# LOOKABILL

> District Court, M.D. North Carolina · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11298260

## Case

- **Full name:** Randy L. v. Frank Bisignano, Commissioner of Social Security
- **Court:** District Court, M.D. North Carolina
- **Decided:** March 31, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11298260

## How later opinions describe it (automated extraction)

- noting that res judicata applies to Social Security disability cases and “prevents reappraisal of both the Secretary’s findings and his decision in Social Security cases that have become final’

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RANDY L., )
)
Plaintiff, )
)
v. ) 1:25CV100
)
FRANK BISIGNANO,! )
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Randy L. (“Plaintiff”) brought this action pursuant to Section 205(g) of the
Social Security Act (the “Act’’), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a
final decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed cross-motions
for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on February 7, 2022, alleging a
disability onset date of March 8, 2021. (Tr. at 21, 204-05.)? Plaintiffs application was denied
initially (I'r. at 85-91) and upon reconsideration (Tr. at 92-100, 109-12.) Thereafter, Plaintiff

1 The United States Senate confirmed Frank Bisignano as the Commissioner of Social Security 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 Bisignano should be substituted as the Defendant in this suit. Neither the Court nor the parties need
take any further action to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
Transcript citations refer to the Sealed Administrative Record [Doc. #5].

requested an administrative hearing de novo before an Administrative Law Judge (“ALJ”).
(Tr. at 115.) On August 18, 2023, Plaintiff, along with his attorney, attended the subsequent
telephone heating, at which Plaintiff and an impartial vocational expert testified. (Ir. at 21,
42-67.) Following the hearing, the AL) concluded that Plaintiff was not disabled within the
meaning of the Act (Ir. at 37), and on December 10, 2024, the Appeals Counsel denied
Plaintiff's request for review of that decision, thereby making the ALJ’s conclusion the
Commissionet’s final decision for purposes of judicial review (Tr. at 1-7.)
Il LEGAL STANDARD
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 teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are 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
AL) if they are supported by substantial evidence and were reached through application of the
cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (nternal
quotation omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastto v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) G@nternal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation matks 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
[ALJ].” Mastto, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a cortect 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] clatmant for disability
benefits bears 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)).?

3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 USC. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs ate,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

“The 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
requitements of a listed impairment; (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 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 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, ie., “[i]f a claimant’s impaitment is not sufficiently severe to equal or
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on

4 “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8
a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks
omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or vety 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 AL] 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 clatmant’s]
impaitments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carty its
“evidentiaty burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
Il. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since his alleged onset date of March 8, 2021. The ALJ therefore concluded that
Plaintiff met his burden at step one of the sequential evaluation process. (I'r. at 24.) At step
two, the AL] further determined that Plaintiff suffered from the following severe impairments:
degenerative disc disease with radiculopathy and scoliosis status-post remote
microdiscectomy, left hip congenital decreased offset of right superior-lateral
femoral head-neck junction with left hip trochanteric bursitis, obesity, and
adjustment disorder with anxiety, depression, and insomnia|.|
(Tr. at 24.) The ALJ found at step three that none of these impairments, individually or in
combination, met ot equaled a disability listing. (Tr. at 26-28.) Therefore, the AL] assessed
Plaintiffs RFC and determined that he could perform sedentaty work with the following
additional limitations:

