North Carolina Cases September 28, 2021: Cumbee v. Kijakazi

Case Description

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MEMORANDUM AND RECOMMENDATION

ROBERT B. JONES, JR. UNITED STATES DISTRICT JUDGE

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-22, -24] pursuant to Fed.R.Civ.P. 12(c). Claimant Henry A. Cumbee ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. Claimant responded to Defendant's motion, and the time for filing a reply has expired. [DE-26]. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be upheld.

I. STATEMENT OF THE CASE

Claimant filed an application for a period of disability, DIB, and SSI on May 13, 2011, alleging disability beginning December 15, 2010. (R. 327-41). Both claims were denied initially and upon reconsideration. (R. 112-45). A hearing before Administrative Law Judge ("ALJ")

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Ronald Sweeda was held on April 17, 2013, at which Claimant, represented by a non-attorney, and a vocational expert ("VE") appeared and testified. (R. 69-102). On May 30, 2013, ALJ Sweeda issued a decision denying Claimant's request for benefits. (R. 146-63).

On August 28, 2014, the Appeals Council remanded the claim to the ALJ for further administrative proceedings. (R. 164-68). A second administrative hearing before ALJ Sweeda was held on May 9, 2015, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 35-68). On June 16, 2015, ALJ Sweeda issued a decision denying Claimant's claims. (R. 12-34). On October 31, 2016, the Appeals Council denied Claimant's request for review of ALJ Sweeda's second administrative decision. (R. 1-5). Claimant then filed a complaint in this court. (R. 724-34).

On March 7, 2018, this court remanded the case to the Commissioner, finding that ALJ Sweeda failed to discuss one medical opinion of Dr. Stephen Grubb and improperly weighed Dr. Grubb's other medical opinions regarding Claimant's fibromyalgia. (R. 735-46). The Appeals Council remanded the case to a different ALJ on June 13, 2018. (R. 747-50).

A third administrative hearing was held before ALJ Christopher Willis on January 25, 2019, at which Claimant, represented by two attorneys, and a vocational expert ("VE") appeared and testified. (R. 694, 723). On April 3, 2019, ALJ Willis issued a decision denying Claimant's claims. (R. 691-722). On February 27, 2020, the Appeals Council found no reason to assume jurisdiction and found that Claimant's written exceptions to ALJ Willis's decision did not provide a basis for changing the decision. (R. 684-90). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.

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II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "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 [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently

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working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.

Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chafer, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).

In this case, Claimant alleges the following errors: (1) substantial evidence does not support the ALJ's finding that Claimant's cane was not medically necessary, (2) the ALJ failed to weigh the opinions of Heidi Smith regarding Claimant's need for an assistive device, (3) the ALJ erred in weighing Dr. Grubb's opinions, (4) the RFC does not include limitations for all of Claimant's severe impairments, and (5) substantial evidence does not support the ALJ's finding that there is other work in the national economy that Claimant can perform. Pl.'s Mem. [DE-23] at 14-28.

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IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful activity since December 15, 2010, the alleged onset date. (R. 696). Next, the ALJ determined Claimant had the following severe impairments: fibromyalgia, obesity, degenerative disc disease/herniated nucleus pulpous, osteoarthritis, degenerative joint disease, headaches, hypertension, hyperlipidemia, gastroesophageal reflux disease (GERD)/irritable reflux disease (IBS), and sleep apnea. Id. The ALJ also found Claimant had nonsevere impairments of hernias and depression. (R. 697-98). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 699-701). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in no limitations in understanding, remembering, or applying information; interacting with others; and adapting or managing oneself and a mild limitation in concentrating, persisting, or maintaining pace. (R. 698).

Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:

no more than occasional use of the upper extremities for overhead reaching, but frequent use of upper extremities to reach in all directions, push, pull, operate hand controls, finger, feel, and/or handle; occasional use of the lower extremities to push, pull, and/or operate foot controls; occasional climbing ramps and stairs; no

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climbing ladders, ropes or scaffolds; occasional balancing, kneeling, stooping, and/or crouching; no crawling; avoid all exposure to workplace hazards, such as dangerous moving machinery and unprotected heights. In addition, the claimant requires the flexibility of a sit/stand option allowing him to change positions once every hour.

(R. 702-712). In making this assessment, the ALJ found Claimant's statements about his limitations not persuasive of disability based upon the medical and other evidence in the record. (R. 703).

