ENGLISH v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARLA ENGLISH, )

)

Plaintiff, )

)

v. ) 1:22CV237

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Marla English, 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 1.) Defendant has filed the

certified administrative record (Docket Entry 5 (cited herein as

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

Entries 10, 11; see also Docket Entry 10-1 (Plaintiff’s

Memorandum); Docket Entry 12 (Defendant’s Memorandum); Docket Entry

13 (Defendant’s Sugg. of Subsequently Decided Auth. (citing Rogers

v. Kijakazi, 62 F.4th 872 (4th Cir. 2023))). For the reasons that

follow, the Court should remand this matter for further

administrative proceedings.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 219-28), alleging a disability

onset date of December 18, 2018 (see Tr. 219, 222). Upon denial of

that application initially (Tr. 74-91, 118-21) and on

reconsideration (Tr. 92-117, 123-27), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 133-34).

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

the hearing. (Tr. 41-73.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 18-35.)

The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-6, 215-16), 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] meets the insured status requirements of

the . . . Act through December 31, 2024.

2. [Plaintiff] has not engaged in substantial gainful

activity since December 18, 2018, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairments:

Degenerative Disc Disease; Post-Traumatic Stress Disorder

(PTSD); Anxiety/Panic Disorder and Depression.

. . .

4. [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.

. . .

2

5. . . . [Plaintiff] has the residual functional

capacity to perform medium work . . . except that she can

frequently climb ramps and stairs and can occasionally

climb ladders, ropes and scaffolds. [Plaintiff] can

frequently balance, stoop, kneel, crouch and crawl.

[Plaintiff] can work in an environment with a moderate

noise level. [Plaintiff] can occasionally work at

unprotected heights and around moving, mechanical parts.

[Plaintiff] can perform simple and routine tasks and can

maintain attention, concentration and persistence to

perform such tasks at a non-production rate pace meaning,

no assembly line type or quota based work. [Plaintiff]

can occasionally interact with supervisors, coworkers and

the public. [Plaintiff] can adapt to infrequent changes

in work routine.

. . .

6. [Plaintiff] is capable of performing past relevant

work as a Deliverer ([Dictionary of Occupational Titles

(“DOT”)] # 230.663-010), [Specific Vocational Preparation

(“SVP”)] 2, light (as performed, very heavy). This work

does not require the performance of work-related

activities precluded by [Plaintiff]’s residual functional

capacity.

. . .

In addition to past relevant work, there are other jobs

that exist in significant numbers in the national economy

that [Plaintiff] also can perform, considering

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

residual functional capacity.

. . .

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

defined in the . . . Act, from December 18, 2018, through

the date of this decision.

(Tr. 23-34 (bold font and internal parenthetical citations

omitted).)

3

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 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, “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

there is evidence to justify a refusal to direct a verdict were the

4

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

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

5

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

[(‘RFC’)] 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 (4th Cir. 1999).2 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

1 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).

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

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

6

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 [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. 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

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.

7

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 567.4

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 failing to adequately explain the

reasons for not giving significant weight to [Plaintiff]’s

disability rating from the [Department of Veterans Affairs (‘VA’)]

as required under Bird[ v. Commissioner, 699 F.3d 337 (4th Cir.

2012)” (Docket Entry 10-1 at 4 (underscoring omitted)); and

2) “[n]ew and material evidence requires remand of the claim

to the Commissioner for consideration of th[at] evidence pursuant

to sentence six of 20 [sic] U.S.C. [§] 405(g)” (id. at 10

(underscoring omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 12 at 14-25.)

4 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

1. VA Rating Decision

In Plaintiff’s first issue on review, she maintains that

“[t]he [ALJ] erred in failing to adequately explain the reasons for

not giving significant weight to [Plaintiff]’s disability rating

from the VA as required under Bird.” (Docket Entry 10-1 at 4

(underscoring omitted).) More specifically, Plaintiff points out

that she “was awarded a VA Disability Compensation and Rating of

100%, with a rating of 70% for her PTSD alone, and also rated as

unemployable, with an effective rating of 100% disabled.” (Id.

(internal parenthetical citation omitted) (citing Tr. 388-93).)

Plaintiff notes that, “[i]n Bird, the United States Court of

Appeals for the Fourth Circuit . . . held that[,] ‘in making a

disability determination, the SSA must give substantial weight to

a VA disability rating,’ except that [‘]an ALJ may give less weight

. . . when the record before the ALJ clearly demonstrates that

such a deviation is appropriate.’” (Id. at 5 (quoting Bird, 699

F.3d at 343).) Plaintiff additionally observes that the ALJ

“considered [the VA disability rating] under Bird” (id. at 4

(referencing Tr. 31)), and “found the . . . rating somewhat

persuasive” (id. at 5 (referencing Tr. 31)), but deemed the rating

“not dispositive ‘because the issue of one’s disability is reserved

to the Commissioner’” (id. (quoting Tr. 31)). In Plaintiff’s

view, the ALJ here erred in that regard, because Bird “did not

provide ALJ’s [sic] the latitude to provide less than substantial

9

weight to a VA rating based on the programmatic differences between

the evaluation of VA disability claims and SS[A] disability

claims.” (Id.)

Plaintiff further contends that a neighboring district court

“held that [an] ALJ committed reversible error by failing to afford

substantial weight to the plaintiff’s 100% VA rating,” because the

SSA’s “repeal of Social Security Ruling 06-03p[, Titles II 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 (Aug. 9, 2006) (‘SSR 06-03p’) (rescinded

eff. Mar. 27, 2017, see 82 Fed. Reg. 15263-01, 2017 WL 1105348

(Mar. 27, 2017)), which provided that ‘evidence of a disability

decision by another governmental or nongovernmental agency cannot

be ignored and must be considered,’ id. at *6,] did not supersede

the Fourth Circuit’s decision in Bird.” (Docket Entry 10-1 at 5-6

(citing Rose v. Saul, No. 7:19CV91, 2020 WL 4740479, at *3-4

(E.D.N.C. Aug. 14, 2020) (unpublished)).) According to Plaintiff,

“the court in Rose noted that De[L]oatche v. Heckler[,] 715 F.2d

148, 150 (4th Cir. 1983) held that an ALJ must consider as evidence

the disability determination of a state agency,” and “[i]t is this

line of holdings that is the basis of the Bird rationale, not SSR

06-03p.” (Id. at 6.) For the reasons explained more fully below,

Plaintiff’s contentions fail as a matter of law.

