MCGEE v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NANCY L. M., )

)

Plaintiff, )

)

v. ) 1:22CV332

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Nancy L. M., brought this action pro se pursuant to

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

final decision of Defendant, the Acting Commissioner of Social

Security (the “Commissioner”), denying Plaintiff’s claim for

Disability Insurance Benefits (“DIB”). (Docket Entry 3.) The

Commissioner has filed the certified administrative record (Docket

Entry 8 (cited herein as “Tr. __”)), and both parties have moved

for judgment (Docket Entry 13 (Plaintiff’s Letter Motion); Docket

Entry 14 (Commissioner’s Motion for Judgment on the Pleadings); see

also Docket Entry 15 (Commissioner’s Memorandum in Support); Docket

Entry 17 (Plaintiff’s Reply)). Upon the written consent of the

parties, the Court referred this case to the undersigned United

States Magistrate Judge for disposition pursuant to 28 U.S.C.

§ 636(c). (See Docket Entry 16.) For the reasons that follow, the

undersigned United States Magistrate Judge will enter judgment for

the Commissioner.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 172-76), alleging a disability

onset date of August 16, 2015 (see Tr. 172, 175). Upon denial of

that application initially (Tr. 101-08, 122-25) and on

reconsideration (Tr. 109-21, 127-30), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 131-32).

Plaintiff (proceeding pro se) and a vocational expert (“VE”)

attended the hearing. (Tr. 27-100.) The ALJ subsequently ruled

that Plaintiff did not qualify as disabled under the Act. (Tr. 8-

22.) The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-5, 170-71), 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 September 30, 2018.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from her alleged onset date of

August 16, 2015 through her date last insured of

September 30, 2018.

3. Through the date last insured, [Plaintiff] had the

following severe impairments: sciatica; cervical

radiculopathy; chronic right shoulder pain; chronic

bilateral low back pain; and spondylosis of the cervical

region.

. . .

2

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 medium

work . . . with the following limitations: [s]he can lift

50 pounds occasionally and 25 pounds frequently; carry 50

pounds occasionally and 25 pounds frequently. She can

sit for 6 hours in an 8-hour workday, stand for 6 hours

in an 8-hour workday, and walk for 6 hours in an 8-hour

workday. She can push and/or pull as much as she can

lift and/or carry. [Plaintiff] can also operate foot

controls with the right foot frequently and operate foot

controls with the left foot frequently. She can

frequently reach overhead to the left and occasionally

reach overhead to the right. She can climb ramps and

stairs frequently and ladders, ropes and scaffolds

occasionally. She can frequently balance and stoop and

occasionally kneel, crouch, and crawl. [Plaintiff] can

work at unprotected heights frequently and around moving

mechanical parts occasionally. She can operate a motor

vehicle frequently. She can also work around vibration

occasionally.

. . .

6. Through the date last insured, [Plaintiff] was

capable of performing past relevant work as a counter

attendant, parts worker, and machine off-bearer. This

work did not require the performance of work-related

activities precluded by [Plaintiff]’s residual functional

capacity.[1]

1 As the Commissioner notes, the ALJ erred by finding that Plaintiff

retained the residual functional capacity to perform her past relevant work as

a parts worker as she actually performed it (see Docket Entry 15 at 9 (citing Tr.

19-20)), because the VE explained that Plaintiff could not perform her prior work

as a parts worker (characterized by the Dictionary of Occupational Titles (“DOT”)

as “Laborer, Stores,” DOT, No. 922.687-058, 1991 WL 688132 (G.P.O. 4th ed. rev.

1991)), because that job required frequent crouching (see Tr. 95-96). The ALJ’s

error in that regard, however, qualifies as harmless under the circumstances of

this case. See generally Fisher v. Bowen, 869 F.3d 1055, 1057 (7th Cir. 1989)

(observing that “[n]o principle of administrative law or common sense requires

us to remand a case in quest of a perfect opinion unless there is reason to

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

3

. . .

In addition to past relevant work, there were other jobs

that existed in significant numbers in the national

economy that [Plaintiff] also could have performed,

considering [Plaintiff]’s age, education, work

experience, and residual functional capacity.

