The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RENA K., )
)
Plaintiff, )
)
v. ) 1:23CV683
)
MARTIN J. O7MALLEY;,! )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Rena K. (“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 the Commissioner of Social Security’s final decision
denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under, respectively, Titles II and XVI of the Act. The Parties filed cross-
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 in May 2020, alleging a
disability onset date of October 1, 2019. (T'r. at 17, 76, 93, 231, 238.)? Her applications were
December 20, 2023, Martin J. O'Malley was sworn in as Commissioner of Social Security, replacing Acting
Commissioner Kilolo Kijakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.
O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken
to continue this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
? Transcript citations refer to the Sealed Administrative Record [Doc. #6].
denied initially (T'r. at 75-110) and upon reconsideration (Tr. at 111-32). Thereafter, Plaintiff
requested an administrative heating de novo before an Administrative Law Judge (“ALJ”).
(Tr. at 164-66.) On July 14, 2022, Plaintiff, along with her attorney, attended the subsequent
telephonic hearing, during which both Plaintiff and an impartial vocational expert testified.
(Tr. at 17.) Following the hearing, the AL] concluded that Plaintiff was not disabled within
the meaning of the Act. (I'r. at 29.) The Appeals Council denied Plaintiffs request for review
on June 20, 2023, thereby making the AL]’s ruling the Commissionet’s final decision for
purposes of judicial review. (Tr. at 1-6.)
II. 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 review 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
cotrect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets
and quotation omitted).
“Substantial evidence means such televant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(internal quotation omitted). “It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Mastto v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(internal brackets and quotation 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 omitted).
“In reviewing for substantial evidence, the court should not undertake to re-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 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 (internal brackets
and quotation omitted). “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 burden 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 reason of any medically determinable physical or mental impairment which can be
expected to result in death, or which has lasted or can be expected to last for a continuous
petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDD), established by Title II of the Act as amended, 42 US.C. § 401 ef 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 ef 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 CFR. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 1.1.
“The Commissioner 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 period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed tmpaitment; (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
forecloses a disability designation and ends the inquity. 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 the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, the claimant is
disabled. Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but
falters at step three, 1e., “[i]f a claimant’s impairment is not sufficiently severe to equal ot
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity “RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on
+ “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
hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation omitted)).
The REC 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 impaitments).” 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 RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
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]
impairments.” 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 clatmant’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.
Il. DISCUSSION
In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date and therefore concluded that Plaintiff met her burden at
step one of the sequential evaluation process. (Tr. at 20.) At step two, the ALJ further
determined that Plaintiff suffered from the following severe impairments:
osteoarthritis of the bilateral knees, degenerative changes in the back,
hyperlipidemia, obesity, hypertension, and obstructive sleep apnea.
(Tr. at 20.) She also identified Plaintiffs depression with anxiety as a non-sevete impairment.
at 20-22.) At step three, the AL] found that none of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 22-23.) Therefore, the ALJ assessed
Plaintiffs RFC and determined that she could perform light work with limitations. (Tr. at 23-
28.) Specifically, the AL] found as follows:
[Plaintiff] has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b), which consists of lifting and carrying up
to 20 pounds occasionally and 10 pounds frequently. She is limited to frequent
stooping; and occasional kneeling, crouching, crawling, and climbing of ramps
and stairs. She should never climb ladders, ropes, or scaffolds. [Plaintiff] must
avoid concentrated exposure to hazards such as unprotected heights and
dangerous moving machinery.
(Tr. at 23.) At step four, the AL] determined, based on the testimony of the vocational expert,
that Plaintiff remained capable of performing her past relevant work as a packer and trimmer.
(Tr. at 28.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr.
at 28-29.)
Plaintiff now raises three challenges to the ALJ’s decision. First, Plaintiff argues that
the AL] did not sufficiently analyze or explain the impact of Plaintiffs mild mental limitations
in setting the RFC, citing Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). (PL’s Br. [Doc. #9]
at 3-8.) Second, Plaintiff contends that the ALJ erred in analyzing the severity of Plaintiffs
sleep apnea by relying on Plaintiff's failure to obtain a CPAP machine that she could not
afford. (PI.’s Br. at 8-10.) Finally, Plaintiff alleges that the AL) made no finding as to whether
Plaintiffs non-prescribed cane was medically necessary. (Pl.’s Br. at 10-11.) The Coutt
considers each of these contentions in turn, but ultimately concludes that none of these issues
requite remand.
