# ALLEN v. KIJAKAZI

> District Court, M.D. North Carolina · March 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10254401

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 2, 2023
- **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/10254401

## How later opinions describe it (automated extraction)

- explaining that “courts generally will not address new arguments raised in a reply brief because it would be unfair to the [other party]”
- observing that “[n]o principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KENNETH L. ALLEN, )
)
Plaintiff, )
)
v. ) 1:21CV972
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social )
Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kenneth L. Allen, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security, denying Plaintiff’s claim for Disability Insurance
Benefits (“DIB”). (Docket Entry 1.) Defendant has filed the
certified administrative record (Docket Entry 10 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 15, 18; see also Docket Entry 14 (Plaintiff’s Brief);
Docket Entry 19 (Defendant’s Memorandum); Docket Entry 20
(Plaintiff’s Reply)). For the reasons that follow, the Court
should enter judgment for Defendant.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB (Tr. 266-69), alleging a disability
onset date of January 10, 2013 (see Tr. 268). Upon denial of that
application initially (Tr. 119-37, 156-60) and on reconsideration
(Tr. 138-55, 162-66), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 167-68). Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 37-93.) The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act. (Tr. 14-26.) The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-8,
263-65, 477-79, 480-504), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In rendering that decision, the ALJ made the following
findings later adopted by the Commissioner:
1. [Plaintiff] last met the insured status requirements
of the . . . Act on March 31, 2015.
2. [Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
January 10, 2013 through his date last insured of March
31, 2015.
. . .
3. Through the date last insured, [Plaintiff] had the
following severe impairments: osteoarthritis and
degenerative joint disease of the bilateral knees and
shoulders, status-post surgical intervention; obesity;
depression anxiety disorder; and post-traumatic stress
disorder.

. . .
4. Through the date last insured, [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. . . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform sedentary
2
work . . . except [he] was limited to performing simple
tasks that have a reasoning [development] level [(“RDL”)]
of 1 or 2 as defined in the [Dictionary of Occupational
Titles (“DOT”)], and could maintain concentration,
persistence and pace on such tasks for at least 2 hours
at a time and complete an 8-hour workday without special
supervision. He should have no required interaction with
the public and no more than occasional required
interaction with co-workers. He should work in a lower
stress work environment, defined as one where he did not
have to meet a rigid, inflexible production or pace
requirement, make complex decisions, or adapt to frequent
changes at the workstation. He could make simple
decisions, and could adapt to routine changes. He could
lift and carry up to 10 [pounds] occasionally and less
than 10 [pounds] frequently, could stand and walk an
aggregate of 2 hours and could sit at least 6 hours of an
8-hour workday; could no more than occasionally stoop,
twist, balance, crouch, kneel and climb stairs or ramps,
but could not crawl or climb ladders, ropes, or
scaffolds. He could no more than frequently reach
overhead, forward, or laterally with the bilateral upper
extremities. He should have no required exposure to
unprotected heights or dangerous machinery, and no
concentrated exposure to extremes of humidity or heat.
He needs to be allowed to change position at the
workstation after 30 minutes standing or sitting.

. . .
6. Through the date last insured, [Plaintiff] was
unable to perform any past relevant work.
. . .
10. Through the date last insured, considering
[Plaintiff]’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [he] could have performed.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from January 10, 2013, the
3
alleged onset date, through March 31, 2015, the date last
insured.
(Tr. 19-26 (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 . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Plaintiff has
not established entitlement to relief under the extremely limited
review standard.
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a
reviewing court must uphold the factual findings of the ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of
more than a mere scintilla of evidence but may be somewhat less
4
than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets 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 Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted). “The issue before
[the Court], therefore, is not whether [the claimant] is disabled,
but whether the ALJ’s finding that [the claimant] is not disabled
is supported by substantial evidence and was reached based upon a
correct application of the relevant law.” Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in any substantial gainful activity by reason of any
5
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)).1 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account a claimant’s age, education, and work experience in
addition to [the claimant’s] medical condition.” Id. “These
regulations establish a ‘sequential evaluation process’ to
determine whether a claimant is disabled.” Id. (internal citations
omitted).
This sequential evaluation process (“SEP”) has up to five
steps: “The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

1 The Act “comprises two disability benefits programs. [DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).
6
F.3d 473, 475 n.2 (4th Cir. 1999).2 A finding adverse to the
claimant at any of several points in the SEP forecloses an award
and ends the inquiry. For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful activity.’
If the claimant is working, benefits are denied. The second step
determines if the claimant is ‘severely’ disabled. If not,
benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th
Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].” Id. at 179.3 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

2 “Through the fourth step, the burden of production and proof is on the
claimant. If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3 “RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
7
claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65. If, at this step, the government cannot
carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled. Hines, 453 F.3d at 567.4
B. Assignments of Error
Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[the] SSA failed to carry its burden at step 5 [of the
SEP], as the job [sic] identified were not provided in response to
the [hypothetical] question as identified in the ALJ [sic]
decision,” and “[the] jobs identified by the VE do not comply with
the RFC in the written decision when considered with the [DOT] and

permissible VE testimony on which the ALJ relied” (Docket Entry 14

4 A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
at 19 (underscoring and single-spacing omitted); see also Docket
Entry 20 at 2-3);°
2) “[t]he ALJ erred [sic] his evaluation of [P]Jlaintiff’s
condition under relevant rulings [Social Security Ruling 83-12,
Titles II and XVI: Capability to Do Other Work - The Medical-
Vocational Rules as a Framework for Evaluating Exertional
Limitations Within a Range of Work or Between Ranges of Work, 1983
WL 31253 (1983) (“SSR 83-12”), Social Security Ruling 83-14, Titles
and XVI: Capability to Do Other Work -— The Medical-Vocational
Rules as a Framework for Evaluating a Combination of Exertional and
Nonexertional Impairments, 1983 WL 31254 (1983) (“SSR 83-14”), and
Social Security Ruling 96-9p, Policy Interpretation Ruling Titles
Il and XVI: Determining Capability to Do Other Work —- Implications
of a Residual Functional Capacity for Less Than a Full Range of
Sedentary Work, 1996 WL 374185 (July 2, 1996) (“SSR 96-9p”)] to
appropriately consider the effects of limitations beyond the
limitation to sedentary work” (Docket Entry 14 at 23 (underscoring
and single-spacing omitted); see also Docket Entry 20 at 4); and
3) “[t]lhe ALJ’s refusal to allow [P]laintiff’s counsel to
complete argument and questioning of witnesses in the hearing
resulted in an incomplete development of the record, and
constituted an unfair and flawed hearing process” (Docket Entry 14

° Plaintiff’s principal Brief in support of his instant motion contains
duplicate copies of his counsel’s arguments (see Docket Entry 14 at 1-16, 17-32.)
This Recommendation will cite to the latter copy of those arguments.