. . .

7. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from August 16, 2015, the

alleged onset date, through September 30, 2018, the date

last insured.

(Tr. 13-22 (bold font, underscoring, 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

VE’s testimony that Plaintiff remained able to perform two of her other prior

jobs, counter attendant and machine off-bearer (see Tr. 95-96), as well as six

other jobs at the medium and light levels of exertion available in significant

numbers in the national economy (see Tr. 91, 97). (See Tr. 21.)

4

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

substantial evidence and were reached through application of the

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

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

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

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

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

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

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

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

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,

5

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

is supported by substantial evidence and was reached based upon a

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

585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

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

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

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

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

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

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

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

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

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

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

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

regulations establish a ‘sequential evaluation process’ to

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

omitted).

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

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

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

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

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

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

citations omitted).

6

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

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,

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

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

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

7

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

then requires the ALJ to assess whether, based on that RFC, the

claimant can “perform past relevant work”; if so, the claimant

does not qualify as disabled. Id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

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

“whether the claimant is able to perform other work considering

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8

B. Assignments of Error

After affording Plaintiff’s Complaint (Docket Entry 3), Letter

Motion (Docket Entry 13), and Reply (Docket Entry 17) the liberal

construction due such pro se filings, see Hill v. Braxton, 277 F.3d

701, 707 (4th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519,

520 (1972)), the Court will construe Plaintiff’s assignments of

error as the following:

1) the ALJ and/or Appeals Council erred by failing to obtain

“new evidence that developed over the course of over one year

[f]rom February 2021 to [July 15, 2022]” which showed that

Plaintiff’s “condition [] ha[d] gradually worsened” (Docket Entry

13 at 1; see also id. at 2; Docket Entry 3 at 1; Docket Entry 17 at

1-3, 5);

2) the ALJ erred by failing to “sen[d Plaintiff] to a Social

Security Disability Doctor to be reviewed and examined” (Docket

Entry 17 at 1); and

3) the ALJ erred by proceeding with the telephone hearing

without allowing Plaintiff to obtain an attorney (see id. at 2-3).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 15 at 10-21.)

1. Failure to Obtain New Evidence

In Plaintiff’s first issue on review, she maintains that the

ALJ and/or Appeals Council erred by failing to obtain “new evidence

that developed over the course of over one year [f]rom February

9

2021 to [July 15, 2022,]” which showed that Plaintiff’s “condition

[] ha[d] gradually worsened.” (Docket Entry 13 at 1; see also id.

at 2; Docket Entry 3 at 1; Docket Entry 17 at 1-3, 5.) Plaintiff

notes that, “[s]ince that time, more records have been

established,” and she “underwent major back surgery in July [2021]

and “[was] still under doctor’s care and in recovery.” (Docket

Entry 3 at 1.) In Plaintiff’s view, her “[r]ecord of medical

history is and still remains incorrect and updated records should

be included.” (Docket Entry 13 at 1.) For the following reasons,

Plaintiff’s assertions fail to establish error by either the ALJ or

the Appeals Council.

“[T]he ALJ has a duty to explore all relevant facts and

inquire into the issues necessary for adequate development of the

record, and cannot rely only on the evidence submitted by the

claimant when that evidence is inadequate.” Cook v. Heckler, 783

F.2d 1168, 1173–74 (4th Cir. 1986) (emphasis added) (citations

omitted). The ALJ discharges his duty to develop the record where

“the record is adequate to make a determination regarding a

disability claim.” France v. Apfel, 87 F. Supp. 2d 484, 490 (D.

Md. 2000); accord Kersey v. Astrue, 614 F. Supp. 2d 679, 693 (W.D.

Va. 2009). Accordingly, in order to demonstrate that the ALJ

failed to develop the record, a claimant must show that

“evidentiary gaps” existed that prejudiced his or her rights,

Blankenship v. Astrue, No. 3:11CV5, 2012 WL 259952, at *13 (S.D.W.

Va. Jan. 27. 2012) (unpublished) (citing Marsh v. Harris, 632 F.2d

10

296, 300 (4th Cir. 1980)), and that he or she “could and would have

adduced evidence that might have altered the result,’” id. (quoting

Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000)).

