SYKES v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEBORAH SYKES, )

)

Plaintiff, )

)

v. ) 1:19CV1082

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Deborah Sykes, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security,

denying Plaintiff’s claim for Supplemental Security Income (“SSI”).

(Docket Entry 1.) Defendant has filed the certified administrative

record (Docket Entry 9 (cited herein as “Tr. __”)), and both

parties have moved for judgment (Docket Entries 11, 13; see also

Docket Entry 12 (Plaintiff’s Memorandum); Docket Entry 14

(Defendant’s Memorandum); see also Docket Entry 15 (Plaintiff’s

Reply). For the reasons that follow, the Court should remand this

matter for further administrative proceedings.

I. PROCEDURAL HISTORY

Plaintiff applied for SSI (Tr. 275-83) and, upon denial of

that application initially (Tr. 74-87, 104-08) and on

reconsideration (Tr. 88-103, 110-14), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 115).

Plaintiff, her attorney, and a vocational expert (“VE”) attended

the hearing. (Tr. 39-73.) Towards the end of the hearing, the ALJ

determined that, due to outstanding medical evidence not yet in the

record, he would propound post-hearing interrogatories to the VE

following receipt of that evidence (see Tr. 69-70). After

incorporation of that evidence into the record (see Tr. 1243-1311),

the ALJ sent the VE written interrogatories (Tr. 377-80), the VE

provided testimony via written responses to the interrogatories

(id.), and Plaintiff responded (Tr. 384; see also Tr. 381-82 (ALJ’s

service of VE’s written testimony on Plaintiff’s counsel)). The

ALJ subsequently ruled that Plaintiff did not qualify as disabled

under the Act. (Tr. 20-32.) The Appeals Council thereafter denied

Plaintiff’s request for review (Tr. 8-13, 274, 385-86), thereby

making the ALJ’s ruling the Commissioner’s final decision for

purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings:

1. [Plaintiff] has not engaged in substantial gainful

activity since February 9, 2017, the application date.

. . .

2. [Plaintiff] has the following severe impairments:

Lumbar degenerative disc disease, cervical degenerative

disc disease, Arnold-Chiari malformation, carpal tunnel

syndrome, and Prinzmetal angina.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

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the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

4. [Plaintiff] has the residual functional capacity to

perform light work . . . except [she] could only

occasionally balance, stoop, kneel, crouch, and crawl,

and occasionally climb ramps or stairs. Additionally,

[she] could never climb ladders, ropes, or scaffolds.

Moreover, [she] can frequently handle and finger with the

right (dominant) upper extremity. Furthermore, [she]

should never work in an area that has concentrated

exposure to heat or cold or in an area that has

concentrated exposure to humidity and wetness. Finally,

[she] must be in a position that, in addition to normal

breaks, would allow the person to stand for 5 minutes

after sitting for 30 minutes throughout the day but while

remaining at the workstation.

. . .

5. [Plaintiff] has no past relevant work.

. . .

9. Considering [Plaintiff]’s age, education, work

experience, and [RFC], there are jobs that exist in

significant numbers in the national economy that [she]

can perform.

. . .

10. [Plaintiff] has not been under a disability, as

defined in the . . . Act, since February 9, 2017, the

date the application was filed.

(Tr. 24-32 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

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of [the Court’s] review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Even given those limitations, the Court should remand this case for

further administrative proceedings.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

the Court “must uphold the factual findings of the ALJ if they are

supported by substantial evidence and were reached through

application of the correct legal standard.” Hines, 453 F.3d at 561

(internal brackets and quotation marks omitted). “Substantial

evidence means ‘such relevant 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, 401 (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) (brackets and internal

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 marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

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adopted by the Commissioner].” 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

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’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).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, 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 period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).1 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . detailed regulations incorporating longstanding medical-

1 The Act “comprises two disability benefits programs. The Disability Insurance

Benefits Program provides benefits to disabled persons who have contributed to

the program while employed. [SSI] provides benefits to indigent disabled

persons. The statutory definitions and the regulations . . . for determining

disability governing these two programs are, in all aspects relevant here,

substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations

omitted).

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vocational evaluation policies that take into account a claimant’s

age, education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

This sequential evaluation process (“SEP”) has up to five

steps: “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 the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the [RFC] to (4) perform [the

claimant’s] past work or (5) any other work.” Albright v.

Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th

Cir. 1999).2 A finding adverse to the claimant at any of several

points in the SEP forecloses an award and ends the inquiry. 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

each of the first three steps, “the claimant is disabled.” Mastro,

2 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

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270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.3 Step four

then requires 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. See id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ 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

Commissioner cannot carry 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

567.4

3 “RFC 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 regular and continuing basis . . .

[which] means 8 hours 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, or skin impairments).” Hall, 658

F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers

all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,

pain).” Hines, 453 F.3d at 562-63.

4 A claimant thus can establish disability via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

(continued...)

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B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ erred by failing to either accord substantial

weight to the favorable Medicaid [(hereinafter ‘NCDHHS’)] decision

or provide specific, persuasive and valid reasons for not doing so”

(Docket Entry 12 at 4 (bold font and single-spacing omitted));

2) “[t]he ALJ failed to adequately explain the basis for his

RFC assessment” (id. at 9 (bold font omitted)); and

3) “[t]he ALJ erred by failing to evaluate Listing 1.04A in

violation of Radford[ v. Colvin, 734 F.3d 288 (4th Cir. 2013)]”

(id. at 16 (bold font omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 4-21.)

