Prudich v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

PENNY PRUDICH,

Plaintiff,

v. CIVIL ACTION NO. 1:20-00019

ANDREW M. SAUL,

Commissioner of the

Social Security Administration,

Defendant.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Dwane L. Tinsley for submission of

findings and recommendations regarding disposition pursuant to

28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to

the court his Proposed Findings and Recommendation (“PF&R”) on

September 25, 2020, in which he recommended that the court deny

plaintiff’s request to reverse defendant’s decision (ECF No. 8),

grant defendant’s request to affirm defendant’s decision (ECF

No. 11), affirm defendant’s final decision, and dismiss this

action from the court’s docket.

In accordance with 28 U.S.C. § 636(b), the parties were

allotted fourteen days plus three mailing days in which to file

objections to the PF&R. Plaintiff timely filed objections to

the PF&R. (ECF No. 13.) Defendant timely filed a response to

those objections. (ECF No. 14.) Plaintiff then moved for and

was granted permission to file a supplemental brief regarding

the potential effect on this case of the Fourth Circuit’s recent

decision in Arakas v. Commissioner, Social Security

Administration, 983 F.3d 83, 102 (4th Cir. 2020). (ECF No. 18.)

The court also granted defendant permission to respond to

plaintiff’s supplemental brief. (Id.)1

I. Background

On November 9, 2016, plaintiff Penny Prudich filed an

application for Social Security Disability Insurance Benefits,

alleging disability beginning on November 23, 2015, due to

stenosis, a history of back surgeries, low back arthritis,

depression, migraine headaches, and hand and wrist pain. Upon

denial of her claim, she sought and obtained an administrative

hearing, which was held on November 14, 2018, before

1 On October 15, 2020, plaintiff filed a “reply” (ECF No. 15)

citing Local Rule of Civil Procedure 7.1 (relating to motions

practice) as authority for doing so. That rule does not apply.

Instead, Federal Rule of Civil Procedure 72(b)(2) applies, which

provides that a party may respond to another party’s objections,

but has no provision for a “reply” to such a response.

Accordingly, the court will not consider ECF No. 15.

On January 27, 2021, plaintiff again filed a “reply” (ECF No.

21). The court had granted plaintiff permission to file a brief

and defendant the opportunity to respond, but had made no

provision for a reply by plaintiff. (See ECF No. 18.) Neither

had plaintiff sought leave to file a reply. (See ECF No. 16.)

Accordingly, the court will not consider ECF No. 21.

Administrative Law Judge Francine A. Serafin (“ALJ”). On

November 26, 2018, the ALJ issued a decision finding that

plaintiff was not disabled. On November 13, 2019, the Appeals

Council denied review, thereby making the ALJ’s decision final.

Claimant timely sought judicial review.

II. Standard of Review

Under § 636(b)(1), a district court is required to conduct

a de novo review of those portions of a magistrate judge’s

report to which a specific objection has been made. The court

need not conduct a de novo review, however, “when a party makes

general and conclusory objections that do not direct the court

to a specific error in the magistrate’s proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.

1982); see also Fed. R. Civ. P. 72(b) (“The district court to

whom the case is assigned shall make a de novo determination

upon the record, or after additional evidence, of any portion of

the magistrate judge’s disposition to which specific written

objection has been made in accordance with this rule.”).

Federal courts are not tasked with making disability

determinations. Instead, they are tasked with reviewing the

Social Security Administration’s disability determinations for

(1) the correctness of the legal standards applied; and (2) the

existence of substantial evidence to support the factual

findings. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980);

see also Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340

(4th Cir. 2012). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019). “It consists of more than a mere scintilla of

evidence but may be somewhat less than a preponderance.” Laws

v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Substantial

evidence is not, however, “[w]itness testimony that’s clearly

wrong as a matter of fact,” “[f]alsified evidence,”

“[s]peculation,” or “conclusory assertions.” See Biestek 139 S.

Ct. at 1159 (Gorsuch, J., dissenting).

