WEBB v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BONNIE RANDALL WEBB, )

)

Plaintiff, )

)

v. ) 1:20CV714

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Bonnie Randall Webb, brought this action pursuant

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

a final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claim for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket

Entry 1.) Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 11, 13; see also Docket Entry

12 (Plaintiff’s Memorandum), Docket Entry 14 (Defendant’s

Memorandum); Docket Entry 15 (Plaintiff’s Reply); Docket Entry 16

(Plaintiff’s Suggestion of Subsequently Decided Authority)). For

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the 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).

the reasons that follow, the Court should enter judgment for

Defendant.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI (Tr. 310-23), alleging an

onset date of January 28, 2016 (see Tr. 310, 317). Upon denial of

those applications initially (Tr. 169-204, 248-67) and on

reconsideration (Tr. 205-44, 270-88), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 289-90).

Plaintiff, her non-attorney representative, and a vocational expert

(“VE”) attended the hearing. (Tr. 36-68.) The ALJ subsequently

ruled that Plaintiff did not qualify as disabled under the Act.

(Tr. 14-29.)2 The Appeals Council thereafter denied Plaintiff’s

request for review (Tr. 1-6, 307-09, 400-02), 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] meets the insured status requirements of

the . . . Act through December 31, 2017.

2. [Plaintiff] has not engaged in substantial gainful

activity since January 28, 2016, the alleged onset date.

2 The same ALJ denied Plaintiff’s previous applications for DIB and SSI on

February 1, 2016 (Tr. 148-64), the Appeals Council subsequently denied

Plaintiff’s request for review (see Tr. 171), and this Court thereafter affirmed

the Commissioner’s final decision denying benefits, see Webb v. Berryhill, No.

1:17CV341, 2018 WL 2198829 (M.D.N.C. May 14, 2018) (unpublished), recommendation

adopted, 2018 WL 2583113 (M.D.N.C. June 4, 2018) (unpublished) (Biggs, J.).

2

3. [Plaintiff] has the following severe impairments:

degenerative disc disease of the lumbar spine; bilateral

hip degenerative joint disease; hyperlipidemia; high

cholesterol; gastroesophageal reflux disease (GERD);

obesity; [and] depression.

. . .

4. [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.

. . .

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

capacity to perform light work . . . except she cannot

climb ladders, ropes, and/or scaffolds. She can

occasionally climb stairs and ramps. She must avoid

extreme temperatures. She must avoid concentrated

exposure to dust, fumes, etc. She must have a sit/stand

option and be able to change position once per hour for

five minutes at one time. She is limited to simple[,]

routine, repetitive tasks of unskilled work. She can

occasionally interact with the public, supervisors,

and/or coworkers. [Plaintiff] can stay on task two hours

at a time. She can never perform work involving

complex-decision making, crisis situations, or constant

changes in routine.

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

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

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [she] can perform.

. . .

3

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from January 28, 2016, through

the date of this decision.

(Tr. 20-29 (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,

3 The ALJ appears to have mistakenly described by finding that Plaintiff's

hyperlipidemia, high cholesterol, and GERD as both severe impairments and non-

severe impairments. (See Tr. 20.) Plaintiff, however, has not raised that

matter in any of her issues on review, and her arguments do not implicate those

impairments. (See Docket Entries 12, 15.)

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

U.S. 389, 390 (1971)). “It consists of more than a mere scintilla

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

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

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

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

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

quotation marks omitted).

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

undertake to re-weigh conflicting evidence, make credibility

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

adopted by the 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

5

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

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

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

(quoting 42 U.S.C. § 423(d)(1)(A)).4 “To regularize the

adjudicative process, the Social Security Administration 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. (internal citations omitted).

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

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

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

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

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

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

6

n.2 (4th Cir. 1999).5 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, the “claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.6 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. Id. at

179-80. However, if the claimant establishes an inability to

5 “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

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

6 “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

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the 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 567.7

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 failed to evaluate or explain how the

combination of [Plaintiff’s] obesity, degenerative lumbar disc

disease, and bilateral degenerative hip joint disease limited her

ability to function” (Docket Entry 12 at 8 (bold font and single-

spacing omitted); see also Docket Entry 15 at 1-7);

2) the ALJ erred in discounting the opinions of consultative

medical examiner Dr. Everett A. Bolz, in that “the ALJ only pointed

to the alleged vagueness of [Dr. Bolz’s] conclusions” and “fail[ed]

7 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

to comply with the Commissioner’s regulations” regarding the

evaluation of opinion evidence (Docket Entry 12 at 16 (bold font

and single-spacing omitted); see also Docket Entry 15 at 7-8); and

3) “[Plaintiff] is entitled to a new hearing on her 2013

applications because the ALJ was not a Constitutionally-appointed

officer at the time he denied [Plaintiff]’s prior applications”

(Docket Entry 12 at 19 (bold font and single-spacing omitted); see

also Docket Entry 15 at 8-10).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 11-20.)

1. RFC

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

ALJ failed to evaluate or explain how the combination of

[Plaintiff’s] obesity, degenerative lumbar disc disease, and

bilateral degenerative hip joint disease limited her ability to

function.” (Docket Entry 12 at 8 (bold font and single-spacing

omitted); see also Docket Entry 15 at 1-7.) In addition, Plaintiff

asserts that the ALJ failed to properly account for the combined

effect of Plaintiff’s obesity and other impairments in the RFC in

three respects: the ALJ 1) “failed to explain the connection

between [Plaintiff]’s obesity and the [RFC’s] imposed environmental

restrictions [of avoiding extreme temperatures and concentrated

exposure to dusts, fumes, etc.]” (Docket Entry 12 at 8-9 (citing

Tr. 20, 23, 25); see also Docket Entry 15 at 1), 2) “provide[d] no

9

explanation for how he arrived at [the five-minute] interval [every

hour in the sit/stand option], which he appear[ed] to have plucked

out of thin air” (Docket Entry 12 at 13; see also Docket Entry 15

at 2), and 3) “acknowledged that [Plaintiff]’s weight may affect

her ability to stand and walk for extended periods” (Docket Entry

12 at 10 (citing Tr. 21)), but did not “assess[] th[at]

obesity-related limitation when finding that [Plaintiff] could

perform light work, which requires ‘a good deal of walking or

standing’” (id. (citing Social Security Ruling 83-10, Titles II and

XVI: Determining the Capability to Do Other Work - The Medical-

Vocational Rules of Appendix 2, 1983 WL 31251 (1983) (“SSR 83-

10”)); see also Docket Entry 15 at 5). According to Plaintiff, the

ALJ’s errors in that regard prejudiced her because, “[i]f [she]

were limited to sedentary work as the result of her obesity, lumbar

degenerative disc disease and bilateral hip degenerative joint

disease, she would be disabled by application of Medical-Vocational

Rule 202.14 as a 50-year-old high-school graduate limited to

unskilled work when her disability began in 2016.” (Docket Entry

12 at 15-16 (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2,

§ 202.14).) Plaintiff’s contentions miss the mark.

