MERRILL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CRYSTAL M., )

)

Plaintiff, )

)

v. ) 1:24CV899

)

FRANK J. BISIGNANO, )

Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

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

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

final decision of Defendant, the Commissioner of Social Security

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

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

filed the certified administrative record (Docket Entry 5 (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 11

(Plaintiff’s Brief); Docket Entry 12 (Commissioner’s Brief)). For

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 as Defendant in this suit.

Neither the Court nor the parties need take 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).

the reasons that follow, the Court will enter judgment for the

Commissioner.2

I. PROCEDURAL HISTORY

Plaintiff applied for SSI (Tr. 353-61), alleging a disability

onset date of November 14, 2018 (see Tr. 353).3 Upon denial of

that application initially (Tr. 118-37, 173-76) and on

reconsideration (Tr. 138-48, 181-83), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 184-86).

Plaintiff, her attorney, and a vocational expert (“VE”) attended

the hearing. (Tr. 36-81.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 149-65.)

The Appeals Council thereafter granted Plaintiff’s request for

review (Tr. 166-71, 287, 471-75), ruling that the ALJ’s decision

“d[id] not contain an adequate evaluation of whether [Plaintiff]’s

alleged impairments post-traumatic stress disorder and bipolar

disorder constitute[d] severe impairments” (Tr. 168), and ordered

the ALJ to hold a new hearing (see id.).

2 On consent of the parties, this “case [wa]s referred to [the undersigned]

United States Magistrate Judge [] to conduct all proceedings . . ., to order the

entry of judgment, and to conduct all post-judgment proceedings []herein.”

(Docket Entry 9 at 1.)

3 Notwithstanding Plaintiff’s alleged onset date of November 14, 2018 (see

Tr. 353), she lacked eligibility for SSI benefits until her application date of

July 27, 2020 (see id.). See 20 C.F.R. § 416.202 (explaining that a claimant

remains ineligible for SSI benefits until date he or she files SSI application);

20 C.F.R. § 416.501 (stating that a claimant may not receive SSI benefits for any

period that predates first month he or she satisfies eligibility requirements,

which cannot precede application date).

2

The ALJ convened a new hearing, which Plaintiff, her attorney,

and a new VE attended (Tr. 82-117), after which the ALJ again

denied Plaintiff’s application for benefits (Tr. 14-35). The

Appeals Council subsequently denied Plaintiff’s request for review

(Tr. 1-6, 350-52), thereby making the ALJ’s ruling the

Commissioner’s final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since July 27, 2020, the application date.

2. [Plaintiff] has the following severe impairments:

status-post left femur fracture with hardware placement;

chronic pain syndrome; bipolar/major depressive disorder;

generalized anxiety disorder; posttraumatic stress

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 light work . . . except that she

should never climb ladders, ropes, or scaffolds, and can

occasionally climb ramps and stairs as well as

occasionally kneel and crawl. She can frequently crouch.

Further, she can understand, remember, and carry out

simple or detailed, but not complex work, or unskilled

work of a routine and repetitive nature. She can

maintain attention and concentration for at least two

hour periods of time sufficient to carry out that work

over the course of a normal workday for a normal work

week. She can adapt to routine, infrequent workplace

changes at a non-production pace (i.e., no assembly line

3

or conveyor belt type jobs). She can tolerate occasional

interaction with the public and frequent, not constant,

interaction with coworkers and supervisors.

. . .

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

work.

. . .

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

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [Plaintiff] can perform.

. . .

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

defined in the . . . Act, since July 27, 2020, the date

the application was filed.

(Tr. 19-28 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

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

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

of . . . review of [such a] decision . . . is extremely limited.”

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

not established entitlement to relief under the extremely limited

review standard.

4

A. Standard of Review

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

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

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

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

undertake to re-weigh conflicting evidence, make credibility

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

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

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

5

disabled, the responsibility for that decision falls on the

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

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

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

claimant] is not disabled is supported by substantial evidence and

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

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

When confronting that issue, the Court must take note that

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

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

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

engage in any substantial gainful activity by reason of any

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)).4 “To regularize the

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

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

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

Insurance Benefits Program provides benefits to disabled persons who have

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

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

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

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

citations omitted).

6

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

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

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

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

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

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

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

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

F.3d 473, 475 n.2 (4th Cir. 1999).5 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).