III. Discussion

Plaintiff objects to the PF&R’s rejection of each of her

arguments and renews those arguments in her objections. She

argues that the ALJ erred by (1) failing to pose hypotheticals

that accurately encompassed her limitations; (2) improperly

weighing her subjective complaints; (3) improperly weighing her

treating physician’s opinions; and (4) insufficiently

articulating the ALJ’s review of the medical evidence.2

2 As noted above, after the Fourth Circuit Court of Appeals

issued its opinion in Arakas, plaintiff sought and obtained

permission from the court to file a supplemental brief on that

opinion’s potential impact on this case. Plaintiff develops a

new objection in her supplemental brief. She argues that the

ALJ erred by requiring objective medical evidence to support her

subjective symptoms. Unlike her original objection to the ALJ’s

treatment of her subjective complaints, which was a substantial-

The thoroughness of the 35-page PF&R reflects a great deal

of diligent attention to this case on the part of the Magistrate

Judge; nevertheless, the court finds merit in plaintiff’s third

objection.

a. Hypotheticals

Plaintiff maintains that the ALJ’s hypotheticals to the

vocational expert (“VE”) ran afoul of the rule that such

hypotheticals must include all impairments that the claimant

has. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).

Vocational experts must adequately understand what claimants’

“abilities and limitations” are; otherwise, their opinions about

such claimants are “not particularly useful,” see id. at 51,

which means that they do not amount to “substantial evidence.”

Riley v. Chater, 57 F.3d 1067, *3 (4th Cir. 1995). This is an

important but easily overstated rule. All it requires is that

the hypothetical accurately describe the claimant’s residual

functional capacity (“RFC”). See Fisher v. Barnhart, 181 F.

App'x 359, 364 (4th Cir. 2006). That being done, the

hypothetical is “unimpeachable.” Id.

evidence challenge, this is a proper-legal-standards objection.

See Arakas, 983 F.3d at 98 (describing error of requiring

objective evidence to support subjective symptoms as application

of incorrect legal standard). Because plaintiff did not raise

this objection in her objections to the PF&R, and because the

court did not grant leave to raise new objections in the

supplemental brief, the court will not consider this objection.

The ALJ accurately communicated her RFC findings to the VE,

so plaintiff’s challenge to the hypotheticals is really a

challenge to the RFC in disguise. See Rutherford v. Barnhart,

399 F.3d 546, 554 n.8 (3d Cir. 2005) (explaining why arguments

like this one ”are really best understood as challenges to the

RFC assessment itself.”). Plaintiff argues that (1) the need to

lie down during the day and (2) absenteeism should have been

included in the hypotheticals. The court will not discuss the

first alleged limitation (the need to lie down) in this section

because it implicates the treating physician rule, which the

court discusses in another section, below. The court will

address the absenteeism argument, however, which does not

implicate the treating physician rule. The court concludes that

the absenteeism argument lacks merit.

Plaintiff argues that it was error not to include

absenteeism in any hypothetical to the VE. As mentioned, this

is best understood as a challenge to the RFC. That is why

hypotheticals are objectionable only if they fail to include

credibly established limitations. See id. at 554; see also

Manley v. Berryhill, No. 2:17-CV-02293, 2018 WL 3423821, at *3

(S.D.W. Va. July 16, 2018). Plaintiff has the burden to

credibly establish limitations, and she did not come close to

carrying that burden as to absenteeism.

Plaintiff appears to proceed on the faulty premise that if

the record shows more than one monthly medical appointment in

the past, that is prima facie evidence of absenteeism, and the

burden shifts to defendant to prove that the appointments will

not result in absenteeism. Equating medical appointments in the

past with absenteeism is a mistake; the claimant has the burden

to establish that medical appointments necessary for treatment

in the future will result in absenteeism. See Swafford v.

Comm’r of Soc. Sec., No. 1:12CV19, 2013 WL 1196590, at *1 (S.D.

Ohio Mar. 25, 2013). (“[E]vidence of frequent medical

appointments alone is not enough. Instead, there must be

evidence such as a medical source opinion about the likelihood

of absenteeism caused by the claimant’s impairments and the need

for treatment during working hours.”); Goodman v. Berryhill, No.

C17-5115 BAT, 2017 WL 4265685, at *3 (W.D. Wash. Sept. 25,

2017), aff’d, 741 F. App’x 530 (9th Cir. 2018) (“[T]o be

disabling, the frequency of medical treatment must be

necessitated by the medical condition and be substantiated by

the evidence.”).

