DAVIS v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SCOTTIE J. D., )

)

Plaintiff, )

)

v. ) 1:23CV695

)

MARTIN J. O’MALLEY, )

Commissioner of Social Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Scottie J. D., brought this action pursuant to the

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

final decision of Defendant, the Commissioner of Social Security

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

Security Income (“SSI”). (Docket Entry 1.) The Commissioner has

filed the certified administrative record (Docket Entry 6 (cited

herein as “Tr. __”)), and both parties have submitted dispositive

briefs in accordance with Rule 5 of the Supplemental Rules for

Social Security Actions under 42 U.S.C. § 405(g) (Docket Entry 10

(Plaintiff’s Brief); Docket Entry 11 (Commissioner’s Brief); see

also Docket Entry 12 (Plaintiff’s Reply)). For the reasons that

follow, the Court should enter judgment for the Commissioner.

1 On December 20, 2023, President Joseph R. Biden, Jr., appointed Martin

J. O’Malley as Commissioner of the Social Security Administration. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley should

substitute for Kilolo Kijakazi as Defendant in this suit. Neither the Court nor

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

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

I. PROCEDURAL HISTORY

Plaintiff applied for SSI on June 11, 2020 (Tr. 279-89),

alleging a disability onset date of September 1, 2014 (see Tr. 48,

281), which he later amended to his application date of June 11,

2020 (see Tr. 294). Upon denial of that application initially (Tr.

117-32, 142-45) and on reconsideration (Tr. 133-41, 155-57),

Plaintiff requested a hearing de novo before an Administrative Law

Judge (“ALJ”) (Tr. 158-60). Plaintiff, his attorney, a medical

expert (“ME”), and a vocational expert (“VE”) attended the hearing.

(Tr. 69-116.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 45-68.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-7,

276-78), thereby making the ALJ’s ruling the Commissioner’s final

decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since June 11, 2020, the application date.

. . .

2. [Plaintiff] has the following severe impairments:

sleep apnea; obesity; mild facet hypertrophy at L5-S1,

with mild bilateral sacroiliac joint degenerative

changes; depression; and anxiety.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

2

. . .

4. . . . [Plaintiff] has the residual functional

capacity to perform less than the full range of light

work . . . . He can lift/carry 20 pounds occasionally,

10 pounds frequently. He can sit for six hours but would

need to alternate from sit to stand for 10-15 minutes

every two minutes of sitting, not away from the

workstation. He could stand for 6 hours, alternating to

sitting for 10-15 minutes, after every 30 minutes of

standing. He could walk for 6 hours, after every one

minute of standing. He could push/pull as much as

lift/carry. He could operate hand controls with the

right and left hand frequently. He could frequently

reach overhead to the left and right. He could handle

items frequently with the left and right hand. He could

frequently finger with the right and left hand, and he

could frequently feel with the right and left hand. He

could never climb ladders, ropes, [or] scaffolds. He

could occasionally kneel, crouch, and crawl; and he could

frequently climb ramps/stairs, balance, and stoop. He

could never work at unprotected heights or around moving

mechanical parts. He could have frequent exposure to

humidity, wetness, dust, odors, fumes, and pulmonary

irritants, and occasional exposure to extreme heat and

vibration. He could perform simple, routine, and

repetitive tasks, but not at a production rate pace

(e.g., assembly line work). He could occasionally

interact with supervisors, coworkers, and the public. He

could make simple work-related decisions, and his time

off tasks included the ability to perform simple,

routine, repetitive tasks.

. . .

5. [Plaintiff] has no past relevant work.

. . .

9. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

. . .

3

10. . . . [Plaintiff] has not been under a disability,

as defined in the [] Act, since June 11, 2020, the date

the application was filed.

(Tr. 50-60 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

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

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

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

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

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

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

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

supported by substantial evidence and were reached through

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

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

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

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

U.S. 389, 401 (1971)). “It consists of more than a mere scintilla

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

4

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

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

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

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

quotation marks omitted).

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

undertake to re-weigh conflicting evidence, make credibility

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

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

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

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

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

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

claimant] is not disabled is supported by substantial evidence and

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

5

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

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

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

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

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

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

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

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

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

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

‘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 the Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).3 A finding adverse to the

2 The Act “comprises two disability benefits programs. The Disability

Insurance Benefits Program provides benefits to disabled persons who have

contributed to the program while employed. [SSI] provides benefits to indigent

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

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

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

omitted).

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

(continued...)

6

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 179.4 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. See id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

3 (...continued)

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

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

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

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

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

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

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

RFC includes both a “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

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

“whether the claimant is able to perform other work considering

both [the claimant’s RFC] and [the claimant’s] vocational

capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the

Commissioner cannot carry its “evidentiary burden of proving that

[the claimant] remains able to work other jobs available in the

community,” the claimant qualifies as disabled. Hines, 453 F.3d at

567.5

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ did not properly incorporate the use of an

assistive device when assessing [Plaintiff]’s RFC” (Docket Entry 10

at 13 (bold font and block formatting omitted); see also Docket

Entry 12 at 1-4); and

2) “[t]he ALJ’s evaluation of [consultative psychological

examiner] Dr. [J. Craig] Hunt’s medical opinions is legally

deficient” (Docket Entry 10 at 21 (bold font omitted); see also

Docket Entry 12 at 4-11).

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

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

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

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

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

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

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

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

8

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 11 at 5-24.)

1. Need for a Cane

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

ALJ did not properly incorporate the use of an assistive device

when assessing [Plaintiff]’s RFC.” (Docket Entry 10 at 13 (bold

font and block formatting omitted); see also Docket Entry 12 at 1-

4.) More specifically, Plaintiff maintains that the ALJ erred by

1) discounting Plaintiff’s prescription for a cane because it “‘was

given to him at his own request’” (Docket Entry 10 at 15 (quoting

Tr. 51)), and 2) by stating that “‘the [ME] at the hearing

testified that there was no medical necessity for a cane’” (id.

(quoting Tr. 51)). According to Plaintiff, “the ALJ’s failure to

properly account for [Plaintiff]’s medically necessary handheld

assistive device was not harmless” (id. at 18), because “[t]he VE

testified if a person needs a singlehanded assistive device to

‘help in balance . . . in walking . . . in balance in raising and

lowering himself . . . in standing . . . in climbing ramps and

stairs . . . [and] when balancing and stooping’ there would be no

work” (id. at 19 (quoting Tr. 109)). Those contentions lack merit.

