The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN S., )
)
Plaintiff, )
)
v. ) 1:23CV216
)
MARTIN J. OMMALLEY;! )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff John S. (“Plaintiff”) brought this action pursuant to Section 205(g) of the
Social Security Act (the “Act’), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a
final decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed cross-motions
for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB on May 5, 2020, alleging a disability
onset date of September 21, 2019. (Tr. at 10, 171-77.)? Plaintiffs application was denied
initially (Tr. at 53-71, 84-88) and upon reconsideration (It. at 72-83, 90-93). Thereafter,
*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. #5].
Plaintiff requested an administrative hearing de novo before an Administrative Law Judge
(“ALJ”). (Tr. at 99-100.) On August 22, 2022, Plaintiff, along with his attorney, attended the
subsequent telephonic hearing, at which Plaintiff and an impartial vocational expert testified.
(Tr. at 10, 31-52.) Following the hearing, the ALJ concluded that Plaintiff was not disabled
within the meaning of the Act (Tr. at 20-21), and on January 9, 2023, the Appeals Counsel
denied Plaintiffs request for review of that decision, thereby making the ALJ’s conclusion the
Commissioner’s final decision for purposes of judicial review (Tr. at 1-6).
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 vy. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted).
“Substantial evidence means ‘such relevant evidence as a teasonable mind might accept
as adequate to support a conclusion.”’ Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(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 citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastto, 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
AL)’s finding that [the claimant] 1s 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).
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
3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDP, established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Secutity Income
Program (SSI), established by Title XVI of the Act as amended, 42 US.C. § 1381 et seq., 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 (SSDD; 20 C.F.R. pt. 416 (SSD, governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
“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
requitements of a listed impairment; (4) could return to her past relevant work; and (5) 1f 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 ts
working, benefits are denied. The second step determines 1f the clatmant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sulltvan, 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 clears 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 AL] must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the AL] to assess whether, based on
+ “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 clatmant’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 impaitments).” Hall, 658 F.2d at 265. “REC is to be determined by the AL] only after
[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g, pain).”
Hines, 453 F.3d at 562-63.
that REC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, 1f 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 significant 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 ALJ must decide
“whether the claimant is able to perform other work considering both [the clatmant’s RFC]
and [the clatmant’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.
II. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since his alleged onset date of September 21, 2019. (Tr. at 12.) The ALJ therefore
concluded that Plaintiff met his burden at step one of the sequential evaluation process. (Tr.
at 12.) At step two, the ALJ further determined that Plaintiff suffered from the following
severe impairments:
degenerative disc disease; chronic lower back pain; migraine headaches; carpal
tunnel syndrome; obesity; and left common iliac artery aneurysm[.]
(Tr. at 12.) The ALJ found at step three that none of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 14-15.) Therefore, the AL] assessed
Plaintiffs RFC and determined that, during the time period at issue, he could perform a range
of light work with the following, non-exertional limitations:
[Plaintiff] has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except frequent climbing of ramps and stairs, but
occasional climbing of step ladders up to ¥ in vertical height but none that are
higher, and no climbing or ropes or scaffolds. He can frequently knee[l] and
crouch. He can occasionally crawl and stoop. [Plaintiff] can frequently but not
constantly handle and finger with the bilateral upper extremities due to a history
of carpal tunnel syndrome. Avoid concentrated exposure to extreme heat and
workplace hazards as defined in the Selected Characteristics of Occupations.
Avoid concentrated exposute [to] noise levels greater than moderate as defined
in the SCO, due to history of migraine headaches.
(Tr. at 15.) At step four of the analysis, the AL] found, based on the above RFC and the
vocational expert’s testimony, that Plaintiff was unable to perform his past relevant work. (Trt.
at 19.) However, the ALJ determined at step five that, given Plaintiffs age, education, work
experience, RFC, and the testimony of the vocational expert as to these factors, he could
perform other jobs available in significant numbers in the national economy. (Tr. at 19-20.)
Therefore, the AL] concluded that Plaintiff was not disabled under the Act. (Tr. at 20-21.)
