The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AIRRION Y., )
)
Plaintiff, )
)
v. ) 1:22CV815
)
MARTIN J. OPMALLEY;,! )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Airrion Y. (“Plaintiff’) brought this action pursuant to Sections 205(g) and
1631(c)(3) of the Soctal Security Act (the “Act”), as amended (42 U.S.C. §§ 405(2) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental Secutity
Income (“SSI’) under, respectively, Titles I and XVI of the Act. The Parties have filed cross-
motions for judgment, and the administrative record has been certified to the Court for review.
IL. PROCEDURAL HISTORY
Plaintiff protectively filed applications for DIB and SSI on August 23, 2019, alleging a
disability onset date of March 2, 2019 in both applications. (Tr. at 17, 218-23, 226-35.)? His
1 On December 20, 2023, Martin J. O’Malley was sworn in as Commissioner of Social Security, replacing Acting
Commissioner Kilolo Kijakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.
O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken
to continue this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C. §
405(g).
Transcript citations refer to the Sealed Administrative Record [Doc. #7].
applications were dented initially (Ir. at 58-87, 106-14) and upon reconsideration (I't. at 88-
101, 116-31). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at 132-33.) On June 10, 2021, Plaintiff, along with
his attorney, attended the subsequent telephonic heating, at which Plaintiff and an impartial
vocational expert testified. (Tr. at 17.) At the hearing, Plaintiff noted that he had returned to
work and amended his application to a closed period of disability from March 2, 2019 through
April 12, 2021. (Tr. at 37.) Following the hearing, the ALJ concluded that Plaintiff was not
disabled within the meaning of the Act (Tr. at 25), and, on July 29, 2022, the Appeals Council
denied Plaintiff's request for review, thereby making the AL]’s ruling the Commissionet’s final
decision for purposes of judicial review (Tr. at 3-8).
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they ate supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets
and quotation 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. 1993)
(internal quotation omitted). “It consists of more than a mete scintilla of evidence but may
be somewhat less than a preponderance.” Mastto v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(internal brackets and quotation 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 omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation omitted). “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472 (internal brackets
and quotation omitted). “The issue before [the reviewing court], therefore, is not whether [the
claimant] is disabled, but whether the AL]’s finding that [the claimant] is not disabled is
supported by substantial evidence and was reached based upon a cortect application of the
relevant law.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death, or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a) (4), 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the 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 the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, the claimant is
disabled. Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two, but
falters at step three, ie., “[i]f a clatmant’s impairment is not sufficiently severe to equal or
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 ef seg., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSD), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 ef seg., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F-R. pt. 404 (SSDI); 20 CFR. pt. 416 (SSD), governing these two programs ate,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
capacity (REC’).” Id. at 179.4 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, which “requires the [Government] to prove that
a sionificant number of jobs exist which the claimant could perform, despite [the claimant’s]
impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot 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.
Ill. DISCUSSION
In the present case, Plaintiff had returned to work by the time of the hearing, and he
amended his application to a closed period of disability from March 2, 2019 through April 12,
2021. (Tr. at 17, 37.) The ALJ found that Plaintiff had not engaged in “substantial gainful
activity” during that period. The ALJ therefore concluded that Plaintiff met his burden at step
+ “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8
houts a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation 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 1s to be determined by the AL] only after [the AL]] considers
all relevant evidence of a claimant’s impaitments and any related symptoms (¢.g., pain).” Hines, 453 F.3d at
562-63.
one of the sequential evaluation process. (Tr. at 19.) At step two, the ALJ further determined
that Plaintiff suffered from two severe impairments:
degenerative disc disease of the lumbar and cervical spine with vitamin B12
deficiency|.|
(Tr. at 20.) The AL] found at step three that neither of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 20.) Therefore, the ALJ assessed
Plaintiffs RFC and determined that he could perform light work with further limitations.
Specifically, the ALJ found as follows:
[Plaintiff] can stand and walk four (4) hours total in an eight hour workday; sit
six (6) hours total in an eight hour workday; occasionally climb ramps and stairs,
but never ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch,
and crawl; tolerate frequent exposure to vibrations and hazards; and, requires
use of a single cane to ambulate and stand.
at 20-21.) At step four of the analysis, the ALJ determined, based on the testimony of the
vocational expert, that all of Plaintiffs past relevant work exceeded the above RFC. (Tr. at
23.) However, the AL] concluded at step five that, given Plaintiffs age, education, work
experience, and RFC, along with the testimony of the vocational expert regarding those
factors, Plaintiff could perform other jobs available in the national economy and therefore was
not disabled under the Act. (Tr. at 24-25.)
