# WEBB v. KIJAKAZI

> District Court, M.D. North Carolina · November 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10653622

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** November 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653622

## How later opinions describe it (automated extraction)

- finding that lack of restrictions by treating physician supported ALJ determination that the plaintiff did not qualify as disabled
- 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”
- holding that ALJ “is entitled to rely not only on what the record says, but also on what it does not say”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653622. Public record. Not legal advice.