1. NCDHHS Decision

In Plaintiff’s first assignment of error, she maintains that

“[t]he ALJ erred by failing to either accord substantial weight to

the favorable [NCDHHS] decision or provide specific, persuasive and

valid reasons for not doing so” in violation of Woods v. Berryhill,

888 F.3d 686 (4th Cir. 2018). (Docket Entry 12 at 4 (bold font and

4 (...continued)

the claimant’s favor, whereas, on the second path, the claimant must prevail at

steps one, two, four, and five. Some short-hand judicial characterizations of

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

review does not proceed to the next step.”).

8

single-spacing omitted).) More specifically, Plaintiff argues that

the “ALJ cannot accord less weight to an NCDHHS . . . decision

simply because they utilize different rules or are not binding on

SSA as this ‘generic explanation, which could apply to every []

decision, is neither persuasive nor specific.’” (Id. at 7 (quoting

Woods, 888 F.3d at 693, and citing Pridgen v. Colvin, No. 4:15CV95,

2016 WL 4047058, at *3-4 (E.D.N.C. Jun. 30, 2016) (unpublished),

recommendation adopted, 2016 WL 4046763 (E.D.N.C. Jul. 27, 2016)

(unpublished), and Northen v. Colvin, No. 1:15CV445, 2016 WL

5956636, at *5 (M.D.N.C. Oct. 12, 2016) (unpublished) (Peake,

M.J.), recommendation adopted, slip op. (M.D.N.C. Nov. 9, 2016)

(Schroeder, J.)).) Plaintiff additionally contends that “the ALJ’s

statement that[,] ‘to the extent the [NCD]HHS decision suggests

greater limitations than found [in the RFC,] this rating is

inconsistent with the evidence as a whole per the [ALJ’s]

discussion [of the medical evidence]’ is completely conclusory

without any citation to specific pieces of evidence which are

inconsistent with the NCDHHS decision and without explaining how

such evidence undercuts the NCDHHS decision.” (Id. at 7-8 (quoting

Tr. 31, and citing Sabourin v. Saul, No. 5:18CV410, at 7 (E.D.N.C.

Jul. 15, 2019) (unpublished), Miles v. Saul, No. 5:18CV422, at 12

(E.D.N.C. Sept. 6, 2019) (unpublished))). According to Plaintiff,

“[t]he ALJ engaged in no substantive analysis of [the] NCDHHS

decision and thus, the ALJ’s decision must be vacated and the claim

9

remanded for compliance with Woods.” (Id. at 9.) Plaintiff’s

contentions have merit and warrant remand.

The United States Court of Appeals for the Fourth Circuit

addressed for the first time the “weight that the SSA must afford

to a VA disability rating” in Bird v. Commission of Soc. Sec.

Admin., 699 F.3d 337, 343 (4th Cir. 2012). In that case, after

reviewing the “varying degrees of evidentiary significance” other

circuits afford VA disability ratings, the Fourth Circuit held as

follows:

The VA rating decision reached in [the plaintiff’s] case

resulted from an evaluation of the same condition and the

same underlying evidence that was relevant to the

decision facing the SSA. Like the VA, the SSA was

required to undertake a comprehensive evaluation of [the

plaintiff’s] medical condition. Because the purpose and

evaluation methodology of both programs are closely

related, a disability rating by one of the two agencies

is highly relevant to the disability determination of the

other agency. Thus, we hold that, in making a disability

determination, the SSA must give substantial weight toa

VA disability rating. However, because the SSA employs

its own standards for evaluating a claimant’s alleged

disability, and because the effective date of coverage

for a claimant’s disability under the two programs likely

will vary, an ALJ may give less weight to a VA disability

rating when the record before the ALJ clearly

demonstrates that such a deviation is appropriate.

Bird, 699 F.3d at 343 (emphasis added).

Following Bird, the Fourth Circuit further clarified “what an

ALJ must do” to clearly demonstrate the appropriateness of a

deviation from Bird’s substantial weight standard in a case

involving an NCDHHS disability determination:

10

We now conclude, consistent with our sister circuits,

that in order to demonstrate that it is “appropriate” to

accord less than “substantial weight” to an NCDHHS

disability decision, an ALJ must give “persuasive,

specific, valid reasons for doing so that are supported

by the record.”