Plaintiff states that her medical appointment merely “could

have,” (ECF No. 13, at 4) (emphasis in original), been a

limitation on her ability to perform work and says that the

record establishes “potential absenteeism,” (Id. at 6).

Plaintiff’s burden required showing more. While the likelihood

of absenteeism need not be proved to a certainty, the

possibility of a limitation is far different from a credibly

established limitation. For example, a claimant who shows a

pattern of frequent, unexpected trips to the emergency room to

treat an ongoing condition likely establishes an absenteeism

limitation, see Payne v. Comm’r, Soc. Sec. Admin., No. CIV. SAG-

14-1015, 2015 WL 412923, at *1 (D. Md. Jan. 29, 2015). Another

example is a claimant who shows the need to receive biweekly

injections that require several hours to administer. Payne-

Hoppe v. Comm’r of Soc. Sec., No. 1:11-CV-0097, 2012 WL 395472,

at *16 (S.D. Ohio Feb. 7, 2012), report and recommendation

adopted, No. 1:11-CV-97, 2012 WL 709274 (S.D. Ohio Mar. 5,

2012). ALJs are not required to assume facts for which there is

no evidence – here, that plaintiff’s regularly scheduled

appointments would result in absenteeism. The one may lead to

the other, but contrary to plaintiff’s argument, it was not the

ALJ’s burden to disprove the connection, but plaintiff’s burden

to prove it. Jeffries v. Berryhill, No. 4:16 CV 18 JMB, 2017 WL

365439, at *6 (E.D. Mo. Jan. 25, 2017) (“[I]t was Plaintiff's

burden to prove RFC, not the ALJ's, and Plaintiff did not offer

any proof as to the number of days that she must miss due to her

illnesses.” (citation omitted)); Bray v. Comm'r of Soc. Sec.,

No. 1:13-CV-00040, 2014 WL 4377771, at *2 (S.D. Ohio Sept. 3,

2014) (“Restrictions on a claimant's ability to sustain full-

time work, due to the frequency of appointments, would fall

within the analysis of her RFC on which she maintains the burden

of proof.”).

Furthermore, plaintiff is mistaken that VE testimony was

necessary on this issue. VE testimony would be necessary if it

were credibly established that plaintiff’s treatment would

result in absenteeism. The issue at that point – whether such

absenteeism would preclude employment – would be within a VE’s

expertise. But it never got to that point here because

absenteeism was never credibly established. Plaintiff’s burden

was to establish what future treatment was necessary and to

connect receiving such treatment to absenteeism. This is an

area where a medical opinion, not a vocational opinion, is very

helpful. See, e.g., Peters v. Astrue, No. CIV.A. 1:08-CV-203,

2009 WL 6326804, at *11 (N.D.W. Va. Sept. 29, 2009), report and

recommendation adopted sub nom. Peters v. Comm’r of Soc. Sec.

Admin., No. CIV.A. 1:08CV203, 2010 WL 1369245 (N.D.W. Va. Mar.

31, 2010) (“Plaintiff argues that her history of medical

appointments demonstrates that she would be unable to work full-

time. However, no doctor opined that Plaintiff is unable to

work because of numerous doctor appointments. Plaintiff does

not rely on a medical opinion that she is unable to work due to

frequent absenteeism, but instead she presents her history of

appointments in support of her argument.”). Doctors – not VEs –

are the experts on the extent of claimants’ necessary future

treatment, including details like the number and duration of

treatment visits, the hours when they must take place, and the

effects of such treatment.3

Here, plaintiff did not meet her evidentiary burden, either

with a doctor’s opinion or otherwise. She did not establish

with any reasonable specificity the extent of treatment she

needs in the future or that the “mechanics of treatment,” see

SSR 96-8p, would necessitate missing work. To prove future

appointments, she merely points to the medical appointments

memorialized in the record and says that the proof of

absenteeism is self-evident. To rely on past appointments to

predict future appointments, however, there must be evidence

that the one is a reliable indicator of the other. Lara v.

Berryhill, No. 4:16-CV-00564-PLC, 2018 WL 1744534, at *3 (E.D.

