JONES v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KEVIN J., )

)

Plaintiff, )

)

v. ) 1:22CV466

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Kevin J., 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 (the “Commissioner”), denying Plaintiff’s claim for

Supplemental Security Income (“SSI”). (Docket Entry 2.) The

Commissioner has filed the certified administrative record (Docket

Entry 7 (cited herein as “Tr. __”)), Plaintiff has moved for

judgment (Docket Entry 11; see also Docket Entry 12 (Plaintiff’s

Memorandum)), and the Commissioner has submitted a dispositive

brief in accordance with Rule 5 of the Supplemental Rules for

Social Security Actions under 42 U.S.C. § 405(g) (Docket Entry 15).

For the reasons that follow, the Court should enter judgment for

the Commissioner.

I. PROCEDURAL HISTORY

Plaintiff applied for SSI on January 28, 2020 (Tr. 372-79),

alleging a disability onset date of November 15, 2010 (see Tr.

372). Upon denial of those applications initially (Tr. 271-82,

303-07) and on reconsideration (Tr. 283-97, 309-18), Plaintiff

requested a hearing de novo before an Administrative Law Judge

(“ALJ”) (Tr. 319-21). Prior to Plaintiff’s hearing, his counsel

submitted a letter to the ALJ requesting that she reopen

Plaintiff’s “prior application [for SSI] which was protectively

filed on October 9, 2018,” and “amend[ing] his alleged onset date

to October 9, 2018.” (Tr. 390 (bold font omitted).) Plaintiff,

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

(Tr. 231-70.) The ALJ subsequently denied Plaintiff’s request to

reopen the denial of his prior SSI application (see Tr. 11-12), and

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

8-25). The Appeals Council thereafter denied Plaintiff’s request

for review (Tr. 1-7, 370-71, 485-89), thereby making the ALJ’s

ruling the Commissioner’s final decision for purposes of judicial

review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since January 28, 2020, the application date.

. . .

2

2. [Plaintiff] has the following severe impairments:

degenerative disc disease; osteoarthritis; obesity;

hypertension; asthma; migraines; idiopathic intracranial

hypertension; vertigo; and hearing loss.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

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

capacity to perform a range of light work

. . . . [Plaintiff] has been capable of lifting,

carrying, pushing, and pulling 20 pounds occasionally and

10 pounds frequently. He has been able to sit for six

hours in an eight-hour workday, as well as stand and/or

walk for a combined total of six hours in an eight-hour

workday. [Plaintiff] has been incapable of climbing

ladders, ropes, or scaffolds, and has been limited to

occasionally balancing as that term is defined in the

[Dictionary of Occupational Titles (“DOT”)]. He has been

further limited to stooping, kneeling, crouching,

crawling, and climbing ramps and stairs

occasionally. [Plaintiff] has been limited to tolerating

a moderate noise level, as that term is defined in the

[DOT] and the [Selected Characteristics of Occupations

(“SCO”)]. He has been incapable of tolerating exposure

to vibration, hazardous machinery, or unprotected

heights. [Plaintiff] has been limited to occasional

exposure to pulmonary irritants, including dusts, fumes,

odors, gasses, and poor ventilation.

. . .

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

work.

. . .

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

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

3

. . .

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

defined in the [] Act, since the amended onset date or

since January 28, 2020, the date the application was

filed.

(Tr. 13-24 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

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

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

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

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

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

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

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

supported by substantial evidence and were reached through

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

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

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

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

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

4

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

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

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

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

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

quotation marks omitted).

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

undertake to re-weigh conflicting evidence, make credibility

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

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

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

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

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

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

claimant] is not disabled is supported by substantial evidence and

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability to

engage in any substantial gainful activity by reason of any

5

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)).1 “To regularize the

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

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

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

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

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

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

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

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

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of the Soc. Sec. Admin., 174

1 The Act “comprises two disability benefits programs. The Disability Insurance

Benefits Program provides benefits to disabled persons who have contributed to

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

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

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

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

omitted).

6

F.3d 473, 475 n.2 (4th Cir. 1999).2 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 [RFC].” Id. at 179.3 Step four

then requires the ALJ to assess whether, based on that RFC, the

claimant can perform past relevant work; if so, the claimant does

not qualify as disabled. See id. at 179-80. However, if the

2 “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).