“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

9

all the time, periodically, or only in certain situations; distance

and terrain; and any other relevant information).” Social Security

Ruling 96-9p, Policy Interpretation Ruling Titles II 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, at *7 (July 2, 1996) (“SSR 96-9p”).

(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. Appx 776, 780

(10th Cir. 2010).

The ME offered the following testimony in response to

questions from the ALJ and Plaintiff’s counsel regarding

Plaintiff’s need for a cane:

[ALJ:] From your review of the record, is there an

indication of the necessity for a singlehanded assistive

device?

[ME:] Nothing mentioned that I saw.

ALJ: Counsel, any questions?

ATTY: Yes, Your Honor. . . . [W]ere you aware

that . . . [Plaintiff] has been prescribed the use of a

cane?

[ME:] Well, in my notes I don’t see it but with his

obesity, it wouldn’t surprise me.

(Tr. 81.) The ALJ summarized that testimony as follows:

[The ME] testified that it was mainly [Plaintiff’s]

obesity that would affect his standing/walking; however,

there was nothing in the record to show anything

significant, mostly showing mild impairment. [The ME]

testified that there was nothing in the record to show

10

medical necessity for a cane; however, he testified that

with [Plaintiff]’s obesity, it wouldn’t surprise [the ME]

that [Plaintiff] would need a cane.

(Tr. 54.) The ALJ then provided the following explanation for his

decision not to include the need for a cane in the RFC:

There is mention in the record that [Plaintiff] uses a

cane. Records show that he asked his doctor to prescribe

[Plaintiff] a cane, which [the doctor] did. However,

there is nothing to show that a physician found this

medically necessary for [Plaintiff]. The [ME] testified

that it would be reasonable for [Plaintiff] to want a

cane due to his excessive weight, which exacerbates his

back and knee issues.

(Tr. 59.) The ALJ did not err in declining to find Plaintiff’s

cane medically necessary (see id.) because, for the reasons

discussed more fully below, Plaintiff has failed to produce

“medical documentation” of his “need for a [cane]” and “the

circumstances for which it is needed,” SSR 96-9p, 1996 WL 374185,

at *7.

Plaintiff first faults the ALJ for discounting Plaintiff’s

“‘prescription for [a] cane in the record,’” because the

prescription “‘was given to him at his own request for a cane.’”

(Docket Entry 10 at 15 (quoting Tr. 51).) In Plaintiff’s view, his

treating physician, Dr. Carly Marie Faller, “was under no

obligation to provide a prescription for durable medical equipment

she believed was unwarranted or unnecessary,” and thus “a

reasonable inference is that Dr. Faller believed it was necessary.”

(Id. (referencing Tr. 1114).) Moreover, Plaintiff points out that

“Dr. Faller did not list an end date or time for when the cane

11

would no longer be prescribed” (id. at 16 (citing Tr. 1114)),

Plaintiff “testified he use[d] the cane for walking unless he

c[ould] hold on to something” (id. (citing Tr. 85, 101)), and

“[t]he record indicated [Plaintiff] used a single point can [sic]

while walking” (id. (citing Tr. 18, 26, 597, 618, 620, 1088)).

That argument falls short for three reasons.

First, Dr. Faller’s order for a cane (see Tr. 1114), issued in

direct response to Plaintiff’s specific request for a cane (see Tr.

601-02), does not, standing alone, constitute “medical

documentation establishing the need for a hand-held assistive

device,” SSR 96-9p, 1996 WL 374185, at *7 (emphasis added). Dr.

Faller did not conduct an examination of Plaintiff in connection

with her order for a cane (let alone document lower extremity

functional limitations warranting a cane) (see Tr. 601-02, 1114),

offer an opinion that the cane qualified as medically necessary

(see Tr. 1114), or provide any statement “describing the

circumstances for which it is needed,” SSR 96-9p, 1996 WL 374185,

at *7 (emphasis added), (see id.). Given those facts, no inference

of medical necessity arises from Dr. Faller’s mere prescription, at

Plaintiff’s request, for a cane. See Michael T. v. Commissioner of

Soc. Sec., No. 2:22CV2148, 2023 WL 2140984, at *5 (S.D. Ohio Feb.

21, 2023) (unpublished) (“[The p]laintiff has failed to show that

the mere existence of a prescription for a cane (written at [the

pllaintiff’s request), without more, is sufficient in this case to

12

establish that his cane is medically necessary. Instead, the ALJ

reasonably discounted [the p]laintiff’s subjective report that he

needed a cane after discussing all of the relevant evidence,

including the fact that examining physicians consistently noted

normal gait both before and after [the p]laintiff obtained his cane

prescription.”); Jonathan F. v. Kijakazi, No. CV 21-7612, 2022 WL

17362996, at *4 (C.D. Cal. Nov. 30, 2022) (unpublished) (“In

finding that [the p]laintiff’s use of a cane was not medically

supported, the ALJ relied on evidence . . . that [the p]laintiff

requested a cane as opposed to being prescribed one. . . . [The

p]laintiff does not cite to anywhere in the record that establishes

the need for a cane and describes the circumstances for which it is

needed.”); Anusionwu v. Commissioner of Soc. Sec., No. 3:20CV758,

2022 WL 3536389, at *3 (S.D. Miss. June 6, 2022) (unpublished)

(“The [court] has not found anything in the record establishing

that [the p]laintiff’s use of a cane is medically necessary or

required. [The p]laintiff points to no evidence in the record

that . . . a medical professional suggested that [the p]laintiff

use a cane. As the record stands, it appears that [the p]laintiff

simply requested a cane and was provided one with no finding that

the device was medically necessary.”), recommendation adopted, 2022

WL 3499638 (S.D. Miss. Aug. 17, 2022) (unpublished); Peake v.

Berryhill, No. 5:17CV1998, 2018 WL 1178256, at *16 (S.D.W. Va. Feb.

