Robert J. v. Frank Bisignano, Commissioner of Social Security

Opinion

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

ROBERT J., ) ) Plaintiff, ) v. ) 1:25CV997 ) FRANK BISIGNANO, ) Commissioner of Social Security, ) ) Defendant. )

ORDER AND MEMORANDUM OPINION OF UNITED STATES MAGISTRATE JUDGE

The plaintiff, Robert J. (“Robert”), has period of disability, and supplemental sought review of a final decision of the security income alleging a disability Commissioner of Social Security onset date of September 30, 2021. (Tr. denying his claim for disability 228-240.) The application was denied insurance benefits, a period of initially and upon reconsideration. disability, and supplemental security (Tr. 123-32, 141-48.) After a hearing, income.1 The Court has considered the ALJ determined on October 29, the certified administrative record 2024 that Robert was not disabled and dispositive briefs from each party. under the Act. (Tr. 29-80.) The Because substantial evidence Appeals Council denied a request for supports the determination of the review, making the ALJ’s decision the Administrative Law Judge (“ALJ”), final decision for the purposes of the Court will deny Robert’s request judicial review. (Tr. 1-7.) for the award of benefits or for a remand, as set forth below. II. STANDARD OF REVIEW I. PROCEDURAL HISTORY While Section 405(g) of Title 42 of the United States Code “authorizes In 2022, Robert filed an application judicial review of the Social Security for disability insurance benefits, a Commissioner’s denial of social

1 Transcript citations refer to the Undersigned to conduct all proceedings Administrative Transcript of Record filed in this case pursuant to 28 U.S.C. § manually with the Commissioner’s 636(c). See Docket Entry 13. Answer. See Docket Entry 5. By Order of Reference, this matter was referred to the security benefits,” see Hines v. Under this process, the Barnhart, 453 F.3d 559, 561 (4th Cir. Commissioner asks, in 2006), the scope of that review is sequence, whether the specific and narrow, see Smith v. claimant: (1) worked during the Schweiker, 795 F.2d 343, 345 (4th alleged period of disability; (2) Cir. 1986). Specifically, review is had a severe impairment; (3) limited to determining if there is had an impairment that met or substantial evidence in the record to equaled the requirements of a support the Commissioner’s decision. listed impairment; (4) could 42 U.S.C. § 405(g); Hunter v. return to her [or his] past Sullivan, 993 F.2d 31, 34 (4th Cir. relevant work; and (5) if not, 1992); Hays v. Sullivan, 907 F.2d could perform any other work 1453, 1456 (4th Cir. 1990). In in the national economy. reviewing for substantial evidence, the Court does not reweigh conflicting Id. at 472. A finding adverse to the evidence, make credibility claimant at any of several points in determinations, or substitute its this five-step sequence forecloses a judgment for that of the disability designation and ends the Commissioner. Craig v. Chater, 76 inquiry. Id. at 473. “Through the F.3d 585, 589 (4th Cir. 1996). Put fourth step, the burden of production simply: the issue before the Court is and proof is on the claimant. If the not whether Robert is disabled but claimant reaches step five, the burden whether the finding that he is not shifts to the Secretary to produce disabled is supported by substantial evidence that other jobs exist in the evidence and based upon a correct national economy that the claimant application of the relevant law. Id. can perform considering his age, education, and work experience.” III. THE ALJ’S DECISION Hunter, 993 F.2d at 35 (internal citations omitted). The ALJ followed the correct process, set forth in 20 C.F.R. §§ 404.1520, Here, the ALJ determined at step one 416.920, to determine disability. See that Robert had not engaged in Albright v. Comm’r of Soc. Sec. substantial gainful activity since the Admin., 174 F.3d 473, 475 n.2 (4th alleged onset date of September 30, Cir. 1999). 2021. (Tr. 31.) The ALJ next found the following severe impairment: “The Commissioner uses a five-step “Nocturnal Seizures.” (Tr. 32.) At step process to evaluate disability claims.” three, the ALJ found Robert did not Hancock v. Astrue, 667 F.3d 470, have an impairment or combination 472-73 (4th Cir. 2012) (citing 20 of impairments listed in, or medically C.F.R. §§ 416.920(a)(4), equal to one listed in, Appendix 1. (Tr. 404.1520(a)(4)). 34.) The ALJ next set forth Robert’s Residual Functional Capacity (“RFC”) and determined he could perform a full range of work at all exertional A. The ALJ’s Step Three levels with the following non- Determination. exertional limitations: “the claimant can never climb ladders, ropes, or As noted, Robert first objects that scaffolds. He can never work at “[t]he ALJ erred in failing to consider unprotected heights and never the overwhelming evidence operate a motor vehicle, and other establishing that [his] impairments seizure precautions as recommended satisfied § 11.02A of the Listing by the claimant’s treating physicians.” impairments or the medical (Tr. 35.) At the fourth step, the ALJ equivalence standard for disability.” determined that Robert was unable to Docket Entry 10 at 7. This objection perform his past relevant work. (Tr. has no merit. 44.) At step five, the ALJ concluded that there were other jobs that Robert More specifically, the listings are could perform. (Tr. 45-46.) examples of medical conditions that ordinarily prevent a person from any IV. DISCUSSION gainful activity. Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also 20 C.F.R. Robert first contends that “[t]he ALJ §§ 404.1525(a), 416.925(a). A erred in failing to consider the claimant’s severe impairment overwhelming evidence establishing generally “meets” a listing if it that [his] impairments satisfied § “satisfies all of the criteria of that 11.02A of the Listing impairments or listing, including any relevant criteria the medical equivalence standard for in the introduction, and meets the disability.” Docket Entry 10 at 7. That [one-year] duration requirement.” 