MCCREARY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AMANDA M., )

)

Plaintiff, )

)

v. ) 1:25CV57

)

FRANK J. BISIGNANO, )

Commissioner of Social Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Amanda M., brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security

(the “Commissioner”), denying Plaintiff’s claim for Supplemental

Security Income (“SSI”). (Docket Entry 1.) The Commissioner has

filed the certified administrative record (Docket Entry 6 (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 9

(Plaintiff’s Brief); Docket Entry 11 (Commissioner’s Brief); see

also Docket Entry 12 (Plaintiff’s Reply)). For the reasons that

follow, the Court should enter judgment for the Commissioner.

1 The United States Senate confirmed Frank J. Bisignano as the Commissioner

of the Social Security Administration on May 6, 2025, and he took the oath of

office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, Frank J. Bisignano should substitute for Leland C. Dudek as the

defendant in this suit. No further action need be taken 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).

I. PROCEDURAL HISTORY

Plaintiff applied for SSI on October 20, 2021 (Tr. 194-202),

alleging a disability onset date of February 1, 2020 (see Tr. 196).

Upon denial of that application initially (Tr. 77-87, 103-07) and

on reconsideration (Tr. 88-98, 116-18), Plaintiff requested a

hearing de novo before an Administrative Law Judge (“ALJ”)

(Tr. 119). Plaintiff, her attorney, and a vocational expert (“VE”)

attended the hearing. (Tr. 56-76.) The ALJ subsequently ruled

that Plaintiff did not qualify as disabled under the Act. (Tr. 38-

55.) The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-7, 193, 303-13), thereby making the ALJ’s ruling the

Commissioner’s final decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since October 20, 2021, the application date.

2. [Plaintiff] has the following severe impairments:

asthma, depression/bipolar, anxiety, and substance

addiction disorder.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

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

capacity to perform medium work . . . except

lifting/carrying 25 pounds occasionally and 10 pounds

frequently; occasional crawling; no climbing

2

ladders/ropes/scaffolds; occasional exposure to humidity

and extreme heat; occasional exposure to pulmonary

irritants including fumes, odors, dust, and gas;

occasional exposure to hazardous conditions including

unprotected heights and moving machinery; simple, routine

tasks; occasional interaction with the pubic; occasional

workplace changes; and occasional independent decision

making.

. . .

5. [Plaintiff] has no past relevant work.

. . .

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

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [she] can perform.

. . .

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

as defined in the [] Act, since October 20, 2021, the

date the application was filed.

(Tr. 43-51 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

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

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

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

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

3

A. Standard of Review

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

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

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

supported by substantial evidence and were reached through

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

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant evidence as a reasonable mind might

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

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

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

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

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

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

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

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

quotation marks omitted).

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

undertake to re-weigh conflicting evidence, make credibility

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

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

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the

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[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

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)).2 “To regularize the

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

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

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

medical condition.” Id. “These regulations establish a

2 The Act “comprises two disability benefits programs. The Disability

Insurance Benefits Program provides benefits to disabled persons who have

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

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

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

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

omitted).

5

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

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

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

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

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

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

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

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

F.3d 473, 475 n.2 (4th Cir. 1999).3 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

3 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.* Step four

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

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

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

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the claimant’s RFC] and [the claimant’s] vocational

capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the

Commissioner cannot carry its “evidentiary burden of proving that

[the claimant] remains able to work other jobs available in the

community,” the claimant qualifies as disabled. Hines, 453 F.3d at

567.°

4 “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 (é.g., pain).” Hines, 453 F.3d at 562-63.

° A claimant thus can establish disability via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, ¢.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

(continued...)

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 did not build an accurate and logical bridge

regarding [Plaintiff]’s degenerative disc disease [(‘DDD’)] of the

lumbar spine and spondylosis of the cervical spine” (Docket Entry

9 at 4 (bold font and block formatting omitted); see also Docket

Entry 12 at 1-4);

2) “[t]he ALJ did not build an accurate and logical bridge

regarding [Plaintiff]’s migraines” (Docket Entry 9 at 13 (bold font

and block formatting omitted); see also Docket Entry 12 at 4-5);

and

3) “[t]he ALJ did not build an accurate and logical bridge

regarding social interaction limitations with coworkers and

supervisors” (Docket Entry 9 at 16; see also Docket Entry 12 at 5-

11).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 11 at 3-15.)

1. Lumbar DDD and Cervical Spondylosis

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

ALJ did not “build an accurate and logical bridge regarding

[Plaintiff]’s [DDD] of the lumbar spine and spondylosis of the

5 (...continued)

process, review does not proceed to the next step.”).

8

cervical spine.” (Docket Entry 9 at 4 (bold font and block

formatting omitted); see also Docket Entry 12 at 1-4.) More

specifically, Plaintiff maintains that “[t]he ALJ’s [] analysis [at

step two of the SEP] improperly focused only on [Plaintiff]’s

scoliosis,” and “did not mention [DDD] of the lumbar spine or

spondylosis of the cervical spine, or any evidence relating to

th[o]se impairments, e.g., the MRIs [sic] and clinical findings of

tenderness and reduced range of motion.” (Docket Entry 9 at 10

(referencing Tr. 43, 420, 423, 426, 429, 432-34).)6 Plaintiff

additionally argues that “the ALJ did not acknowledge probative

evidence when evaluating [Plaintiff]’s subjective complaints and

formulating the RFC assessment” (id. at 11), in that “[t]he ALJ did

not acknowledge or mention that (1) [Plaintiff] received treatment

from [] board-certified orthopedic surgeon [Dr. Chason S. Hayes]

for back, neck, and radicular pain; (2) diagnostic testing

confirmed [DDD] of the lumbar spine and spondylosis of the cervical

spine; (3) physical examinations of [Plaintiff] showed tenderness

and reduced range of motion in the lumbar and cervical spine; (4)

Dr. Hayes prescribed various treatment, including [g]abapentin and

[m]eloxicam; (5) Dr. Hayes referred [Plaintiff] to a pain physician

for injections; and (6) [Plaintiff] stopped going to the pain

clinic due to insurance” (id. at 11-12). According to Plaintiff,

“[t]he ALJ’s errors preclude reliance on the [VE]’s testimony

6 The record reflects only one MRI of Plaintiff’s lumbar spine. (See Tr.

432.)

