concluding that the ALJ’s rejection of the treating physician’s “four-hour [work] day restriction” was “wrong” because “medical opinions on how much work a claimant can do are not only allowed, but encouraged”
How later courts described this case
- concluding that the ALJ’s rejection of the treating physician’s “four-hour [work] day restriction” was “wrong” because “medical opinions on how much work a claimant can do are not only allowed, but encouraged”
- “[I]n determining whether an individual’s impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant’s impairments.”
- holding that the “ALJ improperly refused to credit [the treating physician’s] medical opinion that his long term patient . . . was totally disabled”
- explaining that ALJ’s may not disregard opinions regarding a claimant’s ability to work when offered by a treating physician
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:20-CV-11-RJ
FELICIA GRADY LEE,
Plaintiff/Claimant,
ORDER
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
This matter is before the court on the parties’ cross-motions for judgment on the pleadings
[DE-25, -32] pursuant to Fed. R. Civ. P. 12(c). Claimant Felicia Grady Lee (“Claimant”) filed this
action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her
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, Claimant’s Motion for Judgment on the
Pleadings is allowed, Defendant’s Motion for Judgment on the Pleadings is denied, and this matter
is remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability, DIB, and SSI on July 9,
2010, alleging disability beginning May 23, 2010. (R. 227-36). Both claims were denied initially
and upon reconsideration. (R. 80-117). A hearing before Administrative Law Judge (“ALJ”)
Edward Morriss was held on June 6, 2013, at which Claimant, represented by counsel, appeared
and testified. (R. 47-79). On June 26, 2013, the ALJ issued a decision denying Claimant’s request
for benefits. (R. 31-46). On September 11, 2014, the Appeals Council denied Claimant’s request
for review. (R. 1-7). Claimant filed a complaint in this court seeking review of the final
administrative decision, the Commissioner agreed to a voluntary remand, and the court remanded
the claim for further proceedings on March 26, 2015. (R. 674-76, 690-94).
Claimant filed new claims for benefits on October 7, 2014, which the Appeals Council
determined were rendered duplicate by the remand and ordered them consolidated with the prior
claims. (R. 712). On March 3, 2016, ALJ Morriss held a new hearing at which Claimant,
represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 630-49). On
April 29, 2016, the ALJ issued a decision denying Claimant’s request for benefits. (R. 610-29).
On September 26, 2016, the Appeals Council denied Claimant’s request for review. (R. 597-603).
Claimant filed a complaint in this court seeking review of the final administrative decision, the
Commissioner agreed to a voluntary remand, and the court remanded the claim for further
proceedings on July 10, 2017. (R. 1267-74).
The claims were remanded by the Appeals Council to a different ALJ, (R. 1278-79), and
on April 1, 2019, ALJ Rebecca Adams held a hearing at which Claimant, represented by counsel,
and a vocational expert (“VE”) appeared and testified. (R. 1194-1232). At the hearing, Claimant
amended her alleged onset date to December 1, 2011. (R. 1157). On June 3, 2019, the ALJ issued
a decision denying Claimant’s request for benefits. (R. 1154-85). On November 19, 2019, the
Appeals Council denied Claimant’s request for review. (R. 1118-24). 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, 439-40 (4th Cir. 1997).
Ill. 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’r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant’s claim fails
at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. 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. Jd. 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. Jd.
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.” Jd. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in (1) improperly weighing the medical opinion
of Claimant’s treating physician, and (2) improperly evaluating other evidence in the record. □□□□□
Mem. [DE-26] at 21-27.!
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 December 1, 2011, the amended onset date. (R. 1160). Next, the ALJ
determined Claimant had the following severe impairments: degenerative disc disease of the
The court references the page numbers in the CM/ECF footer where they differ from the intemal page numbers in
the memorandum.
cervical spine, status-post multi-level surgical fusion and decompression with residual chronic
pain; degenerative disc disease of the lumbar spine; and asthma. Jd. The ALJ also found Claimant
had non-severe impairments of diabetes mellitus; gastrointestinal and rectal issues, e.g., abdominal
pain with associated nausea, vomiting, and diarrhea, hematochezia, and hemorrhoids/anal lesion
excision; chronic kidney stones and urinary tract infections; gallbladder removal; fundoplication;
(remote) deep vein thrombosis/emboli; depression; and anxiety. (R. 1160-61). The ALJ found
Claimant’s PTSD to be a non-medically determinable impairment. (R. 1161). 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. 1163-64). Applying the technique prescribed by the regulations, the ALJ found that
Claimant’s mental impairments have resulted in no limitations in interacting with others and
adapting or managing oneself and mild limitations in understanding, remembering, or applying
information and concentrating, persisting, or maintaining pace. (R. 1162).