a. Analysis of Combined Effect of Obesity and Other Impairments

Plaintiff maintains that “the ALJ did not discuss the combined

impact of [Plaintiff]’s degenerative disc disease, degenerative

joint disease, and obesity on her RFC, and did not mention these

impairments, or any other impairments, when discussing the impact

10

of her obesity on her other impairments.” (Docket Entry 12 at 12

(citing Tr. 25); see also Docket Entry 15 at 5.) Although

Plaintiff acknowledges “[t]hat the ALJ [] stated that he

‘considered the effects of obesity in combination with

[Plaintiff]’s other impairments’” (Docket Entry 12 at 11 (quoting

Tr. 25)), Plaintiff argues that such a statement “is not a

discussion or an explanation,” but “just an unsupported statement”

(id.; see also Docket Entry 15 at 2). According to Plaintiff,

“[t]he Commissioner recognizes that the combined effects of obesity

with another impairment may be greater than each of the impairments

separately and that someone with obesity and arthritis affecting a

weight-bearing joint may have more pain and functional limitations

than she would with arthritis alone.” (Docket Entry 12 at 11

(citing Social Security Ruling 19-2p, Titles II and XVI: Evaluating

Cases Involving Obesity, 2019 WL 2374244, at *4 (May 20, 2019)

(“SSR 19-2p”), and noting that “ALJ applied [Social Security Ruling

02-1p, Titles II and XVI: Evaluation of Obesity, 2002 WL 34686281

(Sept. 12, 2002) (‘SSR 02-1p’)] ([Tr.] 25), but [that] both

[R]ulings recognize the exacerbating effect that obesity has on

weight-bearing joints”).) Plaintiff argues that the ALJ’s failure

to evaluate the combined effects of Plaintiff’s obesity and other

impairments precludes the Court from “determin[ing] whether

. . . [the ALJ’s] findings are supported by substantial evidence.”

(Id. at 12.)

11

A well-reasoned decision from a neighboring court addresses an

ALJ’s obligation to consider the combined effect of a claimant’s

impairments:

When dealing with a claimant with multiple impairments,

the Commissioner must consider the combined effect of a

claimant’s impairments and not fragmentize them.” Walker

v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (citing

Reichenbach v. Heckler, 808 F.2d 309 (4th Cir. 1985)[)].

This requires the ALJ to “adequately explain his or her

evaluation of the combined effects of the impairments.”

id. The ALJ’s duty to consider the combined effects of

a claimant’s multiple impairments is not limited to one

particular aspect of review, but is to continue

“throughout the disability determination process.” 20

C.F.R. § 404.1523.

Following the Walker decision, the Fourth Circuit has

provided little elaboration on what constitutes an

“adequate” combined effect analysis. .. . In an

unpublished opinion decided after Walker, the Fourth

Circuit . . . found that the district court “correctly

determined that the ALJ had adequately explained his

evaluation of the combined effect of [the claimant’s]

impairments.” [Green v. Chater, 64 F.3d 657, 1995 WL

478032, at *3 (4th Cir. 1995) (unpublished) In

reaching this conclusion, the court focused on the ALJ’s

conclusory statement that he had considered all of the

claimant’s impairments, both singularly and in

combination and then noted evidence that was consistent

with this conclusion. Id. This evidence consisted of

(1) the ALJ’s finding that the claimant’s combination of

impairments precluded heavy lifting; (2) the ALJ's

listing and consideration of each of the alleged

impairments; and (3) the ALJ’s finding that many of the

claimant’s symptoms were treatable. id. Thus, this

limited threshold for an “adequate” combined effect

analysis suggests that “Walker was not meant to be used

as a trap for the Commissioner.” Brown v. Astrue,

O0:10CV1584, 2012 WL 3716792, at *6 (D.S.C. Aug. 28,

2012). “Accordingly, the adequacy requirement of Walker

is met if it is clear from the decision as a whole that

the ALJ considered the combined effect of a claimant’s

impairments.” Id.

12

Williams v. Colvin, No. 6:11CV2344, 2013 WL 877128, at *2 (D.S.C.

Mar. 8, 2013) (unpublished) (footnote omitted).

Here, at step three, the ALJ expressly found that Plaintiff

did “not have an impairment or combination of impairments that

me[t] or medically equal[ed] the severity of one of the listed

impairments.” (Tr. 20 (bold font omitted) (underscoring added) .)

Concerning Plaintiff’s obesity in particular, the ALJ provided the

following analysis, which clearly demonstrates that the ALJ

considered Plaintiff’s obesity in combination with her other

impairments:

[Plaintiff]’s physical condition is compounded by her

diagnosis of obesity. Because [Plaintiff] is 5’3” tall,

at times weighed 185 pounds, and had a body mass index

(BMI) over 30, she is considered “obese.” While there no

longer is a listing for obesity, [Plaintiff]’s weight has

been carefully considered within the parameters of [SSR]

02-Olp (see also Listings 1.000, 3.001 and 4.001). While

[Plaintiff]’s weight may affect her ability to stand and

walk for extended periods, in light of the objective

findings, it does not reasonably appear that the extent

of her obesity, even when considered in combination with

her other documented impairments, meets or equals a

listed impairment. On one occasion, [Plaintiff]’s

treatment provider recommended she use a single-point

cane. However, [Plaintiff] did not appear at her medical

appointments with a cane. Moreover, [Plaintiff]

reported she does not need a companion to accompany her

when she leaves her home. In this case, [Plaintiff]’s

weight does not appear to reduce her functioning to the

severity level contemplated by any listing[.]

(Tr. 21 (emphasis added) (internal parenthetical citations

omitted) .)

Moreover, in conjunction with the RFC determination, the ALJ

stated that he had “considered all symptoms and the extent to which

13

these symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence” (Tr. 23 (emphasis

added)), discussed the evidence with regard to Plaintiff’s lumbar

degenerative disc disease, hip degenerative joint disease, and

obesity (see Tr. 23-25), and again noted that he had “considered

the effects of obesity in combination with [Plaintiff’s] other

impairments” (Tr. 25 (emphasis added)). That analysis suffices.

See Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (“The

ALJ stated that he considered all of [the plaintiff’s] symptoms in

assessing her RFC. Our general practice, which we see no reason to

depart from here, is to take a lower tribunal at its word when it

declares that it has considered a matter. Furthermore, the ALJ’s

discussion of the evidence and his reasons for his conclusions

demonstrate that he considered all of [the plaintiff]’s

impairments.” (internal citations, quotation marks, and brackets

omitted)); Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992)

(“After separately discussing [the plaintiff’s] physical

impairments, affective disorder, and complaints of pain, as well as

her daily level of activities, the ALJ found that her impairments

d[id] not prevent [her] from performing her past relevant work. To

require a more elaborate articulation of the ALJ’s thought

processes would not be reasonable.” (internal quotation marks

omitted)); Gooch v. Secretary, Health & Human Servs., 833 F.2d 589,

592 (6th Cir. 1987) (“[T]he fact that each element of the record

was discussed individually hardly suggests that the totality of the

14

record was not considered, particularly in view of the fact that

the ALJ specifically referred to ‘a combination of impairments’ in

deciding that [the plaintiff] did not meet the ‘listings.’”);

Wilson-Coleman v. Colvin, No. 1:11CV726, 2013 WL 6018780, at *3

(M.D.N.C. Nov. 12, 2013) (unpublished) (Webster, M.J.) (concluding

that “sufficient consideration of the combined effects of a

claimant’s impairments is shown when each is separately discussed

in the ALJ’s decision, including discussion of a claimant’s

complaints of pain and level of daily activities” (internal

brackets omitted)), recommendation adopted, slip op. (M.D.N.C. Dec.