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

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

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

7

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

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

the ALJ must assess the claimant’s [RFC].” Id. at 179.6 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. Id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

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

“whether the claimant is able to perform other work considering

both [the RFC] and [the claimant’s] vocational capabilities (age,

education, and past work experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65. If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]

6 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

8

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.7

B. Assignment of Error

Plaintiff’s first and only assignment of error maintains that

“[t]he ALJ erred by failing to apply the correct legal standard

when evaluating [Plaintiff]’s allegations of pain.” (Docket Entry

11 at 5 (bold font and block formatting omitted).) More

specifically, Plaintiff notes that “th[e] evidence and testimony

indicates[ that Plaintiff] has been managing chronic pain syndrome

since her leg fracture and continues to experience a significant

degree of pain[, but that], despite th[at] testimony and evidence,

the ALJ determined that [Plaintiff]’s condition was not as limiting

as alleged.” (Id. at 6; see also id. at 5-6 (describing

Plaintiff’s testimony regarding her pain (citing Tr. 46, 48-50, 55,

77-78, 103-05, 114-15)), 6-7 (summarizing medical evidence

Plaintiff alleges supports her complaints of severe pain (citing

Tr. 859, 861, 889, 894-95, 899-900, 1025, 1028, 1038, 1041, 1065,

1067, 1098, 1101, 1108, 1110, 1231-32, 1244, 1250, 1252, 2262,

2408, 2543, 2546, 2550, 2556-57)).) In particular, Plaintiff

7 A claimant thus can qualify as disabled via two paths through the SEP.

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

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

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

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

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

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

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

9

faults the ALJ for “requiring objective evidence to substantiate

[Plaintiff]’s degree of pain and to evaluate her subjective

complaints[,]” because “normal examination findings [such as normal

strength, bulk, range of motion, and gait] do not in any way

invalidate the symptoms that [Plaintiff] has actually alleged.”

(Id. at 7.) Plaintiff additionally contends that the United States

Court of Appeals for the Fourth Circuit “recently addressed th[at]

very issue” and “noted that, ‘[d]espite a history of pushback on

subjective-statement reliance by the SSA, th[e Fourth Circuit]

allows a claimant to rely exclusively on subjective evidence in

proving that her symptoms are so continuous and/or severe that they

prevented her from working.’” (Id. at 8 (brackets and ellipsis

omitted) (quoting Oakes v. Kijakazi, 70 F.4th 207, 215 (4th Cir.

2023)); see also id. (quoting Arakas v. Commissioner, Soc. Sec.

Admin., 983 F.3d 83, 97-98 (4th Cir. 2020), for proposition that

“ALJs may not rely on objective medical evidence (or the lack

thereof) - even as just one of multiple factors - to discount a

claimant’s subjective complaints regarding symptoms of fibromyalgia

or some other disease that does not produce such evidence”).) In

addition, Plaintiff challenges the ALJ’s observation that Plaintiff

“has a generally stable treatment history, and has been taking an

opioid, with sparse changes” (id. (citing Tr. 23)), because “[the

ALJ] cannot fault [Plaintiff ] for failing to pursue other

10

treatment options where none exist” (id. at 9 (citing Arakas, 983

F.3d at 101-02)).

Plaintiff further deems “[t]he ALJ’s error . . . potentially

outcome determinative” because, “by failing to adequately evaluate

[Plaintiff]’s pain, the ALJ also failed to perform a proper

function-by-function evaluation of all the contested and relevant

functions[,]” such as “how long [Plaintiff] is capable of

maintaining a seated, walking, or standing position.” (Id. (citing

Dowling v. Commissioner of Soc. Sec., 986 F.3d 377, 388-89 (4th

Cir. 2021)).) In that regard, Plaintiff notes that “both VEs

testified that [Plaintiff]’s alleged frequency of position change

would be disabling” (id. (citing Tr. 77-78, 114-15)), and “other

courts have found[ that] the frequency of position change may be

disabling in and of itself and the ALJ should discuss this issue in

the decision” (id. (citing Holland _v. Commissioner of Soc. Sec.

Admin., Civ. No. 17-1874, 2018 WL 1970745, at *10 (D. Md. Apr. 25,

2018) (unpublished))). For the reasons that follow, Plaintiff’s

assertions miss the mark.

The Commissioner’s regulations adopt a two-part test for

evaluating a claimant’s statements about symptoms. See 20 C.F.R.

