Garrett Fox v. Carolyn Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00244-MOC-DLH Copies to all parties and the district court/agency. [999720034].. [14-2237]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2237

GARRETT W. FOX,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00244-MOC-DLH)

Argued:

October 27, 2015

Decided:

December 17, 2015

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Charlotte Williams Hall, CHARLES T. HALL LAW FIRM, P.C.,
Raleigh, North Carolina, for Appellant.
Jeanne Dana Semivan,
SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for
Appellee.
ON BRIEF: Anne M. Tompkins, United States Attorney,
Paul B. Taylor, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Garrett
court’s

order

W.

Fox

upholding

(“Appellant”)
the

denial

appeals

of

his

the

district

application

for

disability insurance benefits and supplemental security income.
Appellant

argues

that

the

administrative

law

judge

(“ALJ”)

failed to sufficiently explain his findings, in violation of
Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013), and improperly
evaluated the medical opinion of Appellant’s doctor.
We conclude that the ALJ’s opinion failed to provide
sufficient reasoning to allow for meaningful judicial review.
Accordingly, we vacate the district court’s judgment and direct
the

district

court

to

remand

to

the

agency

for

further

proceedings consistent with this opinion.
I.
A.
1.
Appellant’s Medical History
In 2009, Appellant injured his back at work, and over
the next year, the pain worsened, progressing into both of his
legs.

As

a

result,

Appellant

could

self-employed construction laborer.
physicians

diagnosed

Appellant

no

longer

work

for

disability

insurance
2

a

Beginning in 2010, several
with

chronic

inflammatory

demyelinating polyneuropathy (“CIDP”) and diabetes.
applied

as

benefits

and

Appellant

supplemental

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security income in March 2011, alleging that the diabetes and
CIDP had left him disabled since August 2009.
In

2011,

Appellant

Armstrong, a neurologist.

sought

the

care

of

Dr. Rob

During a visit to Dr. Armstrong in

November 2011, Dr. Armstrong described Appellant’s neuropathy as
“severe,”

and

having

“occur[red]

in

a

persistent

pattern.”

A.R. 329. 1

In March 2012, Dr. Armstrong opined that Appellant’s

neuropathy

caused

pain,

“clear

general

gait

fatigue,

difficulties,”

leg

and

weakness,

sensory

imbalance,

deficits,

significantly limited Appellant’s physical capabilities.

which
Id. at

339-41.
Dr. Armstrong
exertional

and

determined

non-exertional

that

Appellant

limitations.

had

both

Specifically,

he

determined that Appellant could lift 20 pounds occasionally and
lift less than ten pounds frequently.

Dr. Armstrong further

determined that Appellant could stand for a total of one to two
hours

during

an

eight-hour

work

day,

but

only

five

to

ten

minutes at a time, and he could sit for a total of four to five
hours, but only 15 to 30 minutes at a time.

Per Dr. Armstrong,

Appellant could never perform climbing, balancing, or crouching
and

could

only

occasionally

stoop,

1

kneel,

and

crawl,

and

Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.

3

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Appellant’s
handle,

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neuropathy

feel,

recommended

push,

also

and

Appellant

temperature

extremes,

activity.

He

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affected

pull.

As

avoid

that

a

ability

result,

heights,

humidity,

noted

his

Dr.

reach,

Armstrong

moving

vibration,

these

to

machinery,

and

repetitive

any

limitations

were

normal

consequences of neuropathy and described the neuropathy as a
“lifelong

issue”

that

would

create

hardships

on

Appellant’s

employment, including causing Appellant to be absent from work
“more than four times a month.”

A.R. 341.
2.

ALJ Hearing
The Social Security Administration denied Appellant’s
initial application for disability benefits in June 2011 and his
request for reconsideration in September 2011.
filed a written request for an ALJ hearing.

Appellant then

On April 20, 2012,

at his hearing, Appellant testified that he was experiencing
extensive

pain

causing

him

to

move

very

slowly,

to

have

difficulty climbing stairs, and to use a cane to walk.
A

vocational

expert

(“VE”)

testified

that

a

hypothetical individual with similar limitations to Appellant’s
could not perform any of Appellant’s past relevant work.
the

ALJ

asked

hypothetical

the

VE

to

individual

consider
with

the

4

the

work

prospects

exertional

Next,
for

a

limitations

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described

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by

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Dr. Armstrong.