Woods, 888 F.3d at 692 (quoting McCartey v. Massanari, 298 F.3d

1072, 1076 (9th Cir. 2002)) (emphasis added); see also Social

Security Ruling 06-03p, Titles IT and XVI: Considering Opinions and

Other Evidence from Sources Who Are Not “Acceptable Medical

Sources” in Disability Claims; Considering Decisions on Disability

by Other Governmental and Nongovernmental Agencies, 2006 WL

2329939, at *6-7 (Aug. 9, 2006) (“SSR 06-030”) (“[E]vidence of a

disability decision by another governmental .. . agency cannot be

ignored and must be considered,” and “the [ALJ] should explain the

consideration given to these decisions in the notice of

decision”)

In this case, the NCDHHS issued a disability determination on

December 4, 2017, reversing the decision of the Randolph County

Department of Social Services, and finding that Plaintiff qualified

° For claims filed on or after March 27, 2017, the SSA has rescinded SSR 06-03p

and amended 20 C.F.R. $$ 404.1504 and 416.904. See 82 Fed. Reg. 5844 (Jan. 18,

2017); 82 Fed. Reg. 15263-01 (Mar. 27, 2017). The new regulations state that the

SSA “will not provide any analysis in [its] determination or decision about a

decision made by any other governmental agency or a nongovernmental entity about

whether you are disabled, blind, employable, or entitled to any benefits,” 20

C.F.R. § 416.904. In rescinding SSR 06-03p, the SSA noted that, for claims filed

on or after March 27, 2017, ALJs “will not provide any articulation about their

consideration of decisions from other governmental agencies and nongovernmental

entities because this evidence is inherently neither valuable nor persuasive.”

82 Fed. Reg. 15263-01. Because Plaintiff filed her claims for SSI in February

2017 (see Tr. 275-83), this Recommendation will apply SSR 06-03p and the prior

version of Section 416.904 to Plaintiff’s contentions in her first assignment of

error.

11

as disabled as of May 2017. (See Tr. 367-69.) In support of that

finding, the NCDHHS provided the following analysis:

[Plaintiff]’s ability to perform work at all exertional

levels has been compromised by the need to alternate

sitting and standing to the point that these limitations

so narrow the range of work [Plaintiff] might otherwise

perform that a finding of “disabled” is appropriate under

the framework of section 204.00 in the Medical-Vocational

Guidelines in accordance with Social Security Rulings

96-8p and 96-9p in which the inability to work

consistently for eight hours of an eight hour workday

without alternating standing and walking that could not

be accommodated by scheduled breaks and a lunch period

would severely erode the occupational base at all

exertional levels.

(Tr. 369 (emphasis added).) The ALJ analyzed and weighed the

NCDHHS’s determination as follows:

The [ALJ] gives little weight to the [NCDHHS] decision of

record . . ., indicating a finding of disability as of

December 4, 2017. [NCD]HHS decisions utilize standards

for determining disability that are different from those

used by the [SSA], and the ultimate issue of disability

is one reserved solely to the Commissioner of Social

Security. Further, to the extent the [NCD]HHS decision

suggests greater limitations than found above this rating

is inconsistent with the evidence as a whole per the

above discussion (Ex.14F, Ex.20F, Ex.21F, Ex.22F, and

Ex.31F). Therefore, the [ALJ] gives these findings

little weight.

(Tr. 30-31 (emphasis added).)

The ALJ’s consideration of the NCDHHS’s disability

determination runs afoul of Woods. To begin, the ALJ’s statement

that the NCDHHS’s disability determination “utilize[d] standards

for determining disability that [we]re different from those used by

the [SSA]” (Tr. 30) disregards the fact that, as emphasized above,

the NCDHHS expressly relied upon the SSA’s standards for disability

12

in its decision (see Tr. 369). Further, in Woods, the Fourth

Circuit explicitly rejected the ALJ’s discounting of an NCDHHS

disability determination because the determination did not bind the

Commissioner and because that agency utilized different disability

standards, noting that such a “generic explanation, which could

apply to every NCDHHS decision, [wa]s neither persuasive nor

specific.” Woods, 888 F.3d at 693; see also Northen, 2016 WL

5956636, at *5 (“As this Court has previously explained, citing to

different rules and different standards as a rationale to give less

than substantial weight to a VA disability determination is not

enough, because such a rationale would apply to every case, and

thus cannot clearly demonstrate a reason for departing from the

Bird presumption.”).

Moreover, the ALJ’s reliance upon the SSA’s rule that the

“ultimate issue of disability is one reserved solely to the

Commissioner” (Tr. 30), see 20 C.F.R. § 416.927(d), does not supply

a “persuasive, specific, valid reason[]” for deviating from the

substantial weight standard. Although that rule supports the ALJ’s

decision to accord “little weight” (Tr. 30) to the NCDHHS’s

ultimate determination that Plaintiff qualified as disabled (see

Tr. 369), it did not authorize the ALJ to disregard the NCDHHS’s

specific findings that Plaintiff “retain[ed] the ability to engage

in less than sedentary work” (Tr. 368), that, “[d]ue to the

severity of her pain, she [wa]s not able to be up and about to

13

manage her daily activities” (id.), and that her “ability to

perform work at all exertional levels ha[d] been compromised by the

need to alternate sitting and standing . . . that could not be

accommodated by scheduled breaks and a lunch period” (Tr. 369).

The Commissioner “acknowledges that the ALJ’s statement that

the [NCDHHS] ‘utilize[s] standards for determining disability that

are different from those used by the [SSA]’ appears to be unsound”

(Docket Entry 14 at 6 (quoting Tr. 30)), but offers “two reasons”

why that unsound statement provides “no basis to disturb the ALJ

giving little weight to the [NCDHHS] decision” (id.). Neither of

those arguments render the ALJ’s error harmless.