6, 2013) (Schroeder, J.); Jones v. Astrue, No. 5:07CV452, 2009 WL

455414, at *15 (E.D.N.C. Feb. 23, 2009) (unpublished) (noting that

ALJ’s RFC assessment and summarization of medical records as to

each impairment indicated ALJ “considered all of [the c]laimant’s

mental and physical limitations together”).

b. Accounting for Effects of Obesity in RFC

Plaintiff next faults the ALJ for “fail[ing] to explain the

connection between [Plaintiff]’s obesity and the [RFC’s] imposed

environmental restrictions.” (Docket Entry 12 at 8-9 (citing Tr.

20, 23, 25); see also Docket Entry 15 at 1.) In that regard,

Plaintiff challenges the ALJ’s observation “that [Plaintiff]’s

‘treatment providers’ did not attribute any functional limitations

to her weight” (Docket Entry 12 at 9 (quoting Tr. 25) (footnote

omitted)), pointing out that “none of her ‘treatment providers’

imposed any functional limitations concerning any physical

15

impairment” (id. (citing Parker v. Astrue, No. 8:09CV1177, 2010 WL

1836818, at *3 (M.D. Fla. May 3, 2010) (unpublished) (“[T]he

absence of a statement regarding functional limitations from

obesity does not warrant an inference that there were none.”)); see

also Docket Entry 15 at 3-4). Plaintiff further contends that the

ALJ’s remark “[t]hat [Plaintiff] did not use a single-point cane at

medical appointments, despite a treatment provider’s

recommendation, and did not need a companion to accompany her when

she le[ft] home[,] d[id] not explain why the ALJ imposed only

environmental limitations as the result of [Plaintiff’s] obesity.”

(Docket Entry 12 at 10 (citing Tr. 21).)

Consideration of the ALJ’s discussion immediately preceding

his evaluation of Plaintiff’s obesity dispels her argument that the

ALJ “failed to explain the connection between [Plaintiff]’s obesity

and the imposed environmental restrictions” in the RFC (Docket

Entry 12 at 8-9 (citing Tr. 20, 23, 25)). (See Tr. 24-25.) The

ALJ explained his physical RFC determination as follows:

Upon examination, [Plaintiff] at times displayed an

antalgic gait. Yet, on other occasions treatment

providers noted her gait was normal. Similarly,

straight-leg raising tests were at times positive.

However, she consistently had 5/5 strength in the lower

extremities. During the relevant period, [Plaintiff] did

not seek emergency treatment and was not hospitalized due

to her back condition. Lastly, the record does not

reflect she is a candidate for lumbar spine surgery.

Accordingly, the [ALJ] accommodated [Plaintiff]’s lumbar

spine impairment by limiting her to light work, never

climbing ladders, ropes, or scaffolds, and having the

option to alternate between sitting and standing.

16

In terms of [Plaintiff]’s hip, she complained of

difficulty laying on her side, and pain increased with

various activities. An x-ray of her hips showed moderate

joint-space narrowing and acetabular spurring of the

right hip. A prior imaging study showed moderately

advanced degenerative joint disease of the left hip.

Like her lower back, [Plaintiff] underwent trochanteric

bursa injections. Nevertheless, examinations of

[Plaintiff]’s hips at times noted decreased range of

motion. [Plaintiff] reported that her hip symptoms

improved following the injection. The [ALJ] accommodated

[Plaintiff]’s hip impairment by limiting her to light

work with the option to alternate between sitting and

standing.

The [ALJ] also considered how [Plaintiff]’s weight

affects her ability to perform routine movements and

necessary physical activity within the work environment

(SSR 02-lp). Furthermore, the [ALJ] considered the

effects of obesity in combination with [Plaintiff’s]

other impairments. [Plaintiff]’s BMI was often around

32. Her treatment providers did not attribute any

functional limitations to her weight. Although her

medical providers recommended a healthier diet and

exercise, they never recommended that [Plaintiff] explore

more intensive weight loss measures such as surgery. In

consideration of this impairment, the [ALJ] limited

[Plaintiff] to avoiding extreme temperatures and

concentrated exposure to dusts, fumes, etc.

(Tr. 24-25 (emphasis added) (certain internal parenthetical

citations omitted).) In other words, the ALJ had already limited

Plaintiff to light work with a sit/stand option and precluded the

climbing of ladders, ropes, and scaffolds to account for her back

and hip impairments. (See id.) The ALJ thereafter explained that,

because Plaintiff’s Body Mass Index (“BMI”) remained about 32,8 and

because her “treatment providers did not attribute any functional

8 That score falls within the obesity Class I, the lowest of three Classes. See

SSR 02-1p, 2002 WL 3468681, at *2; see also https://www.cdc.gov/

obesity/adult/defining.html (last visited Nov. 3, 2021).

17

limitations to her weight” or “recommend[] . . . intensive weight

loss measures such as surgery,” the ALJ added only environmental

restrictions to the RFC to accommodate Plaintiff’s obesity (Tr.

25).° Moreover, contrary to Plaintiff’s assertions (see Docket

Entry 12 at 10), the ALJ’s observations that “[Plaintiff] did not

appear at her medical appointments with a cane” and “reported she

does not need a companion to accompany her when she leaves her

home” (Tr. 21) bear relevance to the impact of Plaintiff’s obesity

on her ability to stand, walk, and balance.

Plaintiff’s reliance on Parker to rebuff the ALJ’s observation

that no treatment providers offered restrictions arising out of

Plaintiff’s obesity falls short. (See Docket Entry 12 at 9 (citing

Tr. 25); see also Docket Entry 15 at 3-4.) In Parker, the

plaintiff “st[ood] 5’9” and weigh[ed] about 292-295 pounds,”

placing him in the classification “morbidly obese,” but the ALJ

“did not even mention the plaintiff’s weight and height, and, more

significantly, did not evaluate an impairment of obesity.” Parker,

° De. Bolz assessed Plaintiff with, inter alia, “[u]Jncontrolled hypertension” and

“[mjild asthma.” (Tr. 433.) In turn, the initial-level state agency medical

consultant precluded concentrated exposure to extreme temperatures and pulmonary

irritants (see Tr. 181, 199), and the reconsideration-level consultant precluded

concentrated exposure to pulmonary irritants (see Tr. 219, 239) to account for

Plaintiff’s hypertension and asthma (see Tr. 181, 199, 219, 239). The ALJ

subsequently credited the consultants’ environmental restrictions (see Tr. 25-

26), although, as discussed above, the ALJ attributed his environmental

restrictions to Plaintiff’s obesity (see Tr. 25). That attribution, however,

makes sense because, although the ALJ did not find hypertension and asthma to

constitute medically determinable impairments (see Tr. 20), SSR 02-lp expressly

recognizes that “obesity affects the cardiovascular and respiratory systems

because of the increased workload the additional body mass places on these

systems,” SSR O02-p, 2002 WL 34686281, at *5 (emphasis added), and further

observes that “[t]he ability to tolerate extreme heat, humidity, or hazards may

also be affected,” id. at *6 (emphasis added).