Mo. Apr. 11, 2018).

Courts have consistently rejected the argument that, to

establish an absenteeism limitation, all a claimant needs to do

is point to a history of medical appointments in the record.

See Simpson v. Comm’r of S.S.A., No. CIV.A. 1:09-02731, 2011 WL

1261499, at *2 (D.S.C. Mar. 31, 2011) (“Even if she has frequent

3 Although presenting a medical opinion is not the only way to

prove an absenteeism limitation resulting from necessary future

medical treatment, it would appear to be the surest way of doing

so in most cases.

medical appointments, Plaintiff can still have the ability and

aptitude necessary to work and perform the above-stated tasks

and those similar to them. Moreover, the concern about absences

due to appointments is speculative. Plaintiff’s speculation

that she will miss work frequently for medical appointments is

insufficient to demonstrate a limitation on her physical or

mental ability to perform basic work activities.”); Peters, 2009

WL 6326804, at *11 (see parenthetical quotation above); Stone v.

Berryhill, No. 17-CV-3193, 2018 WL 5300381, at *19 (C.D. Ill.

Oct. 24, 2018) (“The ALJ is not required to speculate. Stone is

speculating on what she would have done had she been working.

If Stone had been working, she might have scheduled her medical

appointments on her days off or combined appointments. No one

knows. No one knows because this argument is all speculation.

The ALJ did not err in omitting such speculation from her

decision. If numbers of doctors' visits alone could establish

disability, claimants would only need to schedule enough

visits.”); Martin v. Berryhill, No. 7:16-CV-260-KKC, 2018 WL

1571906, at *4 (E.D. Ky. Mar. 30, 2018) (“Martin's remaining

arguments are both underdeveloped and unavailing. Martin claims

the ALJ failed to properly consider her absenteeism necessitated

by her doctor's appointments. But Martin has not identified any

evidence on the record that the length of these appointments

would require her to miss work.”); Jeffries, 2017 WL 365439, at

*5–6 (“Although Plaintiff argues that it is ‘incontrovertible’

that she will miss numerous days, the record does not support

this argument and substantial evidence supports the ALJ’s RFC

determination. At best, Plaintiff proved how many times she has

visited a doctor, but she did not show that each doctor's visit

would result in her missing an entire day of work.”); Mullin v.

Colvin, No. 14-3217-CV-S-REL-SSA, 2015 WL 5096028, at *13–14

(W.D. Mo. Aug. 27, 2015) (“In this case, there is no evidence

that plaintiff would be unable to schedule multiple medical

appointments on the same day or schedule appointments before or

after her normal work hours. There is no evidence that

plaintiff’s impairments or treatment will likely require her to

miss 10 to 14 full days of work per year as plaintiff suggests

in her brief. As a result, plaintiff's arguments on this basis

are without merit.”); Swafford v. Comm’r of Soc. Sec., No.

1:12CV19, 2013 WL 1196590, at *1 (S.D. Ohio Mar. 25, 2013) (see

parenthetical quotation above).

Plaintiff sets forth no case law confronting the issue of

absenteeism, and her reliance on an overly generous

interpretation of the general rule that hypotheticals set forth

all limitations is unavailing. The great weight of persuasive

authority is against plaintiff on this issue, and court finds no

good reason to strike out against that authority.

To show that medical appointments would result in missed

work, plaintiff argues on appeal to this court that some

appointments are up to an hour and forty minutes from her home.

Even if so, she did not make this argument to the ALJ. While

ALJs are required to consider all the evidence, they are not

required to calculate distances between claimants’ homes and

doctors’ offices when claimants never raise the issue. The

ALJ’s review of the evidence was not deficient for failure to

make such a calculation. Moreover, for the reasons explained

above, it is insufficient merely to show that some past

appointments required over an hour of travel.

For the foregoing reasons, plaintiff’s objection that the

ALJ’s hypotheticals were defective for failure to include

absenteeism is OVERRULED.4

b. Subjective Complaints

Plaintiff also renews her argument that substantial

evidence does not support the bases on which the ALJ discounted

her subjective symptoms. More specifically, she argues that by

failing to account for her testimony about the limited, non-

daily extent of her activities and by misstating the record, the

4 The court does not decide whether failure to include the need

to lie down or take breaks during the day in the hypotheticals

was error because this depends on whether the medical opinion on

which this alleged limitation is based should have been given

more weight, which is an issue requiring remand, as discussed

below.

