DAVIS v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MEGAN M. DAVIS, )

)

Plaintiff, )

)

v. ) 1:20CV590

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Megan M. Davis, brought this action pursuant to the

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

final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claim for Disability Insurance

Benefits (“DIB”). (Docket Entry 2.) Defendant has filed the

certified administrative record (Docket Entries 11, 12 (cited

herein as “Tr. __”)), and both parties have moved for judgment

(Docket Entries 15, 18; see also Docket Entry 16 (Plaintiff’s

Brief); Docket Entry 19 (Defendant’s Memorandum). For the reasons

that follow, the Court should remand this matter for a calculation

of disability benefits.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties

need take any further action to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of

May 3, 2015. (Tr. 241-49.)2 Upon denial of that application

initially (Tr. 112-27, 151-54) and on reconsideration (Tr. 128-46,

157-59), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 160-61). Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 35-79.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 14-27.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

238-39, 336-37), thereby making the ALJ’s ruling the Commissioner’s

final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] last met the insured status requirements

of the . . . Act on December 31, 2016.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from her alleged onset date of

May 3, 2015 through her date last insured of December 31,

2016.

3. Through the date last insured, [Plaintiff] had the

following severe impairments: diabetes mellitus, status

post gallbladder removal, gastroparesis, gastritis,

chronic cyclical vomiting syndrome, status post gastric

2 Plaintiff previously applied for DIB on February 22, 2012 (denied at the

initial level of review and not pursued further) (see Tr. 113), and on November

27, 2012 (denied by an ALJ on May 1, 2015 (see Tr. 80-98), and finalized by the

Appeals Council’s denial of Plaintiff’s request for review on September 15, 2016

(see Tr. 105-11)).

2

bypass, gastro esophageal reflux disease, opioid

dependence, depression, and anxiety.

. . .

4. Through the date last insured, [Plaintiff] did not

have an impairment or combination of impairments that met

or medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1.

. . .

5. . . . [T]hrough the date last insured, [Plaintiff]

had the residual functional capacity to perform light

work . . . except she can occasionally climb and balance.

She must avoid concentrated exposure to workplace hazards

such as unprotected heights and dangerous machinery. She

is limited to simple work and no fast-paced work, such as

production work.

. . .

6. Through the date last insured, [Plaintiff] was

unable to perform any past relevant work.

. . .

10. Through the date last insured, considering

[Plaintiff]’s age, education, work experience, and

residual functional capacity, there were jobs that

existed in significant numbers in the national economy

that [Plaintiff] could have performed.

. . .

11. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from May 3, 2015, the

alleged onset date, through December 31, 2016, the date

last insured.

(Tr. 19-26 (bold font and internal parenthetical citations

omitted).)

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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

of . . . 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 a

calculation of disability benefits.

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, “a

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] 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, 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 brackets and quotation marks omitted). “If

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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

adopted by the Social Security 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 [Social Security 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

5

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).3 “To regularize the

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

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-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. (internal citations

omitted).

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 residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2

3 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . 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).

6

(4th Cir. 1999).4 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,

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 residual functional capacity

(‘RFC’).” Id. at 179.5 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. Id. at

4 “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

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

5 “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.

7

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 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 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 567.6

B. Assignment of Error

In Plaintiff’s first and only assignment of error, she asserts

that “[t]he ALJ failed to follow the treating physician rule,

rejecting the opinions of treating physicians [Joseph R.] Merrill

and [Celia A.] Garner without providing appropriate reasons,

relying in [sic] his own mischaracterizations and selective reading

of the record to support his rejection.” (Docket Entry 16 at 3

(bold font and single-spacing omitted).) In particular, Plaintiff

contends that the ALJ improperly 1) discounted the opinions of Drs.