18

2010 WL 1836818, at *2. As a result, the court rejected the

Commissioner’s “harmless error argument” that no providers had set

forth any obesity restrictions, because the “court [wa]s not

authorized to undertake an assessment of the plaintiff’s obesity”

in the absence of such an analysis by the ALJ. Id. at *3.

Here, the ALJ found Plaintiff’s obesity a severe impairment

(see Tr. 20), and provided an analysis of how he accounted for

obesity in the RFC (see Tr. 25). Under such circumstances, the ALJ

did not err by noting the absence of any proffered functional

restrictions arising from Plaintiff’s obesity (see Tr. 25). See

Longworth v. Commissioner, Soc. Sec. Admin., 402 F.3d 591, 596 (6th

Cir. 2005) (“[A] lack of physical restrictions constitutes

substantial evidence for a finding of non-disability.”); Brown v.

Chater, 87 F.3d 963, 965 (8th Cir. 1996) (finding that lack of

restrictions by treating physician supported ALJ determination that

the plaintiff did not qualify as disabled); Dumas v. Schweiker, 712

F.2d 1545, 1553 (2d Cir. 1983) (holding that ALJ “is entitled to

rely not only on what the record says, but also on what it does not

say”); Elrod v. Berryhill, No. 1:16CV1171, 2017 WL 3976626, at *10

(M.D.N.C. Sept. 7, 2017) (unpublished) (Webster, M.J.) (finding

“ALJ’s RFC determination [] supported by reports of physicians

referencing [the p]laintiff’s obesity, but none of them explaining

or acknowledging any functional limitations as a result of [the

pllaintiff’s weight”), recommendation adopted, 2018 WL 1449517

(M.D.N.C. Mar. 23, 2018) (unpublished) (Tilley, S.J.); Stukes v.

19

Calvin, No. 8:14CV1305, 2015 WL 5231870, at *19 (D.S.C. Sept. 8,

2015) (magistrate judge’s opinion adopted by district judge)

(rejecting the plaintiff’s argument that ALJ should not have

considered lack of treating provider restrictions because the

plaintiff “was nearing retirement[ and] her treating physicians

would not have made findings related to RFC,” and noting that the

“p]laintiff b[ore] the burden of establishing her inability to

work”).

Next, Plaintiff contends that the ALJ “provide[d] no

explanation for how he arrived at th[e five-minute] interval {every

hour in the sit/stand option], which he appear[ed] to have plucked

out of thin air.” (Docket Entry 12 at 13 (citing Tr. 24); see also

Docket Entry 15 at 2.) In support of that argument, Plaintiff

takes issues with many of the ALJ’s observations regarding the

objective medical evidence, none of which carry the day. (See

Docket Entry 12 at 13-15; see also Docket Entry 15 at 2-3.)

First, Plaintiff challenges the ALJ’s observation “that

sometimes [Plaintiff] had an antalgic gait and sometimes did not”

(Docket Entry 12 at 13 (citing Tr. 24)), arguing that “the record

reveals that more often than not, she did” (id. (citing Tr. 406,

412, 415, 433, 491, 518, 550, 641, 664, 703, 819 (antalgic gait);

403, 441, 573, 613, 872, 951 (non-antalgic gait))), and noting that

“joint pain ‘usually is activity related’ and can wax and wane”

(id. (citing https://www.healthcentral.com/condition/degenerative-

joint-disease (last visited Feb. 25, 2021)); see also Docket Entry

20

15 at 2). As an initial matter, many of the transcript pages upon

which Plaintiff relies reflect either findings prior to Plaintiff’s

alleged onset date (see Tr. 412/664 (10/2/15), 415/703 (7/17/15)),

or constitute duplicate records of an earlier page citation (see

Tr. 573 (duplicate of 441), 613 (duplicate of 403), 641 (duplicate

of 406), 664 (duplicate of 412), 703 (duplicate of 415), 819

(duplicate of 550)). Thus, the record actually reflects five

findings of antalgic gait (see Tr. 406, 433, 491, 518, 550) and

four findings of non-antalgic gait (see Tr. 403, 441, 872, 951)

during the relevant period. Accordingly, the ALJ did not err in

stating that Plaintiff “at times displayed an antalgic gait[; y]et,

on other occasions treatment providers noted her gait was normal.”

(Tr. 24 (emphasis added).)

Plaintiff next contends that “[t]he ALJ note[d] that[,] on one

occasion[, Plaintiff] walked well without any assistive device, but

fail[ed] to note that[,] at the same exam, she had right hip pain

with flexion” (Docket Entry 12 at 13 (citing Tr. 24, 872) (footnote

omitted)) “or that Dr. Bolz documented decreased hip flexion” (id.

at 14 (citing Tr. 435)), which would “impact[] [Plaintiff’s]

ability to walk” (id.). Plaintiff’s argument fails because it

glosses over the ALJ’s subsequent discussion of Plaintiff’s hip

impairment, in which he acknowledged Plaintiff’s complaints of hip

pain and expressly observed that “examinations of [Plaintiff]’s

21

hips at times noted decreased range of motion” (Tr. 24 (emphasis

added) (citing Tr. 435 (Dr. Bolz’s range of motion chart)).*°

Plaintiff additionally contests “the ALJ[’s] not[ation] that

straight-leg-raising tests [(‘SLR’)] were ‘at times’ positive”

(Docket Entry 12 at 14 (citing Tr. 24)), pointing out that “every

time they were assessed, they were positive” (id. (citing Tr. 403,

406, 412, 415, 421, 432, 491, 613, 641, 664, 703, 734, 766, 1032);

see also Docket Entry 15 at 5). Although Plaintiff correctly

observes that each SLR test in the record reflects a positive

finding (see Docket Entry 12 at 14), she fails to acknowledge that

examinations exist in the record that lack any SLR findings at all

(see, e.g., Tr. 441, 550, 518, 1032, 872, 951). Thus, the ALJ did

not err in stating that SLR tests “were at times positive” (Tr. 24

(emphasis added)).

Plaintiff also faults the ALJ for relying on Plaintiff

“*Yconsistently’ having 5/5 strength in her lower extremities” and

the “lack of emergency treatment or hospitalization” to “justify

the RFC,” contending that such findings “say[] nothing about the

pain that her degenerative diseases and obesity would cause when

weight-bearing for 55 minutes at a time.” (Docket Entry 12 at 14

(citing Tr. 24); see also Docket Entry 15 at 2-3.) The ALJ’s

observation that Plaintiff consistently retained full strength in

her lower extremities (see Tr. 24) supports the ALJ’s decision to

10 The record contains two treatment notes reflecting the observation that

Plaintiff “walk[ed] well without an assistive device.” (Tr. 872, 951.)

22

limit Plaintiff to light as opposed to sedentary work, as well as

his inclusion of only a once-per-hour sit/stand option (see Tr.