First, the Commissioner contends that “the Hearing Officer in

the [NCDHHS] decision [] did not properly follow Social Security

policy” (id.), because she “found that Plaintiff would need to

alternate between sitting and standing outside of scheduled breaks

and a lunch period” without consulting “a vocational resource . . .

to clarify the implications for the occupational base” (id. at 7

(internal quotation marks omitted)). In response, Plaintiff

counters that “such an argument would eviscerate the [Fourth

Circuit’s] holding in Woods as it would apply to every case as the

NCDHHS does not utilize VEs as ALJ’s [sic] in SSA hearings do.”

(Docket Entry 15 at 1.) Plaintiff “[a]dditionally” deems the

Commissioner’s “argument [] a post hoc rationalization[,] as the

ALJ did not state that the lack of VE consultation at the NCDHHS

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hearing was why he assigned the determination little weight.” (Id.

(citing Tr. 30-31).)

The Court need not decide whether the NCDHHS Hearing Officer

erred by not consulting a vocational resource before determining

that Plaintiff’s need to alternate sitting and standing eroded the

occupational base to the point of disability (see Tr. 369).

Although the ALJ here could have relied on the absence of a

vocational resource supporting the Hearing Officer’s disability

conclusion to reject the NCDHHS decision, the ALJ did not do so,

and this Court’s “[r]eview of the ALJ’s ruling is limited [ ] by

the so-called ‘Chenery Doctrine,’ which prohibits courts from

considering post hoc rationalizations in defense of administrative

agency decisions.” Anderson v. Colvin, No. 1:10CV671, 2014 WL

1224726, at *1 (M.D.N.C. Mar. 25, 2014) (unpublished) (Osteen, Jr.,

C.J.) (citing Securities & Exch. Comm’n v. Chenery Corp., 332 U.S.

194, 196 (1947)). “Under th[at] doctrine, a reviewing court ‘must

judge the propriety of [agency] action solely by the grounds

invoked by the agency[, and i]f those grounds are inadequate or

improper, the court is powerless to affirm the administrative

action by substituting what it considers to be a more adequate or

proper basis.’” Id. (quoting Chenery, 332 U.S. at 196).

Second, the Commissioner maintains that “the ALJ otherwise

provided an adequate explanation for giving little weight to the

[NCDHHS] decision” by “specifically discuss[ing] the only medical

evidence cited in the [NCDHHS] decision — Plaintiff’s May 2017

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examination with Dr. [James S.] Kramer.” (Docket Entry 14 at 8

(citing Tr. 28, 845).) According to the Commissioner, “[t]he ALJ

reasonably found that Dr. Kramer’s examination supported finding

that Plaintiff was limited by cervical and lumbar spine disorders,

but not to such an extent that she would be unable to perform a

range of light work.” (Id. (citing Tr. 27-28, 31); see also id. at

8-9 (noting ALJ’s discussion of “mildly” positive straight leg

raising test, “mildly decreased” cervical range of motion, normal

gait, and normal neurological findings in upper extremities at Dr.

Kramer’s examination (quoting Tr. 28, and citing Tr. 845)).)

Plaintiff, in turn, faults the Commissioner for “engaging in

a post hoc analysis of the evidence which he argues supports the

ALJ’s decision to give the NCDHHS [decision] little weight” (Docket

Entry 15 at 2 (citing Docket Entry 14 at 8-11)), and notes that

“the ALJ did not engage in this analysis when evaluating the NCDHHS

decision” (id.). Plaintiff urges that, under Woods, “the ALJ does

not satisfy his duty to evaluate the NCDHHS decision by simply

referring the reader back to his analysis of the underlying medical

evidence generally:

[T]he Commissioner argues that because the ALJ’s decision

as a whole makes clear that he considered the same

evidence on which the NCDHHS decision relied, the ALJ did

not need to refer expressly to that evidence in

discussing the NCDHHS decision. We cannot agree. It may

well be that the ALJ considered this evidence in deciding

both which doctors and evidence to credit and whether the

NCDHHS decision deserved substantial weight. But

meaningful review cannot rest on such guesswork.”

(Id. (quoting Woods, 888 F.3d at 693-94).

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In Woods, the Fourth Circuit rejected the following analysis

offered by the ALJ to support the decision to accord little weight

to the NCDHHS disability decision in question:

The [ALJ] has considered the [NCDHHS’s] ruling finding

the claimant met the criteria for Medicaid eligibility.

However, Social Security Ruling 06–03p states that:

[a] decision by any other governmental agency

about whether you are disabled to [sic] blind

is based on its rules and is not our decision

about whether you are disabled or blind. We

must make a disability or blindness

determination based on social security law.

Therefore, a determination made by another

agency that you are disabled or blind is not

binding on us.

As such, the [ALJ] assigns this ruling little weight, as

each program is independent and distinct enough to make

it possible that even a disabled Medicaid recipient can

be denied SSA benefits. Moreover, the Medicaid

determination specifically states that “this decision in

no way affects any pending or future claims for Social

Security or [SSI] benefits.

Woods, 888 F.3d at 693 (internal ellipsis and parenthetical

citation omitted). Here, the ALJ provided a little more analysis

than the ALJ in Woods, i.e., the statement that “to the extent the

[NCD]HHS decision suggests greater limitations than found [in the

RFC,] this rating is inconsistent with the evidence as a whole per

the [] discussion [of the medical evidence] (Ex.14F, Ex.20F,

Ex.21F, Ex.22F, and Ex.31F)” (Tr. 30-31), but did not offer any of

the analysis argued post hoc by the Commissioner (see Docket Entry

14 at 6-11). Thus, the question before the Court narrows to

whether the ALJ’s above-quoted statement provides “persuasive,

specific, valid reasons for [deviating from the substantial weight

17

standard] that are supported by the record.” Woods, 888 F.3d at

692.