6 A claimant thus can qualify as disabled via two paths through the SEP.

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

in 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

Merrill and Garner because of normal physical examinations, lab

tests, and imaging results, when “there is no test to prove

Plaintiff has cyclic vomiting syndrome [(‘CVS’)]” (id. at 6 (citing

Tr. 24-25)), 2) “cherry picked through the records to claim that

all examination findings were normal, lab and imaging results were

normal, and [Plaintiff] never vomited” (id. at 5), and 3)

“mischaracterized the record to claim that Plaintiff was drug

seeking when she was only following the recommendation of her

treating physicians” (id.). According to Plaintiff, “[t]he ALJ’s

decision, supported by nothing more than his cherry picking and

mischaracterizations of the evidence, cannot be upheld.” (Id.

(quoting Arakas v. Commissioner, Soc. Sec. Admin., 983 F.3d 83, 90

(4th Cir. 2020)).) Plaintiff’s contentions have merit and warrant

remand.

The treating source rule generally requires an ALJ to give

controlling weight to the opinion of a treating source regarding

the nature and severity of a claimant’s impairment. 20 C.F.R.

§ 404.1527(c)(2) (“[T]reating sources . . . provide a detailed,

longitudinal picture of [a claimant’s] medical impairment(s) and

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.”). The rule also

recognizes, however, that not all treating sources or treating

9

source opinions merit the same deference. The nature and extent of

each treatment relationship appreciably tempers the weight an ALJ

affords an opinion. See 20 C.F.R. § 404.1527(c)(2)(ii). Moreover,

as subsections (2) through (4) of the rule detail, a treating

source’s opinion, like all medical opinions, deserves deference

only if well-supported by medical signs and laboratory findings and

consistent with the other substantial evidence of record. See 20

C.F.R. § 404.1527(c)(2)-(4). “[I]f a 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 (emphasis added). Finally,

statements from medical sources (and even treating sources) that a

claimant qualifies as disabled or cannot work do not constitute

“medical opinions as described in [§ 404.1527(a)(1)], but are,

instead, opinions on issues reserved for the Commissioner” and do

not warrant controlling weight. 20 C.F.R. § 404.1527(d).7

In either February or March 2017, Dr. Garner completed a pre-

printed “Medical Report” (Tr. 2357-60), on which she indicated that

she had treated Plaintiff approximately every three months since

October 2011 for gastroparesis, CVS, type two diabetes, chronic

7 For claims filed on or after March 27, 2017, the Commissioner has

significantly amended the regulations governing opinion evidence. The new

regulations provide that ALJs “will not defer or give any specific evidentiary

weight, including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from your medical sources.”

20 C.F.R. § 404.1520c. As Plaintiff filed her claim for DIB prior to March 27,

2017 (see Tr. 241-49), this Recommendation has analyzed Plaintiff’s claim

pursuant to the treating physician rule set out above.

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abdominal pain, anxiety, and depression (see Tr. 2357).8 Dr.

Garner noted that a gastric emptying scan confirmed that Plaintiff

had severe gastroparesis, and that “emergency room visits . . .

documented electrolyte abnormalities.” (Id.) According to Dr.

Garner, Plaintiff would need to take breaks and to lie down in

addition to standard workplace breaks and experienced “flares of

her illness . . . at least once monthly” which lasted up to five

days during which she could not work. (Id.) Dr. Garner further

opined that, as a result of Plaintiff’s symptoms, she could sit for

three to four hours at a time and for 8 hours total, stand and/or

walk for one hour at a time and for three hours total, frequently

lift or carry up to 20 pounds, occasionally lift or carry 21 to 25

pounds, and frequently bend, squat, climb, and reach. (See Tr.

2358.) Dr. Garner clarified that, although Plaintiff could work a

full day at a simple, sedentary job “with multiple breaks” on her

“‘good days,’” her illness would cause her to miss more than four

days per month and that, during flares, Plaintiff could not work at

all. (See Tr. 2360.)

Dr. Merrill completed the same pre-printed Medical Report form

on March 13, 2017 (Tr. 2361-64), and reported that he had treated

8 Dr. Garner’s Medical Report reflects both the dates of February 24, 2017

(see Tr. 2360) and March 8, 2017 (see Tr. 2357). In addition, the record

contains only five treatment notes from Dr. Garner on December 27, 2016, January

31, 2017, February 14, 2017, March 8, 2017, and March 24, 2017. (See Tr. 2370-

74, 2382-86, 2397-2401, 2409-12, 2418-22.)