[Plaintiff] can sit for six hours in an eight-hour workday. He can frequently
reach. He can occasionally climb ramps and stairs, balance (as defined by the
Selected Characteristics of Occupations (SCO) of the Dictionary of
Occupational Titles (DOT), stoop, kneel, crouch, and crawl. He can never
climb ropes, ladders, or scaffolds. He must avoid exposute to hazards (such as
unprotected heights and unprotected moving mechanical parts). He must be
allowed to use a cane during ambulation. He can understand, remember, and
catty out simple instructions. He can work in environments with occasional
changes in workplace settings and routines.
(Ir. at 28.) At step four of the analysis, the AL] determined, based on the above RFC and the
vocational expert’s testimony, that Plaintiff was unable to perform any of his past relevant
work. (It. at 34-35.) However, the AL] found at step five that, given Plaintiffs age, education,
work experience, and RFC, along with the testimony of the vocational expert regarding those
factors, Plaintiff could perform other jobs available in the national economy and therefore was
not disabled under the Act. (Ir. at 36-37.)
Plaintiff now raises two telated challenges to the ALJ’s decision. First, he contends
that “[t]he ALJ erred by failing to perform a function-by-function evaluation of Plaintiffs
contested and relevant functions when assessing the RFC.” (Pl’s Br. [Doc. #8] at 5.)
Specifically, Plaintiff argues that the ALJ (1) failed to properly analyze Plaintiffs abilities to
sustain positions, particularly sitting, even within the comparatively limited confines of
sedentary work, and (2) failed to properly consider whether PlaintifPs symptoms would cause
work-preclusive absences. (PL.’s Br. at 5-15.) Second, Plaintiff contends that “[t]he AL]
violated Albright and AR 00-1(4) in failing to properly evaluate a prior ALJ decision in her
own decision.” (PL’s Br. at 15-18.) In particular, Plaintiff challenges the ALJ’s omission of
the sit/stand option included in the prior RFC.

Aftet a thorough review of the record, the Court agrees that the AL]’s failure to analyze
Plaintiffs limitation in prolonged sitting and related need to change positions requites remand.
As noted above, Plaintiff contends that, in assessing his RFC, the ALJ erred by failing to
perform a function-by-function evaluation of evidence relating to Plaintiffs ability to sit for
prolonged periods without changing position, despite evidence suggesting greater limitations.
Plaintiff further contends that this failure is exacerbated by the fact that a prior ALJ decision
found that Plaintiff required a sit/stand option, but the ALJ here did not include a sit/stand
option ot any RFC provision addressing the need to change positions, without addressing why
this restriction would no longer apply. As discussed below, the Court agrees that in these
citcumstances, the AL]’s failure to address Plaintiffs ability to sit for prolonged periods
without changing positions requires remand.
As Social Security Ruling (“SSR”) 96-8p instructs, “[t]he RFC assessment must first
identify the individual’s functional limitations or restrictions and assess his or het work-related
abilities on a function-by-function basis,” including the functions listed in the regulations.
Social Security Ruling 96-8p: Policy Interpretation Ruling Titles I] and XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *1 (july 2,
1996). “Only after such a function-by-function analysis may an AL] express RFC in terms of
the exertional levels of work.” Montoe v. Colvin, No. 15-1098, 2016 WL 3349355, at *9 (4th
Cir. June 16, 2016) G@nternal quotations and citations omitted). Further, the “RFC assessment
must include a nattative discussion describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, obsetvations).” SSR 96-8p, 1996 WL 374184, at *7. An ALJ must “both identify

evidence that supports his conclusion and ‘build an accurate and logical bridge from [that]
evidence to his conclusion.”” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis
omitted) (quoting Monroe, 826 F.3d at 189).
The Fourth Circuit has noted that a per se rule requiring remand when the ALJ does not
perform an explicit function-by-function analysis “is inappropriate given that remand would
ptove futile in cases whete the ALJ does not discuss functions that are ‘irrelevant ot
uncontested.”” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v.
Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). Rather, remand may be appropriate
“where an ALJ fails to assess a clatmant’s capacity to perform relevant functions, despite
contradictory evidence in the record, or where other inadequacies in the ALJ’s analysis
frustrate meaningful review.” Mascio, 780 F.3d at 636 (quoting Cichocki, 729 F.3d at 177).
The court in Mascio concluded that remand was appropriate because it was “left to guess
about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform relevant
functions” because the ALJ had “said nothing about [the claimant’s] ability to perform them
for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did not
address. Mascio, 780 F.3d at 637.
Here, counsel for Plaintiff argued at the hearing that, due to back pain and other
impairments, Plaintiff “is limited to less than sedentaty exertion, is required to change
positions such that he would be off-task to a disabling extent, and would miss work to a
disabling extent.” (Ir. at 29.) Specifically, counsel noted that Plaintiffs low back pain “limits
him in his sitting” and that Plaintiffs “severe and debilitating chronic back pain precludes even
sedentaty work” because “[h]e would need a sit/stand option with such frequency that he