Here, the ALJ asked Plaintiff at the outset of the hearing if

she had reviewed the evidence in her case file, and Plaintiff

confirmed that she had “receive[d her case file] by mail” but had

not reviewed it. (Tr. 33.) The ALJ thereafter informed Plaintiff

that a hearing officer would re-send Plaintiff her case file, and

that she would have the opportunity to review the file and comment

on the evidence before the ALJ issued his decision. (See id.)

Plaintiff then consented to that approach, and also mentioned that

she had faxed, the day prior to the hearing, records from two

emergency room visits on February 10 and 20, 2021. (See Tr. 34.)

The ALJ subsequently confirmed he had received those records, as

well as updated records from Plaintiff’s primary care provider, Old

Town Immediate Care. (See id.; see also Tr. 495-520 (emergency

room records for 2/10/21 and 2/20/21), 527-54 (records from Old

Town Immediate Care through 2/1/21).) Following that discussion,

Plaintiff agreed that the ALJ possessed all of the relevant records

(see Tr. 35), and the ALJ admitted the evidence into the record

without objection (see Tr. 36). At the end of her testimony,

Plaintiff confirmed that “everything[ had] been covered” (Tr. 87)

and made no request for the ALJ to hold the record open for the

submission of further evidence (see Tr. 87-88, 98-100).

11

Under such circumstances, Plaintiff has shown neither that she

requested the ALJ to obtain additional medical records, nor that

the ALJ failed to fulfill any such request. More significantly,

Plaintiff has simply not shown that the ALJ’s alleged failure to

obtain Plaintiff’s updated medical records prejudiced her in any

way, as she has neither identified any specific records the ALJ

should have sought nor explained how the contents of those

unidentified documents would have changed the outcome of

Plaintiff’s claim, particularly given that the relevant period in

this case ended on September 30, 2018, Plaintiff’s date last

insured. (See Docket Entries 3, 13, 17.) That failure precludes

relief. See Martin v. Astrue, 345 F. App’x 197, 201-02 (7th Cir.

2009) (holding the plaintiff did not “show that he was prejudiced

by the absence of medical records [he alleged the ALJ should have

obtained],” because he “did not identify or provide additional

records during the proceedings before the Appeals Council,” and

“fail[ed] to explain how additional evidence could have led to a

finding of disability”); Stahl v. Astrue, No. 2:07CV19, 2018 WL

2565895, at *6 (N.D.W. Va. Nov. 1, 2007) (unpublished) (“[T]he

[c]ourt finds [the plaintiff] was not prejudiced by the ALJ’s

failure to obtain the [updated medical] records[, because] . . .

the [plaintiff] fail[ed] to demonstrate to the [c]ourt how [the]

‘updated’ [records] might have reasonably changed the ALJ’s

determination . . . .”).

12

To the extent that Plaintiff faults the Appeals Council for

failing to obtain Plaintiff’s updated medical records, that

contention also fails. In Plaintiff’s request for review to the

Appeals Council dated April 3, 2021 (see Tr. 171), she provided the

following statement as her “Reason for Appeal”: “I am

unrepresented. I do not think that the [ALJ] was fair with his

decision due to disabling condition and worsening of condition with

proof” (Tr. 170 (bold font omitted)). Just two days later, the

Appeals Council sent Plaintiff a letter which advised her as

follows:

We have received a request for review of the [ALJ]’s

action in this case.

You May Send More Information

You may send us a statement about the facts and the law

in this case or additional evidence. We consider

additional evidence that you show is new material and

relates to the period on or before the date of the

hearing decision. You must also show there is a

reasonable probability that the additional evidence would

change the outcome of the decision. You must show good

cause for why you missed informing us about or submitting

it earlier.

We Will Not Act For 25 Days

If you have more information, you must send it to us

within 25 days of the date of this letter. We will not

allow more time to send information except for very good

reasons.

. . .

If we do not hear from you within 25 days, we will assume

that you do not want to send us more information. We

13

will then proceed with our action based on the record we

have.

