Opinion
5:21-CV-00487-M
10-21-2022
Matthew Hill, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Plaintiff Matthew Hill challenges an Administrative Law Judge's decision to deny his application for social security income. Hill claims that the ALJ made three errors in reaching that decision. First, the ALJ failed to correctly determine his residual functional capacity. Second, she erred in evaluating the medical opinion evidence. And third, the ALJ wrongly assessed Hill's neuropathy. Both Hill and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 12, 14.
After reviewing the parties' arguments, the undersigned has determined that the ALJ reached the appropriate determination. The ALJ sufficiently considered Hill's impairments and symptoms, including the side effects of medication in determining his residual functional capacity. She made no error in evaluating the medical opinions. And the undersigned finds no effect on the disability analysis in the ALJ's reference to the severity of Hill's neuropathy. So the undersigned recommends that the court grant Kijakazi's motion, deny Hill's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
A. Factual
Hill has a history of neck and back issues. Records also reflect Hill had a BMI that ranged 31.16 to 35.5. Tr. at 45.
The record shows degenerative disc disease in his cervical, thoracic, and lumbar spine. Tr. at 40. Hill underwent thoracic fusion with hardware removal and syringopleural shunt implantation in 2014. Id. Around that time, he also has a cervicothoracic syrinx. Id. Hill did well following surgery and returned to work with a cane and improved gait. Id.
In March 2019, Hill reported symptoms of progressive right leg weakness over the previous year. Id. This prevented him from working for two weeks. Id. If he drove for more than 30 minutes, Hill had to use his arms to lift his leg between the gas and brake pedals. Id. Although he had discomfort in the thoracic and lumbar areas, Hill denied any radiculopathy. Id. at 40-41.
Dr. Phillip Saba reviewed 2019 MRIs of Hill's spine. Tr. at 41. The cervical spine showed no scoliosis, focal malalignment, compression fracture, or edema. Id. Both the cervical lordosis and marrow signal intensity were normal. Id. A syrinx had significantly decreased in size when compared to an MRI five years earlier. Id. He had mild disc protrusions and a moderate disc bulge that caused mild to moderate foraminal narrowing. Id.
Hill's thoracic spine MRI showed a slight focal levocurvature, exaggerated kyphosis because of a moderate chronic T6 compression fracture without retropulsion, and a very small syrinx that had decreased in size compared with an earlier study. Tr. at 41-42. And although severe myelomalacia was present at ¶ 6, it was unchanged from results three years before. Tr. at 42.
Dr. Mark Marchand reviewed Hill's lumbar MRI and noted no significant degenerative pathology and no interval change were present. Id. Providers noted that an examination found full strength in his upper extremities. Tr. at 41. And except for his right iliopsoas which had 4/5 strength, Hill retained full strength in his lower extremities. Id.
Treatment notes a month later reflect that Hill's history of back and neck issues stemmed from a 2014 car accident. Id. He again reported progressive symptoms that affected his ability to work. Id. His job required sitting for long periods, which aggravated his pain and caused lower extremity weakness and numbness. Id. And Hill did not feel safe to drive for long periods. Id.
At an examination four months later, Hill displayed a normal range of motion and a normal gait. Tr. at 42. Aside from some mild cervical tenderness, there were no other musculoskeletal abnormalities. Id.
Later that month, Dr. Rhonda Gabr examined Hill. Id. She found lower extremity spasticity, moderate hip flexor weakness, and increased tone in his right leg. Id. His gait was awkward and he walked unassisted but slowly. Id. But there was no electrophysiological evidence of diffuse peripheral neuropathy or radiculopathy. Id. Instead, Hill's symptoms were most consistent with supra-segmental process such as a motor neuron lesion. Tr. at 42-43.
In October 2019, Hill remarked that his lower extremity numbness predated his 2014 motor vehicle accident. Tr. at 45. He also reported a recent onset of hand tingling. Tr. at 42. An examination showed slightly decreased sensation over the right median distribution. Id. EMG and nerve conduction studies showed findings of right distal median mononeuropathy suggestive of carpal tunnel syndrome. Id.
Over the next few months, treatment records reflect that Hill displayed spasticity when walking. Tr. at 43. Examinations found full strength, bulk, and tone in his upper extremities. Id. He also had normal bulk and tone in his lower extremities, with full strength on the left and slightly reduced strength of 4/5 on the right. Id. Hill had some spasticity but no atrophy, abnormal movements, tremors, or fasciculations. Id. His gait was awkward. Id. Providers assessed lower extremity spasticity, administered injections, and prescribed medications. Id.