§ 416.929; see also Social Security Ruling 16-3p, Titles II & XVI:

Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at *3

(Oct. 25, 2017) (“SSR 16-3p”). First, the ALJ must determine

whether a claimant suffers from a “medically determinable

11

impairment that could reasonably be expected to produce [the

claimant]’s symptoms, such as pain.” 20 C.F.R. § 416.929(b); see

also SSR 16-3p, 2017 WL 5180304, at *3. A claimant must provide

“objective medical evidence from an acceptable medical source” to

establish the existence of a medically determinable impairment

“which could reasonably be expected to produce the pain or other

symptoms alleged.” 20 C.F.R. § 416.929(a); see also SSR 16-3p,

2017 WL 5180304, at *3. “Objective medical evidence” consists of

medical “[s]igns” (“anatomical, physiological, or psychological

abnormalities that can be observed, apart from [a claimant’s]

statements” and that “must be shown by medically acceptable

clinical diagnostic techniques,” 20 C.F.R. § 416.902(l)) and

“[l]aboratory findings” (“anatomical, physiological, or

psychological phenomena that can be shown by the use of medically

acceptable laboratory diagnostic techniques,” 20 C.F.R.

§ 416.902(g)). See 20 C.F.R. § 416.902(k); see also SSR 16-3p,

2017 WL 5180304, at *3.

Upon satisfaction of part one by the claimant, the analysis

proceeds to part two, which requires an assessment of “the

intensity and persistence of [the claimant’s] symptoms,” as well as

“the extent to which [those] symptoms limit [his or her] capacity

for work.” 20 C.F.R. § 416.929(c); see also SSR 16-3p, 2017 WL

5180304, at *4. In making that determination, the ALJ must

“examine the entire case record, including the objective medical

12

evidence; an individual’s statements about the intensity,

persistence, and limiting effects of symptoms; statements and other

information provided by medical sources and other persons; and any

other relevant evidence in the individual’s case record.” SSR 16-

3p, 2017 WL 5180304, at *4 (emphasis added). Where relevant, the

ALJ will also consider the following factors in assessing the

extent of the claimant’s symptoms at part two:

1. [ D]aily activities;

2. The location, duration, frequency, and intensity of []

pain or other symptoms;

3. Precipitating and aggravating factors;

4. The type, dosage, effectiveness, and side effects of

any medication [a claimant] take[s] or ha[s] taken to

alleviate [] pain or other symptoms;

5. Treatment, other than medication, [a claimant]

receive[s] or ha[s] received for relief of [] pain or

other symptoms;

6. Any measures [a claimant] use[s] or ha[s] used to

relieve [] pain or other symptoms (e.g., lying flat on

[his or her] back, standing for 15 to 20 minutes every

hour, or sleeping on a board, etc.); and

7. Any other factors concerning [a claimant’s] functional

limitations and restrictions due to pain or other

symptoms.

20 C.F.R. § 416.929(c)(3); see also SSR 16-3p, 2017 WL 5180304, at

*7-8. The ALJ cannot “reject [a claimant’s] statements about the

intensity and persistence of pain or other symptoms or about the

effect [those] symptoms have on [the claimant’s] ability to work

solely because the available objective medical evidence does not

13

substantiate [the claimant’ statements.” 20 C.F.R.

§ 416.929(c) (2) (emphasis added); see also SSR 16-3p, 2017 WL

5180304, at *5.

In this case, the ALJ found, at part one of the subjective

symptom analysis, that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms” (Tr. 22 (emphasis added)), but then determined,

at part two, that Plaintiff’s “statements concerning the intensity,

persistence and limiting effects of [her] symptoms [we]re not

entirely consistent with the medical evidence and other evidence in

the record for the reasons explained in th[e ALJ’s] decision”

(id.). Immediately following those findings, the ALJ provided this

analysis:

Before the relevant period began as of the [SST]

application date of July 27, 2020, medical records

revealed a history significant for a left femur fracture

sustained during a November 2018 motor vehicle accident

with surgical repair at that time. Notably, since then,

postoperative clinical workup revealed signs of healing

and no sign of hardware complication. By May 2019, x-

rays confirmed a healed left femur fracture. It is noted

that subsequent pain complaints, namely of the left leg,

are well documented through the relevant time. However,

the functional impact of chronic pain appeared less than

remarkable as a whole. For example, despite complaints

of worsening left leg pain and noted tenderness on exam

in July 2020, [Plaintiff] appeared in no acute distress,

and _ she had but mild effusion. Further, despite the

alleged chronicity of inactivity, she had normal bulk and

tone as well as normal strength.

