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”
How later courts described this case
- 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”
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RHETH A. F., )
)
Plaintiff, )
)
v. ) 1:21CV141
)
MARTIN J. O’MALLEY, )
Commissioner of Social )
Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rheth A. F., brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of the
final decision of Defendant, the Commissioner of Social Security
(the “Commissioner”), denying Plaintiff’s claim for Disability
Insurance Benefits (“DIB”). (Docket Entry 1.) The Commissioner
has filed the certified administrative record (Docket Entry 14
(cited herein as “Tr. __”)), and both parties have submitted
dispositive briefs in accordance with Rule 5 of the Supplemental
Rules for Social Security Actions under 42 U.S.C. § 405(g) (Docket
Entry 17 (Plaintiff’s Brief); Docket Entry 18 (Commissioner’s
1 On December 20, 2023, President Joseph R. Biden, Jr., appointed Martin
J. O’Malley as Commissioner of the Social Security Administration. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley should
substitute for Kilolo Kijakazi as Defendant in this suit. Neither the Court nor
the parties need take any further action to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Memorandum); Docket Entry 20 (Plaintiff’s Reply)). For the reasons
that follow, the Court should enter judgment for the Commissioner.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB (Tr. 356-63), alleging a disability
onset date of November 6, 2007 (see Tr. 343). Upon denial of that
application initially (Tr. 135-42, 172-75) and on reconsideration
(Tr.143-50, 177-80), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 181-82). Plaintiff
(proceeding pro se) and a vocational expert (“VE”) attended the
hearing. (Tr. 108-22.) The ALJ subsequently ruled that Plaintiff
did not qualify as disabled under the Act. (Tr. 151-67.) The
Appeals Council thereafter granted Plaintiff’s request for review
(Tr. 168-71, 236), because the ALJ’s “decision [1)] d[id] not
evaluate the opinion of [Plaintiff]’s treating orthopedist, Richard
Ramos, M.D., that [Plaintiff wa]s unable to work” (Tr. 169 (citing
Tr. 632, 638, 642, 645)), 2) “reference[d Plaintiff]’s consistent
use of a single point cane for ambulation, but . . . d[id] not
evaluate the medical necessity of the assistive device” (id.), and
3) “d[id] not evaluate Acquiescence Ruling 15-1(4) in the
evaluation of Listing 1.04A” (Tr. 170). As a result, the Appeals
Council ordered the ALJ to “obtain evidence from a medical expert
[(‘ME’)] related to the nature and severity of and functional
limitations resulting from [Plaintiff]’s impairment” (id.), as well
as to “offer [Plaintiff] an opportunity for a [new] hearing, take
2
any further action needed to complete the administrative record[,]
and issue a new decision” (Tr. 171).
A different ALJ convened a new hearing, which Plaintiff, his
attorney, an ME, and a new VE attended. (Tr. 40-84.)2 Following
that hearing, the ALJ issued a decision finding Plaintiff not
disabled under the Act. (Tr. 16-39.) The Appeals Council later
denied Plaintiff’s request for review (Tr. 5-10, 355, 542-43),
thereby making the ALJ’s ruling the Commissioner’s final decision
for purposes of judicial review.
In rendering that decision, the ALJ made the following
findings later adopted by the Commissioner:
1. [Plaintiff] last met the insured status requirements
of the . . . Act on December 31, 2013.
2. [Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
November 6, 2007 through his date last insured of
December 31, 2013.
2 During the hearing, Plaintiff attempted to amend his alleged onset date
from November 6, 2007, to June 23, 2012, the day after the state agency denied
a previous application by Plaintiff for DIB. (See Tr. 45-46.) The ALJ
responded, “I think that’s fine, and I will accept that onset date and proceed
from there, and to consider the full period.” (Tr. 46 (emphasis added).) The
ALJ’s statement that he “w[ould] accept that onset date” (id.) suggests that he
allowed Plaintiff’s amendment of the onset date to June 23, 2012, but the ALJ’s
remark that he would “consider the full period” (id.), by contrast, implies that
he would evaluate the “full period” from Plaintiff’s original alleged onset date,
November 6, 2007, to his date last insured, December 31, 2013. Consistent with
the latter interpretation, the ALJ’s decision covers the entire period from
November 6, 2007, to December 31, 2013. (See Tr. 22, 32.) Accordingly, this
Recommendation will also consider the period from November 6, 2007, to December
31, 2013.
3
3. Through the date last insured, [Plaintiff] had the
following severe impairments: degenerative disc disease,
degenerative joint disease, facet disease, diabetes
mellitus type 2, obesity, polyneuropathy, hypertension,
coronary artery disease with residual effects of past
myocardial infarction, and ischemic heart disease.
. . .
4. Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5. . . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform sedentary
work . . . except he can lift and carry a maximum of ten
pounds, and push and pull the same. He can sit for up to
six hours, stand and walk for up to two hours, and uses
a cane for ambulation. He can occasionally use ramps and
stairs, balance, stoop, kneel, and crouch. He can
frequently reach, handle, finger, and feel bilaterally.
He can have no exposure to workplace hazards such as
unprotected heights, dangerous machinery, or ladders,
ropes or scaffolds. He can have no exposure to extremes
of heat or cold.
. . .
6. Through the date last insured, [Plaintiff wa]s
unable to perform any past relevant work.
. . .
10. Through the date last insured, considering
[Plaintiff]’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from November 6, 2007, the
4
alleged onset date, through December 31, 2013, the date
last insured.