at 28 (underscoring and single-spacing omitted); see also Docket
Entry 20 at 4-5).
Defendant contends otherwise and seeks affirmance of the ALJ's
decision. (See Docket Entry 19 at 12-25.)
1. Step Five of the SEP
In Plaintiff’s first issue on review, he maintains that “[the]
SSA failed to carry its burden at step 5 [of the SEP], as the job
[sic] identified were not provided in response to the
[hypothetical] question as identified in the ALJ [sic] decision,”
as well as that “[the] jobs identified by the VE do not comply with
the RFC in the written decision when considered with the [DOT] and
permissible VE testimony on which the ALJ relied.” (Docket Entry
14 at 19 (underscoring and single-spacing omitted); see also Docket
Entry 20 at 2-3.) More specifically, Plaintiff points out that the
ALJ’s dispositive hypothetical question to the VE included no
overhead reaching with the bilateral upper extremities (Docket
Entry 14 at 19 (citing Tr. 85)), but that the RFC limited Plaintiff
to “no more than frequent[] reach[ing] overhead” with both arms
(id. (emphasis added) (citing Tr. 21)). According to Plaintiff,
“all three jobs the [ALJ] used to carry [the] SSA’s burden require
‘frequent’ reaching overhead, forward, lateral” (id. at 20
(emphasis added) (citing id. at 33-39)), and that, although “the VE
reduced job numbers [for] the [D]ocument [P]reparer job to allow
for overhead reaching[, she] did not do so for [the A]ddresser or
[F]inal [A]ssembler jobs” (id. at 21 (referencing Tr. 85-86)). He
10

further contends that the RFC’s limitation to frequent reaching did
“not fit with the evidence.” (Id. at 20; see also id. at 20-21
(detailing evidence Plaintiff believed conflicted with limitation
to frequent reaching (citing Tr. 74-75, 590, 592-632, 870, 905)).)
Plaintiff additionally argues that “[t]here would be problems
with [sic] jobs identified [by the VE] even had they been provided
in response to an appropriate [hypothetical] question.” (Docket
Entry 14 at 21.) In that regard, Plaintiff notes that the Document
Preparer “job does not meet [sic] requirements of the ALJ’s
hypothetical,” because that job requires RDL 3, “as opposed to
[RDL] 1 or 2, as set out in the [hypothetical].” (Id. (referencing
DOT, No. 249.587-018 (“Document Preparer, Microfilming”), 1991 WL
672349 (G.P.O. 4th ed. rev. 1991) (“[RDL] 3: Apply commonsense
understanding to carry out instructions furnished in written, oral,
or diagrammatic form. Deal with problems involving several
concrete variables in or from standardized situations.”)).)
Plaintiff also urges that, “[s]ince [he] need[ed] to stand (up to
2 hours per day)[,] reaching to desk level to do any of th[o]se
jobs would produce more shoulder strain, and probably more knee and

balance problems than reaching forward or laterally” (id. at 22),
as well as that “[p]roblems would arise looking down from a
standing position, as the[ Addresser and Final Assembler] jobs
require frequent or constant near visual acuity” (id. (referencing
DOT, No. 209.587-010 (“Addresser”), 1991 WL 671797 (“Near Acuity:
11
Constantly - Exists 2/3 or more of the time”), and DOT, No.
713.687-018 (“Final Assembler”), 1991 WL 679271 (same))).
Plaintiff’s contentions miss the mark.
As Plaintiff has argued (see Docket Entry 14 at 19), the ALJ’s
dispositive hypothetical question to the VE differs from the ALJ’s
RFC in that the hypothetical question included a limitation to
“[]no[] reach[ing] overhead at all . . . and [] no more than
frequent[] reach[ing] forward or laterally with the bilateral upper
extremities” (Tr. 85 (emphasis added)), and the RFC contained a
restriction to “no more than frequent[] reach[ing] overhead,
forward, or laterally with the bilateral upper extremities” (Tr. 21
(emphasis added)). Plaintiff has failed, however, to demonstrate
that such a variance prejudiced her. 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”). As
the Commissioner asserts, “[b]y any measure of common sense, a job
that can be performed by someone who has no ability to reach

overhead necessarily can also be performed by a person who has the
ability to reach overhead frequently.” (Docket Entry 19 at 21.)
Moreover, because the ALJ ultimately found that Plaintiff remained
capable of frequent reaching in all directions with both arms
(see Tr. 21), no conflict exists between the RFC’s limitation to
12
frequent reaching (see id.) and the DOT’s characterization of those
jobs as requiring frequent reaching, see DOT, No. 249.587-018
(“Document Preparer, Microfilming”), 1991 WL 672349 (“Reaching:
Frequently - Exists from 1/3 to 2/3 of the time”), DOT, No.
209.587-010 (“Addresser”), 1991 WL 671797 (same), and DOT, No.
713.687-018 (“Final Assembler”), 1991 WL 679271 (same).°®
Plaintiff’s contention that the RFC’s limitation to frequent
reaching did “not fit with the evidence” (Docket Entry 14 at 20;
see _ also id. at 20-21 (detailing evidence Plaintiff believed
conflicted with limitation to frequent reaching (citing Tr. 74-75,
590, 592-632, 870, 905))) similarly fail. By pointing to record
evidence Plaintiff believed supported greater reaching limitations,
he misinterprets this Court’s standard of review. The Court must
determine whether substantial evidence, i.e., “more than a mere
scintilla of evidence but . . . somewhat less than a
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), supported the ALJ’s restriction to
frequent reaching in all directions (see Tr. 21), and not whether
other record evidence weighed against that finding, see Lanier v.

® In response to the ALJ’s hypothetical including a limitation to no
overhead reaching (see Tr. 85), the VE explained to the ALJ that she “erode[d]
50 percent of [the identified 98,000 Document Preparer jobs in the national
economy, ] because there are some [Document Preparer] positions that [require]
occasional[] reach[ing] overhead” (id. (emphasis added)). In light of the ALJ’s
RFC ultimately finding Plaintiff capable of frequent reaching in all directions
(see Tr. 21), Plaintiff’s contention that the VE erred by not providing job
reduction numbers for the Addresser and Final Assembler jobs to account for the
possibility that some of those jobs require occasional overhead reaching (see
Docket Entry 14 at 21 (referencing Tr. 85-86)) falls short.
13