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:
frequent but not constant overhead reaching bilaterally using her upper extremities
due history of neck pain with radiculopathy. She cannot lift any objects overhead
using her upper extremities bilaterally. She can frequently but not constantly handle
and finger using the left upper extremity due to history or radiculopathy greater on
the left. Due to history of lower back pain, she can never climb ladders, ropes, or
scaffolds, or crawl. She can occasionally stoop, kneel, and crouch. Due to history
of asthma, she must avoid concentrated exposure to respiratory irritants and to
extreme cold. She can have frequent interaction with coworkers and supervisors
and only occasional causal contact with the public.
? Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work,
unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of
time. 20 C.E.R. §§ 404.1567(b), 416.967(b).
(R. 1165-73). In making this assessment, the ALJ found Claimant’s statements about her
limitations not entirely consistent with the medical and other evidence in the record. (R. 1166).
At step four, the ALJ concluded Claimant was unable to perform any past relevant work. (R. 1173-
74). 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. 1174-75).
V. DISCUSSION
A. The RFC Determination
Claimant alleges two errors implicating the RFC determination: (1) improperly weighing
the medical opinion of Claimant’s treating physician, and (2) improperly evaluating other evidence
in the record. Pl.’s Mem. [DE-26] at 21-27.
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. Where a claimant has numerous impairments, including non-severe impairments, the ALJ
must consider their cumulative effect in making a disability determination. 42 U.S.C. §
423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) (“[I]n determining whether an
individual’s impairments are of sufficient severity to prohibit basic work related activities, an ALJ
must consider the combined effect of a claimant’s impairments.”) (citations omitted). The ALJ
has sufficiently considered the combined effects of a claimant’s impairments when each is
separately discussed by the ALJ, and the ALJ also discusses a claimant’s complaints and activities.
Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted).
1. The ALJ’s Weighing of Claimant’s Treating Physician’s Opinion
Claimant contends the ALJ erred in weighing the opinion of Claimant’s treating physician
Dr. Zinicola. Pl.’s Mem. [DE-26] at 21-25. When assessing a claimant’s RFC, the ALJ must
consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the
source, the ALJ must evaluate every medical opinion received. Jd. §§ 404.1527(c), 416.927(c). In
general, the ALJ should give more weight to the opinion of an examining medical source than to
the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more
weight is generally given to opinions of treating sources, who usually are most able to provide “a
detailed, longitudinal picture” of a claimant’s alleged disability, than non-treating sources such as
consultative examiners. Jd. §§ 404.1527(c)(2), 416.927(c)(2). When the opinion of a treating
source regarding the nature and severity of a claimant’s impairments is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence,” it is given controlling weight. Jd. However, “[i]fa physician’s opinion
is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight.” Craig, 76 F.3d at 590.
If the ALJ determines that a treating physician’s opinion should not be considered
controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking
into account the following non-exclusive list: (1) whether the physician has examined the applicant,
(2) the treatment relationship between the physician and the applicant, (3) the supportability of the
physician’s opinion, (4) the consistency of the opinion with the record, and (5) whether the
physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R.
§ 404.1527). An ALJ may not reject medical evidence for the wrong reason or no reason. See
Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). “In
most cases, the ALJ’s failure to consider a physician’s opinion (particularly a treating physician)
or to discuss the weight given to that opinion will require remand.” Love-Moore v. Colvin, No.
7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). However,
“f{a]n ALJ’s determination as to the weight to be assigned to a medical opinion generally will not
be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,’ or has
failed to give a sufficient reason for the weight afforded a particular opinion.” Dunn v. Colvin, 607
F. App’x 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir.
1992)).