3 “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

claimant establishes an inability to 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

567.4

B. Assignment of Error

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

ALJ’s failure to conduct a proper function-by-function analysis of

[Plaintiff]’s impairments and failure to provide a logical bridge

between the evidence in the record, [the ALJ’s] conclusions and her

RFC findings prevents those conclusions from being supported by

substantial evidence” (Docket Entry 12 at 6 (bold font and single-

spacing omitted)), in violation of Mascio v. Colvin, 780 F.3d 632,

636 (4th Cir. 2015), and Social Security Ruling 96-8p, Policy

Interpretation Ruling Titles II and XVI: Assessing Residual

4 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

Functional Capacity in Initial Claims, 1996 WL 374184 (July 2,

1996) (“SSR 98-6p”) (see Docket Entry 12 at 12-13). According to

Plaintiff, “[his] testimony is generally consistent with the

evidence of record as well as his self-reports earlier in the

claim,” which reflect “report[s of] exceptional dizziness, nausea,

stumbling, dropping things, vomiting/nausea and difficulty with

prolonged sitting, standing or walking due to his dizziness.” (Id.

at 8; see also id. at 7-11 (detailing Plaintiff’s subjective

statements and medical evidence he believes supports greater

limitations in RFC (citing Tr. 249-53, 258-60, 417, 429-31, 434,

446, 455, 2462, 2489-90, 2557, 2596, 2607, 2682, 2903, 3132, 3409,

3437-40, 3480, 3782, 3814, 4117, 4171, 4260, 4290-93, 4307-10,

4359, 5472-76, 5515, 5562, 5567, 5589, 5591-97, 5599-602, 5615,

5625, 5633, 5637, 5644, 5647, 5651, 5656, 5685, 5690, 5697, 5701,

5708, 5734-39, 5780-84, 5947, 5952, 5963, 6266, 6343, 6368, 6525,

6554, 6674, 6721, 6784, 6893, 6898, 7534-45, 8411, 8414, 8556-60,

8601-02, 8663, 8668, 8760-64, 8767)).)5 Plaintiff notes that,

5 Plaintiff additionally cited records dated from June to November of 2021

(Docket Entry 12 at 11 (citing Tr. 72-74, 87-93, 112, 135-36, 221)), but the

record before the ALJ did not contain those records (see Tr. 237 (reflecting

ALJ’s admission of Exhibits 1A through 20F into the record without objection from

Plaintiff, and Plaintiff’s representation of the record as “complete”), 271-8770

(containing Exhibits 1A though 20F)). Plaintiff submitted the records in

question to the Appeals Council (see Tr. 2 (Appeals Council’s Notice

acknowledging receipt of new evidence), 41-229 (records Plaintiff submitted to

Appeals Council), 230 (cover sheet from Plaintiff’s counsel dated December 23,

2021, enclosing the new evidence)), but the Appeals Council found that a portion

of the new evidence “d[id] not show a reasonable probability that it would change

the outcome of the decision,” and that the remaining evidence “d[id] not relate

to the period at issue[ and t]herefore[ ] d[id] not affect the [ALJ’s] decision

about whether [Plaintiff] was disabled beginning on or before August 24, 2021”

(Tr. 2). Before this Court, Plaintiff neither challenged the Appeals Council’s

(continued...)

9

although the ALJ “summarized [Plaintiff’s] testimony regarding the

symptoms he experienced related to [his idiopathic intracranial

hypertension (‘IIH’) and vertigo]” (id. at 6), the ALJ “failed to

include any RFC limitations for [Plaintiff’s] need to lay [sic]

down to relieve his dizzy spells, his nausea and/or his fatigue”

(id. at 12), as well as “limitations accounting for unscheduled

breaks, off task behaviors and/or absenteeism” (id.). Plaintiff

deems the ALJ’s error “harmful” (id. at 16), because “[t]he VE

clearly testified that off task behaviors and/or absenteeism at

certain levels would preclude all competitive work” (id. (citing

Tr. 267-68)}. Those contentions lack merit.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 416.945(a). An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s

impairments, as well as any related symptoms, including pain. See

Hines, 453 F.3d at 562-63; 20 C.F.R. § 416.945(b). The ALJ then

must match the claimant’s exertional abilities to an appropriate

level of work (i.e., sedentary, light, medium, heavy, or very

heavy). See 20 C.F.R. § 416.967. Any non-exertional limitations

(...continued)

above-quoted findings, nor argued for a remand under sentence six of 42 U.S.C.