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Plaintiff every four to six months since November 2011 for

gastroparesis, CVS, and diabetes mellitus (see Tr. 2361). Dr.

Merrill indicated that Plaintiff’s symptoms included nausea,

vomiting, frequent dehydration, intussusception, and chronic

abdominal pain, which caused Plaintiff to need “multiple sedating

medications, frequent hospitalization,” two surgeries, and seven

endoscopies. (Id.) Dr. Merrill further opined that, as a result

of Plaintiff’s impairments, she could sit for one hour at a time

and for a total of two hours, stand and/or walk for 10 minutes at

a time and for a total of one hour, could not lift, carry, bend, or

climb, and could occasionally squat and reach. (See Tr. 2362.)

Dr. Merrill believed that Plaintiff could “function on occasion

but” that her illness remained “[un]predictable” (Tr. 2363), caused

Plaintiff to have good days and bad days (see Tr. 2364), and would

result in work absences more often than four times per month (id.).

The ALJ analyzed the opinions of Drs. Merrill and Garner as

follows:

[Dr. Merrill] opined in March 2017 that [Plaintiff] would

be capable of siting up to two hours and standing/walking

a total of one hour in an eight-hour workday. She could

never lift or carry any weight. She could never bend or

climb and occasionally squat and reach. Her symptoms

would frequently interfere with attention and

concentration needed to perform even simple work tasks.

She would miss more than four days of work per month.

She would sometimes be able to perform 2-3 hours of

sedentary work but 0 hours at other times. The [ALJ]

gives this opinion little weight because it is simply

inconsistent with the record as a whole. For example,

[Plaintiff]’s physical exams throughout the relevant

12

period were essentially normal. Further, consistent with

the discussion above, despite her numerous emergency

department visits, many of them revealed normal lab and

imaging results, no actual vomiting, and chronic drug

seeking behavior. Accordingly, the record does not

support such severe limitations.

[Dr. Garner] opined in July [sic] 2017 that the claimant

would be able to sit for a total of eight hours and

stand/walk for a total of three hours. She would need to

take extra breaks during the day. She could occasionally

lift/carry 21-25 pounds and frequently carry less. She

would be unable to work freguently due to flares. She

could frequently bend, squat, climb, and reach. Her

symptoms would occasionally interfere with attention and

concentration. She would miss more than four days of

work per month. The [ALJ] gives this opinion little

weight because it is simply inconsistent with the record

as a whole. For example, [Plaintiff]’s physical exams

throughout the relevant period were essentially normal.

Further, consistent with the discussion above, despite

her numerous emergency department visits, many of them

revealed normal lab and imaging results, no actual

vomiting, and chronic drug seeking behavior.

Accordingly, the record does not support such severe

limitations.

(Tr. 24-25 (internal parenthetical citations omitted) (emphasis

added) .) Plaintiff challenges the ALJ’s above-emphasized,

identical bases for discounting the opinions of Drs. Merrill and

Garner on three grounds, all three of which have merit and

collectively warrant remand.

1. Objective Evidence of CVS Flares

First, Plaintiff contends that, “[i]ln order to understand the

full extent of the ALJ’s errors, one must first understand

Plaintiff’s condition.” (Docket Entry 16 at 5.) In that regard,

Plaintiff notes that “‘[CVS] is a disorder that causes recurrent

13

episodes of nausea, vomiting, and tiredness (lethargy) . . .

[which] last anywhere from an hour to 10 days . . . [and] can occur

regularly or apparently at random, or can be triggered by a variety

of factors.’” (Id. (quoting U.S. National Library of Medicine,

Cyclic Vomiting Syndrome, https://medlineplus.gov/genetics/cyclic-

vomiting-syndrome/#causes).) Plaintiff further observes that

“‘[t]he determination of CVS can only be made after other causes of

recurrent vomiting have been ruled out’” and that “‘[t]here is no

test to prove the presence of [CVS].’” (Id. at 6 (quoting National

Organization for Rare Disorders, Cyclic Vomiting Syndrome,

https://rarediseases.org/rare-diseases/cyclic-vomiting-syndrome).)