On March 20, 2013, Dr. Zinicola provided the following opinion regarding Claimant’s
impairments:
Mrs. Felicia Lee has been my patient for many years. She has severe issues with
her cervical spine and severe issues with her lumbar spine. In addition, Mrs. Lee
has had issues with anxiety and obesity, which I have treated.
In 2008 lesions were discovered on her lumbar spine and degenerative disk disease
was affecting her cervical spine.
In 2010 the pain and numbness in her upper extremities had risen to the point the
she required a cervical fusion. For a few months in late 2010 immediately following
surgery, her pain and numbness receded, but this was temporary relief. The pain
and numbness from her cervical spine returned. She continues to need treatment by
pain medications and muscle relaxers. It continues to limit her range of movement
and will make it difficult for her to perform jobs with her arms and hands. It is
unlikely that these conditions will resolve.
Problems with and pain from her lumbar spine will make it difficult to perform jobs
that require walking or standing or sitting. She now has issues of urinary
incontinence, which may be related to her spinal condition. I have referred her to a
neurologist for evaluation.
I am aware of her statements of her pain and numbness given during a Consultative
Exam in 2011. Her statements of pain and numbness being very severe on some
days on an intermittent basis is entirely consistent with spinal issues such as hers.
Her statement that sometimes she is unable to open a soft drink, put on her clothes,
or do her hair, are consistent with this and accurately [sic] to her treatment history.
I have reviewed several of her pain calendars. They are consistent with her
condition and treatment history. They show no days without pain. They show very
few days where she retains the ability to function at even a sedentary level for more
than a few hours. It is expected that her pain worsens with unpredictable frequency.
Even with pain medication, her spine is going to make her unreliable in getting
ready and dressed, getting to work, and performing basic activities. It is likely that
the pain and pain medication will make it difficult for her to sustain concentration.
Because of this pain and unreliability, Mrs. Lee is not able to maintain employment
on a sustained and regular basis.
(R. 543). The ALJ summarized Dr. Zinicola’s opinion and assigned it little weight because,
although from a longstanding treating source it is vague, conclusory, and
inconsistent with other evidence of record. As discussed above, Dr. Zincola’s own
treatment notes from 2013 show normal findings on neck, musculoskeletal, and
extremity examinations (see e.g. Ex. 8F/2, 6-7 and 10F) and imaging from
September 2012 did not evidence severe abnormalities (Ex. 6F). The claimant’s
examinations by other medical providers in 2013 (and since) also do not reveal any
significant musculoskeletal or neurological findings (see e.g. 1 SF/18-23). Moreover,
the pain calendar entries reviewed by Dr. Zincola are vague, minimally completed
and wholly subjective. In addition, they were forms provided by the claimant’s
representative and appear to only define pain ratings from 4-10 (distressing to
unimaginable) and do not provide descriptions of pain ratings from 1-3 (Ex. 11F/3-
5).
(R. 1167-68) (the ALJ misspelled Dr. Zinicola’s name).
The evaluation of a treating physician’s opinion involves applying two distinct rules: first,
under the treating physician rule, the ALJ must determine whether the opinion is entitled to
controlling weight; and second, if the opinion is not entitled to controlling weight, it must be it
must be weighed in light of the § 404.1527(c) factors listed above. Dowling v. Comm’r of Soc.
Sec. Admin., No. 19-2141, 2021 WL 203371, at *4 (4th Cir. Jan. 21, 2021). The Fourth Circuit
recently characterized the treating physician rule as “a robust one” and explained that a treating
physician’s opinion “must be given controlling weight unless it is based on medically unacceptable
clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in
the record.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 107 (4th Cir. 2020) (quoting
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). The ALJ determined Dr. Zinicola’s opinion
was only entitled to “little weight” because it was vague, conclusory, and inconsistent with other
evidence of record. (R. 1168). The ALJ did not expressly discuss application of the treating
physician rule; yet, implicit in the ALJ’s decision to give Dr. Zinicola’s opinion little weight is that
the ALJ found the opinion was not entitled to controlling weight. (R. 1168). The ALJ did explain
that Dr. Zinicola’s opinion was inconsistent with other evidence in the record, including his own
treatment notes, imaging, and examinations by other medical providers around the same time. Jd.