9

because the Court cannot meaningfully review whether [Plaintiff]’s

[DDD] of the lumbar spine and spondylosis of the cervical spine

would allow her to perform the occupations identified by the [VE].”

(Id. at 12.)

“At step 2 of the [SEP], [the ALJ] determine[s] whether an

individual has a severe medically determinable physical or mental

impairment or combination of impairments that has lasted or can be

expected to last for a continuous period of at least 12 months or

end in death.” Social Security Ruling 16-3p, Titles II and XVI:

Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at

*11 (Oct. 25, 2017) (“SSR 16-3p”) (emphasis added). The

Commissioner’s regulations provide that a medically determinable

impairment “must result from anatomical[ or] physiological . . .

abnormalities that can be shown by medically acceptable clinical

and laboratory diagnostic techniques[ and] . . . must be

established by objective medical evidence from an acceptable

medical source.” 20 C.F.R. § 416.921 (emphasis added).7

Furthermore, an ALJ cannot rely on a claimant’s own “statement of

symptoms, a diagnosis, or a medical opinion to establish the

7 The regulations define “objective medical evidence” as “laboratory

findings” and/or “signs,” i.e., “abnormalities that can be observed, apart from

[a claimant’s] statements (symptoms).” 20 C.F.R. § 416.902(f), (g).

10

existence of a[ medically determinable] impairment[ ].” Id.

(emphasis added) .®

“After [the ALJ] establish[es] that [a claimant] hal[s] a

medically determinable impairment[], then [the ALJ] determine[s]

whether [that] impairment is severe.” Id. An impairment fails to

qualify as “severe” if it constitutes “only a slight abnormality

. . which would have no more than a minimal effect on an

individual’s ability . . . to perform basic work activities.”

Social Security Ruling 85-28, Titles IT and XVI: Medical

Impairments that Are Not Severe, 1985 WL 56856, at *3 (1985) (“SSR

85-28"). Applicable regulations further identify physical “basic

work activities” as including “walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, [and] handling.” 20 C.F.R.

§ 416.922(b). Plaintiff bears the burden of proving severity at

step two. Hunter, 993 F.2d at 35; see also Kirby v. Astrue, 500

8 Applicable to benefits claims filed on or after March 27, 2017 (such as

Plaintiff’s SSI claim (see Tr. 194)), the SSA amended the section governing the

establishment of medically determinable impairments. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 F.R. 5844-01, 5868-69, 2017 WL

168819 (Jan. 18, 2017). Prior to those amendments, an ALJ considered medical

signs, laboratory findings, and a claimant’s own statements to determine the

presence of a medically determinable impairment. See 20 C.F.R. § 416.908

(version effective prior to Jan. 18, 2017). The amendments recodified the rule

at Section 416.921 and now preclude ALJs from considering a claimant’s “statement

of symptoms, a diagnosis, or a medical opinion to establish the existence of a[

medically determinable] impairment[].” 20 C.F.R. § 416.921; see also SB v.

Commissioner of Soc. Sec. Admin., No. CV-20-1842, 2021 WL 5150092, at *4 (D.

Ariz. Nov. 5, 2021) (unpublished) (“To the extent that [prior district court and

appellate cases within the Ninth Circuit] hold that medical opinions and

diagnoses are relevant to determine an impairment at step two, that has been

expressly foreclosed by the text of § 4[16.9]21. Instead, as discussed above,

the [clourt finds that only the objective medical evidence in [the p]laintiff’s

medical records can be relevant to whether she had a medically determinable

impairment . . . .” (internal citation omitted)).

11

F.3d 705, 708 (8th Cir. 2007) (“Severity is not an onerous

requirement for the claimant to meet, but it is also not a

toothless standard . . . .” (internal citation omitted)).

Here, at step two of the SEP, the ALJ found Plaintiff’s

scoliosis a non-severe medically determinable impairment, but

identified neither lumbar DDD nor cervical spondylosis as medically

determinable impairments. (See Tr. 43.) The record contains

objective medical evidence substantiating that Plaintiff had both

lumbar DDD (see Tr. 432 (MRI of lumbar spine dated 11/14/22

reflecting mild disc height loss and small disc bulge causing mild

bilateral neuroforaminal stenosis at L5-S1); see also Tr. 433 (x-

ray of lumbar spine dated 9/12/22 documenting mild disc space

narrowing at L5-S1 and facet degenerative changes in the lower

spine)) and cervical spondylosis (see Tr. 434 (x-ray of cervical

spine dated 9/12/22 recording disc space narrowing and spurring at

C4-5, characterized as “moderate spondylosis”)), as well as that

she sought treatment for back and neck pain during the relevant

period in this case (see Tr. 419-30 (containing treatment records

from Dr. Hayes for complaints of back and neck pain from August to

December 2022)). Thus, the ALJ erred by failing to find

Plaintiff’s lumbar DDD and cervical spondylosis as medically

determinable impairments at step two of the SEP. For the reasons

explained in more detail below, however, that error by the ALJ

remains harmless under the circumstances presented here, as the

12

record demonstrates neither that the ALJ should have found

Plaintiff’s lumbar DDD or cervical spondylosis severe impairments,

nor that the ALJ should have included greater limitations in the

RFC on account of those impairments. see generally Fisher v.

Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]Jo

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 to step two of the SEP, the record here would not have

compelled the ALJ to find Plaintiff’s lumbar DDD and cervical

spondylosis severe impairments. Most significantly, Plaintiff

herself failed to identify either lumbar DDD or cervical

spondylosis as disabling impairments on her Disability Report form.

(See Tr. 218 (listing “[s]coliosis,” “[b]Jipolar,” “[a]nxiety,”

“[d]lepression,” “[chronic obstructive pulmonary disease (*‘COPD’)],”

and “[v]Jision - wear glasses” as “all physical or mental

conditions . . . that limit[ed her] ability to work” (emphasis

added)); see also Tr. 252, 260 (denying that she had “any NEW

physical or mental conditions on her Disability Report - Appeals

forms, despite the fact that her hearing-level counsel completed

both Appeals forms (see Tr. 251, 259))})). Furthermore, at the

hearing, Plaintiff’s counsel failed to mention either lumbar DDD or

cervical spondylosis as disabling impairments in her opening

statement (see Tr. 62 (identifying “depression, bipolar related

13

disorder, asthma, anxiety,” “[obsessive-compulsive disorder

(‘OCD’)],” “scoliosis,” and “COPD” as disabling impairments)), and

Plaintiff did not identify lumbar DDD or cervical spondylosis in

her testimony regarding her disabling physical conditions:

[ATTY:] . . . [I]f you would please tell me in your own

words . . . what physical conditions have you been

diagnosed with that would prevent you from working?