would be unable to remain on task with competitive employment.” (Tr. at 46, 47.) The ALJ
exptessly found based on the underlying evidence, that Plaintiff did not “need|] to shift
positions to_an extent that he would be off-task or absent to a disabling extent.” (Tr. at 33
(emphasis added).) However, the ALJ failed to take the next logical step and explain to what
extent Plaintiff did requite position changes (even if they would not take him off task), or if
he required no position changes, why. (I'r. at 33.)
Plaintiff's ability to sit for extended periods, totaling up to 6 houts in an 8-hour
workday, is directly at issue in this case. Plaintiff testified that he “can’t sit for very long at all”
and that he “can sit for about five to ten minutes and then [has] to get up and move around.”
(Tr. at 51.) Indeed, throughout the application process, Plaintiff repeatedly explained that he
couldn’t sit (T'r. at 243), that he was “not able to sit” for long periods of time (Tr. at 246), that
if he “sit[s] long back hurts leg go numb” (Tr. at 251), and that he is “[ujnable to sit for
ptolonged periods” (Tr. at 269.) In a Third Party Function Report completed by Plaintiff's
friend Jeff Jones, Mr. Jones stated that, “I have seen him be unable to walk long distances and
unable to sit for long petiods of time.” (Ir at 259.) Plaintiff also repeatedly reported to his
medical providers that his pain was worse with sitting (Tr. at 356, 466, 586, 711, 1030).
In the decision, the ALJ conceded that Plaintiff experienced pain while sitting,
concluding that “it is clear that [Plaintiff] experiences discomfort in any position” and that his
discomfort “reduces his functional capacity.” (It. at 33.) In making this finding, the ALJ
in part, on the opinions of Dr. Drew Kiraly,> who noted during an April 20, 2023

5 In what clearly amounts to a scrivenet’s error, the ALJ mistakenly attributed Dr. Kiraly’s statements to “Dr.
Kirby.” (Compare Tr. at 33 with Tr. at 1030.)

evaluation that Plaintiff experienced “pain with difficulty standing, sitting, or walking for an
extended period of time or to find [sic] a comfortable position.” (Tr. at 33 (emphasis added))
(citing Tr. at 1030). Plaintiff found Dr. Kiraly’s assessment persuasive. (I'r. at 33.) Plaintiff's
physical therapists similarly noted that “[p]ain prevents sitting more than 2 hour’ (Tr. at 467,
587), that he had “[d]ifficulty with prolonged sitting” (Tr. at 469, 589), and that he “sits with

a significant shift to the right” and has “difficulty with sitting.” (Tr. at 588.) However, the
AL] did not address Plaintiffs difficulty with sitting or explain how these opinions and
findings were consistent with an RFC with no limitations on sitting.
The ALJ also relied on the similar findings of consultative examiner Dr. Stephen
Burgess, who opined in November 2022 that Plaintiff “continues to have limitations even with
day-to-day activities of any kind whether requiring standing, sitting, or lying down.” (It. at 33
(emphasis added)) (quoting Tr. at 504). Dr. Burgess noted that Plaintiff “can sit for half an
hout ot so, sometimes a little longer but has to place weight predominantly over the right hip,”
and Dr. Burgess explained that Plaintiffs MRI showed “compression of the exiting L5 nerve
root, which is consistent with his pain.” (Tr. at 500.) Dr. Burgess also noted objective findings
upon examination, including positive straight leg raise tests and tenderness of the lumbar spine
(Tr. at 500, 503). In addition, Dr. Burgess specifically observed that Plaintiff did not appear
comfortable when sitting, and “has to sit with weight borne over the right hip” (Tr. at 502).
The ALJ found that Dr. Burgess’ opinion was persuasive. (I'r. at 33.) Although the ALJ went