8, 2018) (unpublished) (“[W]hen [a physician] wrote the note

13

regarding [the plaintiff]’s request for a cane, [the physician] did

not provide any reason for the prescription, other than [the

plaintiff]’s desire to have a cane. The records do not reflect an

examination by [the physician] to evaluate [the plaintiff]’s need

for an ambulatory assistive device, and [the physician] did not

provide any details or instructions about when, where, and for how

long [the plaintiff] might need to use the cane.”), recommendation

adopted, 2018 WL 1177354 (S.D.W. Va. Mar. 6, 2018) (unpublished);

Easley v. Commissioner of Soc. Sec., No. 1:11CV64, 2012 WL 32351,

at *13 (S.D. Ohio Jan. 5, 2012) (unpublished) (holding that “the

record d[id] not support [the state agency medical consultant]’s

interpretation of [the primary care physician]’s treatment notes”

as reflecting a medically required cane, because those notes

“clearly indicate[d] that . . . [the] plaintiff requested a cane,

not that it was deemed medically necessary”), recommendation

adopted, 2012 WL 910015 (S.D. Ohio Mar. 16, 2012) (unpublished).

Second, Plaintiff’s reliance on his own “testi[mony that] he

use[d] the cane for walking unless he c[ould] hold on to something”

(Docket Entry 10 at 16 (citing Tr. 85, 101)) misses the mark.

Plaintiff’s subjective testimony that he “got a cane [for] walking”

because his “legs and feet be [sic] swollen all the time” (Tr. 85),

and that he “ha[d] to use [his] cane to walk” (Tr. 101) does not

constitute “medical documentation” sufficient to establish the

medical necessity of his cane, SSR 96-9p, 1996 WL 374185, at *7.

14

See Hale v. Kijakazi, No. 1:20CV277, 2021 WL 3625319, at *2

(W.D.N.C. Aug. 16, 2021) (unpublished) (holding that “[s]ubjective

claims . . . are insufficient” to establish medical documentation

of cane necessity required by SSR 96-9p (internal quotation marks

omitted)); Morrison v. Saul, No. 3:20CV223, 2021 WL 795190, at *4

(W.D.N.C. Mar. 2, 2021) (unpublished) (“[The plaintiff] offers no

medical evidence regarding his cane or the circumstances he needs

it for. Instead, he offers his own lay testimony and cites

examination findings regarding his lower extremities. But that

evidence merely describes [his] symptoms — it does not provide

medical documentation establishing that [he] needed the

cane . . . .” (internal parenthetical citations omitted)); Thomas

H. v. Berryhill, No. 4:17CV41, 2018 WL 10806837, at *8 (W.D. Va.

Aug. 27, 2018) (unpublished) (“[The plaintiff]’s subjective belief

that he needs a cane to walk and for stability due to muscle

atrophy in the right leg and pain in his legs and hips is not

acceptable ‘medical documentation’ that could establish his

underlying medical need to use a cane to aid in walking or

standing.” (quoting SSR 96-9p, 1996 WL 374185, at *7) (some

internal quotation marks and citations omitted)).

Third, Plaintiff’s assertion that “[t]he record indicated [he]

used a single point can [sic] while walking” (Docket Entry 10 at 16

(citing Tr. 18, 26, 597, 618, 620, 1088)) conflates his mere use of

a cane with the medical necessity of such a device. See Morrison,

15

2021 WL 795190, at *4 (rejecting the plaintiff’s argument that ALJ

erred by failing to include cane in RFC, “because no provider ever

stated that [the plaintiff] needed the cane, only that he sometimes

presented with one”); Thomas H., 2018 WL 10806837, at *8 (“The mere

fact that [the plaintiff] sometimes presented to clinic

appointments with a cane [] does not establish his underlying

medical need to use that device. Cf. Craig, 76 F.3d at 590 n.2

(‘There is nothing objective about a doctor saying, without more,

“IT observed my patient telling me she was in pain.”’).”).

Furthermore, most of the record citations upon which Plaintiff

relies to support his assertion that he used a cane for ambulation

during the relevant period do not, in fact, support that assertion.

(See Docket Entry 10 at 16 (citing Tr. 18, 26, 597, 618, 620,

1088).) Transcript pages 18 and 26 consist of treatment notes from

Dr. Faller dated February 23, 2023 (see Tr. 18), and Dr. Brandon L.

Williams dated January 27, 2023 (see Tr. 26), which post-date the

ALJ’s decision (see Tr. 45 (reflecting decision date of December 9,

2022)), and which Plaintiff submitted to the Appeals Council (see

Tr. 2). In turn, the Appeals Council expressly found that those

records “d[id] not relate to the period [before the ALJ]” and

“d[id] not affect the decision about whether [Plaintiff] wlas]

disabled beginning on or before December 9, 2022” (id. (emphasis

added)), the date of the ALJ’s decision (see Tr. 45). Transcript

pages 618 and 620 merely reflect Plaintiff’s requests for a cane

16

from his providers on May 24, 2021 (see Tr. 618), and March 11,

2021 (see Tr. 620), and fail to reflect that he even obtained a

cane on those occasions, let alone that he used a cane for walking

(see Tr. 618, 620).

Moreover, although transcript page 597 shows that Plaintiff

presented with a cane to his initial physical therapy evaluation on

December 16, 2021, seven days after Dr. Faller entered her order

for the cane (see Tr. 1114), and transcript page 1088 reflects that

Plaintiff appeared with a cane at Dr. Hunt’s consultative

psychological examination on August 31, 2022 (see Tr. 1088), many

other records contain no indication Plaintiff used a cane (see Tr.

374 (Plaintiff’s Function Report dated March 3, 2021, not listing

cane in response to question asking about use of medical aids),°

542-44 (physician visit on November 13, 2020), 547-50 (emergency

room visit on October 26, 2020), 1097-1100 (emergency room

treatment on August 30, 2022), 1102-03 (primary care visit on

September 22, 2022), 1104-08 (podiatry treatment on October 17,

2022), 1109-11 (office visit with Dr. Faller on November 17,

2022)), expressly state he did not use a cane (see Tr. 519

(consultative medical examination by Dr. Stephen Burgess on October

12, 2020), 1037 (physical therapy session dated January 12, 2022),

1040 (physical therapy appointment on January 14, 2022)), or

° RA previous Function Report completed by Plaintiff on August 6, 2020,

reflects only that Plaintiff used a friend’s cane “sometimes walking when [his]

legs and feet [we]re swollen.” (Tr. 341 (emphasis added) .)

17

documented that Plaintiff walked on a regular basis without mention

of a cane (see Tr. 584 (primary care visit on January 29, 2021,

reflecting that Plaintiff “walk[ed] a decent amount”), 605

(treatment with Dr. Faller dated November 11, 2021, recording that

Plaintiff “walk[ed] every day as tolerated” and “walk[ed] his niece

to and from school Monday through Friday”), 613 (visit with Dr.