At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work as a special education teacher. (R. 712). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 713-14).

V. DISCUSSION

A. Substantial evidence supports the ALJ's finding that Claimant's cane was not medically necessary.

Claimant contends the ALJ erred in determining that his cane was not medically necessary. Pl.'s Mem. [DE-23] at 17-21. The ALJ must consider the impact of a "medically required" handheld assistive device on a claimant's functional capacity. See Taylor v. Berryhill, No. 5:17-CV-78-FL, 2018 WL 852396, at *3 (E.D. N.C. Jan. 10, 2018) (citing Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084, at *16 (E.D. N.C. Aug. 29, 2008); S.S.R 96-9p, 1996 WL 374185, at *7 (July 2, 1996)). "The requirement to use a hand-held assistive device may . . . impact . . . [an] individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." 20 C.F.R. part 404, subpt. P, app. 1, § 1.00J.4. Social Security Ruling 96-9p provides guidance regarding when a hand-held

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assistive device is medically required. S.S.R. 96-9p, 1996 WL 374185, at *7. "To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically or only in certain situations; distance and terrain; and any other relevant information)." Id. "[A] prescription or the lack of a prescription for an assistive device is not necessarily dispositive of medical necessity." Fletcher v. Colvin, No. 1:14-CV-380, 2015 WL 4506699, at *8 (M.D. N.C. July 23, 2015) (citing Staples v. Astrue, 329 Fed.Appx. 189, 191-92 (10th Cir. 2009)).

Here, the ALJ found:

As far as cane usage, while treatment notes observe him using one, there is no indication in the record of the medical need for a cane. Notably, examining and treating orthopedic and neurological specialists did not find any left-side impingement on imaging and electrodiagnostic testing in the left upper and lower extremities was negative (Ex. IF, 2F, 5F and 13F). No provider found surgical intervention was warranted.

(R. 703).

Claimant argues that the record contains numerous instances where a cane was recommended or he was observed using a cane. Pl.'s Mem. [DE-23] at 18-19. On July 18, 2017, January 11, 2018, and July 16, 2018, Ms. Smith, a nurse practitioner, wrote, "I counseled the patient regarding the potential risks and complications of falls and the need to remove rugs and objects that can be causes of falls in the home. Patient should use assistive devices (i.e. Cane, walker) to maintain stability and balance if necessary." (R. 934, 997, 1058). Ms. Smith also

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"discussed fall precautions [and] encouraged use of [a] cane" on February 6, 2017. (R. 1077). Claimant was observed using a cane at medical visits on February 3, 2011 (R. 497), May 13, 2011 (R 381), May 16, 2011 (R 619), May 21, 2012 (R 611), September 12, 2012 (R 602), July 25, 2016 (R 1100), November 7, 2016 (R. 1082), July 14, 2017 (R 1054), October 11, 2017 (R 1036), November 22, 2017 (R 1018), April 10, 2018 (R 925), April 20, 2018 (R 940), and July 11, 2018 (R. 930). Claimant also testified that he uses a cane. (R. 84-85).

However, there is no statement by a provider that a cane was medically necessary and describing the circumstances for which it was needed. See S.S.R. 96-9p, 1996 WL 374185, at *7. Ms. Smith counseled Claimant to use an assistive device "to maintain stability and balance if necessary," (R. 934, 997, 1058) (emphasis added), but she did not state that the cane was necessary, and when she encouraged use of a cane on February 6, 2017, she did not specify the circumstances for which it was needed, (R. 1077). Accordingly, Claimant has not met his burden of showing that an assistive device was medically necessary, and the ALJ did not err in discussing whether the cane was medically required. See Matthews v. Berryhill, No. 5:18-CV-60-D, 2019 WL 577427, at *6 (E.D. N.C. Jan. 24, 2019), adopted by 2019 WL 572870 (E.D. N.C. Feb. 12, 2019); see also Gilmer v. Berryhill, No. 3:17-CV-539-FDW, 2018 WL 3518470, at *2 (W.D. N.C. July 20, 2018) ("The claimant bears the burden of presenting 'medical evidence establishing the need for a cane and describing the circumstances for which it is needed.'") (quoting S.S.R. 96-9p).

B. The ALJ did not err in failing to assign weight to the opinions of Ms. Smith.

Claimant contends the ALJ erred in failing to weigh the opinions of Ms. Smith that Claimant should use an assistive device. Pl.'s Mem. [DE-23] at 22. When assessing a claimant's

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RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. §§ 404.1527(c), 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence," it is given controlling weight. Id. However, "[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig, 76 F.3d at 590.

