HILL v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KIM HILL, )

Plaintiff,

v. 1:19CV852

ANDREW SAUL,

Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kim Hill (‘Plaintiff’) brought this action pursuant to Section 205(g) of the

Social Security Act (the “Act’”), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a

final decision of the Commissioner of Social Security denying her claim for Disability

Insutance Benefits (“DIB”) under Title I] of the Act. The parties have filed cross-motions

for judgment, and the administrative record has been certified to the Court for teview.

I. PROCEDURAL HISTORY

Plaintiff protectively filed her application for DIB on August 21, 2014, alleging a

disability onset date of August 1, 2014. (T'r. at 19, 175-81.)! She later amended her alleged

onset date to November 10, 2015. (Tr. at 19, 243.) Her claim was denied initially (It. at 78-

89, 107-10), and that determination was upheld on reconsideration (Tr. at 90-106, 115-22).

Thereafter, Plaintiff requested an administrative heating de novo before an Administrative

? Transcript citations refer to the Administrative Record [Doc. #9].

Law Judge (“ALJ”). (Tt. at 123-24.) Plaintiff attended the subsequent hearing on July 12,

2017, along with her attorney and an impartial vocational expert. (I'r. at 19.) Following the

heating, ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (Tr. at

34), and, on Januaty 2, 2019, the Appeals Council denied Plaintiffs request for review, thereby

making the AL]’s conclusion the Commissionet’s final decision for purposes of judicial review

at 6-13).

Il. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

ALJ if they ate supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) Gnternal

quotation omitted).

“Substantial evidence means ‘such televant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation matks omitted).

“In reviewing for substantial evidence, the court should not undertake to te-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[ALJ]. Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing coutt], therefore, is not whether [the claimant] is disabled, but whether the

AL}’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “‘inability 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

petiod of not less than 12 months.”’ Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

2 “The Social Secutity Act comprises two disability benefits programs. ‘The Social Secutity Disability Insurance

Progtam (SSDN, established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSD), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDJ); 20 C.F.R. pt. 416 (SSD), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

of disability; (2) had a severe impairment; 3) had an impairment that met or equaled the

requitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquity. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impaitment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “lilf a claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.3 Step four then requites the ALJ to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

3 “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regulat and continuing basis . . . [which] means 8

a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, ot skin impairments).” Hall, 658 F.2d at 265. “REC is to be determined by the ALJ only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”

Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot catty its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Ill. DISCUSSION

In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful

activity” since her amended alleged onset date, November 10, 2015. Plaintiff therefore met

her burden at step one of the sequential evaluation process. (Tr. at 21.) At step two, the AL}

further determined that Plaintiff suffered from the following severe impairments:

Degenerative disc disease, bipolar disorder, anxiety, and depression[.]

(Tt. at 21.) The ALJ next found at step three that none of Plaintiff's impairments, individually

ot in combination, met or equaled a disability listing. (Tr. at 22-24.) Therefore, the AL]

assessed Plaintiff's RFC and determined that, through her date last insured, Plaintiff had the

RFC to perform:

[Mjedium work as defined in 20 CFR 404.1567(c). [Plaintiff] is capable of:

occasionally lifting fifty pounds; frequently lifting twenty-five pounds; standing

ot walking six houts of an eight hour work day; and sitting six hours of an eight

hour wotkday. She is limited to frequent stooping. [She] retains the capacity

for concenttating, persisting, ot pace for one to three step instructions for two

hout petiods over an eight hour workday, 40 hours per week. [She] retains the

capacity for social interaction for routine interaction with coworkers and

supetvisors. [Plaintiff] retains adaptive capacity to deal with routine changes

and safety issues.

(Tr. at 24.) Based on this determination and the testimony of a vocational expert, the ALJ

determined at step four of the analysis that Plaintiff was unable to perform any of her past

relevant work. (Tr. at 33.) However, at step five, the ALJ found that, given Plaintiffs age,

education, work experience, and RFC, she could perform other jobs available in the national

economy. (Tr. at 33-34.) Therefore, the AL] concluded that Plaintiff was not disabled under

the Act. (Tr. at 34.)

Plaintiff now contends that substantial evidence fails to support the ALJ’s finding that

Plaintiff could perform medium work. In particular, Plaintiff challenges the ALJ’s reliance on

medical opinions issued prior to Plaintiffs amended onset date, and therefore prior to her

2016 spinal surgery. After a thorough review of the record, the Court agrees that the AL]’s

decision fails to adequately address Plaintiff's worsening neck and back conditions from 2015

forward or the impact of those conditions on her RFC.