[PLAINTIFF:] Well, I have the scoliosis, and then I got,

now that I’m older I guess my problem [is] I can’t see

that well. The COPD and the asthma, the anxiety,

bipolar.

[ATTY:] . . . So right now we’re just going to deal with

your physical conditions. And you mentioned scoliosis,

low vision and COPD. Are there any other physical

conditions that you have been diagnosed with?

[PLAINTIFF:] No.

(Tr. 63 (emphasis added); see also Tr. 70 (denying that “any other

conditions” existed that “[sh]e ha[d]n’t mentioned

that . . . stop[ped her] from being able to work”).)

Plaintiff’s failure to even mention lumbar DDD and cervical

spondylosis in her application materials and testimony in support

of her claim, despite the assistance of counsel, significantly

undercuts her contention that the ALJ should have found those

impairments severe. See Walterman v. Colvin, No. 15CV3860, 2016 WL

8199313, at *7 (D. Minn. June 24, 2016) (unpublished) (finding no

error in ALJ’s determination that the plaintiff’s borderline

intellectual functioning rated as non-severe, where the plaintiff’s

“cognitive impairments were not even listed in [his] current

14

application for disability benefits”); O’Brien v. Colvin, No.

1:15CV536, 2016 WL 2755459, at *7 (M.D.N.C. May 11, 2016)

(unpublished) (“To the extent [the p]laintiff contends the ALJ

committed a step two error by failing to identify [the p]laintiff’s

auditory impairments as severe, [his] failure to list those

conditions in his Disability Report [] defeats that claim.”),

recommendation adopted, 2016 WL 5660296 (M.D.N.C. Sept. 30, 2016)

(unpublished) (Tilley, S.J.); Ramsey v. Colvin, No. 1:10CV618, 2014

WL 639562, at *7 (M.D.N.C. Feb. 18, 2014) (unpublished) (holding

that “[s]ubstantial evidence [] support[ed] the ALJ’s omission

of . . . [gastroesophageal reflux disease (‘GERD’)] from the list

of severe impairments” because, among other things, “[the

p]laintiff did not even mention GERD as an impairment on her

Disability Report or at her hearing” (internal parenthetical

citations omitted)), recommendation adopted, slip op. (M.D.N.C.

Mar. 27, 2014) (Tilley, S.J.); Abdullahi v. Colvin, No. 4:12CV3185,

2013 WL 6239385, at *11 (D. Neb. Dec. 2, 2013) (unpublished)

(deciding that “ALJ properly excluded [the plaintiff’s] hearing

loss from [the] list of severe impairments” because, inter alia,

the plaintiff “failed to raise it in her application for

benefits”); see also Frederick v. Commissioner of Soc. Sec., Civ.

No. 10–11349, 2011 WL 1518966, at *9 (E.D. Mich. Mar. 25, 2011)

(unpublished) (“[T]he courts frown upon ‘sandbagging’

administrative decisions by presenting . . . issues for the first

15

time upon judicial review which could have been raised before the

ALJ.”), recommendation adopted, 2011 WL 1518913 (E.D. Mich. Apr.

20, 2011) (unpublished). However, even if the ALJ should have

found Plaintiff’s lumbar DDD and cervical spondylosis severe

impairments, for the following reasons, Plaintiff cannot show that

such an error prejudiced her. See generally Fisher, 869 F.2d at

1057.

First, and most importantly, where an ALJ has already

determined that a plaintiff suffers from at least one severe

impairment, any failure to categorize an additional impairment as

severe generally cannot constitute reversible error, because, “upon

determining that a claimant has one severe impairment, the [ALJ]

must continue with the remaining steps in his [or her] disability

evaluation.” Maziarz v. Secretary of Health & Human Servs., 837

F.2d 240, 244 (6th Cir. 1987); accord Oldham v. Astrue, 509 F.3d

1254, 1256-57 (10th Cir. 2007); Lewis v. Astrue, 498 F.3d 909, 911

(9th Cir. 2007); Lauver v. Astrue, No. 2:08CV87, 2010 WL 1404767,

at *4 (N.D.W. Va. Mar. 31, 2010) (unpublished); Washington v.

Astrue, 698 F. Supp. 2d 562, 579 (D.S.C. 2010); Jones v. Astrue,

No. 5:07CV452, 2009 WL 455414, at *2 (E.D.N.C. Feb. 23, 2009)

(unpublished). In this case, the ALJ found four severe impairments

and two non-severe impairments (including scoliosis) (see Tr. 43)

and proceeded with the remaining steps of the SEP (see Tr. 44-51).

Moreover, the ALJ’s RFC includes limitations to 25 pounds of

16

occasional lifting/carrying, 10 pounds of frequent

lifting/carrying, occasional crawling, and no climbing of ladders,

ropes, and scaffolds (see Tr. 46), and Plaintiff has not identified

any additional limitations the ALJ should have included in the RFC

to account for her lumbar DDD and cervical spondylosis (see Docket

Entries 9, 12). Under such circumstances, any alleged improper

application of law by the ALJ at step two caused Plaintiff no

prejudice. See Ely v. Colvin, No. 1:12CV75, 2014 WL 2967913, at

*12 (M.D.N.C. July 1, 2014) (unpublished) (“[A]lthough [the

p]aintiff claims the ALJ failed to address [the plaintiff’s left

foot cold weather injury and/or degenerative disc disease] in

devising the RFC, [he] has not identified a single restriction the

ALJ should have included to account for them.” (internal

parenthetical citation omitted)), recommendation adopted, slip op.

(M.D.N.C. Mar. 11, 2015) (Tilley, S.J.); Cook v. Colvin, No.

1:11CV87, 2014 WL 317847, at *3 (M.D.N.C. Jan. 29, 2014)

(unpublished) (Eagles, J.) (“[T]he ALJ’s failure to expressly

discuss [the plaintiff’s] obesity (whether classified as severe or

not) in conjunction with [the ALJ’s] RFC assessment constitutes

harmless error. In [the plaintiff’s] arguments to the Court, [he]

does not identify any unaddressed limitations that he believes his

obesity causes. As such, no basis exists for a remand.” (citing

Rutherford v. Barnhart, 399 F.3d 546, 552–53 (3d Cir. 2005) (ruling

remand for express consideration of obesity unnecessary where [the]

17

plaintiff failed to specify how her obesity would impact the ALJ’s

analysis))).