Colvin, No. CV414-004, 2015 WL 3622619, at *1 (S.D. Ga. June 9,
2015) (unpublished) (“The fact that [the p]laintiff disagrees with
the ALJ’s decision, or that there is other evidence in the record
that weighs against the ALJ’s decision, does not mean that the
decision is unsupported by substantial evidence.”).
Additionally, the evidence Plaintiff cited in support of his
instant contentions would not have compelled the ALJ to adopt
greater reaching limitations in the RFC. Plaintiff relies first on
his own testimony that, since 2007, he had lacked the ability to
lift his arms up over his head (Docket Entry 14 at 20 (citing Tr.
74-75)), as well as his “report[] to his psychiatrist” that he
“recently had the left shoulder surgery” (id. (citing Tr. 870)).
Plaintiff’s reliance on his own subjective statements fails for two
reasons. First, the ALJ 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. 22), a finding that Plaintiff did not
challenge (see Docket Entries 14, 20). Second, Plaintiff’s counsel

concedes that she could not locate “documentation” of Plaintiff’s
alleged left shoulder surgery (see Docket Entry 14 at 20), despite
the voluminous record in this case, and the note in question does
not reflect a report by Plaintiff of recent left shoulder surgery
but rather that he “had an MRI of h[is] shoulder which indicate[d]
14
that he need[ed] surgery,” and that “[h]is right shoulder had
surgery and he did well and [wa]s hoping to [sic] same result with
the left shoulder” (Tr. 870 (emphasis added)).
Plaintiff’s reliance on the consultative medical examination
of Dr. Stephen Burgess fares no better. In that regard, Plaintiff
(A) asserts that “[Dr.] Burgess’ impression included[ ‘that
Plaintiff] ha[d] ongoing shoulder problems, probably aggravated by
use of a cane’” (id. (internal parenthetical citation omitted)
(emphasis added) (quoting Tr. 589)), as well as that he “‘[wa]s
starting to have worsening pain in the shoulders and in fact had
bursitis that had developed so severely in the left shoulder that
he could not even lie down on it’” (id. (quoting Tr. 585)), and (B)
notes that Dr. Burgess found Plaintiff’s range of motion limited
especially on the left – 85 [degrees] . . . of forward flexion”
(id. (referencing Tr. 587)). Plaintiff’s argument glosses over the
fact that, notwithstanding Dr. Burgess’s impression that Plaintiff
had limited forward flexion on the left (see Tr. 587) and “ha[d]
ongoing shoulder problems” (Tr. 598), Dr. Burgess ultimately opined
that Plaintiff’s medical conditions caused only ‘mild[]

impair[ment]” of Plaintiff’s abilities to lift, carry, push, and
pull and imposed no reaching limitation (Tr. 589). Moreover, the
language regarding Plaintiff’s “worsening” shoulder pain did not
constitute Dr. Burgess’s “impression” but rather appears in the
“History of Present Illness” portion of Dr. Burgess’s report, which
15
summarized Plaintiff’s subjective symptom reporting (Tr. 585 (all-
caps font omitted)), which the ALJ discounted (see Tr. 22) ina
finding unchallenged by Plaintiff (see Docket Entries 14, 20).
Plaintiff additionally suggests that a Functional Capacity
Evaluation (“FCE”) performed on August 29, 2013, as part of his
Workers’ Compensation claim “precluded frequent reaching of any
weight.” (Docket Entry 14 at 20 (citing Tr. 905).) As the
Commissioner points out, however, “Plaintiff conflates the section
[of the FCE] that relays the results of testing regarding his
ability to lift (see Tr. 905) with the examiner’s conclusion about
how often [Plaintiff] could reach ([see] Tr. 906)” (Docket Entry 19
at 17), and “the [FCEH] examiner concluded that Plaintiff could
reach overhead frequently” (id. (emphasis added) (citing Tr. 906)).
Plaintiff also mentions that “Dr. [J. Wayne] Keeling’s notes
address treatment for shoulder and knee problems” (Docket Entry 14
at 21 (emphasis added) (citing Tr. 592-632)), but entirely fails to
point the Court to any findings in Dr. Keeling’s treatment records
that should have compelled the ALJ to adopt greater reaching
limitations (see id.). That failure precludes’ relief.
See generally United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“[A] litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever 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) (“A

16

party should not expect a court to do the work that it elected not
to do.”).
With regard to Plaintiff’s argument that “problems [existed]
with [sic] jobs identified [by the VE] even had they been provided
in response to an appropriate [hypothetical] question” (Docket
Entry 14 at 21), the Commissioner concedes that the DOT’s
characterization of the Document Preparer job as requiring RDL 3,
see DOT, No. 249.587-018 (“Document Preparer, Microfilming”), 1991
WL 672349 (G.P.O. 4th ed. rev. 1991) (“[RDL] 3: Apply commonsense
understanding to carry out instructions furnished in written, oral,
or diagrammatic form. Deal with problems involving several
concrete variables in or from standardized situations.”), conflicts
with the RFC’s limitation to RDL 1 or 2 (see Tr. 21), and “relies,
instead, on the ALJ’s finding that Plaintiff could perform the
[A]ddresser and [F]inal [A]ssembler jobs, either one of which
warrants affirmance” (Docket Entry 19 at 21 n.2 (emphasis supplied
by the Commissioner) (citing Cameron v. Chater, No. 93-2311, 56
F.3d 60 (table), 1995 WL 321242, at *4 (4th Cir. May 30, 1995)

(unpublished), and Farnsworth v. Astrue, 604 F. Supp. 2d 828, 859
(N.D.W. Va. 2009))). Thus, issue at hand narrows to whether
Plaintiff has shown that the Addresser and Final Assembler jobs
conflict in some way with the RFC. Plaintiff has argued that,
“[s]ince [Plaintiff] need[ed] to stand (up to 2 hours per day)[,]
reaching to desk level to do [either] of th[o]se jobs would produce
17
more shoulder strain, and probably more knee and balance problems
than reaching forward or laterally” (id. at 22), as well as that
“[p]roblems would arise looking down from a standing position, as
the[ Addresser and Final Assembler] jobs require frequent or
constant near visual acuity” (id. (referencing DOT, No. 209.587-010
(“Addresser”), 1991 WL 671797 (“Near Acuity: Constantly - Exists
2/3 or more of the time”), and DOT, No. 713.687-018 (“Final
Assembler”), 1991 WL 679271 (same))). Those arguments should not
prevail for two reasons.
First, despite having an opportunity to cross-examine the VE
about these matters (which, for the reasons discussed in the
context of Plaintiff’s third issue on review, constituted a full
and fair opportunity), Plaintiff’s counsel chose not to do so (see
Tr. 88-90) and therefore waived the right to raise those arguments
for the first time here, see Shaibi v. Berryhill, 883 F.3d 1102,
1109 (9th Cir. 2017) (“[A]t least when claimants are represented by
counsel, they must raise all issues and evidence at their
administrative hearings in order to preserve them on appeal.”);
Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (holding

the claimant’s failure to raise issue before ALJ “waived [the
claim] from being raised on appeal”); Stepinski v. Astrue, No. CA
11–183, 2012 WL 3866678, at *9–10 (D.R.I. Aug. 6, 2012)
(unpublished) (“The [c]ourt views unfavorably the silence of [the
p]laintiff’s counsel at the hearing regarding the omission about
18
which he now complains. Reversal and remand .. . would encourage
other counsel to remain silent in similar circumstances. This
[c]ourt is disinclined to provide such an incentive[ ] .. . [and]
finds that [the p]laintiff waived this issue by failing to raise it
before the ALJ.” (internal citations omitted)), recommendation
adopted, 2012 WL 3863812 (D.R.I. Sept. 5, 2012) (unpublished).
Second, Plaintiff has failed to show that he lacked the
ability to reach frequently to desk level or to perform constant
near acuity activities. (See Docket Entry 14 at 22.) As discussed
above, Plaintiff has pointed to no evidence that would have
compelled the ALJ to adopt a limitation to less than frequent
reaching (including “reaching to desk level” (id. at 22)).
Further, Plaintiff offers no evidence to support his contention
that he lacked the ability to engage in near acuity activities on
a constant basis. (See id.; see also Tr. 46-80 (Plaintiff’s
testimony lacking any reference to vision problems), 339
(Plaintiff’s Disability Report listing only “[k]nee pain (need of
replacement)” and [s]houlder pain” as allegedly disabling
impairments), 586 (consultative medical examiner noting 20/20
vision in right eye and 20/25 vision in left eye without
correction) .’

