North Carolina Cases February 24, 2022: Williams v. Kijakazi

Case Description

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MEMORANDUM AND RECOMMENDATION

ROBERT B, JONES, JR., UNITED STATES MAGISTRATE JUDGE.

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-24, -26] pursuant to Fed. R Civ. P. 12(c). Claimant Allen Clayvon Williams ("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. The time for filing responsive briefs has expired, and 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 affirmed.

I. STATEMENT OF THE CASE

Claimant protectively filed applications for a period of disability and DIB and for SSI on June 6, 2018, alleging disability beginning April 10, 2014. (R. 15, 228-14). Both claims were denied initially and upon reconsideration. (R. 15, 79-134). A hearing before the Administrative Law Judge ("ALJ") was held on January 22, 2020, at which Claimant, represented by counsel, and

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a vocational expert ("VE") appeared and testified. (R. 15, 35-73). On March 25, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-34). On October 2, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.

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, 439-10 (4th Cir. 1997).

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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 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 V 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. Chater, 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 ALJ erred in (1) weighing the opinions of Dr. Graham, (2) finding Claimant was capable of performing work at a modified light exertion level, (3) improperly assessing Claimant's statements regarding the intensity, persistence, and limiting effects of his symptoms, and (4) failing to accurately set forth all of Claimant's limitations in the

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hypothetical to the VE. PL's Mem. [DE-22] at 25-32.

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 employment since April 10, 2014, the alleged onset date. (R. 18). Next, the ALJ determined Claimant had the severe impairments of right eye injury, essential hypertension, and left ankle fusion and hardware removal residuals. Id. Claimant also had the non-severe impairments of back pain, with limited treatment; left thumb fracture in 2002; left great toe infection/abscess, with short hospitalization, resolved; mild obesity with no noted functional limitations; upper respiratory infection; history of alcoholic gastritis; history of pneumonia, resolved; facial fractures with limited treatment; left arm burn, with limited treatment; and blepharitis of the left upper eyelid. Id. 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. 18-19).

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

will need the flexibility to alternate between sitting, standing, and walking every 30 minutes; will not need to leave the work station except for when on regularly scheduled breaks, and in an 8-hour workday comprised of regularly scheduled breaks and the types of interruptions that may take the claimant off task up to 10% of a total work schedule; the claimant can sit for a total of 6 hours, and stand and walk for a combined total of 3 hours; has occasional use of the bilateral upper extremities for overhead lifting, reaching, pulling, and pushing; otherwise he has

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frequent use of the bilateral upper extremities to lift, reach, pull and push in all other directions; has frequent use of the bilateral upper extremities to handle (handling including grasping), fingering and feeling; is limited to occasional stooping, kneeling, crouching, climbing of stairs and ramps, and using the left dominant lower extremity to operate foot and leg controls; is limit[ed] to no climbing of ladders, ropes, or scaffolds; can have occasional exposure to temperature extremes; cannot work around dangerous moving mechanical parts and unprotected heights; cannot stand and/or walking on narrow slippery surfaces (used to help develop DOT's definition of balancing); and is limited to performing jobs not requiring binocular depth perception and binocular field of vision.

(R. 19-32). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence of record. (R. 22).

At step four, the ALJ concluded Claimant had no past relevant work. (R. 28). 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. 28-29).

V. DISCUSSION

A. The RFC Assessment

Claimant contends the ALJ erred in formulating his RFC by failing to properly analyze medical opinions, failing to properly analyze Claimant's statements regarding his subjective symptoms, and finding Claimant was capable of performing a reduced range of light work. PL's Mem. [DE-22] at 25-31.

1. The Medical Opinions

Claimant contends the ALJ erred in failing to accord great weight to the medical opinions of Dr. Michael Graham, the orthopedic surgeon who treated Claimant's left ankle injury. PL's Mem. [DE-22] at 25-26.