23). Furthermore, contrary to Plaintiff’s assertions, the absence

of emergency treatment for Plaintiff’s back, leg, and hip pain

reflects upon the severity of such pain. See Dukes v. Barnhart,

436 F.3d 923, 928 (8th Cir. 2006) (deeming “absence of

hospitalizations” . . . during relevant period properly considered

in determining severity of symptoms); Maravel v. Saul, No.

1:20CV624, 2021 WL 1751936, at *14 (M.D.N.C. May 4, 2021)

(unpublished) (holding that lack of recent psychiatric inpatient

hospitalizations “bear[s] relevance to the ALJ’s assessment of the

continuing severity of [the p]laintiff’s symptoms”), recommendation

adopted, 2021 WL 3361924 (M.D.N.C. June 2, 2021) (unpublished)

(Eagles, J.), appeal filed, No. 21-1835 (4th Cir. Aug. 2, 2021);

McCullough v. Commissioner of Soc. Sec., No. 2:17CV56, 2018 WL

2269910, at *6 (E.D. Wash. May 17, 2018) (unpublished) (finding

“reasonable” ALJ’s reliance on medical expert’s “testimony

regarding [the p]laintiff’s lack of emergency treatment for her

migraines as powerful evidence regarding the extent to which she

was in pain” (internal quotation marks omitted)); Jones v. Colvin,

No. 5:12CV72, 2013 WL 5964565, at *5 (W.D. Va. Nov. 8, 2013)

(unpublished) (determining that ALJ did not err in considering the

plaintiff’s “lack of hospitalization” in assessing the severity of

her symptoms, and noting that “[a]n absence of severe flare-ups in

23

a claimant’s condition is certainly relevant in determining its

overall severity”).

Next, Plaintiff objects to the ALJ’s remark “that [Plaintiff

wa]s [not] a candidate for lumbar spine surgery” (Docket Entry 12

at 14 (citing Tr. 24)), “without acknowledging that Dr. Bolz

concluded that [Plaintiff’s] prognosis was poor without surgical

intervention” (id. (citing Tr. 434)). As an initial matter, the

fact that none of Plaintiff’s treating providers recommended

surgical options for her back and hip impairments (see Tr. 430)

holds relevance to the severity of those impairments, see David M.

v. Commissioner of Soc. Sec., Civ. No. C20-1668, 2021 WL 4439480,

at *2 (W.D. Wash. Sept. 28, 2021) (unpublished) (rejecting the

plaintiff’s “argu[ment] that the ALJ erred in emphasizing that [the

plaintiff’s] condition did not warrant surgery,” noting that “[the

p]laintiff ha[d] not shown that the ALJ . . . erred in considering

th[at] type of evidence when evaluating [the plaintiff’s]

allegations” (citing 20 C.F.R. § 416.929(c)(3))), and thus the ALJ

did not err in relying on that fact to support the RFC. Moreover,

the ALJ accorded “little weight” to Dr. Bolz’s opinions (Tr. 27)

and, for the reasons detailed in connection with Plaintiff’s second

assignment of error, the ALJ did not err in so doing.

Additionally, Plaintiff criticizes the ALJ’s notation “that

[Plaintiff] reported her hip pain improved following injections in

late 2018” (Docket Entry 12 at 14 (citing Tr. 24, 1143)), because

the ALJ “fail[ed] to acknowledge that[,] at the same exam[,

24

Plaintiff’s] overall pain was 5/10, or moderate” (id. at 15 (citing

Tr. 1143, 1170)), “or that her pain still interfered with her

walking ability, 7/10; general activity, 8/10; sleep, 9/10; and

ability to concentrate, 8/10” (id. (citing Tr. 1171); see also

Docket Entry 15 at 3). As a threshold matter, the ALJ indicated

that he considered the entire record, as well as evaluated all of

Plaintiff’s symptoms (see Tr. 23), and labored under no obligation

to discuss every piece of evidence in the record, see Reid v.

Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)

(quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).

Furthermore, the ALJ clearly acknowledged Plaintiff’s hip pain, as

he found Plaintiff’s bilateral hip degenerative joint disease a

severe impairment (see Tr. 20), discussed the imaging results

confirming that diagnosis (see Tr. 24), recognized that Plaintiff

had experienced decreased hip range of motion (see id.), and

limited Plaintiff to light exertion work with a sit/stand option to

accommodate Plaintiff’s hip symptoms (see id.; see also Tr. 23).

Furthermore, the record belies Plaintiff’s contention that,

“[wlhile the injections may have improved [Plaintiff]’s hip pain,

there is no evidence that her back and bilateral lower limb pain

secondary to the L3-4 radiculopathy improved long term.” (Docket

Entry 12 at 15 (emphasis added) (citing Tr. 403, 406, 412, 415,

421, 441, 487, 515, 550, 573, 613, 641, 664, 703, 734, 766, 819,

908, 987).) Beginning in June 2018, Plaintiff reported significant

improvement in her lower back pain following transforaminal

25

epidural steroid injections (see Tr. 950, 987), which improvement

continued following a second set of injections in August 2018 (see

Tr. 871, 908), resulting in her pain management provider remarking

in September 2018 that the “goal should be to wean opioids as

[Plaintiff’s] back issues have improved” (Tr. 831 (emphasis

added)). At a follow-up visit in November 2018, Plaintiff reported

that her hip pain had improved significantly and that she had “no

other pain issues,” which led to her provider opining that he

“d[id] not think chronic opioids [we]re indicated any further.”

(Tr. 1143 (emphasis added) .)

Plaintiff further maintains that, although “the ALJ even

acknowledged that [Plaintiff]’s weight m[ight] affect her ability

to stand and walk for extended periods” (Docket Entry 12 at 10

(citing Tr. 21)), the ALJ did not “assess[] th[at] obesity-related

limitation when finding that [Plaintiff] could perform light work,

which requires ‘a good deal of walking or standing’” (id. (quoting

Social Security Ruling 83-10, Titles IT and XVI: Determining

Capability to Do Other Work - The Medical-Vocational Rules of

Appendix 2, 1983 WL 31251 (1983) (“SSR 83-10%)); see also Docket

Entry 15 at 2). Notably, however, the ALJ’s observation that

Plaintiff’s “weight may affect her ability to stand and walk for

extended periods” (Tr. 21 (emphasis added)) does not constitute a

finding that Plaintiff’s obesity precluded her from standing and/or

walking for extended periods. No inconsistency thus exists between

that observation and the light-exertion RFC, particularly given

26

that the ALJ found Plaintiff’s subjective report that she remained

“unable to stand or walk for over 20 minutes” (Tr. 23; see also Tr.

42) “not entirely consistent” with the evidence of record (Tr. 24),

a finding unchallenged by Plaintiff (see Docket Entries 12, 15).

In sum, Plaintiff’s first issue on review fails as a matter of

law.