’ Plaintiff's Reply raises for the first time a challenge to the VE’s job
numbers for the Addresser and Final Assembler occupations. (See Docket Entry 20
at 3 (complaining that “ALJ made no finding on whether [74,400 jobs] was a
significant number” and that, “[fJlor the [C]ourt to decide that [74,400 jobs] is
still significant[,] would be an example of the [C]ourt substituting its judgment
for that of the [ALJ]”).) However, “[t]he ordinary rule in federal courts is
19

In short, Plaintiff’s first assignment of error fails to
warrant relief.
2. RFC
In Plaintiff’s second assignment of error, he contends that
“[t]he ALJ erred [sic] his evaluation of [P]laintiff’s condition
under relevant rulings SSR 83-12, 83-14, and 96-9p to appropriately
consider the effects of limitations beyond the limitation to
sedentary work.” (Docket Entry 14 at 23 (underscoring and single-
spacing omitted); see also Docket Entry 20 at 4.) According to
Plaintiff, SSR 83-12 provides that “‘if the [claimant’s] exertional
capacity is significantly reduced in terms of the regula[tor]y
definition, it could indicate little more than the occupational
base for the lower [Medical-Vocational R]ule and could justify a

finding of “Disabled’” (Docket Entry 14 at 23 (emphasis supplied by
Plaintiff) (quoting SSR 83-12, 1983 WL 31253 at *2)), and SSR 96-9p
advises that “‘[a]n accurate accounting of a[ claimant]’s
abilities, limitations, and restrictions is necessary to determine

that an argument raised for the first time in a reply brief or memorandum will
not be considered.” Clawson v. FedEx Ground Package Sys., Inc., 451 F. Supp. 2d
731, 734 (D. Md. 2006); see also Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995)
(explaining that “courts generally will not address new arguments raised in a
reply brief because it would be unfair to the [other party]”). Moreover, even
if the Court considered Plaintiff’s late-raised argument, it would not establish
a basis for remand, as (1) the ALJ expressly found that “there were jobs that
existed in significant numbers in the national economy that [Plaintiff] could
perform” (Tr. 25 (emphasis added), and (2) under long-standing precedent of the
United States Court of Appeals for the Fourth Circuit, such a number clearly
constitutes a significant number of jobs, see Hicks v. Califano, 600 F.2d 1048,
1051 (4th Cir. 1979) (“Claimant contends that the light and sedentary jobs
described by the [VE] . . . do not exist in significant numbers within the
region. We do not think that the approximately 110 jobs testified to by the [VE]
constitute an insignificant number.” (emphasis added)).
20
the extent of erosion of the occupational base, the types of
sedentary occupations a[ claimant] might still be able to do, and
whether it will be necessary to make use of a vocational resource’”
(id. at 24 (emphasis supplied by Plaintiff) (quoting SSR 96-9p,
1996 WL 374184, at *6)).8 Plaintiff argues that (1) “the ALJ
failed to make a finding as to whether calling a vocational
resource was necessary” (id. at 23), and that (2) Plaintiff has
“[s]everal exertional and non-exertional [limitations ] sufficient
to erode the [sedentary] occupational base enough to mandate a
finding of disability” (id. at 24; see also id. at 24 (contending
that “need to alternate sitting and standing” and “need for a
medically prescribed assistive device” constitute “[e]xertional
factors cited in SSR 96-9p which reduce the occupational base”), 25
(maintaining that Plaintiff’s “moderate limitations in all four

of . . . the B criteria of the mental impairment listings” amount
to “non-exertional [limitations] which can erode the sedentary work
base”)). Those arguments lack merit.
As an initial matter, Plaintiff’s assertion that “the ALJ
failed to make a finding as to whether calling a vocational
resource was necessary” (Docket Entry 14 at 23) falls short. The
ALJ clearly considered a vocational resource necessary in this
matter, as the ALJ called on the services of a VE at the hearing to

8 Although Plaintiff also attributes the latter quotation to SSR 83-14 (see
Docket Entry 14 at 23), that language does not exist in that Ruling.
21
offer opinions regarding whether Plaintiff’s limitations allowed
him to perform any of his past relevant work and, if not, whether
other jobs existed in significant numbers in the national economy
that he could perform (see Tr. 81-90). As the Commissioner
contends, “[t]o the extent that Plaintiff asserts that the ALJ was
required to provide some preliminary analysis about whether a [VE]
was necessary, Plaintiff cite[d] no legal authority for that
proposition.” (Docket Entry 19 at 22 (referencing Docket Entry 14
at 23).) Moreover, to the extent that Plaintiff argues that the
RFC’s existing limitations erode the sedentary occupational base to
the point of mandating a finding of disability, that argument
fails, because the VE testified to the contrary, i.e., that jobs
existed in significant numbers that accommodated all of the
dispositive hypothetical question’s limitations (see Tr. 85-86).
Furthermore, for the reasons explained more fully below, Plaintiff
has not shown that the evidence should have compelled the ALJ to
adopt additional limitations that would have further eroded the
sedentary occupational base and required a finding of disability.
a. Sit-Stand Option

Plaintiff faults the ALJ for including in the RFC the
following language: “‘[Plaintiff] needs to be allowed to change
positions every 30 minutes from standing to sitting.’” (Docket

22
Entry 14 at 24 (purporting to quote Tr. 21).)° According to
Plaintiff, “[t]his is where more specificity, as required in [SSR
96-9p], would be helpful,” because “2 hours standing would mean
more than 30 minutes sitting at a time.” (Id.)
SSR 96-9p provides as follows regarding the impact of
sit/stand options on the sedentary occupational base:
Alternate sitting and standing: An individual may need to
alternate the required sitting of sedentary work by
standing (and, possibly, walking) periodically. Where
this need cannot be accommodated by scheduled breaks and
a lunch period, the occupational base for a full range of
unskilled sedentary work will be eroded. The extent of
the erosion will depend on the facts in the case record,
such as the frequency of the need to alternate sitting
and standing and the length of time needed to stand. The
RFC assessment must be specific as to the frequency of
the individual’s need to alternate sitting and standing.
It may be especially useful in these situations to
consult a vocational resource in order to determine
whether the individual is able to make an adjustment to
other work.
SSR 96-9p, 374185, at *7 (underscoring added). Here, the ALJ
included in the dispositive hypothetical question to the VE a
“limitation . . . that the individual needs a sit/stand option
after 30 minutes of sitting or 30 minutes of standing to change
position” (Tr. 86 (emphasis added)), and included an “allow[ance]
to change position at the workstation after 30 minutes standing or
sitting” in the RFC (Tr. 21 (emphasis added)). The ALJ thus
satisfied SSR 96-9p’s requirement that “[t]he RFC assessment [] be