As an initial matter, the regulation upon which Claimant relies, 20 C.F.R. § 404.1527(d)(2),

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is not applicable to his claim. Because Claimant protectively filed his application on June 6, 2018, C.F.R. §§ 404.1520c and 416.920c, which apply to claims filed on or after March 27, 2017, govern how the ALJ considers the medical opinions in Claimant's case.

The applicable regulations provide that the ALJ "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [Claimant's] medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that "[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s). . . the more persuasive the medical opinions or prior administrative medical finding(s) will be"; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that "a medical source who has received advanced education and training to become a specialist may be more persuasive"; and (5) other factors that tend to support or contradict a medical opinion." Id. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The most important factors are supportability and consistency. Id. §§ 404.1520c(a), 416.920c(a).

The regulations also require the ALJ to "articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the] case record." Id. §§404.1520c(b), 416.920c(b). However, when a medical source provides multiple opinions, the ALJ may use a single analysis to evaluate all the opinions from a

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single source, and the ALJ is "not required to articulate how [she] considered each medical opinion or prior administrative medical finding from one medical source individually." Id.

Because the ALJ was not required to give any specific evidentiary weight to any medical opinion, 20 C.F.R. §§ 404.1520c(a), 416.920c(a), Claimant's argument that the ALJ erred in failing to accord "great weight" to the opinions of Dr. Graham lacks merit.

Claimant also argues that the ALJ's decision to disregard the opinion of Dr. Graham regarding Claimant's functional limitations and ability to return to work is not supported by substantial evidence. PL's Mem. [DE-22] at 26. In support, Claimant cites his treatment for a severe left ankle injury, which required multiple surgeries, hardware, and fusion; the ALJ's determination that his ankle injury was a severe impairment; Dr. Graham's opinion that Claimant was unable to work on May 6, 2016, and later that his activity was limited and he needed semi-sedentary work and retraining; Claimant's failed attempts to return to work in May and June 2019; and Claimant's inability to get further treatment due to a lack of health insurance. Id.

First, the mere diagnosis of a condition is not enough to prove disability without "a showing of related functional loss." Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Likewise, the fact that an impairment is found to be "severe" at step two does not mean it is disabling. The "severity standard is a slight one." Stemple v. Astrue, 475 F.Supp.2d 527, 536 (D. Md. 2007); see also McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (describing the burden of proving the severity of an impairment as" mild" and stating "only claims based on the most trivial impairments" are rejected). Therefore, the fact that Claimant had an ankle injury that the ALJ found to be a severe impairment does not undermine the ALJ's evaluation of the medical opinion evidence.

Next, the ALJ fully considered Claimant's course of treatment for his April 10, 2014 ankle

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injury, including the multiple surgeries, fusion, and placement of hardware. (R. 21-25). The ALJ noted that by June 3, 2016, Claimant was full weightbearing in a cam boot, but the rate of healing was not fully complete in the joint between the lateral malleolus and the talus. (R. 22, 417). The ALJ acknowledged Dr. Graham's opinion that Claimant should not return to a job requiring him to stand continuously for long periods, do heavy lifting, or walk on uneven surfaces and that a "semi-sedentary" position would be better. (R. 22-23, 417). In September 2016, Dr. Graham indicated that Claimant had a 40% foot impairment and, in general, "should not have to do heavy lifting or frequent ladder climbing" and "should be considered for retraining to a semi-sedentary position, walking primarily on a flat surface, with only infrequent ladder or stair climbing." (R. 23, 500). The ALJ discussed a follow-up visit with Dr. Graham on January 25, 2017, where Claimant reported continued pain with longer periods of standing and walking, which Dr. Graham attributed to a plate in Claimant's tibia, and Dr. Graham noted the x-ray showed a solid fusion. (R. 499). Finally, the ALJ discussed Claimant's follow-up appointment with Dr. Graham on June 10, 2019, where Dr. Graham noted Claimant's ankle fusion was solid and complete, and all hardware was in good position, with no abnormality visible; Claimant had increased pain in his ankle since taking a job for an asphalt company working up to ten hours a day and standing 75% of the time, which Dr. Graham considered a highly demanding job that Claimant should probably not perform given his ankle fusion; an exam noted no visible swelling, with slightly reduced range of motion to the subtalar joint, painful to palpation on the medial and lateral aspects, and some tenderness