ALJ reached a conclusion unmoored from substantial evidence:

that the severity and effects of plaintiff’s symptoms were not

as great as alleged.

When ALJs analyze whether claimants’ activities are

inconsistent with their subjective complaints, ALJs must

consider claimants’ qualifying statements about their

activities. Arakas, 983 F.3d at 99 (4th Cir. 2020); Woods v.

Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); Brown v. Comm'r

Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017). But ALJs

are obviously not bound by every qualifying statement. Linkous

v. Astrue, No. 4:10CV16, 2011 WL 652534, at *10 (E.D. Va. Jan.

19, 2011), report and recommendation adopted, No. 4:10CV16, 2011

WL 642958 (E.D. Va. Feb. 10, 2011). By regulation, ALJs are to

accept claimants’ statements only to the extent that they are

consistent with the record. See 20 C.F.R. § 404.1529SSR (“We

will then determine the extent to which your alleged functional

limitations and restrictions due to pain or other symptoms can

reasonably be accepted as consistent with the medical signs and

laboratory findings and other evidence to decide how your

symptoms affect your ability to work.”); see also SSR 16-3p (“We

will consider an individual’s statements about the intensity,

persistence, and limiting effects of symptoms, and we will

evaluate whether the statements are consistent with objective

medical evidence and the other evidence.”). Because qualifying

statements are essentially symptoms, ALJs assess qualifying

statements for consistency with the record in the same way they

assess claimants’ other symptoms. See 20 C.F.R. § 404.1529.

In Brown, the ALJ “did not acknowledge” the claimant’s

qualifying statements and did not explain how the claimant’s

activities translated into the ability to work full-time. 873

F.3d at 263. Similarly, in Arakas, the ALJ “did not mention or

address” myriad qualifying statements. 983 F.3d at 100.

Importantly, however, “there is a stark difference between an

ALJ not explicitly mentioning every scintilla of evidence . . .

as compared to an ALJ selectively citing certain pieces of

evidence to present a false picture of the claimant’s abilities,

as the ALJ did in Arakas and similar decisions.” Walker v.

Saul, No. 2:20-CV-00196, 2021 WL 342570, at *9 (S.D.W. Va. Jan.

6, 2021), report and recommendation adopted, No. 2:20-CV-00196,

2021 WL 329208 (S.D.W. Va. Feb. 1, 2021).

Here, although the ALJ’s evaluation of the subjective

symptoms was proficient. At the outset, it is true that the ALJ

made at least one misstatement: that plaintiff drove to Disney

World for a family vacation (she actually flew).5 This is a

5 As the PF&R points out, there is some evidence in the record

regarding plaintiff crocheting, doing yoga, and using an

elliptical, so although plaintiff testified that she did not do

these activities (or do them any longer), it is not obvious that

the ALJ misstated the record. Based on its de novo review of

the record, however, the court determines that evidence is thin

pretty glaring error because plaintiff testified that driving

“wasn’t even a consideration,” (Tr. at 49.), and the ALJ did not

acknowledge that testimony in finding that plaintiff drove.

The error is harmless, though, because as the PF&R points

out, it was reasonable for the ALJ to conclude that plaintiff’s

ability to travel – by land or by air – was inconsistent with

her statements regarding her difficulties with mobility and with

sitting. While the ALJ got an important detail wrong, it is not

as if she was mistaken about the Disney World trip completely.

Thus, it does not appear at all likely that the outcome would

have been different without this error. Even taking the

statement about driving to Florida out of the equation,

substantial evidence still supports the RFC determination.