(Tr. 22-32 (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 . . . 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, “a
reviewing court must uphold the factual findings of the ALJ
[underlying the denial of benefits] 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, 390 (1971)). “It consists of
5
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 brackets 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
engage in any substantial gainful activity by reason of any
6
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)).3 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . 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
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any
other work.” Albright v. Commissioner of Soc. Sec. Admin., 174
3 The Act “comprises two disability benefits programs. [DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . 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).
7
F.3d 473, 475 n.2 (4th Cir. 1999).4 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 179.5 Step four
then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant
4 “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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
5 “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.
8
does not qualify as disabled. Id. at 179-80. However, if the
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 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
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 567.6
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’s RFC assessment fails to establish the actual
extent to which the sedentary occupational base is eroded by
[Plaintiff]’s need to use a cane because the ALJ failed to evaluate
whether [Plaintiff] requires a cane for balance because of
significant involvement of bother [sic] lower extremities or to
discuss why his reported symptom-related need to use a cane for
6 A claimant thus can qualify as disabled 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.”).
9
both standing and balance while walking can or cannot reasonably be
accepted as consistent with the medical and other evidence” (Docket
Entry 17 at 4 (bold font and block formatting omitted); see also
Docket Entry 20 at 2-3);
2) “[t]he ALJ violated 20 C.F.R. § 404.1527(b) & (c) and
Social Security Ruling 96-8p[, Policy Interpretation Ruling Titles
II and XVI: Assessing Residual Functional Capacity in Initial
Claims, 1996 WL 374184 (July 2, 1996) (‘SSR 96-8p’)] by failing to
assign weight to medical opinions of treating pain management
specialist Dr. Ramos, failing to determine whether those treating
source medical opinions [we]re entitled to controlling weight, and
by failing to explain why the opinions were not adopted” (Docket
Entry 17 at 8 (bold font and block formatting omitted); see also
Docket Entry 20 at 4-5);
3) “[t]he ALJ relied on an incorrect regulatory framework when
he assessed [Plaintiff]’s [RFC]” (Docket Entry 17 at 12 (bold font
and block formatting omitted)); and
4) “[t]he ALJ committed a reversible error by relying on
limited daily activities performed by [Plaintiff] as support for
the hearing decision’s [RFC] assessment without considering the
limited extent to which [Plaintiff] can perform such activities”
(id. at 14 (bold font and block formatting omitted); see also
Docket Entry 20 at 5-6).
10
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (Docket Entry 18 at 5-16.)
1. Plaintiff’s Cane Use
In Plaintiff’s first issue on review, he maintains that “[t]he
ALJ’s RFC assessment fails to establish the actual extent to which
the sedentary occupational base is eroded by [Plaintiff]’s need to
use a cane because the ALJ failed to evaluate whether [Plaintiff]
requires a cane for balance because of significant involvement of
bother [sic] lower extremities or to discuss why his reported
symptom-related need to use a cane for both standing and balance
while walking can or cannot reasonably be accepted as consistent
with the medical and other evidence.” (Docket Entry 17 at 4 (bold
font and block formatting omitted); see also Docket Entry 20 at 2-
3.) More specifically, Plaintiff argues that, “[w]hen explaining
the RFC finding regarding use of a cane, the ALJ failed to
acknowledge [Plaintiff]’s testimony that[,] in addition to using
cane [sic] when walking, he uses the cane both while standing and
to assist his balance because of unsteadiness when walking.”
(Docket Entry 17 at 7 (citing Tr. 26).) According to Plaintiff,
“[Social Security R]uling [96-9p, Policy Interpretation Ruling
Titles II and XVI: Determining Capability to Do Other Work –
Implications of a Residual Functional Capacity for Less Than a Full
Range of Sedentary Work, 1996 WL 374185 (July 2, 1996) (‘SSR 96-
9p’) ] specifies that ‘the occupational base for an individual who
11
must use such a device for balance because of significant
involvement of both lower extremities (e.g., because of a
neurological impairment) may be significantly eroded.’” (Id. at 6
(quoting SSR 96-9p, 1996 WL 374185, at *7).) Those contentions
miss the mark.
“To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need
for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed (i.e., whether
all the time, periodically, or only in certain situations; distance
and terrain; and any other relevant information).” SSR 96-9p, 1996
WL 374185, at *7 (emphasis added). Moreover, “the legal issue does
not turn on whether a cane was ‘prescribed’ . . . but whether a
cane was ‘medically required.’” Spaulding v. Astrue, 379 F. Appx
776, 780 (10th Cir. 2010).
The ALJ provided the following explanation for his inclusion
of “a cane for ambulation” in the RFC (Tr. 25):
[Plaintiff ] testified that he uses a cane mainly for
pain when he takes steps. He has used the cane since
sometime near to his original onset date and continued to
use it through the date of hearing. This is generally
consistent with the medical evidence and [the ALJ] has
included the use of a cane in the [RFC].
(Tr. 26.)
The ALJ did not err in limiting Plaintiff’s cane use to
ambulation (see Tr. 25), because Plaintiff has failed to produce
12
“medical documentation” of his “need for a [cane]” and “the
circumstances for which it is needed,” SSR 96-9p, 1996 WL 374185,
at *7. Although Plaintiff testified that an unnamed “doctor
prescribed [his cane] .. . within the first year or two after [his
October 2007] injury” (Tr. 50), he has not produced any evidence of
that prescription (see Tr. 544-77, 627-710, 776-77, 968; see also
Docket Entries 17, 20). Moreover, although Plaintiff’s treating
orthopedist Dr. Ramos consistently noted Plaintiff’s use of a cane
(see Tr. 653, 655-56, 662, 671, 673-74, 676-77, 686),
Significantly, Dr. Ramos did not offer an opinion regarding the
medical necessity of Plaintiff’s cane (see Tr. 627-710).
