PERRYMAN v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHNNY PERRYMAN, )

)

Plaintiff, )

)

v. ) 1:21CV305

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Johnny Perryman, 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 Supplemental Security

Income (“SSI”). (Docket Entry 2.) Defendant has filed the

certified administrative record (Docket Entry 13 (cited herein as

“Tr. __”)), and both parties have moved for judgment (Docket

Entries 16, 18; see also Docket Entry 16-1 (Plaintiff’s Brief);

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

follow, the Court should remand this matter for further

administrative proceedings.

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 SSI (Tr. 223-31), alleging a disability

onset date of December 15, 2015 (see Tr. 224). Upon denial of that

application initially (Tr. 68-75, 87-95) and on reconsideration

(Tr. 76-84, 96-105), Plaintiff requested a hearing de novo before

an Administrative Law Judge (“ALJ”) (Tr. 106-08). Plaintiff, his

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

(Tr. 37-67.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 10-20.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-7,

220-22, 331-33), 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 later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since December 15, 2015, the alleged onset date.

2. [Plaintiff] has the following severe impairments:

degenerative disc disease with radiculopathy and

sciatica.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

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 never climb

ladders, ropes, or scaffolds, occasionally climb ramps or

stairs; never kneel or crawl; occasionally balance,

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stoop, or crouch; occasionally push or pull with the

legs; never work near or around heights or dangerous

machinery; and sit or stand at 30 to 45 minute intervals.

. . .

5. [Plaintiff] is unable to perform any past relevant

work.

. . .

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

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

. . .

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

defined in the . . . Act, from December 15, 2015, through

the date of this decision.

(Tr. 16-20 (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

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,

3

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

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

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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)).2 “To regularize the

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

has . . . 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.

2 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).

5

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 the Soc. Sec. Admin., 174 F.3d 473, 475

n.2 (4th Cir. 1999).3 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

3 “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).

6

(‘RFC’).” Id. at 179.* 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.°

“ “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.

° 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

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.”).

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ erred in penalizing Plaintiff for his failure to

afford medical treatment” (Docket Entry 16-1 at 3 (bold font and

single-spacing omitted)); and

2) “[t]he ALJ failed to properly evaluate Plaintiff’s

complaints, failing to articulate ‘specific and adequate reasons’

for discounting his testimony” (id. at 7 (bold font and single-

spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 19 at 4-10.)

1. Inability to Afford Medical Treatment

Plaintiff’s first issue on review argues that “[t]he ALJ erred

in penalizing Plaintiff for his failure to afford medical

treatment.” (Docket Entry 16-1 at 3 (bold font and single-spacing

omitted).) In particular, Plaintiff maintains that, although the

ALJ acknowledged that Plaintiff “‘was working with financial

counseling as he d[id] not have medical insurance,’” the ALJ then

observed that Plaintiff “‘ha[d] not generally received the type of

medical treatment one would expect for a disabled individual,’” as

well as noted the gap in treatment between 2017 and 2020. (Id. at

4 (quoting Tr. 17).) Plaintiff points out that “‘[a]n ALJ should

not discount a claimant’s subjective complaints on the basis of

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[his] failure to seek medical treatment when [he] has asserted –

and the record does not contradict – that [he] could not afford

such treatment.’” (Id. at 3-4 (quoting Starnes v. Kijakazi, No.

2:20CV3372, 2021 WL 4155648, at *5 (D.S.C. Aug. 18, 2021)

(unpublished), recommendation adopted, 2021 WL 4155216 (D.S.C.

Sept. 13, 2021) (unpublished)).) According to Plaintiff, “[w]here

there is evidence that Plaintiff had an impairment and further

evidence that he may not have had the resources to properly treat

that impairment, an ALJ must make findings as to whether Plaintiff

was unable to get healthcare due to an inability to afford it.”

(Id. at 6 (citing Dozier v. Colvin, No. 1:14CV29, 2015 WL 4726949,

at *3 (D.S.C. Aug. 10, 2015) (unpublished)).) Those contentions

have merit and warrant remand.

The United States Court of Appeals for the Fourth Circuit has

held that “[a] claimant may not be penalized for failing to seek

treatment [ ]he cannot afford,” because “‘[i]t flies in the face of

the patent purposes of the . . . Act to deny benefits to someone

. . . too poor to obtain medical treatment that may help him.’”

Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (quoting

Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). An

administrative ruling further expounds on an ALJ’s duties when a

claimant alleges an inability to afford treatment as follows:

. . . [I]f the frequency or extent of the treatment

sought by an individual is not comparable with the degree

of the individual’s subjective complaints, . . . [the

ALJ] may find the alleged intensity and persistence of an

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individual’s symptoms are inconsistent with the overall

evidence of record. [The ALJ] will not find an

individual’s symptoms inconsistent with the evidence in

the record on this basis without considering possible

reasons he or she may not... seek treatment consistent

with the degree of his or her complaints. [The ALJ] may

need to contact the individual regarding the lack of

treatment or, at an administrative proceeding, ask why he

or she has not. . . sought treatment in a manner

consistent with his or her complaints. When [the ALJ]

consider[s] the individual’s treatment history, [the ALJ]

may consider (but [is] not limited to) one or more of the

following:

An individual may not be able to afford treatment and may

not have access to free or low-cost medical services.

[An ALJ] will consider and address reasons for not

pursuing treatment that are pertinent to an individual’s

case. [The ALJ] will review the case record to determine

whether there are explanations for inconsistencies in the

individual’s statements about symptoms and their effects,

and whether the evidence of record supports any of the

individual’s statements at the time he or she made them.

[The ALJ] will explain how [he or she] considered the

individual’s reasons in [the ALJ’s] evaluation of the

individual’s symptoms.

Social Security Ruling 16-3p, Titles II and XVI: Evaluation of

Symptoms in Disability Claims, 2017 WL 5180304, at *9-10 (Oct. 25,

2017) (“SSR 16-3p”) (emphasis added) (bullet omitted).

Here, Plaintiff testified that he had lived in an apartment

for two years with a friend who paid the rent and utilities (see

Tr. 44-45), that he had unsuccessfully applied for food stamps (see

Tr. 45-46), that he started treating with Dr. Christopher Hong Chu

in April 2020 (see Tr. 60), who helped Plaintiff gain entry into

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program called Health Care Access involving $10 co-pays (see Tr.

52-53), and that, before his entry into Health Care Access, he “had

been going back and forth to just the emergency room” (Tr. 60).

The record corroborates Plaintiff’s testimony, in that an August

2017 treatment note reflects that Plaintiff had recently sought

treatment in the Forsyth emergency room for sciatic nerve pain, and

that he “[wa]s currently working with financial counseling as he

d[id] not have medical insurance.” (Tr. 339 (emphasis added) .)

Consistent with Plaintiff’s testimony, no treatment records exist

after November 2017 until Dr. Chu referred Plaintiff to orthopedist

Dr. Alejandro Jose Marquez-Lara, who evaluated Plaintiff on

February 14, 2020. (See Tr. 359.) Plaintiff sought regular

treatment for his sciatic pain after that time. (See Tr. 388-415.)

The ALJ provided the following analysis of Plaintiff’s alleged

inability to afford treatment:

As for [Plaintiff]’s statements about the intensity,

persistence, and limiting effects of his . . . symptoms,

they are inconsistent because the record confirms a

diagnosis and treatment for chronic bilateral low back

pain with bilateral sciatica dating back to 2017;

however, [Plaintiff] has not generally received the type

of medical treatment one would expect for a disabled

individual. The record does note that he was working

with financial counseling as he d[id] not have medical

insurance. After the diagnosis and treatment in 2017,

the record jumps to treatment in 2020.

(Tr. 17 (emphasis added) (internal parenthetical citations

omitted) .) For the reasons explained more fully below, that

analysis runs afoul of SSR 16-3p.

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As the above-quoted analysis shows, the ALJ here both

acknowledged that Plaintiff asserted an inability to afford medical

treatment to explain the gap in treatment between 2017 and 2020 and

that evidence in the record corroborated that assertion (see Tr. 17

(observing that “record d[id] note that [Plaintiff] was working

with financial counseling as he d[id] not have medical insurance)).

The ALJ, however, then inexplicably found Plaintiff’s subjective

symptom reporting “inconsistent because . . . [he] had not

generally received the type of medical treatment one would expect

for a disabled individual” (id.). In other words, the ALJ

“review[ed] the case record [and] determine[d ] there [we]re

explanations for [Plaintiff’s lack of medical treatment], and

[that] the evidence of record support[ed his] statements at the

time he . . . made them,” but the ALJ thereafter rejected

Plaintiff’s alleged inability to afford treatment without any

“expla[nation of] how [the ALJ] considered [Plaintiff]’s reasons in

[the ALJ’s] evaluation of [Plaintiff]’s symptoms,” SSR 16-3p, 2017

WL 5180304, at *9-10 (emphasis added). (See Tr. 17.) The ALJ’s

failure of explanation precludes meaningful review by this Court of

the ALJ’s determination. See Elmore v. Berryhill, No. CV

6:17-2480, 2018 WL 5724121, at *13 (D.S.C. Oct. 12, 2018)