If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D. N.C. Sept. 24, 2013) (citations omitted). However,

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"[a]n ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up 'specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion." Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).

As described above, Ms. Smith wrote, "Patient should use assistive devices (i.e. cane, walker) to maintain stability and balance if necessary" on July 18, 2017, January 11, 2018, and July 16, 2018. (R. 934, 997, 1058). Ms. Smith also "discussed fall precautions [and] encouraged use of [a] cane" on February 6, 2017. (R. 1077).

First, Ms. Smith is not an acceptable medical source. She is a nurse practitioner, and nurse practitioners are acceptable medical sources only for claims filed after March 27, 2017. 20 C.F.R. §§ 404.1502(a)(7), 416.902(a)(7).

Nonetheless, the ALJ was required to consider Ms. Smith's opinion using the same factors he would use for acceptable medical sources, and ALJs "generally should explain the weight given to opinions from [medical sources who are not acceptable medical sources] or otherwise ensure that the discussion of the evidence . . . allows a claimant or subsequent reviewer to follow the adjudicator's reasoning." 20 C.F.R. §§ 404.1527(f), 416.927(f).

Although the ALJ did not articulate a specific weight given to Ms. Smith's opinion that Claimant should use a cane if necessary, the ALJ's discussion of the records of Claimant's visits with Ms. Smith otherwise allows the court to follow the ALJ's reasoning. The ALJ summarized the records as follows:

The claimant subsequently established care with [Ms. Smith, ] a new primary care provider[, ] on June 15, 2016 (Ex. 16F/179). He was currently off medications and reported frequent falls and walking with a cane due to pain/fibromyalgia (id). He

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also noted problems sleeping, frequent headaches, and daily weakness (id). However, he appeared well developed and well groomed and not in acute distress, and there was no stiffness or tenderness to palpation in his neck on examination (Ex. 16F/180). Examination of the claimant's abdomen was normal, findings on mental status examination was unremarkable, and no neurological deficits were noted (Ex. 16F/181). The claimant presented having slow and purposeful movements using a cane on July 25, 2016, and he reported having to sit down and rest while walking in a store this morning due to pain in his low back and left leg (Ex.l6F/171-172). He requested medication assist forms be filled out for medications for himself and his wife, noting prescribed Gabapentin had helped, but he had not been able to take it regularly due to cost (Ex. 16F/171). Treatment notes from November 2016 show the claimant's depression stable and tenderness in his left shoulder with limited extension and some pain with abduction, for which he received a prescription for non-steroidal anti-inflammatory medication (Ex. 16F/155-156).

The claimant's examinations in early 2017 continued to show diffuse tenderness of points across the back and shoulders/tenderness of 13 trigger points, but with otherwise normal musculoskeletal findings and no noted neurological deficits or the claimant appearing in acute distress (Ex. 16F/140-141, 148). In July 2017, the claimant noted increased pain with generalized muscle pain in his low back, hips, shoulders and legs daily with associated weakness secondary to pain and often feeling foggy headed and frequently stumbling (Ex. 16F/126). However, he appeared well groomed, alert and oriented with normal thought content, he was not in acute distress, there was no tenderness or stiffness in his neck, and his upper and lower extremity strength was abnormal (4/5 vs 5/5) on examination (Ex. 16F/127-128). The claimant was observed having an unsteady gait, ambulating with a cane, and having generalized pain on palpation on musculoskeletal examination in October 2017 (Ex. 16F/108), and the results of left hip x-rays were unremarkable though lumbar radio graphs showed grade I spondylolisthesis at ¶ 4-5 with spondylolysis of the L4 pars interatricularis bilaterally (Ex. 17F/64-65). Despite reports of worsening pain in November 2017, the claimant denied headaches (Ex. 16F/88) and he received a Toradol injection due to severe tenderness appreciated on palpation of the left S1 joint with pain provoked on range of motion (Ex. 16F/90-91). Treatment notes in 2018 show the claimant continuing to receive conservative treatment for diffuse generalized pain, including worsening pain on the left side, with referrals to orthopedics and for a sleep study (Ex. 16F/2-69, 18F, and 19F).