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across the dorsum of the midfoot; Claimant had been advised to get a rigid sole rocker-bottom shoe, which he had not done; and Claimant was recommended for a semi-sedentary position that involved little lifting, advised to lose at least 50 pounds and get the rocker-bottom shoe, and prescribed Naprosyn. (R. 25, 763-64). Claimant does not point to any evidence related to his treatment that the ALJ failed to consider.

The ALJ found Dr. Graham's opinion that Claimant should not work with prolonged standing, heavy lifting, walking on uneven surfaces, or frequent ladder climbing to be persuasive because it was supported and consistent with the medical evidence of record and Claimant's history. (R. 27, 417, 500). The limitations suggested by Dr. Graham are consistent with the ALJ's determination that Claimant could perform a reduced range of light work. (R. 19). Light work requires lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, 20 C.F.R. §§ 404.1567(b), 416.967(b), which would preclude heavy lifting. The ALJ imposed further limitations to standing or walking for a combined total of no more than three hours; the flexibility to alternate between sitting, standing, and walking every 30 minutes; and no need to leave the workstation except for regularly scheduled breaks. (R. 19). These combined limitations would preclude prolonged standing. The ALJ also imposed a limitation in the RFC of no ladder climbing. Id. The ALJ did not impose a limitation to walking on uneven surfaces. However, the limitation of no need to leave the workstation except for regular breaks would appear to preclude the need to walk on uneven surfaces, and Claimant has not suggested that the jobs the ALJ determined Claimant can perform would require walking on uneven surfaces.

The ALJ found Dr. Graham's opinion that Claimant should be limited to semi-sedentary work to be "not fully persuasive" because Dr. Graham did not provide any specific standing,

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walking, or lifting restrictions; the opinion was not fully consistent with the medical evidence of record; Claimant was able to engage in some work activity; and Claimant testified he could lift up to twenty pounds. (R. 28, 417, 764). The ALJ referenced Dr. Graham's June 10, 2019 treatment note, which was summarized in detail earlier in his decision. (R. 25). Dr. Graham indicated that Claimant had a successful ankle fusion but, after not working for a couple of years, tried to return to work in a highly demanding job paving roads for eight to ten hours a day that required many hours of standing and walking and resulted in an "overload condition of the hindfoot." (R. 28, 763-64).

Claimant asserts that the ALJ should have contacted Dr. Graham, requested additional records, asked for follow-up information, and/or purchased a consultative examination if the ALJ found Dr. Graham's opinion insufficiently detailed to determine whether Claimant's medical condition was disabling or inconsistent with the medical evidence. PL's Mem. [DE-22] at 26. Claimant did have a consultative examination on October 6, 2018, and Dr. Bryant determined that Claimant had "moderate limitations with standing and walking due to left ankle pain," (R. 760), and the ALJ found Dr. Bryant's opinion persuasive. (R. 27). Furthermore, the ALJ had multiple treatment records from Dr. Graham throughout the course of Claimant's medical treatment and did not lack sufficient evidence on which to evaluate Dr. Graham's opinions or Claimant's RFC. See Young v. Astrue, No. 1:09-CV-1008, 2013 WL 474787, at *6 (M.D. N.C. Feb. 7, 2013) (rejecting argument that the ALJ should have re-contacted the plaintiff's treating physician because the ALJ

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had sufficient evidence upon which to make his decision and thus had no duty to re-contact a treating source) (citing Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) ("An ALJ need recontact medical sources only when the evidence received is inadequate to determine whether the claimant is disabled." (citing 20 C.F.R. § 404.1512(e))); White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001) ("[I]t is not the rejection of the treating physician's opinion that triggers the duty to recontact the physician; rather it is the inadequacy of the 'evidence' the ALJ 'receives from the claimant's treating physician' that triggers the duty." (quoting 20 C.F.R. 416.912(e))); Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (finding no duty to contact when "[t]he ALJ had before him a complete medical history, and the evidence received from the treating physicians was adequate for him to make a determination as to disability")).