10

In DeLoatche, the Fourth Circuit remanded the case, in part,

because the ALJ failed to “consider the fact of the disability

determination by the state of North Carolina,” 715 F.2d at 150, and

held that “the disability determination of a state agency [wal]ls

entitled to consideration by the [Commissioner],” id. at 150 n.1.

In the Bird decision, the Fourth Circuit addressed for the first

time the “weight that the SSA must afford to a VA disability

rating.” Bird, 699 F.3d at 343. After noting that the applicable

regulation provided that the VA’s “decision [wa]s not binding on

the SSA,” id. (citing 20 C.F.R. § 404.1504), and reviewing the

“varying degrees of evidentiary significance” other circuits

afforded VA disability ratings, id., 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.

Id. (emphasis added).

11

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 a state agency disability determination:

We now conclude, consistent with our sister circuits,

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

accord less than “substantial weight” to a[ state agency]

disability decision, an ALJ must give “persuasive,

specific, valid reasons for doing so that are supported

by the record.”

Woods _v. Berryhill, 888 F.3d 686, 692 (4th Cir. 2018) (quoting

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002))

(emphasis added); see also SSR 06-03p, 2006 WL 2329939, at *6-7

(providing that “evidence of a disability decision by another

governmental or nongovernmental agency cannot be ignored and must

be considered,” and that ALJ “should explain the consideration

given to these decisions in the notice of decision”).

For benefits claims filed on or after March 27, 2017 (such as

Plaintiff’s (see Tr. 219-28)), the SSA has amended 20 C.F.R.

§ 404.1504 and rescinded SSR 06-03p. See 82 Fed. Reg. 5844 (Jan.

18, 2017); 82 Fed. Reg. 15263-01 (Mar. 27, 2017). The new

regulation states 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,” but

“will consider all of the supporting evidence underlying the other

governmental agency or nongovernmental entity’s decision that [it]

12

receive[s] as evidence in your claim.” 20 C.F.R. § 404.1504

(emphasis added). Coordinately, 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 (emphasis added).

Following the enactment of the new regulation, a split of

authority developed among the district courts within the Fourth

Circuit regarding the continued applicability of the relevant

holdings in DeLoatche, Bird, and Woods to claims filed on or after

March 27, 2017, compare Pizarro v. Kijakazi, No. 5:21CV46, 2022 WL

966823, at *4 (E.D.N.C. Mar. 30, 2022) (unpublished) (deeming Bird

“substantial weight” standard no longer applicable to claims filed

on or after March 27, 2017, and noting “weight of authority

favor[ed] th[at] approach”), Rogers v. Commissioner of Soc. Sec.,

No. 3:20CV206, 2022 WL 135310, at *3 (W.D.N.C. Jan. 13, 2022)

(unpublished) (same, and noting that “a trend [exists] in district

courts across the country - including those in the Second, Third,

Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits - that the

revised regulations trump prior case law”), aff'd, 62 F.4th 872

(4th Cir. 2023), Yonnes S. v. Saul, No. 1:20CV819, 2021 WL 2767298,

at *9 (E.D. Va. Mar. 31, 2021) (unpublished) (same), and Johnson v.

Saul, C.A. No. 6:19-1155, 2020 WL 6265092, at *3 (D.S.C. June 3,

13

2020) (unpublished) (same), recommendation adopted, 2020 WL 5810523

(D.S.C. Sept. 30, 2020) (unpublished), with Carter v. Kijakazi, No.

1:20CV252, 2021 WL 3915009, at *4 (M.D.N.C. Sept. 1, 2021)

(unpublished) (Peake, M.J.) (holding that, because “[t]he Fourth

Circuit ha[d] not reconsidered [Woods, Bird, or DeLoatche] since

the SSA’s 2017 revisions, [those cases] therefore remain[ed] in

full force”), recommendation adopted, 2021 WL 4412374 (M.D.N.C.

Sept. 27, 2021) (unpublished) (Osteen, Jr., J.), VanCleave v. Saul,

No. 1:20CV144, 2021 WL 2078004, at *3 (W.D.N.C. May 24, 2021)

(unpublished) (same), and Rose, 2020 WL 4740479, at *2-4 (same).

In the setting of this split in authority, and notwithstanding

the above-described change in the applicable regulation, the ALJ

here invoked Bird in evaluating Plaintiff’s VA disability rating

decision:

I recognize that [Plaintiff] was found to have a service

connected disability rating by the [VA]. However, this

award is not dispositive, because the issue of one’s

disability is reserved to the Commissioner . .. .

Nevertheless, I have considered it under Bird v.

Commissioner of Social Security, 699 F.3d 337, 345 (4th

Cir. 2012). In this case, the VA disability rating

supports my finding that [Plaintiff]’s impairments cause

certain limitations as set forth in the [RFC ].

Therefore, I find the VA disability rating somewhat

persuasive.

(Tr. 31 (internal parenthetical citation omitted) (emphasis

added) .)

The Fourth Circuit has now squarely addressed the continued

applicability of the relevant holdings in DeLoatche, Bird, and

14

Woods to claims filed on or after March 27, 2017. In Rogers, that

court held as follows:

. . . [T]he [] ALJ acknowledged the VA’s determination

that [the plaintiff wa]s 100% disabled and observed that

it could ‘never be entitled to controlling weight,’ [but

t]he ALJ nonetheless gave some consideration to the VA’s

determination, as the ALJ commented — without elaboration

or explanation — that it was ‘only partly persuasive.’

The ALJ thereby complied with the new SSA rules, under

which the VA’s determination could have been

disregarded[, b]ut the ALJ disobeyed our precedents, as

they would have required much more consideration and

discussion of the VA’s determination and a detailed

justification for not according it substantial weight.

. . .