2. Opinions of Dr. Bolz

Plaintiff next asserts that the ALJ erred in discounting the

opinions of Dr. Bolz, in that “the ALJ only pointed to the alleged

vagueness of [Dr. Bolz’s] conclusions,” and “fail[ed] to comply

with the Commissioner’s regulations” regarding the evaluation of

opinion evidence. (Docket Entry 12 at 16 (bold font and single-

spacing omitted); see also Docket Entry 15 at 7-8.) In particular,

Plaintiff deems the ALJ’s criticism that Dr. Bolz failed to

“‘explain the degree of limitation’ he imposed” (Docket Entry 12 at

17 (quoting Tr. 27)) “contrary to the Commissioner’s regulations,

which require the ALJ to weigh medical-source opinions based upon

their support, consistency, and the examining relationship, and not

on whether they provide specific limitations” (id. (citing 20

C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6))). Moreover,

although Plaintiff acknowledges that the term used by Dr. Bolz,

“moderately severely impaired,” does not qualify as a “specific

limitation,” (id. (quoting Tr. 434)), she argues that “neither are

the terms that the [SSA] consultants and the ALJ routinely use —

27

‘moderate,’ ‘mild,’ or ‘marked’ — to describe degrees of mental

limitations” (id.), noting that “[t]he ALJ had trouble

translating th[e] moderate findings [in the paragraph B criteria at

step three] into specific limitations” (id. at 18 (citing Tr. 21-

23); see also Docket Entry 15 at 8). Plaintiff’s arguments do not

establish entitlement to reversal or remand.

Consultative examiners like Dr. Bolz do not constitute

treating sources under the regulations, see 20 C.F.R.

S§ 404.1527 (c) (2), 416.927 (c) (2), and thus their opinions, as a

general proposition, do not warrant controlling weight, Turberville

v. Colvin, No. 1:11CV262, 2014 WL 1671582, at *6 (M.D.N.C. Apr. 23,

2014) (unpublished), recommendation adopted, slip op. (M.D.N.C. May

15, 2014) (Hagles, J.). However, the ALJ must nevertheless

evaluate consultative opinions using the factors outlined in the

regulations, and expressly indicate and explain the weight he or

she affords to such opinions. See 20 C.F.R. §$§$ 404.1527 (c),

416.927 (“Regardless of its source, [the ALJ] will evaluate

every medical opinion [he or she] receive[s]” and, where an opinion

does not warrant controlling weight, the ALJ must “consider all of

the . . . factors [in 20 C.F.R. § 416.927 (c) (1)-(6)] in deciding

the weight [to] give to any medical opinion.” (emphasis added));

Social Security Ruling 96-5p, Medical Source Opinions on Issues

Reserved to the Commissioner, 1996 WL 374183, at *5 (July 2, 1996)

(“SSR 96-5p”) (noting that ALJs “must weigh medical source

28

statements . . . [and] provid[e] appropriate explanations for

accepting or rejecting such opinions” (emphasis added)).

On March 27, 2017, Dr. Bolz conducted a consultative medical

examination of Plaintiff (Tr. 430-35), reporting Plaintiff’s

diagnoses as “[s]ignificant lumber spine disease, particularly at

L5 on the right,” “[l]left sacroiliitis,” “[h]istory of radicular

pain in the right leg and foot,” “[b]lilateral arthritis of the

hips,” “[mJild asthma,” “[u]ncontrolled hypertension,” and “[l]left

carpal tunnel syndrome” (Tr. 433). On examination, Dr. Bolz noted

that Plaintiff “appear[ed] comfortable sitting” (Tr. 432), did not

use an assistive device (see id.), displayed 5/5 strength in all

tested muscles (see Tr. 433), had good pedal pulses (id.), showed

intact sensation and coordination (id.), and lacked lumbar spasm

(see Tr. 432) or edema (see Tr. 433). On the other hand, Dr. Bolz

detected “exquisite tenderness” in Plaintiff’s paraspinal muscles

at L5 on the right and in her left sacroiliac joint (Tr. 432),

recorded positive SLR tests at 50 degrees on the right and 45

degrees on the left (see id.), observed pain with hip range of

motion and an antalgic gait on both legs (see Tr. 433), remarked

that Plaintiff could only squat “half-way” with support and could

“barely” heel and toe walk (id.), and documented decreased range of

motion in Plaintiff’s thoracolumbar spine, hips, and knees (see Tr.

435). Ultimately, Dr. Bolz rated Plaintiff’s prognosis as “[p]loor,

without surgical intervention” and concluded that her “ability to

perform work-related activities such as bending, stooping, lifting,

29

walking, crawling, squatting, carrying, traveling, pushing and

pulling heavy objects, as well as the ability to hear and speak,

appear[ed] to be moderately severely impaired due to the sum of the

findings [in his report].” (Tr. 434 (emphasis added) .)

The ALJ evaluated and weighed Dr. Bolz’s opinions as follows:

The [ALJ] gives little weight to the opinion [of Dr.

Bolz]. Dr. Bolz opined [Plaintiff]’s ability to perform

work-related activities such as bending, stooping,

lifting, walking, crawling, squatting, carrying,

traveling, pushing and pulling heavy objects, hearing,

and speaking are moderately severely impaired. Similar

to [consultative psychological examiner] Dr. [Gregory A.]

Villarosa’s opinion, Dr. Bolz does not explain the degree

of limitation in the above functional activities.

Accordingly, his opinion provides little insight into

[Plaintiff]’s longitudinal abilities and the undersigned

gives it little weight.

(Tr. 27 (emphasis added) (internal citation omitted) .)

The ALJ did not err by discounting Dr. Bolz’s opinion as

lacking an explanation of “the degree of limitation” and as

“provid[ing] little insight into [Plaintiff’s ] abilities” (id.).

As an initial matter, Dr. Bolz lumped all of the exertional,

postural, and communicative “work-related activities” together as

equally impaired (Tr. 434); yet, he did not explain the basis for

the impairment of Plaintiff’s ability to hear and speak (see id.),

and his examination reflected normal hearing (see Tr. 432) and no

findings regarding speech (see Tr. 431-33). Moreover, Dr. Bolz

equivocated by opining that all of Plaintiff’s listed abilities

“appear[ed] to be moderately severely impaired” (Tr. 434 (emphasis

added)), which falls short of affirmatively stating the degree of

30

Plaintiff’s limitations. Additionally, the ALJ correctly observed

that Dr. Bolz provided no explanation as to how a “moderately

severe[] impair[ment]” translates into actual functional

restrictions (Tr. 434). See Lamb v. Saul, No. 2:19CV26, 2020 WL

6391097, at *4 (E.D.N.C. July 6, 2020) (unpublished) (finding no

error in ALJ’s decision to accord consultative psychological

examiner’s opinion little weight, in part, because “it is vague as

to specific functional limitations or their degree”),

recommendation adopted, 2020 WL 4784699 (E.D.N.C. Aug. 18, 2020)

(unpublished); Hadley v. Berryhill, No. 3:18CV1190, 2019 WL

1063401, at *14 (S.D.W. Va. Feb. 13, 2019) (unpublished) (affirming

ALJ’s discounting of consultative medical examiner’s opinion that

the plaintiff’s “ability in performing bending, stooping, lifting,

walking, crawling, squatting, carrying, traveling, and pushing and

pulling heavy objects was ‘moderately impaired,’” noting that “ALJ

[wa]s correct that the opinion provides nothing more with respect

to what [the plaintiff] can still do despite [her] impairments” and

that, “[i]n addition to her burden of showing she has a medically

determinable impairment, [the plaintiff] must demonstrate ‘a

showing of related functional loss’” (citing Gross v. Heckler, 785

F.2d 1163, 1166 (4th Cir. 1986))), recommendation adopted, 2019 WL

1061676 (S.D.W. Va. Mar. 6, 2019) (unpublished).