(unpublished) (“[B]ecause the plaintiff presented significant

evidence to suggest she was unable to afford additional medical

treatment by specialists, the ALJ erred in considering her failure

12

to obtain treatment by specialists after mid-2013 as a factor that

reduced the credibility of her allegations without also considering

her reasons for not obtaining additional treatment.”),

recommendation adopted, 2018 WL 5719643 (D.S.C. Oct. 31, 2018)

(unpublished); Sapp v. Berryhill, No. CV 1:17-2442, 2018 WL

5270039, at *11 (D.S.C. Sept. 28, 2018) (unpublished) (“The ALJ’s

decision relied upon [the p]laintiff’s lack of consistent treatment

to discount her allegations, but failed to address the ‘reasons for

not pursuing treatment’ pursuant to SSR 16-3p. In particular, the

ALJ failed to address the evidence in the record relaying [the

p]laintiff was ‘not [] able to afford treatment’ as required by SSR

16-3p and Fourth Circuit precedent.” (quoting Lovejoy, 790 F.2d at

1117)), recommendation adopted, 2018 WL 5266584 (D.S.C. Oct. 23,

2018) (unpublished); compare Byers v. Berryhill, No. 1:17CV103,

2018 WL 318466, at *9 (M.D.N.C. Jan. 5, 2018) (unpublished)

(finding no error in ALJ’s rejection of the plaintiff’s alleged

inability to afford treatment where ALJ specifically found that

“there [wa]s no indication that [the plaintiff] ha[d] explored the

availability of free or reduced cost medical services,” that “it

[wa]s incumbent on [the plaintiff] to explore such availability

rather than simply concluding that he c[ould ]not pay for any

medical care,” that “a hospital emergency room [could] not refuse

care based on an individual’s inability to pay for care,” that, “if

[the plaintiff] had the extreme pain and functional limitations to

13

which he testified, . . . it would be reasonable to expect that he

would seek treatment, at least on occasion, rather than simply

enduring the purported extreme pain and functional limitations,”

and that “[the plaintiff] was not reticent to seek medical

treatment when he had a seizure, which . . . undermine[d] the

credibility of his testimony regarding his failure to seek medical

treatment”), recommendation adopted, slip op. (M.D.N.C. Apr. 4,

2018) (Tilley, S.J.). As explained more fully in connection with

Plaintiff’s second issue on review, that error by the ALJ does not

qualify as harmless.

In light of the foregoing analysis, Plaintiff’s first

assignment of error establishes prejudicial error, requiring

remand.

2. Analysis of Plaintiff’s Subjective Symptom Reporting

Plaintiff’s second and final assignment of error maintains

that “[t]he ALJ failed to properly evaluate Plaintiff’s complaints,

failing to articulate ‘specific and adequate reasons’ for

discounting his testimony.” (Docket Entry 16-1 at 7 (bold font and

single-spacing omitted).) In that regard, Plaintiff emphasizes

that “[t]he ALJ found that Plaintiff’s impairments were

inconsistent with the medical evidence in the record ‘for the

reasons explained in th[e ALJ’s] decision,’” (id. at 9 (quoting Tr.

17)), but beyond the finding “that Plaintiff did not treat

enough . . . [t]he ALJ’s remaining rationale seems to be absent”

14

(id.). Plaintiff further points out that, although “the ALJ d[id]

discuss some record evidence after[ his finding regarding

Plaintiff’s lack of treatment]” (id. (citing Tr. 17-18), “[t]o any

extent this presents rationale, it would also be inadequate[

because] Plaintiff’s subjective complaints have an objective basis”

(id.; see also id. at 8-10 (summarizing Plaintiff’s subjective

complaints and detailing evidence Plaintiff believes supports those

complaints (citing Tr. 43, 53-57, 359, 362-63, 399, 404-06, 413))).

Plaintiff’s arguments further solidify the grounds for remand

established in his first assignment of error.