At bottom, if our DeLoatche, Bird, and Woods precedents

remain controlling as to SSA claims (like [the

plaintiff]’s) filed on or after March 27, 2017, the SSA

ALJ was required to consider and thus also discuss the

VA’s determination that Rogers is 100% disabled. In such

a situation, the ALJ was obliged to accord substantial

weight to the VA’s disability determination unless the

record before the ALJ clearly showed that some lesser

weight was appropriate. And the ALJ could demonstrate

the appropriateness of according some lesser weight only

by stating persuasive, specific, and valid reasons for

doing so that found support in the record. If, however,

the new SSA rules abrogate our precedents as to claims

filed on or after March 27, 2017, the ALJ was not

required to consider — much less discuss or accord any

weight to — the VA’s disability determination. Rather,

the ALJ merely had to consider any evidence underlying

the VA’s disability determination that [the plaintiff]

submitted in support of her SSA claim.

Consequently, we are called upon to decide today whether

our precedents or the new SSA rules apply to claims filed

on or after March 27, 2017. As did the district court,

we look to the Supreme Court’s 2005 [National Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967

(2005),] decision to resolve that issue. Specifically,

we utilize the standard outlined in Brand X for

determining whether “[a] court’s prior judicial

construction of a statute trumps an agency construction.”

15

Pursuant to the Brand X standard, we must assess whether

our precedents “hold[ ] that [their] construction follows

from the unambiguous terms of the [ Act] and thus leaves

no room for agency discretion.” Quite clearly, our

precedents do not so hold. And that makes sense, in that

the Act itself does not address how or even if the SSA

must deal with another agency’s disability determination.

Next, then, we assess under the Brand X standard whether

the new SSA rules are “otherwise entitled to [] deference

[under Chevron, U.S.A., Inc. v. National Res. Def.

Council, Inc., 467 U.S. 837 (1984)].” Where, as here,

“the statute is silent or ambiguous with respect to the

specific issue,” Chevron identifies “the question for the

court” as being “whether the agency’s answer is based on

a permissible construction of the statute.”

. . .

[The plaintiff] has not offered a cogent basis for

withholding Chevron deference from the new SSA rules, and

we perceive none. The new rules are a type that Congress

empowered the SSA Commissioner to adopt, they are not

manifestly contrary to any provision of the . . . Act,

and they do not strike us as arbitrary and capricious in

any way. Notably, it matters not that the new rules

constitute a reversal of prior SSA directives, for as

Brand X explains, “[a]gency inconsistency is not a basis

for declining to analyze the agency’s interpretation

under the Chevron framework.” So long as “the agency

adequately explains the reasons for a reversal of policy”

— as the SSA plainly has done here — “change is not

invalidating, since the whole point of Chevron is to

leave the discretion provided by the ambiguities of a

statute with the implementing agency.”

In these circumstances, we are constrained to conclude

under Brand X that our precedents do not trump the new

SSA rules. That is, we agree with the district court

that the new rules supersede our precedents and thus

apply to claims filed on or after March 27, 2017. We

also must agree that the [] ALJ applied correct legal

standards and committed no error in adhering to the new

rules and declining to accord substantial weight to the

VA’s determination that [the plaintiff] is 100% disabled.

16

Rogers, 62 F.4th at 874-80 (emphasis added) (footnote and internal

citations omitted).

Accordingly, even though the ALJ considered Plaintiff’s VA

disability rating decision under Bird (see Tr. 31), pursuant to the

applicable version of Section 404.1504, the Court need only

determine whether the ALJ “consider[ed] all of the supporting

evidence underlying the [VA]’s decision that [the ALJ] receive[d]

as evidence in [Plaintiff’s] claim,” 20 C.F.R. § 404.1504. The

ALJ’s decision makes clear that she considered all evidence in the

record, including Plaintiff’s VA records dating from one year prior

to the alleged onset date to the date of the ALJ’s decision. (See

Tr. 28-30; see also Tr. 486-508, 535-701, 717-910, 1024-1103.)

Section 404.1504 requires nothing more of the ALJ.

In short, Plaintiff’s first assignment of error fails to

warrant relief.

2. New and Material Evidence

In Plaintiff’s second and final assignment of error, she

contends that “[n]ew and material evidence requires remand of the

claim to the Commissioner for consideration of th[at] evidence

pursuant to sentence six of 20 [sic] U.S.C. [§] 405(g).” (Docket

Entry 10-1 at 10 (underscoring omitted).) In particular,

Plaintiff asserts that she “submitted a detailed mental impairment

questionnaire [(‘Questionnaire’)], completed by her long-time

treating psychiatrist [sic], Erika Ast, M.D. [sic], to the Appeals

17

Council” (id. at 11 (citing Tr. 7-12)),5 in which “Dr. Ast opine[d]

that [Plaintiff] ha[d] marked impairments in all of the mental

domains of functioning considered under the ‘B’ criteria of Listing

12.15 for PTSD” (id. at 11 (citing Tr. 10-11)), and “that

[Plaintiff]’s PTSD me[t] the ‘C’ criteria of [ L]isting[ 12.15] as

well” (id. at 11-12 (citing Tr. 12)). According to Plaintiff, “[a]

reviewing court may remand a case to the Commissioner for

consideration of additional evidence if four conditions are met:

(1) the evidence must be relevant to disability and not merely

cumulative; (2) the evidence must be material to the extent that

the Commissioner’s decision might reasonably have been different

had the new evidence been before her; (3) [Plaintiff] must be able

to show good cause for submitting the evidence late; and (4)

[Plaintiff] must make a general showing of the nature of the

evidence to the reviewing court.” (Id. at 10-11 (brackets omitted)

(citing Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985)).)

In Plaintiff’s view, “[a]ll criteria under the Borders analysis are

met in this case” (id. at 11) and thus Plaintiff argues that “the

claim should be remanded to the Commissioner for further hearing

and evaluation of this new and material evidence that was not

considered or exhibited by the Commissioner previously” (id. at

14). For the reasons more fully explained below, the Court should

5 Dr. Ast practices in psychology rather than in psychiatry. (See Tr.

490.)

18

remand this matter for the ALJ to consider the Questionnaire under

sentence four rather than sentence six of 42 U.S.C. § 405(g).