Hill began physical therapy in February 2020. Id. Treatment notes reflect increased tone with gait and moving the lower right extremity. Id. He walked better with a cane and was encouraged to use it to practice walking to reduce a fear of falling while working to improve hip and knee flexion. Id. One month later, records show that Hill had only mild difficulty walking but moderate trouble descending stairs or getting in and out of a car. Id.
Throughout the rest of 2020, Hill continued to seek treatment for lower limb spasticity and imbalance and weakness. Tr. at 44. Records reflect progressive improvement. Id. In May and July, Hill displayed spasticity but no atrophy, fasciculations, tremors, or abnormal movements. Id. His gait was awkward and slow. Id.
At an appointment the next month, Hill denied any joint stiffness, muscle stiffness or spams, or a reduced range of motion. Id. An examination found full upper extremity strength, tone, and bilk. Id. Although his left lower extremity had full strength, the right lower extremity had 4/5 strength. Id. Providers noted spasticity without atrophy, fasciculations, or abnormal movements. Id. Dr. David Konanc assessed right lower extremity spasticity and administered injections. Tr. at 44-45.
In February 2020, state agency physician Dr. E. Woods found that obesity and spine disorders were severe impairments. Tr. at 46. But he could perform a reduced range of sedentary work with postural and environmental limitations. Id. On reconsideration, Dr. Lilliam Horne agreed with Dr. Woods's conclusions. Id. But she also found sensory limitations were appropriate for Hill's right upper extremity. Tr. at 47.
In July 2020, Brittany Davis, PA-C, concluded that Hill had chronic neck and back pain. Tr. at 44. She found he could not squat, kneel, crawl, bend at the waist, or climb stairs or ladders. Id. He could occasionally stand, walk, drive, lift up to ten pounds, and use foot controls. Id. Davis found that Hill could not push, pull, or use tactile or feeling sensation. Id.
Hill testified that he cannot work because of his impairments. Tr. at 40. He alleges trouble getting out of bed, falls, and spasms in his legs. Id. Hill stated he has severe neck and back pain and limited neck movement. Id. He needs help getting out of a chair. Id. Hill also testified to trouble with standing, balancing, and lifting even five pounds. Id.
B. Procedural
In July 2019, Hill applied for disability benefits, alleging a disability that began four months earlier. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Hill appeared before an ALJ for a hearing to determine whether he was entitled to benefits. The ALJ determined that Hill had no right to benefits because he was not disabled. Tr. at 32-50.
The ALJ found that Hill lived with several severe impairments. Among these were cervical, thoracic, and lumbar degenerative disc disease, remote thoracic fusion with 2014 hardware removal and 2014 cervicothoracic syrinx, status post syringopleural shunt implantation, obesity, and mild median neuropathy. Tr. at 35. The ALJ also found that Hill's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
Next, the ALJ determined that Hill had the residual functional capacity (RFC) to perform sedentary work with other limitations. Tr. at 39. Hill can occasionally push and pull with his lower extremities. Id. Although he can perform occasional postural movements, Hill cannot climb ladders, ropes, or scaffolds. Id. He can frequently, but not continuously, use his upper right extremity to feel, finger, and handle. Id. And he can occasionally reach overhead. Id.
Hill must avoid concentrated or frequent exposure to unprotected heights and nearby, dangerous, moving machinery. Id. And he must be allowed to use an assistive device when ambulating. Id.
Then the ALJ concluded that Hill could not perform his past work as an audio editor. Tr. at 48-49. But considering his age, education, work experience, and RFC, the ALJ found that other jobs existed in significant numbers in the national economy that Hill could perform. Tr. at 49-50. These include addresser, call out operator, and document preparer. Id. These findings led the ALJ to conclude that Hill was not disabled. Tr. at 50.
After unsuccessfully seeking review by the Appeals Council, Hill began this action in November 2021. D.E. 1. Both parties have asked the court to issue a judgment in their favor. D.E. 12, 14.
II. Analysis
Hill has not established that the ALJ erred in determining his residual functional capacity by showing he has greater restrictions in using his upper extremities. And the record does not support his claim that he has deficits in mental abilities that result in other limitations omitted from the RFC. The ALJ also explained why the medical opinions were not wholly persuasive. So she did not need to endorse all the findings they found. Finally, there is no error in categorizing the severity of Hill's neuropathy because the ALJ considered all the evidence and symptoms related to this condition. And Hill has not shown that it resulted in greater limitations that the ALJ found.