Those considerations preclude relief on this assignment of
error. See Morrison v. Saul, No. 3:20CV223, 2021 WL 795190, at *4
(W.D.N.C. Mar. 2, 2021) (unpublished) (rejecting the plaintiff’s
argument that ALJ erred by failing to include cane in RFC, “because
no provider ever stated that [the plaintiff] needed the cane, only
that he sometimes presented with one”); Thomas H. v. Berryhill, No.
4:17CV41, 2018 WL 10806837, at *8 (W.D. Va. Aug. 27, 2018)
(unpublished) (“The mere fact that [the plaintiff] sometimes
presented to clinic appointments with a cane [] does not establish
his underlying medical need to use that device. Cf. Craig, 76 F.3d
at 590 n.2 (‘There is nothing objective about a doctor saying,
without more, “I observed my patient telling me she was in
pain.”’).”), recommendation adopted sub nom. Harris v. Berryhill,
13
2019 WL 1372164 (W.D. Va. Mar. 26, 2019) (unpublished).
Furthermore, Plaintiff’s subjective testimony that he used a cane
“when [he] walk[ed] . . . [and] when [he was] just standing up”
(Tr. 61), “[m]ainly for the pain when [he] took steps” (Tr. 51),
and to “aid in [his] balance, because . . . [he] was so
unsteady . . . when [he] did try to walk” (id.), does not
constitute “medical documentation” sufficient to establish the
medical necessity of his cane, SSR 96-9p, 1996 WL 374185, at *7.
See Hale v. Kijakazi, No. 1:20CV277, 2021 WL 3625319, at *2
(W.D.N.C. Aug. 16, 2021) (unpublished) (holding that “[s]ubjective
claims . . . are insufficient” to establish medical documentation
of cane necessity required by SSR 96-9p (internal quotation marks
omitted)); Morrison, 2021 WL 795190, at *4 (“[The plaintiff] offers
no medical evidence regarding his cane or the circumstances he
needs it for. Instead, he offers his own lay testimony and cites
examination findings regarding his lower extremities. But that
evidence merely describes [his] symptoms — it does not provide
medical documentation establishing that [he] needed the
cane . . . .” (internal parenthetical citations omitted)); Thomas
H., 2018 WL 10806837, at *8 (“[The plaintiff]’s subjective belief
that he needs a cane to walk and for stability due to muscle
atrophy in the right leg and pain in his legs and hips is not
acceptable ‘medical documentation’ that could establish his
underlying medical need to use a cane to aid in walking or
14
standing.” (quoting SSR 96-9p, 1996 WL 374185, at *7) (some
internal quotation marks and citations omitted)).
In light of the absence of “medical documentation”
establishing either the medical necessity of Plaintiff’s cane or
the circumstances for which Plaintiff needed it, SSR 96-9p, 1996 WL
374185, at *7, the ALJ labored under no obligation to include cane
usage at all in the RFC, and certainly did not err by according
Plaintiff the benefit of the doubt and including the “use[ of] a
cane for ambulation” in the RFC (Tr. 25). Plaintiff’s first issue
on review thus fails as a matter of law.7
2. Opinions of Dr. Ramos
Next, Plaintiff maintains that “[t]he ALJ violated 20 C.F.R.
§ 404.1527(b) & (c) and SSR 96-8p by failing to assign weight to
medical opinions of treating pain management specialist Dr. Ramos,
failing to determine whether those treating source medical opinions
[we]re entitled to controlling weight, and by failing to explain
7 To the extent Plaintiff contends that the ALJ erred by failing to
specifically determine the extent to which Plaintiff’s cane use eroded the
sedentary occupational base (see Docket Entry 17 at 5-8), that argument also
fails. SSR 96-9p advises that, in situations involving the use of hand-held
assistive devices, “it may be especially useful to consult a vocational resource
in order to make a judgment regarding the [claimant]’s ability to make an
adjustment to other work,” SSR 96-9p, 1996 WL 374185, at *7. The ALJ here did
precisely that. He asked the VE whether jobs existed in significant numbers in
the national economy for an individual with Plaintiff’s age, education, work
experience, and RFC, (which included the requirement that Plaintiff “use a cane
for ambulation”) (Tr. 78), and the VE responded that such individual could
perform the jobs of order clerk, document preparer, and final assembler (see Tr.
78-79). The ALJ thereafter adopted the VE’s testimony and found, at step five
of the SEP, that Plaintiff did not qualify as disabled because he remained able
to perform those same jobs. (See Tr. 32.)
15
why the opinions were not adopted.” (Docket Entry 17 at 8 (bold
font and block formatting omitted); see also Docket Entry 20 at 4-
5.) In particular, although Plaintiff acknowledges “[t]he ALJ
found that opinions expressed by . . . Dr. Ramos[] that [Plaintiff]
was at various times unable to work or . . . unable to ever attain
gainful employment[ we]re opinions on issues reserved to the
Commissioner that [we]re not entitled to any weight” (Docket Entry
17 at 9 (citing Tr. 30)), Plaintiff argues that “Dr. Ramos made
other statements in his treatment notes that the ALJ did not
address” (id.; see also id. at 9-11 (describing Dr. Ramos’s
statements that Plaintiff believes constituted medical opinions the
ALJ failed to address (citing Tr. 641, 654, 657-58, 662, 664, 679,
681, 684, 705, 1014, 1062))). In Plaintiff’s view, those
“statements . . . are medical opinions because they reflect Dr.