As an initial matter, the parties disagree whether sentence

four or six of Section 405(g) constitutes the proper authority

under which to evaluate the Questionnaire. (Compare id. (arguing

that sentence six remand applies, because Questionnaire “was not

considered or exhibited by the Commissioner previously” (emphasis

added)), with Docket Entry 12 at 19 n.7 (contending that, instead,

sentence four of Section 405(g) applies, because “Plaintiff

incorrectly frame[d] her second legal argument as a sentence-six

issue, but it is in fact an argument about new evidence to the

Appeals Council, evidence that has already been considered by the

Commissioner” (emphasis added) (internal citations omitted)).) As

the parties recognize, the difference between the two different

types of remands lies in whether the Appeals Council has already

considered the new evidence and incorporated that evidence into the

record before the Court. Where the Appeals Council has considered

and incorporated the new evidence, the Court must address the new

evidence under sentence four of Section 405(g). See Meyer v.

Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (noting that court would

apply sentence four standard and “review the record as a whole

including any new evidence that the Appeals Council specifically

incorporated... into the administrative record” (emphasis added)

(internal quotation marks omitted)); Wilkins v. Secretary, Dep’t of

19

Health & Hum. Servs., 953 F.2d 93, 96 (4th Cir. 1991) (“The Appeals

Council specifically incorporated [the treating psychiatrist]’s

letter . . . into the administrative record. Thus, we must review

the record as a whole, including the new evidence, in order to

determine whether substantial evidence supports the

[Commissioner]’s findings.” (emphasis added)). In contrast, if the

Appeals Council declined to consider and to incorporate the new

evidence into the record, the Court must evaluate the new evidence

under sentence six of Section 405(g). See Shalala v. Schaefer, 509

U.S. 292, 297 n.2 (1993) (“Sentence-six remands may be ordered

. . . where new, material evidence is adduced that was for good

cause not presented before the agency.” (citations omitted));

Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012) (“Evidence

that has been rejected by the Appeals Council cannot be considered

[under sentence four] to reevaluate the ALJ’s factual findings.”).

As described more fully below, the circumstances surrounding the

Appeals Council’s handling of the Questionnaire favors a finding

that the Appeals Council considered and incorporated the

Questionnaire into the record and thus that the Court should

evaluate the Questionnaire under the sentence four framework.

Plaintiff’s counsel requested review with the Appeals Council

on August 9, 2021 (Tr. 215-16) and, on that same date, the Appeals

Council sent Plaintiff’s counsel a letter acknowledging the request

for review and allowing Plaintiff 25 days to submit “additional

20

evidence” that “is new, material, and relates to the period on or

before the date of the hearing decision.” (Tr. 13.) Additionally,

the Appeals Council advised Plaintiff’s counsel that he “must also

show there is a reasonable probability that the additional evidence

would change the outcome of the [ALJ’s] decision,” and “good cause

for why [Plaintiff] missed informing [the SSA] about or submitting

it earlier.” (Id.) Thereafter, Plaintiff’s counsel submitted the

Questionnaire (which bears the date August 29, 2021 (see Tr. 12))

to the Appeals Council. (Tr. 7-12.)6

On the Questionnaire, Dr. Ast stated that she had treated

Plaintiff from February 2019 until the time of the Questionnaire in

August 2021, and had diagnosed Plaintiff with chronic PTSD, panic

disorder, and major depressive disorder, recurrent, in partial

remission. (See Tr. 7.) Dr. Ast explained that Plaintiff

underwent group therapy, a family workshop, individual therapy, and

prolonged exposure therapy with good results but that, after the

Covid-19 pandemic started, Plaintiff experienced a worsening of her

symptoms. (See id.) According to Dr. Ast, Plaintiff had not

regained the progress she had made during pre-pandemic treatment.

(See id.) Dr. Ast opined that Plaintiff’s mental symptoms caused

her to suffer marked limitations in all four functional areas of

the paragraph “B” criteria of the applicable mental listings, i.e.,

6 The record does not divulge the date on which Plaintiff’s counsel sent

the Questionnaire to the Appeals Council, but Plaintiff must have sent it between

the date of the Questionnaire (August 29, 2021 (see Tr. 12)), and the date of the

Appeals Council’s decision denying review (January 19, 2022 (see Tr. 1)).

21

understanding, remembering, or applying information; interacting

with others; concentrating, persisting, or maintaining pace; and

adapting or managing oneself (see Tr. 10-11), as well as to meet

the paragraph “C” criteria of the listings (see Tr. 12). Dr. Ast

believed that Plaintiff could not work an eight-hour per day, five

-day per week schedule. (See id.)

The Appeals Council denied Plaintiff’s request for review on

January 19, 2022, remarking as follows:

[Plaintiff] submitted [the Questionnaire] (6 pages).

[The Appeals Council] find[s] this evidence does not show

a reasonable probability that it would change the outcome

of the decision. [The Appeals Council] did not exhibit

this evidence.

(Tr. 2 (emphasis added).) Consistent with the language emphasized

above, the Appeals Council noted that it “ha[d] received additional

evidence which it [wa]s making part of the record,” that

“consist[ed] of . . . [the rlegquest for review by the

representative received on August 9, 2021 (2 pages),” which the

Appeals Council exhibited as “Exhibit 13B” (Tr. 5 (emphasis added);

see also Tr. 215-216 (Ex. 13B - request for review)). The Appeals

Council did not include the Questionnaire on the list of items it

“ma[de] part of the record.” (Tr. 5.) Although the Appeals

Council did not “exhibit” the Questionnaire (id.), it appears in

the administrative transcript before this Court immediately

following the Appeals Council’s decision denying review and bears

transcript page numbers seven through 12 (Tr. 7-12). See Hearings,

22

Appeals, and Litigation Law Manual (“HALLEX”), § 1-3-5-20

(“Evaluation of Additional Evidence” (Dec. 16, 2020) (providing

that Appeals Council “will evaluate all additional evidence it

receives, but will only mark as an exhibit and make a part of the

official record additional evidence it determines meets the

requirements of 20 [C.F.R. $] 404.970(a) (5)-(b),” but that such

evidence “will be included in the certified administrative record

if the case is appealed to Federal court” (emphasis added)).

That chain of events presents the Court with two possible

interpretations of the state of the record. On one hand, the Court

could find that the Appeals Council 1) considered the Questionnaire

by examining it and then “find[ing] that [it] d[id] not show a

reasonable probability that it would change the outcome of the

[ALJ’s] decision” (Tr. 2), and 2) incorporated the Questionnaire

into the record by including it in the administrative transcript

before this Court immediately following the decision denying review

(Tr. 7-12), such that Section 405(g)’s sentence four should apply.