Additionally, during the relevant time, there was brief

mention of [Plaintiff] ambulating with a cane in December

2020 and February 2021. Yet, even then, [she] had

14

grossly intact lower extremity range of motion. Also,

during such time, the evidence did not reveal medical

documentation establishing the need for a hand-held

assistive device to aid in walking or standing, and

describing the circumstances for which it is needed.

Nonetheless, for the relevant time, use of a cane

appeared short-lived. [Plaintiff] otherwise presented

with an upright gait in the absence of any use of a hand-

held assistive device and she continued to exhibit

grossly intact range of motion. Likewise, during other

exams, [she] presented with a normal gait as well as

normal strength with good muscle bulk and tone. Such

evidence as a whole greatly contrasts with the alleged

exertional difficulties and needing to recline most of

the day.

Moreover, pain management records revealed a generally

stable treatment history, including taking tapentadol, an

opioid, with sparse changes through much of the period at

issue. Also, except for brief mention of constipation,

[she] did not endorse adverse side effects. This also

sharply contrasts with the alleged functional impact,

including inactivity and significantly reduced exertional

capacity. Rather, such evidence with overall routine

follow-ups strongly suggests that despite her symptoms,

including pain and fatigue, [she] has not been as limited

as alleged. Thus, in considering a prior left femur

fracture with surgical repair and residual chronic pain

along with the generally normal physical exams and stable

pain management through the relevant time, the [ALJ]

finds a[n RFC] for light work and reduced postural

activities as set out [in the ALJ’s decision] supported.

(Tr. 22-23 (emphasis added) (internal parenthetical citation

omitted) .)

Plaintiff first challenges the ALJ’s reliance on objective

findings such as normal bulk, strength, range of motion, and gait

to discount Plaintiff’s subjective symptom reporting because, “[i]n

doing so, the ALJ applied an incorrect legal standard” under Oakes

and Arakas. (Docket Entry 11 at 7; see also id. (quoting Oakes, 70

15

F.4th at 215, for proposition that “th[e Fourth Circuit] allows a

claimant to rely exclusively on subjective evidence in proving that

her symptoms are so continuous and/or severe that they prevented

her from working” (brackets and ellipsis omitted), and Arakas, 983

F.3d at 97-98, for proposition that “ALJs may not rely on objective

medical evidence (or the lack thereof) - even as just one of

multiple factors - to discount a claimant’s subjective complaints

regarding symptoms of fibromyalgia or some other disease that does

not produce such evidence”).) Plaintiff “note[s] that [her] lack

of weakness or normal strength on examinations do not address her

allegations, as [she] was not complaining of weakness, but of

pain[, and, t]hus, such normal examination findings do not in any

way invalidate the symptoms that [she] has actually alleged.”

(Id.) Plaintiff’s contentions fail for the following three

reasons.

First, to the extent Plaintiff intends her contention that she

could “‘rely exclusively on subjective evidence in proving that her

symptoms are so continuous and/or severe that they prevented her

from working” (id. (brackets and ellipsis omitted) (quoting Oakes,

70 F.4th at 215)) to mean that the ALJ erred by considering

objective medical evidence at all in analyzing the intensity,

persistence, and limiting effects of Plaintiff’s symptoms, such an

argument lacks merit. Although the Fourth Circuit has

“reiterate[d ] long-standing [Circuit] law . . . that disability

16

claimants are entitled to rely exclusively on subjective evidence

to prove the severity, persistence, and limiting effects of their

symptoms,” Arakas, 983 F.3d at 98, long-standing cases containing

the substance of that holding, such as Craig and Hines (among

others), clarify that, “[a]lthough a claimant’s allegations about

her pain may not be discredited solely because they are not

substantiated by objective evidence of the pain itself or its

severity, they need not be accepted to the extent they are

inconsistent with the available evidence, including objective

evidence of the underlying impairment, and the extent to which that

impairment can reasonably be expected to cause the pain the

claimant alleges she suffers,” Craig, 76 F.3d at 595 (emphasis

added); see also Hines, 453 F.3d at 565 n.3 (quoting Craig, 76 F.3d

at 595).