Second, the record evidence relating to Plaintiff’s lumbar DDD

and cervical spondylosis would not have compelled the ALJ to

include greater limitations in the RFC. The ALJ expressly

acknowledged “[Plaintiff’s] testi[mony] that her scoliosis hurt[]

her back and legs[ and] cause[d] burning and stinging, [] she d[id]

not sleep a lot because of it, . . . she had pain in her legs from

the right side of her leg to the kneecap and into her shoulder and

ear, . . . she fe[lt] pain four or five times a day, and she t[ook]

over the counter medicine” (Tr. 46), but found her “statements

concerning the intensity, persistence and limiting effects of

th[o]se symptoms [] not entirely consistent with the medical

evidence and other evidence in the record” (Tr. 47). Plaintiff

notes that the ALJ discounted the severity of Plaintiff’s back and

neck pain because that pain “‘ha[d] not required significant

medical treatment and ha[d] not resulted in any continuous

exertional or nonexertional functional limitations’” (Docket Entry

11 at 9 (referencing Tr. 43) (quotation marks and brackets added)),

but “did not acknowledge or mention that [Plaintiff] stopped going

to the pain clinic due to insurance and, thus, penalized her for

not being able to afford treatment” (id.)

The United States Court of Appeals for the Fourth Circuit has

held that “[a] claimant may not be penalized for failing to seek

18

treatment she cannot afford,” because “‘[i]lt flies in the face of

the patent purposes of the . . . Act to deny benefits to someone

. . . too poor to obtain medical treatment that may help h[er].’”

Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (quoting

Gordon _v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). An

administrative ruling further expounds on an ALJ’s duties when a

claimant alleges an inability to afford treatment as follows:

. . . [I]f the frequency or extent of the treatment

sought by an individual is not comparable with the degree

of the individual’s subjective complaints, . . . [the

ALJ] may find the alleged intensity and persistence of an

individual’s symptoms are inconsistent with the overall

evidence of record. [The ALJ] will not find an

individual’s symptoms inconsistent with the evidence in

the record on this basis without considering possible

reasons he or she may not... seek treatment consistent

with the degree of his or her complaints. [The ALJ] may

need to contact the individual regarding the lack of

treatment or, at an administrative proceeding, ask why he

or she has not. . . sought treatment in a manner

consistent with his or her complaints. When [the ALJ]

consider[s] the individual’s treatment history, [the ALJ]

may consider (but [is] not limited to) one or more of the

following:

An individual may not be able to afford treatment and may

not have access to free or low-cost medical services.

[An ALJ] will consider and address reasons for not

pursuing treatment that are pertinent to an individual’s

case. [The ALJ] will review the case record to determine

whether there are explanations for inconsistencies in the

individual’s statements about symptoms and their effects,

and whether the evidence of record supports any of the

individual’s statements at the time he or she made them.

[The ALJ] will explain how [he or she] considered the

19

individual’s reasons in [the ALJ’s] evaluation of the

individual’s symptoms.

SSR 16-3p, 2017 WL 5180304, at *9-10 (emphasis added) (bullet

omitted).

The record here indeed reflects both that Plaintiff’s

orthopedist Dr. Hayes referred Plaintiff to a pain clinic for

injections (see Tr. 430), and that Plaintiff reported to her

primary care provider that Plaintiff could not continue treating at

the pain clinic due to lack of insurance coverage (see Tr. 445).

Notably, however, Plaintiff remained financially able to continue

obtaining treatment for other conditions with her primary care

provider after Dr. Hayes’s December 2022 referral to the pain

clinic, but did not complain about or seek treatment for back and

neck pain. (See Tr. 440-49.) Moreover, Plaintiff’s alleged

inability to afford injections at the pain clinic does not explain

why she could not have sought relief of her back and neck pain at

additional visits with Dr. Hayes (or another orthopedist) or at

free or low-cost providers, and does not explain the absence of

treatment for back and neck pain from her alleged onset date of

October 20, 2021, to the date of her first treatment of record for

back and/or neck pain on June 23, 2022 (see Tr. 470-74). Under

such circumstances, the ALJ did not err by discounting Plaintiff’s

subjective complaints of back and neck pain based in part on her

limited treatment for those conditions. See Byers v. Berryhill,

No. 1:17CV103, 2018 WL 318466, at *9 (M.D.N.C. Jan. 5, 2018)

20

(unpublished) (finding no error in ALJ’s rejection of the

plaintiff’s alleged inability to afford treatment, where “there

[wa]s no indication that [the p]laintiff ha[d] explored the

availability of free or reduced cost medical services,” and “it

[wa]s incumbent on [the p]laintiff to explore such availability

rather than simply concluding that he c[ould] not pay for any

medical care” (emphasis and internal quotation marks omitted)),

recommendation adopted, slip op. (M.D.N.C. Apr. 4, 2018) (Tilley,

S.J.); Hawley v. Colvin, No. 5:12CV260, 2013 WL 6184954, at *8

(E.D.N.C. Nov. 25, 2013) (unpublished) (finding no error in ALJ’s

consideration of the plaintiff’s lack of treatment for back pain,

where “[the plaintiff] testified that he [went] to the free clinic

twice a week for counseling and for medical treatment for

hypertension and asthma, but not for his back pain” (emphasis

added)).

The remainder of the record evidence relating to Plaintiff’s

lumbar DDD and cervical spondylosis would not have compelled the

ALJ to include greater limitations in the RFC. Those records

reflect an approximately six-month course of treatment from June

23, 2022, to December 16, 2022 (see Tr. 419-30, 470-74), which

documented spinal tenderness and/or reduced range of motion but

intact gait, strength, reflexes, pulses and sensation, and negative

straight leg raising tests (see Tr. 420, 423, 426, 429, 472).