20 is, Robert argues that his impairment C.F.R. §§ 404.1525(c)(3), met those of epilepsy or its equivalent, 416.925(c)(3); Zebley, 493 U.S. at 530 satisfying step three of the ALJ’s (“For a claimant to show that his analysis. impairment matches a listing, it must meet all of the specified medical Next, Robert contends that “[t]he ALJ criteria. An impairment that manifests erred in improperly evaluating [his] only some of those criteria, no matter statements about the intensity, how severely, does not qualify.”). An persistence, and limiting effects of his impairment or combination of symptoms based upon the ALJ’s impairments generally medically opinion of [his] credibility.” Id. at 13. equals a listing when it is at least equal Third, Robert contends that “[t]he in severity and duration to the criteria ALJ’s findings regarding [his] of any listed impairment. 20 C.F.R. §§ residual functional capacity 404.1526(a)-(b), 416.926(a)-(b); limitations were not supported by Zebley, 493 U.S. at 531 (“[T]o qualify substantial evidence.” Id. at 17. As set for benefits by showing that his forth below, these objections have no unlisted impairment, or combination merit. of impairments, is ‘equivalent’ to a listed impairment, he must present medical findings equal in severity to all the person to lose postural control) the criteria for the one most similar followed by a clonic phase (rapid cycles listed impairment.”). of muscle contraction and relaxation, also called convulsions).” Id. § An adult claimant whose severe 11.00H1a. The required number of medically determinable impairment(s) seizures must occur within the satisfies a listing is presumed disabled relevant period. Id. § 11.00H4. regardless of his or her vocational profile. 20 C.F.R. §§ 404.1525(c), In addition, Listing 11.00H4 indicates 416.925(c). Thus, proving “listing-level that (a) multiple seizures within a 24- severity” requires the claimant to hour period count as one seizure; (b) a demonstrate a greater degree of continuous series of seizures without physical or mental impairment than return to consciousness between the baseline statutory standard of seizures counts as one seizure; (c) a being unable to perform “substantial dyscognitive seizure that progresses gainful activity.” Zebley, 493 U.S. at into a tonic-clonic seizure counts as 532. A claimant who can satisfy a one seizure; (d) seizures occurring listing, however, “is entitled to a during a period of noncompliance with conclusive presumption that he [or prescribed treatment do not count she] is disabled.” Radford v. Colvin, without good reason for the 734 F.3d 288, 291 (4th Cir. 2013) noncompliance; and (e) psychogenic (citations omitted). Thus, the ALJ nonepileptic seizures or generally must identify the relevant pseudoseizures do not count for listed impairments and “compare[ ] Listing 11.02 and are instead each of the listed criteria” to the considered under Listing 12.00. Id. medical evidence in the claimant’s record. Cook v. Heckler, 783 F.2d B. The ALJ’s Step Three 1168, 1173 (4th Cir. 1986). Determination Was Legally Correct and Well-Supported. Listing 11.02A, the relevant listing here, requires evidence of epilepsy or Here, the ALJ found Robert’s an equivalent impairment with a nocturnal seizures severe, addressed detailed description of a typical seizure the evidence of record, and gave and evidence of generalized tonic- reasons why Listing 11.02A was not clonic seizures (see 11.00H1a), met or equaled. (Tr. 32, 34-44.) In so occurring at least once a month for at doing, the ALJ found that Robert failed least three consecutive months (see to establish that he had tonic-clonic 11.00H4) despite adherence to seizures that satisfied 11.02A’s prescribed treatment (see 11.00C). 20 requirements. (Tr. 34.) The ALJ C.F.R. Pt. 404, Subpt. P, App. 1, § applied the correct law, explained why 11.02A. Tonic-clonic seizures are Robert failed to meet the listing, and “seizures . . . characterized by loss of substantial evidence supports his consciousness accompanied by a tonic finding. phase (sudden muscle tensing causing 1. The ALJ considered the origin started taking Dilantin and had been and manifestation of the seizure free ever since. (Tr. 38, 678.) impairment. The ALJ also acknowledged the following notes Dr. Dawson made: Specifically, the ALJ discussed “Eyewitnesses are not available, but Robert’s testimony that he was beaten they tell him that he ‘makes noises,’ about the face around 2018, and that raises both arms, at times flexes both the beating caused his seizure arms. He has on occasion dislocated disorder. (Tr. 35, 63.) Robert his arms if the seizure occurs while he attributed a hand tremor, which he is prone. He has experienced tongue alleged prevented him from doing biting frequently and urinary yardwork, and his symptoms of incontinence at least once.” (Tr. 38, depression and memory loss and 678.) difficulty focusing, to the beating. (Tr. 69-70, 133, 316, 322.) Robert testified The ALJ discussed Robert’s complete that in 2021, he had a “very major physical exam in April 2021, around seizure” and continued to have five months before the September 30, “around two” or “two to three” seizures 2021 onset date. (Tr. 38.) He reported a month but sometimes, they occurred doing well with no major issues or in clusters of two in one week. (Tr. 67.) problems, and that he had taken He described aftereffects such as a zonisamide regularly since 2011 to severe headache, needing to sleep all prevent partial seizures. (Tr. 38, 607.) day, feeling like he had been hit by a The ALJ noted that in August 2021, truck when he woke up, joint Robert reported a breakthrough dislocations, and shaky legs. (Tr. 67- seizure during sleep. (Tr. 38, 695.) 69.) Robert testified that he had Robert endorsed being sore and experienced seizures at this severity lethargic for the following two days and frequency since September 2021. and unable to go to work and denied (Tr. 68.) biting his tongue or experiencing incontinence. (Tr. 38, 695.) The ALJ discussed the longitudinal medical record, going back to before At a neurology follow-up in March the relevant period (September 30, 2022, Robert said he had reduced his 2021 through October 29, 2024) began prescribed dose of zonisamide on his when Robert saw neurologist William own a few months earlier due to Dawson, M.D., in August 2016. (Tr. 38, excessive lethargy. (Tr. 39, 697.) He 678.) Robert reported being kicked in reported having approximately three the head at least ten times without seizures over the past three months, losing consciousness at age 18 (about the last one occurring about two weeks 1998) and that in 2007, he also earlier, all occurring in his sleep (Tr. sustained head trauma without loss of 39, 697.) Dr. Dawson recommended consciousness. (Tr. 38, 678.) After the trying another medication, tapering off 2007 incident, his seizures