In other words, under the appropriate circumstances, an ALJ

may choose to rely exclusively on a claimant’s subjective symptom

reports to find disabling symptoms; however, Oakes, Arakas, Craig,

and Hines do not compel ALJs to consider only subjective evidence,

as such a requirement would conflict with both the Act and its

implementing regulations, which plainly require ALJs to consider a

variety of factors, including objective medical evidence, in

evaluating the intensity, persistence, and limiting effects of

symptoms. see 42 U.S.C. § 423(d) (5) (A) (“Objective medical

evidence of pain... established by medically acceptable clinical

17

or laboratory techniques (for example, deteriorating nerve or

muscle tissue) must be considered in reaching a conclusion as to

whether [an] individual is under a disability.” (emphasis added));

see also 20 C.F.R. § 416.929(c) (directing ALJs to consider a

claimant’s medical history, medical signs and laboratory findings,

daily activities, testimony about nature and location of pain,

medication and other treatment used to alleviate pain, along with

medical opinions, in assessing intensity of a claimant’s symptoms).

Here, in compliance with Oakes, Arakas, Hines, Craig, and the

applicable regulations, the ALJ considered the objective medical

evidence as one part of her evaluation of the intensity,

persistence, and limiting effects of Plaintiff’s alleged pain, as

the ALJ also considered Plaintiff’s medication and other treatment

used to alleviate pain (see Tr. 22-23), and, as discussed in more

detail below, the opinion evidence of record (see Tr. 24-26).

Second, Plaintiff’s attempt to analogize the facts of her case

to those present in Arakas falls short. In that case, the Fourth

Circuit deemed fibromyalgia a “unique” disease, Arakas, 983 F.3d at

97, with “symptoms [that] are entirely subjective,” id. at 96

(emphasis added), and noted that “physical examinations of patients

with fibromyalgia will usually yield normal results — a full range

of motion, no joint swelling, as well as normal muscle strength and

neurological reactions,” id. (emphasis added) (brackets omitted).

The Fourth Circuit thus held that “ALJs may not rely on objective

18

medical evidence (or the lack thereof) - even as just one of

multiple medical factors - to discount a claimant’s subjective

complaints regarding symptoms of fibromyalgia,” because

“[Lo]bjective indicators such as normal clinical and laboratory

results simply have no relevance to the severity, persistence, or

limiting effects of a claimant’s fibromyalgia, based on the current

medical understanding of the disease,” id. at 97 (emphasis added).

Approximately four years later, the Fourth Circuit extended that

holding in Arakas to major depressive disorder (“MDD”). see

Shelley C. v. Commissioner of Soc. Sec., 61 F.4th 341, 361-62 (4th

Cir. 2023) (“[Symptoms of MDD, like those of fibromyalgia, are

‘entirely subjective,’ determined on a case-by-case basis.”

(emphasis in Shelley C.) (quoting Arakas, 983 F.3d at 96)).

Notably, the Fourth Circuit has neither extended that holding in

Arakas to pain arising from a healed bone fracture nor to chronic

pain syndrome, and Plaintiff fails to explain how those conditions

qualify as “disease[s] that do[] not produce [objective] evidence,”

Arakas, 983 F.3d at 97. (See Docket Entry 11.)

Third, Plaintiff’s assertion that the ALJ relied on findings

of normal strength, bulk, range of motion, and gait to discount her

allegations of severe pain does not hold up under closer scrutiny.

As the above-quoted analysis by the ALJ makes clear, she found

that, despite Plaintiff’s allegations of severe leg pain, her post-

operative course demonstrated “signs of healing and no sign of

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hardware complication” (Tr. 22 (emphasis added)), and she “appeared

in no acute distress, and she had but mild effusion” (Tr. 23

(emphasis added)). Thus, the ALJ cited to signs of healing, lack

of surgical complications, lack of signs of distress, and findings

of only mild effusion as inconsistent with Plaintiff’s assertions

of severe leg pain (see Tr. 22-23), and Plaintiff does not

specifically argue that those findings lack relevance to her

complaints of severe pain (see Docket Entry 11). Indeed, as noted

by the ALJ, despite Plaintiff’s assertions of leg pain ranging from

7 to 10 on a 10-point pain scale (see, e.g., Tr. 521, 602, 889,

895), her providers consistently noted that she appeared in no

acute distress (see Tr. 504, 508-09, 514, 518, 524, 529, 535, 633,

846, 849, 852, 855, 857, 860, 862, 865, 873, 875, 884, 887, 889,

892, 897, 1056, 1066, 1083, 1099, 1102, 1109, 1223, 1231, 1237,

1245, 1251, 1605, 2234, 2263, 2271, 2411, 2537, 2545, 2552, 2558)

and found any swelling minimal to mild (see Tr. 504, 529, 535).