Treatment consisted of anti-inflammatory and nerve pain medication

21

(see Tr. 421, 424, 427, 473), and imaging reflected mainly mild

findings (see Tr. 432-34).° Moreover, as addressed earlier,

Plaintiff failed to include lumbar DDD or cervical spondylosis

among her allegedly disabling impairments in her application

materials (see Tr. 218, 252, 260) or to testify as to those

impairments at her hearing (see Tr. 56-76), which undermines her

contention on judicial review that the ALJ failed to account for

those impairments in the RFC, see Allison v. Kijakazi, No.

1:21cCV890, 2023 WL 143201, at *5 &€ n.6 (M.D.N.C. Jan. 10, 2023)

(unpublished) (holding that “[the p]laintiff simply ha[d] not shown

that the medical evidence should have compelled the ALJ to adopt

limitations . . . in the RFC to account for [the p]laintiff’s

headaches,” where “[the plaintiff] did not list headaches among her

allegedly disabling conditions on any of her Disability Reports”),

recommendation adopted, 2023 WL 7924175 (M.D.N.C. Feb. 3, 2023)

(unpublished) (Eagles, J.); O’Brien, 2016 WL 2755459, at *7 (“[T]he

ALJ did not err by failing to include any limitations in the RFC

° Plaintiff faults the ALJ for not expressly discussing Dr. Hayes’s

treatment records and the lumbar and cervical imaging he ordered. (See Docket

Entry 9 at 11-12.) The ALJ did cite that evidence generally but did not discuss

it in any detail. (See Tr. 43.) However, given the brevity of Plaintiff’s

treatment for back and neck pain (see Tr. 419-30, 470-74), and her failure to

allege lumbar DDD and cervical spondylosis as disabling impairments (see Tr. 56-

76, 218, 252, 260), the ALJ did not commit legal error in failing to specifically

discuss that evidence, see McNeil v. Saul, No. 1:19CV213, 2020 WL 5111246, at *5

(M.D.N.C. Aug. 31, 2020) (unpublished) (declining to find error arising out of

ALJ’s failure to discuss left knee MRI in RFC discussion, where “[the p]laintift

did not include any left knee conditions among his allegedly disabling

impairments on his Disability Report and [] did not testify at either his

original or the supplemental hearing about any problems with his left knee”

(internal parenthetical citation omitted)), recommendation adopted, 2020 WL

5821076 (M.D.N.C. Sept. 30, 2020) (unpublished) (Osteen, J.).

22

related to [the p]laintiff’s hearing loss and

tinnitus[,] . . . [because] Plaintiff did not include hearing loss

or tinnitus in the list of disabling impairments on his Disability

Report[, and t]hat fact undermine[d] his suggestion [] that such

conditions may have caused functional limitations”); Thomas v.

Colvin, Civ. No. 1:13–1294, 2014 WL 2611720, at *1–2, 13 (D.S.C.

June 11, 2014) (unpublished) (rejecting argument that “ALJ erred by

failing to discuss [the p]laintiff’s obesity in the RFC analysis”

because, inter alia, the plaintiff “did not allege obesity as an

impairment in his Disability Reports”).

Put simply, Plaintiff’s first issue on review fails as a

matter of law.

2. Migraine Headaches

Plaintiff’s second assignment of error asserts that “[t]he ALJ

did not build an accurate and logical bridge regarding

[Plaintiff]’s migraines.” (Docket Entry 9 at 13 (bold font and

block formatting omitted); see also Docket Entry 12 at 4-5.) In

particular, Plaintiff contends that, “[d]espite treatment records

and other evidence showing a diagnosis and treatment for migraines,

the ALJ never acknowledged migraines in the step-two analysis or

elsewhere in the decision” (Docket Entry 9 at 15), “and the ALJ’s

broad reference that all other alleged impairments were not severe

precludes meaningful judicial review” (id. (referencing Tr. 43)).

Plaintiff additionally argues that, “[d]espite treatment records

23

showing [Plaintiff] was sensitive to light and sound, the RFC

assessment contained no limitation on light or sound nor an

explanation for their absence,” and, despite “treatment records

show[ing] that migraines could last for days, [] the ALJ never

explained whether [Plaintiff]’s migraines would result in absences

or limitations on task performance.” (Id.) In Plaintiff’s view,

the ALJ’s failure to “ma[k]e any specific findings regarding the

frequency, severity, duration, and work-related effects of

[Plaintiff]’s migraines[ violated ] Woody [v. Kijakazi, No. 22-

1437, 2023 WL 5745359, at *1 (4th Cir. Sept. 6, 2023)

(unpublished)] and Darlene A.[ v. Colvin, No. 1:23CV976, 2024 WL

5262869, at *4-6 (M.D.N.C. Dec. 21, 2024) (unpublished)].” (Id.)

For the reasons that follow, the ALJ here did not err by failing to

make findings regarding the frequency, severity, and duration of

Plaintiff’s alleged migraine headaches or by failing to include in

the RFC limitations relating to exposure to light and sound or off-

task time and absence, because Plaintiff did not provide evidence

establishing that migraine headaches even qualified as a medically

determinable impairment, let alone a severe impairment.

Social Security Ruling 19-4p, Titles II & XVI: Evaluating

Cases Involving Primary Headache Disorders, 2019 WL 4169635 (Aug.

26, 2019) (“SSR 19-4p”), provides that a claimant must present

24

evidence of the following criteria to establish migraine headaches

as a medically determinable impairment:

[H]eadaches not better accounted for by another []

diagnosis [recognized by the third edition of the

International Classification of Headache Disorders

(“ICHD-3”)] and at least five headache attacks satisfying

the following criteria:

· Lasting 4 to 72 hours (untreated or unsuccessfully

treated); and

· At least two of the following four characteristics:

· Unilateral location;

· Pulsating quality;

· Moderate or severe pain intensity; or

· Aggravation by or causing avoidance of

routine physical activity (for example,

walking or climbing stairs); and

· During headache, at least one of the

following:

· Nausea or vomiting, or

· Photophobia and phonophobia.

SSR 19-4p, 2019 WL 4169635, at *5 (emphasis added) (footnotes

omitted).

Here, the record, which contains treatment notes spanning

nearly three years from May 29, 2020 (see Tr. 326-33), to March 22,

2023 (see Tr. 440-44), reflects only one occasion on which

Plaintiff complained of a migraine headache (see Tr. 460-63). On

July 27, 2022, Plaintiff reported to her primary care provider that

she had a “migraine on the left side of her head that started a few

25

days [earlier],” with “sensitivity to light and sound,” and “nausea

but no vomiting.” (Tr. 460.) The provider described Plaintiff as

“ill-appearing, sitting in a dark exam room” (Tr. 462) and

administered a promethazine injection for Plaintiff’s nausea (see

Tr. 463). That sole report of a migraine headache falls far below

the “at least five headache attacks” required by SSR 19-4p to

establish migraine headaches as a medically determinable

impairment, SSR 19-4p, 2019 WL 4169635, at *5 (emphasis added).