As for plaintiff’s qualifying statements regarding her

activities, unlike the ALJs in Brown and Arakas, the ALJ here

acknowledged and analyzed them. In doing so, she found the

qualifying statements to be largely inconsistent with how

plaintiff had described her activities to her doctors. True,

after recounting plaintiff’s limiting statements, the ALJ did

not explicitly repeat them and list the portions of the record

with which they were inconsistent. But substantial evidence

enough as to yoga and elliptical use that it will assume for

this decision that plaintiff did stretches, but not yoga, and

that she used only the recumbent bike function on her

combination elliptical/recumbent bike. (See Tr. at 65.)

still supports findings. Moreover, as to the qualifying

statement about her childcare activities (perhaps the most

important one), the ALJ did repeat it and contrasted it with

plaintiff’s pre-hearing descriptions of the activity, which

omitted this qualifying statement.6 In short, the ALJ

proficiently accounted for both the type of activities and their

extent, giving adequate consideration to plaintiff’s qualifying

statements.

Plaintiff also objects that the ALJ failed to explain how

the activities she reported engaging in (such as doing

housework, caring for a toddler, taking out-of-town trips,

exercising, and driving) amount to the ability to engage in

full-time work, citing Brown and Arakas. In those cases, the

Appeals Court noted that the ALJs did not explain how the

activities they cited amounted to the ability to work full-time.

Arakas, 983 F.3d at 100; Brown, 873 F.3d at 263. Those cases

make clear that it is insufficient merely to point to minimal

daily activities as proof that a claimant is not disabled. As

Arakas explains, claimants should not forfeit Social Security

6 Plaintiff points out that one medical note does record that

plaintiff needed help caring for her grandson. But this note

does not contradict the ALJ’s observation that at other times,

she did not state that she needed help. In fact, that she

qualified this activity once – but not at other times –

strengthens the ALJ’s conclusion that she sometimes was able to

engage in this activity on her own.

benefits for trying to “participate in the everyday activities

of life.” 983 F.3d at 101.

The ALJ’s decision here does not rely solely on plaintiff’s

participation in minimal daily activities to determine that she

can still work. Instead, the ALJ explains that she relies on

the following to find plaintiff’s symptoms “not entirely

consistent,” (Tr. at 18), with the record:

1. Plaintiff was able to travel various places, including

Florida (twice – once to Tampa and once to Disney World);

the Smoky Mountains; Roanoke; Lexington, Kentucky; and

the beach.

2. Plaintiff failed to attend over a third of her physical

therapy appointments.

3. Treatment was generally successful for plaintiff.

4. Plaintiff was able to care for a young child two days a

week.

5. Plaintiff attended meetings, exercised, and put together

flower arrangement and crafts for a wedding.

Plaintiff had the burden of proof on the RFC. She made

statements regarding subjective symptoms in support of that

burden. The ALJ was required to evaluate the consistency of

those statements with the record and to explain her findings

sufficiently. She did so. She did not merely list minimal,

basic activities. Rather, she found that being able to do

things like take multiple trips to Florida, care for a toddler

two days a week, exercise, and attend meetings was inconsistent

with plaintiff’s description of her symptoms. She explained

that caring for a toddler, in particular, “can be quite

demanding both physically and emotionally.” (Tr. at 18.) She

explained that plaintiff’s treatment had helped significantly.

Brown and Arakas require that ALJs’ findings be adequately

explained, which does not mean merely listing basic daily

activities as if they were self-evident of a lack of disability.

Those cases do not, however, preclude any reliance on claimants’

activities as part of ALJs’ explanations. The ALJ’s explanation

here appropriately incorporated plaintiff’s activities into a

sufficiently comprehensive explanation that is supported by

substantial evidence.

c. Medical Evidence Evaluation

Plaintiff also takes issue with the ALJ’s finding that

plaintiff’s treatment had “been generally successful in

controlling her symptoms.” (Tr. at 18.) She argues the record

does not support this finding. If by “generally successful,”

the ALJ meant that treatment had completely eliminated her

symptoms, then plaintiff would be correct. But the court reads

this to mean only that treatment had helped plaintiff manage her

symptoms significantly. Substantial evidence, including

plaintiff’s medical records from her primary care physician and

pain specialist, supports such a finding. (See Tr. at 17, 325,

335, 355, 364, 389, 415, 463, 496.)