Although the ALJ found Dr. Graham's opinion "not fully persuasive," the ALJ did not disregard it as Claimant suggests, but ultimately imposed an RFC that addresses Dr. Graham's well-documented concerns. The ALJ correctly noted that Dr. Graham did not specify how much walking or standing he considered "semi-sedentary" work to include; however, Dr. Graham did indicate Claimant should not perform work that required him to stand continuously for long periods, do heavy lifting, or walk on uneven surfaces, and that a "semi-sedentary" position would be better. (R. 417). The ALJ limited Claimant to a reduced range of light work with standing or walking for a combined total of no more than three hours; the flexibility to alternate between sitting, standing, and walking every 30 minutes; and no need to leave the workstation except for regularly scheduled breaks. (R. 19). Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met, 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996), and "occasionally" generally totals no more than about two hours of an eight-hour workday, S.S.R. 96-9p, 1996 WL 374185, at *3. Thus, the ALJ determined Claimant

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could stand or walk only one hour more than what is required at the sedentary level, and well below the strenuous, construction work that Dr. Graham opined Claimant should not perform- work that required Claimant to stand for six or more hours in a workday, (R. 763-64). Accordingly, the court can trace the ALJ's reasoning in evaluating the persuasiveness of Dr. Graham's opinion, which the ALJ largely adopted in the RFC, and finds no error in the ALJ's evaluation. See Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) ("An 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.") (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).

2. Claimant's Subjective Statements

Claimant contends the ALJ failed to properly assess his statements regarding the intensity, persistence, and limiting effects of his symptoms and their consistency with the medical evidence and other evidence of record. PL's Mem. [DE-22] at 28-31.

Federal regulations 20 C.F.R. §§ 404.1529(a) and 416.929(a) provide the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[, ] and the extent to which it affects her ability to work," Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.

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Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).

The ALJ recounted Claimant's hearing testimony as follows:

The claimant, age 40, testified that he lived in a one-level house with his girlfriend, who worked during the day, with their four children ages 7, 6, 3 and one. He was 6'1, 260 pounds. He had a high school diploma, but he had never had a valid driver's license. One of his adult children drove him to the hearing. He had been convicted of a felony before 2014. Currently, he was not working. Since 2014, he and his son had tried cleaning cottages at the beach, which lasted a few months. This ended as he had been unable to keep up and could not climb stairs. In 2019, he worked for Branson as an asphalt equipment operator, but this was too much for his ankle as he was required to stand on his feet all day. He had a 2014 left ankle injury, related to Worker's Comp, that needed four surgeries, two in 2015, screws inserted and then removed/replaced, a fusion surgery in 2016 that failed, and a fourth surgery where they inserted a plate around the front of the heel with additional screws. He had settled his WC claim about that time, and then he tried to work at the beach. In 2019. he tried to work as a street operator, but was fired. His most recent visit with Dr. Graham, his orthopedist, was in June 2019, as he thought there was a problem with the screws, but Dr. Graham noted that everything was ok. He advised him to do less strenuous work (he recommended sedentary work). He had recommended removal of the plate to alleviate his problem, but the claimant noted he could not as he had no insurance. Consequently, he had been putting more weight on his right side that was causing muscle spasms in his back. He had a cane with a rocker foot at home to help with standing. He had back and

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ankle pain all day. The ankle pain went up to his shin. Since his initial injury, he had been having continuous symptoms, as his ankle would stiffen if sitting more than 5-10 minutes. He could stand for 10-15 minutes and he did not really walk anymore, not more than a block. He did not try to lift more than 20 pounds. He was not able to pick up his baby, who weighed 20 pounds. He spends his days sitting with his foot propped up, or lying down. He was the primary caretaker for his one-year-old. He would feed her and change her diapers. He was able to dress himself and feed himself. He was taking a muscle relaxer. He had been on Naprosyn, but not any longer. He did not have any medication side effects.