° The ALJ’s RFC contains no such language (see Tr. 21); rather, the RFC
includes an “allow[ance] to change position at the workstation after 30 minutes
standing or sitting” (id. (emphasis added)).
23

specific as to the frequency of the individual’s need to alternate
sitting and standing,” SSR 96-9p, 374185, at *7 (emphasis added).
Moreover, in response to the hypothetical including the sit/stand
option, the VE identified two jobs, Addresser and Final Assembler,
which accommodated all of the hypothetical’s limitations. (See Tr.
86.) Thus, the ALJ also followed SSR 96-9p’s admonition that
deemed VEs “especially useful” to determine the impact of a
sit/stand option on the sedentary occupational base, SSR 96-9p,
374185, at *7.10

10 Plaintiff added the following argument in his Reply regarding the
sit/stand option:
This 30-minute alternating sit/stand requirement raises obvious
questions. Jobs identified by the VE require working on a surface
with multiple objects; the [A]ddresser and [F]inal [A]ssembler jobs
dealing with volumes of mail and/or tiny parts. If the surface is
not movable, even a worker who is limited to frequent reaching
probably cannot reach frequently from standing to desk height
without aggravating shoulder damage. If the worker is not
accommodated with an adjustable surface, how long does it take
[P]laintiff to stand? To adjust materials? What if he can’t make
[sic] 30-minute deadline? Can he hold on while standing? Can the
surface support his 300 [pound] weight if he loses balance while
standing?
(Docket Entry 20 at 4.) Again, notwithstanding a full and fair opportunity to
cross-examine the VE about these matters, Plaintiff’s counsel opted against doing
so (see Tr. 88-90) and therefore waived the right to raise those arguments for
the first time here, see Shaibi, 883 F.3d at 1109 (“[A]t least when claimants are
represented by counsel, they must raise all issues and evidence at their
administrative hearings in order to preserve them on appeal.”); Anderson, 344
F.3d at 814 (holding the claimant’s failure to raise issue before ALJ “waived
[the claim] from being raised on appeal”); Stepinski, 2012 WL 3866678, at *9–10
(“The [c]ourt views unfavorably the silence of [the p]laintiff’s counsel at the
hearing regarding the omission about which he now complains. Reversal and
remand . . . would encourage other counsel to remain silent in similar
circumstances. This [c]ourt is disinclined to provide such an
incentive[] . . . [and] finds that [the p]laintiff waived this issue by failing
to raise it before the ALJ.” (internal citations omitted)).
24
b. Cane
Plaintiff asserts that his “need for a medically prescribed
assistive device” constitutes an “[e]xertional factor[] cited in
SSR 96-9p which reduce[d] the occupational base.” (Docket Entry 14
at 24 (referencing SSR 96-9p, 1996 WL 374185, at *7).) In support
of his need for a cane, Plaintiff points to (1) the fact that he
brought his cane to the hearing (id.), (2) Dr. Burgess’s report
which, “taken in context, appeared to assume that [P]laintiff did
need to use a cane though, as he demonstrated in the exam, he could
take some steps without it” (id. (referencing Tr. 586)), and (3)
Dr. Keeling’s “prescri[ption of] a cane” (id. at 25 (citing Tr.
513)). In addition, Plaintiff identifies his “problems with falls”
as “another possible cause of erosion of the sedentary work base.”
(Id. at 27 (citing Tr. 73-74).)
“To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need
for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed (i.e., whether
all the time, periodically, or only in certain situations; distance

and terrain; and any other relevant information).” SSR 96-9p, 1996
WL 374185, at *7 (emphasis added). Moreover, “the legal issue does
not turn on whether a cane was ‘prescribed’ . . . but whether a
cane was ‘medically required.’” Spaulding v. Astrue, 379 F. App’x
776, 780 (10th Cir. 2010). The ALJ here relied upon Dr. Burgess’s
25
report to find that Plaintiff “did not need a cane.” (Tr. 23
(referencing Tr. 586).) For the reasons that follow, the ALJ did
not err in that regard.
As the Commissioner argues, “the fact that Plaintiff brought
a cane . . . to a disability hearing five years after his date last
insured does not advance his claim, as he still lacks the medical
documentation necessary for the ALJ to find that use of that cane
was medically necessary.” (Docket Entry 19 at 18-19 (internal
parenthetical citation and comma omitted).) Furthermore, and
contrary to Plaintiff’s assertions, Dr. Burgess did not “assume
that [P]laintiff did need to use a cane though, as he demonstrated
in the exam, he could take some steps without it.” (Docket Entry
14 at 24 (referencing Tr. 586).) Rather, Dr. Burgess offered the
following observations:
GENERAL: [Plaintiff] is well developed and well
nourished. [He] ambulates with a very antalgic gait
favoring the right leg. He has a prescription cane but
does not require it. The limp is more pronounced without
the cane. The gait is not otherwise lurching or
unpredictable. The gait is not particularly unsteady.
(Tr. 586 (emphasis added).) Dr. Burgess thereafter found that the
“sum” of Plaintiff’s medical conditions caused “mild[] impair[ment]
in his “ability to perform work-related activities” but did not
include a requirement for a cane or other hand-held assistive
device. (Tr. 589.) Plaintiff has failed to explain how that
report, “taken in context” (Docket Entry 14 at 24), means anything
other than that Dr. Burgess did not believe Plaintiff’s impairments
26
necessitated a cane. With regard to Dr. Keeling, on one occasion,
after observing Plaintiff “walking oddly, more on his tip toes,”
Dr. Keeling suggested that Plaintiff “get a crutch or a cane to
shift his weight properly.” (Tr. 513.) Dr. Keeling neither
prescribed a cane, nor opined that a cane constituted a medical
necessity. (See id.) None of Dr. Keeling’s other treatment
records reference Plaintiff’s use of a cane. (See Tr. 510-12, 517-
84, 592-632, 1067-80.) Plaintiff’s related reliance on his
“problems with falls” as “another possible cause of erosion of the
sedentary work base” (Docket Entry 14 at 27 (citing Tr. 73-74))
similarly falls short, as it relies entirely on Plaintiff’s
subjective report at the hearing of such falls and, as discussed
above, the ALJ discounted Plaintiff’s subjective symptom reporting
(see Tr. 22), a finding Plaintiff did not contest (see Docket
Entries 14, 20).
c. Mental Limitations
Plaintiff offers the following contentions regarding
additional mental limitations he believes the ALJ should have
included in the RFC (and dispositive hypothetical question) that