on to assert that Dr. Burgess’ opined “limitations are accounted for mote specifically in the
above [RFC]” (Tr. at 33), the RFC does not, in fact, contain any restrictions on Plaintiff's
ability to sit.

10

Elsewhere in her decision, the ALJ states that Plaintiff has experienced limiting spinal
issues for many years, including surgery in 2001, prior to further injuring his back in 2021. □□□□□□
at 31-34.) MRI results from November 2021 showed a disc bulge at L4-5 with a tear of the
annulus (I'r. at 31, 351), and a follow-up MRI dated April 5, 2022 also indicated compression
of the descending left L5 nerve root (T'r. at 31, 403, 697). The ALJ noted that additional
surgical intervention was not recommended. (Tr. at 31.) As explained by Dr. Michaux
Kilpatrick, a neurosurgeon who evaluated Plaintiff in November 2022, Plaintiff received
epidural lumbar steroid injections in both March and May of that year, but the treatment
resulted in no relief. (Tr. at 696.) Plaintiff was subsequently referred to Neurosurgery at Wake
Forest Baptist Health, where it was determined that he was not a surgical candidate. (Ir. at
696, 455.) Plaintiff went to Dr. Kilpatrick for a second opinion, and Dr. Kilpatrick agreed
that “the risks of surgery would outweigh any benefits, as surgical intervention [was] not likely
to resolve [Plaintiff's] chronic low back and global left leg syndrome.” (Tr. at 696.) Notably,
Dr. Kilpatrick noted that imaging showed facet arthropathy with irritation of the left L5 nerve
root and concern for potential left hip pathology, and examination reflected palpable pain,
decreased range of motion, and decreased sensation, but those issues could not be addressed
with anatomical correction surgery. (Ir. at 696-97, 699.) Instead, Dr. Kilpatrick
recommended that Plaintiff (1) continue his ongoing treatment with Atrtum WFBH Pain
Clinic, (2) undergo evaluation to become part of a spinal cord stimulator trial, and (2)
potentially obtain x-rays of his left hip to ensure that his symptoms were not due, at least in
part, to underlying hip pathology. (Tr. at 696.) In a subsequent summary, Plaintiffs long-time
treating physician, Dr. Arnold, explained that Plaintiff had been in “unrelenting pain” for two

11

yeats, that Plaintiff has seen two surgeons who agreed that surgery likely would not provide
relief, and that Plaintiff was therefore going to have a spinal cord stimulator implanted. (I'r.
at 1048.) Dr. Arnold and Dr. Kilpatrick, like Dr. Burgess, also observed that Plaintiff was
“unable to sit on his left side” and sat “leaning on his right hip because of pain in his left back”
and was “clearly uncomfortable” and “cannot sit straight in the chair.” (Ir. at 391, 697, 498,
1048.)°
Despite crediting the findings of Drs. Burgess, Arnold, and Kiraly, the ALJ did not
include any limitations on sitting when formulating Plaintiffs RFC. By omitting any
explanation for this omission, the Court cannot trace the ALJ’s reasoning or determine what
the ALJ found ot if there is substantial evidence in support. In Dowling v. Comm’r of Soc.
Sec. Admin., 986 F.3d 377 (4th Cir. 2021), the Fourth Circuit held that where, as here, a
plaintiffs ability to sit is contested, the ALJ must include an analysis of this function in her
decision. In Dowling,
Appellant . . . argued throughout her administrative and judicial proceedings
that her IBD and anal fissute cause her to experience discomfort when she sits
fot a ptolonged period of time. But the ALJ apparently concluded that
Appellant was not restricted in her ability to sit, as he did not indicate that her
RFC was limited because of those problems. This conclusion should have been
the result of an analysis that was separate from the AL]’s appraisal of Appellant’s
ability to perform other functions, and should have been accompanied by “a
nattative discussion describing” the evidence supporting it.... The AL]’s
evaluation of Appellant’s ability to sit was lacking in both respects. The ALJ
nevet specifically discussed the extent to which Appellant’s alleged sitting
ptoblems impacted her ability to perform sedentary work. The ALJ could not
have supported a conclusion in this regard through a narrative discussion
concerning the relevant evidence because he reached no such express
conclusion in the fitst instance. In fact, the AL] barely mentioned Appellant’s