increased zonisamide, and returning in six to occurring monthly and in 2011, he months. (Tr. 39, 698.) The ALJ also discussed that on July 12, medical visits—at which, notably, 2022, Robert presented at the Robert did not report recent seizures emergency department complaining of or hand tremors. (Tr. 39-40.) For tailbone pain after falling out of bed example, Robert went to an orthopedic while sleeping on July 2, 2022. (Tr. 37, practice in May 2023 with complaints 612.) He did not recall a seizure and of hamstring pain after his left knee said he had a very hazy memory of “gave out” going up steps. (Tr. 40, falling out of bed and landing on his 774.) The ALJ noted that, as he had in buttocks. (Tr. 37, 612.) the past, Robert did not seek medical attention until about a week after the The ALJ considered that Robert saw injury, so there were no signs of Dr. Dawson in October 2022 and bruising and/or erythema. (Tr. 40.) reported being compliant with The ALJ discussed the normal levetiracetam and having ongoing findings. (Tr. 40, 775-76.) nocturnal seizures approximately twice per month. (Tr. 39, 703.) Dr. Robert did not exhibit knee pain on Dawson offered a referral to an exam and had normal motor function epilepsy clinic, increased the dose of of the bilateral lower extremities, with levetiracetam, and recommended no sign of lymphadenopathy of the left Robert keep track of his seizures on a knee, which was also negative for calendar and return in six months. (Tr. crepitus or varus/valgus instability. 39, 704.) (Tr. 40, 775.) Robert’s left hip showed no pain on range of motion, both knees 2. The ALJ noted that Robert did had normal patella track signs, and not complain of symptoms of Robert had 5/5 quad strength. (Tr. 40, the impairment during other 775.) Knee imaging revealed normal medical appointments in 2023 joint spaces, no soft tissue swelling, no and 2024. fractures, preserved patellofemoral joint spaces, and no patellofemoral As the ALJ pointed out, Robert did not malignment. (Tr. 40, 776.) Robert was return to the neurologist until May diagnosed with left hamstring strain 2024, but he saw primary care and left quadricep weakness. (Tr. 40, physician David Christopherson, M.D. 776.) during the nineteen-month interim. (Tr. 39, 772, 825.) In April 2023, The ALJ considered that about Robert complained to Dr. nineteen months had elapsed between Christopherson about left knee and when Dr. Dawson told Robert to track calf pain but did not mention hand his seizures for possible follow-up with tremors or seizures, recent or an epilepsy clinic and the time he otherwise. (Tr. 39, 40, 772, 825.) He returned in May 2024. (Tr. 39-40, 704, had a normal physical exam. (Tr. 39, 825.) Robert saw even more providers 772, 825.) during that gap. For example, the ALJ noted that Robert went to physical The ALJ discussed other interim therapy (“PT”) for his hamstring strain and had an eye exam. (Tr. 40, 779-99, imaging in June 2024 and Dr. 820-21, 825.) At PT on June 29, 2023, Dawson’s normal findings the Robert reported having a seizure about following month. (Tr. 41, 828-29, 857.) a week before (Tr. 796); otherwise, he In July 2024, Robert reported the did not mention seizures during this frequency of his nocturnal seizures gap in seeing Dr. Dawson. remained the same, about two a month. (Tr. 41, 825, 857.) He also The ALJ also discussed Robert’s claimed to have two to four “major August 2023 visit with his primary seizures” annually. (Tr. 41, 857.) care physician for right flank pain that Robert said he had a “severe seizure” had persisted for five days. (Tr. 40, about three weeks earlier, which 801.) Robert made no mention of resulted in a weeklong absence from continued seizures or tremors and had work. (Tr. 41, 857.) But the ALJ noted a normal physical exam. (Tr. 40, 801.) that Robert did not go to the Although Robert saw other providers emergency room at the time of, or even during the nineteen-month gap during shortly after, the reported seizures. which he did not return to Dr. Dawson, (Tr. 40.) Robert claimed all of his he told Dr. Dawson that a lapse in seizures, major and minor, occurred at insurance coverage had prevented him night during sleep, and he often woke from returning until May 14, 2024. up feeling tired with bite marks on the (Tr. 40, 825.) Robert endorsed having inside of his cheek, which led him to nocturnal seizures about twice a believe he may have had a seizure. (Tr. month despite reported compliance 41, 857.) He also experienced with medication. (Tr. 825.) He said bedwetting once or twice a year and some seizures caused muscle soreness said he was compliant with in the legs and excessive sedation that medication. (Tr. 41, 857.) Robert affected his ability to work. (Tr. 825.) reported managing his hand tremors Robert reported falling out of bed “last with “mild yoga.” (Tr. 857.) Dr. summer” and resulting back pain. (Tr. Dawson found Robert had normal 825.) Robert also endorsed hand attention, memory, and heel-to-toe tremors over the past year. (Tr. 825.) walking, and referred him to an On exam, Robert had normal epilepsy specialist. (Tr. 41, 859.) As the attention, memory, and gait. (Tr. 826.) ALJ noted, Robert again declined Robert said he would track his seizures medication to address the hand on a calendar, Dr. Dawson adjusted tremors. (Tr. 41, 859.) See Dunn v. Robert’s medications and Colvin, 607 F. App’x 264, 275 (4th Cir. recommended a referral to an epilepsy 2015) (unpublished) (“[W]hen a clinic, and Robert declined medication claimant complains that her alleged for his hand tremors. (Tr. 41, 826.) disability is so bad that she is unable to work,” and the ALJ finds her treatment 3. The ALJ noted that Robert’s was not as aggressive as one would impairment manifested at night. reasonably think given the allegations, then it is reasonable for the ALJ to find The ALJ also discussed normal brain that bears on the claimant’s Robert’s alleged onset date was credibility.). September 30, 2021. (Tr. 228-29.) Regarding 11.02A’s requirement that 4. The ALJ detailed the support for the seizures must occur at least once a his finding that Robert’s month for at least three consecutive impairment was not as or more months, the ALJ considered Robert’s severe than epilepsy and similar reporting. He made the following seizure-based ailments. reports: (1) he testified to having two to three seizures a month, some that Here, the ALJ set forth ample support occurred in clusters of two in one week for his Listing 11.02A finding. As an (Tr. 67, 68); (2) in March 2022, he initial matter, there was no detailed reported having approximately three description of Robert’s typical seizure seizures over the past three months, because his seizures occurred during the last one occurring about two weeks sleep with no eyewitnesses, and he did earlier, but this was when Robert was not seek medical attention for any noncompliant with the prescribed resulting injuries such as dislocating dosage (Tr. 39, 697); (3) in October his shoulder or from biting his tongue 2022, he reported approximately two or cheek. See 20 C.F.R. Pt. 404, Subpt. seizures per month (Tr. 39, 703); (4) P, App. 1, § 11.02 (listing introduction on June 29, 2023, Robert reported stating that the condition must be having a seizure about a week earlier “documented by a detailed description (Tr. 796); and (5) in May and July of a typical seizure”). 