The ALJ additionally noted that, “despite the alleged

chronicity of inactivity, [Plaintiff] had normal bulk and tone as

well as normal strength.” (Tr. 23 (emphasis added).) Thus,

contrary to Plaintiff’s assertions (see Docket Entry 11 at 7), the

ALJ did not rely on Plaintiff’s normal bulk, tone, and strength to

discount her complaints of severe leg pain but, rather, her

testimony that, when her pain reached 8 out of 10, she could not

walk and had to stay in bed or recline (see Tr. 103-04), she had a

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lot of difficulty walking, sitting, and standing (see Tr. 104-05),

and she usually sat with her leg reclined and elevated to waist

level (see Tr. 106). As the ALJ observed (see Tr. 23), normal leg

strength, bulk, and tone lacked consistency with Plaintiff’s claims

of “chronic[ ] inactivity” (Tr. 23). Similarly, the ALJ discounted

Plaintiff’s alleged need for a cane based on her “upright gait in

the absence of any use of a hand-held assistive

device[,] . . . grossly intact range of motion . . . as well as

normal strength with good muscle bulk and tone.” (Id. (emphasis

added).) Once again, the ALJ did not find this evidence undermined

Plaintiff’s pain, but, rather, “greatly contrast[ed] with the

alleged exertional difficulties and needing to recline most of the

day.” (Id. (emphasis added) .)?®

Plaintiff next challenges the ALJ’s observation that Plaintiff

“has a generally stable treatment history, and has been taking an

opioid, with sparse changes” (Docket Entry 11 at 8 (citing Tr.

23)), because “[the ALJ] cannot fault [Plaintiff ] for failing to

pursue other treatment options where none exist” (id. at 9 (citing

Arakas, 983 F.3d at 101-02)). That argument fails, because the ALJ

did not fault Plaintiff for failing to pursue additional surgery,

8 Although Plaintiff argues that her “lack of weakness or normal strength

on examinations do not address her allegations, as [she] was no complaining of

weakness, but of pain” (Docket Entry 11 at 7), in fact, Plaintiff did complain

of leg weakness, unsteadiness, and fear of falling as a basis for her cane usage

(see Tr. 52-53, 417). Thus, the ALJ did not err by relying on findings of normal

strength and gait to discount Plaintiff’s assertions of needing a cane to

ambulate.

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injections, or other procedures; rather, the ALJ simply noted that

Plaintiff’s pain medications remained relatively unchanged during

the relevant time period in this case, which “held relevance to the

intensity, persistence, and limiting effects of her [pain]

symptoms, and the ALJ did not err by relying on that fact.”

Laquita M. R. v. Bisignano, No. 1:24CV604, 2025 WL 2689043, at *13

(M.D.N.C. Sept. 19, 2025) (unpublished); see also SSR 16-3p, 2017

WL 5180304, at *9 (“Persistent attempts to obtain relief of

symptoms, such as increasing dosages and changing medications,

trying a variety of treatments, referrals to specialists, or

changing treatment sources may be an indication that an

individual’s symptoms are a source of distress and may show that

they are intense and persistent.” (emphasis added)).

Lastly, Plaintiff’s contention that “the ALJ [] failed to

perform a proper function-by-function evaluation of all the

contested and relevant functions[,]” such as “how long [Plaintiff]

is capable of maintaining a seated, walking, or standing position”

(Docket Entry 11 at 9 (citing Dowling, 986 F.3d at 388-89, and

Holland, 2018 WL 1970745, at *10)) fares no better. As to the role

of the function-by-function analysis in the RFC determination, the

relevant administrative ruling states: “The RFC assessment must

first identify the individual’s functional limitations or

restrictions and assess his or her work-related abilities on a

function-by-function basis[ and,] . . . [o]nly after that[,] may

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

sedentary, light, medium, heavy, and very heavy.” Social Security

Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:

Assessing Residual Functional Capacity in Initial Claims, 1996 WL

374184, at *1 (July 2, 1996) (“SSR 98-9p”). The Fourth Circuit has

addressed this administrative ruling and the issue of whether an

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

necessitates remand. See Mascio v. Colvin, 780 F.3d 632, 636–37

(4th Cir. 2015). Specifically, the court stated “that a per se

rule is inappropriate given that remand would prove futile in cases

where the ALJ does not discuss functions that are irrelevant or

uncontested,” id. at 636 (internal quotation marks omitted), but

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

claimant’s capacity to perform relevant functions, despite

contradictory evidence in the record, or where other inadequacies

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

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

F.3d 172, 177 (2d Cir. 2013)).

Here, the ALJ did not expressly assess Plaintiff’s abilities

to sit, stand, and walk on a function-by-function basis (see Tr.

21-26); however, no basis for remand exists, because the ALJ’s

decision nevertheless supplies the necessary “accurate and logical

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

(internal quotation marks omitted), between the evidence and her

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findings that Plaintiff’s status-post femur fracture with hardware

placement and chronic pain syndrome (A) qualified as severe

impairments at step two of the SEP (see Tr. 19), but (B) did not

cause limitations greater than the RFC’s allowance of up to six

hours of sitting, standing, and walking (in no more than two hour

intervals generally) in an eight-hour workday (see Tr. 21).° In

that regard, the ALJ’s evaluation of the opinion evidence provides

support for the sitting, standing, and walking allowances in the

RFC. To begin, the ALJ found “persuasive” (Tr. 24) the opinions of

the state agency medical consultants that Plaintiff remained

capable of up to six hours total of sitting, standing, and walking

in an eight-hour workday (see Tr. 127-28, 144-45). In particular,

the ALJ found as follows:

[T]he [ALJ] finds the[] prior administrative medical

findings are persuasive as they are supported by a review

of the pertinent evidence of record at the time provided

with consideration of the prior left femur fracture and

chronic pain. The opined limits are also consistent with

the totality of evidence through the relevant time,

including evidence submitted at the hearing level. As

noted [earlier in the ALJ’s decision], for example,

despite the prevalence of lower extremity pain,

° Plaintiff’s assertion that the ALJ failed to make any findings regarding

“the frequency of position change” Plaintiff’s impairments caused (Docket Entry

11 at 9) falls short. Although the ALJ did not make any express finding

regarding how long Plaintiff could sit, stand, and walk at one time (see Tr. 21),

the Commissioner’s policy ruling makes clear that such exertional activities

would occur in no more than two-hour increments generally with standard breaks,

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, 1996 WL 374185, at *6

(July 2, 1996) (“SSR 96-9p”) (providing that normal workday includes “a morning

break, a lunch period, and an afternoon break at approximately 2-hour

intervals”).

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[Plaintiff] has presented with an upright or normal gait

as well as grossly intact range of motion and normal

strength. Although [the initial-level state agency

medical consultant] opined a more restrictive crouching

limitation than found [by the ALJ], such a variance does

not significantly impact the overall [RFC] set out [in

the ALJ’s decision]. Moreover, [the reconsideration-

level state agency medical consultant]’s opined limit for

frequent crouching is more in line with the generally

unremarkable physical exams with no range of motion

deficits indicated as examples [cited earlier in the

ALJ’s decision] reveal.

(Tr. 24-25 (emphasis added) (internal parenthetical citations

omitted).) Again, although Plaintiff takes issue with the ALJ’s

reliance on findings of normal range of motion, strength, and gait

to discount these opinions (see Docket Entry 11 at 6-7), as

discussed above, the ALJ properly relied on such findings to

discount Plaintiff’s alleged chronic inactivity, exertional

limitations, and need for a cane, rather than to discount

Plaintiff’s alleged pain. Moreover, Plaintiff has identified no

opinion evidence supporting her assertions of extreme limitations

in sitting, standing, and walking. (See Docket Entry 11.)

In light of the foregoing analysis, Plaintiff has not shown

that the ALJ failed to properly evaluate Plaintiff’s subjective

symptom reports, and, thus, Plaintiff’s sole assignment of error

falls short.

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III. CONCLUSION

Plaintiff has not established an error warranting remand.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is AFFIRMED, and that this action is

DISMISSED with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 15, 2026

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