(R. 709). The ALJ did not expressly assign weight to Ms. Smith's opinion that Claimant should use a cane if necessary, but he did find, "[a]s far as cane usage, while treatment notes observe him using one, there is no indication in the record of the medical need for a cane." (R. 703).

The court can follow the ALJ's reasoning in concluding that there was no indication in the

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record of the medical need for a cane. The ALJ thoroughly summarized the treatment records from Claimant's visits with Ms. Smith, noted that he was observed using a cane at some of those visits, and concluded that a cane was not medically necessary. As discussed above, Ms. Smith opined that Claimant should use a cane if necessary, and she did not state that a cane was necessary. Accordingly, the court can trace the ALJ's reasoning in respect to his discussion of Claimant's use of a cane and his treatment records from Ms. Smith, and the ALJ did not err in failing to assign weight to the non-acceptable medical source opinion of Ms. Smith.

C. The ALJ did not err in weighing the opinions of Dr. Grubb.

Claimant contends that the ALJ erred in giving little weight to Dr. Grubb's opinions. Pl.'s Mem. [DE-23] at 23-27. The court previously found that ALJ Sweeda erred in discussing the medical opinions. (R. 735-46). Accordingly, ALJ Willis framed much of his decision around discussing Dr. Grubb's opinions in great detail. (R. 704-11) ("For clarity, cohesiveness, and context, the undersigned addresses the medical record in connection with Dr. Grubb's medical opinions offered in November 2010 (Ex. 3F/7), April/October 2012 (Ex. 6F and 7F), April 2013 (Ex. 11F), and March 2015 (Ex. 12F/2)).

1.The November 2010 opinion

On November 15, 2010, Dr. Grubb summarized Claimant's complaints that "his back and neck are killing him and he has pain all the time." (R. 514). Dr. Grubb noted that "[h]e has degenerative changes in his spine on his last MRI" but "I cannot see that he has had a MRI of his back in my records." Id. Dr. Grubb wrote that an x-ray from 1999 "showed anterior wedging of T12/L1," but "that has been over 11 years now." Id. Dr. Grubb observed limited ROM in Claimant's neck and tenderness over the lower lumbar spine but intact reflexes. Id. He wrote: "I have filled out his disability for him. I told W/C he is not able to return to work at this time. He

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cannot work. May be considered for Vocational Rehabilitation." Id.

The ALJ discussed the opinion as follows:

Dr. Grubb last saw the claimant in September 2009, the only available lumbar imaging for review at the time was over 11 years old, and contemporaneous examination findings were remarkable for only a limited range of neck movement and tenderness over the lower lumbar spine (Ex. 3F/7). While arguably this may have limited the claimant in being able to perform his medium work as a special education teacher at this time, it is certainly is not a basis to conclude the claimant incapable of all work. Of note, Dr. Grubb did not observe any neurological deficits, gait disturbance or imbalance, and he referred the claimant to orthopedics and neurology for further evaluation in 2011. Moreover, the finding of disability is an issue reserved to the Commissioner and is not entitled to any special weight, irrespective the source, including a treating source. For all these reasons, the undersigned finds good cause to give no weight to Dr. Grubb's November 2010 blanket disability opinion. The undersigned further finds good cause to give no weight to subsequent general observations of disability or continued disability referenced in Dr. Grubb's treatment notes ( see e.g. Ex. 12F/45) because they are vague, conclusory, and not entitled to any special weight under the regulations. Moreover, as discussed below, they are inconsistent with the evidence of record.

(R. 704). The ALJ thereby gave two reasons for discounting Dr. Grubb's opinion. First, it was not supported by his examination findings, given that Dr. Grubb observed only a limited range of neck movement and tenderness over the lower lumbar spine but opined that Claimant could not work. Second, the statement that Claimant cannot work is an issue reserved to the Commissioner. See S.S.R. 96-5p, 1996 WL 374183, at *5 (July 2, 1996) ("The judgment regarding the extent to which an individual is able to perform exertional ranges of work goes beyond medical judgment regarding what an individual can still do and is a finding that may be dispositive of the issue of disability. . . . [T]he overall RFC assessment is an administrative finding on an issue reserved to the Commissioner."); Slaydon v. Saul, No. 7:18-CV-54-FL, 2019 WL 3660573, at *5 (E.D. N.C. Aug. 6, 2019) ("Medical source opinions on issues reserved to the Commissioner are not entitled to any weight."); Watson v. Berryhill, No. 5:17-CV-579-RJ, 2018 WL 6600209, at *1 (E.D. N.C. Dec. 17, 2018). The ALJ offered sufficient reasons for discounting the 2010 opinion, so he did

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not err in weighing it.