Plaintiff also objects that the ALJ insufficiently reviewed

her medical records. Specifically, she states that the records

of Drs. Thymius and Orphanos “are either not discussed at all or

barely acknowledged.” (ECF No. 13, at 22.) Plaintiff says that

the articulation falls short of the requirements of C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3) (that the assessment must be

“based on all of the relevant medical and other evidence”) and

SSR 96-8p (that the assessment “[c]ontain a thorough discussion

and analysis of the objective medical and other evidence). But

plaintiff identifies no binding or persuasive case law

supporting her interpretation of these requirements, which would

require an individualized discussion of the records from each

medical provider.

In the Fourth Circuit, “there is no rigid requirement that

the ALJ specifically refer to every piece of evidence.” Reid v.

Commissioner of Social Sec., 769 F.3d 861, 865 (4th Cir. 2014).

Arakas does not change this general rule. See Walker, 2021 WL

342570. The ALJ stated that she considered all the evidence of

record. Having so stated, the court should “take her at her

word.” Id. at 865; see also Hackett v. Barnhart, 395 F.3d 1168,

1173 (10th Cir. 2005) (“[O]ur general practice, which we see no

reason to depart from here, is to take a lower tribunal at its

word when it declares that it has considered a matter.”);

Christina W. v. Saul, Case # 4:19-cv-00028-PK, 2019 WL 6344269,

*4 (D. Utah Nov. 27, 2019) (“While the ALJ must consider all the

evidence, she need not recite each piece of evidence she has

considered. The ALJ stated that she carefully considered the

entire record and the Court can take her at her word.”).

Moreover, the ALJ cited the records of plaintiff’s treatment

with Drs. Thymius and Orphanos in the FRC assessment. Although

her analysis does not name these doctors or recount the content

of the records in detail, the analysis shows that the ALJ was

aware of these records and considered them. Plaintiff is not

arguing that these providers offered opinions that the ALJ

insufficiently considered; rather, she is objecting to the

absence of a summation of medical records on a provider-by-

provider basis. That is not required under the relevant

regulations and policy ruling.

Therefore, this objection is OVERRULED.

d. Treating Physician Rule

Finally, plaintiff also contends that the ALJ’s weighing of

the medical opinion evidence was erroneous. Specifically, she

says that the ALJ erred by “failing to give significant, if not

controlling weight,” to Dr. Lohuis’s opinions that plaintiff (1)

“has to lie down multiple times per day due to increase in pain

with activity”; (2) has to take frequent and unpredictable

breaks from sitting, standing, or lying; and (3) “has been

unable to sustain gainful employment due to relentless back and

leg pain.” (Tr. at 622). Because the ALJ failed to provide a

sufficient explanation for giving no weight to Dr. Lohuis’s

opinions, the court concludes that this objection has merit.

The treating physician rule is gradually disappearing. It

has not applied to new claims in nearly four years. See 20

C.F.R. § 404.1520c. For claims filed on or after March 27,

2017, the Commissioner “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 [claimants’] medical sources.” Id. But to those

claims to which the treating physician rule still applies, it is

a “robust” force to be reckoned with. See Arakas, 983 F.3d at

107. And it applies to this claim because plaintiff filed it on

November 9, 2016, before the March 27, 2017 cutoff.

The rule “requires that ALJs give ‘controlling weight’ to

a treating physician’s opinion on the nature and severity of the

claimant’s impairment if that opinion is (1) ‘well-supported by

medically acceptable clinical and laboratory diagnostic

techniques’ and (2) ‘not inconsistent with the other substantial

evidence’ in the record.” Id. at 106. In other words, a

treating physician’s medical opinion must be “based on medically

unacceptable clinical or laboratory diagnostic techniques or

. . . contradicted by the other substantial evidence in the

record,” to be given anything less than controlling weight. Id.

at 107.

That said, not all opinions by doctors qualify for the

rule. Only opinions that are “on the issue(s) of the nature and

severity of [claimants’] impairment(s)” qualify. 20 C.F.R.

§ 404.1527(a), (d)(2). Also, opinions on “issues reserved to

the Commissioner,” are expressly disqualified and indeed are

“not medical opinions” at all. 20 C.F.R. § 404.1527.