would have further eroded the sedentary occupational base:
Mental limitations are appropriate to address in this
case.
A substantial loss of ability to meet any one
of several basic work-related activities on a
sustained basis (i.e., 8 hours a day, 5 days a
week, or an equivalent work schedule), will
substantially erode the unskilled sedentary
27
occupational base and would justify a finding
of disability. These mental activities are
generally required by competitive,
remunerative, unskilled work:
• Understanding, remembering, and carrying
out simple instructions.
• Making judgments that are commensurate
with the functions of unskilled
work--i.e., simple work-related
decisions.
• Responding appropriately to supervision,
co-workers and usual work situations.
• Dealing with changes in a routine work
setting.
The ALJ found [P]laintiff to have moderate limitations in
all four of these areas, which are the B criteria of the
mental impairment listings. He also stated in accurate
if somewhat understated comments that “[Plaintiff] is
noted to isolate by several sources” and “due to
[Plaintiff]’s tendency to socially isolate, he is limited
in his interactions with others.” The latter, at a
minimum, would appear to impose significant limitations
on responding appropriately to supervision, co-workers,
and usual work situations.
(Docket Entry 14 at 25 (emphasis added) (internal parenthetical
citations omitted) (quoting, in turn, SSR 96-9p, 1996 WL 374185, at
*9, and Tr. 22).) Plaintiff additionally challenges the ALJ’s
observation that “[t]here [wa]s . . . little mental health
evidence . . . prior to the date last insured” (Tr. 22), arguing
that, “[i]n fact, there [wa]s considerable evidence relating to the
period through the date last insured . . . which the ALJ failed to
acknowledge.” (Docket Entry 14 at 26; see also id. at 26-27
(describing such evidence (citing Tr. 591, 633-36, 870, 883, and
referencing Tr. 873-77)).)
28
To begin, Plaintiff never identifies what “significant
limitations on responding appropriately to supervision, co-workers,
and usual work situations” the ALJ should have included in the RFC
and hypothetical question. (Id. at 25.) The RFC already included
limitations to “simple tasks” rated at “[RDL ] 1 or 2,” “no
required interaction with the public and no more than occasional
required interaction with co-workers,” and “a lower stress work
environment, defined as one where [Plaintiff] did not have to meet
a rigid, inflexible production or pace requirement, make complex
decisions, or adapt to frequent changes.” (Tr. 22 (emphasis
added); see also Tr. 82-85 (hypothetical questions containing
materially similar restrictions).) Plaintiff does not explain how
those significant restrictions in the RFC fail to accommodate
Plaintiff’s moderate limitations in understanding, remembering, or
applying information, interacting with others, concentrating,
persisting, or maintaining pace, and adapting or managing oneself
(see Tr. 20). (See Docket Entry 14 at 25-26.)1!

‘1 The DOT codes for Addresser and Final Assembler - DOT, No. 209.587-010
(“Addresser”), 1991 WL 671797, DOT, No. 713.687-018 (“Final Assembler”), 1991 WL
679271, contain a fifth digit, or ‘People’ rating, of “8,” “reflecting the lowest
possible level of human interaction that exists in the labor force,” Fletcher v.
Colvin, No. 1:15CV166, 2016 WL 915196, at *10 (M.D.N.C. Mar. 4, 2016)
(unpublished), recommendation adopted, slip op. (M.D.N.C. Mar. 28, 2016) (Osteen,
C.J.). Moreover, those jobs rate the activity of “Taking Instructions —- Helping”
as “Not Significant” and reflect the tasks of “Talking” and “Hearing” as “Not
Present - Activity or condition does not exist.” DOT, No. 209.587-010
(“Addresser”), 1991 WL 671797, DOT, No. 713.687-018 (“Final Assembler”), 1991 WL
679271. Consequently, Plaintiff has not shown that remand for the ALJ to include
greater social interaction limitations in the RFC would result in a different
outcome in his case. See Ridley G. v. Commissioner of Soc. Sec., No. 1:20CV773,
2021 WL 4307507, at *8, *13 (N.D.N.Y. Sept. 22, 2021) (unpublished) (deciding
that RFC restriction to no interaction or tandem tasks with coworkers harmonizes
with jobs with DOT level 8 interaction); Scott C. v. Commissioner of Soc. Sec.,
29

Nor should the Court order any relief based on Plaintiff’s
assertion that “considerable evidence [exists] relating to the
period through the date last insured . . . which the ALJ failed to
acknowledge” (Docket Entry 14 at 26; see also id. at 26-27
(describing such evidence (citing Tr. 591, 633-36, 870, 883, and
referencing Tr. 873-77))). In that regard, the ALJ provided the
following analysis of Plaintiff’s mental health treatment:
[Plaintiff] attended counselling [sic] for post-traumatic
stress disorder and major depressive disorder. [(Tr.
591)]. There appear to have been some difficulties
obtaining the correct medication dosage; however, the
record does not show suicidal ideations or inpatient
hospital visits. [Plaintiff] has been noted to isolate
by several sources (see, for example [(Tr. 472)]. There
is evidence that he saw a therapist before his date last
insured, and the therapist referred him to Deborah Ross,
MD. See [(Tr. 888)]. He had previously been
incarcerated, and spent time in drug rehabilitation.
There is, however, little mental health evidence beyond
the above prior to the date last insured. Overall, it
shows an individual struggling to cope with difficulties
due to depression and anxiety. Limitations to simple,
routine tasks are appropriate, as are limitations to
concentration, persistence, and maintaining pace. Due to
[Plaintiff]’s tendency to socially isolate, he is limited
in his interactions with others.
No. 2:20CV109, 2021 WL 2682276, at *4-5 (D. Vt. June 30, 2021) (unpublished)
(“‘[L]evel 8 interaction [in the DOT] is compatible with an RFC limiting a
claimant to only superficial contact with coworkers, supervisors, and the
public.’” (quoting Alie v. Berryhill, No. 4:16CV1352, 2017 WL 2572287, at *16
(E.D. Mo. June 14, 2017) (unpublished)) (emphasis added)); Wilson v. Saul, No.
1:19CV1089, 2020 WL 6293132, at *4 (M.D.N.C. Oct. 27, 2020) (unpublished)
(Webster, M.J.) (“[E]ven assuming the ALJ erred here by failing to include
additional social limitations in the RFC . . ., any error would be harmless
because the jobs the ALJ concluded that [the p]laintiff could perform do not
require significant social interactions. In fact, the [DOT’s] descriptions of
the jobs identified by the VE list interaction with “People” as being “Not
Significant.”), recommendation adopted, slip op. (M.D.N.C. Nov. 24, 2020) (Biggs,
J.).
30
. . .
The state mental health consultant at [the initial level
of review] found [Plaintiff] had moderate limitations in
all four paragraph “B” criteria and limited [him] to “at
least simple instructions with additional social,
concentrative, and adaptive limitations. This is
reasonably consistent with the record, although the non-
maximal language about simple instructions is unhelpful.
The state mental health consultant at [the
reconsideration level of review], on the other hand,
found the impairments non-severe, basing the decision on
the limited evidence before the date last insured. The
difficulty with this is that consideration of the
longitudinal record shows [Plaintiff] was seeing a
therapist during the time and was then referred to a
doctor for medication management. He had previously been
incarcerated and in drug rehabilitation programs. Based
on this evidence, the opinion that the impairments are
non-severe is not persuasive.
(Tr. 22-24.) The ALJ’s above-quoted analysis discussed all of the
mental health evidence in the record prior to Plaintiff’s date last
insured of March 31, 2015, and adequately explained why the ALJ
included the limitations he did in the mental RFC.
In sum, Plaintiff’s second issue on review falls short.12
12 Plaintiff’s Brief contains two other cursory arguments – (1) that the
ALJ erred by “set[ting] out the RFC before getting to the explanation of the
basis for the RFC” in violation of Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015), and Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016) (Docket Entry 14
at 27), and (2) that the limitations Plaintiff described in performing his daily
activities “would produce limitations in a normal work environment” and affect
“a full base of sedentary work” (id. at 28 (citing Tr. 51-52, 72)). With regard
to the first argument, as a matter of formatting and organizational structure,
ALJs (as did the ALJ here (see Tr. 21) 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. 18CV957, 2019 WL 2642833, at *9 (D. Md. June 27,
2019) (unpublished) (“In th[e 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
Sherah F. court found “unclear” whether the ALJ’s mere placement of the RFC in
31
3. Full and Fair Hearing
Lastly, Plaintiff contends that “[t]he ALJ’s refusal to allow
[P]laintiff’s counsel to complete argument and questioning of
witnesses in the hearing resulted in an incomplete development of
the record, and constituted an unfair and flawed hearing process.”
(Docket Entry 14 at 28 (underscoring and single-spacing omitted) ;
see also Docket Entry 20 at 4-5.) More specifically, Plaintiff
points to the following comments by the ALJ during the hearing:
° “The ALJ had commented that his first hearing ran
over and had technical problems. He said
[Plaintiff’s] hearing started 26 minutes late but
actually it started 46 minutes after the scheduled
start time of 10:00.” (Docket Entry 14 at 29
(referencing Tr. 39, 90).);

