BRANDE v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHARLES TWAIN BRANDE, )

Plaintiff,

v. 1:21CV48

KILOLO KIJAKAZI,

Acting Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Charles Twain Brande (“Plaintiff”) brought this action pursuant to Sections

205(g) and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g)

and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social

Security denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”) under, respectively, Titles I] and XVI of the Act. The patties have

filed ctoss-motions for judgment, and the administrative record has been certified to the Court

for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for DIB and SSI on May 31, 2019, alleging a

disability onset date of October 1, 2017 in both applications. (Tr. at 18, 236-47.)' His

applications were denied initially (Ir. at 103-14, 137-47) and upon reconsideration (I't. at 115-

1 Transcript citations refer to the Sealed Administrative Record [Doc. #7].

28). Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative

Law Judge (“ALJ”). (It. at 167-68.) On July 31, 2020, Plaintiff, along with his attorney,

attended the subsequent telephonic heating, during which both Plaintiff and an impartial

vocational expert testified. (Tr. at 18, 33, 35.) Following the hearing, the ALJ concluded that

Plaintiff was not disabled within the meaning of the Act (Tt. at 28), and, on December 7, 2020,

the Appeals Council denied Plaintiff's request for teview of the decision, thereby making the

ALJ’s conclusion the Commissionet’s final decision for purposes of judicial review (Tr. at 1-

5).

Il. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

ALJ if they are supported by substantial evidence and were reached through application of the

cortect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cit. 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 court should not undertake to te-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL]].” 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing 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).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the butden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by treason of any medically determinable physical ot mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDD, established by Title IT of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C-F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs ate,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

“The Commissionet uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a) (4). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged petiod

of disability; (2) had a severe impairment; (3) had an impairment that met ot equaled the

requirements of a listed impaitment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

fotecloses a disability designation and ends the inquity. For example, “Ttlhe 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 catties his or her burden at the first two steps, and if

the claimant’s impairment meets ot equals a “listed impairment” at step three, “the claimant

is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,

but falters at step three, ie., “[i]f a claimant’s impaitment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (“RFC’).” Id. at 179.3 Step four then requites the ALJ to assess whether, based on

3 “REC 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

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, ot 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 (¢,g., pain).”

Hines, 453 F.3d at 562-63.

that REC, the claimant can “perform past relevant work”; if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to ptior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impaitments.” Hines, 453 F.3d at 563. In making this determination, 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 Government cannot catty its

“evidentiaty 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.

Ill. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since his alleged onset date. The ALJ therefore concluded that Plaintiff met his

burden at step one of the sequential evaluation process. (Ir. at 21.) At step two, the ALJ

further identified obesity as Plaintiff's only severe impaitment. (I't. at 21). She also identified

obstructive sleep apnea and “idiopathic edema” as non-severe impaitments. (I'r. at 21.) The

AL} found at step three that none of these impaitments, individually or in combination, met

ot equaled a disability listing. at 23.) Therefore, the ALJ assessed Plaintiffs RFC and

determined that he could perform the full range of medium work. (Tr. at 23.) Based on this

determination and the testimony of a vocational expert, the ALJ determined at step four of

the analysis that Plaintiff remained capable of performing his past relevant work as a custodian,

field investigator, antique furniture salesperson, and restaurant manager. (Tr. at 25-26.) In

addition, the ALJ made an alternative finding at step five that, given Plaintiffs age, education,

work experience, RFC, and the testimony of the vocational expert as to these factors, he could

petform other jobs available in significant numbers in the national economy, including several

unskilled sedentary jobs set out in the administrative decision. (Tr. at 26-27.) Therefore, the

ALJ concluded that Plaintiff was not disabled undet the Act. (Tr. at 27-28.)

Plaintiff now raises fout challenges to the ALJ’s decision. Plaintiff first contends that

“new medical evidence tequite[s] a remand to the Commissioner undet sentence six of 42

US.C. § 405(g) for a rehearing and consideration of new and material evidence.” (Pl.’s Br.