§ 405(g) based upon the new evidence. (See Docket Entry 12.) Under such

circumstances, the undersigned will not consider those records in analyzing

Plaintiff’s assignment of error.

10

may further restrict a claimant’s ability to perform jobs within an

exertional level. See 20 C.F.R. § 416.969a(c).

An ALJ need not discuss every piece of evidence in making an

RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014). However, “the ALJ must both identify

evidence that supports his [or her] conclusion and build an

accurate and logical bridge from that evidence to [that]

conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)

(internal emphasis, quotation marks, and brackets omitted). As to

the role of the function-by-function analysis in that

determination, the relevant administrative ruling states: “The RFC

assessment must first identify the individual’s functional

limitations or restrictions and assess his or her work-related

abilities on a function-by-function basis. . . . Only after that

may RFC be expressed in terms of the exertional levels of work,

sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996

WL 374184, at *1.

The United States Court of Appeals for the Fourth Circuit has

addressed this administrative ruling and the issue of whether an

ALJ’s failure to articulate a function-by-function analysis

necessitates remand. See Mascio, 780 F.3d at 636–37.

Specifically, it stated “that a per se rule is inappropriate given

that remand would prove futile in cases where the ALJ does not

discuss functions that are irrelevant or uncontested,” id. at 636,

11

but that “‘remand may be appropriate where an ALJ fails to assess

a claimant’s capacity to perform relevant functions, despite

contradictory evidence in the record, or where other inadequacies

in the ALJ’s analysis frustrate meaningful review,’” id. (internal

brackets and ellipsis omitted) (quoting Cichocki v. Astrue, 729

F.3d 172, 177 (2d Cir. 2013)). Here, the ALJ did not expressly

assess Plaintiff’s work-related abilities on a function-by-function

basis (see Tr. 18-22); however, no basis for remand exists, because

the ALJ’s decision nevertheless supplies the necessary “accurate

and logical bridge,” Woods, 888 F.3d at 694 (internal quotation

marks omitted), between the evidence and her findings that

Plaintiff’s IIH and vertigo (A) qualified as severe impairments

(see Tr. 14), but (B) did not result in greater limitations than

those reflected in the RFC (see Tr. 17-18).

Plaintiff’s assertions regarding the function-by-function

analysis fall short because the ALJ’s evaluation of Plaintiff’s

subjective symptom reporting explains the ALJ’s omission of

allowances for off-task time, extra breaks, and absenteeism from

the RFC. In that regard, the ALJ explicitly acknowledged

Plaintiff’s statements “that he experienced significant dizziness

and impaired balance as a result of intracranial pressure, despite

an extensive history of shunts and stents” (Tr. 18 (referencing Tr.

249)), “that he cannot bend without falling over and drops objects

that he is holding” (id. (referencing Tr. 249)), and “and that he

12

continues to experience debilitating dizziness throughout each day,

as well as daily headaches and fluid drainage in his ears” (id.

(referencing Tr. 249-52, 257-58)). The ALJ, however, also found

that “[Plaintiff]’s statements about the intensity, persistence,

and limiting effects of his symptoms [we]lre only partially

consistent with the evidence of record and d[id] not support a

finding of disability.” (Id. (emphasis added) .)

The ALJ supported that finding with the following analysis:

[Plaintiff ] testified that he has been living

independently for a year and renews his barbering license

annually. [Plaintiff]’s Adult Function Report states

that he is capable of shopping for an hour at a time.

([Tr. 432]). . . . He has denied gait instability and

falls. ([Tr. 3231]). . . . The record refers to

[Plaintiff] lifting weights of up to 120 pounds during

the period at issue. ({Tr. 4945-46, 5376,

5394]). . .