Ramos’[s] judgments about the nature and severity of [Plaintiff]’s
medical impairments, including his symptoms and prognosis” (id. at
11-12), and “[t]h[o]se medical opinions . . . support[ed
Plaintiff]’s claim of disability because they indicate[d] that his
pain symptoms continued to be severe and ongoing despite the pain
management treatment he received” (id.). Plaintiff’s arguments
fall short.
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment. 20 C.F.R.
16
§ 404.1527(c)(2) (“[T]reating sources . . . provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”). The rule also
recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords an opinion. See 20 C.F.R. § 404.1527(c)(2)(ii). Moreover,
as subsections (2) through (4) of the rule detail, a treating
source’s opinion, like all medical opinions, deserves deference
only if well-supported by medical signs and laboratory findings and
consistent with the other substantial evidence of record. See 20
C.F.R. § 404.1527(c)(2)-(4). “[I]f a physician’s opinion is not
supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less
weight.” Craig, 76 F.3d at 590 (emphasis added). Finally,
statements from medical sources (and even treating sources) that a
claimant qualifies as disabled or cannot work do not constitute
“medical opinions as described in [§ 404.1527(a)(1)], but are,
17
instead, opinions on issues reserved for the Commissioner” and do
not warrant controlling weight. 20 C.F.R. § 404.1527(d).®
Plaintiff makes the following argument regarding Dr. Ramos’s
statements that Plaintiff construes as medical opinions that the
ALJ failed to weigh:
[Dr. Ramos] stated in February 2008 that “[i]f Dr. Jones
does not recommend surgery then I think [Plaintiff] is
going to be stuck between a rock and a hard place and he
is going to need to live with a certain component of his
pain” (Tr. 641). Dr. Ramos stated in July 2008 that
“[Ti]ln good faith I am trying to treat [Plaintiff’s] pain.
[Discontinue] Opana ER since it is really not helping”
(Tr. 654). He stated in November 2008 that
“Tulnfortunately, none of my injections have helped. If
Dr. Jones is recommending surgery then I think this is
the next step for [Plaintiff] to proceed with unless he
just wants to manage his pain with medicines” (Tr. 657).
Dr. Ramos stated in February 2009 that “[u]nfortuneately
[sic], again [Plaintiff] is not doing well. He needs to
follow up with Dr. Jones to see if there is anything he
would recommend from a surgical standpoint, otherwise, I
think [Plaintiff] will have to live with a certain
component of his pain” (Tr. 658). In November 2009, Dr.
Ramos discontinued prescription of Opana, stating that
“it is not helping” (Tr. 662).
Dr. Ramos indicated in December 2009 that Joyce [sic] had
asked if there was any stronger pain medication that
[sic] Opana 10mg IR (Tr. 664). [Dr. Ramos] stated in
response that “[u]nfortunately, there is not. I had
[Plaintiff] on the extended release in the past and he
really did not notice a big difference, that is why he is
8 For claims filed on or after March 27, 2017, the Commissioner has
significantly amended the regulations governing opinion evidence. The new
regulations provide that ALJs “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.”
20 C.F.R. § 404.1520c. As Plaintiff filed his claim for DIB prior to March 27,
2017 (see Tr. 356-63), this Recommendation has analyzed Plaintiff’s claim
pursuant to the treating physician rule set out above.
18
currently just on the immediate release. In good faith
I_am trying to treat his pain” (Id.).
Dr. Ramos stated in March 2012 that Joyce [sic] “really
does appear to be stable on this medication” (Tr. 677).
But Dr. Ramos stated in March 2012 that “[wle have really
just been trying to manage his pain” (Tr. 679). In May
2012, Dr. Ramos noted that there were production issues
with the company that manufactures Opana and that “it has
really disrupted [Plaintiff]’s pain management. He
actually has been on multiple medications and none have
really worked as well as the Opana, but are having issued
[sic] getting it” (Tr. 681).
Dr. Ramos stated in May 2012 that Nucynta was giving
[Plaintiff] “better pain control,” but [Dr. Ramos] also
stated that “I understand it is not lower than he would
obviously like” (Tr. 684). In August 2013, Dr. Ramos
stated that he would refer [Plaintiff] for a second
opinion from another pain specialist and that “I have
never denied that he is experiencing pain” (Tr. 705).
In July 2017, Dr. Ramos stated that “medial branch blocks
in [Plaintiff’s] lower back really did not do anything”
(Tr.1062). Dr. Ramos stated in July 2018 that
[Plaintiff]’s pain “is something that he may have to
manage unfortunately” (Tr. 1014).
(Docket Entry 17 at 9-11 (emphasis and spaces in citations added) .)
To begin, the statements by Dr. Ramos emphasized above do not
qualify as “medical opinions.” Under the regulations, “medical
opinions” are “statements from acceptable medical sources that
reflect judgments about the nature and severity of [a claimant’s]
impairment(s), including [his or her] symptoms, diagnosis and
prognosis, what [he or she] can still do despite impairment(s), and
[his or her] physical or mental restrictions.” 20 C.F.R.