Faller on September 14, 2021, documenting that Plaintiff “walk[ed]

every day as tolerated”)). Accordingly, Plaintiff has not shown

that “[t]he record indicated [he] used a single point can [sic]

while walking.” (Docket Entry 10 at 16.)

Next, Plaintiff contends that the ALJ erred by stating that

“‘the [ME] at the hearing testified that there was no medical

necessity for a cane.’” (Docket Entry 10 at 15 (quoting Tr. 51);

see also Docket Entry 12 at 3 (characterizing that statement by ALJ

as “material misrepresentation of [the ME]’s testimony”).) In

support of that argument, Plaintiff argues as follows:

Due to [Plaintiff]’s “monumental obesity” he would have

limitations standing and walking according to [the ME].

And while [the ME] did not see [Plaintiff]’s cane

prescription “in [his] notes” it would not “surprise” him

that [Plaintiff] needed a cane due to his obesity. The

ALJ found [the ME]’s opinion “persuasive.” . . .

The ALJ declared “the [ME] at the hearing testified that

there was no medical necessity for a cane.” That is not

what the [ME] said. The ALJ asked “[f]rom your review of

the record, is there an indication of the necessity for

a singlehanded assistive device[.]” The [ME] stated

“[n]othing mentioned that I saw.” But [the ME] did not

say the cane was not medically necessary. [The ME]’s

testimony when taken as a whole supports the medical

necessity of the cane due to [Plaintiff]’s obesity.

18

(Docket Entry 12 at 4 (quoting Tr. 51, 59, 80, 81) (italics

supplied by Plaintiff) (internal citations omitted).)

Plaintiff’s argument fails because it relies on an

unreasonable interpretation of the colloquy between the ALJ and the

ME. Although Plaintiff’s argument lacks clarity, he appears to

interpret the ALJ’s question to the ME whether “an indication of

the necessity for a singlehanded assistive device” existed in the

record (Tr. 81 (emphasis added)) as merely a request for the ME to

identify whether the record contained any opinions regarding the

medical necessity of a cane. (See Docket Entry 10 at 17-18; see

also Docket Entry 12 at 3-4.) That interpretation does not make

sense, as the ALJ did not need the services of an expert to tell

the ALJ whether any of Plaintiff’s providers of record offered an

opinion regarding a cane’s medical necessity. More reasonably

interpreted, the ALJ intended to ask the ME whether any of the

evidence that he reviewed led him to conclude that Plaintiff’s cane

qualified as medical necessary. The ME’s response “[n]othing

mentioned that I saw” (Tr. 81) confirms that the record material he

reviewed did not contain any evidence indicating that Plaintiff’s

cane qualified as medically necessary. That interpretation further

harmonizes with the ME’s earlier opinion that Plaintiff’s obesity

caused only mild limitations on his abilities to stand and walk.

(See Tr. 80-81.) Moreover, the ME’s later statement that

Plaintiff’s prescription for a cane did not “surprise” the ME in

19

light of Plaintiff’s “obesity” does not equate to an opinion that

the cane qualified as medically necessary.

Put simply, the ALJ did not err by declining to include the

need for a cane in the RFC, and, thus, Plaintiff’s first issue on

review fails as a matter of law.

2. Dr. Hunt’s Opinions

Plaintiff’s second and final assignment of error asserts that

“[t]he ALJ’s evaluation of Dr. Hunt’s medical opinions is legally

deficient.” (Docket Entry 10 at 21 (bold font omitted); see also

Docket Entry 12 at 4-11.) In particular, Plaintiff attacks the

ALJ’s decision to find Dr. Hunt’s opinions “not persuasive” (Tr.

59) as “‘supported heavily on [Plaintiff]’s own subjective reports

of his symptoms and limitations’” (Docket Entry 10 at 21 (quoting

Tr. 58)), and as “‘not consistent with the totality of the evidence

pertaining to his mental health, which supports no more than

moderate limitations’” (id. (quoting Tr. 58-59)). According to

Plaintiff, the ALJ’s “error was not harmless,” because “[t]he VE

testified that someone who could have no contact with the general

public and coworkers and only occasional contact with

supervisors . . . [and] was unable to tolerate normal work

stressors would be precluded from work.” (Id. at 24 (citing Tr.

112-15).) For the reasons that follow, Plaintiff’s contentions do

not establish a basis for remand.

20

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 279-89)), the SSA has enacted

substantial revisions to the regulations governing the evaluation

of opinion evidence, see Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL

168819 (Jan. 18, 2017). Under the new regulations, ALJs need not

assign an evidentiary weight to medical opinions and prior

administrative medical findings or accord special deference to

treating source opinions. See 20 C.F.R. § 416.920c(a) (providing

that ALJs “will not defer or give any specific evidentiary weight,

including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [a

claimant’s] medical sources”).7 Instead, an ALJ must determine and

“articulate in [the] . . . decision how persuasive [he or she]

find[s] all of the medical opinions and all of the prior

administrative medical findings in [a claimant’s] case record.” 20

C.F.R. § 416.920c(b) (emphasis added). Moreover, when a medical

source provides more than one opinion or finding, the ALJ will

evaluate the persuasiveness of such opinions or findings “together

7 The new regulations define a “medical opinion” as “a statement from a

medical source about what you can still do despite your impairment(s) and whether

you have one or more impairment-related limitations or restrictions” in the

abilities to perform the physical, mental, or other demands of work activity or

to adapt to environmental conditions. 20 C.F.R. § 416.913(a)(2). Those

regulations also define a “prior administrative medical finding” as a “finding,

other than the ultimate determination about whether [a claimant is] disabled,

about a medical issue made by [the SSA’s] Federal and State agency medical and

psychological consultants at a prior level of review.” 20 C.F.R.

§ 416.913(a)(5).

21

in a single analysis” and need not articulate how he or she

considered those opinions or findings “individually.” 20 C.F.R.

§ 416.920c(b)(1).