By all accounts, Plaintiff suffers from degenerative disc disease and underwent a

ptevious cervical spine surgery, a C6-C7 foraminotomy, in 2008. (T'r. at 385.) Although she

initially alleged only mental impaitments in her DIB application in August 2014, Plaintiff added

allegations of physical impairments in November 2014, including increasing back and neck

pain, beginning after her initial application date. (Tr. at 19, 213.) This is also reflected in a

treatment record in December 2014 from the office of her primary care physician, Dr. Scott

McCune, teflecting that she had complained of a flate in her back pain. (I'r. at 488.) Plaintiff

was seen by a consultative examiner, Dr. Hillman, on August 15, 2015 (Tr. at 317-19), and her

records were evaluated by state agency physician Dr. E. Woods in September 2015 (Tr. at 95-

100.)

Notably, the medical records reflect that soon thereafter, in late 2015, Plaintiff reported

increasing back and neck pain and related symptoms. On September 1, 2015, Plaintiff was

seen by her primary care physician, Dr. McCune, for back pain as well as brachioradial

pruritus, a condition often associated with nerve entrapment due to degenerative disc disease,*

with distribution on her shoulders and arms. (Ir. at 496.) Plaintiff described the latter as

feeling like pins and needles in her arms. She was referred to a neurosurgeon, and two months

later, on November 10, 2015, Plaintiff had her first appointment at Carolina Neurosurgery &

Spine. (Tr. at 385-89.) Plaintiff later amended her application to reflect that day, November

10, 2015, as her disability onset date. The medical record from that appointment reflects that

Plaintiffs neck and back pain had intensified, and her brachioradial pruritus had still not

resolved, with a “pins and needle sensation in both atms with a feeling of weakness and sevete

itching.” (Ir. at 385.) Updated x-rays of Plaintiffs cervical spine showed “degenerative

changes including facet arthropathy,” causing “chronic, progressive neck pain with bilateral

atm pain and dysesthesias.” (Jr. at 388.) The treatment record also reflects decreased

sensation in a “stocking hand” formation, consistent with other objective findings of nerve

compromise. (Tr. at 388.) The record indicates that Plaintiff used cold, heat, and a TENS

unit for pain relief duting this time, but experienced little relief. (Tr. at 385.) A cervical MRI

was ordered, and reflected mild disc bulging at C4-5 and C5-6. In addition, at C6-7 “[t]here is

decreased disc height with mild to moderate disc bulging. Associated marginal spurring is

4 “Brachioradial Prutitus,’ Robbins, B.A, and Schmeider, GJ. (Apr. 23, 2020) (available at

https://www.ncbi.nlm.nih.gov/books/NBK459321) (“[C]urrent theories suggest that brachioradial pruritus is

a bifactorial process involving cervical netve irritation and ultraviolet radiation (UVR) of the affected atea. □

DJD has been reported as the most common cervical spine abnormality in patients with brachioradial pruritus.

Many authors suggest that cervical spine disease between C5 to C8 is causative.”).

ptesent. Mild central canal stenosis is noted. Mild right neural foraminal stenosis and

moderate left neural foraminal stenosis is noted.” (Tr. at 400, 381, 345.)

Plaintiff returned to see Dr. McCune a few weeks later, on January 13, 2016, and

teported continuing numbness. (Ir. at 515.) Dr. McCune noted that she was seeing a

neutosutgeon. (T'r. at 516.) Two weeks later, she returned to Carolina Neurosurgery & Spine

and saw her neutosutgeon, Dt Deshmukh (Trt. at 376, 381-83.) Her pain was 10/10, and Dr.

Deshmukh noted that “[s]he has failed medical management but with her history of

complications with surgical intervention, we will attempt to maximize het conservative

treatments.” (Tr. at 382-83.) The records for that visit were also sent to Dr. McCune and

made part of his records. (Ir. at 533-40.)

A myelogram was otdetred and revealed as follows on February 25, 2016: moderate

degenerative disc disease and mild to moderate facet arthropathy at C3-C4 and C4-C5;

“lmjodetate DDD with broad-based disc bulge which minimally effaces the ventral canal” and

“fujncinate spurting and facet arthropathy caus[ing] mild bilateral foraminal stenosis” at C5-

C6; and “|mJoderately severe DDD [at C6-C7] with broad-based disc spur complex and

thickening of the ligamentum flavum causing mild spinal canal stenosis. Uncinate sputring

and facet atthropathy cause moderate left foraminal stenosis and mild tight foraminal

stenosis.” (It. at 328, 406-07.) The myelogram also reflects that “[mlild ventral impressions

ate ptesent on the thecal sac at C4-C5, C5-C6, and C6-C7” and “incomplete filling/partial

truncation left C6-C7 nerve root sleeve.” (I't. at 330, 406.) Dr. Deshmukh reviewed the

myelogram, and a March 1, 2016 note reflects that “[m]yelogram shows spondylosis and

stenosis at C5 C6 and C6 C7, worse at C6 C7. ‘There is a listhesis at C4 C5. [Plaintiff] has

undergone a ptior C6 C7 foraminotomy. The patient’s symptoms [are] neck and arm pain.”