The record reflects numerous inconsistencies pertaining

to [Plaintiff]’s condition during the period at issue and

his work history both before and after the alleged onset

date. As noted above, [Plaintiff]’s earnings record

reflects no earnings since 2011 ([Tr. 391-93]), and

[Plaintiff] reported at the time of his current

application for [SSI] that he had not worked since 2011

([Tr. 412-13]), and he testified initially that he had

not worked since 2005 or 2008 and then revised this to

2010 or 2011. However, on questioning from his attorney,

he testified he had worked from home as a barber “off and

on,” most recently approximately one month prior to the

hearing. Also, as noted above, the record contains

numerous references to work activity since 2011,

including work at _a barber shop ([Tr. 1353, 1371, 1414,

1657, 1733, 1953, 3077, 4683, 4685, 5352, 6189, 7738

8 Although the ALJ cited to Exhibit 6F, pages 558 and 559, those pages do not

contain any reference to Plaintiff’s weight lifting (see Tr. 4945-46). The ALJ

likely meant to cite to page 4882, which reflects that Plaintiff complained of

“chest pain” that “began while he was bench pressing at the gym.” (Tr. 4882.)

13

(duplicate of 3077), 8223 (duplicate of 5352)). As

recently as September 2020, a treatment note indicates

that he reported having done a drug test for a job ([Tr.

8507]), although [he] testified he had not undergone a

drug test for a job. Given the other inconsistencies

between [Plaintiff]’s testimony and the contemporaneous

record, there is also some question as to the reliability

of this testimony. [Plaintiff] testified he had renewed

his barber’s license annually, most recently in May 2020,

and he testified at the hearing on May 7, 2021, that he

would not be renewing it again due to an inability to

work.

[Plaintiff] testified to having memory problems, and

throughout the hearing, he asserted he was unable to

recall various details about his work history and

activities. As discussed herein, in numerous instances,

his testimony was inconsistent with the contemporaneous

notes of his own medical providers. The [ALJ] also notes

that [Plaintiff] reported following the hearing that he

had not been feeling well during the hearing ([Tr. 481]).

While the [ALJ] does not suggest that [Plaintiff] was

deliberately misstating any information, the [ALJ] finds

the claimed inability to remember, as well as the

inconsistencies between the hearing testimony and the

contemporaneous treatment records, together warrant

placing greater reliance on the contemporaneous records.

It is notable, as well, that treatment records do not

reflect ongoing issues with [Plaintiff]’s memory or

cognitive functioning ([e].g., [Tr. 8603]).

(Tr. 19-21 (emphasis added).)

Plaintiff deems “the ALJ’s reliance on [Plaintiff’s] ability

to work and renew his barber license, live alone, shop for up to an

hour, etc[.,] throughout the relevant period [] misplaced.”

(Docket Entry 12 at 14.) In Plaintiff’s view, “the

ALJ . . . fail[ed] to consider the extent to which [Plaintiff]

actually engaged in the activities that the ALJ relie[d] on to

support her conclusion that [Plaintiff’s] activities undermined his

allegations.” (Id. (citing Woods, 888 F.3d at 694-95 (“An ALJ may

14

not consider the type of activities the claimant can perform

without also considering the extent to which []he can perform

them.” (brackets and italics added to match original))).) In that

regard, Plaintiff notes that “he testified that his adult son would

visit him nearly every day to help[,] his son did his laundry and

often brought him something to eat[,] . . . he no longer went to

the grocery store because he could not stand and wait around, [and]

that he only prepared quick meals and would then lay [sic] down.”

(Id. at 14-15 (internal quotation marks omitted).) With regard to

Plaintiff’s work as a barber, he points out that “he would have to

cancel [appointments] when he was not able to cut hair or not

feeling well” (id. (citing Tr. 254)), “that [he] had only given one

hair cut in the month prior to the hearing” (id. (citing Tr. 254)),

“that in a good month . . . he would give 4-10 haircuts” (id.

(citing Tr. 255)), and “that he might not renew his barber license

when it came due again [in May 2021]” (id. (citing Tr. 244)).

Plaintiff additionally points to his testimony “that[,] following

his surgeries[,] he was no longer able to work out/exercise

consistently due to his symptoms.” (Id. (citing Tr. 264).) That

argument fails for two reasons.