On the other hand, the Court could view the Appeals Council’s

refusal to “exhibit” the Questionnaire (Tr. 2) and to “mak[e the

Questionnaire] part of the record” (Tr. 5) as an indication that

the Appeals Council neither considered nor incorporated the

Questionnaire into the record, thereby making sentence six the

appropriate framework for decision. See Patricia C. v. Berryhill,

No. 4:17CV58, 2019 WL 254981, at *2 &@ n.3 (W.D. Va. Jan. 2, 2019)

23

(unpublished) (observing that, where Appeals Council found new

evidence “did not show a reasonable probability that it would

change the outcome of the [ALJ’s] decision” and “did not consider

and exhibit th[e new] evidence,” but copy of that evidence appeared

in administrative transcript before the court, “[t]he

Commissioner’s practice of mixing into the certified copy of the

record evidence that her agency has expressly refused to ‘consider

and exhibit[]’ present[ed] an awkward procedural posture for

judicial review” and, because the court “might [in the future] have

to choose which part of § 405(g)’s text — sentence four or sentence

six — governs th[e c]ourt’s authority to review the Commissioner’s

final decision[,] . . . the [c]ourt welcome[d] the parties’ input

on how best to proceed under § 405(g) when the Commissioner files

a certified transcript of the record of the underlying

administrative proceedings that contains evidence the Appeals

Council has explicitly declined to accept, consider, and/or

incorporate into that record” (internal citations omitted)),

recommendation adopted sub nom. Coleman v. Berryhill, 2019 WL

254672 (W.D. Va. Jan. 17, 2019) (unpublished).

Further complicating matters, the Fourth Circuit has evaluated

cases pursuant to both sentence four and sentence six when

confronted with new evidence first presented to the Appeals

Council. Compare Wiebusch v. Commissioner, Soc. Sec. Admin., No.

20-1590, 2022 WL 2965653, at *2-3 (4th Cir. July 27, 2022)

24

(unpublished) (reviewing case under sentence four standard where

Appeals Council found new evidence consisting of treating physician

questionnaire did not show reasonable probability it would change

outcome of ALJ’s decision but not addressing sentence six or

whether Appeals Council had considered or incorporated new

evidence), with Jackson v. Astrue, 467 F. App’x 214, 218 (4th Cir.

2012) (holding that, where Appeals Council rejected new evidence

because it “d[id] not provide a basis for changing the [ALJ]’s

decision[,] . . . [the court’s] proper disposition is to remand

pursuant to sentence six of § 405(g) which authorizes a remand upon

a showing of new material evidence” (emphasis added)).

District courts within the Fourth Circuit similarly take

different approaches to cases involving new evidence presented to

(but not exhibited by) the Appeals Council. See, e.g., Montoya v.

Kijakazi, No. 1:20CV1157, 2022 WL 562945, at *7 (M.D.N.C. Jan. 11,

2022) (unpublished) (Webster, M.J.) (deciding case under sentence

four framework because “[the p]laintiff appear[ed] to be seeking a

sentence four remand,” where Appeals Council failed to acknowledge

new evidence submitted by the plaintiff and thus that evidence did

not appear in administrative transcript, but also noting that

“analysis and result [] would essentially be the same even if [the

pllaintiff sought a remand pursuant to sentence six” (emphasis

added)), recommendation adopted, 2022 WL 561533 (M.D.N.C. Feb. 24,

2022) (unpublished) (Biggs, J.); Donald C. v. Saul, No. 5:18CV63,

25

2019 WL 9056721, at *11 (W.D. Va. Aug. 19, 2019) (unpublished)

(finding that, because Appeals Council concluded that newly

submitted evidence did not raise reasonable probability of changing

outcome of case and “did not consider and exhibit th[at] evidence,”

the plaintiff’s contention regarding the new evidence constitutes

“an argument that the case should be remanded under sentence six of

42 U.S.C. § 405(g) to enable the Commissioner to consider

additional evidence in the first instance” (emphasis added));

Lauder v. Saul, No. 1:18CV480, 2019 WL 3457706, at *9-10 (M.D.N.C.

July 31, 2019) (unpublished) (Peake, M.J.) (denying remand under

sentence four because “no meaningful possibility [existed] - much

less a reasonable probability - that the additional evidence would

change the outcome of the decision,” even where Appeals Council did

not exhibit new evidence because it “d[id] not relate to the period

at issue” but new evidence appeared in administrative transcript),

recommendation adopted, slip op. (M.D.N.C. Aug. 22, 2019) (Eagles,

J.); Johnson v. Acting Comm’r of Soc. Sec. Admin., No. 9:18CV90,

2019 WL 2717860, at *6 n.4 (D.S.C. June 27, 2019) (unpublished)

(“The Appeals Council ultimately decided that . . . it would not

‘consider’ or ‘exhibit’ the evidence because there was not a

reasonable probability it would change the outcome of the

case . . . The Appeals Council therefore denied review and would

not consider this new evidence after making a determination that

the medical records provided no basis to change the ALJ’s decision.

26

Further, the medical records are included in the transcript and

noted as ‘Medical Evidence of Record.’ Accordingly, this remand is

appropriate under sentence four of 42 U.S.C. $ 405(g).”

(underscoring added) (italics in original)); Coleman v. Berryhill,

No. 6:17CV2613, 2019 WL 850902, at *5 (D.S.C. Feb. 22, 2019)

(unpublished) (noting that Appeals Council did not incorporate new

evidence into the record, but finding sentence four remand

appropriate “because it was an error of law [for the Appeals

Council] to not consider and exhibit such evidence”); Hawks v.

Berryhill, No. 1:17CV1021, 2018 WL 6728037, at *5 n.6, *8 n.9

(M.D.N.C. Dec. 21, 2018) (unpublished) (noting that the plaintiff

did not request sentence six remand and could “not argue [for a

sentence four remand based on the fact] that the [new evidence],

when considered as part of the administrative record as a whole,

render [ed] the ALJ's decision unsupported by substantial

evidence[,] . . . because . . . the Appeals Council declined to

incorporate the [new evidence] into the administrative record”

(emphasis added)), recommendation adopted, 2019 WL 359999 (M.D.N.C.