Plaintiff now challenges the AL]’s RFC assessment in two respects. First, he contends
that “the AL] erred by failing to evaluate the medical opinions of Nurse Practitioner (“NP”)
Irene Strickland.” (PL’s Br. [Doc. #10] at 1.) Second, Plaintiff argues that the ALJ “erred by
failing to perform a function-by-function evaluation of Plaintiffs contested and relevant
abilities to stand, walk, and sit when assessing the [RFC].” (Pls Br. at 1.)
A. Opinion evidence
Plaintiff first argues that the ALJ failed to address the medical opinions of NP
Strickland in the administrative decision. As recounted in Plaintiff's Brief, Strickland examined
Plaintiff on March 7, 2018 and July 13, 2018 as part of Plaintiffs compensation and pension
process for the Department of Veterans Affairs (“VA”). (PL’s Br. at 4-6.) Based on her
examinations, Strickland opined that Plaintiff required rest breaks when experiencing severe
headaches. (Pl.’s Br. at 4) (citing Tr. at 652). She also opined that Plaintiffs lumbar spine
condition precluded “heavy lifting, twisting, bending, climbing, prolonged sitting without rest
breaks, working overhead, operation of heavy manual equipment, pushing, pulling, or
eripping.” (Pl.’s Br. at 5) (citing Tr. at 674).
As Plaintiff further notes, “[o]n April 15, 2020, the VA issued a decision increasing
[Plaintiffs] previously assigned ratings for disability.” (Pl.’s Br. at 6) (citing Tr. at 165). The
VA found Plaintiff entitled to “individual unemployability” based on his “service-connected
insomnia disorder, alcohol use disorder, depresstve disorder (previously rated as insomnia)
and degenerative arthritis of the spine with spinal stenosis and intervertebral disc syndrome.”
(Tr. at 166-167.) The decision specifically noted that Plaintiffs back impairment rendered him
“unable to sit for periods longer than 5-10 minutes.” (Tr. at 167.)
The AL] in the present case did not discuss Plaintiffs VA rating or mention the
opinions of NP Strickland. Plaintiff acknowledges that, under the current regulations, ALJs
ate no longer requited to evaluate disability decisions from other agencies. See Rogers v.
Kijakazi, 62 F.4th 872, 878-79 (4th Cir. 2023). However, Plaintiff stresses that, under 20 C.F.R.
§ 404.1504, ALJs are still required to “consider all of the supporting evidence underlying the
other governmental agency or nongovernmental entity’s decision that [they] receive as
evidence [for a] claim in accordance with § 404.1513(a)(1) through (4).” (PL’s Br. at 7.)
Plaintiff further argues that, “beyond its constituting evidence underlying the VA disability
determination, NP Strickland’s medical opinions must be evaluated tn their own right.” (PL’s
Br. at 7) (citing 20 C.F.R. § 404.1520c(b)) (“We will articulate in our determination or decision
how persuasive we find all of the medical opinions and all of the prior administrative medical
findings in your case record.”’).
The Court agrees that the ALJ’s failure to consider NP Strickland’s medical opinions
requites remand. With respect to the evaluation of opinion evidence, 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 or 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
suppotting explanations presented by a medical source ate to support his
ot het 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) or 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. . . (ii) Frequency of examinations. ... (11) 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 area 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 claim or an
understanding of our disability program’s policies and evidentiary
requirements. . . .
20 C.F.R. § 404.1520c(a) and (c). The regulations also require decision-makers to “articulate
in... [their] decisions how persuasive [they] find all of the medical opinions . . . tn [a clatmant’s]
case tecotd.” 20 C.F.R. § 404.1520c(b). Although all of the factors listed in paragraphs (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
petsuasiveness of an opinion ate the first two: supportability and consistency. 20 C.F-.R.
§ 404.1520c(a), 404.1520c(c)(1)-(c)(2). Therefore, paragraph (b) further provides that AL]s
“will explain how [they] considered the supportability and consistency factors for a medical
soutce’s medical opinions .. . in [the] determination of decision.” 20 C.F.R. § 404.1520c(b)(2).
