ROUSE v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

REBECCA B. R., )

)

Plaintiff, )

)

V. ) 1:23CV238

)

MARTIN J. OMALLEY,! )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Rebecca B. R. (“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 her 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 March 22, 2021, alleging a

disability onset date of December 15, 2018. (Tr. at 10, 209-10.)? Plaintiffs application was

* 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].

denied initially (Tr. at 90-101, 121-25) and upon reconsideration (Tr. at 102-14, 127-31).

Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative

Law Judge (“ALJ”). (Tr. at 132.) On June 1, 2022, Plaintiff, along with her attorney, attended

the subsequent telephonic hearing, at which Plaintiff and an impartial vocational expert

testified. (Ir. at 10.) At that time, Plaintiff, through her attorney, amended her alleged onset

date to April 12, 2021, the date she turned 50 years old. (T'r. at 10, 47.) Following the hearing,

the ALJ concluded that Plaintiff was not disabled within the meaning of the Act (T'r. at 28),

and on January 13, 2023, the Appeals Counsel denied Plaintiffs request for review of that

decision, thereby making the AL]’s conclusion the Commissionet’s final decision for purposes

of judicial review (Tr. at 1-6).

Il. LEGAL STANDARD

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). “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

AL) if they are supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrtue, 667 F.3d 470, 472 (4th Cir. 2012) (Gnternal

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)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

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 teviewing 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].” 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 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] is not disabled is supported by substantial evidence and was

reached based upon a corrtect 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 Secutity Disability Insurance

Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled petsons who have contributed to the program while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., ptovides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

“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 inquity. 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 clatmant

is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “[iJf a claimant’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 ALJ to assess whether, based on

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

4 “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-

telated 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 AL] only after

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 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 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 carty 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, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since her amended alleged onset date, April 12, 2021. The ALJ therefore concluded

that Plaintiff met her burden at step one of the sequential evaluation process. (Tr. at 13.) At

step two, the AL] further determined that Plaintiff suffered from the following severe

impairments:

Degenerative Disc Disease; Obesity; Hypertension; COPD; Bilateral Knee

Osteoarthritis; Low Vision|.]

(Tr. at 13.) The AL] found at step three that none of these impaitments, individually or in

combination, met or equaled a disability listing. (Tr. at 18.) Therefore, the ALJ assessed

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (eg, pain).”

Hines, 453 F.3d at 562-63.

Plaintiffs RFC and determined that she could perform light work with the following,

additional limitations:

[Plaintiff] can frequently climb ramps or stairs, and perform frequent balancing

and stooping; [she] can occasionally climb ladders, ropes or scaffolds, and

occasionally kneel, crouch or crawl; [Plaintiffs] best corrected vision is 20/20

and 20/30; [she] must avoid concentrated exposure to vibration, fumes, odors,

dust, gases, poor ventilation, etc., as well as hazards such as machinery and

heights.

(Tr. at 18.) At step four of the analysis, the ALJ determined, based on the above RFC and the

vocational expert’s testimony, that Plaintiff was unable to perform any of her past relevant

work. (Tr. at 26-27.) However, the AL] found at step five that, given Plaintiff's 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 27-28.)

Plaintiff now raises two, overlapping challenges to the AL]’s RFC assessment.

Specifically, she contends that the AL) failed to properly account for the impacts of (1) her

obesity and (2) the pain caused by her knee and back impairments on her ability to stand and

walk up to six hours per day as required to perform light work. (Pl.’s Br. [Doc. #8] at 1.)

With respect to these contentions, Plaintiff argues that the AL] failed to perform a

function-by-function assessment of relevant and contested limitations as requited by Soctal

Security Ruling 96-8p (“SSR 96-8p”) and Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).