Plaintiff’s attempt to analogize the mental listing rating of

“moderate” to Dr. Bolz’s finding of “moderately severely impaired”

misses the mark. (See Docket Entry 12 at 17-18; see also Docket

31

Entry 15 at 8).) The paragraph B criteria of the mental listings

uses a 5-point scale to rate the degree of limitation in areas of

mental functioning – none, mild, moderate, marked, and extreme.

See 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). As relevant

here, the regulations define a “moderate” limitation as “fair”

ability to function “independently, appropriately, effectively, and

on a sustained basis,” 20 C.F.R. Pt. 404, Subpt. P, App’x 1,

§ 12.00F.2.c., and define a “marked” limitation as “seriously

limited” ability to function “independently, appropriately,

effectively, and on a sustained basis,” id., § 12.00F.2.d. In

contrast, Dr. Bolz did not provide any guidance as to the degree of

limitation he intended by finding Plaintiff’s abilities “moderately

severely impaired,” and his use of compound adverbs further muddied

the waters. (Tr. 434.)

Plaintiff contends that the ALJ did not make any findings as

to the supportability or consistency with the record of Dr. Bolz’s

opinion, as required by the applicable regulations. (See Docket

Entry 12 at 17 (citing 20 C.F.R. §§ 404.1527(c)(1)-(6),

416.927(c)(1)-(6)); see also Docket Entry 15 at 7-8.) Plaintiff’s

argument glosses over the fact that the ALJ expressly found that

“Dr. Bolz d[id] not explain the degree of limitation in the []

functional activities” (Tr. 27), i.e., the ALJ found that Dr. Bolz

did not support his opinion with a proper explanation.

Although the ALJ did not expressly discuss the consistency of

Dr. Bolz’s opinion with the record (see id.), any error by the ALJ

32

in that regard remains harmless under the circumstances presented

here, see generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.

1989) (observing that “[n]o principle of administrative law or

common sense requires us to remand a case in quest of a perfect

opinion unless there is reason to believe that the remand might

lead to a different result”). Plaintiff simply has not shown that

remand for an express discussion of the consistency of Dr. Bolz’s

opinion with the remainder of the record would lead to a favorable

outcome in his case. To the extent Plaintiff believes that Dr.

Bolz’s “moderately severely impaired” opinion compels a sedentary

(or less-than-sedentary) RFC, the ALJ discussed substantial

evidence which conflicted with that opinion (see Tr. 20-27),

including crediting the state agency medical consultants’ opinions

that Plaintiff remained able to perform light work (see Tr. 25-26,

179-80, 197-98, 217, 237), but not crediting their opinions

limiting Plaintiff to occasional postural movements (see Tr. 25-26,

180, 198, 218, 238), because Plaintiff “had mostly full range of

motion throughout her extremities” (Tr. 26 (citing Tr. 435 (Dr.

Bolz’s range of motion chart))), and Plaintiff’s “activities such

as gardening and fishing [we]re inconsistent with th[o]se

limitations” (id.).

Accordingly, the ALJ did not commit prejudicial error with

respect to his analysis of Dr. Bolz’s opinions, and Plaintiff’s

allegations of error thus fail as a matter of law.

33

3. Appointments Clause

In Plaintiff’s third and final assignment of error, she

alleges that she “is entitled to a new hearing on her 2013

applications because the ALJ was not a Constitutionally-appointed

officer at the time he denied [Plaintiff]’s prior applications.”

(Docket Entry 12 at 19 (bold font and single-spacing omitted); see

also Docket Entry 15 at 8-10.) In particular, Plaintiff contends

that the United States Supreme Court has “held that ALJs of the

Securities and Exchange Commission are inferior officers subject to

the Appointments Clause of the U.S. Constitution” and thus that

“the President, courts of law, or heads of departments must appoint

them.” (Docket Entry 12 at 19 (citing Lucia v. SEC, 585 U.S. ___,

___, 138 S. Ct. 2044, 2053-54 (2018)).) Although Plaintiff

acknowledges that, “[o]n July 16, 2018[,] all SSA ALJs were

Constitutionally-appointed,” she asserts that “ALJ hearings held

before that date were not Constitutionally-authorized proceedings

and so could not lead to Constitutionally-authorized decisions.”

(Id. at 20.) Thus, Plaintiff argues, “[t]he ALJ’s January 27,

2016[,] decision denying [Plaintiff]’s 2013 applications for [DIB]

and [SSI] is therefore void because the ALJ’s appointment to his

office violated the Constitution’s Appointments Clause.” (Id.)

Plaintiff further points out that “claimants do not forfeit their

Appointments Clause challenges by failing to raise them during

their administrative proceedings” (id. (citing Probst v. Saul, 980

34

F.3d 1015, 1025 (4th Cir. 2020), cert. denied, _—oxU.S. =, ~«141 S.

Ct. 2633 (2021)), and maintains that “an appropriate remedy for the

violation is a new hearing on [Plaintiff]’s earlier applications,

conducted by a properly-appointed new ALJ” (id. (citing Lucia, 585

U.S. at, +138 S. Ct. at 2055)). Those arguments fail as a

matter of law for two reasons.

First, as noted above in connection with the procedural

history of Plaintiff’s claims, after the Appeals Council denied

Plaintiff’s request for review of the 2013 unfavorable ALJ decision

(see Tr. 171; see also Tr. 148-64), Plaintiff sought judicial

review in this Court, resulting in affirmance of the Commissioner’s

final decision denying benefits, see Webb v. Berryhill, No.

1:17CV341, 2018 WL 2198829 (M.D.N.C. May 14, 2018) (unpublished),

recommendation adopted, 2018 WL 2583113 (M.D.N.C. June 4, 2018)

(unpublished) (Biggs, J.).'' Although the United States Supreme

Court decided Lucia on June 21, 2018, i.e., during the time

Plaintiff could have appealed this Court’s unfavorable decision to

the Fourth Circuit, see Fed. R. App. Proc. 4(a) (1) (B) (ii)

(providing 60 days to appeal), Plaintiff did not appeal, see Webb,

No. 1:17CV341 (M.D.N.C.} (Docket Entries dated June 4, 2018, to the

present). Having fully exhausted her appeal rights with respect to

Both parties appear to mistakenly believe that Plaintiff did not seek judicial

review of the Commissioner’s final decision denying her 2013 applications. (See

Docket Entry 14 at 19 (“Plaintiff did not appeal the January 27, 2016 [ALJ]

decision); Docket Entry 15 at 10 (“When the Appeals Council denied review of

[Plaintiff]’s 2013 claim[s], adversarial development of the Appointments Clause

issue simply did not exist (and could not exist) in her ALJ proceedings.”

(internal quotation marks and certain brackets omitted)).)