Thus, Plaintiff maintains that “the ALJ[’s] reject[ion of] the

opinions of [Drs. Merrill and Garner] because physical examinations

were normal[] and lab and imaging results were normal . . .

actually requir[ed] Plaintiff to provide evidence that does not

exist.” (Id. (citing Tr. 24-25).)

The ALJ erred by relying on purportedly normal physical

examinations and imaging results to discount the opinions of Drs.

Merrill and Garner. The ALJ observed several times in his decision

that Plaintiff’s physical examinations remained generally normal

(see Tr. 22, 23), “except for mild left flank, left upper quadrant,

and minimal right flank tenderness” on July 17, 2015 (Tr. 22

(referencing Tr. 1156)); however, the ALJ neither elucidated what

findings on physical examination would have sufficed to demonstrate

14

a CVS flare nor why findings of abdominal tenderness did not so

suffice (see Tr. 22-24). See Lewis v. Berryhill, 858 F.3d 858, 869

(4th Cir. 2017) (remanding, in part, because “the ALJ did not

indicate how the [normal] results he cited were relevant to the

functional limitations [the plaintiff] suffered as a result of her

chronic, non-exertional pain in her left shoulder”); Monroe v.

Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (“In citing ‘normal’

results from pulmonary and respiratory tests and an EEG, the ALJ

did not explain why he believed these results had any relevance to

the question of what symptoms [the plaintiff] suffered from

narcolepsy.”).

Similarly, despite the ALJ’s statement that, “consistent with

[his] discussion [of the medical evidence],” “many” of Plaintiff’s

“numerous emergency department visits . . . revealed normal...

imaging results” (Tr. 24, 25), the ALJ did not discuss any imaging

results in his decision (see Tr. 22-24). Moreover, although the

record contains normal CT scans of the pelvis and abdomen (see Tr.

1503 (2/3/15), 1567 (5/10/15), 2070 (9/21/16)), normal renal and

pelvic ultrasounds (see Tr. 1182 (7/15/15), 1461 (8/21/15), 1505

(2/3/15)), and normal abdominal x-rays (see Tr. 1504 (2/3/15), 2071

(9/21/16)), medical providers administered those tests to rule out

other causes of Plaintiff’s symptoms, such as diabetic

complications, abdominal aorta aneurysm, bowel obstruction, kidney

stones, diverticulitis, or appendicitis (see, e.g., Tr. 936, 1182,

15

1513, 1555), rather than to diagnose or rule out CVS. The ALJ

therefore erred by discounting the opinions of Drs. Merrill and

Garner regarding Plaintiff’s CVS flares on the basis of purportedly

normal physical examinations and imaging results.

2. Cherry-Picking

Second, Plaintiff contends that “[t]he ALJ ignored several

pieces of evidence that are inconsistent with his determination”

(Docket Entry 16 at 6), and “only chose to discuss certain visits,

or portions of visits, to make it seem that Plaintiff always

appeared normal” (id. at 7). According to Plaintiff, “the ALJ’s

decision, riddled with cherry picked facts and mischaracterizations

of the record as a whole, cannot be upheld.” (Id. at 9 (citing

Arakas, 983 F.3d at 99).)

Although the ALJ here labored under no obligation to discuss

every piece of evidence in making the RFC determination, see Reid

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

could not limit his discussion to records that show benign results

while ignoring a significant number of records that reflect

findings supportive of Plaintiff’s claim for disability, see

Arakas, 983 F.3d at 98 (“In evaluating a disability claim, an ALJ

has the obligation to consider all relevant medical evidence and

cannot simply cherrypick facts that support a finding of

nondisability while ignoring evidence that points to a disability

finding.” (internal quotation marks and brackets omitted) (quoting

16

Lewis, 858 F.3d at 869 (in turn quoting Denton v. Astrue, 596 F.3d

419, 425 (7th Cir. 2010)))).