A. Standard for Review of the Acting Commissioner's Final Decision
When a claimant appeals the Commissioner's final decision, the district court considers whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
Under the Social Security Act, a claimant is disabled if they are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). ALJs use a five-step, sequential process when considering disability claims. 20 C.F.R. § 404.1520.
First, at step one, the ALJ considers whether the claimant is engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). If so, the claim is denied. Id.
Then, at step two, the ALJ looks at whether the claimant has a severe impairment or combination of impairments that significantly limit him from performing basic work activities. Id. § 404.1520(a)(4)(ii). If not, the claim is denied. Id.
Next, at step three, the ALJ compares the claimant's impairments to those in the Listing of Impairments. Id. § 404.1520(a)(4)(iii). If the impairment appears in the Listing or if it is equal to a listed impairment, the ALJ must find that the claimant is disabled. Id.
But if the ALJ concludes that a presumption of disability is not warranted, the ALJ must then assess the claimant's residual functional capacity (RFC). A claimant's RFC “is the most work-related activity the claimant can do despite all of her medically determinable impairments and the limitations they cause.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 90 (4th Cir. 2020). Determining the RFC requires the ALJ to “first identify the claimant's ‘functional limitations or restrictions' and assess the claimant's ‘ability to do sustained work-related' activities ‘on a regular and continuing basis'-i.e., ‘8 hours a day, for 5 days a week, or an equivalent work schedule.'” Id. (quoting SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). The ALJ will then “express the claimant's Residual Functional Capacity ‘in terms of the exertional levels of work[:] sedentary, light, medium, heavy, and very heavy.'” Id. (alteration in original).
After assessing the claimant's RFC, the ALJ, at step four, considers whether the claimant can perform his past work despite his impairments. Id. § 404.1520(a)(4)(iv). If the claimant can, the ALJ will deny the claim. Id. If the claimant cannot, the analysis moves on to step five.
This final step considers whether the claimant, based on his age, work experience, and RFC, can perform other substantial gainful work. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled; if so, they are considered disabled. Id.
The burden of proof shifts between the Commissioner and the claimant during the evaluation process. The claimant has the burden of proof on the first four steps, but the Commissioner bears it on the last one. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Residual Functional Capacity
Hill claims that the ALJ erred in determining his residual functional capacity (RFC) because she disregarded the limitations stemming from his neuropathy, CTS, pain, and the side effects of his medications. But Kijakazi maintains that the ALJ considered all Hill's symptoms and how well they had support in the record. And the evidence failed to show that his conditions warranted greater restrictions. The undersigned finds that substantial evidence supports the ALJ's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe,” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include 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).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.2d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the 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. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “assessment must include 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.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
1. Upper Extremities
The ALJ found that Hill could use his right upper extremity to frequently handle, finger, feel, and occasionally reach overhead. Tr. at 39. She assigned no limitations involving his left upper extremity. Id.
Hill argues that she overlooked additional restrictions. Davis found that Hill could not use his upper extremities for pushing and pulling. Hill's right upper extremity had restrictions for frequent reaching and grasping and occasional performance of fine manipulations. And he could perform no work requiring tactile or feeling tasks.
As Kijakazi points out, the ALJ acknowledged Hill's complaints about the difficulty he experienced in reaching, lifting, and carrying. But the ALJ found that Hill's statements conflicted with the record. For example, the record notes slightly decreased sensation in his right upper extremity. But many treatment notes also reflect that Hill still retained full strength, bulk, and tone. Hill denied spasms, stiffness, or decreased range of motion when he saw Dr. Konanc. And Hill required minimal, conservative treatment-night splints-to treat his upper extremity symptoms.
While testing revealed findings suggesting carpal tunnel syndrome in his right upper extremity, there was no evidence of abnormalities in his left upper extremity. And state agency physicians concluded that Hill could occasionally lift and carry ten pounds and had some restrictions in his abilities to push and pull with his right upper extremity, but found his condition warranted no manipulative limitations. Tr. at 46-47.