(Tr. at 374.) Dr. Deshmukh recommended that Plaintiff follow up to discuss possible fusion

(ACDF) surgery. (Id.) Plaintiff saw Dr. Deshmukh on March 3, 2016, and the treatment note

teflects that she would “likely beneft from C4-7 ACDF.” (Tr. at 372.) Plaintiff also followed

up with Dr. McCune in March 2016, and his treatment records were updated to include a

diagnosis of Degenerative Disc Disease. (Tr. at 559-60.) Dr. McCune noted that Plaintiffs

“pain telated to her degenerative disc disease and cervical spinal stenosis” could be a factor in

her high blood pressure. (Ir. at 559.)

Plaintiff saw Dr. Deshmukh again on June 23, 2016, and the records reflect that

Plaintiff had both neck pain and low back pain. Dr. Deshmukh’s assessment reflects that:

The patient is neurologically stable but, clinically persistent with low back, right

lower extremity, neck, and bilateral upper extremity pain. She has elected to

focus on her neck at this time. We discussed the risks and benefits associated

with the possible nonsurgical, conservative and surgical treatment options. I

recommend surgical consideration at this time, specifically a C4-7 ACDF. I

have addressed the patient’s questions and concerns to her satisfaction. At this

juncture, the patient feels her symptoms ate intolerable and would like to

proceed with the recommended surgery. We will also obtain lumbar MRI

imaging to further evaluate her spinal anatomy.

(Tr. at 364.) Those records were also provided to Dr. McCune. (Tr. at 607-15.) The lumbar

MRI was obtained on June 28, 2016, and reflected increasing degenerative lambar spondylosis

including disc bulging at multiple levels and a small lateral herniation as L5-S1. (Tr. at 324,

420-21.)5

> As the AL] correctly notes, Plaintiff was instructed to manage this condition with physical therapy and pain

medication. (Ir. at 26, 353.) This conservative approach was, in part, due to Plaintiffs documented decision

to address her cetvical spine issues first, as the symptoms, including pain, were more sevete in her neck. (Ir.

at 26, 364.) In addition, Plaintiff's neurosurgeon noted that the plan to “maximize [Plaintiff's] conservative

treatments,” even regarding her cervical spine symptoms, stemmed from Plaintiff's “history of complications

Accordingly, at her surgeon’s recommendation, Plaintiff underwent an anterior cervical

discectomy and fusion (ACDF) of C4 through C7 on July 6, 2016. (Tr. at 402-03.) By all

accounts, Plaintiffs neck pain improved after her surgery and recovery, although she reported

to het psychiatrist that the neck surgery had “not helped her neck pain as much as she had

hoped.” (Tr. at 466.) In a follow up appointment with Dr. Deshmukh’s office in August

2016, she continued to report episodes of “throbbing” pain in her bilateral upper extremities,

but noted that the pain was intermittent, rather than continuous as it had been prior to the

fusion ptocedute. (TI'r. at 348, 353.) At the time of the visit, her pain was 3/10, but she

reported that “[a]lny movements of her head tend to increase her symptoms.” (Tr. at 348.)

Similarly, in a visit with Dr. Deshmukh in December 2016, she reported “continued neck pain

and muscular pain in her left scapular area” with “aching, throbbing” pain currently at 5/10.

(Tr. at 337, 342.) She was continued on a regimen of non-surgical pain management. (Ir. at

342.) ‘These treatment records were also provided to Dr. McCune, Plaintiffs primary care

physician. (Tr. at 700-06, 751-58). At a subsequent examination on June 28, 2017, Dr.

McCune completed a Medical Source Statement, reflecting that Plaintiff could lift no more

than 5 pounds frequently and 10 pounds occasionally. (Tr. at 27, 782-83.) He also opined

that due to symptom interference she would likely be off-task greater than 15% of the work

with surgical intervention.” (Tr. at 382-83.) In othet words, Plaintiff's July 2016 spinal surgery is documented

as a last resort on the part of her spine specialists to reduce symptoms that wete otherwise intractable.

is consistent with Plaintiff's testimony that she was unable to lift her 13-pound dogs, and that lifting

them would be “very, very painful.” (It. at 65, 25.)