[Doc. #12] at 2.) In addition, he argues that the ALJ (1) failed to properly consider the reasons

for his minimal medical treatment, and (2) failed “to build an accurate and logical bridge from

the evidence to her conclusion[s]” tegarding the effect of Plaintiffs obesity and diuretic use

on his RFC, and (3) telied on an “incorrect regulatory framework” to assess Plaintiff's RFC.

(Pl’s Br. at 2-4.) After a careful review of the entire record, the Court finds that none of

Plaintiffs contentions merit remand.

A. New and Material Evidence

Plaintiff first seeks a sentence six remand based on forty-eight pages of treatment notes

submitted for the fitst time to this Court. However, as Defendant correctly notes, “where

extta-recotd evidence is presented for the first time to the district court, sentence six of 42

U.S.C. § 405(g) allows for remand only if stringent criteria are met.” (Def.’s Br. [Doc. #14] at

7) (citing Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991) (Congress made it unmistakably

clear that it intended to limit the power of district courts to order remands for ‘new evidence’

4 Plaintiff presents these arguments in a different order and addresses his obesity and diuretic use separately.

in Social Security cases.”)). Court can remand the case under sentence six of 42 U.S.C. § 405(g)

for the Commissioner to consider the new evidence, if Plaintiff can demonstrate that the

evidence qualifies as both new and material, and that good cause exists for the failure to submit

the evidence to the AL] or the Appeals Council. See Wilkins v. Secretary, Dep’t of Health &

Human Servs., 953 F.2d 93, 96 n.3 (4th Cir. 1991). Section 405(g) provides as follows:

[A federal district court] may at any time order additional evidence to be taken

before the Commissioner [], but only upon a showing that there is new evidence

which is material and that there is good cause for the failure to incorporate such

evidence into the record in a priot proceeding; and the Commissioner [ | shall,

after the case is remanded, and after hearing such additional evidence if so

ordered, modify or affirm the Commissionet’s findings of fact or the

Commissionet’s decision, ot both, and shall file with the court any such

additional and modified findings of fact and decision, and, in any case in which

the Commissioner has not made a decision fully favorable to the individual, a

transcript of the additional record and testimony upon which the

Commissionet’s action in modifying or affirming was based.

42 U.S.C. § 405(g) (emphasis added). “Evidence is new within the meaning of [§ 405(g)| if it

is not duplicative or cumulative” and “is material if there is a reasonable possibility that the

new evidence would have changed the outcome.” Wilkins, 953 F.2d at 96. The Fourth Circuit

has recognized four requitements that a claimant seeking a sentence six remand must satisfy:

First, the claimant must demonsttate that the new evidence is relevant to the

determination of disability at the time the claimant first applied for benefits and

is not metely cumulative of evidence already on the record. Borders v. Heckler,

777 F.2d 954, 955 (4th Cir.1985) (citing Mitchell v. Schweiker, 699 F.2d 185,

188 (4th Cir.1983)). Second, the claimant must establish that the evidence 1s

material, in that the Commissioner’s decision “might reasonably have been

different’ had the new evidence been before her.” Id. (quoting King v. Califano,

599 F.2d 597, 599 (4th Cit.1979)). Third, the claimant must show that good

cause exists for her failure to present the evidence eatlier. Id. And fourth, the

claimant must present to the reviewing court “at least a general showing of the

nature’ of the new evidence.” Id.

Finney v. Colvin, 637 F. App’x 711, 715-16 (4th Cir. 2016). Implicit in the requirement of

materiality is the requirement that the new evidence must relate to the time period previously

considered by the ALJ. See, e.g., Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir.1991); see

also Szubak v. Sec’y of Health & Human Setvs., 745 F.2d 831, 833 (3d Cit.1984) (explaining

that, to wattant a Sentence six remand, the new evidence must “telate to the time period for

which benefits were denied,” and not be merely ptobative “of a latet-acquited disability or of

the subsequent detetioration of [a] previously non-disabling condition”).

In the present case, Plaintiff submitted treatment notes dated January to June 2021,

([Doc. #12-1].) All of these records post-date both the AL]’s September 2020 decision and

the Appeals Council’s December 2020 Denial of Review. (See [Doc. #12-1]; Tr. at 1, 28.)

