Ford v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL ACTION NO. 5:20-CV-00061-KDB

KAREN FORD,

Plaintiff,

v. ORDER

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,1

Defendant.

THIS MATTER is before the Court on Plaintiff Karen Marie Ford’s Motion for Summary

Judgment (Doc. No. 16) and Defendant’s Motion for Summary Judgment (Doc. No. 20), as well

as the parties’ accompanying briefs. Plaintiff, through counsel, seeks judicial review of an

unfavorable administrative decision denying her application for period of disability and disability

insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–33.

Having carefully reviewed and considered the written arguments, administrative record,

and applicable authority, the Court finds that the matter should be remanded to allow the ALJ to

reconsider and further explain her decision to give little weight to claimant’s treating physician’s

medical opinion. Accordingly, the Court will GRANT Plaintiff’s Motion for Summary

Judgement; DENY Defendant’s Motion for Summary Judgement; REVERSE the

Commissioner’s decision; and REMAND the matter for further proceedings consistent with this

order.

1 Kilolo Kijakazi became 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 Saul as the Defendant in this suit.

I. BACKGROUND

Ms. Ford filed her application for Title II period of disability and disability insurance

benefits on December 12, 2016, alleging disability beginning October 20, 2016. Tr. at 20.2

Plaintiff’s application was initially denied on March 28, 2017, and upon reconsideration on June

13, 2017. Id. Ms. Ford timely requested a hearing before the ALJ, and a hearing was conducted

with Administrative Law Judge Susan Poulos (“ALJ”) presiding on January 9, 2019 in Charlotte,

NC. Id. at 37-52. Judge Poulos returned an unfavorable decision on March 27, 2019. Id. at 17–

35. Ms. Ford requested review of the ALJ’s decision with the Appeals Council (“AC”). The AC

denied review. Id. at 1-6. The ALJ’s decision now stands as the final decision of the Commissioner,

and Ms. Ford has timely requested judicial review pursuant to 42 U.S.C. § 405(g).

II. THE COMMISSIONER’S DECISION

The ALJ followed the required five-step sequential evaluation process established by the

Social Security Administration to determine if Ms. Ford was disabled under the law during the

relevant period.3 “Disability” means “the inability to do 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.” 20 C.F.R. § 404.1505(a). At step one, the ALJ found that Ms. Ford had not engaged in

2 Citations to the administrative record filed by the Commissioner are designated as “Tr.”

3 The required five-step sequential evaluation required the ALJ to determine: (1) whether

the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a

severe impairment; (3) if so, whether the impairment (or combination of impairments) met or

equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments)

prevented the claimant from performing past relevant work; and (5) if so, whether the impairment

(or combination of impairments) prevented the claimant from performing any other jobs available

in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) and 404.1520(a)-(g).

The claimant has the burden of production and proof in the first four steps, but the Commissioner

must prove the claimant is able to perform other work in the national economy despite his

limitations. Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015).

substantial gainful activity since her alleged onset date of October 20, 2016. Tr. at 22. At step two,

the ALJ found that Ms. Ford had the following medically determinable and severe impairments:

degenerative disc disease of the cervical spine and status post anterior cervical discectomy and

fusion (“ACDF”). Tr. at 22–23. However, the ALJ found at step three that Plaintiff’s impairments

did not meet or equal one of the conditions in the Listing of Impairments at 20 C.F.R. §§

404.1520(d), 404.1525, and 404.1526. Id. at 23.

The ALJ found that Ms. Ford has the residual functional capacity (“RFC”) to perform

medium work as defined in 20 C.F.R. § 404.1567(c), “except she perform [sic] frequent not

constant overhead reaching with her bilaterally upper extremities.” Tr. at 24. Based on this RFC

and the testimony of the Vocational Expert (“VE”), the ALJ found at step four that the Plaintiff

was able to perform her past relevant work as a retail sales manager trainee, retail store manager,

and a home attendant. Id. at 27. Alternatively, the ALJ found that there are other jobs that exist in

significant numbers in the national economy that the claimant could also perform. Id. at 28. Thus,

the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act from

October 20, 2016 through the date of her decision. Id. at 29.