2024, he endorsed ongoing nocturnal seizures about twice a month (Tr. 40- Regarding 11.02A’s requirement that 41, 825, 857.) However, as indicated the seizures must occur at least once a above and detailed in Part C below in month for at least three consecutive response to Robert’s second argument, months “despite adherence to the ALJ properly found Robert’s prescribed treatment,” in March 2022, subjective allegations at odds with Robert acknowledged that he reduced other evidence. (Tr. 35; see also Part C his prescribed dose of zonisamide on below.) his own a few months earlier due to excessive lethargy. (Tr. 39, 697.) The ALJ set forth additional support Therefore, for several months at least, for his Listing 11.02A finding. First, in Robert did not adhere to prescribed October 2022 and August 2024, Dr. treatment. Dawson opined Robert’s nocturnal seizures are “characterized by loss of As demonstrated above, the ALJ also consciousness accompanied by a tonic pointed to Robert’s nineteen-month phase (sudden muscle tensing causing gap between neurology visits. (Tr. 39- the person to lose postural control) 40, 704, 825.) This gap in treatment followed by a clonic phase (rapid cycles also supported the ALJ’s Listing of muscle contraction and relaxation, 11.02A analysis. also called convulsions).” (Tr. 707, 714, 835, 846.) 20 C.F.R. Pt. 404, Subpt. P, Robert objects, asserting that seizure App. 1, § 11.00H1a. Yet, as the ALJ activity is not always visible with pointed out (and Dr. Dawson medical imaging, Docket Entry 10 at acknowledged), there were no 10. The ALJ did not, however, make his eyewitnesses. (Tr. 36, 42, 43, 568, 579, listing finding based solely on normal 678.) brain imaging. He gave multiple reasons supported by substantial Second, the ALJ also noted that the evidence (that this Court has set forth evidence did not show Robert sought above and below) for finding Robert medical attention for the head traumas failed to meet Listing 11.02A. that supposedly touched off the seizures. (Tr. 42.) Third, the ALJ Dr. Dawson also opined that Robert pointed out that Dr. Dawson’s opinion, had a marked limitation in physical including its reference to supposed functioning, and in October 2022, that frequency of Robert’s nocturnal Robert would miss more than three seizures, relied entirely on Robert’s days of work a month due to related subjective reporting, which the ALJ symptoms, and in August 2024, that found inconsistent with the evidence. Robert’s absences would occur one to (Tr. 35-36, 42; see also Part C below.) two times a month. (Tr. 707, 835.) Robert does not argue that he met Fourth, the ALJ also considered that Listing 11.02D, but the ALJ also there were no records showing rejected the opinion that he had a medically determinable signs of the marked limitation in physical seizures on post-seizure presentation, functioning. (Tr. 43, 707, 835.) 20 20 C.F.R. Pt. 404, Subpt. P, App. 1, § C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00H1a (defining “tonic-clonic 11.02D (requiring a marked limitation seizures” as being accompanied by a in at least one area, including physical tonic phase followed by a clonic functioning). The ALJ explained that phase—i.e., convulsions), on which the Dr. Dawson’s opinion lacked support diagnosis of nocturnal seizures was because the medical evidence showed based (Tr. 42-43.) And when he Robert, only 41 years old on his alleged rejected Dr. Dawson’s opinion that onset date, repeatedly had normal Robert met Listing 11.02A, the ALJ coordination, gait, and explained that testing did not support musculoskeletal exams. (Tr. 43.) signs of epilepsy, nocturnal, or other Based on the foregoing, the ALJ found seizure disorders; rather, Robert’s Dr. Dawson’s opinions not persuasive. brain imaging was normal. (Tr. 43.) All (Tr. 43.) Despite Robert’s objection to these reasons support the ALJ’s the contrary, the ALJ’s evaluation decision that Listing 11.02A was not comports with 20 C.F.R. §§ 404.1520c met. and 416.920c and was supported by substantial evidence. 5. Robert’s objections to the ALJ’s Step Three analysis fail. Robert faults the ALJ for pointing out that he did not present at the hospital near the times he reported having inconsistent with the substantial seizures, even major ones, because evidence, the ALJ may reasonably Listing 11.02 does not require that. reject the opinion. See, e.g., Craig, 76 Docket Entry 10 at 10-11. Citing out of F.3d at 590 n.2 (“There is nothing district and unpublished caselaw, objective about a doctor saying, Robert also faults the ALJ for noting without more, ‘I observed my patient that there were no eyewitnesses to the telling me she was in pain.’”); Laquita seizures because the listing does not M. R. v. Bisignano, No. 1:24CV604, require such a showing. Id. at 11-12 2025 WL 2689043, at *12 (M.D.N.C. (citing Dodd v. Kijakazi, No. 4:22-CV Sept. 19, 2025) (finding ALJ did not err 00005-RN, at *18-19 (E.D.N.C. Jan. 5, in discounting an opinion in part 2023)).2 However, the Listing 11.02 because it over-relied on claimant’s introduction requires evidence of subjective complaints) (collecting epilepsy or an equivalent impairment cases); Lockard v. Berryhill, No. with a detailed description of a typical 1:17CV358, 2018 WL 4565992, at *4 seizure. 