As a general matter, the administrative transcript in this

case consists of 2,894 pages and contains records from more than 40

emergency room visits during the period starting on May 3, 2014,

one year prior to Plaintiff’s alleged onset date, and ending on

December 31, 2016, Plaintiff’s date last insured for benefits (see

Tr. 779-2268). The ALJ confined his discussion of that evidence to

one and a half pages of his decision, and discussed only a few

emergency room visits in any degree of detail. (See Tr. 22-24.)

Such a terse summary of a voluminous record raises a red flag, but

would not warrant remand if the ALJ’s discussion nevertheless

fairly captured the essence of Plaintiff’s treatment during the

relevant period. Here, for the reasons described more fully below,

the ALJ’s discussion falls short.

To begin, after stating that “many” of Plaintiff’s “numerous

emergency department visits . . . revealed normal . . . imaging

results” (Tr. 24, 25), the ALJ entirely failed to discuss

Plaintiff’s stomach biopsy, which showed “mixed acute and chronic

gastritis” (Tr. 1981 (12/11/15)), or endoscopy, which demonstrated

“a quite agitated stomach lining” (Tr. 1982 (12/11/15)). (See Tr.

22-24.) Similarly, although the ALJ found that “many” of

Plaintiff’s emergency interventions reflected “normal” laboratory

test results (Tr. 24, 25), the ALJ failed to acknowledge that

17

Plaintiff’s blood work did show signs of dehydration on multiple

occasions (see Tr. 808, 1259, 2022, 2042, 2095) and, in one

instance, metabolic acidosis (see Tr. 2047).