As SSR 96-8p instructs, “[t]he RFC assessment must first identify the individual’s functional

limitations or restrictions and assess his or her work-related abilities on a function-by-function

basis,” including the functions listed in the regulations. Social Security Ruling 96-8p: Policy

Interpretation Ruling Titles IJ and XVI: Assessing Residual Functional Capacity in Initial

Claims, 1996 WL 374184, at *1 (July 2, 1996). “Only after such a function-by-function analysis

may an AL] express RFC in terms of the exertional levels of work.” Monroe v. Colvin, 826

F.3d 176, 179 (4th Cir. 2016) (internal quotations and citations omitted). Further, the “RFC

assessment must include a narrative discussion describing how the evidence supports each

conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence

(e.g., daily activities, obsetvations).” SSR 96-8p, 1996 WL 374184, at *7. An AL] must “both

identify evidence that supports his conclusion and build an accurate and logical bridge from

[that] evidence to his conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)

(internal emphasis, quotation marks, and brackets omitted).

The Fourth Circuit has noted that a per se rule requiring remand when the ALJ does not

perform an explicit function-by-function analysis “is inappropriate given that remand would

prove futile in cases where the ALJ does not discuss functions that are ‘irrelevant or

uncontested.” Mascio, 780 F.3d at 636 (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d

Cir. 2013) (per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a

claimant’s capacity to perform relevant functions, despite contradictory evidence in the record,

ot whete other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting

Cichocki, 729 F.3d at 177). Meaningful review is frustrated, and remand is necessary, if the

court is “unable to fathom the [ ] rationale in relation to evidence in the record.” Cichocki,

729 F.3d at 177. The court in Mascio concluded that remand was appropriate because it was

“left to guess about how the ALJ arrived at his conclusions on [the clatmant’s] ability to

petform relevant functions” because the ALJ had “said nothing about [the claimant’s] ability

to perform them for a full workday,” despite conflicting evidence as to the claimant’s RFC

that the ALJ did not address. Mascio, 780 F.3d at 637.

In raising these contentions, Plaintiff also challenges the AL]’s evaluation of Plaintiffs

symptom allegations. Under the applicable regulations, the AL]’s decision must “contain

specific reasons for the weight given to the individual’s symptoms, be consistent with and

supported by the evidence, and be clearly articulated so the individual and any subsequent

reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Social Security

Ruling 16-3p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, 2017 WL

5180304, at *10 (Oct. 25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. Moreover, in

Arakas v. Commissioner of Social Security, 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit

clarified the procedure an ALJ must follow when assessing a claimant’s statements:

When evaluating a claimant’s symptoms, ALJs must use the two-step

framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029

(Mar. 16, 2016). First, the ALJ must determine whether objective medical

evidence presents a “medically determinable impairment” that could reasonably

be expected to produce the claimant’s alleged symptoms. 20 C.F.R.

§ 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.

Second, after finding a medically determinable impairment, the ALJ must assess

the intensity and persistence of the alleged symptoms to determine how they

affect the claimant’s ability to work and whether the claimant is disabled. See 20

C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,

objective evidence is wot required to find the claimant disabled. SSR 16-3p, 2016

WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always

be measured objectively through clinical or laboratory diagnostic

techniques.” Id. at *4. Thus, the ALJ must consider the entire case record and

may “not disregard an indtvidual’s statements about the intensity, persistence,

and limiting effects of symptoms solely because the objective medical evidence

does not substantiate” them. Id. at *5.

Arakas, 983 F.3d at 95. ‘Thus, the second part of the test requires the ALJ to consider all

available evidence, including Plaintiffs statements about his pain or other symptoms, tn order

to evaluate “the intensity and persistence of the claimant’s pain, and the extent to which it

affects [his] ability to work.” Craig, 76 F.3d at 595. This approach facilitates the ALJ’s ultimate

goal, which is to accurately determine the extent to which Plaintiffs pain or other symptoms

limit his ability to perform basic work activities. Relevant evidence for this inquiry includes

Plaintiffs “medical history, medical signs, and laboratory findings,” id., as well as the following

factors set out in 20 C.F.R. § 416.929(c)(3) and 20 C.F.R. § 404.1529(c) (3):

(1) [Plaintiffs] daily activities;

(it) The location, duration, frequency, and intensity of [plaintiffs] pain or

other symptoms;

(1) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication

[Plaintiff] take[s] or [has] taken to alleviate [his] pain or other symptoms;

(v) ‘Treatment, other than medication, [Plaintiff] receive[s] or [has] received

for relief of [his] pain or other symptoms;

(vi) | Any measures [Plaintiff] use[s] or [has] used to relieve [his] pain or other

symptoms (e.g., lying flat on [his] back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vit) Other factors concerning [Plaintiffs] functional limitations and

restrictions due to pain or other symptoms.