As the ALJ’s above-quoted statement makes clear, he merely

cited to “the evidence as a whole” and entire exhibits as

“inconsistent” with the NCDHHS decision, rather than to specific

pages (let alone to specific objective medical findings) within

those exhibits. (Tr. 30 (emphasis added).) Those exhibits contain

findings that lend support to Plaintiff’s claim of disabling

impairments. (See, e.g., Tr. 845 (Dr. Kramer’s 5/24/17 examination

noting left hip pain on range of motion), 918 (follow-up

examination on 3/6/18 by Dr. Anna Voytek interpreting lumbar MRI as

showing “foraminal [herniated nucleus pulposus] at L4-5 to the left

compressing the L5 nerve root, but also broad disc bulging at L5-Sl

with some bilateral foraminal narrowing” as well as documenting

weakness in left hip and foot and decreased reflexes at knees and

ankles), 919-20 (lumbar MRI interpreted by Dr. Voytek), 928

(4/19/18 office visit with Dr. Henry A. Pool reflecting his opinion

that lumbar MRI showed “significant lumbar disc degeneration and

associated disc bulging at L4-5” (emphasis added)), 938 (treatment

by Dr. Pool on 12/17/17 recording his interpretation of cervical

MRI as reflecting “moderate stable spondylosis above the level of

her previous fusion” (emphasis added)), 941-43 (cervical MRI

interpreted by Dr. Pool).) The ALJ’s citation to those exhibits in

only a general fashion (and incorporation of his prior evaluation

of that evidence which glossed over the favorable findings listed

18

above (see Tr. 28-30)), does not provide persuasive, specific, or

valid reasons for deviating from the substantial weight standard.

(See Tr. 30-31.) Moreover, the ALJ did not specifically discuss

the facts on which the NCDHHS relied in reaching its disability

determination, let alone “explain which aspects of [that] decision

he f[ound] not credible and why, describe why he f[ound] other

evidence more credible, [or] discuss the effect of any new evidence

made available after NCDHHS issued its decision,” Woods, 888 F.3d

at 692. (See Tr. 30-31.)

In sum, the ALJ’s failure to provide “persuasive, specific,

valid reasons,” Woods, 888 F.3d at 693, for rejecting the NCDHHS’s

disability determination warrants remand.

2. RFC

Next, Plaintiff maintains that “[t]he ALJ failed to adequately

explain the basis for his RFC assessment.” (Docket Entry 12 at 9

(bold font omitted).) In particular, Plaintiff deems “unclear what

the ALJ mean[t] by [finding that Plaintiff could] ‘alternate

between 5 minutes of standing following 30 minutes of sitting

throughout the workday.’” (Id. at 10 (quoting Tr. 30).) According

to Plaintiff, if that finding “mean[t] that [Plaintiff] c[ould] sit

for 30 minutes, then stand for 5 minutes, then go back to sitting

for 30 minutes while staying on task throughout the workday[,]

. . . then [Plaintiff] would only be standing for about one hour

per day total.” (Id. at 10-11.) Plaintiff characterizes that

19

finding as “inconsistent with a light RFC, which requires up to six

hours of standing and walking in an eight-hour workday[,] and

posits that such a “restriction would equate to less than sedentary

exertion.” (Id. at 11 (citing, inter alia, 20 C.F.R.

§ 404.1567 (a))).

Plaintiff further points out that, “[e]ven if found capable of

the full range of sedentary work, [she] would still be disabled

pursuant to the [Medical-Vocational Guidelines] as she has no [past

relevant work], turned 50 years old [during the relevant period]

and has a high school education without direct entry into skilled

work.” (Id. (citing 20 C.F.R. Pt. 404, Subpt. P, App’x [2,

§ ]201.12).) Plaintiff additionally argues that “an unresolved

apparent conflict [would then exist] between the interrogatory

responses of the [VE] ([Tr.] 378-79) and the [Dictionary of

Occupational Titles] (‘[DOT]’) regarding [Plaintiff’s] ability to

perform the[] ‘light’ jobs cited at [s]tep [f]ive of the SEP...

([Tr.] 32).” (Docket Entry 12 at 11 (citing Pearson v. Colvin, 810

F.3d 204, 210-12 (4th Cir. 2015), Social Security Ruling 00-4p,

Policy Interpretation Ruling: Titles II and XVI: Use of a [VE] and

Vocational Specialist Evidence, and Other Reliable Occupational

Information in Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000)

(“SSR 00-4p”), DOT, No. 209.587-034 (“Marker”), 1991 WL 671802; No.

222.587-038 (“Router”), 1991 WL 672123; No. 706.684-022

(“Assembler, Small Products 1”), 1991 WL 679050 (G.P.0. 4th ed.