§ 404.1527 (2) (emphasis added) (version eff. until Mar. 26,
2017). In contrast to that definition, Dr. Ramos’s remarks largely
19
memorialize Plaintiff’s subjective statements about his pain level
(see Tr. 641, 658, 681, 684, 1014) and the efficacy of pain
medications and injections (see Tr. 654, 657, 662, 664, 677, 681,
684, 1062), or discuss Plaintiff’s treatment options (see Tr. 641,
657, 1014), and offer neither judgments regarding the severity of
Plaintiff’s impairments, nor functional restrictions caused by
those impairments. See Flores v. Colvin, No. 1:13CV513, 2016 WL
831941, at *6 (M.D.N.C. Feb. 29, 2016) (unpublished) (Webster,
M.J.) (“[The physician] determined that [the p]Jlaintiff had
resistance to flexion/extension of the elbow joints, positive
bilateral straight leg raise tests at less than 30 degrees, and
reduced knee range of motion. ... [The physician]’s assessment[s
were] not [] medical opinion[]s . . . [but rather] merely physical
examinations. The assessments did not provide an opinion about how
[the plaintiff]’s symptoms affect her ability to function... .”
(emphasis added) (internal quotation marks and citations omitted)),
recommendation adopted, 2016 WL 3102023 (M.D.N.C. June 2, 2016)
(unpublished) (Schroeder, J.); Rivera v. Colvin, No. 5:11CV569,
2013 WL 2433515, at *5 (E.D.N.C. June 4, 2013) (unpublished)
(finding physician’s “report [that] describes [the] plaintiff’s
complaints . . . [of] fairly disabling pain in her neck
and . . . pain [] worse with sitting,” and that notes, “in a
section marked plan . . . [that the physician] will wait until
after [the plaintiff] has a surgical evaluation[ and, i]f she
20
elects conservative treatment[, the physician] will consider a
cervical [epidural steroid injection], physical therapy and
medications . . . does not include a medical opinion as to [the]
plaintiff’s functional limitations,” as well as that “the ALJ was
not required under [SSA] regulations to expressly state the weight
he was applying to the treatment notes” (emphasis added) (internal
quotation marks and brackets omitted)); Leovao v. Astrue, No.
2:11CV54, 2012 WL 6189326, at *6 (W.D.N.C. Nov. 14, 2012)
(unpublished) (“[The p]laintiff argues that the ALJ’s decision
should be remanded because he did not properly consider [a
physician]’s opinion that [the p]laintiff’s poor pain control
impeded his return to work. . . . While the ALJ did not mention
[the physician]’s statement that [the p]laintiff should see a pain
specialist because pain control was impeding his return to work,
the ALJ is not tasked with the impossible burden of mentioning
every piece of evidence that may be placed into the
[a]dministrative [r]ecord. . . . [The physician] did not provide
an opinion regarding the extent of [the p]laintiff’s pain-related
limitations. Consequently, [the physician]’s statement about pain
management does not cast doubt on the ALJ’s RFC assessment.”
(emphasis added) (internal quotation marks and citations omitted)),
recommendation adopted, 2012 WL 6186824 (W.D.N.C. Dec. 12, 2012)
(unpublished); Money v. Astrue, No. 5:09CV42, 2009 WL 7449241, at
*6 (W.D.N.C. Dec. 9, 2009) (unpublished) (“[The p]laintiff asserts
21
that the ALJ should have considered the statements by her treating
rheumatologist . . . that [Plaintiff] was severely restricted in
physical and social activities due to generalized weakness and
pain, and that she was unable to work in any capacity at this time.
A review of [the rheumatologist]’s notes, however, reveals that
these statements were not made by [the rheumatologist]. Rather,
these statements constitute [the rheumatologist]’s memorializations
of [the p]laintiff’s social history, as reported to him by [the
p]laintiff. [The rheumatologist]’s recording of [the p]laintiff’s
reports are not medical source opinions entitled to controlling
weight.” (emphasis added) (internal quotation marks and citations
omitted)), aff’d, 2011 WL 666729 (W.D.N.C. Feb. 14, 2011)
(unpublished).
Even assuming, arguendo, that any of Dr. Ramos’s above-
described statements qualified as “medical opinions,” the ALJ’s
failure to expressly weigh those statements constitutes harmless
error under the factual circumstances of this case. 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”). Here, the ALJ expressly acknowledged Plaintiff’s severe
pain at step two by finding Plaintiff’s degenerative disc disease,
degenerative joint disease, and facet disease severe impairments
22
(see Tr. 22), specifically discussed Dr. Ramos’s treatment and
findings in the ALJ’s narrative explanation of the RFC (see Tr. 26-
28), and provided significant restrictions in the RFC to account
for Plaintiff’s pain, including a limitation to just 10 pounds of
lifting/carrying/pushing/pulling, a restriction to only two hours
of standing and walking in an eight-hour workday, and an allowance
of a cane for ambulation (see Tr. 24-25).
Notably, Plaintiff has not offered any argument how further
consideration of Dr. Ramos’s statements by the ALJ would have
resulted in a different outcome in Plaintiff’s case. (See Docket
Entries 17, 20.) Accordingly, the Court should decline remand on
this ground. See Hooker v. Colvin, No. 5:15CV478, 2016 WL 4940197
(E.D.N.C. Sept. 16, 2016) (unpublished) (finding ALJ’s error in not
weighing physician’s “statement that [the] plaintiff’s knees are
getting worse and certainly are limiting . . . was harmless[,
because] . . . the ALJ’s determinations that [the] plaintiff is
capable only of light exertional work; that she is limited to
standing and walking only for four hours; and that she can bend,
stoop, kneel, crouch, and crawl only on an occasional basis, align
with [the physicians]’s general opinion that [the] plaintiff’s
knees are limiting” (internal quotation marks omitted)); Hose v.