(Tr. 6 (emphasis added).) That letter clearly advised Plaintiff,

who received a master’s degree and completed the majority of her

studies towards a doctorate degree (see Tr. 38-39), that she held

the burden to supply the Appeals Council with any new and material

evidence. So far as the record reflects, Plaintiff did not

thereafter send the Appeals Council any additional evidence or

argument and thus her attempt to impute her own omission to the

Appeals Council fails as a matter of law.®

In short, Plaintiff’s first assignment of error does not

warrant relief.

° Plaintiff additionally requests that the Commissioner obtain Plaintiff's

updated medical records in connection with her instant action for judicial

review. (See Docket Entry at 3 at 1 (asking the Commissioner to “request [her]

records that [the Commissioner] do[es not] have, as well as [Plaintiff’s] recent

surgery records”).) On judicial review, this Court cannot consider new evidence

that neither the ALJ nor the Appeals Council evaluated in determining whether to

remand the case under sentence four of 42 U.S.C. § 405(g). See generally Brown

v. Colvin, No. 7:14CV283, 2015 WL 7307320, at *6 (E.D.N.C. Oct. 27, 2015)

(unpublished) (“To the extent that . . . the additional evidence .. . remains

outside the record, .. . this evidence is appropriately treated as having been

submitted for the first time to th[e] court and therefore as being subject to

sentence six of 42 U.S.C. § 405(g)” (emphasis added)), recommendation adopted,

2015 WL 7306453 (E.D.N.C. Nov. 19, 2015) (unpublished). Coordinately, under

sentence six of 42 U.S.C. § 405(g), the Court may remand a matter to the

Commissioner for the consideration of additional evidence; however, Plaintiff

bore the burden to proffer that evidence to this Court and to demonstrate that

such evidence qualified as “new” and “material,” as well as that “good cause”

existed for not submitting the evidence to the ALJ or the Appeals Council. 42

U.S.C. § 405(g); see also Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993)

(“Sentence-six remands may be ordered . . . where new, material evidence is

adduced that was for good cause not presented before the agency.” (citations

omitted)).

14

2. Failure to Order Consultative Examination

In Plaintiff’s second assignment of error, she contends that

the ALJ erred by failing to “sen[d Plaintiff] to a Social Security

Disability Doctor to be reviewed and examined.” (Docket Entry 17

at 1.) In that regard, towards the end of Plaintiff’s hearing, she

asked the ALJ if she could “be sent to one of the [SSA]’s doctors”

(Tr. 98), and the ALJ responded as follows:

At this point in time I’m closing the hearing. I don’t

have any further need. . . . [T]hey’re not really doing

that right now, is my understanding, seeing

people . . . live. And . . . not only that, I have all

your updated records. I have all your treatment records.

(Tr. 98-99.) As explained more fully below, the ALJ did not err by

denying Plaintiff’s request for a consultative examination.

An ALJ has discretion in deciding whether to order a

consultative examination. See 20 C.F.R. § 404.1519a; Bishop v.

Barnhart, 78 F. App’x 265, 268 (4th Cir.2003). The ALJ must order

a consultative examination “when the evidence as a whole is

insufficient to allow [the ALJ] to make a determination or decision

on [the] claim,” 20 C.F.R. § 404.1519a(b). Moreover, in deciding

whether to order such an examination, “[the ALJ] will consider not

only existing medical reports, but also the disability interview

form containing [the claimant’s] allegations as well as other

pertinent evidence in [the claimant’s] file,” 20 C.F.R.

§ 404.1519a(a) (emphasis added).

15

Notably, the ALJ here did not find the evidence before him

inadequate to determine the issue of disability (see Tr.98-939 (“I

don’t have any further need [for a consultative

examination]. . . . I have all your updated records.”)), and

Plaintiff makes no argument to the contrary (see Docket Entries 3,

13, 17), arguing instead that her condition worsened years after

her date last insured (see Docket Entry 13 at 1; see also id. at 2;

Docket Entry 3 at 1; Docket Entry 17 at 1, 3, 5). Indeed,

consistent with the ALJ’s above-quoted assertion, the ALJ had

before him records from Plaintiff’s treating physician dating up to

the month of the hearing (see Tr. 448-69, 527-54), records from

hospitalizations occurring within the 15 days preceding the hearing

(see Tr. 495-520), and reports of diagnostic tests, such as MRIs,

CT scans, and x-rays (see Tr. 309, 311, 325-27, 333, 337, 437-40,

443, 447).