First, although Plaintiff testified at the hearing to only a

limited ability to complete daily activities, work as a barber, and

exercise (see Tr. 244, 254-55, 258, 260, 263-65), the ALJ pointed

out in the above-quoted passage other, competing descriptions in

15

the record of Plaintiff’s abilities to engage in such activities

(see Tr. 19-20 (citing Tr. 432 (3/4/20 Function Report indicating

that Plaintiff shopped in stores for one hour at a time), 3077

(9/14/18 telephone encounter with neurosurgery provider four days

after first stent surgery reflecting Plaintiff’s desire to return

to work as barber and begin working out), 4683 & 4685 (3/7/19 ER

visit for left chest pain from using left arm to turn barber

chair), 4882 (8/9/19 ER treatment approximately five months after

encephalocele repair for chest pain after bench pressing at gym),

5352 (5/22/19 PCP note two months following encephalocele repair

containing Plaintiff’s remark that he “st[ood] on his feet a lot

through work”), 5376 (7/9/19 statement to PCP that Plaintiff does

cardio and weights every day), 5394 (8/13/19 office visit with PCP

documenting Plaintiff’s complaint of chest pain after bench

pressing 120 pounds), and 6189 (10/10/19 telephonic report to

neurosurgery provider that Plaintiff “[wa]s a barber and drove to

cut hair [that ] day”)).7 The ALJ expressly noted the

7 The record contains many other examples of Plaintiff engaging in daily

activities and regular physical exercise. (See Tr. 432-33 (3/4/20 Function

Report indicating that Plaintiff used public transportation, handled his own

finances, and attended Bible study and church each week), 3134 (9/26/18

neurosurgery release requested by Plaintiff “to resume all activities including

lifting weights/working out at the gym”)), 5365 (6/17/19 report to PCP that

Plaintiff “had been doing a lot of cardio and weight training”), 5637 (11/15/19

report of abdominal pain after being active at gym), 8535 (9/22/20 remark to PCP

that Plaintiff had been walking for exercise), 8638 (10/15/20 annual physical

examination recording Plaintiff’s remark that the room spins when he sits but

that his symptoms dissipate with activity such as working out with weights or

cardio), 8648 (11/10/20 visit with PCP documenting Plaintiff’s report that he

lifted weights five times per week), 8668 (12/15/20 PCP visit reflecting

Plaintiff’s statement that he “[wa]s implementing more cardio into his training

regime”), 8691-92 (1/13/21 PCP treatment note containing Plaintiff’s report that

(continued...)

16

inconsistencies in the evidence regarding Plaintiff’s alleged

memory difficulties and inability to work as a barber or engage in

physical exercise, and explained that, although the ALJ “d[id] not

suggest that [Plaintiff] was deliberately misstating any

information, the [ALJ] f[ound] the claimed inability to remember,

as well as the inconsistencies between the hearing testimony and

the contemporaneous treatment records, together warrant[ed] placing

greater reliance on the contemporaneous records.” (Tr. 21.)

Plaintiff has not provided the Court with any basis to disturb the

ALJ’s crediting of evidence reflecting a greater ability to engage

in such activities. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th

Cir. 1990) (“Ultimately, it is the duty of the [ALJ] reviewing a

case, and not the responsibility of the courts, to make findings of

fact and to resolve conflicts in the evidence.”).

Second, the ALJ did not rely solely on Plaintiff’s daily

activities to discount his subjective symptom reports, but rather

as one part of the ALJ’s overall analysis. (See Tr. 18-22.)

Plaintiff’s ability to engage in such activities, even on a limited

basis, provides some support, along with the medical and opinion

evidence discussed by the ALJ, for the ALJ’s conclusion that

7 (...continued)

he “[wa]s exercising daily” and “ha[d] lost 7 pounds since his last visit”), 8724

(3/2/21 telehealth visit with PCP evidencing Plaintiff’s remark that he continued

to lift weights but “ha[d] been taking it easy with upper body exercises” due to

left breast pain), 8762 (10/20/20 visit with physical therapist where Plaintiff

deemed himself “independent” in activities of daily living except that his wife

helped him put on his shoes)).

17

Plaintiff’s IIH and vertigo (in combination with his other

impairments) did not prevent him from performing a limited range of

light work with postural and environmental restrictions (see Tr.

17-18).