Exptess discussion of the remaining factors is not required. See 20 C.F.R. § 404.1520c(b)(2);
see_also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01
(Jan. 18, 2017) (explaining that the final rules in § 404.1520c “require our [AL]s] to consider
all of the factors” in § 404.1520c(c) “for all medical opinions and, at a minimum, to articulate
how they considered the supportability and consistency factors’ in determining
petsuasiveness). In other words, §§ 404.1520c(b)—(c) define the “minimum level of
atticulation” an ALJ must include in her written decision “to provide sufficient rationale for a
reviewing... coutt.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
F.R. 5844-01; see also Keene v. Berryhill, 732 F. App’x 174, 177 (4th Cir. 2018).
Accordingly, the question in the present case is whether the ALJ adequately addressed
whether the medical opinion at issue was supported by the source’s own tecords and
consistent with the other evidence in the record. See 20 C.F.R. § 404.1520c(b)(2);
404.1520c(c)(1)-(2). “T]he relevant regulations do not require ‘particular language’ or
adherence to any ‘particular format’ in a decision, so long as the AL] reasonably articulates her
decision so that a reviewing court can ‘trace the path of the adjudicator’s reasoning.” Boyd
v. Kijakazi, No. 2:21CV29, 2022 WL 949904, at *2 (E.D. Va. Mar. 29, 2022) (internal citations
omitted). Nevertheless, “whatever format the AL] does choose must allow a reviewing court
to discern an ‘accurate and logical bridge’ from the record evidence to the ALJ’s conclusion.”
Id. at *3 (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (internal citation
omitted)). In particular, the ALJ must connect her discussion of the record evidence with her
findings as to whether a specific source’s opinions were consistent with and supported by that
evidence. If this connection is not set out in a manner which allows the Court to “‘trace the
path’ of the AL]’s reasoning,” Boyd, 2022 WL 949904, at *3, the Court may not “fill in the
blanks” in the AL]’s analysis, Allison E. B. v. Kijakazi, No. 2:21-CV-29, 2022 WL 955013, at
*8 (ED. Va. Jan. 31, 2022).
In the present case, the AL] did not address NP Strickland’s opinions at all, and the
examination records in question clearly contain evidence contradicting the ALJ’s findings and
included nowhere else in her analysis. For example, on March 7, 2018, NP Strickland found,
upon exam, that Plaintiff displayed reduced sensation in his left knee, reduced reflexes tn both
lower extremities, and a mildly stiff gait due to his lumbar spine condition. (Tr. at 670-71.)
Strickland opined that, as a result of his condition, Plaintiff could only perform work which
precluded heavy lifting, twisting, bending, climbing, prolonged sitting without rest breaks,
working overhead, operating heavy equipment, pushing, pulling, or gripping. (Tr. at 674.) NP
Strickland also opined that with respect to Plaintiffs headaches, Plaintiff could “function in
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occupational capacity that allows him to take rest breaks during severe headaches.” (T'r. at
652.) Ona subsequent examination of Plaintiffs lumbar condition on July 13, 2018, Strickland
found that Plaintiffs sensory issues had worsened. In particular, she found that Plaintiff had
decreased sensation in his left arm, hand, and fingers, bilateral anterior thighs, bilateral ankles,
right lower leg, and left foot and toes. (Tr. at 608-09.) Strickland further noted trophic changes
in the skin of Plaintiffs legs and found that his gait was abnormal and stiff as a result of his
back and neck pain. (Tr. at 609.) Plaintiff also exhibited pain with weightbearing and a limited
range of motion due to pain and muscle spasming in his thoracolumnar spine. (Tr. at 620-21.)
Accordingly, NP Strickland opined that Plaintiff could “perform physical labor that precludes
heavy lifting, climbing, bending, twisting, or walking and standing for prolonged periods of
time.” (Tr. at 627-28.) Strickland also found that Plaintiff required the occasional use of a
walking stick for support. (Tr. at 624-25.)
The VA ultimately issued a decision on April 15, 2020 increasing Plaintiffs previously
assigned disability ratings and specifically noting that, “due to... degenerative arthritis of the
spine with spinal stenosis and intervertebral disc syndrome|, Plaintiff is] unable to sit for
petiods longer than 5-10 minutes.” (Tr. at 167.) Although the ALJ was not requited to
evaluate the VA decision itself under the current regulations, the underlying medical evidence,
including NP Strickland’s treatment records and medical opinion evidence, remains relevant
under 20 C.F.R. § 404.1504 and must be considered. See also 20 C.F.R. § 404.1513(a)(1)-(4).