While this evidence is “new” in the sense that it was not available, and indeed did not exist, at

the time of Plaintiff's administrative proceedings, it fails to meet the materiality requirement

because these records do not relate to the time petiod prior to the ALJ’s decision. As

Defendant correctly relates, the newly-submitted records show as follows:

Plaintiff established as a new patient at Wake Forest Health Network; was newly

diagnosed with diabetes (which was stable with treatment); sought bariatric

treatment for his morbid obesity; and began Torsemide for anasatca

(generalized body swelling), which his provider felt could be related to weight-

induced lipidemia. ... Examinations generally showed that despite his obesity

and some findings of edema (at times mild), Plaintiff had normal muscle

strength, tone, sensation, and teflexes, no atrophy or abnormal movements, and

no focal motor or sensory deficits.

(Def.’s Br. at 8-9 (citing [Doc. #12-1] at 7, 16, 20, 28, 29, 48).) Plaintiff now contends that his

diagnosis with anasatca provides “the missing documentation of swelling in multiple parts of

[his] body.” (P1’s Br. at 10.) In particular, he argues that the records support his related

testimony “that he must elevate his legs above heart level for 15 to 20 minutes several times a

day in an effort to relieve swelling in his legs.” (Pl.’s Br. at 10.) However, none of the records

Plaintiff provides recommend leg elevation at all, let alone to the extent Plaintiff suggests. (See

generally [Doc. #12-1].) Instead, Plaintiff was advised to manage his edema through weight

management and continued diuretic use. (See, e.g., Doc. [#12-1] at 35-36.) In addition, the

records specifically note that Plaintiff sought additional treatment due to “[w] otsening swelling

in his bilateral lower extremities and up to his waist and abdomen” ([Doc. #12-1] at 5), rather

than for continued management of this condition as it existed during the relevant time period.

Thus, the evidence teflects that Plaintiff sought additional treatment for subsequent

deterioration of his condition, and the evidence is not material because it does not relate to

the relevant time period prior to the ALJ’s decision. Moreover, as noted by Defendant, there

is no basis to find that the decision “might reasonably have been different” had the new

evidence been before the agency, given the conclusion in the records that despite his edema

and obesity, Plaintiff had normal muscle strength, tone, sensation, ad reflexes, no atrophy or

abnormal movements, and no focal motor or sensory deficits. (See [Doc. #12-1] at 7, 16, 20,

28, 39, 48).5

B. Minimal Medical Treatment

Plaintiff next contends that the ALJ failed to properly consider the reasons fot

Plaintiffs minimal medical treatment. As coutts in this District have noted,

5 The Court also notes that Plaintiff did visit a medical provider in June 2020 (Tr. at 366), and the recotd of

that visit was before the ALJ, so this is not a case where there are no medical records or examinations for the

relevant time period. Moreover, at the heating counsel for Plaintiff confirmed that the record was complete,

and Plaintiff has not shown why he couldn’t have visited this new medical provider and obtained the evaluations

prior to the hearing before the ALJ. In addition, and of particular note, Plaintiff failed to respond and cooperate

in requests to obtain a Consultative Examination during the administrative process. (Ir. at 24, 99,118.) In the

circumstances, Plaintiff has not shown good cause for failing to obtain these evaluations and records during

the administrative process.

“fa] claimant may not be penalized for failing to seek treatment he cannot

afford; ‘it flies in the face of the patent purposes of the Social Security Act to

deny benefits to someone because he is too poor to obtain medical treatment

that may help him.” [Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986)]

(quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). Social

Security Ruling 96-7p, Titles Il and XVI: Evaluation of Symptoms in Disability

Claims: Assessing the Credibility of an Individual’s Statements, 1996 WL

374186 (July 2, 1996) (“SSR 96-7p”) provides that:

[T]he adjudicator must not draw any inferences about an

individual’s symptoms and their functional effects from a failure

to seek or pursue regular medical treatment without first

considering any explanations that the individual may provide ...

that may explain infrequent or irregular medical visits or failure

to seek medical treatment. For example:

The individual may be unable to afford treatment and may not

have access to free ot low-cost medical services.