A. Mild Mental Limitations
At step two of the sequential analysis the ALJ acknowledged medical records
documenting Plaintiffs history of depression and anxiety. (Tr. at 20-21.) ‘The AL] considered
those records and the medical opinions in deciding whether Plaintiffs mental impairments
were severe impairments impacting her ability to work. As part of the analysis, the ALJ
analyzed those mental impairments using a five-point scale (none, mild, moderate, marked,
and extreme) to tate the degree of functional limitation in the four broad functional areas,
commonly known as “paragraph B” criteria: (1) understanding, remembering and applying
instructions; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and
(4) adapting or managing oneself. (Tr. at 21-22.) Ultimately, the AL] found that Plaintiff's
mental impairment was non-severe as Plaintiff had no limitation in any of the areas of mental
functioning. (Tr. at 21-22.)
In making this determination, the ALJ utilized objective medical evidence, opinion
evidence, and Plaintiff's own statements, first explaining that:
Records also show that the claimant has a history of depression with anxiety,
treated with medication. March 2020 notes show that the claimant was fully
otiented, and behavior and mood were normal. At her November 2020
consultative examination, she indicated that her depression was. stable.
Examination showed that she had good eye contact, fluent speech, mood was
appropriate, thought process was clear, concenttation was good, and she was
fully oriented. Match 2021 notes show that the claimant had a positive score
on behavioral health screeners, but she did not endorse concerns and declined
further behavioral health supports. At her July 2021 examination, recent and
remote memory was good, and she was cooperative. At her August 2021
psychological evaluation, when asked why she thought she had been referred
for a psychological evaluation, she said, “I have no idea”. [W]hen asked about
mental health symptoms, she stated, “I got depression and I got anxiety too.
Vd just rather stay home. Main because of my knee”. She indicated that she
was taking an herbal supplement to help alleviate “stress and anxiety’, as[] she
had discontinued Effexor one year prior due to lack of insurance. Upon
examination, she was able to focus, and had good contact with reality. She gave
approptiate eye contact, attitude was cooperative, speech was normal, mood
was “alright”, thoughts were adequately organized and goal-directed, thought
content was normal, she was fully oriented, and memoty was within normal
limits. Samuel Gray, Psy.D., found that the claimant’s depression and anxiety
were mild, and that she was able to understand, retain, and follow instruction;
sustain attention to perform simple, repetitive tasks; relate to coworkers
adequately; and appeated capable of working. The opinion of Dr. Gray is
persuasive, as it is supported by grossly normal mental status findings.
Furthermore, it is consistent with the other records, which show that she did
not endorse concerns and declined behavioral health suppotts.
The State agency psychological consultants found that her depression and
anxiety wete non-sevete, with no limitation in her ability to understand,
remember, or apply information; no limitation in her ability to interact with
others; no limitation in her ability to concentrate, persist, or maintain pace; and
mild limitation in her ability to adapt or manage oneself. These opinions are
persuasive, as they ate supported by a review and summary of the medical
evidence available at the time of the opinions. Furthermore, they ate consistent
with other grossly normal mental status findings.
(Tr. at 20-21) Gnternal citations to record omitted). Thus, the ALJ relied on medical opinions
from Plaintiff's psychological consultative examiner, Dr. Gray, and state agency psychologists,
Dr. Keith Noles and Dr. April Strobel-Nuss, as well as Plaintiff's own reports and the relevant
medical records. The AL] found these medical opinions to be persuasive and consistent with
the record, and concluded that Plaintiffs mental limitations were not severe. (T't. at 20-22.)
Plaintiff does not contest the substance of the AL]’s determination, but nevertheless
contends that the medical opinions of the two state agency psychologists reflect “mild”
limitations in adapting or managing oneself, and that the AL] was therefore obligated to
address these mild mental limitations in assessing the RFC. (P1.’s Br. at 3-8.) Specifically, in
undertaking the analysis of the Paragraph B criteria, state agency psychologists Dr. Noles and
Dr. Strobel-Nuss both found that Plaintiff had no limitations in understanding, remembering,
ot applying information, no limitations in interacting with others, no limitations in
concenttating, persisting or maintaining pace, and only mild limitations in adapting and
managing oneself. (Tr. at 20-21.) Plaintiff argues that the ALJ found the opinions persuasive
and was therefore obligated to addtess these mild limitations in adapting or managing oneself
in the RFC.