20

rev. 1991)).) Plaintiff’s contentions do not provide a basis for

relief.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 416.945(a). An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s

impairments, as well as any related symptoms, including pain. See

Hines, 453 F.3d at 562–63; 20 C.F.R. § 416.945(b). The ALJ then

must match the claimant’s exertional abilities to an appropriate

level of work (i.e., sedentary, light, medium, heavy, or very

heavy). See 20 C.F.R. § 416.967. Any non-exertional limitations

may further restrict a claimant’s ability to perform jobs within an

exertional level. See 20 C.F.R. § 416.969a(c).

“The RFC assessment must include a narrative discussion

describing how the evidence supports each conclusion, citing

specific medical facts (e.g., laboratory findings) and nonmedical

evidence (e.g., daily activities, observations). . . . The [ALJ]

must also explain how any material inconsistencies or ambiguities

in the evidence in the case record were considered and resolved.”

Social Security Ruling 96-8p, Policy Interpretation Ruling Titles

II and XVI: Assessing [RFC] in Initial Claims, 1996 WL 374184, at

*7 (July 2, 1996) (“SSR 96-8p”). Although the ALJ need not discuss

every piece of evidence in making an RFC determination, see Reid v.

Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014), he or

she “must both identify evidence that supports his [or her]

21

conclusion and build an accurate and logical bridge from that

evidence to [that] conclusion,” Woods, 888 F.3d at 694 (internal

emphasis, quotation marks, and brackets omitted).

Plaintiff’s contention that the ALJ’s inclusion in the RFC of

an option to alternate 30 minutes of sitting with 5 minutes of

standing outside of normal breaks renders the RFC “less than

sedentary exertion” (see Docket Entry 12 at 11) misses the mark.

Social Security Ruling 83–12, Titles II and XVI: Capability to Do

Other Work—the Medical–Vocational Rules as a Framework for

Evaluating Exertional Limitations Within a Range of Work or Between

Ranges of Work, 1983 WL 31253 (1983) (“SSR 83–12”) explains an

ALJ’s obligations when a claimant’s RFC falls between two

exertional levels as follows:

Where an individual’s exertional RFC does not coincide

with the definition of any one of the ranges of work

. . ., the occupational base is affected and may or may

not represent a significant number of jobs . . . . The

[ALJ] will consider the extent of any erosion of the

occupational base and a[ss]ess its significance. . . .

Where the extent of erosion of the occupational base is

not clear, the [ALJ] will need to consult a vocational

resource.

. . .

In some disability claims, the medical facts lead to an

assessment of RFC which is compatible with the

performance of either sedentary or light work except that

the person must alternate periods of sitting and

standing. . . . Such an individual is not functionally

capable of doing either the prolonged sitting

contemplated in the definition of sedentary work . . . or

the prolonged standing or walking contemplated for most

light work. . . .

22

In cases of unusual limitation of ability to sit or

stand, a V[E] should be consulted to clarify the

implications for the occupational base.

SSR 83-12, 1983 WL 31253, at *2-4.

Here, the ALJ complied with the above-quoted requirements of

SSR 83-12. In his written interrogatories to the VE, the ALJ posed

the following hypothetical to the VE:

Assume a hypothetical individual [aged 49 to 50 during

the relevant period who] has at least a high school

education/GED and is able to communicate in English...

and has no work experience.

[P]lease assume further that this individual has the

. . . RFC[] to perform light work as defined in 20 CFR

416.96/7(b) except . . . this individual must be ina

position that, in addition to normal breaks, would allow

the person to stand for 5 minutes after sitting for 30

minutes throughout the day but while remaining □□ □□□

workstation.

(Tr. 378 (emphasis added).)°® Thus, the ALJ’s hypothetical

contemplated an individual who could perform the lifting and

Carrying requirements of light work but not the standing and

walking requirements of such work. In response, the VE indicated

that such an individual would remain capable of performing three

different light occupations available in significant numbers in the

national economy. (Tr. 379.) SSR 83-12 requires nothing more of

the ALJ.

Section 416.967(b) defines “[l]Jight work” as “involv[ing] lifting no more than

20 pounds at a time with frequent lifting or carrying of objects weighing up to

10 pounds.” 20 C.F.R. § 416.967(b).

23

In sum, Plaintiff’s second assignment of error falls short.7

3. Listing 1.04A

Lastly, Plaintiff contends that “[t]he ALJ erred by failing to

evaluate Listing 1.04A in violation of Radford.” (Docket Entry 12

at 16 (bold font omitted).) In that regard, Plaintiff argues that,

“[d]espite the presence of both cervical and lumbar [degenerative

disc disease] with ongoing radiculopathy in the medical record, the

ALJ did not even mention, much less evaluate Listing 1.04A in his

decision.” (Id. (citing Tr. 27).) Plaintiff characterizes that

error as “harmful,” and contends that “all the criteria of [

L]isting [1.04A] are present in [Plaintiff’s] medical record.”

(Id.)

“Under Step 3, the [Social Security Administration’s SEP]

regulation states that a claimant will be found disabled if he or

7 Plaintiff additionally argues that “the ALJ’s general statement that

[Plaintiff’s] conditions had been ‘controlled with conservative measures’ per the

record ([Tr.] 29) is not accompanied by citations to the record noting that her

pain levels were adequately controlled with conservative measures such as

medication nor is it accompanied by citations to the record indicating that

[Plaintiff’s] treatment allowed her to function sufficiently to perform tasks as

required by the RFC.” (Docket Entry 12 at 12.) However, as the Commissioner

correctly points out:

[T]he ALJ’s reference that Plaintiff’s “impairments remained

controlled with conservative treatment measures” is clearly with

reference to her cardiovascular impairments and fully supported by

the record (Tr. 29). The ALJ made this statement at the end of a

paragraph discussing Plaintiff[’s] most recent cardiology

appointment from May 2018, where her examination was normal and her

medications were continued (Tr. 29, 696). Plaintiff admitted at the

hearing that these conditions were “controlled pretty well” (Tr.