In evaluating the persuasiveness of an opinion or finding, the

SSA deems supportability and consistency “the most important

factors” and thus the ALJ must address those two factors in

evaluating the persuasiveness of an opinion or a finding. 20

C.F.R. § 416.920c(b)(2).8 The ALJ must only address the three

other persuasiveness factors — the nature and extent of the medical

source’s relationship with the claimant and area of specialization,

as well as the catch-all “other factors that tend to support or

contradict” the opinion/finding, 20 C.F.R. § 416.920c(c)(3)-(5) —

when the ALJ finds two or more opinions or findings about the same

issue “[e]qually persuasive” in terms of supportability and

consistency, 20 C.F.R. § 416.920c(b)(3).

On August 31, 2022, Dr. Hunt conducted a consultative

psychological examination of Plaintiff (Tr. 1087-93), during which

Plaintiff reported that he did not “like to hang in crowds,” his

mental functioning “varie[d]” and “[s]ome m[ight] call it mood

swings,” he had “a lot of issues [he was] dealin[g] with,”

8 “Supportability” means “[t]he extent to which a medical source’s opinion

is supported by relevant objective medical evidence and the source’s supporting

explanation.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 416.920c(c)(1). “Consistency” denotes “the extent to which the opinion is

consistent with the evidence from other medical sources and nonmedical sources

in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853; see also 20 C.F.R.

§ 416.920c(c)(2).

22

“[s]ometimes [he] might get caught talking to himself,” and he did

not “try to hold conversations with others” (Tr. 1088). Plaintiff

additionally complained of “difficulty maintaining sleep, chronic

depressed mood, difficulty experiencing pleasure, occasional crying

episodes, occasional fatigue, and social withdrawal.” (Tr. 1089.)

During the mental status examination, Dr. Hunt noted that Plaintiff

appeared “alert[, ] demonstrated contact with reality,” and

“presented with a serious demeanor” (Tr. 1088), and found

Plaintiff’s speech and thought process/content normal (see Tr.

1089). Dr. Hunt documented “mildly restricted” affect (id.),

“[w]ithin [n]ormal [l]imits [(‘WNL’)] to [m]arginal” immediate

retention/recall (id.), “[WNL] to [m]arginal” recent memory (id.),

and “[b]elow [e]xpectations” fund of information (Tr. 1089-90), but

“[WNL]” remote memory (Tr. 1089), “[WNL]” ability to perform

calculations (Tr. 1090), “[WNL]” ability to engage in abstract

thinking (id.), and “[WNL]” judgment (id.). Additionally, Dr. Hunt

noted that Plaintiff “demonstrated awareness of his concerns[,

but ] tended to focus on the physical complaints,” and

“estimate[d Plaintiff’s] intellectual functioning [] in the low

average range.” (Id.) Dr. Hunt diagnosed “[u]nspecified

[d]epressive [d]isorder” and “[u]nspecified [p]ersonality

[d]isorder - cluster B traits.” (Id.)

Following the examination findings, Dr. Hunt provided the

following opinions:

23

[Plaintiff] appears to have the intellectual capacity to

perform simple, routine, repetitive tasks as well as

understand and follow instructions but could have mild to

moderate difficulty with retention based on his

presentation and mental status response. Psychiatric

symptoms could cause moderate complications for all the

aforementioned. Sustained performance of the previous is

uncertain given his physical complaints. He demonstrated

marginal interpersonal behavior and could have moderate

to marked difficulty interacting effectively with peers,

coworkers, and supervisors due to complications from mood

and entrenched interpersonal style. He demonstrated

adequate to marginal concentration, persistence, and pace

based on his mental status response. He could have

moderate to marked difficulty tolerating the stress

associated with day-to-day work activity due to the

depletion of coping resources related to chronic illness

as well as underdeveloped coping resources and

dysfunctional coping resources related to engrained

personality features. He appears to have the cognitive

capacity to allow for conforming to social standards and

complying with rules and regulations, as well as[]

cooperating with authority figures but his history

suggests some disruptions. His prognosis is

guarded. . . . [He] appears capable to manage funds

based on his overall cognitive abilities and mental

status.

(Tr. 1091.) Dr. Hunt also completed a Medical Source Statement on

which he opined that Plaintiff would have no difficulty handling

simple instructions and making simple work-related decisions, and

would have moderate difficulties handling complex instructions and

making complex work-related decisions. (See Tr. 1092.) Dr. Hunt

further indicated that Plaintiff would have marked difficulty

interacting appropriately with the public, moderate difficulty

interacting with supervisors and co-workers, and moderate

difficulty responding appropriately to usual work situations and

routine changes, as well as that Plaintiff’s mental impairments did

24

not affect his abilities to maintain concentration, persistence, or

pace or to adapt and manage himself. (See Tr. 1093.)

After accurately summarizing Dr. Hunt’s above-quoted opinions,

the ALJ found them “not persuasive” (Tr. 59), as “supported heavily

on [Plaintiff]’s own subjective reports of his symptoms and

limitations” (Tr. 58) and as “not consistent with the totality of

the evidence pertaining to his mental health, which supports no

more than moderate limitations” (Tr. 58-59). Plaintiff contests

both of the ALJ’s rationales for discounting Dr. Hunt’s opinions,

but neither of Plaintiff’s critiques carry the day.

First, Plaintiff challenges the ALJ’s statement that Dr.

Hunt’s opinions relied “heavily on [Plaintiff]’s own subjective

reports of his symptoms and limitations” (Tr. 58), arguing that

“[t]here is no evidence Dr. Hunt did not rely on his professional,

interpretive judgment and expertise in making his determinations”

(Docket Entry 10 at 21; see also id. at 21-22 (quoting Matthews v.

Barnhart, 347 F. Supp. 2d 1093, 1101-02 (M.D. Ala. 2003), for

proposition that “[c]linical psychologists deal with

quintessentially subjective information with respect to which they

must exercise interpretive judgment”), 22 (quoting Aurand v.

Colvin, 654 F. App’x 831, 837 (7th Cir. 2016), for proposition that

“a psychological assessment is by necessity based on the patient’s

report of symptoms and responses to questioning; there is no blood

test for bipolar disorder”)). According to Plaintiff, Dr. Hunt

25

based his opinion that Plaintiff “‘could have moderate to marked

difficulty interacting with [others]’” (Docket Entry 12 at 10

(quoting Tr. 1091)) on Plaintiff’s “‘cognitive ability and overall

mental status’” (id. (quoting Tr. 1090)), as well as “a detailed

history of difficulties with ‘interpersonal relationships,’ ‘legal

complications,’ ‘academic performance,’ [ an] ‘extended history of

homelessness[,] and a limited support system’” (id. at 10-11

(quoting Tr. 1091)).