Along those same lines, the ALJ stated that Plaintiff’s

“physical examinations throughout the relevant period were

essentially normal” (Tr. 24, 25), but the record actually reflects

that examinations consistently showed significant distress (further

demonstrated by tachycardia, substantially elevated blood pressure,

and increased respirations and/or hyperventilation) and abdominal

tenderness (see Tr. 1156 (mild abdominal tenderness), 1261 (in

some distress, flank pain), 1438 (uncomfortable appearance,

tachycardia, abdominal tenderness), 1478 (moderate distress, mild

abdominal tenderness), 1526 (uncomfortable appearance), 1555

(abdominal tenderness), 1631 (very tearful), 1636 (acutely

hyperventilating, tachycardia), 1641 (obviously uncomfortable, mild

to moderate abdominal tenderness), 1646 (very anxious), 1653 (mild,

diffuse abdominal tenderness), 1676 (anxious and tearful, some

abdominal tenderness), 1700-01 (moderately ill and pale, abdominal

tenderness), 1719 (blood pressure 127/112, heart rate 124, quite

emotional and upset, tearful, significantly depressed), 1783 (blood

pressure 158/113, heart rate 112, respirations 22, moderate

distress), 1802 (abdominal tenderness), 1827, 1830, 1852, & 1853

(blood pressure 161/120, heart rate 114, respirations 24, anxious,

tearful, frustrated, mild, diffuse abdominal tenderness), 1897-98

18

(blood pressure 157/85, somewhat pale, mild, diffuse abdominal

discomfort, hypoactive bowel sounds), 1904 (moderate abdominal and

costovertebral angle tenderness, tachycardia), 1928 (uncomfortable

appearance, abdominal tenderness), 1978 (moderate distress,

abdominal tenderness), 1983-84 (uncomfortable appearance, tearful,

quite miserable), 1987 (mild, diffuse abdominal tenderness), 1994-

95 (very upset, uncomfortable, crying, mild abdominal tenderness),

2001 (mild to moderate abdominal tenderness), 2003-04 (crying and

emotionally distraught, tachycardia), 2009-10 (emotionally

distraught, blood pressure 158/85, heart rate 133,

hyperventilating), 2019 (tearful, emotionally fatigued, blood

pressure 156/96, heart rate 119, mild abdominal tenderness,

costovertebral angle tenderness), 2026 (tearful and crying,

tachycardia, respirations 24), 2031 (appears to feel quite poorly,

mildly anxious, tachycardia, diffuse abdominal tenderness), 2042

& 2046 (quite anxious, hyperventilating, blood pressure 187/117,

flat affect, looks tired and ill), 2085 (blood pressure 179/98,

tachycardia, respirations 22), 2091, 2095, & 2097 (very jittery and

anxious, tachycardia, abdominal tenderness, quite tearful, visibly

anxious), 2099 (chronically ill-appearing), 2238-39 (looks somewhat

down and fatigued, flat affect, mild abdominal tenderness)), and

sometimes reflected signs of dehydration (see Tr. 1676 (appears

mildly dehydrated), 1802 (dry mucous membranes), 1928 (appears

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somewhat dehydrated, oropharynx mildly dry), 2092 (dry mucous

membranes), 2238 (a little dry and dehydrated)).

Notwithstanding the ALJ’s remark that “many” of Plaintiff’s

hospital visits reflected “no actual vomiting” (Tr. 24, 25), those

records not only showed “actual vomiting” (see Tr. 1478, 1526,

1701, 1897, 1984, 2032, 2092), but also retching, dry heaving, and

spitting (see Tr. 1439 (retching), 1641 (actively retching), 1648

(spitting), 1700 (dry heaving), 1803 (spitting), 1827, 1830, & 1852

(actively retching, spitting), 1897 (dry heaving), 1977 (retching),

1995 (dry heaving), 2019 (dry heaving); see also Tr. 1185

(nasogastric tube placed draining bilious vomitus), 1261

(nasogastric tube draining bilious secretions)). Notably, the ALJ

did not grapple with the evidence of Plaintiff’s recurrent episodes

of nausea leading to retching, dry heaving, and/or frequent

spitting into an emesis bag. (See Tr. 24-25.)

In sum, because the ALJ “erred by cherry-picking certain

facts” and by “mischaracteriz[ing] other material facts,” his

“decision based on such errors can hardly be supported by

substantial evidence.” Arakas, 983 F.3d at 99.

3. Drug-Seeking Behavior

Third, Plaintiff asserts that, “[w]ithout any support

whatsoever in the record, the ALJ determined Plaintiff engaged in

‘chronic drug seeking behavior,’” which “directly [] result[ed

from] the ALJ’s picking and choosing throughout the record.”

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(Docket Entry 16 at 9.) In that regard, Plaintiff challenges the

ALJ’s reliance on a positive drug screen (id. (citing Tr. 23)),

noting that the treatment providers questioned whether the results

constituted false positives (id. at 9-10 (citing Tr. 1558)).

Plaintiff further contests the ALJ’s characterization of

Plaintiff’s statements to emergency room doctors that Dr. Merrill

recommended intravenous Dilaudid to treat Plaintiff’s CVS flares as

untrue. (Id. at 10 (citing Tr. 23).) According to Plaintiff, “Dr.

Merrill instructed Plaintiff to continue to seek treatment in the

emergency room to obtain [intravenous] narcotics and

benzodiazepines during her [CVS] cycles” (id. (citing Tr. 2187))

and thus “Plaintiff [wa]s not drug seeking but following

recommended treatment” (id.).

Contrary to Plaintiff’s contention that the ALJ found that

Plaintiff engaged in drug-seeking behavior “[w]ithout any support

whatsoever in the record” (id. at 9 (emphasis added)), the record

contains some evidence suggestive of drug-seeking behavior in that

the ALJ observed that Plaintiff had a positive drug screen for

Oxycodone and PCP that her medical providers could not explain (see

Tr. 23 (citing Tr. 1558)). Although not discussed by the ALJ

(see Tr. 22-24), treatment records during the relevant period also

reflected that emergency room providers refused to refill

Plaintiff’s oral narcotics prescription on two occasions, because

Plaintiff had already received a refill too recently (see Tr. 1558,

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1803), as well as that several providers questioned whether

Plaintiff’s recurrent vomiting and abdominal pain resulted from

opioid withdrawal (see Tr. 2001 (1/27/16), 2003 (2/1/16 - noting

that Dr. Merrill took Plaintiff off oral opiates in December 2015),

2085 (9/19/16)).