10

day, and that she was not capable of performing medium level work involving lifting up to 50

pounds and frequent lifting of up to 25 pounds. (I'r. at 782-83.)’

The AL] gave Dr. McCune’s opinion little weight, and instead cited Plantiffs post-

surgical improvement as evidence that, from November 2015 forward, Plaintiff could perform

the medium level work opined by Dr. Woods in September 2015, prior to both Plaintiffs

amended alleged onset date and the extensive history of neurosurgical treatment outlined

above. The AL] does acknowledge that Plaintiff underwent neck surgery after Dr. Woods

tendeted his findings. However, the ALJ disregards the impact of this surgery and the

underlying impairment on Plaintiffs RFC, noting Plaintiffs improvement upon tecoverty, full

strength, and cottect hardwate placement. (I't. at 27.) As set out above, Plaintiff presented

copious, objective evidence of worsening degenerative disc disease in both her lumbar and

cetvical spines during the relevant time period. The AL] rejected Plaintiffs allegations of pain

from these impaitments based on the opinions of Drs. Woods and Hillman, whose findings

pte-date the objective evidence of Plaintiff's deteriorating condition. Although both the ALJ

and the Commissioner assert that Plaintiffs post-surgical improvement supports Plaintiffs

ability to perform the same level of work opined by Drs. Woods and Hillman in August and

September 2015, no medical professional has considered the impact of Plaintiffs

deterioration, subsequent surgery, or tecovery on her RFC other than Dr. McCune, whose

opinion was summarily dismissed.

7 Plaintiff notes that if she were limited to light ot sedentary work, a finding of “disabled” would be directed by

the applicable Medical-Vocational Guidelines. (PL Br. at 14-15.)

11

Notably, for claims like Plaintiffs that are filed before March 24, 2017, AL]s evaluate

the medical opinion evidence in accordance with 20 C.F.R. § 404.1527(c). Brown vy. Comm’r

Soc. Sec., 873 F.3d 251, 255 4th Cir. 2017). “Medical opinions” are “statements from

acceptable medical sources that reflect judgments about the nature and severity of your

impaitment(s), including your symptoms, diagnosis and prognosis, what you can still do

despite impairment(s), and your physical or mental restrictions.” Id. (citing 20 CFR.

§ 404.1527(a)(1)). While the regulations mandate that the AL] evaluate each medical opinion

ptesented to her, generally “more weight is given ‘to the medical opinion of a source who has

examined you than to the medical opinion of a medical source who has not examined you.”

Brown, 873 F.3d at 255 (quoting 20 C.F.R. § 404.1527(¢)(1)). And, under what is commonly

referred to as the “treating physician rule,” the AL] generally accords the greatest weight—

controlling weight—to the well-supported opinion of a treating source as to the nature and

sevetity of a claimant’s impairment, based on the ability of treating sources to

provide a detailed, longitudinal picture of [the claimant’s] medical impaitrment(s)

[which] may bring a unique perspective to the medical evidence that cannot be

obtained from the objective medical findings alone or from reports of individual

examinations, such as consultative examinations or brief hospitalizations.

20 C.E.R. § 404.1527(c)(2). However, if a treating soutce’s opinion is not “well-supported by

medically acceptable clinical and laboratory diagnostic techniques” or is “inconsistent with

other substantial evidence in [the] case record,” it is not entitled to controlling weight. 20

C.F.R. § 404.1527 (c)(2); see also Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *4;

Brown, 873 F.3d at 256; Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178.° Instead, the opinion

8 Bor claims filed after Match 27, 2017, the regulations have been amended and several of the prior Social

Secutity Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social

12

must be evaluated and weighed using all of the factors provided in 20 C.P.R. § 404.1527(¢)(2)-

(c)(6), including (1) the length of the treatment relationship, (2) the frequency of examination,

(3) the nature and extent of the treatment relationship, (4) the supportability of the opinion,

(5) the consistency of the opinion with the record, (6) whether the soutce is a specialist, and

(7) any other factors that may support or contradict the opinion.