(R. 25-26).

The ALJ found that Claimant's impairments could reasonably be expected to cause the alleged symptoms, but that Claimant's statements about his limitations were not entirely consistent with the medical and other evidence. (R. 26). The ALJ summarized Claimant's treatment for his left ankle fracture in 2014, including complications requiring additional surgeries and the use of a cane and a cam boot, but ultimately Claimant was weightbearing and ambulating within a few months, and in August 2016 he was wearing regular shoes, (R. 21-25); Dr. Bryant determined at the October 2018 consultative examination that Claimant did not need a cane for ambulation but only for long distances or uneven terrain, (R. 760); Claimant had no further surgeries for three years, and Dr. Graham's examination in 2019 noted Claimant's ankle was healed, (R. 763); and Claimant had been non-compliant and failed to complete physical therapy, (R. 1475). The ALJ also specifically referenced evidence demonstrating that some physical examinations were overall unremarkable, with normal range of motion and strength, (R.787-88, 1208-09, 1275, 1433); Claimant had a good range of daily activities, such as performing his own hygiene, dressing and caring for his one-year-old child, going out alone, and engaging in some limited work activity cleaning cottages and laying asphalt, (R. 45-48, 59-61); and Claimant did not get the rocker-type

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shoes as advised by Dr. Graham, (R. 764). (R. 27).

Claimant argues that the ALJ's findings regarding the consistency of Claimant's statements with the medical and other evidence are not supported by substantial evidence and cites Arakas v. Comm v. Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020), which held 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, Claimant does not have fibromyalgia or a disease that produces wholly subjective symptoms. Id. at 96 ("[P]hysical 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."). Rather, Claimant's impairment at issue is an ankle fracture with fusion and hardware removal residuals, an orthopedic impairment for which one would not expect symptoms to be wholly subjective. See Donta J. v. Saul, No. 2:20-CV-131, 2021 WL 2711467, at *4 (E.D. Va. July 1, 2021) (distinguishing Arakas where "Plaintiff's injury-orthopedic damage to his knee-is not the type of injury whose symptoms are wholly subjective.").

The ALJ did not rely on a lack of objective evidence to discount Claimant's subjective statements regarding the limiting effects of his impairment. Claimant testified that his ankle would stiffen if sitting more than five to ten minutes, he could stand for ten to fifteen minutes, and he did not really walk anymore, and could walk no more than a block. (R. 55-56). The ALJ acknowledged that, although Claimant's fusion was successful, the hardware was in good position, and no abnormalities were seen on imaging, on examination Claimant had a slightly reduced range of motion, exhibited pain with palpation and some tenderness in areas of his foot. (R. 25). However, the ALJ found persuasive Dr. Bryant's and Dr. Graham's respective opinions that

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Claimant had no limitations in sitting, had moderate limitations with standing and walking due to left ankle pain, could not stand for prolonged periods, and could not walk on uneven surfaces. (R. 27). These opinions are inconsistent with Claimant's testimony of extreme limitations in sitting, standing, and walking. The ALJ also cited Claimant's daily activities, including his self-care, caring for his one-year-old child; going out alone; engaging in work activity; and failing to complete physical therapy and to wear the rocker-type shoes recommended by Dr. Graham. (R. 27). While the ALJ did note some relatively normal examination notes in his assessment, the ALJ did not require objective proof Claimant's pain, but rather "evaluate[d] whether the statements are consistent with objective medical evidence and the other evidence" as required by S.S.R. 16-3p, 2016 WL 1119029, at *6.