6 Plaintiff's treating physician Dr. Arnold also provided a letter to the Appeals Council after the ALJ’s decision,
opinion that it would be impossible for Plaintiff to work on a continuous basis for 8 hours a day, and that
sitting sedentary, he would be uncomfortable continuously.” (Tr. at 17.)
12

sitting problems in his decision, and discussed them only when rattling off a
laundry list of her many impairments and functional restrictions. This grouping
of Appellant’s sitting limitations with her other impairments and restrictions is
a far cry from the “function-by-function analysis” the AL] was required to
conduct.
Dowling, 986 F.3d at 388.
Here, as in Dowling, the ALJ failed to perform a material analysis of Plaintiffs ability
to sit, and “the ALJ included no restrictions on [Plaintiff's] ability to sit in the RFC despite
admitting that he had trouble sustaining any position for a prolonged period of time due to
pain exacerbation.” (Pl’s Br. at 11.) As noted above, the ALJ did reject Plaintiff's contention
that he would be off task more than 10% of the day due to position changes. (Ir. at 33.)
However, again, this left unresolved and unaddressed the question of whether the ALJ
concluded that (1) no position changes were necessary and that Plaintiff could sit for
prolonged periods without limitation (and what evidence the ALJ relied on to support that
conclusion); or alternatively, (2) whether the ALJ concluded that some position changing was
necessaty due to the record evidence regarding Plaintiffs inability to sit for prolonged
petiods, but that position changing would not take Plaintiff off task; or as yet another
alternative, (3) whether the ALJ concluded that position changing was necessaty but at
intervals of 30 or 60 minutes that might briefly take Plaintiff off task but not more than 10%
of the day.’ Because the ALJ did not addtess or discuss these issues, the Court cannot follow

7 Of coutse, if it were either of the latter two alternatives, those limitations would need to be reflected in the
RFC, which did not happen here. See Social Security Ruling 96-9p: Policy Interpretation Ruling Titles II and
XVI: Determining Capability to Do Other Work—Implications of a Residual Functional Capacity for Less
Than a Full Range of Sedentary Work, SSR 96-9p, 1996 WL 374185, at *6-7 (July 2, 1996) (emphasis added):
Sitting: In order to perform a full range of sedentary work, an individual must be able to
remain in a seated position for approximately 6 hours of an 8-hour workday, with a morning
break, a lunch period, and an afternoon break at approximately 2-hour intervals. If an
13

the AL]’s analysis or understand how the AL] resolved the evidence regatding Plaintiffs
limitations on prolonged sitting. Because it is the duty of the ALJ, not the Coutt, to resolve
these evidentiary issues in the first instance, and to obtain supporting vocational expert
testimony as applicable, this case requites remand.
Moreover, Plaintiffs second, related challenge further supports this concern.
Specifically, Plaintiff contends that the ALJ failed to properly address Plaintiffs need for a
sit/stand option that was included in a prior, final decision of the Commissioner, dated March
27, 2009, when assessing Plaintiffs RFC in the present case. See Lively v. Sec. of Health &
Human Servs., 820 F.2d 1391, 1392 (4th Cir. 1987) (noting that res judicata applies to Social
Security disability cases and “prevents reappraisal of both the Secretary’s findings and his
decision in Social Security cases that have become final’); Albright v. Comm’r of Soc. Sec.
Admin., 174 F.3d 473, 477-78 (4th Cir. 1999) (“To have held otherwise would have thwarted
the legitimate expectations of claimants—and, indeed, society at large—that final agency