The Court rejects this contention for several reasons. First, the ALJ specifically
addressed Plaintiffs abilities in adapting and managing oneself and found no limitations and
explained the reason for that determination. Specifically, with respect to the Paragraph B
criteria, the ALJ explained:
The first functional area is understanding, remembering or applying
information. In this area, the claimant has no limitation. The claimant denied
any difficulty in this area. She indicated that she is able to perform personal
cate, prepare meals, perform household chores and laundry, drive a car, shop in
stores, and perform hobbies such as teading and watching television.
Furthermore, mental status examinations show that memory was good, thought
process was cleat, she was fully oriented, and thoughts were adequately
organized and goal directed, which shows no limitation in this area.
The next functional area is interacting with others. In this area, the claimant
has no limitation. The claimant denied any difficulty in this area. She indicated
that she is able to go out alone, shop in stores, spend time with others, and
attend church. Furthermore, mental status examinations show that she had
good eye contact, she was cooperative, speech was fluent, and mood was
appropriate, which shows no limitation in this area.
The third functional atea is concentrating, persisting or maintaining pace. In
this area, the claimant has no limitation. The claimant denied any difficulty in
this atea. She indicated that she is able to perform personal cate, prepate meals,
perform household chores and laundry, drive a car, shop in stores, and perform
hobbies such as teading and watching television. Furthermore, mental status
examinations show that memory was good, thought process was clear, she was
fully oriented, and thoughts were adequately organized and goal directed, which
shows no limitation in this area.
The fourth functional area is adapting or managing oneself. In this area, the
claimant has no limitation. The claimant reported that she is able to perform
petsonal cate, prepare meals, perform household chores and laundry, drive a
cat, go out alone, shop in stores, spend time with others, attend church, and
perform hobbies such as reading and watching television, which shows no
limitation in this area.
(Tr. at 21-22) (emphasis added) (internal citations to record omitted). Thus, the AL] explained
why she found no limitations in the functional area of adapting or managing oneself, and telied
on Plaintiffs own reports of her functioning, including her Adult Function Report and her
testimony, to conclude that Plaintiff did not have any limitations in the functional atea of
adapting and managing oneself. (T't. at 21-22, 100, 276-82.) In Plaintiffs Adult Function
Report, Plaintiff indicated that her ability to work is limited only by her physical impairments.
(Tr. at 21-22, 281.) Plaintiff also expressed in the Adult Function Report that she could
manage her personal cate without reminders, manage a savings account, read and watch
television, remember to go places without reminders, and follow instructions well. (T't. at 277-
82.) Similarly, at the hearing, Plaintiff testified that she was not having any issues with focusing
and concentrating or completing tasks. (Tr. at 65.) Based on the record, the ALJ decided that
Plaintiffs abilities showed “no limitation in” the area of adapting or managing oneself, and
the ALJ explained the basis for that determination. (Tr. at 21-22.)
In addition, as set out above, the ALJ found persuasive the ultimate conclusions of Dr.
Noles and Dr. Strobel-Nuss, that is, that Plaintiff did not have more than mild mental
limitations and therefore her mental impairments were not severe. (Tr. at 20-21, 83, 100, 116,
127.) Like Dr. Noles and Dr. Strobel-Nuss, the AL] similarly found that Plaintiffs
medically determinable mental impaitment causes no more than “mild”
limitation in any of the functional areas and the evidence does not otherwise
indicate that there is more than a minimal limitation in the claimant’s ability to
do basic work activities, it is non-severe.
(I't. at 22.) Thus, the ALJ found persuasive the ultimate determination of the state agency
psychologists, and similarly concluded that Plaintiffs mental impairments did not limit her
ability to perform basic work activities. Plaintiff points to the fact that the state agency
psychologists found that Plaintiff had mild limitations in adapting or managing oneself.
However, the ALJ was not requited to adopt every sub-part of their findings, and instead the
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ALJ specifically found that Plaintiff had no limitations in adapting or managing oneself, with
the explanation set out above. Thus, the ALJ reasonably relied on the opinions of the state
agency psychologists that Plaintiffs mental impairments were not severe, but the ALJ also
explained her own analysis of the functional areas, supported by substantial evidence in the
record.