In the present case, Plaintiff suffered fractures to her ribs and sternum as the result of

a motor vehicle accident in November 2019, prior to her April 2021 alleged onset date. (T'r.

at 13.) Although the AL] ultimately found any residuals from these injuries non-severe for

purposes of DIB purposes, Plaintiff testified that “she had difficulty getting up and moving

around after sustaining these injuries,” leading to a fifty-pound weight gain. (T'r. at 13, 48-49.)

At Plaintiffs height, variously listed as 5’2” or 5°3”, this recent weight gain significantly altered

her BMI and the impact of her weight on her other impairments, particularly her ability to

stand and walk. Plaintiff further testified, in pertinent part,

that she is unable to work in part due to problems with her back, stating that

she experiences back pain that radiates to her left leg, and that her left leg goes

numb at times. [Plaintiff] testified that she also has problems with both knees,

and testified that she has been told she needs to have both knees replaced, but

is unable to because she needs to lose weight and cannot do so because she

cannot exercise. Additionally, as a result of these impairments, [Plaintiff]

testified that she has difficulty standing, walking[,] and climbing stairs, stating

that her left leg goes numb after just twenty minutes of standing, that she sought

and obtained a handicap placard for her car in 2021, and that she has to use the

motorized cart to get around the store when she goes grocery shopping.

[Plaintiff] also testified that she has fallen a couple of times in the past year or

so because her knees sometimes give out on her, and [she] testified that she

generally tries to elevate her legs when seated because her knees swell... .

Additionally, as a result of her impairments, [Plaintiff] testified that she has

difficulty performing household chores, stating, for example, that she has to sit

down while cooking or folding laundry, that she has to sit down for a while after

standing to wash dishes, and that she must rely on her children for help with

certain household chores. Due to her impairments, [Plaintiff] also testified that

she uses a shower chair when bathing, and testified that she generally wears slip-

on shoes and clothes without buttons.

(Tr. at 19-20.)

The ALJ acknowledged that Plaintiffs back and knee impairments, particularly when

coupled with her obesity, would cause significant limitations. (I'r. at 20-21.) She noted, for

example, that,

[p]tior to her alleged disability onset date, records show that [Plaintiff] at times

complained of back pain with left-sided sciatica, and show that images of her

lumbar spine and thoracic spine revealed multilevel degenerative changes. (See,

e.g., Exhibit B5F/9, 13-14, 25, 198-201). Similarly, records show that images of

[Plaintiffs] cervical spine taken in 2019 revealed signs of mild degenerative disc

disease and spondylosis in her neck. (Exhibit B5F/53, 222- 223). Additionally, in

September 2021, records show that [Plaintiff] met with orthopedic specialist

Kristen Clark, PA-C, and complained of pain in her knees, reporting that her pain

had been present for several years, and is exacerbated by activities that include

standing, walking, navigating stairs and weight-bearing. (Exhibit B8F/105-108).

Those records further show that x-rays of her knees ordered by Ms. Clark

revealed signs of osteoarthritis in her left and right knees. (Exhibit B8F/108-109).

Additionally, when she returned to Ms. Clark on January 13, 2022, records show

[Plaintiff] complained of ongoing bilateral knee pain, and reported experiencing

no improvement following the steroid injections administered by Ms. Clark

during her aforementioned visit in September 2021. (Exhibit B8F/39-40). As a

result, records show that [Plaintiff] was referred to orthopedic surgeon Calvin

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McCabe, M.D., who met with [Plaintiff] on January 28, 2022, and noted that she

complained of ongoing pain and swelling in her knees, describing her pain as

“debilitating.” (Exhibit BBF/14-15, 43). Additionally, records show that images

of her knees taken by Dr. McCabe that day again revealed signs of severe

osteoarthritis in both knees. (Exhibit B8F/18). In addition to the foregoing,

records show that [Plaintiff] is morbidly obese, with a Body Mass Index (BMI)

that exceeds 40. (See, e.g., Exhibit BOF/9). In accordance with SSR 19-2p, the

undersigned has considered that [Plaintiffs] obesity may exacerbate her other

impairments, resulting in greater symptoms and limitations than those

impairments might otherwise cause on their own. Additionally, when he

examined her earlier this year, records show that Dr. McCabe cited [Plaintiffs]

obesity as a reason for not recommending knee surgery, and discussed how it

may exacerbate her knee pain.