SSR 96-7p, 1996 WL 374186, at *7-8 (emphasis added). However, even if a

claimant cannot afford medical treatment, he must “show that he has exhausted

all free ot subsidized sources of treatment and document his financial

circumstances before inability to pay will be considered good cause.” Gordon,

725 F.2d at 237.

Kirkland v. Colvin, No. 1:15CV00086, 2016 WL 126754, at *7 (M.D.N.C. Jan. 11, 2016).

In the present case, the AL] explained that

[Plaintiff] sought minimal treatment over the petiod in question, and the degree

of symptoms and limitations alleged are significantly out of proportion to the

tteatment he has sought. The medical record confirms that [Plaintiff] has

remained obese over the petiod in question, and it does reflect a history of sleep

apnea. However, the medical record contains few abnormal findings that support

ot ate consistent with [Plaintiff's] alleged fatigue, weakness, or mobility deficits.

(Tr. at 24.) The ALJ further noted that, prior to Plaintiffs June 12, 2020 appointment with

his provider, he had received no medical treatment for a yeat, and his prior contact consisted

of calling his doctor about applying for disability. (Tr. at 24, 363, 366.) The ALJ found this

10

lack of treatment particularly notable given Plaintiff's actual and planned work during his

alleged disability period. (Ir. at 24)

Plaintiff, in turn, now argues that the ALJ should have asked why Plaintiff failed to

obtain more frequent treatment. However, when presented with Plaintiffs testimony that he

lacked health insurance and sufficient funds throughout much of the petiod at issue, the AL]

specifically asked if Plaintiff had “looked into any free clinics or anything like that.” (Tr. at

54.) Plaintiff responded that he had not. (Tr. at 54.) Thus, Plaintiff was given an opportunity

to ptovide an explanation but did not do so, and did not make any showing that he had

exhausted free ot subsidized soutces of treatment. See Kirkland, 2016 WL 126754, at *7; see

also Cummings v. Colvin, No. 1:14CV520. 2016 WL 698081, at *7 (M.D.N.C. Feb. 19, 2016)

(finding that the ALJ did not err in relying on plaintiffs lack of treatment where plaintiff

offered no evidence of attempts to obtain free or low-cost treatment).

In addition, the ALJ specifically noted that Plaintiff did report working that would have

ptovided a soutce of income, and reported other similar activities that were inconsistent with

the alleged claims of disability:

The minimal treatment the [Plaintiff] sought is patticularly notable, given the

fact that he had been working during patt of the period at issue and therefore

had a soutce of some income. It is also notable that he has told his doctor that

he dozed off at work while driving, yet on his 2019 tax return he reported having

driven over 20K miles on his vehicle for business since June 28, 2019.

[While [Plaintiff] testified he could not even walk to the door of a grocety store

without his legs giving out, such extreme functional limitation is inconsistent

with [Plaintiff's] efforts to seek medical treatment.

The [Plaintiff] has worked since the alleged onset date of disability on October

1, 2017, and his statements have been vague and inconsistent about what that

work involved and how extensive it was. His 2019 income tax return shows

11

gross teceipts of $6,000 for his Southernpotz business, and his testimony was

uncleat as to whether this was his antique business or the "illegal" accounts

payable and receivables business he was briefly engaged in for someone else.

Significantly, he also testified that were it not for the pandemic, he was planning

to accept a job as a restaurant manager in New Jetsey. Such actually and planned

work activity is inconsistent with the degtee of limitation alleged.

(Tr. at 24). Thus, the record reflects that the ALJ allowed Plaintiff an opportunity to

explain, confirmed that Plaintiff had not even sought, let alone exhausted, any free or

subsidized treatment, confirmed that Plaintiff had been working with some sources of

income, and in the circumstances reasonably took into account the nature and extent

of Plaintiff's treatment, which was inconsistent with the alleged limitations.