SSR 16-3p (consistent with the Commissioner’s regulations)

adopts a two-part test for evaluating a claimant’s statements about

symptoms. See SSR 16-3p, 2017 WL 5180304, at *3; see also 20

C.F.R. § 416.929. First, the ALJ “must consider whether there is

an underlying medically determinable physical or mental

impairment(s) that could reasonably be expected to produce an

individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL 5180304,

at *3. A claimant must provide “objective medical evidence from an

acceptable medical source to establish the existence of a medically

determinable impairment that could reasonably be expected to

produce [the] alleged symptoms.” Id. Objective medical evidence

consists of medical signs (“anatomical, physiological, or

psychological abnormalities established by medically acceptable

clinical diagnostic techniques”) and laboratory findings “shown by

15

the use of medically acceptable laboratory diagnostic techniques.”

Id.

Upon satisfaction of part one by the claimant, the analysis

proceeds to part two, which requires an assessment of the intensity

and persistence of the claimant’s symptoms, as well as the extent

to which those symptoms affect his or her ability to work. See id.

at *4. In making that determination, the ALJ must “examine the

entire case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.” Id. Where

relevant, the ALJ will also consider the following factors in

assessing the extent of the claimant’s symptoms at part two:

1. Daily activities;

2. The location, duration, frequency, and intensity of

pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of

any medication an individual takes or has taken to

alleviate pain or other symptoms;

5. Treatment, other than medication, an individual

receives or has received for relief of pain or other

symptoms;

6. Any measures other than treatment an individual uses

or has used to relieve pain or other symptoms (e.g.,

lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and

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7. Any other factors concerning an individual’s

functional limitations and restrictions due to pain or

other symptoms.

Id. at *7-8. The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms

solely because the objective medical evidence does not substantiate

the degree of impairment-related symptoms alleged by the

individual.” Id. at *5 (emphasis added).

In this case, the ALJ found, at part one of the subjective

symptom analysis, that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” but then determined, at part two, that his “statements

concerning the intensity, persistence and limiting effects of

th[o]se symptoms [we]re not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained

in th[e ALJ’s] decision.” (Tr. 17 (emphasis added).) In the very

next paragraph, the ALJ deemed Plaintiff’s “statements about the

intensity, persistence, and limiting effects of his . . .

symptoms . . . inconsistent because the record confirm[ed] a

diagnosis and treatment for chronic bilateral low back pain with

bilateral sciatica dating back to 2017,” but Plaintiff “ha[d] not

generally received the type of medical treatment one would expect

for a disabled individual” as, “[a]fter the diagnosis and treatment

in 2017, the record jump[ed] to treatment in 2020.” (Tr. 17.)

17

As discussed above in the setting of Plaintiff’s first issue

on review, the ALJ did not adequately explain his decision to

reject Plaintiff’s alleged inability to afford treatment, and the

ALJ did not, in that same paragraph, offer any other reason for

discounting Plaintiff’s subjective symptom reporting (see id.).

Moreover, the ALJ did not discuss Plaintiff’s ability to engage in

daily activities (see Tr. 16-18), despite the fact that Plaintiff

completed a Function Report on which he detailed his ability to

engage in such activities (see Tr. 270-77). Significantly, the ALJ

could not have supported his subjective symptom evaluation with any

medical opinion evidence, because the only opinions the ALJ

considered (and deemed “minimally persuasive”) came from the state

agency medical consultants (Tr. 18), who offered their opinions in

June 2018 and March 2019 (see Tr. 68-74, 76-83), i.e., well prior

to Plaintiff entering the Health Care Access program and resuming

regular treatment in February 2020 (see Tr. 359-63), and thus found

insufficient evidence to analyze Plaintiff’s impairments and their

functional limitations (see Tr. 68-74, 76-83).°

As Plaintiff argues (see Docket Entry 16-1 at 9), the ALJ did

thereafter provide a one-paragraph summary of the medical evidence

8 Although not raised by either party (see Docket Entries 16-1, 19), the ALJ

neglected to evaluate the persuasiveness of an opinion offered by Dr. Marquez-

Lara on February 14, 2020 (see Tr. 18; see also Tr. 373-74 (opining, in “To Whom

It May Concern” letter, as follows: “It is my medical opinion that [Plaintiff]

has severe spinal stenosis. Because of this he has nerve damage to [his] left

leg resulting in weakness and muscle atrophy [and is] unable to work full duty.

He may likely require a large lumbar spine surgery in the near future, but even

with the intervention there is low likelihood of restoration of full function.”).

On remand, the ALJ should discuss the persuasiveness of that opinion.