at 20-21.) In short, the records reveal that Plaintiff had severe osteoarthritis in her knees

for which conservative treatment, including steroid injections, failed. Her imaging showed

severe degenerative joint disease in both knees, with “bone-on-bone” in the medial

compartments. (T'r. at 774.) Total knee arthroplasty became her only available treatment at

this point. However, Plaintiffs obesity precluded surgery. Dr. McCabe’s treatment notes

convey that Plaintiff did not understand why a BMI of 45 would preclude her from undergoing

joint replacement “as she has had family members who are larger than her [have their] knees

replaced,” and she expressed a desire to meet with a joint replacement surgeon. (Tr. at 798-

99.) However, Dr. McCabe explained that, in patients with a BMI greater than 40, the “risk

of periprosthetic joint infection is dramatically elevated” and could result in limb loss. (Tr. at

775.)

In evaluating Plaintiffs knee impairment, the ALJ acknowledged that Plaintiff had

pteviously applied for disability benefits, but at that earlier time there was no medical evidence

regarding any knee impairment, and the ALJ in the prior case found that Plaintiff's knee pain

11

was not a severe impairment. (I'r. at 72-73.) The AL] in the present case acknowledged that

“sionificant changes have occurred in the interim’’, and specifically that:

during the relevant period since her current alleged disability onset date, records

show that the claimant has sought treatment for bilateral knee pain, show that

images of her knees have revealed significant degenerative changes, and show

that she has been observed to exhibit crepitus and decreased range of motion

in her knees.

(Tr. at 26). The ALJ therefore gave little weight to the prior findings. Similarly, the AL] found

unpetsuasive the 2018 opinion of the state agency consultant Dr. Flores in that prior

application, again noting that Plaintiff may be more limited because “during the relevant period

at issue, records show that [Plaintiff] was observed to exhibit crepitus and decreased range of

motion in her knees, and show that images of her knees revealed significant generative

changes. (Tr. at 25.)

Having discounted these prior findings, the ALJ instead relied on the opinions of the

State agency medical consultants in July 2021, both of whom posited that Plaintiff remained

capable of a limited range of light work. Here, again, however, timing becomes an issue. The

State agency consultant at the initial level, Dr. Nancy Simpkins, issued her opinion on July 1,

2021, while the consultant at the reconsideration level, Dr. Edward Woods, issued his opinion

just weeks later, on July 27, 2021. (I'r. at 98, 112.) Both physicians considered Plaintiffs

ability to work from her original alleged disability date of December 15, 2018 through the date

of their July 2021 opinions. (Tr. at 91, 103.) However, at her hearing, Plaintiff amended her

alleged onset date to April 12, 2021. (Tr. at 10.) Accordingly, the relevant time period in this

case spans from April 12, 2021 to July 26, 2022, the date of the AL]’s decision. (Tr. at 28.)

This shift is crucial given the nature and extent of Plaintiffs later medical records. Neither

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State agency consultant had the benefit of reviewing Plaintiffs more recent records relating to

her knee impairment, including imaging results demonstrating severe, bone-on-bone contact

in both knees, evidence of failed conservative treatment measures, an antalgic gait, significantly

vatus alignment, and diminished range of motion due to pain. (Tr. at 774.) Significantly,

Plaintiffs first medical records reflecting treatment for her knees was in September 2021 (Tr.

at 861-64), after the dates of Dr. Simpkins’ and Dr. Woods’ opinions. Moreover, no other

medical opinion evidence addressed Plaintiffs limitations after July 2021. Thus, no medical

professional has considered the combined impact of Plaintiffs morbid obesity and knee pain

on her ability to stand and walk for up to six hours per day or to otherwise meet the demands

of light work during the relevant period.°

In attempting to evaluate the evidence of Plaintiffs knee impairment without the

benefit of any medical opinion, the AL] raised three observations. First, the AL] noted that a

treatment note in June 2021, within the relevant period, reflected few complaints regarding

her neck and back pain and “normal range of motion in her neck.” (Tr. at 21, 23, 24.)