Colvin, No. 1:15CV662, 2016 WL 1627632, at *4–5 (M.D.N.C. Apr. 22,
2016) (unpublished) (“[T]o the extent the radiologist’s
interpretation of the MRI constitutes a ‘medical opinion,’ any
23
failure by the ALJ to expressly indicate the weight she afforded to
that opinion constitutes harmless error under the circumstances
presented by this case. . . . [T]he ALJ’s decision accommodated
the radiologist’s opinion[, because] . . . the ALJ found at step
two of the SEP that [the p]laintiff suffered from severe . . .
lumbar degenerative disc disease, and restricted [the p]laintiff to
light work . . . with a sit-stand option and significant postural
limitations. Given [the p]laintiff’s failure to explain how any
further commentary by the ALJ about the equivocal comments of the
MRI reviewer plausibly could have affected the outcome of the case,
the [c]ourt should decline to remand on this ground.” (internal
quotations marks and citations omitted)), recommendation adopted,
slip op. (M.D.N.C. May 10, 2016) (unpublished) (Biggs, J.);
Mitchell v. Astrue, No. 2:11CV56, 2013 WL 678068, at *5 (W.D.N.C.
Feb. 25, 2013) (unpublished) (deeming harmless error the ALJ’s
failure to weigh “[a physician]’s statement that the [p]laintiff
probably does have a great deal of pain and loss of stamina due to
his back condition,” because “ALJ acknowledged that the [p]laintiff
experienced some degree of pain and included limitations in his RFC
due to his back condition”).
Put simply, Plaintiff’s second assignment of error does not
establish a basis for remand.
24
3. Incorrect Regulatory Framework
Plaintiff’s third issue on review contends that “[t]he ALJ
relied on an incorrect regulatory framework when he assessed
[Plaintiff]’s [RFC].” (Docket Entry 17 at 12 (bold font and block
formatting omitted).) According to Plaintiff, the United States
Court of Appeals for the Fourth Circuit has “found that an ALJ
‘relied on an incorrect regulatory framework when he assessed [the
plaintiff]’s RFC[,]’ because that ALJ ‘did not cite to 20 C.F.R.
§ 416.945, . . . [a r]egulation[ ] that . . . explains how ALJ’s
[sic] should assess a claimant’s RFC,’ [and] did not ‘cite to SSR
96-8p, . . . [which] provides guidance on how to properly evaluate
and [sic] RFC,’” but rather based the “RFC assessment
. . . ‘entirely on [Social Security Ruling 96-7p, Policy
Interpretation Ruling Titles II 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”)] and
[Social Security Ruling 16-3p, Titles II and XVI: Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304 (Oct. 25, 2017)
(“SSR 16-3p”)], which set out the process ALJs use to evaluate the
intensity and persistence of [a claimant’s] symptoms.’” (Id. at
12-13 (internal quotation marks omitted) (quoting Dowling v.
Commissioner of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir.
2021)).) Plaintiff notes that the Dowling court found that,
because “‘an RFC assessment is a separate and distinct inquiry from
25
a symptom evaluation, [ ] the ALJ erred by treating them as one and
the same.’” (Id. at 13 (quoting Dowling, 986 F.3d at 387).)
Plaintiff maintains that, “like the Dowling ALJ,” “the ALJ in this
case cited SSR 16-3p and 20 C.F.R. [§] 404.1529, the regulation
titled ‘How we evaluate symptoms, including pain’ [b]ut . . . did
not cite to 20 C.F.R. § 416.1545 [sic], titled ‘our [sic] [RFC],’
or SSR 96-8p.” (Id. (citing Tr. 19) (internal parenthetical
citations omitted).) Those arguments miss the mark.
Contrary to Plaintiff’s arguments, the ALJ here did cite to
the correct standards governing the assessment of RFC. Although
Plaintiff focuses on one page of the ALJ’s decision to fault the
ALJ for failing to cite the proper standards (see Docket Entry 17
at 12-13 (citing Tr. 19)), Plaintiff ignores the following
recitation by the ALJ of the appropriate standards:
Before considering step four of the [SEP], the [ALJ] must
first determine [Plaintiff]’s [RFC] (20 CFR 404.1520(e)).
An individual’s [RFC] is his ability to do physical and
mental work activities on a sustained basis despite
limitations from his impairments. In making this
finding, the [ALJ] must consider all of [Plaintiff]’s
impairments, including impairments that are not severe
(20 CFR 404.1520(e) and 404.1545; SSR 96-8p).
(Tr. 21 (emphasis added).)
In light of the above-quoted paragraph, the ALJ did not err
under Dowling, and Plaintiff’s third issue on review falls short.