a heading preceding the supporting analysis constituted “‘express[ing the] RFC
first’” as prohibited by Monroe and its progeny. Id. (citing Thomas v.
Berryhill, 916 F.3d 307, 312 (4th Cir. 2019), in turn citing Monroe, 826 F.3d at
188). 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. 21-24.) 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
eredibility.” 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. 22 (finding 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” (emphasis added))) and thus Plaintiff
has not demonstrated error under Monroe, see Linares v. Colvin, Civ. 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 cursory argument regarding his
descriptions of daily activities lacks merit, because it relies on Plaintiff’s
subjective statements, which the ALJ discounted (see Tr. 21) in a finding
unchallenged by Plaintiff (see Docket Entries 14, 20).
32

• “When the ALJ first allowed [Plaintiff’s counsel]
to question [Plaintiff, the ALJ] said ‘please get
[the parties] through as quickly as you can.’”
(Id. (quoting Tr. 65).);
• “The ALJ stated while [Plaintiff’s counsel] was
questioning [Plaintiff], that ‘[counsel] need[ed]
to wrap this up. [The hearing was] way past
time . . . . [W]ay, way, way past time.” (Id.
(quoting Tr. 76).);
• “At 1 [hour], 26 minutes into the hearing, while
[Plaintiff’s counsel] was questioning the VE, the
ALJ said [counsel] needed to move along faster, as
the hearing had lasted almost 2 hours.” (Id.
(internal parenthetical citation omitted) (citing
Tr. 90).);
• “At 1 [hour,] 27 min[utes, the ALJ] said ‘Anything
else?’ The ALJ closed the hearing 1 hour 29
minutes 58 seconds into the hearing.” (Id.
(internal parenthetical citation omitted) (citing
Tr. 93).)
Plaintiff asserts that, as a result of the ALJ’s desire to conclude
the hearing in a timely manner, his counsel could not (1) “question
the VE in any detail about the jobs she had identified” (id.), (2)
“call [Plaintiff]’s wife as a witness, or in the alternative[, ]
get a stipulation as to her testimony being corroborative of
[Plaintiff]’s testimony” (id.), and (3) “discuss the significance
of [the W]orker’s [C]ompensation aspects of the case which it was
apparent that the ALJ was overstating” (id. at 30). Although
Plaintiff stresses that he “absolutely does not accuse the ALJ of
prejudice, partiality, bias, misconduct or discrimination,” he
maintains that “the lack of opportunity to complete the record did
result in unfairness.” (Id. at 32.) For the reasons that follow,
33
Plaintiff’s arguments do not establish that the ALJ failed in his
duty to provide Plaintiff with a full and fair hearing.
Plaintiff has a right “to a full and fair hearing of [his]
claim[]” before an ALJ, Sims v. Harris, 631 F.2d 26, 27 (4th Cir.
1980), and “the failure to have such a hearing may constitute good
cause sufficient to remand to the [Commissioner] under 42 U.S.C.
[§] 405(g) for the taking of additional evidence,” id. Although
that right includes the opportunity to cross-examine VEs, see 20
C.F.R. § 404.950(e), that right has limits, as “the conduct of the
hearing rests generally in the [ALJ]’s discretion . . . so long as
the procedures are fundamentally fair,” Richardson, 402 U.S. at
400.
a. Cross-Examining the VE
Plaintiff asserts that, “[g]iven more time, [his counsel]
could have covered with the VE some of the arguments [counsel]
ha[d] made [] in th[e] [B]rief [in support of Plaintiff’s instant
Motion,] . . . [including] how limitations existing at the date
last insured eroded the base of unskilled sedentary jobs, which the
ALJ failed to do.” (Docket Entry 14 at 30.) In Plaintiff’s view,

“[t]his is a very close case; it would be hard to conclude that
additional testimony or argument could not have made a difference.”
(Id.) That argument fails to carry the day for two reasons.
First, the transcript of the hearing does not support
Plaintiff’s assertion that the ALJ prevented his counsel from
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further cross-examination of the VE. The record in fact reveals
that Plaintiff’s counsel cross-examined the VE about (1) the impact
of a worker’s need to walk away from the work station on the
Document Preparer job (see Tr. 88), (2) the impact of a worker’s
need to lie down during a shift on the jobs identified by the VE
(see id.), (3) the impact of the FCE’s limitation to sitting,
standing, and walking each for up to one-third of a workday on the
identified jobs (see id.), (4) whether Plaintiff’s prior work as a
fast food worker could entail lifting more than 20 pounds (see Tr.
89), and (5) the impact of depression that occasionally interfered
with concentration and memory on available jobs (see Tr. 90).
During this course of questioning, Plaintiff’s counsel
spontaneously offered that “[she was] almost through” (id.
(emphasis added)), and then responded “No, nothing else, Your
Honor” when the ALJ asked if she had any further questions (id.
(emphasis added)). Under such circumstances, Plaintiff has not
shown that the ALJ prevented his counsel from asking further
questions of the VE.
Second, even assuming, arguendo, that the ALJ somehow
curtailed Plaintiff’s counsel’s cross-examination of the VE,
Plaintiff has not shown how that curtailment prejudiced him. He
offers only that, with more time, his counsel would have asked the
VE about matters raised in Plaintiff’s second issue on review
regarding “how limitations existing at the date last insured eroded