However, as noted above, Plaintiffs knee impairment was first reflected in the medical records

three months later, in September 2021, and it 1s not clear how the evaluation of her neck pain

in June 2021 would shed light on her knee impairment.

Second, the ALJ noted that Ms. Clark, Plaintiffs orthopedic PA, “repeatedly observed

Plaintiff] to appear in no acute distress, and repeatedly observed her to exhibit no instability

° This omission proves pivotal in the present case. As Plaintiff correctly notes, had the AL] had found her

limited to sedentary, rather than light, work, the regulations, ie., “the grids,” would have directed a finding of

disabled at step five of the sequential analysis. (PL’s Br. at 5) (citing 20 CF.R. Pt. 404, Subpt. P, App’x § 201.14)

(directing a finding of disabled for individuals 50 years old with a high school education, no past sedentary work

experience, and a lack of transferable skills from past relevant work).

13

in her knees to varus and valgus stress.” (Tr. at 21, 23.) The AL] acknowledged that Plaintiff

exhibited tenderness, patellar crepitus, an antalgic gait, and a diminished range of motion in

both knees. (I'r. at 21, 23.) Nevertheless, the ALJ emphasized that Dr. McCabe noted that

Plaintiff exhibited “intact power and sensation in her lower extremities.” (T'r. at 21, 23, 24.)

However, Plaintiff counters that she was not limited because she lacked the strength or ability

to stand and walk, but because severe, bone-on-bone degenerative joint disease in both knees

caused her extreme, limiting pain when doing so. (Pl.’s Br. at 9-10.) As noted by the Fourth

Circuit in Oakes v. Kijakazi, “[s]eparate and apart from his literal mobility, [a claimant] can

qualify for benefits if he is in sufficient pain. The ALJ failed to meaningfully address this theory

of qualification such that this Court may engage in judicial review.” 70 F.4th 207, 215-16 (4th

Cir. 2023).6

Third, the ALJ repeatedly noted Plaintiffs lack of further treatment following her

January 28, 2022 appointment. (Tr. at 21.) She notes that Plaintiff did not visit “any

nutritionists or other specialists for weight-loss assistance during the relevant period,” nor did

she follow up with Dr. McCabe or any other orthopedist. (Tr. at 21.) However, in relying on

Plaintiffs lack of follow-up care, the AL] ignores the fact that Plaintiffs administrative hearing

took place on June 1, 2022, just four months after her appointment with Dr. McCabe. (Tr. at

10.) Plaintiffs failure to receive follow-up care during this relatively short time period is of

limited significance. Nothing in the record indicates that Plaintiff had not scheduled,

ALJ also noted that although Dr. McCabe’s examination reflected an antalgic gait in connection with the

osteoarthritis in Plaintiff's knees, Plaintiff “was repeatedly observed to exhibit a normal gait” at earlier times

throughout the relevant period. (Tr. at 21, 23, 24.) Again, however, the lack of antalgic gait earlier does not

necessatily undermine Plaintiffs condition at the time of her treatment for her knee impaitment in Januaty

2022, when it had apparently worsened to the point of requiring surgery.

14

attempted to schedule, or intended to schedule subsequent appointments. Indeed, the records

from Dr. McCabe note that Plaintiff was interested in following up with CoreLife for help

with weight loss, as part of the discussion that knee replacement sutgety was too risky unless

she reduced her BMI. (I't. at 775.) Moreover, given that (1) weight loss is a long-term process

and (2) Plaintiff was precluded from surgical options until she dramatically reduced her BMI,

het options during the four months at issue were limited by their very nature.’