Plaintiff now contends that in formulating the RFC assessment, the AL] failed to
ptoperly evaluate the medical opinion of Plaintiffs treating provider, Dr. Michael Goulet.
Under the applicable regulations for claims filed on or after March 27, 2017,
[The ALJ] will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from your medical sources. When a medical source
provides one ot more medical opinions or prior administrative medical findings,
we will consider those medical opinions or prior administrative medical findings
from that medical source together using the factors listed in paragraphs (c)(1)
through (c)(5) of this section, as appropriate. .. .
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his
ot her medical opinion(s) or prior administrative medical finding(s), the
mote persuasive the medical opinions or prior administrative medical
finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) of prior
administrative medical finding(s) is with the evidence from other medical
soutces and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.
(3) Relationship with the claimant... . [which includes]: () Length of the
treatment relationship. . . . (it) Frequency of examinations. ... (it) Purpose
of the treatment relationship. . . . (iv) Extent of the treatment
relationship. ... [and] (v) Examining relationship. .. .
(4) Specialization. The medical opinion or prior administrative medical finding
of a medical source who has received advanced education and training to
become a specialist may be more persuasive about medical issues related to
his or her atea of specialty than the medical opinion or prior administrative
medical finding of a medical source who is not a specialist in the relevant
atea of specialty.
(5) Other factors. ...’This includes, but is not limited to, evidence showing a
medical source has familiarity with the other evidence in the clatm or an
understanding of our disability program’s policies and evidentiary
requirements. ...
20 C.F.R. § 404.1520c(a), (c) (emphases added). The regulations also require decision-makers
to “articulate in [their] decision[s] how persuasive [they] find all of the medical opinions... in
[a claimant’s] case record.” 20 C.F.R. § 404.1520c(b). Although all of the factors listed in
patagraphs (c)(1) through (c)(5) of § 404.1520c should be considered in making this
determination, the regulations specifically provide that the most important factors when
evaluating the persuasiveness of an opinion are the first two: supportability and consistency.
20 C.F.R. § 404.1520c(a), (c)(1)-(2). “Supportability” refers to “the objective medical evidence
and supporting explanations presented by [the] medical source [] to support his or her medical
opinion(s).” 20 C.F.R. § 404.1520c(c)(1). “Consistency” refers to the opinion’s consistency
“with the evidence from other medical sources and nonmedical sources in the claim.” 20
C.F.R. § 404.1520c(c)(2) (emphasis added).
Hete, as set out in the administrative decision,
[Dr. Goulet] completed a “Physical Assessment” [in September 2019], wherein
he opined [that Plaintiffs] attention and concentration would frequently be
interfered with; and, that he was only capable of walking 1.5 blocks without rest
ot significant pain, sitting 6 hours total in a workday, standing/walking 1 hour
total in a workday, and lifting up to 10 pounds occasionally but never more. Dr.
Goulet opined [Plaintiff] needs to take unscheduled breaks once an hour for 10
minutes at a time and would likely be absent once or twice a month as a result
of his impairments or treatments. (1F).
(Tr. at 22.) The AL] ultimately found Dr. Goulet’s opinions unpersuasive, noting that the
“evidence does not support the restrictive limitations in his ‘Physical Assessment.”’ (Tr. at
23.) The ALJ contrasted Dr. Goulet’s opinion with the opinion of the Consultative Examiner
Dr. Lifrak, and found that the opinion of Dr. Lifrak was supported by a thorough examination
and objective findings. (Tr. at 23.) The AL] stated that he was “persuaded by Dr. Liftak’s
opinions” but was “not persuaded by the opinions of Dr. Goulet.” (Tr. at 23.) The AL]
further explained that “[t]here is no objective evidence, or even subjective reports from
[Plaintiff], to support a finding [that Plaintiff] requires breaks every hour, that his attention
and focus is affected by his pain, and that he would be absent more than once or twice a
month, with additional restrictions on standing, walking, and sitting.” (T'r. at 23.)
Plaintiff now argues that the AL]’s explanation was insufficient under 20 C.F.R.
§ 404.1520c. In particular, Plaintiff contends that the ALJ failed to specifically address the
consistency and supportability of Dr. Goulet’s opinion, as requited by 20 CFR.