66).

(Docket Entry 14 at 15.) Thus, the ALJ’s finding that Plaintiff’s cardiac

impairments remained “controlled with conservative measures” (Tr. 29) provides

no basis to disturb the ALJ’s RFC determination.

24

she has an impairment that ‘meets or equals one of [the] listings

in appendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the

duration requirement.’” Radford, 734 F.3d at 293 (quoting 20

C.F.R. § 404.1520 (a) (4) (111)) (internal bracketed numbers omitted).

“The listings set out at 20 CFR pt. 404, subpt. P, App. 1, are

descriptions of various physical and mental illnesses and

abnormalities, most of which are categorized by the body system

they affect. Fach impairment is defined in terms of several

specific medical signs, symptoms, or laboratory test results.”

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote

and parentheticals omitted).

“In order to satisfy a listing and qualify for benefits, a

person must meet all of the medical criteria in a particular

listing.” Bennett, 917 F.2d at 160 (citing Zebley, 493 U.S. at

530, and 20 C.F.R. § 404.1526(a)); see also Zebley, 493 U.S. at 530

(“An impairment that manifests only some of those criteria [in a

listing], no matter how severely, does not qualify.”). “An

impairment or combination of impairments medically equals a listing

when it is at least equal in severity and duration to the criteria

of any listed impairment.” Grimes v. Colvin, No. 1:14CV891, 2016

WL 1312031, at *4 (M.D.N.C. Mar. 31, 2016) (unpublished) (Osteen,

Jr., C.J.) (citing 20 C.F.R. § 416.926(a)-(b)); see also Lewis v.

Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (“A finding of medical

equivalence must be based on medical evidence only.” (citing 20

C.F.R. § 404.1529(d)(3)) (emphasis added)). “A claimant cannot

25

qualify for benefits under the ‘equivalence’ step by showing that

the overall functional impact of [her] unlisted impairment or

combination of impairments is as severe as that of a listed

impairment.” Zebley, 493 U.S. at 531 (emphasis added).

“[TO]nly where there is ample evidence in the record to support

a determination that a claimant’s impairment meets or equals one of

the listed impairments must the ALJ identify the relevant listed

impairments and compare them to evidence of a plaintiff’s

symptoms.” Reynolds v. Astrue, No. 3:11CV49, 2012 WL 748668, at *4

(W.D.N.C. Mar. 8, 2012) (unpublished) (emphasis added) (citing Cook

v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)); see also

Russell v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL

417576, at *3 (4th Cir. July 7, 1995) (unpublished) (“Cook,

however, does not establish an inflexible rule requiring an

exhaustive point-by-point discussion [of listings] in all

cases.”).°

8 The Cook court’s confinement of the ALJ's duty to explicitly identify listings

and compare their elements to the record to situations in which the claimant

comes forward with “ample evidence” that an impairment meets a listing makes

sense. “Step two of the [SEP] is a threshold question with a de minimis severity

requirement,” Felton-Miller v. Astrue, 459 F. App’x 226, 230 (4th Cir. 2011)

(citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)), but “[t]he criteria in

the medical listings [at step three] are demanding and stringent,” Falco v.

Shalala, 27 F.3d 160, 162 (5th Cir. 1994) (internal quotation marks omitted); see

also Zebley, 493 U.S. at 532 (“[The Social Security Administration] has set the

medical criteria defining the listed impairments at a higher level of severity

than the statutory [disability] standard.”). Accordingly, the mere fact that

an impairment qualifies as severe at step two does not suggest that it meets a

listing at step three. No reason thus exists for courts to require ALJs to

document the manner in which every impairment deemed severe at step two fails to

meet a listing at step three; rather, common sense supports the Fourth Circuit’s

decision in Cook to insist that ALJs discuss a specific listing only when the

claimant marshals “ample evidence” that an impairment actually meets the criteria

(continued...)

26

For Listing 1.04A, a claimant must offer proof not only of a

“[d]isorder[] of the spine,” such as “degenerative disc disease,”

but also “result[ant] compromise of a nerve root,” 20 C.F.R. Pt.

404, Subpt. P, App’x 1, § 1.04, and:

[e]vidence of nerve root compression characterized by

neuroanatomic distribution of pain, limitation of motion

of the spine, motor loss (atrophy with associated muscle

weakness or muscle weakness) accompanied by sensory or

reflex loss and, if there is involvement of the lower

back, positive straight-leg raising test (sitting and

supine).