Claimant contends he could not afford to continue medical treatment due to a loss of health insurance and, thus, the ALJ should not have considered his failure to obtain treatment without considering his ability to afford that treatment. PL's Mem. [DE-22] at 31. The ALJ must "consider and address reasons for not pursuing treatment that are pertinent to an individual's case," including whether a claimant is unable to afford treatment and lacks access to free or low-cost medical services. S.S.R. 16-3p, 2016 WL 1119029, at *10 (March 16, 2016); see Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) ("It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him"); see also McKoy v. Saul, No. 7:19-CV-223-FL, 2020 WL 8084961, at *9 (E.D. N.C. Nov. 22, 2020) ("citing McKoy's non-compliance, without exploring the reasons underlying it, offers little in the way of substantial evidence to support ALJ Moldafsky's assessment"), adopted by 2021 WL 76956 (E.D. N.C. Jan. 8, 2021).

The ALJ considered that Claimant had no further surgeries for three years, Claimant had

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been non-compliant and failed to complete physical therapy, and Claimant failed to wear the rocker shoe prescribed by Dr. Graham. (R. 27). Claimant testified at the January 2020 hearing that Dr. Graham advised him in June 2019 that the only thing he could do to alleviate his continued ankle pain was to have another surgery to remove the plate. (R. 52-53). Claimant further testified that he could not afford the surgery. (R. 53). The treatment records do not support Claimant's testimony.

Claimant saw Dr. Graham on January 25, 2017, ten months after the revision fusion of his ankle, and Claimant reported continued pain with longer periods of standing and walking and that he could not stand for more than forty-five minutes to an hour. (R. 499). Dr. Graham noted the x-ray showed a solid fusion and attributed the pain to a plate in Claimant's tibia that can become symptomatic with longer periods of standing and walking. Id. (R. 499). Dr. Graham concluded,

If this pain persists and remains localized to that area at his discretion after one year from surgery has passed he can have the plate removed, and I think that should eliminate much of the distal tibial pain. He has some interest in doing this. He is going to wait a couple of months and see if this is trending towards getting better or worse. If it is getting worse he will come back and we will reconsider this as an option if everything else remains the same.

Id. Claimant's prior surgery was performed on February 2, 2016, but Claimant opted not to return to Dr. Graham after one year from surgery, in February 2017, to evaluate further surgical options, including removal of the plate; instead, he settled his worker's compensation case and the worker's compensation disability benefit that was covering the medical treatment for his ankle ended on March 1, 2017. (R. 50, 238). It was during 2016, while Claimant's treatment was still covered by worker's compensation, and again in June 2019, when Claimant had insurance, that he failed to

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obtain the orthopedic rocker shoe, as repeatedly recommended by Dr. Graham. (R. 372, 409, 418, 419, 500-01, 503, 764). Thus, the ALJ's consideration of Claimant not having another surgery and not wearing the recommended rocker shoe, without considering his ability to afford these treatments, was at most harmless error because Claimant was covered at that time by worker's compensation or insurance.

The ALJ did err in considering Claimant's missed physical therapy sessions in August 2019, (R. 1471-75), without considering Claimant's ability to afford that treatment. Claimant's attorney stated at the hearing that Claimant was not able to complete physical therapy because he lost his insurance. (R. 39-40). However, this error is not dispositive, because the ALJ cited other evidence, discussed above, that is sufficient to support the ALJ's assessment of Claimant's subjective statements regarding his limitations. See Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021) ("Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Though the threshold for such evidentiary sufficiency is not high, it requires that more than a mere scintilla of evidence support the ALJ's findings.") (internal quotation marks and citations omitted).