C. RFC Determination

Plaintiff also contends that substantial evidence does not support the AL]’s decision

because the AL] failed to take into account ot adequately explain the effect of Plaintiffs

obesity and diuretic use on his RFC. With regard to Plaintiff's obesity, the record reflects that

Plaintiff remained morbidly obese, with a BMI in excess of 60, throughout the period in

question. (Tr. at 24, 346, 364, 366.) However, the ALJ further related that Plaintiffs treatment

tecotds failed to document any abnormal findings relating to his obesity. (Tr. at 25.) As noted

by the ALJ, “the treatment records document no findings or abnormalities telated to

[Plaintiff's] gait, coordination, muscle strength, sensation, ot reflexes.” (Tr. at 25.) Moreover,

the record lacks any medical opinion evidence suggesting limitations, as Plaintiff “did not

cooperate with agency efforts to arrange for him to attend a consultative examination.” □□□

at 24.) Nevertheless, it appears that the ALJ gave Plaintiff the benefit of the doubt in finding

that, “due to his obesity,” Plaintiff was “limited to medium exertional level” work. (Tt. at 25.)

Although Plaintiff now atgues that the ALJ failed to adequately explain how this limitation

12

accounted for Plaintiffs obesity, he fails to identify any evidence that his obesity resulted in

further limitations, exertional or non-exettional, during the relevant period.®

In finding that Plaintiffs obesity was not as limiting as he alleged, the ALJ further

explained that Plaintiffs actual and planned work activity during the period he claimed to be

disabled undermined his allegations. (It. at 24.) As set out above, the ALJ recounted

Plaintiffs testimony that he was planning to take a new job as a restaurant manager in New

Jersey, and ultimately did not do so solely because of the pandemic, rather than because of his

impairments. (Trt. at 24, 56, 57, 76-78, 265.) The AL] also noted Plaintiffs other work

activities, and his failure to obtain medical treatment, both of which were inconsistent with

the extreme limitations alleged. (Tr. at 24.)

The ALJ telied on similar reasoning to discount the need for further limitations relating

to Plaintiffs edema and related diuretic use. At step two of the sequential analysis, the ALJ

specifically considered whether Plaintiffs edema constituted a severe impaitment. In

particular, she found that,

[o]n one occasion prior to the alleged onset date of disability, [Plaintiff] was

noted to have “idiopathic edema” (Exhibit 1F/4), and the record does indicate

[that Plaintiff] took “fluid pills” and called his doctor on a few occasions about

this concern after the alleged onset date (Exhibits 1F, 4F, 5F). However, given

the infrequency of [Plaintiffs] efforts to obtain medical treatment for this

condition since the alleged onset date, the undetsigned concludes that

[Plaintiff's] “idiopathic edema” was generally controlled with medication and

did not cause more than minimal limitation in his ability to perform work-

related activities during the period at issue.

6 As Defendant correctly notes, the ALJ recognized at step five of the sequential analysis that, even if Plaintiff

were limited to sedentary work, he could still perform jobs that exist in significant numbers in the national

economy. (Tr. at 27, 92.)

13

(Tr. at 21.) Nevertheless, as requited by the regulations, the AL] considered Plaintiff's edema

and related treatment with diuretics when formulating Plaintiffs RFC. Regarding his diuretic

use, Plaintiff testified that he “has to go to the bathroom over 20 times per day, which prevents

him ftom performing activities for long periods.” (Tr. at 23.) However, the ALJ ultimately

found as follows:

Although [Plaintiff] has alleged swelling of the legs and side-effects of diuretics

that would either requite him to elevate his legs or cause him to be off task or

absent from work, those reported symptoms and alleged limitations are not

consistent with the medical evidence, including findings on examination and

treatment sought, or with [Plaintiffs] work and other activity. Even if the

alleged symptoms and limitations may have been present briefly at some times

during the period at issue, the record does not support a finding that they were

ptesent on an ongoing basis, even intermittently, such that [Plaintiff] could not

have sustained full-time work.

(Tr. at 25.) In making these findings, the ALJ clearly considered all of the available evidence,

including Plaintiffs statements about his symptoms, in evaluating “the intensity and

persistence of the claimant’s [symptoms], and the extent to which [they] affects [his] ability to

work,” in accordance with Craig, 76 F.3d at 595, and the factors set out in 20 C.F.R. §

416.929(c)(3) and 20 C.F.R. § 404.1529. The ALJ also pointed to Plaintiffs ongoing work

activity, including reporting driving over 20,000 miles for business and engaging in other

businesses, as evidence that Plaintiffs swelling and use of diuretics were not work preclusive.

at 24.) Because the ALJ explained her rationale for finding that the extent of Plaintiffs

symptoms was not as limiting as alleged and, in doing so, explained why no further RFC

limitations wete requited, the Court finds no basis for remand.’

