and persistence of pain or other symptoms due to a lack of
objective evidence.” (Id. (citing 20 C.F.R. §§ 404.1529(c)(2),
416.929(c)(2), Arakas v. Commissioner of Soc. Sec. Admin., 983 F.3d

83, 97-98 (4th Cir. 2020), Lewis v. Berryhill, 858 F.3d 858, 866
(4th Cir. 2017), Hines, 453 F.3d at 565, Craig, 76 F.3d at 592-93,
and Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989)).) According
to Plaintiff, “the ALJ evaluated [Plaintiff]’s symptoms based on an
incorrect legal standard by requiring objective evidence in
support.” (Id. at 14 (citing Tr. 58).) Plaintiff further notes
that, “other than the ALJ’s unfounded assertion that [Plaintiff]
23
should be able to afford prescription medication and treatment
without health insurance because she smokes cigarettes, the ALJ
failed to explain what statements by [Plaintiff] undercut her
subjective complaints.” (Id. at 15 (citing Tr. 58).) Those
contentions do not warrant relief.
As an initial matter, Plaintiff overstates the reach of the
Fourth Circuit cases upon which she relies by stating that such
“precedent[ precludes] an ALJ [from] reject[ing] statements about
the intensity and persistence of pain or other symptoms due to a
lack of objective evidence.” (Id. at 13 (citing Arakas, 983 F.3d
at 97-98, Lewis, 858 F.3d at 866, Hines, 453 F.3d at 565, Craig, 76
F.3d at 592-93, and Walker, 889 F.2d at 49).) Although Arakas
“reiterate[d] the long-standing law in [the Fourth C]lircuit that
disability claimants are entitled to rely exclusively on subjective
evidence to prove the severity, persistence, and limiting effects
of their symptoms,” Arakas, 983 F.3d at 98, long-standing cases
containing the substance of that holding, such as Craig and Hines
(among others), clarify that, “[a]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

24

[symptoms] the claimant alleges she 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 Act itself
and its regulations, both of 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 42 U.S.C. § 423(d) (5) (A) (“Objective medical
evidence of pain... established by medically 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));
also 20 C.F.R. §§ 404.1529(c) (2), 416.929(c) (2) (“Objective
medical evidence .. . such as .. . reduced joint motion, muscle
spasm, sensory deficit or motor disruption . . . is a useful
indicator to assist [the ALJ] in making reasonable conclusions
about the intensity and persistence of [a claimant’s] symptoms and
the effect those symptoms, such as pain, may have on [his or her]
ability to work. [An ALJ] must always attempt to obtain objective
medical evidence and, when it is obtained, [the ALJ] will consider

25

it in reaching a conclusion as to whether [a claimant is]
disabled.” (emphasis added)).
Here, in compliance with the regulations and Fourth Circuit
precedent discussed above, the ALJ considered the objective medical
evidence as one part of his evaluation of the intensity,
persistence, and limiting effects of Plaintiff’s alleged symptoms.
(See Tr. 58 (finding Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of [her] symptoms []
not entirely consistent with the medical evidence and _ other
evidence in the record” (emphasis added)).) As detailed in the
discussion of Plaintiff’s first issue on review, the ALJ
additionally considered the opinion evidence of record (see Tr.
58), and reduced the state agency medical consultants’ RFC
assessments from the medium level of exertion to the light level
and added additional postural restrictions (compare Tr. 57, with
Tr. 122-23, 133, 145-46, 156-57). The ALJ also summarized
Plaintiff’s hearing testimony and statements on a Function Report
in a fair amount of detail (see Tr. 57-58), while additionally
discussing all five of the medical records that exist in the record
(Tr. 56-57), and Plaintiff has not identified additional evidence
or subjects of discussion pertaining to her subjective symptom
reporting that the ALJ omitted from his analysis (see Docket Entry
12 at 12-15). The ALJ ended his discussion of the RFC by stating
that the RFC “[wa]s supported by the evidence of record when

