# DAVIS v. O'MALLEY

> District Court, M.D. North Carolina · May 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10254513

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254513. Public record. Not legal advice.