individual is unable to sit for a total of 6 hours in an 8-hour work day, the unskilled sedentary
occupational base will be eroded.
Alternate sitting and standing: An individual may need to alternate the required sitting of
sedentaty work by standing (and, possibly, walking) periodically. Where this need cannot be
accommodated by scheduled breaks and a lunch period, the occupational base for a full range
of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts
in the case record, such as the frequency of the need to alternate sitting and standing and the
length of time needed to stand. The RFC assessment must be specific as to the frequency of
the individual’s need to alternate sitting and standing.
Alternatively, if the ALJ concluded that no position changes were necessary and that Plaintiff could sit for
prolonged periods without limitation, some explanation is needed. As discussed above, the AL] stated that
“finding restrictions of the severity alleged by [Plaintiff], such as needing to shift positions to an extent that he
would be off-task or absent to a disabling extent are not consistent with the physical examination findings
discussed hereinabove.” (Tr. at 33.) In addition to being unclear as to what extent Plaintiff did require position
changes (even if they would not take him off task), it is also unclear how a requirement for position changes
was “not consistent with the physical examination findings,” given the consistent evidence in the treatment
records regarding Plaintiff's difficulty with prolonged sitting and discomfort while sitting, discussed above. All
of those issues are best addressed by the AL] in the first instance.
14

adjudications should carry considerable weight.”). In Albright, the Fourth Circuit explained
that
the result in Lively is . . . best understood as a practical illustration of the
substantial evidence rule. In other words, we determined that the finding of a
qualified and disinterested tribunal that Lively was capable of performing only
light work as of a certain date was such an important and probative fact as to
render the subsequent finding to the contrary unsupported by substantial
evidence.
Albright, 174 F.3d at 477-78.
These decisions ate teflected in Acquiescence Ruling 00-1(4), which provides that
“where a final decision of SSA after a hearing on a prior disability claim contains a finding
requited at a step in the sequential evaluation process for determining disability, SSA must
consider such finding as evidence and give it appropriate weight in light of all relevant facts
and circumstances when adjudicating a subsequent disability claim involving an unadjudicated
period.” Acquiescence Ruling 00-1(4), (interpreting Lively v. Secretary of Health and Human
Services) —E.ffect_of Priot Disability Findings on Adjudication of a Subsequent Disability
Claim—Titles I] and XVI of the Social Security Act, 65 Fed. Reg. 1936, 38, 2000 WL 43774,
at *4 (Jan. 12, 2000). The Social Security Administration issued Acquiescence Ruling 00-1(4)
following the Lively and Albright decisions, promulgating the procedure an adjudicator must
follow when thete is a final decision by the ALJ or Appeals Council in a prior disability claim:
When adjudicating a subsequent disability claim arising under the same or a
different title of the Act as the prior claim, an adjudicator determining whether
a claimant is disabled duting a previously unadjudicated period must consider
such a ptior finding as evidence and give it appropriate weight in light of all
relevant facts and citcumstances. In determining the weight to be given such a
prior finding, an adjudicator will consider such factors as: (1) whether the fact
on which the prior finding was based in subject to change with the passage of
time, such as a fact relating to the severity of a claimant’s medical condition; (2)
the likelihood of such a change, considering the length of time that has elapsed
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between the petiod previously adjudicated and the period being adjudicated in
the subsequent claim; and (3) the extent that evidence not considered in the
final decision on the prior claim provides a basis for making a different findings
with respect to the period being adjudicated in the subsequent claim.
AR 00-1(4), 2000 WL 43774, at *4. In Plaintiffs case, in the prior 2009 decision, the ALJ
found severe impaitments based on “lower back pain, left leg, and foot pain.” (Tr. at 73). The
ALJ assessed an RFC limiting Plaintiff to light work, but further found that Plaintiff:
could not climb ladders or scaffolds; was capable of only occasional bending,
stooping, pushing, and pulling with the arms; and required a sit/stand option.
(Tr. at 73 (emphasis added).) That decision noted that: Plaintiff testified that “sitting . . .
made his pain worse” (Tr. at 74), that Plaintiff's treatment records showed that “his symptoms
ate wotsened with sitting” (Tr. at 75), and that treatment records reflected that Plaintiff
“needed a job where he could have frequent position changes along with no heavy lifting with
his back” (Tr. at 75). Therefore, the RFC limited Plaintiff to light work with “a sit/stand
option,” but concluded that based on that RFC Plaintiff was not disabled for the period at
issue.
In assessing this prior decision, the ALJ clearly understood the obligation under
Albright and AR 00-1(4) and made thorough findings at each step. (Tr. at 21-22, 25.)
However, the ALJ did not provide any basis for reducing the limitations from the 2009
decision ot removing the sit/stand option. Instead, the ALJ explained that she based her
deviation from the prior RFC on evidence demonstrating that (1) Plaintiff's back condition
worsened with his second work injury in March 2021, and (2) “mental health conditions arose
necessitating additional restrictions.” (I'r. at 34.) The AL] specifically found that Plaintiff