Although Dr. Hunt indeed indicated that he based his opinions

on Plaintiff’s “cognitive ability and overall mental status” (Tr.

1090), the mental status examination’s largely normal findings do

not support Dr. Hunt’s moderate to marked limitations (see Tr.

1088-90). As discussed above, Dr. Hunt’s mental status examination

recorded normal speech (see Tr. 1089), thought process/content (see

id.), memory (see id.), abstraction (see Tr. 1090), calculations

(see id.), Judgment (see id.), and insight (see id.), along with a

“mildly restricted” affect (Tr. 1089) and “intellectual functioning

[] in the low average range” (Tr. 1090), with only Plaintiff’s fund

of information appearing “[b]lelow [e]xpectations” (Tr. 1089-90;

see also Tr. 1091 (“[Plaintiff] had notable difficulty with fund of

information but other aspects of cognitive functioning assessed

within the mental status examination appear within normal limits.”

(emphasis added)). Those normal objective findings, along with Dr.

Hunt’s observations of Plaintiff as “alert,” “adequate[ly]

26

motivat[ed],” “sufficient[ly] responsive[],” and “without visible

signs of discomfort throughout the examination process” (Tr. 1088)

do not support Dr. Hunt’s opinions that Plaintiff “demonstrated

marginal interpersonal behavior,” “could have moderate to marked

difficulty interacting effectively with [others]” and “could have

moderate to marked difficulty tolerating the stress associated with

day-to-day work activity” (Tr. 1091 (emphasis added)), which, in

turn, supports the ALJ’s finding that Dr. Hunt over-relied on

Plaintiff’s subjective symptom reporting (see Tr. 58). see

Fedornak v. Commissioner of Soc. Sec., No. 8:20CV416, 2021 WL

397353, at *5 (M.D. Fla. Jan. 19, 2021) (unpublished) (classifying

“mental status examinations” as “form of objective evidence” and

holding that, “[w]hile psychological diagnoses will depend in part

on the subjective allegations by the patient, there is no precedent

for relying solely on a patient’s self-reporting of psychological

limitations” (emphasis added)), recommendation adopted, 2021 WL

391268 (M.D. Fla. Feb. 4, 2021) (unpublished).

Consistent with the lack of objective findings supporting Dr.

Hunt’s opinions, Dr. Hunt’s report makes clear he relied heavily on

Plaintiff’s subjective statements. For example, Dr. Hunt noted

that Plaintiff “described long-term difficulty in interpersonal

relationships” (Tr. 1091 (emphasis added)), “reported he does not

socialize” (Tr. 1088 (emphasis added)), “gave [a] history of

interpersonal difficulty and emotional functioning consistent

27

w[lith] aspects of cluster B personality disorders” (Tr. 1093

(emphasis added)), and “acknowledged history of legal complications

but stated he did not wish to provide further information” (Tr.

1091 (emphasis added)).°® Under such circumstances, the ALJ did not

err by discounting Dr. Hunt’s opinions, in part, because they over-

relied on Plaintiff’s subjective reports. See Miller v. Kijakazi,

No. 1:21CV97, 2022 WL 1004582, at *10 (M.D.N.C. Apr. 4, 2022)

(unpublished) (“[The consultative psychological examiner] found

[the p]laintiff pleasant, friendly and open, with rapport easily

established, and eye contact established and maintained and thus

[the examiner] based his statement that [the p]Jlaintiff had a

history of not getting along with his fellow workers and

supervisors and reported he was easily angered and tended to argue

on [the pllaintiff’s subjective statements rather than any

objective findings. Similarly, [the examiner] did not make any

observations on mental status examination of anxiety, jumpiness,

panic symptoms, or PTSD symptoms and thus his statement that [the

pllaintiff continued to have some symptoms of PTSD and anxiety and

suffer from panic attacks that would result in moderate difficulty

° Contrary to Plaintiff’s representation that Dr. Hunt’s examination

contained ‘a detailed history of difficulties with ‘interpersonal

relationships[]’ [and] ‘legal complications,’” (Docket Entry 12 at 10 (emphasis

added)), Dr. Hunt’s report does not provide any description of Plaintiff’s

alleged history of difficulties with interpersonal relationships, such as anger

issues or conflicts with others (see Tr. 1087-91), and, in fact, reflects that,

because he did not have a fixed address, “[(hle stay[ed] with different friends”

(Tr. 1088 (emphasis added)), as well as that he did not engage in social

activities because he lacked transportation, a phone, and money (see id.).

Moreover, Plaintiff refused to elaborate on his legal complications. (See Tr.

1088, 1090.)

28

in the ability to tolerate stress and pressure associated with

day-to-day work activity again relied on [the p]laintiff’s

subjective reports rather than any objective findings. [ T]he ALJ

did not err in discounting [the examiner]’s opinions based, in

part, on his over-reliance on [the p]laintiff’s subjective symotom

reporting[.]” (internal quotation marks, parenthetical citations,

some brackets, and ellipsis omitted)), recommendation adopted, slip

op. (M.D.N.C. Apr. 20, 2022) (Schroeder, C.J.).*°

1° Plaintiff claims that the ALJ improperly substituted his own lay opinion

for Dr. Hunt’s expert opinion, because the ALJ 1) “d[id] not rely on the opinion

of an acceptable medical source before reaching th[e] conclusion” that Dr. Hunt’s

“examination ‘support[ed] .. . at least moderate limitations’” (Docket Entry 12

at 7 (quoting Tr. 58)), and 2) “interpret[ed] the raw medical data from Dr.

Hunt’s examination and then interpret[ed] that data without the benefit of the

expertise of a medical expert” (id. at 9 (citing Arakas v. Commissioner, Soc.

Sec. Admin., 983 F.3d 83, 108-09 (4th Cir. 2020), and Anderson v. Berryhill, No.

6:16CV3550, 2018 WL 1531558, at *2-3 (D.S.C. Mar. 29, 2018) (unpublished))).