Furthermore, the ALJ considered all of Plaintiffs severe and non-severe impairments
in setting the RFC and explained her reasoning. At the start of the RFC assessment, the AL]
explained that in making the RFC finding, she had
considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 404.1529 and 416.929
and SSR 16-3p. The [ALJ] also considered the medical opinion(s) and prior
administrative medical finding(s) in accordance with the requirements of 20
CFR 404.1520c and 416.920c.
(Tr. at 24.) In setting the RFC, the ALJ again noted Plaintiffs daily activities and noted
Plaintiffs testimony denying issues with focusing, concentrating, or completing tasks. (T'r. at
25, 65.) Based on the full evaluation of Plaintiff's mental impairments at step two, and having
considered all of the symptoms in setting the RFC, including the lack of any limitations related
to mental impairments, the AL] concluded that Plaintiff could return to her prior unskilled
Similarly with respect to the consultative psychiatric examiner Dr. Gray, Dr. Gray noted that Plaintiff “may
become more easily overwhelmed by day to day stressors” but nevertheless found that Plaintiff had only “mild
symptoms of depression and anxiety” primarily stemming from her physical impairments, and that the
symptoms “‘appear to have had only a minor impact on her personal, occupational, and social functioning.”
(Tr. at 987.) Dr. Gray then concluded that “[f]rom a psychological perspective, [Plaintiff] appears capable of
working at this time.” (Tr. at 988.) The ALJ found persuasive Dr. Gray’s conclusion that Plaintiffs mental
impairments were no more than mild and that she was capable of working. (Tr. at 20.) The ALJ noted that
this was consistent with Dr. Gray’s normal mental status findings as well as the other medical records, which
reflect that Plaintiff was not raising any mental health concerns and declined behavioral health supports. (Tt.
at 20, 653, 654, 655.) Thus, as with the State Agency Psychologists, the AL] considered Dr. Gray’s opinion
and explained the basis for finding the ultimate conclusions persuasive.
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work. Plaintiff points to no evidence suggesting a need for greater—or any—limitations as a
result of her non-severe mental impairments.
Plaintiff nevertheless cites to the Fourth Circuit’s decision in Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015), to argue that the AL] was obligated to include Plaintiffs mild mental
limitations in setting the RFC. In Mascio, the Fourth Circuit held that if moderate limitations
in one of the four functional areas of mental functioning, such as concentration, persistence,
or pace (“CPP”), are reflected at step two, the ALJ should either address those limitations in
assessing the RFC or explain why the limitations do not affect the claimant’s ability to work.
Mascio, 780 F.3d at 637-38. The Fourth Circuit further noted that
[p]ethaps the AL] can explain why Mascio’s moderate limitation in [CPP] at step
three does not translate into a limitation in Mascio’s residual functional capacity.
For example, the ALJ may find that the [CPP] limitation does not affect
Mascio’s ability to work, in which case it would have been appropriate to
exclude it from the hypothetical tendered to the vocational expert. But because
the AL] here gave no explanation, a remand is in ordet.
Id. (internal citation omitted).
However, unlike in Mascio, where the ALJ found moderate limitations in mental
functioning, the ALJ in the present case found no limitation in any atea of mental functioning.
(Tr. at 21-22.) ‘Thus, Mascio is inapplicable. In addition, as noted above, the ALJ made these
findings during her discussion at step two of the sequential analysis, supporting her conclusion
that because Plaintiff's mental impairment “does not otherwise indicate that there is more than
a minimal limitation in the [Plaintiffs] ability to perform basic mental work activities, it is non-
severe.” (Ir. at 22.) ‘Thus, unlike in Mascio, the ALJ specifically found that there were no
more than minimal limitations as a result of PlaintifPs mental impairments. Furthermore,
Mascio involved moderate limitations in a functional area, but Plaintiff here points to only the
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possibility of mild mental limitations in adapting and managing oneself, and other cases in this
District have noted that “the weight of post-Mascio authority among the district courts in the
Fourth Circuit does not favor extending Mascio to mild [functional] limitation[s].” Spradley
v. Saul, No. 1:20CV337, 2021 WL 1739013, at *7 (M.D.N.C. May 3, 2021) (collecting cases);
see also Pickett v. Kijakazi, No. 1:21CV500, 2022 WL 3908862, at *4 (M.D.N.C. Aug. 30,
2022); Baucom v. Saul, 1:18CV819, 2020 WL 978256, at *10 (M.D.N.C. Feb. 28, 2020);
Younger v. Berryhill, No. 2:18-cv-182, 2019 WL 3432771, at *5 (E.D. Va. June 21, 2019).