Claimant also cites his unsuccessful attempts to return to work in support of his statements regarding his limited abilities. PL's Mem. [DE-22] at 31. Claimant testified that he worked cleaning homes at the beach and as an equipment operator laying asphalt. (R. 45-48). Claimant could not keep up at the cleaning job because he had to take breaks, have help with most of the carrying and lifting, and could not go up and down stairs. (R. 46). Claimant could not continue to perform the equipment operator job because it required him to stand on the back of the equipment all day, and the constant sitting and standing aggravated his ankle. (R. 48). The work Claimant attempted to perform is significantly more strenuous than what Dr. Graham advised him

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to do and what the ALJ determined he was capable of doing. (R. 764) (June 10, 2019 treatment record in which Dr. Graham indicated the paving job is a highly demanding job and Claimant worked eight to ten hours a day, standing 75% of the time). Dr. Graham advised Claimant in 2016 to avoid returning to heavy construction-type labor that would involve excessive prolonged weightbearing, heavy lifting, and frequent ladder or stair climbing. (R. 500, 503). The ALJ limited Claimant to a reduced range of light work with standing or walking for a combined total of no more than three hours; the flexibility to alternate between sitting, standing, and walking every 30 minutes; no need to leave the workstation except for regularly scheduled breaks; and only occasional climbing of stairs. (R. 19). The fact that Claimant cannot perform a construction job that required him to stand for six to eight hours a day or a cleaning job that required frequent stair climbing, does not support Claimant's testimony that he is extremely limited in his ability to sit, stand, and walk.

Finally, Claimant contends that the ALJ cherry picked facts supporting a non-disability finding while ignoring evidence supporting disability. PL's Mem. [DE-22] at 30-31. As discussed above, the ALJ thoroughly discussed the treatment records, the medical opinions, and Claimant's testimony. The ALJ acknowledged that Claimant continues to be limited by pain from his impairments and imposed a restrictive RFC to account for the limitations the ALJ found to be supported by the record. Claimant points to no specific evidence the ALJ failed to consider and effectively asks the court to reweigh the evidence. See Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) ("In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.") (citation omitted). The ALJ applied the appropriate framework in evaluating Claimant's statements regarding the limiting effects of his impairments, and the court can trace the ALJ's

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reasoning, which is supported by substantial evidence. Accordingly, the ALJ did not err in evaluating Claimant's subjective statements regarding his limitations.

3. Claimant's Ability to Perforin a Reduced Range of Light Work

Claimant contends he is unable to physically perform a reduced range of light work because he cannot sit, stand, or walk for six hours in an eight-hour workday, cannot lift and carry ten pounds on a frequent basis, and would have great difficulty bending, stooping, and crouching on an occasional basis. PL's Mem. [DE-22] at 26-28.

The RFC is the capacity an individual 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. "[T]he residual functional capacity 'assessment must first identify the individual 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); 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").

Claimant, in support of his argument that he cannot perform a reduced range of light work as found by the ALJ, generally points to his hearing testimony regarding his limitations and Dr. Graham's course of treatment, examinations, and opinions. PL's Mem. [DE-22] at 28. As

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discussed above, the ALJ thoroughly considered Claimant's testimony, his course of treatment with Dr. Graham, and Dr. Graham's opinions and examination findings. (R. 21-25, 27-28). Dr. Graham suggested that Claimant avoid returning to heavy construction-type labor that would involve excessive prolonged weightbearing, heavy lifting, and frequent ladder or stair climbing. (R. 500, 503). The ALJ limited Claimant to a reduced range of light work with standing or walking for a combined total of no more than three hours; the flexibility to alternate between sitting, standing, and walking every 30 minutes; no need to leave the workstation except for regularly scheduled breaks; only occasional climbing of stairs; and no climbing of ladders. (R. 20). When asked at the administrative hearing about his ability to lift and carry, Claimant testified that he does not try to lift more than twenty pounds, (R. 56), which undermines his argument that he cannot lift and carry ten pounds on a frequent basis. Dr. Bryant found Claimant had only mild limitations with lifting and carrying due to low back pain. (R. 24, 760).