Neither of those arguments has merit. The ALJ found “not persuasive” (Tr. 58)

the opinion of the state agency psychological consultant that Plaintiff’s mental

impairments qualified as non-severe (see Tr. 137), noting that the consultant’s

opinion “[wa]s not consistent with... [Dr. Hunt’s] examination, which supports

that [Plaintiff] does have a severe mental impairment, with at least moderate

limitations” (Tr. 58 (emphasis added)). Thus, in formulating Plaintiff’s mental

RFC, “the ALJ struck a balance between the state agency [consultant]’s [non-

severity finding] and the [moderate to marked] limitations opined by [Dr. Hunt],”

McNeill v. Berryhill, No. 1:16CV1081, 2017 WL 1184187, at *10 (M.D.N.C. Mar. 29,

2017) (unpublished), recommendation adopted, slip op. (M.D.N.C. Apr. 24, 2017)

(Eagles, J.), and “was not required to obtain an expert medical opinion as to

[Plaintiff]’s RFC,” Felton-Miller v. Astrue, 459 F. App’x 226, 231 (4th Cir.

2011); see also Wykle v. Saul, No. 1:19CV155, 2020 WL 697445, at *6 (W.D.N.C.

Feb. 11, 2020) (unpublished) (holding that “there is no requirement that an ALJ

base his RFC finding, or any particular limitation in it, on a medical opinion”

(citing Felton-Miller, 459 F. App’x at 230-31)); compare Webster v. Colvin, No.

1:11CV101, 2014 WL 4060570, at *4-5 (M.D.N.C. Aug. 15, 2014) (unpublished)

(Peake, M.J.) (remanding because ALJ “expressly interpreted the raw data from

[the pllaintiff’s treatment notes to discredit the opinions of the psychiatric

consultants,” who had offered “the only mental health opinions of record,” but

emphasizing that case did not involve “situation in which the record contain[ed]

conflicting opinions; rather, the three opinions in question all include[d] work

restrictions beyond those addressed by the ALJ”), recommendation adopted, slip

op. (M.D.N.C. Sept. 17, 2014) (Osteen, Jr., C.J.). Moreover, the cases upon

which Plaintiff relies to argue that the ALJ improperly “interpret[ed] the raw

medical data from Dr. Hunt’s examination” (Docket Entry 12 at 9 (citing Arakas

and Anderson)) do not aid his cause. In each of those cases, the court found the

ALJ impermissibly interpreted an MRI as documenting conditions (or the severity

(continued...)

29

Lastly, Plaintiff faults the ALJ for finding Dr. Hunt’s

opinions “not consistent with the totality of the evidence

pertaining to his mental health, which supports no more than

moderate limitations” (Tr. 58-59), but failing to provide an

adequate explanation of that finding. (See Docket Entry 10 at 23-

24 (citing Dowling v. Commissioner of Soc. Sec., 986 F.3d 377, 385

(4th Cir. 2021), and Pearson v. Commissioner of Soc. Sec., No.

1:20CV166, 2021 WL 3708047, at *5 (S.D. Miss. Aug. 11, 2021)

(unpublished) In Plaintiff’s view, “[c]lourts have routinely

rejected ALJ’s [sic] decisions that involve incomplete, cursory, or

omitted evaluations of one of the two most important factors” in

evaluating medical opinions, i.e., supportability and consistency.

(Docket Entry 12 at 5 (citing, inter alia, Moore v. Kijakazi, No.

5:21CV4202, 2023 WL 2583225, at *4 (D.S.C. Mar. 21, 2023)

1° (...continued)

of conditions) other than those reflected in the MRI. See Arakas, 983 F.3d at

108-09 (holding that, “[blecause the ALJ lacked the medical expertise to

interpret a cervical MRI, he erred in discounting” physician’s opinion that the

plaintiff’s “‘cervical MRI showed clear evidence of chronic cervical spasm’” and

“improperly substituted his own opinion” that “*an MRI would not document a

chronic condition of spasm’”); Anderson, 2018 WL 1531558, at *3 (“[T]he MRI

results do not contain any finding or impression that the imaging of [the

pjlaintiff’s two disc bulges show ‘only mild effects and no additional

irregularities that would affect [her] abilities to such an extent that she could

only work four hours per day’ as stated by the ALJ. Without some expert

interpretation of the evidence, the ALJ cannot read the MRI results or arrive at

some conclusion about what they mean, either relative to other evidence or in

regards to [the p]laintiff’s limitations.”). In contrast, here, the regulations

required the ALJ to assess the supportability of Dr. Hunt’s opinions, 20 C.F.R.

§ 416.920c(b) (2), which involves assessment of “[t]he extent to which [Dr.

Hunt]’s opinion is supported by relevant objective medical evidence and [his]

supporting explanation,” Revisions to Rules, 82 Fed. Reg. at 5853 (emphasis

added); see also 20 C.F.R. § 416.920c(c) (1). In concluding that Dr. Hunt’s

examination findings did not support his moderate to marked limitations (see Tr.

58-59), the ALJ did not improperly interpret “raw medical data,” but, rather,

followed the requirements of the regulations.

30

(unpublished), Singleton v. Kijakazi, No. 9:21CV3922, 2023 WL

1784656, at *8 (D.S.C. Jan. 10, 2023) (unpublished), recommendation

adopted, 2023 WL 386824 (D.S.C. Jan. 25, 2023) (unpublished), and

Boyd v. Kijakazi, No. 1:21CV29, 2022 WL 949904, at *3 (E.D. Va.

Mar. 29, 2022) (unpublished)

As an initial matter, the facts in Singleton and Boyd

distinguish those cases from the instant matter. In each of those

cases, the ALJ failed to provide any analysis of the consistency of

the opinion in question, see Singleton, 2023 WL 1784656, at *7

(“Notably absent from the ALJ’s discussion is any consideration of

the consistency factor, which the new regulations require. This

was legal error.” (emphasis added)); Boyd, 2022 WL 949904, at *3

(“[T]he problem here is that the ALJ did not actually analyze or

even assert bare conclusion as to whether the other record

evidence was consistent with [the treating physician’s] opinion.”

(emphasis added)), whereas the ALJ here expressly concluded that

Dr. Hunt’s “opinion [wa]s not consistent with the totality of the

evidence pertaining to [Plaintiff’s] mental health, which

support[ed] no more than moderate limitations” (Tr. 58-59).

Moreover, although the ALJ in Moore did provide a consistency

finding by deeming a treating physician’s opinions “unsupported by

the weight of the evidence of record,” Moore, 2023 WL 2583225, at

*3, the court found that “the ALJ [] did not specifically connect

31

the record evidence she discussed elsewhere to [the treating

physician]’s opinion,” id. at *4.