The other record evidence Plaintiff highlights similarly fails

to meet SSR 19-4p’s criteria to qualify Plaintiff’s migraine

headaches as a medically determinable impairment. Plaintiff notes

that, “[i]n disability paperwork, [she] stated she took Excedrin

Migraine and Goody’s powder as needed for headaches” (Docket Entry

9 at 13 (citing Tr. 290)), but fails to explain how medication

taken “as needed” (Tr. 290) demonstrates that she experienced “at

least five headache attacks,” SSR 19-4p, 2019 WL 4169635, at *5

(emphasis added). Plaintiff further relies upon “[t]reatment

records in October 2022 and March 2023 [that] reported an active

problem of migraines.” (Docket Entry 9 at 14 (citing Tr. 445,

450).) Although treatment notes from both primary care visits

listed “Classic Migraine (With Aura)” (Tr. 445, 450) among

Plaintiff’s “Active Problems [and C]onditions” (id. (all caps font

omitted)), at both visits, Plaintiff denied current headache (see

Tr. 446, 451), and the provider neither assessed migraine headaches

26

(see Tr. 448, 452), nor prescribed any treatment for them (see Tr.

449, 454). Plaintiff additionally points out that “Dr. Hayes’s

treatment records from August 2022 to December 2022 noted a past

medical history of migraines” (Docket Entry 9 at 14 (emphasis

added) (citing Tr. 419, 422, 425, 428)), but does not explain how

a “past” history of migraines would have any tendency to show that

Plaintiff experienced migraines at the frequency required by SSR

19-4p during the relevant period in this case (see id.).

Because Plaintiff has clearly not presented the evidence

required by SSR 19-4p to establish migraine headaches as a

medically determinable impairment, she has failed to show any error

by the ALJ relating to migraine headaches, and Plaintiff’s second

assignment of error thus provides no basis for relief.

3. Interaction with Coworkers and Supervisors

In Plaintiff’s third and final assignment of error, she

maintains that “[t]he ALJ did not build an accurate and logical

bridge regarding social interaction limitations with coworkers and

supervisors.” (Docket Entry 9 at 16; see also Docket Entry 12 at

5-11.) More specifically, Plaintiff notes that “[t]he sole basis

for the [ALJ’s RFC] limitation of occasional interaction with the

public was [Plaintiff]’s continued prescription of medication for

her mental impairments” (Docket Entry 9 at 18 (referencing Tr.

49)), and argues that “the ALJ did not explain why th[at]

evidence . . . would not extend to social interaction with

27

coworkers and supervisors” (id.). In that regard, Plaintiff points

out that “the ALJ noted earlier in the decision[ that Plaintiff]

reported problems getting along with everyone, which would include

coworkers and supervisors.” (Id. (referencing Tr. 45 (in turn

referencing Tr. 229)).) According to Plaintiff, “[t]he ALJ’s

consideration of social interaction limitations with only the

public is contrary to the guidance in Social Security Ruling 85-

15[, Titles II and XVI: Capability to Do Other Work - The Medical-

Vocational Rules as a Framework for Evaluating Solely Nonexertional

Impairments, 1985 WL 56857 (1985) (‘SSR 85-15’),] because that

ruling emphasizes that interaction with coworkers and supervisors,

not the public, is a basic demand of unskilled work.” (Id.

(referencing SSR 85-15, 1985 WL 56857, at *4).) As explained more

fully below, Plaintiff’s contentions ultimately miss the mark.

The ALJ’s decision did not sufficiently explain why she

limited Plaintiff’s interaction with the public but not with

supervisors and coworkers. At step three of the SEP, the ALJ

expressly acknowledged that “[Plaintiff] stated that she has

problems getting along with family, friends, neighbors, or others

because she does not like people” (Tr. 45 (referencing Tr. 229)) in

finding Plaintiff moderately limited in interacting with others

(see id.). That statement by Plaintiff, which the ALJ did not

expressly discount (see Tr. 45-47), would support limitations on

interaction with coworkers, supervisors, and the public. In the

28

ALJ’s discussion of the mental RFC, she provided the following

rationale for the RFC’s mental limitations:

Turning to [Plaintiff]’s severe mental impairments

including depression/bipolar, anxiety, and substance

addition disorder, her treatment notes reveal these

conditions are stable with current treatment.

Specifically, other than [Plaintiff]’s report that she

was bothered by feeling down, depressed, or hopeless and

bothered by little interest or pleasure doing things

during an emergency room follow-up by her primary care

provider in July 2022, [Plaintiff] was alert, oriented

times three, well-appearing, with normal appearance and

no depression alternating with periods of elation; no

racing thoughts; and was not bothered by feeling down,

depressed, or hopeless during primary care provider

visits during examinations. [Plaintiff]’s treatment has

consisted of the prescription of Abilify and

Buspar. [Plaintiff] has not participated in individual

or group counseling and has not required intensive

therapy, inpatient therapy or hospitalization for her

severe mental impairments. Nonetheless, the [ALJ] has

limited [Plaintiff] to simple, routine tasks; occasional

interaction with the public; occasional workplace

changes; and occasional independent decision making

because of her depression/bipolar, anxiety, and substance

addiction disorder.

(Tr. 48 (emphasis added) (internal parenthetical citations

omitted).) That discussion entirely fails to explain why

Plaintiff’s mental symptoms warranted a limitation on interaction

with the public but not with coworkers and supervisors.

The ALJ’s discussion of the opinion evidence similarly fails

to shed any light on her omission from the RFC of interaction

limitations involving coworkers and supervisors. The state agency

psychological consultants did not include any interaction

limitations in their mental RFCs, opining only that Plaintiff

remained able to perform “simple routine tasks” (Tr. 81, 85) and

29

“simple and unskilled work” (Tr. 91). The ALJ deemed those

administrative findings “persuasive” and stated that “[t]he medical

evidence of record also support[ed] additional limitations.” (Tr.