26
4. Daily Activities
Lastly, Plaintiff asserts that “[t]he ALJ committed a
reversible error by relying on limited daily activities performed
by [Plaintiff] as support for the hearing decision’s [RFC]
assessment without considering the limited extent to which
[Plaintiff] can perform such activities.” (Docket Entry 17 at 14
(bold font and block formatting omitted); see also Docket Entry 20
at 5-6.) In that regard, Plaintiff points out that the Fourth
Circuit “held in Woods v. Berryhill that an ‘[a]n ALJ may not
consider the type of activities a claimant can perform without also
considering the extent to which she can perform them.’” (Docket
Entry 17 at 14 (quoting Woods v. Berryhill, 888 F.3d 686, 694 (4th
Cir. 2018)).) Plaintiff faults the ALJ for finding that
Plaintiff’s ability to take his daughter to school and prepare
simple meals showed “‘an ability to stand and walk for short
stretches, lift and carry light items, and do some fine and gross
manipulation’” (id. at 15 (quoting Tr. 29)), because 1) “[t]he ALJ
disregarded . . . additional testimony by which [Plaintiff]
described that his ‘simple’ meal preparation was infrequent at
best, that his two older daughters actually took care of either
providing or preparing meals, that he was unable to do yardwork,
[and] that his daughters did almost all of the household chores”
(id. at 17; see also id. at 15-17 (describing additional testimony
27
(citing Tr. 63-64, 115-16))); 2) “[t]he ALJ [] disregarded the fact
that there was no testimony at the June 2020 hearing that
[Plaintiff] continued to take his younger daughter to school” (id.
at 17); and 3) “there is no evidence to support the ALJ’s
allegation that taking [Plaintiff]’s younger daughter to school in
March 2017 and preparing ‘simple’ meals required [Plaintiff] to be
able to ‘stand and walk for short stretches’ or to ‘lift and carry
light items’” (id.). For the reasons further discussed below,
Plaintiff’s contentions fail to demonstrate prejudicial error by
the ALJ.
SSR 16-3p, consistent with the Commissioner’s regulations,
adopts a two-part test for evaluating a claimant’s statements about
symptoms. See SSR 16-3p, 2017 WL 5180304, at *3; see also 20
C.F.R. § 404.1529. First, the ALJ “must consider whether there is
an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an
individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL 5180304,
at *3. A claimant must provide “objective medical evidence from an
acceptable medical source to establish the existence of a medically
determinable impairment that could reasonably be expected to
produce [the] alleged symptoms.” Id. Objective medical evidence
consists of medical signs (“anatomical, physiological, or
psychological abnormalities established by medically acceptable
clinical diagnostic techniques”) and laboratory findings “shown by
28
the use of medically acceptable laboratory diagnostic techniques.”
Id.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work. See id.
at *4. In making that determination, the ALJ must “examine the
entire case record, including the objective medical evidence; an
individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.” Id. Where
relevant, the ALJ will also consider the following factors in
assessing the extent of the claimant’s symptoms at part two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
29
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
Id. at *7-8. The ALJ cannot “disregard an individual’s statements
about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
the degree of impairment-related symptoms alleged by the
individual.” Id. at *5 (emphasis added).
In this case, the ALJ found, at part one of the subjective
symptom analysis, that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms,” but then determined, at part two, that Plaintiff’s
“statements concerning the intensity, persistence, and limiting
effects of [his] symptoms . . . [we]re not entirely consistent with
the medical evidence and other evidence in the record for the
reasons explained in th[e ALJ’s] decision.” (Tr. 25.) The ALJ
supported his part two finding with the following analysis:
The objective medical evidence and [Plaintiff]’s
treatment history are not entirely consistent with the
allegations of the severity of physical functional
limitations. Although [Plaintiff] alleges a limited
ability to stand, walk, sit and lift, his physical exams
and clinical observations generally demonstrated
effective ambulation with a single-point cane, normal
motor strength and intact sensation in all extremities,
and normal cervical spine range of motion. Further
[Plaintiff]’s reports of improvement of symptoms with
pain medication and medial branch block treatment noted
in the treatment records are inconsistent with [his]
allegations of disabling back pain. Also, the extent of
[Plaintiff]’s activities of daily living, including
taking his daughter to and from school and preparing
30
simple meals, is inconsistent with [Plaintiff]’s
allegations of extreme physical functional limitation.
. . .
The [RFC] is also consistent with [Plaintiff]’s
activities of daily living. For instance, [Plaintiff]
testified that he takes his daughter to and from school
about half the days, and can prepare his own simple
meals. These activities require an ability to stand and
walk for short stretches, lift and carry light items, and
do some fine and gross manipulation with the upper
extremities. Thus, a limitation to sedentary work with
additional assistive device, postural, manipulative, and
workplace environmental limitations adequately accounts
for [Plaintiff]’s reported range of physical limitations.
(Tr. 26-29 (emphasis added) (internal parenthetical citations
omitted).) None of Plaintiff’s challenges to that analysis carry
the day.
First, Plaintiff maintains that “[t]he ALJ
disregarded . . . additional testimony by which [Plaintiff]
described that his ‘simple’ meal preparation was infrequent at
best, that his two older daughters actually took care of either
providing or preparing meals, that he was unable to do yardwork,
[and] that his daughters did almost all of the household chores.”