In contrast to Moore, and considering the ALJ’s decision as a

whole, the Court can trace the path of the ALJ’s reasoning in

making his consistency finding. see McCartney v. Apfel, 28 F.

App’ x 277, 279-80 (4th Cir. 2002) (rejecting challenge to ALJ’s

finding for lack of sufficient detail where other discussion in

decision adequately supported finding and stating “that the ALJ

need only review medical evidence once in his decision”); Flythe v.

Berryhill, No. 1:17CV591, 2018 WL 4518690, at *6 (M.D.N.C. Sept.

20, 2018) (unpublished) (“[A]lthough the ALJ did not specify the

objective evidence that failed to support [a treating physician]’s

opinions in the same paragraph in which [the ALJ] weighed those

opinions, elsewhere in the ALJ’s decision, she detailed evidence

that did not support [the treating physician]’s extreme

limitations. That approach suffices.” (citing McCartney, 28 F.

App’ at 279-80) (internal parenthetical citations omitted),

recommendation adopted, No. 1:17CV591, 2019 WL 2336998 (M.D.N.C.

June 3, 2019) (unpublished) (Tilley S.J.); Kiernan v. Astrue, No.

3:12CV459, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013)

(unpublished) (observing that, where an “ALJ analyzes a claimant’s

medical evidence in one part of his decision, there is no

requirement that he rehash that discussion” in other parts of his

analysis).

32

The ALJ noted Plaintiff’s statement to Dr. Hunt that Plaintiff

had never received inpatient mental health treatment and had only

received outpatient mental health services as _a child (Tr. 57

(referencing Tr. 1088); see also Tr. 1088 (denying that he had ever

taken psychotropic medications)), and discussed the sole treatment

visit in the record where Plaintiff “presented with complaints of

depression” on January 29, 2021 (Tr. 57 (referencing Tr. 588)).

The ALJ then made the following, additional observations regarding

the medical evidence which support his finding that Dr. Hunt’s

opinions that Plaintiff had moderate to marked difficulty

interacting with others and tolerating stress lacked consistency

with the record:

□ On Plaintiff’s Function Report, he reported that

“he g[ot] rides from friends to get out and get

some fresh air” and “c[ould] grocery shop, but he

rlode] the scooter” (Tr. 52 (emphasis added)

(referencing Tr. 371);

□ Plaintiff testified that “he live[d] with a friend

that has six kids, ages 2, 6, 7, 8, 13, [and] 14,”

that “he help[ed] care for them, but he c[ould Jnot

play with them because of his back pain” (Tr. 54

(emphasis added) (referencing Tr. 91-93)), and that

a “friend brings [Plaintiff] food, or he goes [with

a friend] to the food pantry” (id. (emphasis added)

(referencing Tr. 90); and

° at primary care visits in October and November

2020, Plaintiff’s “affect and mood were normal”

(Tr. 56 (referencing Tr. 543, 549); see also Tr.

607 (same - Nov. 11, 2021), 615 (same - Sept. 14,

2021), 1044 (same - Jan. 18, 2022), 1099 (same -

Aug. 30, 2022), 1102 (same - Sept. 22, 2022), 1106

(same - October 17, 2022)).

33

That evidence, discussed by the ALJ prior to his evaluation of Dr.

Hunt’s opinions, helps elucidate the ALJ’s reasoning in finding

those opinions “not consistent with the totality of the evidence

pertaining to [Plaintiff’s] mental health” (Tr. 58-59).7!

Plaintiff disputes the Court’s ability to read the ALJ's

decision as a whole to ascertain whether he sufficiently supported

his finding that Dr. Hunt’s opinions lacked consistency with the

record. (See Docket Entry 12 at 5.) In that regard, Plaintiff

argues that Smith v. Astrue, 457 F. App’x 326 (4th Cir. 2011), and

McCartney both “involved an ALJ decision where the ALJ thoroughly

evaluated the evidence at step four [of the SEP], but not at step

three” (id. (citing Smith, 457 F. App’x at 328, and McCartney, 28

F. App’x at 279)), and that “[t]he new regulations [governing

evaluation of medical opinions] do not contemplate a ‘record as a

whole’ evaluation” (id. (citing 20 C.F.R. § 416.920c(b) (2))).

A neighboring district court recently and persuasively

rejected a similar argument:

[The p]laintiff argues that [McCartney and Kiernan] are

distinguishable from the present matter since they

concerned objections to step three of the [SEP], rather

than objections to the ALJ’s obligation to analyze the

persuasiveness of an opinion in step four. .. . The

[c]lourt disagrees. While it is true that the plaintiffs

in McCartney and Kiernan challenged each respective ALJ’s

analysis at step three of the [SEP], the reasoning in

'l The fact that Plaintiff did not take any psychiatric medications (see

Tr. 1088), did not attend therapy or receive inpatient mental treatment (see

id.), and only complained of depression at one treatment visit of record (see Tr.

588) necessarily limited the ALJ’s ability to cite to evidence in the record

inconsistent with Dr. Hunt’s opinions.

34

those opinions applies with equal force to the RFC

assessment [the p]laintiff challenges here. Notably, in

McCartney, the Fourth Circuit expressly affirmed the

district court’s ruling that an ALJ need only review

medical evidence once in his decision. Similarly,

although the district court in Kiernan held that there is

no requirement that the ALJ rehash his prior discussion

of the claimant’s medical evidence in his [s]tep [three]

analysis, the holding’s supporting logic — i.e., that an

ALJ’s discussion at one step can bolster the analysis at

another — applies readily here.

John R. v. Kijakazi, No. 2:22CV47, 2023 WL 2682358, at *4

(E.D. Va. Mar. 29, 2023) (unpublished) (internal quotation

marks, brackets, and citations omitted); see also Akinyele C.

v. Kijakazi, No. 4:22CV62, 2023 WL 3539431, at *5 n.7 (E.D.

Va. May 18, 2023) (unpublished) (“[T]he ALJ’s decision must

also be read and considered in its entirety. The ALJ’s

supportability and consistency analysis follows from the ALJ’s

earlier, more fulsome discussion of these same issues.”

(internal citation omitted)).

In light of the foregoing analysis, the ALJ did not err

in discounting the opinions of Dr. Hunt, and Plaintiff’s

second and final assignment of error thus provides no basis

for relief.

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III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, and that this action be

dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 29, 2024

36