The Fourth Circuit has recently confirmed the application of the treating physician rule

in Arakas v. Commissioner, 983 F.3d 83 (4th Cir. 2020) and Dowling v. Commissioner, 986

F.3d 377 (4th Cir. 2021). In Arakas, the Fourth Circuit “emphasized that the treating physician

tule is a robust one: [T]he opinion of a claimant’s treating physician [must] be given great

weight and may be disregarded only if there is persuasive contradictory evidence.” Arakas,

983 F.3d at 107 (quoting Coffman v. Bowen, 829 F.2d 514, 517 (4th Cit. 1987)). Thus, “the

opinion must be given controlling weight wuless itis based on medically unacceptable clinical or

laboratory diagnostic techniques ot is contradicted by the other substantial evidence in the

record.” Id. (emphasis in original). Similarly, in Dowling, the Fourth Circuit emphasized that

even if a “medical opinion was not entitled to controlling weight, it does not follow that the

ALJ had free reign to attach whatever weight to that opinion that he deemed fit. The AL] was

required to consider each of the six 20 C.F.R. § 404.1527(c) factors before casting [treating

physician] opinion aside.” Dowling, 986 F.3d at 385. “While an AL] is not required to set

forth a detailed factot-by-factor analysis in order to discount a medical opinion from a treating

Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to

any medical opinion(s) o ptiot administrative medical finding(s), including those from your medical sources.”

20 CER. § 404.1520c. However, the claim in the present case was filed before March 27, 2017, and the Court

has therefore analyzed Plaintiffs claims pursuant to the treating physician rule set out above.

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physician, it must nonetheless be appatent from the AL]’s decision that he meaningfully

considered each of the factors before deciding how much weight to give the opinion.” Id.

Hete, the AL] rejected the opinion of Plaintiffs treating physician, Dr. McCune, which

was the only medical opinion regarding Plaintiffs physical impaitments that covered any of

the petiod from the November 1, 2015 alleged onset date to the date of the decision.? In

doing so, the ALJ gave significant weight to the consultative examination by Dr. Hillman and

the evaluation by state agency physician Dr. Woods. (Ir. at 27.) However, the opinions from

Dr. Hillman and Dr. Woods pre-date the alleged onset date, and the record contains hundreds

of pages of treatment and surgical notes, along with objective testing such as MRIs,

myelograms, and x-tays, whose beating on Plaintiffs work capacity has been considered by

the ALJ alone. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (citing 20 C-F.R. §§

404.1529, 416.929 and remanding where the lack of medical support for the AL]’s conclusions

“amount[ed] to the AL} improperly ‘playing doctor.”’); see also Arakas, 983 F.3d at 108

(“fI]he AL] improperly substituted hi own opinion for Dr. Harpet’s. An ALJ may not

substitute his own lay opinion for a medical expert’s when evaluating the significance of clinical

findings.”); Kee v. Bertyhill, 1:15CV1039, 2017 WL 788306 at *6 and n.7 (M.D.N.C. Mar. 1,

2017) (temanding where Plaintiffs treating physicians were “the only medical sources to have

opined on Plaintiffs condition after her second fusion surgery” and “the ALJ did not obtain

the assistance of a medical expett to review the additional records”); Shaw v. Berryhill,

9 Plaintiff also ptovided the opinion of her treating psychiatrist, Dr. Schaefer, noting that due to Bipolar II

Disorder, Generalized Anxiety Disorder, and Panic Disorder, Plaintiff “would likely miss work substantially at

least 10-15 days per month due to symptom interference. Difficulty regulating emotion, concentrating, poor

sleep and low energy ate most prominent.” (Tr. at 772.) Plaintiffs claims in the present appeal focus on the

evaluation of her physical impaitments, addtessed above.

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1:17CV91, 2018 WL 1322159 at *8 (M.D.N.C. Mar. 14, 2018) (remanding where “[t]he AL]

did not enlist the assistance of a medical expert to review the more recent evidence or provide

an opinion regarding the extent of Plaintiffs mental impairments for the later period, and as

a result, no medical professional has reviewed the records or provided an opinion for the time

period covered by Dr. Millet’s treating physician opinion beginning October 1, 2012.”). Here,

the AL] did not obtain the assistance of a medical expert to review the new evidence in light

of the significant changes in Plaintiffs condition, including spinal fusions surgery, and rejected

the only medical opinion for the period after the alleged onset date. In the circumstances, and

in light of the Fourth Circuit’s additional guidance in Arakas and Dowling, the Court cannot

conclude that substantial evidence supports the RFC assessment in the present case.

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be REVERSED, and that the matter be REMANDED to the Commissioner

under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand

the matter to the ALJ for further consideration of Plaintiffs claim in light of the above

recommendation. Defendant’s Motion for Judgment on the Pleadings [Doc. #14] should be

DENIED, and Plaintiffs Motion to Reverse the Decision of the Commissioner [Doc. #12]

should be GRANTED to the extent set out herein. However, to the extent Plaintiff seeks an

immediate awatd of benefits, her Motion is DENIED.

This, the 19% day of February, 2021.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

15