To the extent that Plaintiff's function-by-function challenge relies on the AL]’s alleged failures to (1)

incorporate evidence submitted for the first time to this Court and/or (2) properly consider Plaintiffs lack of

medical treatment, those arguments fail for the reasons set out previously in this Recommendation.

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D. Regulatory framework

Finally, Plaintiff contends that “[t]he ALJ in this case cited the regulatory standards for

evaluating symptoms, but not the standards for evaluating [RFC].” (PL’s Br. at 11.) Plaintiff

therefore argues that the AL] “committed a reversible error by relying on an incorrect

tegulatoty framework to assess” Plaintiffs RFC. (id.) In making this purely procedural

challenge, Plaintiff does not cite any specific evidence omitted by the RFC. Instead, he relies

on the Fourth Circuit’s recent decision in Dowling v. Comm’r of Soc. Sec., 986 F.3d 377 (4th

Cir. 2021), in which

the ALJ telied on an incorrect regulatory framework when he assessed

Appellant’s RFC. He did not cite to 20 C.F.R. § 416.945, the section of the

Code of Federal Regulations that is titled “Your residual functional capacity”

and explains how ALJs should assess a claimant’s RFC. Nor did he cite to SSR

96-8p, the 1996 Social Security Ruling that provides guidance on how to

ptoperly evaluate an RFC. Finally, the ALJ did not indicate that his RFC

assessment was rooted in a function-by-function analysis of how Appellant’s

impaitments impacted her ability to work.

Id. at 387. Here, despite Plaintiff's assertions to the contrary, none of the Dowling factors are

applicable. The AL] cited all of the relevant regulations (see Tr. at 20), assessed the RFC under

the appropriate standards as set forth in subsection C of this Recommendation, undertook the

relevant symptom evaluation using the two-step process provided in the regulations as set out

above, and sufficiently explained her analysis.’ Plaintiff essentially asks the Court to reconsider

8 As reflected in subsection C, above, the lack of medical treatment notes and medical opinion evidence in

Plaintiffs record largely reduce the RFC analysis in this case to little more than a symptom evaluation.

However, nothing in the administrative decision or the record suggests that the AL] failed to consider evidence

relevant to Plaintiffs RFC or applied the incorrect standard in performing her RFC analysis, as in Dowling.

Moreover, to the extent there is a lack of evaluations or medical opinion evidence in the record, the ALJ

specifically noted that Plaintiff “did not cooperate with agency efforts to arrange for him to attend a consultative

examination.” (Ir. at 24, 118.)

15

and re-weigh the evidence presented. However, it is not the function of this Court to re-weigh

the evidence or reconsider the AL]’s determinations if they ate supported by substantial

evidence. As noted above, “[w]here conflicting evidence allows reasonable minds to differ as

to whether a claimant is disabled, the responsibility for that decision falls on the ALJ”

Hancock, 667 F.3d at 472 (quotation omitted). Thus, the issue before the Coutt is not whether

a different fact-finder could have drawn a different conclusion, or even “whether [Plaintiff] is

disabled,” but rather, “whether the ALJ’s finding that [Plaintiff] is not disabled is supported

by substantial evidence and was reached based upon a correct application of the relevant law.”

Craig, 76 F.3d at 589. Here, the AL] reviewed the evidence, explained her decision, and clearly

explained the reasons for her determination. That determination is supported by substantial

evidence in the record. Plaintiff has not identified any errors that require remand, and

Plaintiffs Motion to Reverse the Decision of the Commissioner should thetefore be denied.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding

no disability be AFFIRMED, that Plaintiffs Motion to Reverse the Decision of the

Commissioner [Doc. #11] be DENIED, that Defendant’s Motion for Judgment on the

Pleadings [Doc. #13] be GRANTED, and that this action be DISMISSED with prejudice.

This, the 24th day of August, 2022.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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