2. The April 2012 opinion

On April 23, 2012, Dr. Grubb completed a medical source statement for the Columbus County Department of Social Services. (R. 538-39). He wrote that Claimant's diagnoses were cervical and lumbar degenerative disc disease and fibromyalgia. (R. 538). Dr. Grubb opined that Claimant's current work capacity was "none" and that he could attend classes and sit for four hours per day, stand for two hours per day, and lift and carry for zero hours per day. (R. 539). Dr. Grubb wrote that Claimant's condition will limit the capacity to work on a "total and permanent" basis. Id.

The ALJ discussed the 2012 opinion as follows:

Based on the above evidence, the undersigned finds good cause to give little weight to Dr. Grubb's April 2012 opinion. Dr. Schuett and Dr. Averell found the claimant's clinical presentation and diagnostic testing and imaging results inconsistent with endorsed symptoms, including left side weakness and constant chronic pain. Dr. Grubb had not reviewed the reports and findings of these specialists prior to completing his medical source statement (see e.g. Ex. 10F/40). While the claimant had marked tenderness on April 9, 2012 examination, contemporaneous examination findings on April 23, 2012 following medication changes show only back pain with range of motion and normal findings on extremity examination. The undersigned does not find the reported limitations in April 2012 consistent with the evidence of record, including contemporaneous normal extremity findings and the previous findings by medical specialists of the claimant's symptoms being inconsistent with objective evidence and diagnostic test results.

(R 706).

The ALJ discounted the opinion because it was inconsistent with the evidence of record, and the court can follow the ALJ's reasoning. On April 23, 2012, the same day Dr. Grubb completed the medical source statement, he examined Claimant and found that Claimant reported back pain and headaches, but his exam was otherwise normal. (R. 613-15). In the "range of motion" field, Dr. Grubb wrote "back pain," but Claimant's upper and lower extremities were

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normal, and Dr. Grubb did not document tenderness or abnormal gait. (R. 615). He continued Claimant on Cymbalta and told him to return in one month. Id.

The contemporaneous exam on April 23, 2012 noting reports of back pain but otherwise normal findings is inconsistent with Dr. Grubb's opinion that Claimant's work capacity was "none" and that he was limited in his capacity to work on a "total and permanent" basis; accordingly, the ALJ did not err in discussing the opinion.

3. The October 2012 opinion

On October 15, 2012, Dr. Grubb completed another medical source statement for the Columbus County Department of Social Services. (R. 536-37). He again wrote that Claimant's current work capacity was "none," but he wrote that Claimant was "ready for training," and he checked a box indicating that Claimant was a candidate for referral to vocational rehabilitation. (R. 537).

The ALJ gave "little weight to Dr. Grubb's October 2012 opinion for the same reasons given with respect to his April 2012 opinion, particularly as there was no (objectively) significant change in condition, and the claimant reported obtaining a lot of relief with prescribed medication and him having recently undergone laparoscopic surgery." (R. 707).

As with the April 2012 opinion, Dr. Grubb examined Claimant on the same day he completed the October 15, 2012 medical source statement, and the exam was largely normal. (R. 594-98). Dr. Grubb wrote that Claimant had abdominal tenderness due to a recent gall bladder removal and he walked with a cane, but he had intact sensation in his feet, and Dr. Grubb did not note an abnormal gait. (R. 597). He instructed Claimant to exercise regularly and to continue his current treatment course. (R. 598). The court can trace the ALJ's reasoning in discounting the October 2012 opinion for the same reasons he discounted the April 2012 opinion; a largely normal

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examination with a recommendation to exercise regularly appears inconsistent with an opinion that Claimant's work capacity is "none." Accordingly, the ALJ did not err in discussing the October 2012 opinion.

4.The April 2013 opinion

In April 2013, Dr. Grubb completed a checkbox questionnaire in which he indicated that Claimant's fibromyalgia causes him severe, diffuse muscle pain and fatigue that forces him to recline throughout the day at unpredictable intervals and limits his ability to stand. (R. 632-33). Dr. Grubb opined that Claimant could not stand, sit, or lift twenty pounds for six hours in an eight hour workday, and he must walk about for a time after sitting for short periods, but he could lift ten pounds for six hours in an eight hour workday. (R. 632).