Id., § 1.04A. “Listing 1.04A requires a claimant to show only what

it requires him [or her] to show: that each of the symptoms are

present, and that the claimant has suffered or can be expected to

suffer from nerve root compression continuously for at least 12

months.” Radford, 734 F.3d at 294. In other words, a “claimant

need not show that each symptom was present at precisely the same

time — i.e., simultaneously — in order to establish the chronic

nature of his [or her] condition[, n]lor need a claimant show that

the symptoms were present in the claimant in particularly close

proximity.” Id.; see also Social Security Acquiescence Ruling

15-1(4), Radford v. Colvin: Standard for Meeting the Listing for

Disorders of the Spine with Evidence of Nerve Root Compression,

2015 WL 5697481, at *5 (Sept. 23, 2015) (“AR “) (providing that

8 (...continued)

for that listing. Nor does the more recent ruling in Radford counsel otherwise.

Although the Fourth Circuit there remanded due to an ALJ’s “insufficient legal

analysis” at step three, it did so consistently with the standard set in Cook,

as the record contained “probative evidence strongly suggesting that [the

claimant] me[t] or equalled a particular listing].” Radford, 734 F.3d at 295.

27

ALJs must “decide whether the evidence shows that all of the

medical criteria in paragraph A [of Listing 1.04] are present

within a continuous 12-month period” (emphasis added)).

In this case, the ALJ neither specifically mentioned Listing

1.04A in his decision (stating only that he “assessed the

claimant’s impairments under §1.00 Musculoskeletal System” (Tr. 27

(emphasis omitted))), nor provided any specific, evidence-based

analysis supporting his finding that Plaintiff’s impairments did

not meet or equal the criteria of any listings (finding generally

that “the medical evidence falls short of the criteria of the

section, and no medical source has mentioned findings equivalent in

severity to the criteria of any listed impairment” (id.)).

However, the ALJ’s omission of such analysis remains harmless under

the facts presented here because, as discussed more fully below,

Plaintiff cannot show “there is ample evidence in the record to

support a determination that [she] met or equal[]ed” Listing 1.04A,

Cook, 783 F.2d at 1172 (emphasis added).

The record demonstrates that Plaintiff suffered from lumbar

degenerative disc disease (see Tr. 845 (Dr. Kramer’s 5/24/17

diagnosis), 927 (Dr. Pool’s 4/19/18 diagnosis)), resulting in

compression of the left L5 nerve root (see Tr. 918 (Dr. Voytek’s

3/16/18 assessment), 920 (3/1/18 lumbar MRI showing “disc bulge and

left subarticular/foraminal disc protrusion with mild bilateral

foraminal narrowing and contact upon the descending left L5 nerve

root”)), complaints of neuro-anatomic distribution of Plaintiff’s

28

pain (see, e.g., Tr. 1058 (11/21/17 report of left-sided lower back

pain radiating into left leg)), and one instance of limitation of

motion in Plaintiff’s lumbar spine (see Tr. 1086 (9/28/17 finding

of “some” decreased lumbar range of motion due to pain)), all of

which occurred within a continuous 12-month period from May 2017 to

May 2018. However, the record reveals just one incidence of reflex

loss in Plaintiff’s right lower extremity (which would not

correlate with her left-sided nerve root compression) (see Tr. 1034

(3/26/18 report)), only one mildly positive straight-leg raise test

(without specification if sitting or supine) (see Tr. 845

(5/24/17)), and one report of decreased sensation in the left lower

extremity which occurred outside of the continuous 12-month period

specified above (see Tr. 1307 (10/8/18 office visit)). Moreover,

although the record contains one occurrence of reduced strength in

Plaintiff’s left lower extremity during that 12-month period (see

Tr. 1058 (11/21/17 finding of 4/5 strength in left leg)), “sensory

or reflex loss” did not “accompan[y]” that “motor loss” as required

by Listing 1.04A, 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.04A.

As Plaintiff has not shown that “ample evidence [exists] in

the record to support a determination that [she] met or equal[]ed”

Listing 1.04A, Cook, 783 F.2d at 1172 (emphasis added), she has not

29

established entitlement to remand arising out of the ALJ’s step

three listing analysis.9

III. CONCLUSION

Plaintiff has established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated, and that this matter be remanded

under sentence four of 42 U.S.C. § 405(g) for further

administrative proceedings consistent with this opinion, to include

re-evaluation and weighing of the NCDHHS decision in accordance

with Woods. As a result, Plaintiff’s Motion for Judgment on the

Pleadings (Docket Entry 11) should be granted, and Defendant’s

Motion for Judgment on the Pleadings (Docket Entry 13) should be

denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 2, 2021

9 Plaintiff contends that “the ALJ’s boilerplate rejection of [ L]isting [1.04A]

was [not] harmless as it is not inconceivable that the listing could be met.”

(Docket Entry 15 at 6 (emphasis added) (citing Suggs v. Astrue, No. 4:11CV128,

2013 WL 466406, at *4 (E.D.N.C. Feb. 7, 2013) (unpublished)).) However, neither

case law nor the SSA’s regulations and policies require an ALJ to specifically

analyze every listing where a “[]conceivable” possibility exists, no matter how

remote, that a claimant could meet or equal that listing. Rather, as discussed

above, “only where there is ample evidence in the record to support a

determination that a claimant’s impairment meets or equals one of the listed

impairments must the ALJ identify the relevant listed impairments and compare

them to evidence of a plaintiff’s symptoms.” Reynolds, 2012 WL 748668, at *4

(emphasis added) (citing Cook, 783 F.2d at 1172-73).

30