The existence of contradictory substantial evidence is one justification for not giving controlling
weight to a treating physician’s opinion. Arakas, 983 F.3d at 107. However, the evidence cited by
the ALJ is not clearly contradictory.
Dr. Zinicola’s treatment notes between January and April 2013, cited by the ALJ, indicate
physical examinations were normal, but they also consistently note a diagnosis of chronic low back
pain for which Claimant was treated with narcotic and anti-nausea medications and a muscle
relaxer. (R. 487-92). The September 2012 imaging the ALJ cites are a CT of the cervical spine
that noted underlying congenital spinal canal stenosis and degenerative disc disease at C7-T1, and
a CT of the lumbar spine noted lower lumbar spondylosis with left asymmetric disc bulge at L5/S1
and left foraminal narrowing. (R. 463-64). While the ALJ characterized these findings as non-
severe abnormalities, the basis for that assessment is not apparent, and the ALJ is not a doctor. See
Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to
play doctor and make their own independent medical findings.”). Dr. Zinicola cited Claimant’s
10
lumbar and cervical spine impairments as the source of her pain, imaging supports Dr. Zinicola’s
diagnosis of chronic low back pain, and the Fourth Circuit has repeatedly held that “while there
must be objective medical evidence of some condition that could reasonably produce the pain,
there need not be objective evidence of the pain itself or its intensity.” Arakas, 983 F.3d at 95
(quoting Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989)). Finally, the “examinations by other
medical providers in 2013 (and since)” cited by the ALJ appear also to be treatment notes from Dr.
Zinicola, which are consistent with his other treatment notes already discussed. (R. 936-41).
The ALJ also found Dr. Zinicola’s opinion to be vague and conclusory. The court disagrees.
Dr. Zinicola, in a one-page letter, explained that he treated Claimant for many years for, among
other things, severe cervical and lumbar spine issues due to lesions on the lumbar spine and
degenerative disc disease of the cervical spine. Dr. Zinicola described Claimant’s symptoms
including pain, numbness, and limited range of movement. He discussed her treatment including
a fusion surgery that provided only temporary relief, as well as pain medication that made it
difficult for her to concentrate. Dr. Zinicola explained that intermittent pain was consistent with
her conditions and that even with medication her ability to perform basic functions was unreliable.
Dr. Zinicola concluded that her impairments would make it difficult for her to perform jobs
involving the use of her arms or hands or jobs that require walking, standing, or sitting and that
she is not able to maintain employment on a sustained and regular basis. (R. 543); see Arakas,
983 F.3d at 109 (explaining that ALJ’s may not disregard opinions regarding a claimant’s ability
to work when offered by a treating physician) (citing Hines v. Barnhart, 453 F.3d 559, 563 (4th
Cir. 2006) (holding that the “ALJ improperly refused to credit [the treating physician’s] medical
opinion that his long term patient . . . was totally disabled”); Hill v. Astrue, 698 F.3d 1153, 1160
(9th Cir. 2012) (finding that the ALJ erred by disregarding the treating physician’s opinion that the
11
claimant’s “combination of mental and medical problems makes . . . sustained full time competitive
employment unlikely”); Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998) (concluding that the
ALJ’s rejection of the treating physician’s “four-hour [work] day restriction” was “wrong” because
“medical opinions on how much work a claimant can do are not only allowed, but encouraged”)).
Dr. Zinicola’s opinion was clear and well-explained, and the ALJ’s finding that it was vague and
conclusory is unsupported.
Lastly, the ALJ took issue with pain calendar entries reviewed by Dr. Zinicola
characterizing them as “vague, minimally completed and wholly subjective.” (R. 1168). The fact
that the pain calendar is “wholly subjective” is not objectionable. See Lakeman v. Saul, No. 7:18-
CV-97-BO, 2019 WL 4385498, at *2 (E.D.N.C. Sept. 12, 2019) (finding that the “[p]laintiff
established that she had degenerative disc disease, which is capable of causing severe pain, and
was entitled to rely on subjective evidence.” (citing Hines, 453 F.3d at 565)). In finding the
calendars “vague” and “minimally completed,” (R. 1168), it is unclear what information the ALJ
found lacking. On one monthly calendar Claimant indicated daily information such as when she
would awaken or need to lie down due to pain or when her activities were limited by pain. (R.