§ 404.1520c(b)(2), which dictates that the ALJ “will explain” how the consistency and
supportability factors were considered in the decision. (Pl.’s Br. at 9.) Plaintiff further argues
that the ALJ impermissibly substituted his own opinions for those of Dr. Goulet.
In considering these contentions, the Court notes that the ALJ’s decision must include
a sufficient discussion of the relevant factors to allow for judicial review, and a simple review
of the record as a whole cannot rectify an error under 20 C.F.R. § 404.1520c(b)(2). As
expressed in a recent decision,
[an AL]’s] failure to articulate the consistency factor in his evaluation of [the
physician’s] opinion constitutes error. See 20 C.F.R. § 404.1520c(b)(2). This
court cannot “fill in the blanks for the ALJ” by finding substantial evidence
supports the AL]’s evaluation of [an] opinion when the ALJ did not even
address the consistency factor, nor may the court “bolster inconclusive
findings” when the AL] did not discuss the extent to which [the physician’s]
opinion was either consistent or inconsistent with the evidence in the record.
See Patterson| v. Comm’r of Soc. Sec. Admin.], 846 F.3d [656,] 662 [(4th Cir.
2017)]. Absent any explanation by the ALJ whether [the medical] opinion was
consistent or inconsistent with the record, this court cannot meaningfully
review how the ALJ evaluated the persuasiveness of [the] opinion and whether
substantial evidence supports the AL]’s determination.
Cantrell v. Kijakazi, No. 2:21cv00021, 2022 WL 3335778, at *10 (W.D. Va. Aug. 12, 2022)
(internal brackets omitted). Nevertheless, there is no requitement that an ALJ use any “magic
words” in making findings regarding consistency and supportability. See Weidner v. Kijakazi,
No. 20-1250-MN, 2022 WL 610702, at *12 (D. Del. Feb. 1, 2022) (finding the fact that the
ALJ did not use “consistency” or “supportability” is not sufficient to remand where the “ALJ
plainly considered the consistency of the medical opinions with the evidence of record”).
Thus, the AL]’s failure to follow a specific format is inapposite, so long as he (1) analyzed the
relevant factors when considering the persuasiveness of the medical opinion and (2) made his
analysis cleat enough for the court to meaningfully review it.
Here, with regard to supportability, as set out above, in finding Dr. Goulet’s opinion
unpersuasive, the ALJ contrasted Dr. Goulet’s opinion with the opinion of the Consultative
Examiner Dr. Irwin Lifrak. The ALJ specifically found that the opinion of Dr. Lifrak was
“supported by a thorough examination of [Plaintiff] and objective findings.” (Tr. at 23.) The
ALJ then stated that, in contrast, “this evidence does not support the restrictive limitations”
in Dr. Goulet’s opinion form. (Tr. at 23.) Thus, the ALJ specifically found that Dr. Goulet’s
Physical Assessment was not supported by a thorough examination or by objective findings.
This conclusion is supported by the record, which reflects Dr. Goulet’s opinion form on
September 11, 2019 (Tr. at 340-41), and a record of an office visit on September 11, 2019,
reflecting “Patient here for forms to be filled” (Tr. at 402), but without the type of thorough
examination and objective findings reflected in Dr. Liftak’s consultative examination, and
without any treatment records reflecting prior examination or treatment by Dr. Goulet. (Tr.