49 (emphasis added).) In that regard, the ALJ found that “the

continued prescription of Abilify and Buspar for anxiety disorder

and bipolar disorder support[ed] limitations including occasional

interaction with the public and occasional workplace changes.”

(Id. (emphasis added).) Again, that explanation wholly fails to

explain why the “continued prescription of Abilify and Buspar”

(id.) would not also warrant limiting Plaintiff’s interaction with

coworkers and supervisors. Consultative psychological examiner Dr.

Carol S. McCleary opined that Plaintiff would have “[m]oderate”

limitation in her “[a]bility to interact with coworkers and with

the public,” further defined as “[s]ome problems that might be

successfully dealt with through modifications or accommodations.”

(Tr. 417.) The ALJ found that opinion “persuasive” and “supported

by and consistent with the medical evidence of record” (Tr. 49),

but then inexplicably included only a limitation in the RFC to

interaction with the public (see Tr. 46). The ALJ’s failure of

explanation regarding limitations on interaction with coworkers and

supervisors precludes meaningful judicial review.

That error by the ALJ remains harmless, 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

30

perfect opinion unless there is reason to believe that the remand

might lead to a different result”), because, as the Commissioner

argues, “the jobs identified [by the VE and adopted] at step five

[of the SEP by the ALJ] could be performed even if Plaintiff had

more restricted social interaction limitations” (Docket Entry 11 at

14). The Dictionary of Occupational Titles (“DOT”) codes for all

three of the jobs the ALJ ultimately found Plaintiff able to

perform (see Tr. 50) contain a fifth digit (or “People” rating) of

“8,” DOT, No. 318.687-010 (“Kitchen Helper”), 1991 WL 672755

(G.P.O. 4th ed. rev. 1991); DOT, No. 920.587-018 (“Hand Packager”),

1991 WL 687916; DOT, No. 317.687-010 (“Cook Helper”), 1991 WL

672752, which means that the jobs’ interaction-related tasks

primarily entail “Taking Instructions - Helping,” further defined

in the DOT as “[a]ttending to the work assignment instructions or

orders of [a] supervisor[ with njlo immediate response required

unless clarification of instructions or orders is needed,” see DOT,

App’ B, (“Explanation of Data, People, and Things”), 1991 WL

688701 (emphasis added). Moreover, each job rates the degree of

“Taking Instructions - Helping” as “Not Significant,” DOT, No.

318.687-010 (“Kitchen Helper”), 1991 WL 672755; DOT, No.

920.587-018 (“Hand Packager”), 1991 WL 687916; DOT, No. 317.687-010

(“Cook Helper”), 1991 WL 672752 (emphasis added), which “reflect[s]

the lowest possible level of human interaction that exists in the

labor force,” Fletcher v. Colvin, No. 1:15CV166, 2016 WL 915196, at

31

*10 (M.D.N.C. Mar. 4, 2016) (unpublished), recommendation adopted,

slip op. (M.D.N.C. Mar. 28, 2016) (Osteen, C.J.). Furthermore, all

three jobs identify the task of “Talking” as “Not Present -

Activity or condition does not exist.” DOT, No. 318.687-010

(“Kitchen Helper”), 1991 WL 672755; DOT, No. 920.587-018

(“Packager, Hand”), 1991 WL 687916; DOT, No. 317.687-010 (“Cook

Helper”), 1991 WL 672752.

Consequently, Plaintiff has not shown that remand for the ALJ

to include limitations in the RFC on interaction with coworkers and

supervisors would result in a different outcome in her case, see

Ridley G. v. Commissioner of Soc. Sec., No. 1:20CV773, 2021 WL

4307507, at *8, *13 (N.D.N.Y. Sept. 22, 2021) (unpublished)

(deciding that RFC restriction to no interaction or tandem tasks

with coworkers harmonizes with jobs with DOT level 8 interaction);

Scott C. v. Commissioner of Soc. Sec., No. 2:20CV109, 2021 WL

2682276, at *4-5 (D. Vt. June 30, 2021) (unpublished) (deeming

“level 8 interaction [] compatible with an RFC limiting a claimant

to only superficial contact with coworkers, supervisors, and the

public” (brackets and internal quotation marks omitted) (emphasis

added)); Wilson v. Saul, No. 1:19CV1089, 2020 WL 6293132, at *4

(M.D.N.C. Oct. 27, 2020) (unpublished) (Webster, M.J.) (finding any

error arising out of “[t]he ALJ’s decision to omit any limitation

in [the pJlaintiff’s ability to interact with co-workers and

supervisors .. . harmless because the jobs the ALJ concluded that

32

[the p]laintiff could perform d[id] not require significant social

interactions,” and “the [DOT] descriptions of the jobs ... list

interaction with ‘People’ as being ‘Not Significant’”),

recommendation adopted, slip op. (M.D.N.C. Nov. 24, 2020) (Biggs,

J.); Eldridge v. Berryhill, No. CV 16-5289, 2018 WL 1092025, at *2

(W.D. Ark. Feb. 28, 2018) (unpublished) (holding jobs categorized

by DOT as involving level 8 interaction consistent with restriction

to “limited contact with the general public” and “incidental

contact with co-workers” (emphasis added)); Alie v. Berryhill, No.

4:16CV1353, 2017 WL 2572287, *16 (B.D. Mo. June 14, 2017)

(unpublished) (ruling that “[l]level 8 interaction is compatible

with a[n] RFC limiting a claimant to only superficial contact with

coworkers, supervisors, and the public” (emphasis added)); Shorey

v. Astrue, No. 1:11CV414, 2012 WL 3475790, at *6 (D. Me. July 13,

2012) (unpublished) (holding that “inclusion of a limitation to

occasional, brief, and superficial contact with coworkers and

supervisors in the [ALJ]’s hypothetical question would not have

excluded” jobs with DOT “People” rating of 8), recommendation

adopted, 2012 WL 3477707 (D. Me. Aug. 14, 2012) (unpublished);

Flaherty v. Halter, 182 F. Supp. 2d 824, 851 (D. Minn. 2001)

(finding jobs with “not significant” levels of social interaction

under the DOT compatible with ALJ’s limitation to “brief

superficial type of contact with co-workers and supervisors and

members of the public” (emphasis added)).