III. LEGAL STANDARD

District courts review the ALJ’s Social Security disability determination pursuant to the

standard set out in 42 U.S.C. § 405(g). The decision of the ALJ must be upheld if the ALJ “applied

the correct legal standards” and if the “factual findings are supported by substantial evidence.”

Bird v. Comm’r of Soc. Sec., 699 F.3d 337, 340 (4th Cir. 2012). “Substantial evidence is that which

a reasonable mind might accept as adequate to support a conclusion.” Pearson v. Colvin, 810 F.3d

204, 207 (4th Cir. 2015) (internal quotation marks omitted). Though the “threshold for such

evidentiary sufficiency is not high,” it requires that “more than a mere scintilla” of evidence

support the ALJ’s findings. Shinaberry v. Saul, 952 F.3d 113, 120 (4th Cir. 2020). In undertaking

this review, it is not the district court’s place to “re-weigh conflicting evidence, make credibility

determinations, or substitute our judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996). However, “we do not reflexively rubber-stamp an ALJ’s findings.” Lewis v.

Berryhill, 858 F.3d 858, 870 (4th Cir. 2017).

IV. DISCUSSION

On appeal to this Court, Plaintiff alleges that the ALJ failed to engage in the regulatory

analysis required under 20 C.F.R. § 404.1527(c) in determining the weight given to a treating

physician’s opinion. Doc. No. 17 at 4. Additionally, Plaintiff alleges that the ALJ’s RFC

assessment failed to impose mental limitations supported by the ALJ’s findings, including the

addictive nature of Ms. Ford’s smoking and diagnosis of fibromyalgia. Id. at 4–5. Accordingly,

Plaintiff believes that the ALJ’s RFC determination is not supported by substantial evidence and

asks that this case be remanded for further administrative proceedings, including a de novo hearing

and decision.

A.

When determining a claimant’s disability status, the ALJ is required to consider the

medical opinions of the claimant’s treating physicians. See 20 C.F.R. § 404.1527(b) (“[W]e will

always consider the medical opinions in [a claimant’s] case record.”). Section 404.1527(c)

establishes the “treating physician rule,” whereby the medical opinion of a treating physician is

entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]

case record.” See, e.g., Arakas v. Comm’r of Soc. Sec., 983 F.3d 83, 106–07 (4th Cir. 2020)

(applying the treating physician rule); Brown v. Comm’r of Soc. Sec., 873 F.3d 251, 255–56 (4th

Cir. 2017) (same). “By negative implication, if a physician’s opinion is not supported by clinical

evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly

less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). In such cases, the ALJ must then

consider each of the factors laid out by 20 C.F.R. § 404.1527(c)(2) in determining the proper

weight of the opinion.4 Dowling v. Comm’r of Soc. Sec., 986 F.3d 377, 385 (4th Cir. 2021). While

the ALJ is not required to set forth a detailed factor-by-factor analysis, it must be clear from the

decision that the ALJ meaningfully considered each of the factors before determining how much

weight to give the opinion. Id.

In discussing Dr. Scoggins’ opinion and why she gave the opinion little weight, the ALJ

stated:

The totality of the evidence does not support his opinion that the claimant

could only stand, sit, and walk no more than two hours in an eight-hour workday.

He also concluded that she could never lift ten pounds; that she could never perform

posturals to including twisting, stooping, crouching, and climbing; and that she

would likely be absent from work more than four days a month because of her

impairment (Exhibit 10F). Indeed, based on the other evidence of record, Dr.

Scroggins’ [sic] opinion was an overestimate of the severity of the claimant’s

restrictions and limitations.

Tr. at 27. Here, substantial evidence supports the ALJ’s decision not to give controlling weight to

Dr. Scoggins’ medical opinion. While there is no indication that Dr. Scoggins’ opinion was

unsupported by medically acceptable clinical and laboratory diagnostic techniques, a reasonable

mind could conclude that the opinion conflicts with other evidence in the record. For instance,

4 In evaluating a medical opinion, the ALJ is instructed to consider (1) the length of the

treatment relationship and the frequency of examination; (2) the nature and extent of the treatment

relationship; (3) supportability, i.e., the extent to which the treating physician presents relevant

evidence to support the medical opinion; (4) consistency, i.e., the extent to which the opinion is

consistent with the evidence in the record; (5) the extent to which the treating physician is a

specialist opining as to issues related to his or her area of specialty; and (6) any other factors raised

by the parties which tend to support or contradict the medical opinion. 20 C.F.R. §

404.1527(c)(2)(i)–(6).

