# MCGEE v. KIJAKAZI

> District Court, M.D. North Carolina · July 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10254468

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 25, 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/10254468

## How later opinions describe it (automated extraction)

- holding that Section 1915 does not authorize compulsory appointment of counsel

## Opinion text

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.
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254468. Public record. Not legal advice.