20 C.F.R. Pt. 404, Subpt. P, (M.D.N.C. June 8, 2018) (upholding App. 1, § 11.02. In addition, Robert’s giving an opinion little weight, in part, arguments misapprehend how the ALJ because it was based heavily on assesses a claimant’s RFC and subjective complaints). evaluates a claimant’s subjective allegations—in other words, how the Robert makes conclusory references to ALJ makes a disability determination. the ALJ finding several of his The ALJ considers all relevant impairments non-severe and the evidence, including treatment sought, combined effect of his impairments. in making a disability determination. See Docket Entry 10 at 12. This is See 20 C.F.R. §§ 404.1529, insufficient to raise a claim on appeal. 404.1545(a)(3), 416.929, and See Grayson O Co. v. Agadir Int’l LLC, 416.945(a)(3). 856 F.3d 307, 316 (4th Cir. 2017) (a party forfeits an argument “by failing Additionally, Fourth Circuit precedent to develop [its] argument—even if [its] recognizes that when an ALJ finds a brief takes a passing shot at the issue”) claimant’s treatment was not (cleaned up). As the Fourth Circuit has aggressive commensurate with his explained, courts “are not like pigs, allegations, then the ALJ may hunting for truffles buried in briefs.” reasonably find that this bears on the Hensley on behalf of N.C. v. Price, 876 claimant’s reporting. See Dunn, 607 F. F.3d 573, 581 n.5 (4th Cir. 2017). It is App’x at 275. Relevant precedent also not the job of the Court to wade notes that when a medical opinion is through the record and develop based on subjective reporting Robert’s arguments for him, and these

2 Assuming arguendo that Dr. Dawson’s would still fail to meet Listing 11.02A for notes (Tr. 678) were sufficient to meet all of the additional reasons set forth the threshold requirement of a detailed herein. description of Robert’s seizures, Robert objections have been forfeited. findings.”). For all these reasons, the Court overrules Robert’s first objection And even assuming arguendo that because substantial evidence supports these conclusory and undeveloped the ALJ’s finding that his nocturnal objections were before the Court, they seizures did not meet or equal Listing would fail. There is no material error in 11.02A. the ALJ’s assessment of Robert’s non- severe impairments, including C. The ALJ’s Subjective Complaints limitations related to mental health. As Determination. the ALJ explained, Robert did not seek mental health treatment, performed Next, Robert contends that “[t]he ALJ extensive activities of daily living, had erred in improperly evaluating [his] generally normal mental status statements about the intensity, reports, and appeared to be engaging persistence, and limiting effects of his in symptom magnification. (Tr. 32-33, symptoms based upon the ALJ’s 35-36, 43.) See Anthony v. Kijakazi, opinion of [his] credibility.” Docket No. 1:22CV562, 2023 WL 4353939, at Entry 10 at 13. This objection is also *7 n.5 (M.D.N.C. May 16, 2023) (“It is unpersuasive. well-established that non-severe impairments do not require “An ALJ assesses the credibility of a limitations in the RFC, if (as is the case claimant’s subjective statements here for the reasons set forth in this about his condition as part of the RFC Recommendation) there is substantial assessment,” Ladda v. Berryhill, 749 evidence and an adequate explanation F. App’x 166, 170 (4th Cir. 2018) warranting their omission.”). (unpublished), using a two-part test: “First, there must be objective The ALJ also specifically stated that he medical evidence showing ‘the considered Robert’s combination of existence of a medical impairment(s) impairments and whether they met or which results from anatomical, equaled Listing 11.02. (Tr. 34.) Robert physiological, or psychological has failed to point to anything abnormalities and which could suggesting otherwise and, in fact, the reasonably be expected to produce the ALJ’s decision here was remarkably pain or other symptoms alleged,’” thorough and particularized in Craig, 76 F.3d at 594 (citing 20 C.F.R. assessing Robert’s impairments, §§ 416.929(b), 404.1529(b)). separately and combined. See Prickett v. Comm’r of Soc. Sec. Admin., No. CV If such an impairment exists, the ALJ 9:22-00297-MHC, 2023 WL must then consider, as the second 10410423, at *4 (D.S.C. Mar. 29, 2023) prong of the test, all available (“[B]ased on a reading of the decision evidence, including the claimant’s as a whole, it is clear that the ALJ statements about pain, to determine sufficiently considered Plaintiff’s whether the claimant is disabled. Id. impairments in combination and at 595-96. In so doing, the ALJ need made sufficiently particularized not credit them if they conflict with the objective medical evidence or if due to pain or other the underlying impairment could not symptoms. reasonably be expected to cause the symptoms alleged. Id. Where the ALJ 20 C.F.R. §§ 404.1529(c)(3), has considered the relevant factors, 416.929(c)(3). see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3), heard the claimant’s 1. The ALJ’s subjective complaints testimony, and observed their analysis is legally correct and well- demeanor, the Court will defer to the supported. ALJ’s determination regarding subjective complaints. Shively v. Here, the ALJ completed the two-step Heckler, 739 F.2d 987, 989 (4th Cir. Craig analysis. First, for step one, the 1984). ALJ stated that he had carefully considered the evidence and found Those relevant factors include: that Robert’s “medically determinable impairments could reasonably be (i) [Plaintiff’s] daily activities; expected to cause the alleged (ii) The location, duration, symptoms.” (Tr. 36.) Second, at step frequency, and intensity of two of the Craig analysis, the ALJ [plaintiff’s] pain or other decided that Robert’s “statements symptoms; concerning the intensity, persistence (iii) Precipitating and and limiting effects of these aggravating factors; symptoms are not entirely consistent (iv) The type, dosage, with the medical evidence and other effectiveness, and side effects evidence in the record for the reasons of any medication [plaintiff] explained in this decision.” (Tr. 36.) take[s] or [has] taken to alleviate his pain or other The ALJ then provided a number of symptoms; reasons for partially discounting (v) Treatment, other than Robert’s subjective complaints. For medication, [plaintiff] example, the ALJ contrasted Robert’s receive[s] or [has] received claims of memory problems with for relief of his pain or other findings of normal memory. (Tr. 33, symptoms; 35, 39, 41; see, e.g., Tr. 324, 328, 568, (vi) Any measures [plaintiff] 580, 597, 622, 637, 654, 680, 683, use[s] or [has] used to relieve 859.) He also discussed Robert’s his pain or other symptoms allegations