544). Another month she listed a numerical rating of her pain level and a descriptive word
indicating the severity of her pain, e.g., “deep pain, back pain,” “distress,” or “dominating.” (R.
546). If there was confusion about the pain calendars, the ALJs could have asked the Claimant
about them at one of the three administrative hearings. It is also unclear why the fact that a blank
calendar was provided to Claimant by her representative for the purpose of recording her pain
levels detracts from the reliability of this evidence. Other courts have found suspect or improper
reasoning that discounts evidence due to the fact that it was obtained by a claimant’s representative.
See Wood v. Colvin, No. CIV.A. 13-30151-KPN, 2014 WL 5285705, at *5 (D. Mass. Oct. 14, 2014);
12
Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998) (“[I]n the absence of other evidence to
undermine the credibility of a medical report, the purpose for which the report was obtained does
not provide a legitimate basis for rejecting it.”).
The ALJ erred in evaluating Dr. Zinicola’s opinion under the treating physician rule where
the ALJ’s opinion demonstrates neither that Dr. Zinicola’s opinion was based on medically
unacceptable clinical or laboratory diagnostic techniques or that it is contradicted by other
substantial evidence in the record. Accordingly, the matter must be remanded for the ALJ to
evaluate Dr. Zinicola’s opinion under the appropriate framework.
2. The ALJ’s Evaluation of Other Record Evidence
Claimant contends the ALJ failed to properly evaluate other record evidence by using or
citing it incorrectly. Pl.’s Mem. [DE-26] at 26-27. A decision based on cherry-picked, misstated,
or mischaracterized facts cannot be upheld as supported by substantial evidence. Arakas, 983 F.3d
at 99.
First, Claimant points out that the ALJ relies on a consultative examiner’s report that is
missing a page. Pl.’s Mem. [DE-26] at 26 (citing Ex. 17F — R. 958-59). On remand, the ALJ
should obtain the complete report if it is to be relied upon in making the disability determination.
Claimant also contends the ALJ misinterpreted evidence from the report regarding whether
Claimant completed a two-year degree during the disability period or in the 1980’s. Jd. Another
record, from January 2011, stated that Claimant indicated she was “currently in school in criminal
justice.” (R. 425). The record, thus, supports the ALJ’s characterization of this evidence.
Second, Claimant contends the ALJ failed to consider the extent to which she can perform
activities. Pl.’s Mem. [DE-26] at 26. The ALJ states that Claimant described activities such as
attending her children’s sporting events, watching television, doing volunteer work, being able to
13
handle her finances, and doing grocery shopping. (R. 1162, 1166). “An ALJ may not consider the
type of activities a claimant can perform without also considering the extent to which she can
perform them.” Arakas, 983 F.3d at 99 (quoting Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir.
2018)). On remand, the ALJ should consider both the type of activates Claimant can perform and
the extent to which she can perform those activities.
Third, Claimant contends the ALJ misinterpreted the record regarding whether her PTSD
and depression were severe impairments and failed to evaluate them at step two and subsequent
steps of the disability determination. Pl.’s Mem. [DE-26] at 26-27. At step two the ALJ discussed
Claimant’s alleged mental impairments as follows:
The claimant also underwent assessment for mental health treatment on referral
from primary care (Dr. Zin[i]cola) for alleged trauma related symptoms on July 13,
2015 after a former paramedic partner reportedly shot his roommate recently (Ex.
23F/10). The claimant also noted she had an upcoming disability hearing (Ex. 23F/2)
and she described triggers such as hearing sirens or seeing an ambulance, not
wanting to leave [her] room or talk with others, and nervousness when her children
are out of home due to fears of car accidents or drunk drivers (Ex. 23F/4).
Nonetheless, her mental status examination findings were within normal limits
other than an anxious, depressed mood and mildly impaired social judgment (Ex.
23F/5-6). Although diagnosed with post-traumatic stress disorder (PTSD) by the
examining licensed social worker (Claire Carpreso) who recommended outpatient
therapy 1-4 times a month to address symptoms along with psychiatric evaluation
for medication management (Ex. 23F/10, 13), there is no indication of the claimant
subsequently attending therapy, undergoing further evaluation for PTSD, or
receiving formal mental health treatment. Nor is there any indication of an
acceptable medical source diagnosing the claimant with PTSD. Accordingly, the
undersigned finds PTSD to be a non-medically determinable impairment. However,
the claimant continues to take medication for alleged depression/anxiety prescribed
by primary care and the undersigned finds depression/anxiety to be non-severe
impairment(s) not causing more than minimal limitation in the claimant’s ability to
perform basic mental work activities.