Moreover, even if Mascio applied here, Mascio itself requires only a sufficient
explanation regarding the limitations in the RFC, and here the AL] sufficiently explained the
basis for the determination. As set out at length above, the ALJ discussed Plaintiff's mental
impairments and their impact on her ability to adapt and mange herself. Most strikingly, the
AL] recounted Plaintiffs own statements indicating that her mental impairments did not
impact her ability to perform basic work activities and outlining her many abilities within her
daily life. While the AL] concluded that Plaintiff has no limitation in any of the areas of mental
functioning, she also reasoned that Plaintiffs mental impairments cause “no more than ‘mild’
limitation in any of the functional areas and the evidence does not otherwise indicate that there
is more than a minimal limitation in [Plaintiffs] ability to do basic work activities.” (Tr. at 22.)
Plaintiff does not challenge the substance of that determination, and the ALJ set out the basis
for that conclusion from the record. This discussion provides “an accurate and logical bridge”
explaining the omission of any specific mental limitations from the RFC. Cf. Shinaberty v.
Saul, 952 F.3d 113, 121-22 (4th Cir. 2020) (quoting Brown v. Comm’r Soc. Sec. Admin., 873
13
F.3d 251, 269 (4th Cir. 2017)). Substantial evidence supports the AL]’s omission of mental
limitations from Plaintiff's RFC assessment, and Plaintiffs Mascio challenge is without merit.
B. CPAP Machine
Plaintiff next contends that the ALJ “erred in finding that [Plaintiffs] sleep apnea
caused no significant limitations based on a lack of treatment she could not afford.” (PL’s Br.
at 9.) As courts in this District have noted,
“lal claimant may not be penalized for failing to seek treatment [ ]he cannot
afford; ‘[i]t 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 at 1117 (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 or 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 or 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).
Plaintiff argues that the AL] erroneously discounted her symptoms by using Plaintiffs
inability to afford a CPAP machine as evidence that her symptoms were not as limiting as she
14
alleged, “despite significant evidence” of her inability to afford the treatment. (Pl.’s Br. at 8-
10.) However, the decision in this case reflects that the ALJ found Plaintiff's sleep apnea to
be a severe impairment and acknowledged Plaintiffs inability to afford the CPAP machine.
(Tr. at 25, 27, 28.) The AL] also noted that Plaintiff did not obtain the CPAP machine during
the time that she had insurance in 2019, due to transportation issues. (Tr. at 27, 422, 374,
368). The ALJ also noted that Plaintiff's provider discussed resources for obtaining a reduced
cost CPAP machine, with a referral to social services. (Tr. at 27, 364, 375.) Thus, the AL} did
note Plaintiffs possible options for obtaining the CPAP machine despite her lack of funds,
which Plaintiff failed to pursue.
Even more importantly, the AL] ultimately concluded that even without the CPAP
machine, Plaintiffs symptoms were not as limiting as alleged, based on her daily activities.
Specifically, the ALJ noted that even without the benefit of a CPAP machine, Plaintiff
reported that she is able to perform personal cate, prepare meals, perform
household chores and laundry, drive a cat, go out alone, shop in stores, spend
time with others, attend church, and perform hobbies such as treading and
watching television, which does not suggest that her symptoms ate as limiting
as [Plaintiff] has alleged in connection with this application.
(Tr. at 28.) The ALJ also noted the opinion evidence from Plaintiffs November 2020
consultative examiner, Zachaty Seitz, PA-C, who was aware that Plaintiff was not using a
CPAP machine but still concluded “[i]n regards to the history of sleep apnea, based on the
current physical exam for this, there is not enough evidence to state a functional limitation.”
(Tr. at 27, 651.) Mr. Seitz further concluded that Plaintiff could work an 8-hour workday with
notmal breaks. (I't. at 27, 651.) The AL] found Mr. Seitz’s overall medical opinion to be
persuasive and consistent with the remainder of the evidence. (It. at 27.) Plaintiff has not
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pointed to any medical opinions or records that would require additional limitations in
connection with sleep apnea. Thus, the ALJ sufficiently explained the analysis, considered all
of Plaintiff's symptoms even without the CPAP machine, and made a determination that is
supported by substantial evidence.