at 402-03, 421-29). In addition, the AL] then further explained that “[t]here is no objective
evidence, or even subjective reports from [Plaintiff], to support a finding [that Plaintiff]
tequites breaks every hour, that his attention and focus is affected by his pain, and that he
would be absent more than once or twice a month, with additional restrictions on standing,
walking, and sitting.” (Tr. at 23.) Thus, the ALJ concluded that Dr. Goulet’s opinion was not
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supported by a thorough examination, by objective evidence, or even by Plaintiffs own
subjective statements.°
The ALJ similarly addressed the issue of consistency with the remainder of the record
and the other opinion evidence and non-opinion evidence. First, as noted above, the AL]
specifically contrasted the opinions of Dr. Goulet and Dr. Lifrak. (Tr. at 23.) In addition, as
noted by the ALJ, there was no other objective evidence in the record or subjective reports by
Plaintiff to support Dr. Goulet’s opinions regarding breaks, attention and focus, absences, and
additional restrictions on standing and walking. (Tr. at 23.) Finally, in the next sentence after
considering the lack of support for Dr. Goulet’s opinion, the ALJ further noted Plaintiffs
activities of daily living, specifically that he was “able to care for children and his personal cate
and grooming needs, prepare meals, do light household chores, handle finances, read, watch
TV, learn, attend family and friend gatherings, attend Bible study, follow instructions,
concentrate, remember things, complete tasks, get along with authority figures, handle stress,
and handle changes in routine,” as well as his “conservative treatment during the relevant
petiod” and his “overall benign findings on physical examinations.” (Tr. at 23.) Thus, with
respect to consistency, the AL} contrasted Dr. Goulet’s opinion with Dr. Lifrak’s opinion,
with the objective evidence, with Plaintiffs subjective complaints, with Plaintiffs activities of
5 Indeed, Dr. Goulet opined that Plaintiff could only stand for one hour during an 8-hour work day, but Plaintiff
told Dr. Lifrak he could “stand for a total period of 2 to 3 hours out of an 8-hour day.” (Tr. at 340, 426.)
Similarly, Dr. Goulet opined that Plaintiff could only occasionally lift 10 pounds and could never lift over 10
pounds, but Plaintiff reported to Dr. Lifrak that he could lift 20 to 25 pounds with his right hand and 15 pounds
with his left hand. (Tr. at 340, 426.) Dr. Goulet’s opinion did not include any subjective reports from Plaintiff
ot objective basis for his conclusions, and substantial evidence supports the ALJ’s conclusion on supportability,
specifically that “[t]here is no objective evidence, or even subjective reports from [Plaintiff], to support [Dr.
Goulet’s] finding [that Plaintiff] requires breaks every hour, that his attention and focus is affected by his pain,
and that he would be absent more than once or twice a month, with additional restrictions on standing, walking,
and sitting.” (Tr. at 23.)
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daily living, with his conservative treatment, and with the findings on physical examinations.
From this discussion, the Court can clearly discern the ALJ’s meaning without “filling in the
blanks,” and the AL]’s explanation and analysis are sufficient to allow for judicial review.
Plaintiff also argues that some of Dr. Goulet’s findings were consistent with those of
the consultative examiner, Dr. Lifrak. However, the ALJ incorporated the consistent findings,
including Plaintiffs diminished ability to stand, walk, and lift, when assessing his RFC. As
explained in the administrative decision, the ALJ only discounted Dr. Goulet’s unsupported
and inconsistent findings that Plaintiff required additional limitations such as breaks every
hour, multiple absences a month, restrictions to account for attention and focus difficulties,
standing and walking no more than an hour in a workday, and lifting no more than 10 pounds
occasionally. (Tr. at 22-23.) Plaintiff points to no evidence in Dr. Goulet’s treatment notes
ot otherwise to support such extreme limitations, and none are apparent from a review of the
record.
While Plaintiff disagrees with the AL]’s evaluation of Dr. Goulet’s opinion, Plaintiff is
essentially asking the Court to reconsider the decision and re-weigh the opinion evidence and
come to a different conclusion than the ALJ. However, it is not the function of this Court to
te-weigh the evidence or reconsider the AL]’s determinations if they are supported by
substantial evidence. As noted above, “[w]here conflicting evidence allows reasonable minds
to differ as to whether a claimant is disabled, the responsibility for that decision falls on the
ALJ.” Hancock, 667 F.3d at 472 (internal brackets and quotation omitted). ‘Thus, the issue
before the Court is not whether a different fact-finder could have drawn a different conclusion,
ot even “whether [Plaintiff] is disabled,” but rather, “whether the AL]’s finding that [Plaintiff]
12
is not disabled is supported by substantial evidence and was reached based upon a correct
application of the relevant law.” Craig, 76 F.3d at 589. Here, the AL] reviewed the evidence,
including the opinion evidence from Dr. Goulet, explained his decision, including with respect
to both supportability and consistency, and that explanation is supported by substantial
evidence in the record. Accordingly, the Court finds no basis for remand.
IT IS THEREFORE ORDERED that the Commissionet’s decision finding of no
disability is AFFIRMED, that Plaintiffs Dispositive Brief [Doc. #12] is DENIED, that
Defendant’s Motion for Judgment on the Pleadings [Doc. #13] is GRANTED, and that this
action is DISMISSED with prejudice.
This, the 8 day of March, 2024.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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