The ALJ discussed the opinion as follows:

The undersigned finds good cause to give little weight to Dr. Grubb's April 2013 opinion as well. Despite no alleged improvement in condition, Dr. Grubb found the claimant now able to lift 10 pounds for 6 hours, when he previously reported he could lift no weight of any kind in April 2012. Although Dr. Grubb notes the claimant having severe pain and fatigue, examinations continued to show him generally presenting not in acute distress, alert and oriented, and well developed, and Dr. Grubb did not adjust his medication on this date. When examined at the emergency room in January 2013, inspection of the claimant's back and extremities was also normal. While the claimant had marked spasm in his back on May 2013 follow-up, his pulse oximetry was good, he had intact sensation in his feet, his mood and affect remained normal, and Dr. Grubb made medication changes (Ex.l2F/43-45). While the claimant reported increased back pain and he had low vitamin D on June 2013 follow-up, he continued to present as alert, well developed and nourished, and not in acute distress, and examination of his back was remarkable for only tenderness in the low back and his current medication regimen continued (Ex. 12F/39-40).

(R. 707-08). This court has previously recognized that "objective tests are of little relevance in determining [fibromyalgia's] existence or severity." Batson v. Colvin, No. 7:14-CV-48-D, 2015 WL 1000791, at *11 (E.D. N.C. Mar. 5, 2015) (quoting McGlothlen v. Astrue, No. 7:11-CV-148-

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RJ, 2012 WL 3647411, at *9 (E.D. N.C. Aug. 23, 2012)). "[T]he absence of swelling joints or other orthopedic and neurologic deficits 'is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advanced.'" Slaydon, 2019 WL 3660573, at *3 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 109 (2d Cir. 2003)); see Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020) (holding 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"). Here, however, the ALJ did not discount Claimant's subjective complaints of fibromyalgia because of a lack of objective findings, but rather discounted a medical opinion because Claimant did not present in distress, Claimant was alert and oriented, and his medication regimen was continued and not adjusted before the April 2013 opinion. Additionally, the ALJ included a limitation in the RFC for the option to change positions every hour. (R. 703). The court can follow the ALJ's reasoning in discussing the opinion, so he did not err.

5. The March 2015 opinion

On March 2, 2015, Dr. Grubb documented the following in the "Patient History" subsection of a "Subjective" section of a progress note:

47-year-old white male disabled teacher who's not been able to work since 2010. He's not been yet awarded disability. He's lost all of his insurances. Because of that he's been off the medicines that helped him which included; Cymbalta and Lyrica for his severe fibromyalgia. Patient is a very intelligent man. He's been unable to work because of his fibromyalgia and can only sit for less than an hour at a time without having to get up and change positions. He says he does not sleep he only catnaps when he can and has been known to fall asleep at stop lights. Has throbbing tingling pain at times in his back. He is not able to walk more than half of a block without having to sit down. He uses a scooter in Walmart. This left-handed white male has even fallen at home twice in the last month because of weakness in his left leg.

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(R. 635).

To the extent that those observations may have been a medical opinion, the ALJ discussed the opinion as follows:

The undersigned finds good cause to give little weight to Dr. Grubb's March 2015 observations little weight [sic]. Notably, the observations regarding scooter use and being unable to walk more than half-a-block are recordation of the claimant's subjective reports. Even assuming the inability to sit for an hour at a time without changing position is a medical opinion as opposed to [] the claimant's self-report, it is vague and because Dr. Grubb is not a vocational expert, the opinion as to whether such limitation is work preclusive is outside his area of expertise. Moreover, a sit/stand option can accommodate the need to change positions, such as the one the undersigned has provided for herein.

(R. 708-09). The court can follow the ALJ's reasoning in classifying the March 2, 2015 observations as likely not a medical opinion. They are written in the "Patient History" subsection of the "Subjective" section of the progress note, and they appear to document Claimant's subjective reports. (R. 635). Whether the statement that Claimant cannot sit for an hour without having to get up and change positions is a self-report or a medical opinion, it is accommodated in the RFC with the "flexibility of a sit/stand option allowing him to change positions once every hour." (R. 702). Accordingly, it appears that in giving little weight to the March 2, 2015 observations, the ALJ incorporated the sit/stand option in the RFC, and the remainder of the observations are more clearly Claimant's self-reports rather than a medical opinion. The court can follow the ALJ's reasoning in giving little weight to the March 2015 observations to the extent they might be a medical opinion, and the ALJ did not err in discussing that progress note.