Nonetheless, the ALJ still erred with respect to his drug-

seeking finding. Beyond the lone positive, unexplained drug

screen, the ALJ’s stated bases for drug-seeking finding all

centered on Plaintiff’s use of intravenous Dilaudid: 1) her

statement to an emergency room provider that her home health

Management could not handle her complicated symptoms and that she

needed instead to come to the emergency department for intravenous

Dilaudid (see Tr. 23 (citing Tr. 1646)), 2) Plaintiff’s repeated

requests for Dilaudid by name (see id. (citing Tr. 1828, 2001)), 3)

an emergency room provider’s observation that Plaintiff’s nausea

immediately resolved after administration of intravenous Dilaudid

even though that drug did not treat nausea (see id. (citing Tr.

2001)), and 4) the ALJ’s characterization as untrue of Plaintiff’s

reports to emergency room doctors that Dr. Merrill recommended

Plaintiff receive intravenous Dilaudid to break her CVS cycles (see

id. (citing Tr. 1828)). Although the record reflects that,

initially, an emergency room provider could not confirm Dr.

Merrill’s recommendation that Plaintiff receive intravenous

Dilaudid to break her CVS cycles (see Tr. 1828 (reflecting that Dr.

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Merrill’s treatment notes failed to contain that recommendation and

that on-call gastroenterologist at Dr. Merrill’s practice did not

feel that Dilaudid constituted appropriate CVS treatment)), that

provider later acknowledged that he had spoken with Plaintiff’s

primary care physician who, in turn, had spoken to Dr. Merrill, who

recommended that Plaintiff receive intravenous Dilaudid and Ativan

(see Tr. 1831; see also Tr. 1898 (emergency room visit the next day

reflecting telephone call from Dr. Merrill authorizing use of

opiates for Plaintiff’s acute CVS episodes)). Dr. Merrill’s

records also make abundantly clear that he authorized intravenous

Dilaudid to treat CVS flares. (See Tr. 2161 (“[Plaintiff’s CVS]

nausea has been best controlled with [intravenous]

benzo[diazepines] and [ D]ilaudid. [] I have no concerns about the

[intravenous] narcotics she receives in the emergency room to break

her cycles. . . .”). Thus, as Plaintiff correctly observes (see

Docket Entry 16 at 10), her requests for intravenous Dilaudid

followed her treating gastroenterologist’s recommended treatment

regimen.

4. Harmlessness

For the reasons described above, the ALJ committed legal error

and failed to provide substantial evidence to support his analysis

of the opinions of Drs. Merrill and Garner. Plaintiff contends

that the ALJ’s errors in evaluating and weighing the opinions of

Drs. Merrill and Garner qualify as “harmful, as both doctors opined

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Plaintiff was disabled” (Docket Entry 16 at 11) because “her

condition would cause her to miss too much work” (id. at 13), and

the VE “testified that, if limited as opined by [Drs. Merrill and

Garner], there [we]re no jobs available in the national economy

Plaintiff c[ould] perform” (id. (citing Tr. 75, 78)). Indeed, the

ALJ’s failure to provide sufficient grounds to discount the

opinions of Drs. Merrill and Garner does not qualify as harmless,

because those doctors’ opinions that Plaintiff could not work

during her CVS flare-ups and that her impairments would cause her

to miss work more than 4 days per month (see Tr. 2357, 2360, 2364),

if credited, would preclude all competitive work (see Tr. 75-78).

5. Remand for a New Hearing or Reversal for an Award of Benefits

Plaintiff requests that the Court reverse her case “for a

calculation of benefits,” because “both of Plaintiff’s treating

physicians opined she could not work, and th[o]se opinions are

highly supported by the record.” (Docket Entry 16 at 14.)

According to Plaintiff, “[t]here is no purpose to another hearing,

as the record establishes Plaintiff is disabled.” (Id. (citing

Bilotta v. Saul, 850 F. App’x 162, 171 (4th Cir. 2021)).)