35

her 2013 applications for benefits, Lucia does not afford Plaintiff

a second bite at the apple, as made clear by this excerpt from

Probst:

Had this case come before us in July 2018, when the

number of potential Lucia claimants was at its peak, the

volume of probable remands might have weighed more

heavily on our analysis. But now that the Commissioner

has ratified the appointments of all ALJs as her own,

there are no new Appointments Clause challenges brewing

in SSA cases. And because Social Security claimants have

only a_sixty-day window to appeal an Appeals Council

decision to a district court, all claimants whose

benefits were denied before the Commissioner’s July 2018

ratification of the SSA’s ALJs have long since either

filed an_appeal in district court or become time-barred

from doing so. In other words, even if the Commissioner

is correct that there are many hundreds of [these] cases

in federal district courts, those cases represent all

such claims, not the tip of the iceberg.

Probst, 980 F.3d at 1024-25 (emphasis added) (internal quotation

marks and citations omitted); see also Cirko v. Commissioner, 948

F.3d 148, 159 (3d Cir. 2020) (“[C]laimants must appeal the Appeals

Council’s decision to the [d]istrict [c]ourt within sixty days, and

Lucia was decided more than a year ago. That means every claimant

whose benefits were denied prior to Lucia has long since either

filed an appeal in district court or become time-barred from doing

so.” (emphasis added) (internal citations omitted)).

Second, Plaintiff proffers no evidence that she petitioned the

SSA to reopen her prior application for benefits. (See Docket

Entries 12, 15.) The regulations provide that the SSA can reopen

a final and binding determination “on [its] own initiative,” ora

claimant “may ask that a final determination . . . be reopened.”

36

20 C.F.R. §§ 404.987, 416.1487. A final determination “may be

reopened” within 12 months of the date of decision “for any

reason,” 20 C.F.R. §§ 404.988(a), 416.1488(a), within two years

(for SSI) and/or within four years (for DIB) of the date of

decision “if [the SSA] finds good cause,” 20 C.F.R. §§ 404.988 □□□□

416.1488 (b), and “at any time” in cases of certain circumstances

not implicated by Plaintiff’s instant contentions, see 20 C.F.R.

S§ 404.988(c), 416.1488(c). Plaintiff presents no evidence that

she availed herself of any of those options for requesting

reopening of her 2013 applications. (See Docket Entries 12, 15.)

In the absence of a denial by the SSA of a request to reopen

Plaintiff’s 2013 applications on the basis of Lucia, this Court

lacks subject matter jurisdiction under 42 U.S.C. § 405(g) to

consider those applications, see Califano v. Sanders, 430 U.S. 99,

107-08 (1977) (holding that Section 405(g) permits judicial review

of already finalized application for benefits only where the SSA’s

“denial of a petition to reopen is challenged on constitutional

grounds” (emphasis added)); see also Huff v. Barnhart, 126 F. App’x

85, 86 (4th Cir. 2005) (“[F]lederal courts are without jurisdiction

to review the Commissioner’s refusal to reopen claims for

disability benefits unless the claimant challenges the refusal on

constitutional grounds.” (emphasis added) (citing Sanders, 430 U.S.

at 107-08)); Hall v. Chater, 52 F.3d 518, 520 (4th Cir. 1995)

(“[N]either the Administrative Procedure Act nor 42 U.S.C. § 405(q)

confers subject matter jurisdiction on federal courts to review the

37

[SSA]’s refusal to reopen a prior determination.” (emphasis added)

(citing Sanders, 430 U.S. at 102)); 20 C.F.R. $§ 404.903 (a) (5),

416.1403 (5) (barring judicial review of “[d]enial of a request

to reopen a determination or a decision”).

Under these circumstances, Plaintiff’s third issue on review

falls short.’

12 Plaintiff's Suggestion of Subsequently Decided Authority points the Court to

the United States Supreme Court’s decision in Collins v. Yellen, _—_ U.S. __,

141 S. Ct. 1761 (2021) (see Docket Entry 16 at 1), which deemed unconstitutional

a provision requiring cause for removal of the Director of the Federal Housing

Finance Agency, see Collins, __ U.S. at __, 141 S. Ct. at 1783-84, as well as

a Memorandum Opinion from the Office of Legal Counsel to Deputy Counsel to the

President interpreting Collins to render unconstitutional the statute limiting

the President’s authority to remove the Commissioner of SSA to grounds of neglect

of duty and malfeasance in office (see Docket Entry 16-1; see also 42 U.S.C.

§ 902(a) (3)). To the extent the Court has any obligation to address a Suggestion

of Subsequently Decided Authority that does not relate to any issues raised in

a party’s briefing, Collins does not provide any basis for granting relief to

Plaintiff, as a well-reasoned case by a neighboring district court explained:

[Ijn Collins[], the Supreme Court held that where an

unconstitutional statutory removal restriction exists, a plaintiff

seeking relief on that basis must show that the restriction caused

the harm. In Collins, the [Supreme] Court reasoned that the

relevant agency officials were “properly appointed” pursuant to a

statute that exhibited “no constitutional defect in the . . . method

of appointment” and that “the unlawfulness of [a] removal provision”

does not strip [an official] of the power to undertake the other

responsibilities of his office[.]” The [Supreme] Court continued

that “there is no reason to regard any of the actions taken” by the

agency during this period “as void.” Id. at 1787, 1788 n. 23. In

this case, [the pliaintiff, as in Collins, grounds his

constitutional challenge only on the relevant removal restriction

not on the propriety of the Commissioner’s appointment and offers no

evidence to show that there is a nexus between the unconstitutional

removal restriction and the denial of his application for disability

benefits. The [p]laintiff simply argues that all actions taken by

the Commissioner are void due to the unconstitutional removal

provision. However, Collins expressly rejects this view. Id.

Therefore, the final decision of the ALJ is not constitutionally

defective.

Robinson v. Kijakazi, No. 1:20CV358, 2021 WL 4998397, at *3 (W.D.N.C. Oct. 27,

2021) (unpublished); see also Boger v. Kijakazi, No. 1:20CV331, 2021 WL 5023141,

at *3 (W.D.N.C. Oct. 28, 2021) (unpublished) (“Indeed, [the p]laintiff’s

constitutional ‘removal restriction’ argument is likely not even applicable to

this case because [the] ALJ [in question] was appointed by an Acting Commissioner

(continued...)

38

III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for a

Judgment Reversing or Modifying the Decision of the Commissioner of

Social Security, or Remanding the Cause for a Rehearing (Docket

Entry 11) be denied, that Defendant’s Motion for Judgment on the

Pleadings (Docket Entry 13) be granted, and that this action be

dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

November 9, 2021

12 (...continued)

of Social Security who could be removed from that office at the President’s

discretion. See 42 U.S.C. § 902(b)(4); Collins, [ U.S. at ,] 141 S. Ct.

at 1783 (‘[W]e generally presume that the President holds the power to remove at

will executive officers and that a statute must contain plain language to take

[that power] away.’); see also United States v. Eaton, 169 U.S. 331, 343 (1898)

(holding that[,] where a ‘subordinate officer is charged with the performance of

the duty of the superior for a limited time, and under special and temporary

conditions, he is not thereby transformed into the superior and permanent

official’).” (stray quotation mark omitted)).

39