Jan. 29, 2019) (unpublished) (Schroeder, C.J.); Jones v. Berryhill,

No. 1:17CV703, 2018 WL 3849914, at *6-7 (M.D.N.C. Aug. 13, 2018)

(unpublished) (denying remand under sentence six where Appeals

Council found new evidence “d[id] not show a reasonable probability

that it would change the outcome of the decision” and “did not

consider and exhibit thle new] evidence,” and administrative

27

transcript before the Court did not contain new evidence),

recommendation adopted, slip op. (M.D.N.C. Sept. 4, 2018)

(Schroeder, C.J.); Brown v. Colvin, No. 7:14CV283, 2015 WL 7307320,

at *6 (E.D.N.C. Oct. 27, 2015) (unpublished) (“To the extent that

the lack of formal incorporation of the additional evidence into

the record signifies that it remains outside the record,

notwithstanding its inclusion in the transcript of proceedings,

this evidence is appropriately treated as having been submitted for

the first time to th[e] court and therefore as being subject to

sentence six of 42 U.S.C. § 405(g),” but also finding that

“[rJemand [wa]s [] warranted [under sentence four] if the [new

evidence was] deemed to have become part of the record by virtue of

the Appeals Council’s consideration of [it], even if not formally

incorporated into the record” (emphasis added)), recommendation

adopted, 2015 WL 7306453 (E.D.N.C. Nov. 19, 2015) (unpublished).

On balance, four facts before the Court in this case favor

analyzing Plaintiff’s new evidence under the sentence four

framework. First, unlike in Hawks and Jones, the Questionnaire

appears in the administrative transcript before the Court, albeit

in the “Court Transcript Index” portion rather than the “Exhibits”

portion of the record (see Tr. 7-12). The inclusion of the

Questionnaire in the Court’s official record of proceedings lends

support to the notion that the Court can consider it as part of a

sentence four analysis. See West v. Berryhill, No. 18CV92, 2019 WL

28

362259, at *6 (D. Haw. Jan. 29, 2019) (unpublished) (“The [c]ourt

notes that the Appeals Council also stated that [the new evidence]

would not be exhibited. [The new evidence], however, can be found

in the [administrative transcript] of this case. Unlike other

medical evidence, though, [the new evidence is] not exhibited in

the sense that [it] ha[s] been assigned an exhibit number, but,

instead, placed in that part of the [administrative transcript]

concerning ‘Documents Related to Administrative Process Including

Transcript of Oral Hearing, if applicable.’ Nonetheless, as far as

this [c]ourt is concerned, [the new evidence is] part of the

certified transcript of record in this case. As a result, the

[c]ourt may remand this case to the ALJ pursuant to Sentence

Four . . . .” (emphasis added) (internal citations omitted)).

Second, unlike in Donald C. and Jones, the Appeals Council

here did not explicitly state that it refused to consider and

exhibit Plaintiff’s evidence, only that it did not exhibit that

evidence. (See Tr. 2.) The omission of the “did not consider”

language from the Appeals Council’s decision suggests that it did

consider the Questionnaire in making its determination that the

Questionnaire did not show a reasonable probability of a different

outcome in the ALJ’s decision. See Vahey v. Saul, No. 18CV350,

2019 WL 3763436, at *9 (D. Haw. Aug. 9, 2019) (unpublished)

(observing that, in other cases, “the Appeals Council had stated

that it did not ‘consider and exhibit’ the evidence; whereas, [in

29

the case before the court], the Appeals Council said only that it

did not ‘exhibit’ the evidence”).

Third, the applicable regulation requires the Appeals Council

to consider new evidence only if the claimant shows “good cause”

for failing to submit the evidence at least five days prior to the

hearing before the ALJ,’ and the Appeals Council here did not

expressly find that Plaintiff lacked good cause to submit the

Questionnaire (see Tr. 2). If the Appeals Council implicitly found

that Plaintiff showed good cause for failing to submit the

Questionnaire to the ALJ, then Section 404.970 required the Appeals

Council to consider that evidence. See Vahey, 2019 WL 3763436, at

*6 (noting that, under the new [version of Section 404.970], the

Appeals Council could only ‘consider’ evidence upon a showing of

good cause and, given that Appeals Council’s “denial letter [wal]s

devoid of any good cause discussion,” the possibility existed that

’ The applicable regulation provides, in pertinent part, as follows:

(a) The Appeals Council will review a case if—

(5) Subject to paragraph (b) of this section, the Appeals Council

receives additional evidence that is new, material, and relates to

the period on or before the date of the hearing decision, and there

_reasonable probability that the additional evidence would

change the outcome of the decision.

The Appeals Council will only consider additional evidence under paragraph

(a) (5) of this section if [the claimant] show[s] good cause for not informing

[the Appeals Council] about or submitting the evidence as described in §$ 404.935

[which requires claimants to submit evidence at least five days prior to the ALJ

hearing].

20 C.F.R. § 404.970 (2017) (emphasis added).

30

the “Appeals Council implicitly found good cause [and ] considered

the [new] evidence,” thus making the evidence “part of the

record”).

Fourth, the Appeals Council must have considered the

Questionnaire on some level in order to find that it did not raise

a reasonable probability of a different outcome in the ALJ’s

decision. See id. at *8 (“Presumably, to decide that the [new

evidence] would not change the outcome of the decision, the Appeals

Council would have needed to ‘consider’ those records.”); Reyes v.

Commissioner of Soc. Sec. Admin., No. 17CV8192, 2019 WL 2098755, at

*3 (D. Ariz. May 14, 2019) (unpublished) (“The [c]ourt is unable to

reconcile [the Appeals Council’s] statement [that it did not

consider the new evidence] with the previous sentence in the order

finding that the evidence d[id] not show a reasonable probability

of changing the ALJ’s decision. . . . [T]he Appeals Council made

a finding about the merits of the additional evidence and

considered whether it would change the outcome of the decision.

Therefore, it is part of the record.” (internal citations

omitted)); Linnehan v. Berryhill, No. 17CV4146, 2018 WL 6267846, at

*8 (N.D. Cal. July 31, 2018) (unpublished) (“The Appeals Council

cannot consider the evidence to conclude that it ‘does not show a

reasonable probability that it would change the outcome of the

decision’ and then exclude the evidence from the record based on

the illogical conclusion that ‘[w]e did not consider and exhibit

31

this evidence.’”). Under these factual circumstances, the Court

should analyze the Questionnaire under the framework of sentence

four of Section 405(g).