The record reflects that Plaintiff spent time in emergency

rooms on at least 50 days from her alleged onset date to her date

last insured (a period of 608 days), which translates to, on

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average, every 12 days. (See Tr. 1155-2268.)9 Those calculations

do not even take into account days on which Plaintiff had symptoms

significant enough to render her unable to work at a competitive

job but not severe enough to warrant emergency intervention. (See,

e.g., Tr. 1582 (indicating Plaintiff had battled nausea, vomiting,

and abdominal pain for one week before coming to emergency room),

1641 (reflecting that Plaintiff had experienced CVS flare for last

24 hours prior to hospitalization), 1653 (documenting complaint of

nausea and vomiting for two days), 1903 (recording report of severe

nausea, vomiting and abdominal pain since day before emergency room

visit), 1977 (12/8/15 emergency room visit containing Plaintiff’s

remark that current CVS flare began over Thanksgiving).) Thus, the

record convincingly supports the opinions of Drs. Merrill and

Garner regarding both Plaintiff’s inability to work during CVS

flare-ups and her likelihood of missing more than four days of work

per month due to such flares.

When, as here, evidence of drug-seeking behavior exists in the

record, an ALJ could conceivably, upon remand, find that Plaintiff

qualified as disabled, but also deny benefits by finding

Plaintiff’s substance abuse a contributing factor material to the

determination of disability. See 20 C.F.R. § 404.1535. The

9 The record indicates Plaintiff was hospitalized in Texas, Hawaii, and

Mississippi while staying in those areas (see Tr. 1719, 1897, 2072), and also

references other emergency room visits during the relevant period which do not

appear in the record (see Tr. 1478, 1631, 1783).

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current record, however, forecloses such a materiality finding for

two reasons. First, as discussed above, in requesting intravenous

Dilaudid, Plaintiff followed the recommendations of her treating

gastroenterologist (who also prescribed Plaintiff oral narcotics,

see Tr. 2143, 2147, 2150, 2164, 2189, 2199, 2202)), thus

distinguishing this case from those where a claimant uses illegal

street drugs, abuses alcohol, or takes narcotics against his or her

doctor’s recommendations. Second, Plaintiff underwent multiple

invasive measures to gain control of her symptoms of recurrent

nausea, vomiting, and abdominal pain, including placement of

nasogastric tubes (see Tr. 1185, 1261), gastric bypass surgery (see

Tr. 1921-23), which then led to multiple endoscopic balloon

dilations to remedy strictures in the gastrojejunal anastomosis

(see Tr. 2200, 2217-18, 2034, 2678, 2545), and surgical insertion

of a feeding tube (see Tr. 2774-86), which a surgeon removed less

than a week later due to an infection and abscess (see Tr. 2702-

73). Because Plaintiff undertook these significant measures to try

to alleviate her symptoms, which would, if successful, decrease the

likelihood of her needing intravenous Dilaudid or oral narcotics,

her actions remain flatly inconsistent with a true drug-seeker,

whose singular goal consists of receiving narcotics on a continual

basis.

Because “the record clearly establishes [Plaintiff]’s

entitlement to benefits and another ALJ hearing on remand would

26

serve no useful purpose,” Bilotta, 850 F. App’x at 171, the Court

should remand for a calculation of disability benefits. See

Arakas, 983 F.3d at 112 (reversing for an award of benefits where

“the ALJ erred in . . . according little weight to [the] treating

physician’s opinion” that established the claimant’s disability);

Green-Younger v. Barnhart, 335 F.3d 99, 109 (2d cir. 2003)

(awarding benefits because ALJ erred in failing to accord

controlling weight to treating rheumatologist’s opinion containing

disabling limitations).

III. CONCLUSION

Plaintiff has established entitlement to reversal and remand

for a calculation of benefits.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated and that the matter be reversed

and remanded under sentence four of 42 U.S.C. § 405(g) for a

calculation of disability benefits. As a result, Defendant’s

Motion for Judgment on the Pleadings (Docket Entry 18) should be

denied and Plaintiff’s Motion for Judgment Reversing Decision of

the Commissioner of Social Security (Docket Entry 15) should be

granted.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

October 6, 2021

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