26

considered as a whole” (Tr. 59 (emphasis added)) and thus made
clear that, in the final analysis, he considered the entire record,
and not just the objective medical evidence, in determining
Plaintiff’s RFC.
The ALJ “also noted that, while [Plaintiff] contends she
cannot afford treatment or medications, she does smoke cigarettes
on a regular basis[ which ] indicates she has some discretionary
funds that could be used to purchase medications.” (Tr. 58.)
Although Plaintiff characterized the ALJ’s observation in that
regard as “unfounded” (Docket Entry 12 at 15), she made no further
effort to explain the impropriety of that observation (see id.).
In fact, the record supports the ALJ’s findings both that Plaintiff
alleged an inability to afford treatment and medications (see Tr.
89, 97, 317), and that Plaintiff smoked cigarettes throughout the
relevant period in this case (see Tr. 398 (2017 hospital record
describing Plaintiff as “[c]urrent every day smoker”), 420
(Plaintiff’s 2018 report to Dr. Burgess that she had smoked “less
than a pack a day . . . for 43 years”), 439 & 442 (Plaintiff’s 2019
statements to nurse practitioner that she smoked “5 or less”

cigarettes on “some days, but not every day”)).
Moreover, courts within the Fourth Circuit have long held that
ALJs may permissibly consider a claimant’s purchase of cigarettes
when evaluating an alleged inability to afford treatment, as

27
exemplified by this decision from the United States District Court
for the Eastern District of Virginia:
The Fourth Circuit has held that “[a] claimant may not be
penalized for failing to seek treatment [ ]Jhe cannot
afford,” because “‘*[i]Jt flies in the face of the patent
purposes of the . . . Act to deny benefits to someone
. . . too poor to obtain medical treatment that may help
him.’” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir.
1986) (quoting Gordon v. Schweiker, 725 F.2d 231, 237
(4th Cir. 1984)). However, “Lovejoy and its progeny do
not in any way preclude the ALJ from considering
inconsistencies in the record... .” Riegel v. Colvin,
[No. 7:12CV526,] 2014 WL 462525, at *8 (W.D. Va. Feb. 5,
2014). In Riegel, the plaintiff testified that she did
not seek treatment, because she did not have insurance,
but she continued to smoke cigarettes against medical
advice. Id. The court explained that the ALJ did not
penalize the plaintiff for lacking insurance; rather, the
ALJ penalized her “because of this inconsistency in the
evidence.” Id,
Woodson v. Berryhill, No. 3:17CV347, 2018 WL 4659449, at *18 (E.D.
Va. Aug. 7, 2018) (unpublished), recommendation adopted, 2018 WL
4658681 (E.D. Va. Sept. 27, 2018) (unpublished); see also Arnold v.
Berryhill, No. 3:18CV391, 2019 WL 2883815, at *7 (W.D.N.C. June 12,
2019) (unpublished) (holding that “ALJ did not err” by discounting
the plaintiff’s claim that he “failed to take his prescribed
medication due to an alleged lack of funds,” where “ALJ noted...
that [the p]laintiff could afford two packs of cigarettes per
day”), recommendation adopted sub nom. Arnold v. Saul, 2019 WL
2881548 (W.D.N.C. July 2, 2019) (unpublished) ; Rinaldi □□
Berryhill, No. 2:16CV1403, 2017 WL 4003384, at *4 (D.S.C. Sept. 12,
2017) (unpublished) (“[I]t was not error for the ALJ to consider
the effect of [the p]laintiff’s cigarette habit on her ability to
28

afford treatment.”); Thompson v. Colvin, No. 7:15CV26, 2016 WL
1069654, at *3 (E.D.N.C. Mar. 16, 2016) (unpublished) (finding no
error in ALJ’s consideration of the plaintiff’s ongoing cigarette
purchases despite claiming an inability to afford medication); Hill
v. Colvin, No. 7:14CV171, 2015 WL 5147604, at *6 (E.D.N.C. Aug, 10,
2015) (unpublished) (noting that, “[a] claimant’s use of income to
purchase cigarettes can undercut h[er] allegations that [s]he is
unable to afford treatment”), recommendation adopted, 2015 WL
5164957 (E.D.N.C. Sept. 2, 2015) (unpublished). Thus, Plaintiff
simply has not demonstrated error with respect to the ALJ’s
consideration of Plaintiff’s continued smoking in the face of her
claimed inability to afford treatment and medications.
In short, Plaintiff’s second and last issue on review does not
demonstrate reversible error.
III. CONCLUSION
Plaintiff has not established an error warranting remand.

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 11) be denied, that

29
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
April 25, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254218. Public record. Not legal advice.