“[B]lecause [the Appeals Council] denied review, the decision

of the ALJ became ‘the final decision of the [Commissioner]

Meyer, 662 F.3d at 704 (quoting Wilkins, 953 F.2d at 96). A court

should “uphold the factual findings underpinning the Commissioner’s

final decision ‘if they are supported by substantial evidence and

were reached through application of the correct legal standard.’”

Id. (quoting Craig, 76 F.3d at 589). “In making th{[at]

determination, [the Court] ‘review[s] the record as a whole’

including any new evidence that the Appeals Council ‘specifically

incorporated . . . into the administrative record.’” Id. (quoting

Wilkins, 953 F.2d at 96). Significantly, the Court “review[s] for

substantial evidence the ALJ’s decision, not the Appeals Council’s

denial of [the plaintiff]’s request that the Council review the

ALJ’s decision due to the newly submitted [Q]uestionnaire.”

Wiebusch, 2022 WL 2965653, at *2 n.3. For the reasons explained in

more detail below, the Court should find that the Questionnaire

renders the ALJ’s findings at step three of the SEP regarding the

functional impact of Plaintiff’s mental impairments unsupported by

substantial evidence.

Most significantly, the Questionnaire fills an evidentiary gap

in the opinion evidence of record. The ALJ found the opinions of

32

the state agency psychological consultants that Plaintiff’s mental

impairments caused moderate limitations in mental functioning (see

Tr. 81, 101) only “somewhat persuasive” (Tr. 31), noting that those

opinions conflicted with Dr. Ast’s opinion that Plaintiff qualified

as unemployable (see Tr. 30-31; see also Tr. 486-87). In turn, the

ALJ found Dr. Ast’s unemployable opinion (see Tr. 486-87) only

“somewhat persuasive,” because Dr. Ast did not provide an

“opinion . . . in vocationally relevant terms” (Tr. 32). The

Questionnaire clearly sets forth Dr. Ast’s opinions regarding

Plaintiff’s mental functioning “in vocationally relevant terms”

(id.), as Dr. Ast rated Plaintiff’s limitations using the same

rating scale and areas of mental functioning as used by the SSA in

evaluating the paragraph “B” criteria of the mental health

listings. (See Tr. 10-11 (mirroring 20 C.F.R. Pt. 404, Subpt. P,

App’x 1, §§ 12.00E, F).)

In Meyer, the Fourth Circuit remanded on the basis of a

treating physician opinion letter first submitted to the Appeals

Council, reasoning as follows:

On consideration of the record as a whole, we simply

cannot determine whether substantial evidence supports

the ALJ’s denial of benefits here. The ALJ emphasized

that the record before it lacked “restrictions placed on

the claimant by a treating physician,” suggesting that

this evidentiary gap played a role in [the ALJ’s]

decision. [The plaintiff] subsequently obtained this

missing evidence from his treating

physician[,] . . . [and] other record evidence credited

by the ALJ conflicts with the new evidence.

33

Meyer, 662 F.3d at 707. As in Meyer, Plaintiff here has filled the

evidentiary gap in the opinion evidence by supplying opinions from

her treating psychologist set forth in vocationally relevant terms

(see Tr. 7-12), and those opinions, finding marked limitations in

all four areas of mental functioning (see Tr. 10-11), conflict with

and undermine the ALJ’s moderate step three findings (see Tr. 26),

which the ALJ supported with the non-examining consultants’

opinions the ALJ deemed only “somewhat persuasive” (Tr. 31

(emphasis added)).

Furthermore, the Questionnaire calls into substantial question

the ALJ’s observation that, “[a]fter the Covid pandemic began,

[Plaintiff] had a significant increase in her symptoms [(Tr. 636-

701)], but by the fall she typically presented with an euthymic

mood [(Tr. 760-910, 1024-1103), and ijlJn December [2020], she

reported she was doing well, with improved energy and mood [(Tr.

1094)].” (Tr. 30.) In the Questionnaire, Dr. Ast explained that

Plaintiff had not regained the progress she had made in therapy

prior to the pandemic:

[Plaintiff] has participated in group psychotherapy, a

family workshop, individual psychotherapy, and has

completed the full Prolonged Exposure therapy (PE)

protocol w[ith] this provider just before the pandemic

started w[ith] good results. Once the pandemic started

in Mfarch] 2020, [Plaintiff]’s anxiety increased with her

wife working longer shifts in a Covid unit and with no

longer being able to challenge her avoidance through in

vivo exercises she had started in PE, due to it no longer

being safe to go out and around pleoplel]. [Plaintiff]

has not been able to regain the progress made in

J[anuary] 2020 as _result of the pandemic and

34

participation in an Intensive Outpatient Program [] for

PTSD is being considered as a result.

(Tr. 7 (emphasis added).) That explanation directly conflicts with

the ALJ’s observation that, by the fall of 2020, Plaintiff

typically displayed a euthymic mood and reported doing well (see

Tr. 30).

Moreover, the treatment notes of Dr. Ast and other VA mental

health providers support Dr. Ast’s opinion that Plaintiff did not

regain her pre-pandemic progress during the relevant period in this

case and contradict the ALJ’s remark that, in the fall of 2020,

Plaintiff typically displayed a euthymic mood and reported doing

well (see Tr. 30). On October 5, 2020, Plaintiff reported to Dr.

Ast that she had experienced “some really bad days” as well as

“thoughts of suicide,” and Dr. Ast observed that Plaintiff appeared

“tired” and “less animated” with “slower speech” and “longer

pauses.” (Tr. 794.) On mental status examination, Dr. Ast

recorded “depressed” mood. (Tr. 795.) On October 21, 2020,

Plaintiff complained of problems with her memory which had resulted

in her missing some appointments, and Dr. Ast referred Plaintiff to

speech pathology to assist with those memory complaints. (See Tr.

790.) On examination, Dr. Ast documented “slower [speech] than

. . . seen before with longer pauses” as well as “dysthymic” mood

and “restricted” affect. (Tr. 791.) On November 10, 2020,

Plaintiff reported “ongoing persistent anxiety and panic attacks,”

decreased sleep, and nightmares to Nurse Practitioner Maclean M.