Plaintiff’s medical records indicate a diagnosis of bilateral herniated nucleus pulposus (“HNP”) of

the C5-6 vertebrae resultant from being struck by a motorized scooter in October 2016. Id. at 24–

25. Plaintiff was treated by orthopedist Dr. Mark Moody, who recommended a spinal fusion and

performed the surgery on December 2, 2016. Id. at 25. Following surgery, Plaintiff continued to

complain of increased neck pain with radiation into the left shoulder and biceps. Id. Diagnostic

examinations in May 2017 and July 2017 revealed “incomplete occeous fusion across the

intervening C5-6 disc space” indicative of pseudoarthrosis. Id. A second surgery was performed

on October 11, 2017. Id. The record indicates that following the second surgery, Plaintiff’s

pseudoarthrosis was corrected, pain was diminished, strength was improved, and she was

subsequently discharged from Dr. Moody’s care. Id. at 26. Since Dr. Scoggins’ opinion, dated

May 3, 2017, was given prior to the second corrective surgery and subsequent recovery, it is

reasonable for the ALJ to afford the opinion less than controlling weight.

B.

Having determined that the treating physician rule was inapplicable, the ALJ is then

required to consider the factors laid out in 20 C.F.R. § 404.1527(c) to determine the appropriate

weight of Dr Scoggins’ opinion. Plaintiff cites the Fourth Circuit’s recent decision in Dowling v.

Commissioner of Social Security Administration, 986 F.3d 377 (4th Cir. 2021) as evidence that the

ALJ here failed to correctly assess the aforementioned factors. In Dowling, the court found that

the ALJ’s explanation, citing to the factors of “consistency” and “supportability” without

explanation as to how the opinion was inconsistent or unsupported, was insufficient to satisfy the

requirements of Section 404.1527(c). See Dowling, 986 F.3d at 385. The ALJ’s decision here

suffers from similar defects. While the ALJ found that Dr. Scoggins’ opinion is unsupported by

diagnostic testing and inconsistent with the longitudinal record, she fails to explain how the opinion

is unsupported and inconsistent. Moreover, the ALJ makes no reference to any of the remaining

four Section 404.1527(c) factors. Tr. at 27; see Dowling, 986 F.3d at 385 (“In failing to

acknowledge and apply each of these six factors, the ALJ erred.”). “It is an elemental principle of

administrative law that agency determinations must be made in accordance with certain procedure

which facilitates judicial review.” Dowling, 986 F.3d at 386 (quoting Patterson v. Comm of Soc.

Sec., 846 F.3d 656, 662 (4th Cir. 2017)) Gnternal quotations omitted). Here, the ALJ failed to

fully engage in the appropriate analysis as required by Section 404.1527(c). As such, this error

necessitates a remand in this case to allow the ALJ to consider Dr. Scoggins’ medical opinion in

accordance with Section 404.1527(c) and Dowling.

V. ORDER

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgement (Doc. No.

16) is GRANTED; Defendant’s Motion for Summary Judgement (Doc. No. 20) is DENIED; and

the Commissioner’s decision is REVERSED. This matter is REMANDED for a new hearing

pursuant to Sentence Four of 42 U.S.C. § 405(g).°

SO ORDERED ADJUDGED AND DECREED.

Signed: August 24, 2021

Kenneth D. Bell ey,

United States District Judge il of

> Having determined that the case must be remanded for a new hearing, the Court need not

and does not reach Plaintiff's second argument challenging the ALJ’s RFC determination. At the

new hearing, the ALJ can appropriately consider, inter alia, Plaintiff's arguments with respect to

her fibromyalgia and mental limitations.

© Sentence Four authorizes “a judgement affirming, modifying, or reversing the decision

... with or without remanding the cause for a rehearing.” Sullivan v. Finkelstein, 496 U.S. 617,

625 (1990).