Under such circumstances, Plaintiff simply has not shown that

the ALJ erred in failing to order a consultative examination,

particularly where such an examination would occur years after

Plaintiff’s date last insured. See Drane v. Colvin, No. 1:10CV901,

2014 WL 408753, at *5 n.9 (M.D.N.C. Feb. 3, 2014) (unpublished)

(rejecting the “[p]laintiff’s argument that the ALJ’s duty to

develop the record required him to consult a physician regarding

whether the [p]laintiff’s back impairment met or equaled [a

l]listing,” where the record . . . contained

16

extensive . . . treatment notes and diagnostic studies,” and the

plaintiff “‘d[id] not identify what [any] missing evidence would

have shown; rather, []he merely speculate[d] that having [further]

evidence might have produced a different result’” (quoting

Scarberry v. Chater, No. 94–2000, 52 F.3d 322 (table), 1995 WL

238558, at *4 n.13 (4th Cir. Apr. 25, 1995) (unpublished) (internal

quotation marks omitted))), recommendation adopted, slip op.

(M.D.N.C. Feb. 26, 2014) (Eagles, J.); Cosom v. Astrue, No.

11CV294, 2012 WL 1898921, at *7 & n.5 (W.D.N.C. Feb. 23, 2012)

(unpublished) (finding “there was no need to arrange for a

consultative examination because the ALJ had all the information he

needed to reach a decision,” and further noting that, “[a]ny

consultative examination would have occurred after [the

p]laintiff’s date last insured” and thus finding “‘no indication

that a consultative examination . . . significantly after the date

last insured would be of any use at all, let alone be necessary to

assist the ALJ’” (quoting Knipple v. Commissioner of Soc. Sec., No.

6:08CV40, 2009 WL 51317, *4 (M.D. Fla. Jan. 7, 2009) (unpublished)

(internal quotation marks omitted))), recommendation adopted, 2012

WL 1898918 (W.D.N.C. May 24, 2012) (unpublished).

Put simply, Plaintiff’s second issue on review does not

establish a basis for remand.

17

3. Failure to Allow Plaintiff to Obtain Counsel

Plaintiff’s third and final issue on review maintains that the

ALJ erred by proceeding with the telephone hearing without allowing

Plaintiff to obtain an attorney. (See Docket Entry 17 at 2-3.)

Plaintiff contests the Commissioner’s assertion “that Plaintiff

knowingly and voluntarily waived her right to counsel at the

hearing” (Docket Entry 15 at 18):

I just received papers by certified mail of my pending

case. I have not been to court and I am still waiting on

a court date, as I filed an appeal in a timely manner.

In the papers it is falsely stated that I was asked

whether or not I wanted an attorney. This statement is

false with no uncertain doubt.

(Docket Entry 17 at 2 (standard capitalization applied).)

Plaintiff’s contentions fall short.

To begin, the transcript of Plaintiff’s administrative hearing

belies her denial that the ALJ asked Plaintiff if she wanted to

obtain an attorney. The following exchange took place between

Plaintiff and the ALJ:

ALJ: . . . I note that you are not represented by an

attorney or other qualified individual. When we first

received your case at the hearing office, we wrote you a

letter advising you of your right to representation.

Attached to that letter was a page entitled Important

Notice, and that notice listed telephone numbers of

various groups that may be able to assist you in finding

legal representation. The letter also told you that

there may be free legal services available to you. Did

you receive that letter . . . and notice, ma’am?

[PLAINTIFF]: I did receive it, yes.

18

ALJ: Okay. Do you understand the information contained

in that letter, specifically information about

representation?

[PLAINTIFF]: Yes, I do.

ALJ: Do you want to proceed without a representative?

[PLAINTIFF]: Yes, I do.

(Tr. 32-33 (emphasis added); see also Tr. 133-47 (letter dated Aug.