of musculoskeletal (e.g., lying flat on [her] back, problems, such as shoulder problems standing for 15 to 20 minutes and overall problems with reaching, every hour, sleeping on a lifting, walking, and sitting (Tr. 36, board, etc.); and 64, 328, 410, 435, 697, 866), and (vii) Other factors concerning noted the evidence that Robert had [plaintiff’s] functional mostly normal physical findings, (Tr. limitations and restrictions 36-37, 39, 40; see Tr. 534, 565, 578, 614, 620, 648, 680, 683, 696, 739, between Robert’s report that he fell 775). See 20 C.F.R. §§ 404.1529(c)(2), out of bed the summer of 2023, 416.929(c)(2) (ALJ considers suggesting the fall was a result of a objective evidence in evaluating seizure, and treatment notes stating symptoms). that he fell going up steps, not due to seizure activity. (Tr. 40, 774, 825.)3 As referenced above, the ALJ also considered that Additionally, the ALJ pointed to evidence that Robert was magnifying (1) a nineteen-month gap his symptoms given the activities of elapsed between Robert’s daily living he performed while at the neurology visits (Tr. 39-40, same time “endorsing every possible 704, 825); physical and mental limitation.” (Tr. (2) Robert saw other providers 43 (Robert “was working part-time during that gap and did not cleaning at a grocer[y] store; and had routinely complain about reported signs on a 2022 function seizures or tremors (Tr. 39- report of parenting his children, 40, 779-99, 801, 820-21); cooking, engaging in household tasks, (3) Robert declined medication driving, going places alone, shopping for his tremors even though in stores working puzzles, texting and he claimed they prevented using video chat, going to church”), him from doing a range of 322-28.) This evidence undermines activities (Tr. 41, 69, 857, Robert’s claims. See 20 C.F.R. §§ 859, 826); 404.1529(c), 416.929(c) (in (4) Robert consistently failed to evaluating symptoms ALJ considers seek medical attention near opinions, treatment sought, the times of his seizures, frequency of symptoms, and including “major” or inconsistencies between claimant’s “severe” ones, that allegedly statements and other evidence). caused injuries or other accidents that he alleged The ALJ balanced the evidence and caused injuries, so there was explained why Robert’s complaints often no supporting medical were not borne out. His insistence documentation (Tr. 40, 41, that the ALJ should have balanced the 42, 774, 796, 857); and evidence differently, see Docket Entry (5) Dr. Dawson told Robert to 10 at 13-17, does not meaningfully track his seizures, and undermine the ALJ’s subjective Robert said he would but did complaints assessment. Robert not (Tr. 39, 41, 704, 826). essentially asks the Court to reweigh the evidence in his favor, which it The ALJ also noted the inconsistency cannot do, see Craig, 76 F.3d at 589.

3 A year earlier in July 2022, Robert his tailbone. (Tr. 612.) reported falling out of bed and injuring For all these reasons, this objection impairments).” Hall v. Harris, 658 fails. F.2d 260, 265 (4th Cir. 1981). D. The RFC Determination. “Social Security Ruling 96-8p explains that the RFC ‘assessment Robert next challenges the ALJ’s RFC must include a narrative discussion determination by contending that describing how the evidence supports “[t]he ALJ’s findings regarding [his each conclusion, citing specific RFC] limitations were not supported medical facts (e.g., laboratory by substantial evidence.” Docket findings) and nonmedical evidence Entry 10 at 17. More specifically, (e.g., daily activities, observations).’” Robert contends that “this RFC fails Monroe v. Colvin, 826 F.3d 176, 189 to consider [his] likelihood of (4th Cir. 2016) (internal quotations absenteeism or tardiness, as is omitted). An ALJ need not discuss required by SSR 96-8p.” Id. at 18. He every piece of evidence in making an further contends that “this RFC failed RFC determination. See Reid v. to consider [Robert’s] well- Comm’r of Soc. Sec., 769 F.3d 861, established exertional limitations.” 865 (4th Cir. 2014). Yet, the ALJ Id. As explained in greater detail “must build an accurate and logical below, these objections have no merit. bridge from the evidence to [the] conclusion.” Brown v. Commissioner, The RFC measures the most a 873 F.3d 251, 269 (4th Cir. 2017). claimant can do in a work setting “The RFC assessment must first despite the physical and mental identify the individual’s functional limitations of his or her impairments limitations or restrictions and assess and any related symptoms (e.g., pain). his or her work-related abilities on a See 20 C.F.R. §§ 404.1545, 416.945; function-by-function basis . . . . Only see also Dunn, 607 F. App’x at 272 [then] may RFC be expressed in terms (claimant’s RFC is “[a] medical of the exertional levels of work, assessment of what an individual can sedentary, light, medium, heavy, and do in a work setting in spite of the very heavy.” SSR 96-8p, 1996 WL functional limitations and 374184, at *1. environmental restrictions imposed by all of his or her medically The Fourth Circuit has held that determinable impairment(s)”) “meaningful review is frustrated when (internal citation omitted); Hines v. an ALJ goes straight from listing Barnhart, 453 F.3d 559, 562 (4th Cir. evidence to stating a conclusion.” 2006). The RFC includes both a Thomas v. Berryhill, 916 F.3d 307, “physical exertional or strength 311 (4th Cir. 2019) (explaining that “a limitation” that assesses the proper RFC analysis has three claimant’s “ability to do sedentary, components: (1) evidence, (2) logical light, medium, heavy, or very heavy explanation, and (3) conclusion”). As work,” as well as “nonexertional noted earlier, the ALJ “must both limitations (mental, sensory, or skin identify evidence that supports his conclusion and ‘build an accurate and his seizures, supporting the ALJ’s logical bridge from [that] evidence to conclusion that Robert’s seizures his conclusion.’” Woods v. Berryhill, were not as frequent as he alleged. 888 F.3d 686, 694 (4th Cir. 2018) Robert has failed to prove he required (alteration in original) (quoting absenteeism or tardiness limitations Monroe, 826 F.3d at 189). An ALJ’s in the RFC. Therefore, he cannot failure to do so constitutes reversible establish any error in the ALJ not error. See Lewis v. Berryhill, 858 F.3d including them in the RFC.4 858, 868 (4th Cir. 2017). Where an ALJ’s “analysis is incomplete and Next, Robert unpersuasively contends precludes meaningful review,” that “this RFC failed to consider his remand is appropriate. Monroe, 826 well-established exertional F.3d at 191. limitations.” Docket Entry 10 at 18. 