The ALJ’s evaluation of the opinion evidence additionally

supports her omission of allowances for off-task time, extra

breaks, or absenteeism from the RFC. In that regard, the ALJ found

the opinions of the state agency medical consultants “generally

persuasive” (Tr. 21), and those opinions contained light-exertion

RFCs very similar to the ALJ’s RFC and included no allowances for

off-task time, extra breaks, or absenteeism (compare Tr. 17-18,

with Tr. 278-79, 292-93). Moreover, none of Plaintiff’s treatment

providers offered opinions that Plaintiff’s IIH and/or vertigo

necessitated off-task time, extra breaks, or absenteeism at work,

a fact which further undermines Plaintiff’s instant argument. See

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

lack of restrictions by treating physician supported ALJ’s

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”); Jones v. Berryhill, No. 1:17CV703,

2018 WL 3849914, at *9 (M.D.N.C. Aug. 13, 2018) (unpublished)

(noting significance of fact that record lacked “treating or

examining physician opinion[s] that would support inclusion in the

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RFC of more breaks, time off-task, or absences than typically

tolerated in a competitive work environment”), recommendation

adopted, slip op. (M.D.N.C. Sept. 4, 2018) (Schroeder, C.J.).

The ALJ’s discussion of the medical evidence further supports

the lack of restrictions in the RFC regarding off-task time, extra

breaks, and absenteeism. In particular, the ALJ made the following

pertinent observations:

° Plaintiff “has denied gait instability and falls”

(Tr. 19 (citing Tr. 3231)) and reports showed his

“[c]oordination has been normal” (id. (citing Tr.

3484, 3509, 5380, 5482, 8687));°

° “Lasix reduced the severity of [Plaintiff]’s

dizziness” (id. (citing Tr. 8692));

° Plaintiff’s “gait was consistently normal” (id.

(citing Tr. 1862, 2524, 2723, 3233, 3484, 4880,

5482, 6479, 8198, 8687, 8721)), “[h]is range of

motion has been intact” (id. (citing Tr. 4515,

4779, 5534, 5607, 7014, 8653, 8673, 8754)), and

“[This] strength has been good” (id. (citing Tr.

2524, 3233, 3484, 4850, 5481, 5595, 8330));°

° “[t]reatment notes refer to significant improvement

in his headaches after undergoing a craniotomy, []

earlier treatment notes described his headaches as

mostly mild and intermittent (Tr. 20 (citing Tr.

3230, 3437, 4307, 7097)), and “[a]t other times,

[he] denied experiencing headaches” (id. (citing

Tr. 8197, 8330, 8680)}; and

8 The finding of normal coordination actually appears on page 3510 of the

administrative transcript. (See Tr. 3510.)

oR finding of normal gait does not appear on page 4880 of the administrative

transcript (see Tr. 4880), but a finding of “steady gait” appears on page 4852

(Tr. 4852; see also Tr. 4850). Normal range of motion appears on page 4778

rather than on page 4779. (Compare Tr. 4778, with Tr. 4779.)

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• Plaintiff’s “treatment notes contain no reference

to him ambulating with an assistive device outside

of an immediately post-operative period” (id.).

After discussing the medical evidence, the ALJ concluded that “the

absence of any reference to [Plaintiff] ambulating with an

assistive device in his medical records, as well as the lack of

evidence of medical treatment or injuries resulting from a fall,

support[ed] finding that [Plaintiff] ha[d] not required an

assistive device to ambulate and that the significant postural

limitations described in the [RFC] accommodate the limitations

imposed by his dizziness.” (Id. (emphasis added).)

Moreover, by pointing to record evidence Plaintiff views as

supporting greater limitations in the RFC, he misinterprets this

Court’s standard of review. The Court must determine whether

substantial evidence, i.e., “more than a mere scintilla of evidence

but . . . somewhat less than a preponderance,” Mastro, 270 F.3d at

176 (brackets and internal quotation marks omitted), sustained the

ALJ’s RFC findings, and not whether other record evidence weighed

against those findings, see Lanier v. Colvin, No. CV414-004, 2015

WL 3622619, at *1 (S.D. Ga. June 9, 2015) (unpublished) (“The fact

that [the p]laintiff disagrees with the ALJ’s decision, or that

there is other evidence in the record that weighs against the ALJ’s

decision, does not mean that the decision is unsupported by

substantial evidence.”). Here, as detailed above, the ALJ

supported her RFC findings with substantial evidence, and Plaintiff

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has failed to show that the evidence he relies upon should have

compelled the ALJ to include allowances for off-task time, extra

breaks, and absenteeism in the RFC.

In light of the foregoing analysis, Plaintiff’s first and only

assignment of error provides no basis for relief.

III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

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

Summary Judgment (Docket Entry 11) be denied, and that this action

be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

July 5, 2023

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