35

Masese (Tr. 778), who observed a “constricted” mood (Tr. 781) and

prescribed Trazodone for sleep and Clonazepam for “breakthrough

anxiety” (Tr. 782). Moreover, on December 21, 2020, Plaintiff

reported that she “had been doing well with improved energy,

motivation, and mood,” but that the prior and current week “ha[d]

not been as good,” and that she “fe[lt] like [she was] in cement.”

(Tr. 1093 (emphasis added) (internal quotation marks omitted).) As

a result, Dr. Ast referred Plaintiff for Alpha-Stim therapy.

(Id.)8

Additionally, on January 25, 2021, Plaintiff complained of

daily panic attacks and increasing nightmares and intrusive

thoughts as the March 22nd anniversary of her trauma approached

(see Tr. 1086), as well as “struggling with irritability in

general” (Tr. 1087). Based on those symptoms, Dr. Ast and

Plaintiff “collaboratively determined she would participate in

sessions every other week with psychology doctoral student

[Brittney L. Roberson] toward the goal of working on [Plaintiff’s]

negative thoughts and beliefs.” (Id.)9 The record contains four

8 “According to its website, ‘[t]he Alpha-Stim electrotherapy device

relieves post-traumatic, acute and chronic pain through painless electrical

stimulation delivered via two handheld Smart Probes.’” Ort v. Commissioner of

Soc. Sec. Admin., No. 3:18CV286, 2019 WL 4751776, at *5 n.2 (S.D. Ohio Sept. 30,

2019) (unpublished) (quoting www.alpha-stim.com (last visited Apr. 25, 2023)).

9 The goal of obtaining more frequent therapeutic visits for Plaintiff with

a doctoral student undermines the Commissioner’s suggestion that “Dr. Ast, [] as

far as the record reflects, based on Plaintiff’s improvement, discharged her in

April 2021 to the care of a doctoral student for future follow up for any

challenging negative thoughts.” (Docket Entry 12 at 22-23 (emphasis added)

(citing Tr. 1036).)

36

treatment records with Roberson from February to April 2021, at

which Plaintiff reported that she “ha[d] thought of suicide a lot

[that ] day” and “felt overwhelmed, sad, and depressed” (Tr. 1075

(internal quotation marks omitted)), that she “fe[lt] drained from

getting only 4-6 hours of sleep” (Tr. 1054) and “believe[d] it

would benefit her most to participate [in PE therapy] after the

pandemic stabilized” (Tr. 1055), that “[h]ler current coping

strategy [wa]s avoidance” and that “she [wa]s not ready for [PE]

therapy, but wl[ould] consider it following the pandemic” (Tr.

1042). Notably, Dr. Ast signed off on all of Roberson’s treatment

notes. (See Tr. 1036, 1044, 1057, 1077.)

Lastly, the ALJ (and the Commissioner (see Docket Entry 12 at

2)) places great emphasis on Plaintiff’s ability to engage in

activities during the relevant period, including taking a cruise

with her wife (see Tr. 28), attending the state fair (id.),

shopping at Walmart (id.), chaperoning a first grade trip (id.),

taking her daughter to gymnastics practice (id.), hosting her

father’s birthday party (id.), trick or treating (id.), going to

Carowinds amusement park and riding a roller coaster (id.),

attending family day with the National Guard (id.), volunteering at

basketball practice (id.), attending her wife’s holiday party

(id.), spending a week’s vacation in California (id.), and visiting

the beach (see Tr. 29). Neither the ALJ nor the Commissioner

acknowledged the fact that Dr. Ast specifically requested that

37

Plaintiff engage in such activities as part of Plaintiff’s in vivo

homework exercises, a component of her PE therapy. (See Tr. 551-

74.) At each visit during PE, Plaintiff indicated that she

experienced varying levels of subjective distress (subjective units

of distress (“SUDs”)) after participating in each activity, but

continued to engage in them in order to challenge her pattern of

avoidance, as instructed by Dr. Ast. (See id.) Dr. Ast

specifically noted that, once the pandemic started, Plaintiff could

no longer engage in as many social activities to challenge her

avoidance, which led to an increase in her symptoms. (See Tr. 7.)

Thus, Plaintiff’s participation in those activities did not provide

substantial evidence to support the ALJ’s moderate limitations at

step three.

In sum, the Questionnaire, when considered as part of the

record as a whole, renders the ALJ’s step three findings regarding

Plaintiff’s mental impairments unsupported by substantial evidence.

Accordingly, the Court should remand this matter for further

proceedings under sentence four of 42 U.S.C. § 405(g). See Sales

v. Saul, No. 1:19CV476, 2020 WL 4735308, at *4 (M.D.N.C. Aug. 14,

2020) (unpublished) (Webster, M.J.) (“[The p]laintiff submitted

additional information to the Appeals Council some of which she

contends relates to Listing 1.04A[, and t]he Appeals Council

determined that such evidence d[id] not show a reasonable

probability that it would change the outcome of the [ALJ’s]

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decision. The Court disagrees. There is a reasonable probability

that [the p]laintiff meets Listing 1.04A and[,] . . . [t]herefore,

there is a reasonable probability that the additional evidence

would change the outcome of the decision. . . . None of this

necessarily means that [the p]laintiff is disabled under

the . . . Act and the Court expresses no opinion on that question.

Nevertheless, the Court concludes that the proper course here is to

remand this matter [under sentence four of 42 U.S.C. § 405(g)] for

further administrative proceedings.” (internal quotation marks and

citations omitted)), recommendation adopted, slip op. (M.D.N.C.

Sept. 1, 2020) (Eagles, J.).

III. CONCLUSION

Plaintiff has demonstrated that the Questionnaire, when

considered as part of the record as a whole, renders the ALJ’s step

three findings regarding Plaintiff’s mental impairments unsupported

by substantial evidence, 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, to include evaluation by the ALJ of the Questionnaire

and, in light of the Questionnaire, reconsideration of 1) whether

Plaintiff’s mental impairments meet or medically equal any

listings, and 2) Plaintiff’s mental RFC. As a result, Plaintiff’s

Motion for Judgment on the Pleadings (Docket Entry 10) should be

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granted in part (i.e., to the extent it requests remand), and

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 11)

should be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

April 26, 2023

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