(Docket Entry 17 at 17; see also id. at 15-17 (describing
additional testimony (citing Tr. 63-64, 115-16)).) As an initial
matter, the ALJ did not find that Plaintiff remained able to
perform yardwork and/or household chores (see Tr. 25-30) and,
therefore, Plaintiff’s testimony that he did not perform yardwork,
that he “ha[d] a dishwasher, so [he] d[id]n’t have to wash dishes
31
by hand,” and “usually” did not vacuum, sweep, or mop (Tr. 64) does
not adversely impact the ALJ’s finding that Plaintiff could prepare
simple meals and take his daughter to school. Beyond that, the ALJ
did not err by finding that Plaintiff “c[ould] prepare his own
simple meals” (Tr. 29), as that accurately captures Plaintiff’s
testimony at the hearing (see Tr. 116 (“[I]f I do prepare
something, it’s – you know, it’s nothing major. It’s something
pretty simple to do.”)). Had the ALJ found that Plaintiff prepared
simple meals regularly, consistently, or on a daily basis,
Plaintiff’s argument that the ALJ overstated the extent to which
Plaintiff could prepare such meals might have more credence. Here,
however, the ALJ did not err, because he found, consistent with
Plaintiff’s testimony (see Tr. 116), that he could prepare simple
meals, without assigning a frequency to that task (see Tr. 29; see
also Tr. 26). See O’Neil v. Astrue, No. 8:07CV1074, 2008 WL
1930584 at *3 (M.D. Fla. Apr. 30, 2008) (unpublished) (“[T]he ALJ’s
paraphrasing is close to [the p]laintiff’s actual testimony. [The
p]laintiff testified that she performed household chores; the ALJ
stated that [the p]laintiff performed household chores. . . . The
mere fact that the ALJ declined to quote [the p]laintiff directly
does not render [the ALJ’s] opinion deficient.”)
Second, Plaintiff argues that “[t]he ALJ [] disregarded the
fact that there was no testimony at the June 2020 hearing that
[Plaintiff] continued to take his younger daughter to school.”
32
(Docket Entry 17 at 17.) That argument, however, glosses over the
fact that Plaintiff’s insured status for DIB expired on December
31, 2013 (see Tr. 20, 22), and, thus, the absence of testimony
regarding Plaintiff’s continuing ability to take his daughter to
and from school at his June 2020 hearing holds no relevance to the
ALJ’s evaluation of Plaintiff’s ability to engage in daily
activities during the relevant period in this case ending on
December 31, 2013.
Third, Plaintiff contends that “there is no evidence to
support the ALJ’s allegation that taking [Plaintiff]’s younger
daughter to school in March 2017 and preparing ‘simple’ meals
required [Plaintiff] to be able to ‘stand and walk for short
stretches’ or to ‘lift and carry light items.’” (Docket Entry 17
at 17 (quoting Tr. 29).) Assuming that Plaintiff’s testimony
referred to driving his daughter to and from school (see Tr. 116
(“T have to take my daughter, my youngest daughter, to and from
school, on the days she’s with me.” (emphasis added))), the ability
to drive does not necessarily demonstrate an ability to stand,
walk, lift, or carry. However, Plaintiff’s ability to prepare
simple meals, even infrequently, shows that he maintained some
ability to stand, walk, and lift/carry small items. See McManigal
v. Berryhill, No. 1:16CV324, 2017 WL 4341846, at *9 (D. Idaho Sept.
29, 2017) (unpublished) (holding that the plaintiff’s “ability to
perform daily activities such as laundry, cooking, and grocery
33
shopping showed that he was capable of reaching and lifting at
least light items” (emphasis added)); Randall v. Soc. Sec. Admin.
Comm’r, No. CV-13-2025, 2014 WL 5432138, at *5 (D. Ariz. Oct. 24,
2014) (unpublished) (finding that “[the p]laintiff’s ability to
cook meals, pick up after herself, and carry laundry demonstrates
that she is capable of occasionally lifting and carrying small
items” (emphasis added) (internal quotation marks omitted)); Maslow
v. Commissioner of Soc. Sec., No. CIV. 07-1876, 2008 WL 2115096, at
*10 (D.N.J. May 19, 2008) (unpublished) (“[The p]laintiff’s
testimony regarding her daily life activities — doing light
shopping, preparing meals, making the bed, doing the dishes,
maintaining grooming and hygiene needs independently, and
socializing with friends — demonstrates her ability to perform
basic work activities, such as walking, standing, carrying, and
handling.” (emphasis added)).
Moreover, to the extent the ALJ erred by relying on
Plaintiff’s ability to take his daughter to and from school to
support the RFC’s standing, walking, lifting, and carrying
limitations, that error remains harmless under the circumstances of
this case. See generally Fisher, 869 F.2d at 1057 (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”). As the above-quoted analysis by the ALJ shows, in
34
evaluating the intensity of Plaintiff’s subjective symptoms, the
ALJ also appropriately relied on findings of “effective ambulation
with a single-point cane,” normal strength, intact sensation, no
atrophy, and no loss of balance, as well as Plaintiff’s statements
to his treatment providers describing relief from his pain
medications and medial branch blocks. (Tr. 26.) Accordingly,
Plaintiff cannot establish prejudice. See Krystal H. v. Saul, No.
4:19CV5, 2020 WL 5526499, at *6 (W.D. Va. July 20, 2020)
(unpublished) (deeming ALJ’s error in “consider[ing] the type of
daily activities [the plaintiff] could perform without explicitly
considering her testimony describing the limited extent to which
she could perform them . . . harmless . . . because the ALJ gave
other legally adequate reasons to support his credibility and RFC
assessments, and those reasons are supported by substantial
evidence in the record”), recommendation adopted, 2020 WL 6047756
(W.D. Va. Oct. 13, 2020) (unpublished).
In sum, Plaintiff’s fourth and final issue on review lacks
merit.
III. CONCLUSION
Plaintiff has not established an error warranting remand.
35
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, and that this matter be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 26, 2024
36