33

In Plaintiff’s Reply, she raises two arguments why the ALJ’s

failure to include in the RFC limitations on interaction with

coworkers and supervisors does not qualify as harmless error. (See

Docket Entry 12 at 6-11.) First, Plaintiff contests the relevance

of the DOT’s rating of “Talking” for all three jobs as “Not

Present,” because “[t]he ability of talking . . . refers to

‘[e]xpressing or exchanging ideas by means of the spoken word to

impart oral information to clients or to the public and to convey

detailed spoken instructions to other workers accurately, loudly,

or quickly.’” (Id. at 7 n.28. (quoting Selected Characteristics of

Occupations Defined in the Revised Dictionary of Occupational

Titles (“SCO”), App’x C (“Physical Demands”), § 12 (U.S. Dep’t of

Labor 1993)).) According to Plaintiff, “[t]h[at] definition shows

that the ability of talking relates to when that ability is part of

the fundamental duties of the job, not the interaction when an

individual is taking instructions or helping.” (Id. ) Even if,

arguendo, the definition of “Talking” pertains to speaking as an

essential function of the job, rather than the speaking involved in

taking instructions and/or helping, Plaintiff has glossed over the

fact that the DOT rates the degree of “Taking Instructions -

Helping” as “Not Significant” for all three jobs in question, and

indicates that “[nlo immediate response [to a supervisor is]

required unless clarification of instructions or orders is needed,”

DOT, App’x B, 1991 WL 688701 (emphasis added).

34

Second, Plaintiff contends that “[t]he Commissioner takes

administrative notice of reliable job information from various

governmental and other publications” (Docket Entry 12 at 8 (citing

20 C.F.R. § 416.966(d))), and that “the United States Department of

Labor’s The Revised Handbook for Analyzing Jobs (Revised Handbook)

provide[s] reliable job information” (id. (stray comma omitted)

(second italics added)). According to Plaintiff, “[t]he Revised

Handbook confirms that ‘[e]very job involves a relationship to a

supervisor or to a set of instructions . . . [and] wherever such a

relationship is occupationally significant, the analyst must

provide an indication of that relationship.’” (Id. at 9 (first

italics added) (second italics in original) (quoting Revised

Handbook, Ch. 13 - “Writing Job Summaries and Descriptions of

Tasks,” at 13-7 (U.S. Dep’t of Labor 1991)).) Plaintiff further

notes that “[e]xamples in the worker function related to [P]eople

include: instructs students, supervises workers, and serves

customers.” Id. (citing Revised Handbook, Ch. 13, at 13-7).)

Plaintiff thus argues that “the reliable job information shows that

the tasks for the [P]eople worker function relate to the nature of

the interaction, not the frequency of interaction” (id. at 10

(emphasis added)), and that “the assessment of “[N]ot

[S]ignificant” in the [P]eople worker function is not relevant to

a specific frequency of social interaction” (id. (emphasis added)).

35

Plaintiff’s argument overlooks the fact that the DOT, for each

of the three jobs, rates the worker’s relationship to “Things” as

“Significant” but his or her relationship to “People” as “Not

Significant.” DOT, No. 318.687-010 (“Kitchen Helper”), 1991 WL

672755; DOT, No. 920.587-018 (“Packager, Hand”), 1991 WL 687916;

DOT, No. 317.687-010 (“Cook Helper”), 1991 WL 672752 (emphasis

added). Thus, although “every job involves a relationship to a

supervisor,” the job analyst that prepared the DOT’s job

descriptions for Kitchen Helper, Hand Packager, and Cook Helper

clearly indicated that, for those jobs, the relationship did not

qualify as “occupationally significant.” Revised Handbook, Ch. 13,

at 13-7.

Furthermore, the DOT’s descriptions of the duties of each job

make clear that interaction with coworkers and supervisors would

not rise to the level of “occupationally significant,” id. See

DOT, No. 318.687-010 (“Kitchen Helper”), 1991 WL 672755 (“Performs

any combination of following duties to maintain kitchen work areas

and restaurant equipment and utensils in clean and orderly

condition: Sweeps and mops floors. Washes worktables, walls,

refrigerators, and meat blocks. Segregates and removes trash and

garbage and places it in designated containers. Steam-cleans or

hoses-out garbage cans. Sorts bottles, and breaks disposable ones

in bottle-crushing machine. Washes pots, pans, and trays by hand.

Scrapes food from dirty dishes and washes them by hand or places

36

them in racks or on conveyor to dishwashing machine. Polishes

silver, using burnishing-machine tumbler, chemical dip, buffing

wheel, and hand cloth. Holds inverted glasses over revolving

brushes to clean inside surfaces. Transfers supplies and equipment

between storage and work areas by hand or by use of handtruck.

Sets up banquet tables. Washes and peels vegetables, using knife

or peeling machine. Loads or unloads trucks picking up or

delivering supplies and food.”); DOT, No. 920.587-018 (“Packager,

Hand”), 1991 WL 687916 (“Packages materials and products manually,

performing any combination of following duties: Cleans packaging

containers. Lines and pads crates and assembles cartons. Obtains

and sorts product. Wraps protective material around product.

Starts, stops, and regulates speed of conveyor. Inserts or pours

product into containers or fills containers from spout or chute.

Weighs containers and adjusts quantity. Nails, glues, or closes

and seals containers. Labels containers, container tags, or

products. Sorts bundles or filled containers. Packs special

arrangements or selections of product. Inspects materials,

products, and containers at each step of packaging process.

Records information, such as weight, time, and date packaged.”);

DOT, No. 317.687-010 (“Cook Helper”), 1991 WL 672752 (“Assists

workers engaged in preparing foods for hotels, restaurants, or

ready-to-serve packages by performing any combination of following

duties: Washes, peels, cuts, and seeds vegetables and fruits.

37

Cleans, cuts, and grinds meats, poultry, and seafood. Dips food

items in crumbs, flour, and batter to bread them. Stirs and

strains soups and sauces. Weighs and measures designated

ingredients. Carries pans, kettles, and trays of food to and from

work stations, stove, and refrigerator. Stores foods in designated

areas, utilizing knowledge of temperature requirements and food

spoilage. Cleans work areas, equipment and utensils, segregates

and removes garbage, and steam-cleans or hoses garbage containers.

Distributes supplies, utensils, and portable equipment, using

handtruck.” (internal parenthetical material omitted)).

In sum, Plaintiff’s third and final issue on review fails to

demonstrate any grounds for remand.

III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, and that this action be

dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

January 20, 2026

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