now has “additional limitations” in his RFC based on his worsening condition (Tr. at 34), but

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the ALJ did not explain or address any reduction in limitations with respect to the sit/stand
option. The ALJ’s reduction of Plaintiffs exertional capacity from light to sedentary does
nothing to remedy her omission. Again, Plaintiff repeatedly testified that he experienced
increased pain with prolonged sitting. The ALJ conceded that “it is clear that [Plaintiff]
experiences discomfort in any position” and that this discomfort “reduces his functional
capacity” (Tr. at 33), yet in altering PlaintifPs RFC from the 2009 decision, the AL] failed to
include the sole restriction addressing Plaintiffs limited ability to sit.
Thus, in this case:
¢ A ptior AL] concluded that Plaintiff required a sit/stand option based on
Plaintiffs need to change positions and his worsening pain with prolonged
sitting.
° Plaintiff repeatedly explained in his testimony, in his application, and to his
providers that he could not sit for prolonged periods and that sitting worsened
his pain.
° Plaintiffs treating physicians observed Plaintiff's discomfort and inability to
sit, and his treatment records reflect that he could not sit longer than 30 minutes
at a time.
° The Consultative Examiner concluded that Plaintiff was limited in his ability
to sit, that he could not sit for more than half an hour, and that objective
examination and imaging confirmed Plaintiffs impairments, including
compression of the L5 nerve root “which is consistent with his pain.”
Despite this evidence in the record, the ALJ did not provide any explanation for
removing the prior sit/stand option, and the ALJ did not provide any analysis regarding
Plaintiffs ability to sit for extended periods. In the citcumstances, remand 1s required, so that
the AL] can provide sufficient explanation to allow the Court to follow the ALJ’s reasoning
and determine if substantial evidence supports the conclusion.

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IT IS THEREFORE ORDERED that the Commissionet’s decision finding of no
disability is REVERSED, and that the matter is REMANDED to the Commissioner under
sentence four of 42 U.S.C. § 405(g). To this extent, it is further ORDERED that Defendant’s
Dispositive Brief [Doc. #10] is DENIED, and Plaintiffs Dispositive Brief [Doc. #8] is
GRANTED to the extent set forth herein.
This, the 31st day of March, 2026.

h st Peake
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11298260. Public record. Not legal advice.