Claimant contends he would have great difficulty bending, stooping, and crouching on an occasional basis. Dr. Bryant found Claimant was able to occasionally bend and stoop, consistent with the ALJ's RFC, but was unable to crouch due to back pain. (R. 760). The ALJ limited Claimant to occasional crouching. (R. 20). The ALJ determined Claimant's back pain was a non-severe impairment and that there was no evidence that it resulted in any work related limitations, and Claimant did not challenge the ALJ's findings at step two. (R. 18). Treatment notes discussed by the ALJ indicate Claimant experienced episodic back pain with trauma, such as a fall or accident, and Claimant's medical history demonstrated limited treatment for back pain. (R. 21, 25-27). Accordingly, there is sufficient evidence in the ALJ's decision to support the limitation to occasional crouching due to pain.

The ALJ, after discussing the medical evidence, opinion evidence, and Claimant's

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testimony, determined Claimant had the RFC to perform a reduced range of light work that is limited to, in relevant part, no more than three hours of standing and walking, allows a sit/stand option at thirty minute intervals, does not require leaving the workstation except for breaks, does not require lifting more than twenty pounds, and prohibits climbing of ladders. (R. 19). The ALJ's RFC determination is supported by Claimant's treatment history and the opinions of Dr. Graham and Dr. Bryant. See Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018) (finding no error in the ALJ's RFC determination where the ALJ used evidence from the record to explain his finding that the claimant was capable of light work, explained the weight assigned to statements made by the claimant and the opinion evidence, and provided a thorough discussion allowing the court to conclude the RFC was supported by substantial evidence); see Briley v. Berryhill, No. 5:18-CV-43-FL, 2019 WL 1330889, at *3 (E.D. N.C. Mar. 25, 2019) (finding no error in the ALJ's RFC determination where the ALJ fully discussed substantial evidence in the record showing symptoms and examination findings supported a lesser functional limitation than the claimant suggested). The court can trace the ALJ's reasoning in the RFC determination and finds it supported by substantial evidence. Accordingly, the ALJ did not err in the RFC determination.

B. The Hypothetical to the VE

Claimant contends the ALJ erred in failing to include all of Claimant's limitations in the hypothetical to the VE. PL's Mem. [DE-22] at 31-32. This argument is foreclosed by the court's finding that the ALJ's RFC determination was without error.

The additional limitations Claimant suggests the VE should have considered were not included in the RFC by the ALJ. 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

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be "relevant or helpful," it must be given in response to a proper hypothetical question. Id. A proper 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 ultimately 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). Accordingly, the ALJ's hypothetical to the VE was without error.

VI. CONCLUSION

For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-24] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-26] be ALLOWED, and the final decision of the Commissioner 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 February 17, 2022 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

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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:

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 diese 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).

The ALJ states Claimant was "not full weightbearing," (R. 22), but the record states that Claimant "now has full weightbearing," (R. 417).

Dr. Graham also stated that Claimant "is an intelligent guy so he would be a good candidate for retraining to a semi-sedentary position such as office work or computer work. It is my recommendation that he begin this process of retraining as quickly as possible because he is well on his way to healing. He should be able to return to some level of activity within a few of [sic] months." (R. 417).

The ALJ also referenced emergency department treatment notes from December 21, 2017 and March 27, 2019, when Claimant presented with a sore throat, (R. 1275, 1433); an emergency department treatment note from July 1, 2019, when Claimant presented with neck stiffness and back pain after he was involved in a motor vehicle accident, (R. 787-88); and an emergency department treatment note from November 28, 2019, when Claimant was seen for left eye pain and swelling, (R. 1208-09). The significance of these treatment notes with respect to the persuasiveness of Dr. Graham's opinion is not readily apparent, and the ALJ provided no explanation.

These are the same examination notes referenced in the ALJ's discussion of Dr. Graham's opinion and discussed supra at footnote four.

Dr. Graham did not recommend surgery at Claimant's June 2019 visit. Dr. Graham, instead, recommended Claimant needed a semi-sedentary position involving little lifting, he should lose fifty pounds because weight loss is very consemiential and he haH to pet his shoes fixed with a rocker hottom to heln distrihute the stress differentlv. ( R. 764).

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