1. The RFC is legally correct and Here, the ALJ found Robert, who was substantial evidence supports 41 years of age on his onset date, could it. perform work at all exertional levels because he had mostly normal Robert contends that “this RFC fails physical findings with minimal to consider [his] likelihood of treatment. (Tr. 45, 36-41.) Substantial absenteeism or tardiness, as is evidence supports that finding. (Tr. required by SSR 96-8p.” Docket Entry 36-37, 39, 546-57 (10/20/17), 732 10 at 18. However, the ALJ explained (6/1/2018), 412 (10/5/18), 417 why the record did not support (2/11/19, “Normal range of motion, Robert’s claims about his seizures and Normal strength, No tenderness, No other impairments. (Tr. 35-44.) That swelling, No deformity, Normal explanation (which includes the ALJ’s gait.”), 648 (4/9/21, “Normal range of subjective complaints analysis) is motion. Normal strength.”), 534 supported by substantial evidence as (7/13/21), 704 (10/5/2022), 756 discussed above. This evidence also (3/28/2022, “Normal range of includes (but is not limited to) motion, normal strength, no Robert’s long stretches without seeing deformity, normal gait”), 758 a neurologist combined with not (3/28/2022, “Normal range of seeking medical help near the time of motion, normal strength, no

4 In making this objection, Robert relies 10 at 20 citing Tr. 815 and 102. However, on Dr. Dawson’s opinions. Docket Entry the ALJ discounted these opinions, (Tr. 10 at 20 (citing Tr. 707, 835). As 43), and Robert does not challenge the explained above, the ALJ gave good ALJ’s decision to find them unpersuasive reasons for discounting those opinions. in whole or in part. Robert’s objection is Robert also relies on the opinion of the a request for the Court to reweigh the state agency psychological consultant evidence, which it will not do. and a non-examining state agency psychological consultant. Docket Entry deformity, normal gait”), 772 1/3 to 2/3 of the time”); Linen Grader, (4/18/2023, “Normal range of 361.687-022, 1991 WL 672993 motion, Normal strength, tender left (same); Marker, 209.587-034, 1991 calf No swelling, No deformity.”), 801 WL 671802 (same); (see also Tr. 86, (8/9/23, “Normal range of motion, 104.) Normal strength, No tenderness, No swelling, No deformity.”), 826 Robert’s RFC arguments to the (5/14/24), 831 (6/25/2024, “Normal contrary amount to an invitation for range of motion, Normal strength, No the Court to reweigh the evidence. tenderness, No swelling, No Docket Entry 10 at 21-23. But where, deformity.”), 867 (9/4/2024, as here, the ALJ adequately explains “Normal range of motion, Normal the RFC finding, and that finding is strength, No tenderness, No swelling, supported by substantial evidence, No deformity.”); Tr. 43, 322-28 the Court will affirm. (extensive daily activities and evidence of symptom magnification).) E. The ALJ’s Step Five Determination. Beyond this, even though the ALJ Last, Robert contends that “[t]he concluded that Robert could perform ALJ’s Hypothetical to the Vocational a full range of work at all exertional Expert did not Include All Relevant levels, he identified three positions at Limitations.” Docket Entry 10 at 18. the light exertional level that Robert As explained below, this objection is could perform. (Tr. 45-46.) Thus, unpersuasive.5 even if Robert were limited to only In questioning a vocational expert light work, there are jobs in the (“VE”) in a Social Security disability national economy he could perform. hearing, an ALJ must propound See 20 C.F.R. §§ 404.1567(b), hypothetical questions that account 416.967(b) (“Light work involves for all of the claimant’s limitations. lifting no more than 20 pounds at a Walker v. Bowen, 889 F.2d 47, 50-51 time with frequent lifting or carrying (4th Cir. 1989). The claimant bears of objects weighing up to 10 the initial burden of proving the pounds.”). Moreover, none of these existence of a disability. 42 U.S.C. § jobs require more than frequent 423(d)(5); 20 C.F.R. §§ 404.1512, reaching, further undermining 416.912; Smith v. Califano, 592 F.2d Robert’s objection that his purported 1235, 1236 (4th Cir. 1979). Once the exertional limitations have not been claimant has established at step four accounted for. See Inspector, that she cannot do any work she has 727.687-062, 1991 WL 679674 done in the past because of her severe (“Reaching: Frequently - Exists from

5 Although Robert couches this objection finding. The Court has consequently as the first of his challenges to the ALJ’s addressed this objection last to track the RFC determination, Docket Entry 10 at sequential evaluation process. 18, it implicates the ALJ’s step five impairments, the burden shifts to the assume that this individual is Commissioner at step five to show limited to the following . . . non that jobs exist in significant numbers exertional limitations only. in the national economy which the This individual shall never claimant could perform consistent climb ladders, ropes or with her RFC, age, education and past scaffolds. Shall not work at work experience. Hunter, 993 F.2d at unprotected heights. Shall not 35; Wilson v. Califano, 617 F.2d 1050, operate a motor vehicle for 1053 (4th Cir. 1980). An ALJ may, and work. frequently does, rely on the testimony of a VE in satisfying this burden. See (Tr. 76.) The VE explained that an 20 C.F.R. §§ 404.1566(e), 416.966(e); individual so limited could work as an Hammond v. Apfel, 5 F. App’x 101, inspector, a linen grader, and a 105 (4th Cir. 2001) (unpublished). In marker. (Tr. 77.) order for a VE’s opinion to be relevant, it must be in response to a The ALJ later adopted the following proper hypothetical question that RFC: fairly sets out all of the claimant’s After careful consideration of impairments. Walker, 889 F.2d at the entire record, the 50–51; see also Mickles v. Shalala, 29 undersigned finds that the F.3d 918, 929 n.7 (4th Cir. 1994) claimant has the residual (concluding that the hypothetical functional capacity to perform presented to the VE need only include a full range of work at all the impairments and limitations that exertional levels but with the the ALJ finds credible); Fisher v. following nonexertional Barnhart, 181 F. App’x 359, 365 (4th limitations: the claimant can Cir. 2006) (unpublished) never climb ladders, ropes, or (hypothetical question is scaffolds. He can never work at unimpeachable if it reflects an RFC unprotected heights and never for which the ALJ had sufficient operate a motor vehicle, and evidence). other seizure precautions as Here, Robert asserts that a remand is recommended by the in order because of a variance in the claimant’s treating physicians. hypothetical question the ALJ posed (Tr. 34-35 (emphasis added).) The to the VE and the RFC he ultimately ALJ also found that an individual so adopted. Docket Entry 10 at 18-19. limited could work as an inspector, a More specifically, the ALJ asked the linen grader, and a marker. (Tr. 45- VE to 46.) Assume a hypothetical Robert points to the emphasized individual of the Claimant’s age language above (“other seizure and education and with the past precautions as recommended by the work described. Further claimant’s treating physicians”) and is because there are no specific asserts that seizure precautions in the record endorsed by any of Robert’s treating It is unclear what the ALJ physicians. Despite that, the ALJ meant by “other seizure included both motor vehicle and precautions as recommended height restrictions in his hypothetical by claimant’s treating to the VE and in the RFC. physicians,” as Plaintiff’s Consequently, there were no “other treating physician has seizure precautions as recommended” repeatedly endorsed the by Robert’s “treating physicians” to be opinion that Plaintiff is unable incorporated into the RFC. to work due to his seizure disorder and related injuries. Beyond this, in limiting Robert’s (R. 707; 835). This alone should exposure to heights and driving (Tr. require reversal or remand, as 35), the ALJ essentially adopted the the ALJ’s RFC was clearly seizure-related limitations prescribed unsupported by the evidence, by the non-examining state agency and there is no evidence that consultant, who on reconsideration the occupations listed would be noted that Robert had “some available considering the “other nocturnal episodes” of seizures that seizure precautions” the ALJ were “relatively well controlled” and envisioned. (R. 31-80). then limited Robert’s exposure to environmental hazards such as Docket Entry 10 at 19. heights and machinery. (Tr. 115-16.) The jobs the VE and the ALJ It is true that an ALJ generally cannot identified involve neither heights nor rely on a VE’s testimony in response moving machinery. (See Tr. 76-77); to an incomplete hypothetical—i.e., a see also Inspector, 727.687-062, 1991 hypothetical that omits functional WL 679674 (“Moving Mech. Parts: limitations that are assessed in the Not Present - Activity or condition RFC. See Walker, 889 F.2d at 50-51. does not exist”); Linen Grader, Here, however, Robert has not 361.687-022, 1991 WL 672993 identified any specific limitation that (same); Marker, 209.587-034, 1991 was omitted from the hypothetical. At WL 671802 (same). Nor, for that most, Robert has identified language matter, do they appear to expose the employed by the ALJ in the RFC that worker to any other kind of did not set forth a functional environmental hazard. See id. Thus, limitation. the ALJ presented the only seizure precautions found in the medical In other words, there is no prejudicial record to the VE (which were error in the ALJ’s omission of “other ultimately adopted in the RFC). There seizure precautions as recommended is no material error here. See by the claimant’s treating physicians” Sparkman v. Kijakazi, No. CV 7:20- from his hypothetical to the VE. This 155-KKC, 2022 WL 2110321, at *4 work due to his seizure disorder and (E.D. Ky. June 10, 2022) (“Because related injuries.” Docket Entry 10 at inclusion of the limitations 19 (citing Tr. 707 (Dr. Dawson’s mentioned by [claimant] would not 10/17/22 check box opinion); 835 have affected the selection of at least (Dr. Dawson’s 8/6/24 check box the ‘routing clerk’ and ‘price marker’ opinion)). Thus, Robert appears to be jobs by the vocational expert, any arguing that these opinions are the error on the part of the ALJ was “other seizure precautions” endorsed harmless, and the decision must be by his treating physician that the ALJ affirmed.”). incorporated by reference into the RFC, but which were omitted from the For all these reasons, the omission of hypothetical to the VE. This, Robert the language Robert focuses on from suggests, undercuts the ALJ’s step the ALJ’s hypothetical to the VE had five finding. no impact on the outcome of this proceeding. See Tanner v. Comm’r of But this is not so. Robert does not Soc. Sec., 602 F. App’x 95, 101 (4th explain how being “unable to work” is Cir. 2015) (unpublished) (noting that a specific functional limitation. After “the ALJ posed hypotheticals to the all, statements that a claimant is VE that set out all of [the claimant’s] unable to work are inherently neither credible limitations”) (emphasis valuable nor persuasive. See 20 C.F.R. added); see also Reece v. Colvin, No. §§ 404.1520b(c), 416.920b(c). The 7:14-CV-428, 2016 WL 658999, at *2 ALJ cannot have erred by failing to (W.D. Va. Jan. 25, 2016) (finding include such a limitation in his “that the ALJ did pose proper hypothetical to the VE. Second, even hypothetical questions to the setting this reason entirely aside, the vocational expert that accounted for ALJ specially addressed these two all of [the claimant’s] credibly opinions and found them established limitations”); Kyle G. v. unpersuasive. (Tr. 42-43.) The ALJ Comm’r of Soc. Sec., No. C20-5099- had no obligation to present this BAT, 2020 WL 4463221, at *3 (W.D. purported functional limitation to the Wash. Aug. 4, 2020) (finding no VE where the ALJ found it lacked material error where “Dr. Zendler did credibility. (Tr. 42-43.) For all of these not indicate that any workplace reasons, Robert’s objections are seizure precautions were required, without merit. other than not driving, and the ALJ included this limitation in the RFC V. CONCLUSION and VE hypothetical”). After careful consideration of the Robert’s argument to the contrary is evidence of record, the Court finds unpersuasive. He points to two that the Commissioner’s decision is medical opinions from a treating legally correct, supported by physician (Dr. Dawson, discussed in substantial evidence, and susceptible detail above) that he “is unable to to judicial review. Accordingly, IT IS HEREBY ORDERED that the final decision of the Commissioner is upheld.

J ot cFadden United States Magistrate Judge August 19, 2026