Ultimately, it is possible that Plaintiff is still capable of light work, and in particular

standing and walking at least six hours every day, but given the later development of Plaintiffs

knee impairment in the medical records and the lack of any medical review or opinion to

inform the ALJ’s analysis, there is not sufficient information or explanation to support that

determination. As noted above, there was no consultative examination and no medical review

of Plaintiff's knee impairment, even though her knee impairment was the primary issue that

7 As noted by Plaintiff, there are also issues regarding the extent to which the ALJ discounted Plaintiffs obesity

impairment based on her failure to lose weight or seek weight loss assistance. Notably, Social Security Ruling

16-3p only allows AL]s to question a claimant's testimony for failing to follow “prescribed” treatments; the

Ruling does not address non-compliance with “recommended” ones. See Social Security Ruling 16-3p, Titles

II and XVI: Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at *9 (Oct. 27, 2017). See also

Preston v. Heckler, 769 F.2d 988 (4th Cir. 1985) (“If noncompliance is ultimately to be found the basis for

denying benefits, it must be found on the basis of a more particularized inquiry than that made here. While the

regulatory scheme promulgated by the Secretary does not expressly dictate how the noncompliance inquiry

under 20 C.F.R. § 404.1530 meshes with the sequential analysis of disability under 20 C.F.R. § 404.1520, we

hold that the burden of producing evidence concerning unjustified noncompliance lies with the Secretary.

Therefore, on remand, if noncompliance is to be a basis for denying benefits, the Secretary must develop a

record establishing by substantial evidence that the claimant's impaitment is reasonably remediable by the

particular individual involved, given .. . her social or psychological situation, and that this claimant lacks good

cause for failing to follow a prescribed treatment program.” (internal citations and quotations omitted)).

Plaintiff here noted that she had difficulty losing weight because she could not exercise following her motor

vehicle accident and subsequent neck, back, wrist, and knee impairments. (Tr. at 52, 54-55.) In addition, there

is no indication she was previously referred to a nutritionist or other specialist for weight loss assistance. The

first reference of that kind appears to be Dr. McCabe’s treatment note in January 2022, noting that it “may be

reasonable at this point to consider medical and/or surgical help with weight loss” given the need for her to

lose weight in order to have the knee replacement surgery. (I't. at 775.) As noted above, that appointment was

only four months prior to the hearing in this case, and at that appointment Plaintiff expressed her interest in

meeting with a specialist at CoreLife for obesity. (Tr. at 775.)

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she raised at the hearing as precluding her from working, specifically with respect to her recent

falls and her need to sit, even while doing chores and showering. (Tr. at 52-55.) An ALJ “has

a duty to explore all relevant facts and inquite into the issues necessary for adequate

development of the record, and cannot rely only on the evidence submitted by the claimant

when that evidence is inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986).

Development of the record may include ordering a consultative examination, and the

regulations address the citcumstances under which an ALJ may order such an examination,

including where “[t]here is an indication of a change in [the claimant’s] condition that is likely

to affect [the claimant’s] ability to work, but the current severity of [the claimant’s] impairment

is not established.” 20 C.F.R. §§ 404.1519a(b), 416.919a(b). See also Marsh v. Harris, 632

F.2d 296, 300 (4th Cir. 1980) (holding that remand is warranted for failure to develop the

administrative record “[w]here the ALJ fails in his duty to fully inquire into the issues necessary

for adequate development of the record, and such failure is prejudicial to the claimant’);

Oakes, 70 F.4th at 213 (noting that where the evidence in the record is incomplete or

insufficient, the AL] may obtain additional evidence as necessary, including obtaining a

medical opinion ot a consultative exam).

Because (1) the most recent objective evidence corroborates Plaintiffs testimony of

greater limitations, but that evidence was not reviewed by the state agency consultants on

whom the AL] relied, and (2) the reasons cited by the AL] to discount Plaintiffs allegations

ptove significantly flawed, and (3) the failure to obtain any medical review or consultative

examination regarding Plaintiffs knee tmpairment left the ALJ to formulate her own lay

opinion, the Court cannot conclude that substantial evidence supports the AL]’s decision as

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written. Accordingly, on remand, the AL] should procure the testimony of a medical expert

ot other evidence appropriate to sufficiently analyze and address Plaintiffs knee tmpairment,

in combination with her prior impairments including obesity.

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 Defendant’s

Dispositive Brief [Doc. #10] is DENIED, and Plaintiffs Dispositive Brief [Doc. #8] is

GRANTED to the extent set forth herein.

This, the 30% day of September, 2024.

Yada

nited States Magistrate Judge

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