C. Cane Usage
Finally, Plaintiff argues that the RFC failed to account for Plaintiffs use of a non-
prescribed cane and that the ALJ failed to determine whether Plaintiff's cane was “medically
necessaty.” (PL.’s Br. at 10.) “The requirement to use a hand-held assistive device may . . .
impact [a claimant’s] functional capacity by virtue of the fact that one or both upper extremities
are not available for such activities as lifting, carrying, pushing, and pulling.” 20 C.F.R. Part
404, Subpt. P, App. 1 § 1.007) (4) (2020). Accordingly, an ALJ must consider the impact of a
medically required hand-held assistive device on a claimant’s RFC. See McLaughlin v. Colvin,
No. 1:12-CV-621, 2014 WL 12573323, at *2 (M.D.N.C. July 25, 2014); Social Security Ruling
96-9p, Titles I] and XVI: Determining Capability to Do Other Work--Implications of a
Residual Functional Capacity for Less than a Full Range of Sedentary Work, SSR 96-9p, 1996
WL 374185, at *7 (July 2, 1996).
Social Security Ruling 96-9p explains the impact of an assistive device on an RFC for
sedentary work, and courts within this circuit have applied this ruling to the light occupational
base as well. See, e.g., Timmons v. Colvin, No. 3:12CV609, 2013 WL 4775131, at *8
(W.D.N.C. Sept. 5, 2013). SSR 96-9p provides the following guidance:
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;
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distance and terrain; and any other relevant information). The adjudicator must
always consider the particular facts of a case. For example, if a medically
tequited hand-held assistive device is needed only for prolonged ambulation,
walking on uneven terrain, or ascending or descending slopes, the unskilled
sedentaty occupational base will not ordinarily be significantly eroded.
1996 WL 374185, at *7.
Here, the ALJ reviewed Plaintiffs testimony in which she stated she has trouble
walking and “uses a non-prescribed cane at all times.” (Ir. at 24-25.) However, the ALJ also
noted that Plaintiff
is able to perform personal care, prepare meals, perform household chores and
laundry, drive a car, go out alone, shop in stores, spend time with others, attend
church, and perform hobbies such as reading and watching television.
(Tr. at 25) (citing Tr. at 276-83). Most importantly, the ALJ also set out in detail the results of
two consultative examinations which established the opposite of Plaintiffs allegations — that
Plaintiff did not require the use of a handheld assistive device such as a cane. (T't. at 27-28,
648, 974). Specifically, the AL] noted that at the November 2020 consultative examination:
Upon examination, she used an assistive device, but was able to walk around
the room without it. Gait was steady and symmetric. She had no palpable
muscle spasms and muscle strength was notmal. Sensory examination was
normal and straight leg raising was negative bilaterally. She had no joint
swelling, erythema, effusion, tenderness or deformity, other than mild
tenderness to palpation at the medial joint line of the left knee. Anterior and
posterior drawer tests wete negative. She was able to lift, carry, handle, and
manipulate light objects, squat and tise, rise from a sitting position without
assistance, and had no difficulty getting down from the examination table. She
was able to walk on heels and toes, tandem walk, and stand on one foot
bilaterally.
(Tr. at 26) (emphasis added). Based on this evaluation, the AL] noted that the consultative
examiner, Zachary Seitz, PA-C, concluded that Plaintiff “did not need an assistive device with
regards to short and long distances and uneven terrain.” (Tr. at 27) (emphasis added). ‘The
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ALJ found this opinion persuasive and supported by the examination findings and consistent
with the overall evidence. Similarly, the ALJ noted that at Plaintiffs July 2021 consultative
examination, Stephen Burgess M.D. found that “[s]he did not tequite the use of an assistive
device and had a normal stance and appeared stable at station.” (T't. at 26, 974) (emphasis
added). The ALJ likewise found the opinion of Dr. Burgess persuasive. (T'r. at 27.)
Thus, the ALJ’s decision sufficiently sets out the AL]’s reasoning, based on Plaintiffs
reported activities and the opinions of two consultative examiners, both of whom concluded
that Plaintiff did not need an assistive device. The ALJ found these determinations persuasive,
and substantial evidence supports the ALJ’s omission of Plaintiffs non-prescribed cane use
from the RFC.
IV. CONCLUSION
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the pleadings [Doc. #9]
be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #12] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 28 day of August, 2024.
oe f la ee
Jos abeth Peake
nited States Magistrate Judge
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