D. Substantial evidence supports the RFC.

Claimant contends the ALJ erred in failing to include limitations in the RFC for his headaches, GERD/IBS, and sleep apnea. Pl.'s Mem. [DE-23] at 27. An individual's RFC is the

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capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted).

"[T]he residual functional capacity '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, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). However, the Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand may be appropriate... where an ALJ fails to assess a claimant's capacity

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to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.

First, Claimant contends that the ALJ should have included a limitation related to the ability to concentrate or time spent off-task because Claimant testified that his headaches affect his memory and concentration. Pl.'s Mem. [DE-23] at 27. The ALJ wrote that "[t]he postural and environmental limitations take into account ... headaches ... and sleep apnea." (R. 712). Specifically, the ALJ included limitations for avoiding all exposure to workplace hazards, such as dangerous moving machinery and unprotected heights, and the flexibility of a sit/stand option allowing him to change positions once every hour. (R. 701-02). The ALJ found that Claimant has a mild limitation in concentrating, persisting, or maintaining pace because he "testified to having difficulty completing tasks and focusing" but "the record shows him maintaining a physical therapy schedule, as well as a home exercise program, he cares for his wife, he drives, and mental status examinations show him having normal attention." (R. 698). The ALJ explained that he included certain postural and environmental limitations for Claimant's headaches, and he explained why he found that Claimant has no more than a mild limitation in concentrating, persisting, or maintaining pace. Accordingly, substantial evidence supports the ALJ's decision to omit a limitation for concentrating or time spent off-task in the RFC.

Second, Claimant contends that the ALJ should have included a limitation for ready access to a restroom to account for Claimant's GERD/IBS. In discussing Claimant's testimony, the ALJ found, "[a]lthough the claimant testified to needing to stay by the restroom because of IBS, and he

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previously testified to not telling providers about his issues with diarrhea out of pride, he admitted he was not taking medication for it yet. Moreover, when seeking emergency room treatment in January 2013, he reported having, among other things, diarrhea." (R. 703). The ALJ thereby implied that Claimant could report IBS symptoms to his medical providers because he did so in January 2013, but the record contains very few reports of those symptoms. (R. 542, 552, 558). Accordingly, substantial evidence supports the ALJ's decision to omit a limitation for ready access to a restroom in the RFC.

E. The ALJ did not err in formulating a hypothetical question to the VE.

Claimant contends the ALJ failed to accurately set forth all of his limitations in the hypothetical question posed to the VE. Pl.'s Mem. [DE-23] at 27-28. The ALJ may utilize a VE at steps four and five "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be "relevant or helpful," it must be given in response to a proper hypothetical question. Id. Aproper hypothetical question "fairly set[s] out all of claimant's impairments" that are supported by the record. Id; Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question "adequately contemplated all of [claimant's] impairments and resulting limitations" as evidenced by the record).

Claimant's argument here is derivative of the RFC arguments addressed above and is rejected for the same reasons. The hypothetical to the VE included the limitations the ALJ found supported by the record that were imposed in the RFC. See King v. Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *8 (E.D. N.C. Dec. 6, 2018), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27, 2018). Therefore, the ALJ's hypothetical to the VE was proper.

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VI. CONCLUSION

For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-22] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-24] be ALLOWED, and Defendant's final decision be affirmed.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 7, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to .which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

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Notes:

The transcript is missing from the record, but it is not necessary to the court's decision.

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).

"While Social Security Ruling 96-9[p] concerns individuals capable of less than a full range of sedentary work, district courts within the Fourth Circuit consistently rely on the Ruling for guidance when a claimant alleges that a hand-held assistive device was not adequately considered in his or her disability determination." Peake v. Berryhill, No. 5:17-CV-01998, 2018 WL 1178256, at *15 (S.D. W.Va. Feb. 8, 2018), adopted by 2018 WL 1177354 (Mar. 6, 2018).

In his brief, Claimant cites (R. 935, 951, 960, 968, 972, 976, 991, 1000, 1006, 1010, 1014, 1020, 1032, 1043, 1059, 1065, 1072, 1077, 1079, 1087, 1103, 1111) as evidence that Ms. Smith "encouraged use of [a] cane," but those records are all copies of Claimant's medical history referencing the same February 6, 2017 visit.

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