7, 2020, from SSA’s Office of Hearing Operations to Plaintiff

referenced by ALJ in above-quoted exchange), 149-66 (Notice of

Hearing dated Nov. 6, 2020, containing information about right to

representation), 167 (Plaintiff’s Acknowledgement of Receipt of

Notice of Hearing dated Dec. 1, 2020).) That discussion makes

clear that Plaintiff (who, as previously noted, possesses extensive

education) knowingly and intelligently waived her right to a

representative at the hearing. See Roseberry v. Colvin, No.

3:15CV4895, 2016 WL 1737121, at *13 (S.D.W. Va. May 2, 2016)

(unpublished) (rejecting the pro se plaintiff’s argument that ALJ

failed to adequately explain right to representation, where SSA

sent the plaintiff “numerous letters and pamphlets . . . explaining

her right to representation,” and “no evidence [existed] that [the

plaintiff] did not understand her right to representation,” or

“that [the plaintiff] suffered from an intellectual disability that

prevented her from appreciating the consequences of her decision to

waive her right to representation”).

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Lastly, Plaintiff’s Reply “request[s the] SSA to appoint [her]

a lawyer” in her instant civil action for judicial review. (Docket

Entry 17 at 1.) In civil cases proceeding in federal court, “[t]he

court may request an attorney to represent any person unable to

afford counsel,” 28 U.S.C. § 1915(e) (1) (emphasis added); however,

“a plaintiff does not have an absolute right to appointment of

counsel,” Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987).

Instead, court assistance in obtaining counsel constitutes “a

matter within the discretion of th[is ] Court. It is a privilege

and not a right.” Bowman v. White, 388 F.2d 756, 761 (4th Cir.

1968). In this regard, the United States Court of Appeals for the

Fourth Circuit has held that a litigant “must show that his case is

one with exceptional circumstances.” Miller, 814 F.2d at 966

(citing Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975)). “The

question of whether such circumstances exist in any particular case

hinges on characteristics of the claim and the litigant.”

Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated in

part on other grounds, Mallard v. United States Dist. Ct. for S.D.

of Iowa, 490 U.S. 296 (1989) (holding that Section 1915 does not

authorize compulsory appointment of counsel). Specifically, “[ilf

it is apparent to the district court that a pro se litigant has a

colorable claim but lacks the capacity to present it, the district

court should appoint counsel to assist h[er].” Gordon v. Leeke, 574

F.2d 1147, 1153 (4th Cir. 1978).

20

In the present case, Plaintiff has asserted that she paid the

filing fee when she initiated this action in the Forsyth County

Superior Court (see Docket Entry 3 at 1), after which time the

Commissioner removed the action to its proper venue in this Court

(see Docket Entry 1 (Notice of Removal)), and Plaintiff has neither

moved the Court to proceed in forma pauperis (see Docket Entries

dated May 2, 2022, to present), nor alleged that she cannot afford

an attorney (see Docket Entries 3, 13, 17). Furthermore, Plaintiff

possesses a master’s degree and has completed the majority of her

course work towards a doctorate degree (see Tr. 38-39), and she has

not alleged any issues regarding her competency or ability to

proceed pro se (see Docket Entries 3, 13, 17). Moreover, the

instant action for judicial review under 42 U.S.C. § 405(g) will

proceed on the administrative record developed before the SSA and

thus does not involve discovery or trial procedures, and briefing

in this matter has already concluded. Accordingly, the undersigned

United States Magistrate Judge concludes that Plaintiff has not

established extraordinary circumstances that warrant appointment of

counsel under 28 U.S.C. § 1915(e)(1).

For the foregoing reasons, Plaintiff’s third assignment of

error lacks merit.

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III. CONCLUSION

Plaintiff has not established grounds for relief.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is AFFIRMED, that Plaintiff’s Letter Motion

(Docket Entry 13) is DENIED, that the Commissioner’s Motion for

Judgment on the Pleadings (Docket Entry 14) is GRANTED. The

undersigned United States Magistrate Judge will enter a judgment

dismissing this action with prejudice contemporaneously with this

Memorandum Opinion and Order.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

July 25, 2023

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