Dr. Lohuis’s opinion about plaintiff’s inability to sustain

gainful employment is not a medical opinion. It is an opinion

about whether plaintiff is disabled; thus, the treating

physician rule does not apply, and the opinion cannot be given

controlling weight. The ALJ evaluated this opinion and found it

to be vague and unexplained. Accordingly, plaintiff’s argument

fails as to this opinion.

As to the opinions about plaintiff needing to lie down and

take frequent and unpredictable breaks, however, it would appear

that the treating physician rule does apply. Defendant points

out that the RFC is an issue reserved to the Commissioner, but

defendant stops short of explicitly arguing that these are

opinions on reserved issues. Moreover, the regulations are

against such an argument:

Medical opinions are statements from acceptable

medical sources that reflect judgments about the

nature and severity of your impairment(s), including

your symptoms, diagnosis and prognosis, what you can

still do despite impairment(s), and your physical or

mental restrictions.

20 C.F.R. § 404.1527. Dr. Lohuis’s opinions would appear

to be “judgments about” plaintiff’s “physical or mental

restrictions.” Id.

The question, then, is whether the opinions are “well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and [are] not inconsistent with the

other substantial evidence.” Id. The ALJ’s decision does

not tell us. It says that the opinions are “general” and

that the letter that expresses them does not cite the

evidence that supports the opinions. (Tr. at 19.) While

this analysis gestures toward a finding that the opinions

are not well-supported by clinical and laboratory

diagnostic techniques, it equivocates, creating unsteady

footing on which to affirm. Being “general” is not the

same as being unsupported, and there is no requirement that

the support for the opinions be cited in the letter itself.

The short shrift makes judicial review impossible. See

DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983)

(“Judicial review of an administrative decision is

impossible without an adequate explanation of that decision

by the administrator.”); but see Poole v. Saul, 462 F.

Supp. 3d 137, 151 (D. Conn. 2020) (court was “able to glean

from the record the ALJ’s rationale for assigning little

weight to” a treating physician’s opinion”).

In Arakas, the Fourth Circuit rephrased the treating

physician rule as follows: “[T]he [treating physician’s]

opinion must be given controlling weight unless it is based

on medically unacceptable clinical or laboratory diagnostic

techniques or is contradicted by the other substantial

evidence in the record. 983 F.3d at 107 (emphasis in

original). Even read liberally, the ALJ’s brief analysis

here is insufficient to pass muster, especially under this

phrasing of the treating physician rule.

Defendant does not commit to an argument to the

contrary. Instead, defendant argues that the ALJ’s

analysis passes muster because it relies on the lack of

“supportability.” There are two steps involved, however,

when an ALJ determines that a treating physician’s medical

opinion does not deserve controlling weight. The first is

to explain why it is based on unacceptable diagnostic

techniques or is contradicted by other substantial

evidence; that done, the second is to analyze it under the

factors (of which supportability is one). See 20 C.F.R.

§ 404.1527 (“When we do not give the treating source’s

medical opinion controlling weight, we apply [certain

factors] in determining the weight to give the medical

opinion.”).

The ALJ skipped step one. Given the importance of the

treating physician rule, which the Fourth Circuit recently

reiterated in no uncertain terms, the ALJ must reasonably

articulate why it does not apply; otherwise, it cannot pass

judicial review in this circuit. Finally, it is noteworthy

that the ALJ not only declined to accord Dr. Lohuis’s

opinion controlling weight, she declined to give it any

weight at all.

Therefore, remand is necessary, and the court SUSTAINS

this objection.

IV. Conclusion

For the reasons set forth above, the court SUSTAINS

plaintiff’s objection to the PF&R’s conclusion regarding the

ALJ’s decision to give no weight to certain opinions by Dr.

Lohuis. The court OVERRULES plaintiff’s other objections. The

court GRANTS plaintiff’s Motion for Judgment on the Pleadings

(ECF No. 8) in part: specifically, the court REVERSES and

REMANDS defendant’s decision pursuant to sentence four of 42

U.S.C. § 405(g) for further proceedings consistent with this

opinion. The court DENIES defendant’s request to affirm his

decision (ECF No. 11) and DISMISSES this case from the court’s

active docket.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to all counsel of record and any unrepresented

parties.

IT IS SO ORDERED this lith day of March, 2021.

ENTER:

David A. Faber

Senior United States District Judge

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