In his Brief, Defendant argues that the ALJ adequately considered the medical opinion
evidence because she cited to Exhibit 6F. However, Exhibit 6F is over 400 pages covering
the time period from October 3, 2016 to June 2, 2020, so a general cite to Exhibit 6F, without
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any mention of the opinion evidence included there, is not sufficient to explain the treatment
of that evidence or allow the Court to follow the AL]’s reasoning. > Because the AL] failed to
consider this evidence or explain her reasoning, and because the Court cannot find here that
the failure to consider the evidence is harmless, remand is required so that the AL] may
consider this evidence in the first instance.®
IT IS THEREFORE ORDERED that the Commissioner’s decision finding of no
disability is REVERSED, and that the matter is REMANDED to the Commissioner under
sentence four of 42 U.S.C. § 405(g). To this extent, it is further ORDERED that First
5 The Court notes that Strickland performed her examinations of Plaintiff in March and July of 2018, prior to
his alleged onset date, during a brief period in which Plaintiff continued working in a job that he described as
involving no lifting or carrying, no standing, and only 1 hour of walking per day (Ir. at 226.) Notably, neither
the AL] nor the Defendant raised the timing of Strickland’s opinions as a basis for discounting them. The AL]
simply omitted any discussion of this opinion evidence without explanation. Because the ALJ did not offer
any explanation or analysis, there is no way to determine if that was the basis for the AL]’s determination, or if
the ALJ even noticed or considered NP Strickland’s opinions. Attempting to consider any post-hoc rationale
would be improper, as it is the agency’s function to analyze and weight the evidence in the first instance.
Moreover, as explained in another case from this District, “remoteness as a basis for excusing an AL]’s failure
to mention medical evidence must be considered carefully.” Pierce v. Berryhill, No. 1:17CV579, 2018 WL
3549842, at *1 n.1 (M.D.N.C. June 12, 2018); Pilcher v. Colvin, No. 5:14-cv-191—RJC, 2016 WL 1048071, at
*4 (W.D.N.C. Mar. 16, 2016) (‘It does not appear the Fourth Circuit has directly addressed an AL]’s
consideration of medical evidence in the record which predates the claimant’s alleged onset of disability. SSA
regulations, however, state that all evidence in the case record will be considered. See 20 C.F.R. §§
404.1520(a)(3), 416.920(a) (3). Further, although it is not binding on this Court, other circuits have developed
precedent that ALJs are required to examine the entire record including medical evidence prior to the alleged
onset date.”). Finally, as noted by this District in Pierce, 2018 WL 3549842, at *1 n.1, a failure to discuss certain
evidence may constitute harmless error where “nothing about the tendered .. . records suggest[ed] Plaintiff was
harmed by the fatlure of the ALJ to consider the records.” However, NP Strickland’s examinations and
opinions directly addressed the impairments at issue and provided limitations supporting Plaintiffs allegations,
and failure to consider the opinions or explain the reason for rejecting those limitations cannot be considered
harmless.
°Tn light of this finding, the Court notes that Plaintiffs second, related challenge to the RFC also metits remand.
As set out above, Plaintiff contends that the AL] erred by failing to perform a function-by-function evaluation
of evidence relating to Plaintiffs abilities to stand, walk, and sit. NP Strickland’s medical opinions address all
of these abilities. Therefore, the AL]’s omission of Strickland’s evidence without explanation and without
performing an analysis of that evidence in the context of Plaintiffs ability to sit, stand, and walk requires
remand. On remand, the ALJ can consider all of Plaintiff's contentions, including with respect to the need for
a further function by function analysis.
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Defendant’s Dispositive Brief [Doc. #13] is DENIED, and Plaintiffs Dispositive Brief [Doc.
10] is GRANTED to the extent set forth herein.
This, the 30% day of September, 2024.
j L st Peake
nited States Magistrate Judge
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