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(see Tr. 17-18); however, that summary describes many findings that

support Plaintiff’s reports of disabling back and sciatic pain (see

Tr. 17 (describing February 2020 orthopedic examination finding

lumbar tenderness to palpation, antalgic gait, pain on lumbar range

of motion, and strength deficit in left leg that surgery might not

correct (citing Tr. 362-63); see also Tr. 18 (noting April 2020 MRI

of lumbar spine found “multilevel degenerative changes resulting in

moderate to advanced stenosis, and a synovial cyst” (emphasis

added) (citing Tr. 413))).’ Although the ALJ did note Plaintiff’s

report “in June 2020 . . . that Aleve/Naproxen alleviate[d] the

’ Notably, the ALJ did not include in his summary the orthopedist’s findings that

Plaintiff displayed an antalgic posture leaning to the right (see Tr. 362),

decreased sensation in the left leg in an L3-5 distribution (see Tr. 363), and

“Tolbvious left quad[riceps] atrophy” (id. (emphasis added)). (See Tr. 17-18.)

The ALJ’s cursory description of Plaintiff’s lumbar spine MRI also fails to

capture the significance of its findings (see Tr. 18), which include:

L2-L3: Degenerative disc disease with posterior broad-based disc

bulge, superimposed right foraminal and extraforaminal disc

protrusion, mild degenerative facet disease, and ligamentum flavum

thickening resulting in mild to moderate central stenosis, right

greater than left lateral recess stenosis, as well as moderate right

and mild left foraminal stenosis.

L3-L4: Degenerative disc disease with posterior broad-based disc

bulge, mild degenerative facet hypertrophy, and ligamentum flavum

thickening resulting in moderate to advanced canal and lateral

recess narrowing, as well as moderate right and advanced left

foraminal stenosis.

L4-L5: Degenerative disc disease with posterior broad-based disc

bulge, superimposed posterior central disc herniation dissecting

superiorly in the epidural space, bilateral degenerative facet

hypertrophy, and ligamentum flavum thickening results in moderate to

advanced central and lateral recess stenosis, as well as advanced

left greater than right foraminal stenosis.

L5-Sl: Posterior broad-based disc bulge combined with bilateral

degenerative facet hypertrophy, ligamentum flavum thickening, and

ventromedial oriented synovial cyst arising from the right L5-S1

facet joint extending into the right lateral recess with compression

of the descending right Sl and S2 nerve roots. Overall mild central

stenosis as well as advanced right greater than left foraminal

stenosis.

(Tr. 412-13 (emphasis added) .)

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symptoms, and Gabapentin alleviated the paresthesias” (Tr. 18

(citing Tr. 399)), as well as that Plaintiff “displayed a full

range of motion[ and] no tenderness to palpation” (id. (citing Tr.

401)), the ALJ did not mention that the same examination documented

reduced strength and sensation in Plaintiff’s left leg (see id.;

see also Tr. 401). The ALJ’s incomplete and relatively one-sided

summarization of the medical evidence, standing alone, simply does

not adequately support the ALJ’s decision to discount Plaintiff’s

subjective symptom reporting, particularly given the inadequate

consideration of the matters addressed in connection with the first

issue on review. See Worsham v. Kijakazi, No. 4:20CV86, 2021 WL

3878898, at *7 (E.D.N.C. July 28, 2021) (unpublished) (“While the

ALJ cited other reasons in support of the RFC determination, the

decision appears to rest largely on . . . [the plaintiff]’s failure

to return to [a physician] to pursue surgical options [due to an

inability to afford such treatment]. The ALJ’s failure to properly

address th[at] issue makes it impossible for the court to know how

much weight the ALJ placed on this factor or to trace the ALJ’s

reasoning.”), recommendation adopted, 2021 WL 3863348 (E.D.N.C.

Aug. 30, 2021) (unpublished); Elmore, 2018 WL 5724121, at *13

(deeming ALJ’s failure to consider the plaintiff’s reasons for not

obtaining additional treatment not harmless error, because ALJ

relied on several other reasons to discount the plaintiff’s

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subjective complaints and court could not gauge extent to which ALJ

relied on the plaintiff’s failure to seek further treatment).

III. CONCLUSION

Plaintiff has established errors warranting remand.

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, including re-evaluation of Plaintiff’s subjective

symptom reporting and, in particular, his alleged inability to

afford treatment. As a result, Plaintiff’s Motion for Judgment

Reversing Decision of the Commissioner of Social Security (Docket

Entry 16) should be granted, and Defendant’s Motion for Judgment on

the Pleadings (Docket Entry 18) should be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 9, 2022

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