35

the base of unskilled sedentary jobs.” (Docket Entry 14 at 30.)
As explained in the discussion of that issue, however, those
assertions lack merit. Accordingly, Plaintiff has not shown how
the ALJ’s allowance of more time to cross-examine the VE on those
meritless matters would have resulted in a more favorable outcome.
See Hyett v. Saul, No. 1:19CV216, 2021 WL 1156622, at *8 (N.D.W.
Va. Mar. 26, 2021) (unpublished) (“While [the plaintiff] had the
right to a full and fair hearing on his claim, including the right
to cross-examine the [VE], the ALJ retained discretion to limit a
repetitive and time-consuming examination. Despite the [VE]’s
previous testimony that the hypothetical person could perform the
identified occupations, [the plaintiff]’s attorney intended to
question the [VE] on [the plaintiff]’s ability to perform every
duty required by these occupations. As the magistrate judge
observed in the [recommendation], ‘[n]othing about the ALJ’s
actions demonstrate anything but an effort to manage her caseload
and operations.’”); Kelly v. Saul, No. 4:18CV153, 2019 WL 3544071,
at *4 (E.D.N.C. Aug. 1, 2019) (unpublished) (rejecting the
plaintiff’s claim that “ALJ improperly prevented [the plaintiff’s]

representative from conducting a full cross-examination of the VE,”
because the plaintiff “d[id] not indicate . . . how she was
prejudiced by the limitations placed on the cross-examination”).

36
b. Calling Plaintiff’s Wife as a Witness
Plaintiff next faults the ALJ for preventing his counsel from
“call[ing Plaintiff]’s wife as a witness, or in the alternative[, ]
get[ting] a stipulation as to her testimony being corroborative of
[Plaintiff]’s testimony.” (Docket Entry 14 at 29.) The following
exchange between Plaintiff’s counsel and the ALJ belies Plaintiff’s
arguments:
ALJ: Anything else for the hearing today?
ATTY: Well, we would contend the wife as a witness
as I believe she would be corroborative. I
also –

ALJ: You should have told me that before
[Plaintiff] testified.
ATTY: I think it would be repetitive.
ALJ: Not going to happen in this hearing. Not if
she’s been sitting there listening to her
husband testify. I sequester all witnesses in
every hearing. If you were going to call her
as a witness, you should have told me that at
the start.
ATTY: Okay.
ALJ: I would have excluded her from the room.
ATTY: Okay, I’m sorry, Your Honor, most judges that
I’ve dealt with prefer to have the person in
the room so they –
ALJ: But, with two hours into it, we don’t have
time for more evidence. I’m sorry.
ATTY: I understand, Your Honor.
(Tr. 90-91 (emphasis added).)
37
That colloquy defeats Plaintiff’s contentions in four ways.
First, contrary to Plaintiff’s assertion (see Docket Entry 14 at
29), his counsel did not request a stipulation from the ALJ that
Plaintiff’s wife would corroborate Plaintiff’s testimony. (See Tr.
90-91.) Second, Plaintiff fails to explain how such a stipulation,
if granted, would have resulted in a more favorable outcome, given
that the ALJ discounted Plaintiff’s subjective symptom reporting
(see Tr. 22), and that Plaintiff failed to challenge that finding
(see Docket Entries 14, 20). Third, the ALJ properly could insist
on the sequestration of witnesses during the hearing, see Hearings,
Appeals, and Litigation Law Manual (“HALLEX”), § I-2-6-60 (“An ALJ
may choose to exclude a witness from the hearing while others are
testifying.”), and Plaintiff’s counsel’s eleventh-hour request to
call Plaintiff’s wife as a witness deprived the ALJ of the ability
to sequester Plaintiff’s wife during Plaintiff’s testimony,
providing the ALJ with a legitimate basis to deny the request to
call Plaintiff’s wife. Fourth, HALLEX also makes clear that the
ALJ may decline to allow testimony that qualifies as merely
“repetitive or cumulative,” id., providing an additional ground to

support the ALJ’s decision not to allow the testimony of
Plaintiff’s wife, which Plaintiff admitted “would be repetitive”
(Tr. 91).

38
c. Offering Arguments Regarding the Workers’ Compensation Ratings
Lastly, Plaintiff maintains that his counsel “argued [in
closing] that the [Workers’ Compensation 10 percent permanent
partial disability ratings offered by Dr. John Lee Graves on August
15, 2013 (see Tr. 509), and by Dr. Keeling on October 30, 2013 (see
Tr. 535)] w[ere] misleading,” and that counsel “believe[d] that []
the ALJ . . . was basing his views on the [W]orkers[’] Compensation
claim, that this was inappropriate, and that [she] was prevented
from pointing th[at] out.” (Docket Entry 14 at 29 (referencing Tr.
91-92).) In particular, Plaintiff asserts that the ALJ “apparently
felt that [Plaintiff’s left knee] reached a level of severity
appropriate for [total knee] replacement only [] after the [date
last insured],” but Plaintiff believed “that [his left knee’s]
severity prior to the [date last insured] warranted knee
replacement.” (Id. at 31-32; see also id. at 31 (noting that “the
rating guide for arthroplasty of the knee using prosthesis or cup
(optimal results) equals 40%” (stray quotation mark omitted)
(citing Tr. 493).)
Plaintiff’s arguments ignore the fact that his counsel did

have the opportunity to make that argument to the ALJ. At the
hearing, Plaintiff made the following closing argument to the ALJ:
The only thing I would say, Your Honor, is I think that
Workers’ Comp rated it at ten percent is somewhat
misleading because that particular doctor recommended
knee surgery eventually and that would have automatically
bumped that rating up a whole lot. I just think those
39
Workers’ Comp ratings are suggesting that the person has
more function than they have.
(Tr. 92-93 (emphasis added).) The ALJ did not interrupt
Plaintiff’s counsel (see id.), and counsel herself indicated that
her remarks constituted the “only” thing she had to say (Tr. 92).'°
In light of the foregoing discussion, Plaintiff has not
established that the ALJ breached his duty to provide Plaintiff
with a full and fair hearing and thus his third and final
assignment of error fails as a matter of law.
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 Commissioner (Docket Entry 15) be denied, that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 18)
be granted, and that his action be dismissed with prejudice.

/s/_L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 2, 2023

'3 In a letter addressed to the ALJ dated May 6, 2021, the same date as the
hearing, Plaintiff’s counsel thanked the ALJ for allowing counsel “additional
time” to discuss Plaintiff’s case and thereafter offered an argument that
Plaintiff’s need for a cane would eliminate the jobs identified by the VE. (Tr.
473.) Plaintiff’s counsel emphasized that the cane argument constituted “the
point [she] was fishing for at the end [of the hearing] when [the parties] ran
into time constraints.” (Id. (emphasis added).) Plaintiff’s counsel made no
argument relating to Workers’ Compensation ratings. (See id.)
40

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254401. Public record. Not legal advice.