The ALJ generally agreed with their assessments, but also determined that Hill was limited to frequent handling, feeling, and fingering with his right upper extremity. Tr. at 39, 46-47. The evidence showed objective findings of median neuropathy. But she remarked that he required only night splints to treat this condition. Although Hill reported some trouble with reaching and grabbing, the ALJ determined that his statements about the limiting effects of his symptoms were overstated when compared to the record. This would explain a frequent, but not constant, restriction on Hill's use of his right upper extremity to handle, feel, and finger.
So there is substantial evidence supporting the ALJ's RFC determination. Hill may believe he has additional restrictions on the use of his upper extremities, but the evidence does not support his argument. The undersigned thus recommends that the court deny Hill's claim on this issue.
2. Mental Limitations
Hill argues that RFC omitted any restrictions on his ability to focus, concentrate, and pay attention, despite his claims that pain and the side effects of medication impair these functions.
The ALJ considered the entire record. Tr. at 33, 35, 40. She evaluated Hill's statements, but found that they varied from the evidence. Tr. at 45.
The evidence fails to corroborate Hill's alleged deficits in attention and concentration. Only one treatment record reflects any such problem-a March 2020 treatment note that he experienced dizziness with a higher medication dosage. Tr. at 433. Two months later, in a May 2020 Disability Report, Hill reported that he had no side effects from his medications. Tr. at 238, 249.
So the evidence fails to support Hill's claim that added non-exertional restrictions for attention and concentration are warranted. See Keller v. Saul, No. 5:19-CV-3233, 2020 WL 9209289, at *13 (D.S.C. Oct. 9, 2020) (concluding that claimant's failure to report significant deficits in functioning to medical providers undermines the persuasiveness of the claimant's testimony), adopted, 2021 WL 1207457 (D.S.C. Mar. 31, 2021); Jones v. Saul, No. CV 1:19-CV-3561-JMC-SVH, 2020 WL 8678104, at *22 (D.S.C. Sept. 2, 2020) (“Given the claimant's allegations of disabling symptoms, one might expect to see some indication in the treatment records of restrictions placed on the claimant by a treating doctor.”), adopted, 2021 WL 753561 (D.S.C. Feb. 25, 2021); Sanders-Hall v. Berryhill, No. 1:17-CV-2076, 2018 WL 1509203, at *22 (D.S.C. Mar. 21, 2018) (citation omitted) (holding that in evaluating a claimant's symptoms, an ALJ may compare claimant's statements to the information he provided to medical sources about the onset and character of symptoms.). The undersigned thus recommends that the court reject Hill's argument on this issue.
Hill states that the ALJ erred in finding he could perform his past work. Offering little argument on this claim, Hill presumably bases it on an argument that the ALJ wrongly determined the RFC. Having found no merit to that argument, any step four claim premised on that issue similarly lacks merit.
D. Medical Opinion Evidence
Hill contends that the ALJ failed to properly consider Davis's Medical Source Statement by failing to explain why she excluded some of Davis's assessed limitations. The Acting Commissioner asserts that the ALJ offered reasons why Davis's opinion was unpersuasive. The undersigned finds no error the evaluation of this evidence.
The Regulations direct the ALJ to consider each medical opinion in the record. 20 C.F.R. §§ 404.1520c, 416.920c.
A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the [following] abilities ...
(A) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(B) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(C) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(D) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.Id. §§ 404.1520(a)(2), 416.913(a)(2).
The 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.” Id. §§ 404.1520c(a), 416.920c(a).Instead, the ALJ must evaluate each medical opinion and articulate the “persuasiveness” of all medical opinions by considering five factors:
Because Hill filed his application after March 2017, the revised rules for the assessment of medical opinion evidence govern how the ALJ considers the medical opinions in this case.
(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).
Supportability and consistency are the “most important” factors, and the ALJ must discuss how they considered these factors in the written opinion. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may explain their consideration of the other factors but is only required to do so when contrary medical opinions are equally persuasive in terms of both supportability and consistency. Id. §§ 404.1520c(b)(3), 416.920c(b)(3). In that situation, the ALJ must then articulate the remaining factors and their application to the persuasiveness of the medical opinion. Id.
The Regulations require the ALJ to “articulate in [her] determination or decision how persuasive [she] 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 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.
Davis's July 2020 Medical Source Statement noted Hill's chronic neck and back pain caused several limitations. The ALJ observed that Davis found restrictions in Hill's bending, squatting, climbing, kneeling, and crawling. Tr. at 44. And Davis found that Hill could occasionally lift or carry up to ten pounds and occasionally stand, walk, drive, and operate foot controls. Id.