(R. 1161).
Dr. Ngo’s statement in his June 2015 report that Claimant “claims that she hears baby
crying and because this was her job in the past of an EMT (looks like she is having PTSD),” (R.
14
1006), is not a diagnosis of PTSD, and Dr. Ngo, in fact, did not diagnose Claimant with PTSD but
recommended a psychological evaluation, (R. 1008). The ALJ discussed the record cited by
Claimant, a July 2015 psychological assessment where a social worker diagnosed Claimant with
PTSD and recommended treatment, (R. 1030-41), but accurately observed that Claimant was not
subsequently treated for PTSD, (R. 1161). The ALJ also discussed Claimant’s depression and
anxiety at step two, id., applied the special technique, (R. 1162-63), and accounted for Claimant’s
depression and anxiety in formulating the RFC, (R. 1173). Accordingly, the ALJ did not err in
evaluating Claimant’s mental impairments.
Fourth, Claimant contends the ALJ erred in giving little weight to her Medicaid status
evidenced by a copy of her Medicaid card, (R. 244, 837). Pl.’s Mem. [DE-26] at 27. The
Commissioner takes the position that because there was no supporting documentation to show the
basis for her Medicaid award there was nothing for the ALJ to consider. Def.’s Mem. [DE-33] at
13-14. In the case of Bird v. v. Comm’r of Soc. Sec. Admin., the court found that although another
agency’s “decision is not binding on the [Social Security Administration (“SSA”),] . . . under the
principles governing SSA disability determinations, another agency’s disability determination
‘cannot be ignored and must be considered.’” 699 F.3d 337, 343 (4th Cir. 2012) (citing 20 C.F.R.
§ 404.1504 & S.S.R. 06-03p, 2006 WL 2329939 (Aug. 9, 2006)). In addition to Claimant’s
Medicaid card in the record, Claimant’s representative at the April 1, 2019 hearing also told the
ALJ that Claimant’s surgery was delayed until she was able to obtain Medicaid coverage. (R.
1201). There is some case law to support the Commissioner’s position that a Medicaid card alone
is not a disability determination that must be considered, Davis v. Colvin, No. 3:13-CV-189-RJC-
DSC, 2014 WL 868709, at *2 (W.D.N.C. Mar. 5, 2014), and it is unclear why Claimant’s
representative submitted a copy of Claimant’s Medicaid card but not the underlying disability
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determination. However, because this case is being remanded to the Commissioner on other
grounds, the Commissioner should attempt to obtain a copy of the Medicaid decision for full
consideration on remand in accordance with Bird. See Woodall v. Colvin, No. 5:12-CV-357-D,
2013 WL 4068142, at *5 n.3 (E.D.N.C. Aug. 12, 2013); Chriscoe v. Colvin, No. 1:13CV788, 2015
WL 4112442, at *4 (M.D.N.C. July 8, 2015) (“evidence clearly put the ALJ on notice that another
agency had found Plaintiff disabled, [but] the ALJ made no effort to obtain a copy of that decision
or further consider Plaintiff’s Medicaid approval when evaluating her case”).
Finally, Claimant contends the Appeals Council erred by failing to exhibit evidence it found
did not show a reasonable probability it would change the outcome of the decision. Pl.’s Mem.
[DE-26] at 27. Claimant’s assertion of error in this regard is conclusory and fails to suggest any
reason why the Appeals Council’s determination was improper. Accordingly, the court declines to
consider this undeveloped argument.
VI. CONCLUSION
For the reasons stated above, Claimant’s Motion for Judgment on the Pleadings [DE-25] is
allowed, Defendant’s Motion for Judgment on the Pleadings [DE-32] is denied, and this matter is
remanded to the Commissioner, pursuant to sentence four of § 405(g), for further proceedings
consistent with this order.
SO ORDERED, this 26th day of January 2021.
United States Magistrate Judge
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