Hill points out other limitations involving his use of his upper extremities that Davis assessed but the ALJ did not address. As for Hill's right upper extremity, Davis concluded that he could frequently reach and grasp, occasionally perform fine manipulations, but could not push or pull. And Hill could not perform work requiring tactile or feeling tasks. Davis also determined that Hill could not use his left upper extremity for pushing and pulling.
Hill argues that the ALJ erred in failing to explain why she declined to endorse these other limitations. He contends that the evidence supporting the RFC limitation for frequent handling, feeling, and fingering is unclear. And Hill asserts that these issues are critical given that most sedentary work generally requires the use of upper extremities.
But as the ALJ remarked, Davis's assessment lacked support in her own findings as well as the overall record. Hill displayed decreased sensation in his right upper extremity but retained normal strength. He required minimal treatment-only night splints-to treat his neuropathy. Nothing in her treatment record supported Davis's conclusion that Hill could not lift or carry ten pounds. And Davis's conclusions also conflicted with state agency reviewers' evaluations that determined there were no manipulative limitations and that Hill could lift in carry consistent with sedentary work.
And objective testing showed median neuropathy, which Hill treated with night splints. So the record did not fully support Hill's statements of symptoms. This evidence supports the ALJ's limitation for handling, feeling, and fingering.
In sum, this evidence confirms that Hill is not as limited as he claims or as Davis found in her assessment. The record confirms the ALJ's reasons for finding Davis's opinion unpersuasive.
Hill has identified only disagreement, not error, with the ALJ's consideration of the Davis's opinion. It is not the role of the reviewing court to weigh evidence or make findings in the face of conflicting evidence. See Johnson, 434 F.3d at 653 (reviewing court should not seek to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ). So the undersigned recommends that the court reject his argument on this issue as it lacks merit.
E. Impairment Severity
Hill makes a passing argument that the ALJ erred in identify his median neuropathy as mild at step two when testing revealed that he had moderate medial neuropathy. The Acting Commissioner contends, and the undersigned agrees, that any classification of the acuteness of this condition at this step of the sequential analysis is harmless.
As noted above, at the second step of the sequential evaluation process, the ALJ determines whether the claimant has an impairment or combination of impairments that is severe. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is considered “severe” if it significantly limits a claimant's ability to do work-related activities. 20 C.F.R. § 404.1522(a); SSR 96-3p, 1996 WL 374181, at *1. “[A]n impairment(s) that is ‘not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do physical or mental basic work activities.” SSR 96-3p, 1996 WL 374181, at *1 (citing SSR 85-28, 1985 WL 56856). Basic work activities include physical capacities as well as those for mental abilities.
A plaintiff bears the burden of proving severity at step two. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). This is done by showing a severe, medically determinable impairment that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. § 404.1509. The Act describes “a physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
“[A]n error at step two in failing to properly consider whether an impairment is severe may be harmless where the ALJ considers that impairment in subsequent steps.” Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009) (finding no reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the ALJ considered that impairment in later steps) (citations omitted); see also Shinseki v. Sanders, 556 U.S. 396, 407 (2009); Garner v. Astrue, 436 Fed.Appx. 224, 225, n* (4th Cir. 2011).
In considering the alleged error at step two, the court also considers the ALJ's explanation and discussion throughout the sequential analysis. The ALJ found that Hill had several severe impairments. Tr. at 35.
The ALJ found that Hill's median neuropathy was a severe impairment at step two. Tr. at 35. And under the Regulations, she considered this condition, along with his other medically-determinable impairments, at the later steps of the sequential evaluations. Tr. at 40, 42-48. See 20 C.F.R. § 404.1545(a)(2) (ALJ considers both severe and non-severe impairments when formulating the RFC). The ALJ's RFC determination incorporated some restriction to address Hill's median neuropathy by limiting his reaching, handling, feeling, and fingering. Tr. at 39. Hill has not shown that this condition warranted greater restrictions. And he has not established that the ALJ's characterization of his median neuropathy as mild, rather than moderate, at step two had any effect on the disability evaluation.
So even if there were an error in classifying the degree of his median neuropathy at step two, it is harmless, because the ALJ thoroughly considered all of Hill's conditions and addressed them throughout the decision. The undersigned thus finds that Hill's argument on this issue lacks merit.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Kijakazi's motion (D.E. 14), deny Hill's motion (D.E. 12), and affirm the Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (M&R) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.