The

VE

testified

that

this

hypothetical individual would be unemployed.
B.
1.
Evaluation of Disability Claims
Disability claims are considered by using a five-step
process.
five

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

steps

potentially

are

evaluated

dispositive

in
--

sequential
thus,

if

order,
a

and

determination

disability can be made at any step, the inquiry ceases.
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

each

The
is
of

See 20

The five-step process

entails evaluating 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; 2 (4) could return to his past relevant work;
and (5) could perform any other work in the national economy if
he cannot return to his past relevant work.
§§ 404.1520(a)(4), 416.920(a)(4).
2

See 20 C.F.R.

If a claimant reaches step

The listing of impairments “describes for each of the
major body systems impairments that [are] consider[ed] to be
severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work
experience.”
20 C.F.R. § 404.1525(a); see also 20 C.F.R.
Pt. 404, Subpt. P, App. 1 (Appendix describing the listing of
impairments).

5

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three

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and

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has

an

impairment

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that

meets

or

equals

a

listed

impairment, the claimant will be automatically found disabled
and

entitled

to

416.920(a)(4).
claimant’s

benefits.

See

20 C.F.R. §§ 404.1520(a)(4),

Otherwise, before proceeding to step four, the

residual

functional

capacity

must

be

determined, which will then be used at steps four and five. 3

See

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

(“RFC”)

The burden of proof

is on the claimant in the first four steps, but shifts to the
Commissioner

at

the

fifth,

and

final,

step.

See

Mascio

v.

CIDP

and

Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
2.
ALJ’s Decision
The
diabetes

ALJ

first

diagnoses

qualified

thereafter

concluded

enough

warrant

C.F.R.

to

Part

404,

determined

that

finding
Subpart

that

as

these

severe

impairments,

impairments

Appellant
P,

Appellant’s

were

disabled

Appendix

1.

not

pursuant
In

but

severe
to

20

assessing

Dr. Armstrong’s treatment of Appellant, the ALJ summarized some,
but not all, of Dr. Armstrong’s medical notes.

The ALJ then

stated,

3

A claimant’s residual functional capacity is the “most
[the claimant] can still do [in a work setting] despite” the
claimant’s
physical
and
mental
limitations.
20
C.F.R.
§ 404.1545.

6

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Dr. Armstrong’s
opinion
regarding
[Appellant’s] non-exertional limitations is
given some weight because it is supported by
medical signs and finding[s], because it is
consistent with the medical evidence of
record and because it was rendered by a
treating source.
However, less weight is
given to the exertional and manipulative
limitations
because
they
are
not
well[-]supported by the medical record.
A.R. 22.
Ultimately,
education,

work

after

experience,

considering
and

RFC,

Appellant’s

the

ALJ

age,

concluded

that

Appellant was “not disabled” because other jobs existed in the
national
A.R.

economy

23.

Social

in

which

Appellant
Security

Adjudication

and

Appellant

appealed

to

was

the

Administration’s
Review

(“Appeals

capable

Appeals

of

Council

Office

of

Council”).

working.
of

the

Disability
The

Appeals

Council denied Appellant’s appeal because it “found no reason
under [its] rules to review the [ALJ]’s decision.”

Id. at 1.

3.
District Court’s Decision
Appellant

then

court.

Appellant

alleged

explained

the

finding

filed

that

a

that

complaint
the

Appellant’s

ALJ
CIDP

in

the

district

(1) insufficiently
did

not

meet

or

equal the requirement of a listed impairment, i.e. Listing 11.14
for peripheral neuropathy, in violation of Radford v. Colvin,
734 F.3d 288 (4th Cir. 2013); and (2) improperly evaluated the

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medical opinion of Appellant’s doctor.

Both Appellant and the

Commissioner of Social Security (“Commissioner” or “Appellee”)
moved for summary judgment.

The magistrate judge recommended

affirming the ALJ’s opinion on the basis that the ALJ provided
sufficient reasoning to allow for meaningful judicial review,
and substantial evidence existed to support the ALJ’s findings.
The district court adopted the magistrate judge’s recommendation
and

granted

Appellee

summary

judgment.

Appellant

timely

appealed to this court.
II.
We review a district court’s grant of summary judgment
de novo.

Elderberry of Weber City, LLC v. Living Centers-Se.,

Inc., 794 F.3d 406, 411 (4th Cir. 2015).

We “will affirm the

Social Security Administration’s disability determination when
an ALJ has applied correct legal standards and the ALJ’s factual
findings

are

supported

by

substantial

evidence.”

Mascio

v.

Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (internal quotation
marks omitted); 42 U.S.C. § 405(g) (The Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive.”).
as

a

“Substantial evidence is such relevant evidence

reasonable

conclusion.”

mind

might

accept

as

adequate

to

support

a

Gestamp S. Carolina, L.L.C. v. NLRB, 769 F.3d 254,

263 (4th Cir. 2014) (internal quotation marks omitted).

“It

consists of more than a mere scintilla of evidence but may be
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less than a preponderance.”

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Hancock v. Astrue, 667 F.3d 470,

472 (4th Cir. 2012) (internal quotation marks omitted).
III.
A.
Here, Appellant relies on our decision in Radford v.
Colvin,

wherein

benefits

the

because

impairments.

ALJ
the

denied

a

claimant

claimant’s

application

did

have

not

for

qualified

See 734 F.3d 288, 291-92 (4th Cir. 2013).

There,

the ALJ simply concluded at step three that he “considered, in
particular,” the impairment listings.

Id. at 292.

The district

court reversed the ALJ’s decision after reviewing the record
because the “ALJ’s opinion failed to apply the requirements of
the listings to the medical record,” and then the district court
proceeded to award benefits to the claimant.

Id.

On appeal, we explained, “[a] necessary predicate to
engaging in substantial evidence review is a record of the basis
for the ALJ’s ruling.
which

evidence

the

The record should include a discussion of

ALJ

found

credible

and

why,

and

specific

application of the pertinent legal requirements to the record
evidence.”

Radford, 734 F.3d at 295 (citations omitted); Arnold

v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 260 (4th Cir.
1977) (ALJ failed to include an adequate discussion “in what
amount[ed]

to

no

more

than

considered the evidence.”).

a

bare

recital

that

[the

ALJ]

We reasoned that it is best for us
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“remand

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to

the

agency

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for

additional

investigation

or

explanation” when we cannot evaluate the record of the basis
that

underlies

the

ALJ’s

ruling.

Radford,

734

F.3d

at

295

(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)); see also Mascio v. Colvin, 780 F.3d 632, 640 (4th Cir.
2015) (“ALJ’s lack of explanation requires remand” when the “ALJ
explain[ed] how he decided [the evidence] . . . [with a] vague
(and

circular)

boilerplate

statement.”).

In

vacating

the

district court’s decision, we emphasized that it was “not our
province -- nor the province of the district court -- to engage
in

these

[fact-finding]

exercises

in

the

first

instance.”

Radford, 734 F.3d at 296; see also Cook v. Heckler, 783 F.2d
1168, 1173 (4th Cir. 1986) (holding that without an explanation
from the ALJ, “it is simply impossible to tell whether there was
substantial evidence to support the determination”).
B.
We

now

turn

to

the

ALJ’s

application of the particular listing.

finding

here

its

At step three, the ALJ

stated, in its entirety,
Although
the
claimant
has
“severe”
impairments, they do not meet the criteria
of any listed impairments described in
Appendix 1 of the Regulations (20 CFR,
Subpart P, Appendix 1).
No treating or
examining physician has mentioned findings
equivalent in severity to the criteria of
any listed impairment, nor does the evidence
show medical findings that are the same or
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equivalent to those of any listed impairment
of the Listing of Impairments.
In reaching
this
conclusion,
the
undersigned
has
considered,
in
particular,
sections
9.00(B)(5) and 11.14.
A.R.

20.

In

disability

short,

listing.

the

ALJ

did

Rather,

not

the

apply

ALJ

findings

engaged

in

to

the

the
same

conclusory analysis that we found to be unacceptable in Radford.
As in Radford, where the ALJ stated that he had “reach[ed] this
conclusion” after he “considered, in particular,” the listings,
in this case, the ALJ’s analysis was likewise perfunctory and
offered nothing to reveal why he was making his decision.
was

there

any

“specific

application

requirements to the record evidence.”

of

the

pertinent

Nor
legal

Radford, 734 F.3d at 295.

As a result, the ALJ’s findings lack the “necessary predicate”
for us to engage in review.
The

Id.

Commissioner

posits

that

substantial

evidence

exists to affirm the ALJ’s findings; therefore, the error is
harmless.

See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.

1994) (concluding that “there is no question but that [the ALJ]
would have reached the same result notwithstanding” the error).
Thus, the Commissioner invites us to review the record and cure
the

ALJ’s

deficiency

ourselves.

See

Appellee’s

Br.

22

(explaining that the relatively sparse record here “does not
present

a

materially

ambivalent

prevent meaningful review”).

body

of

evidence

that

would

This argument is unavailing and
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contrary to our established precedent in Radford.

We cannot

begin to engage in a “meaningful review” when there is nothing
on which to base a review.
The magistrate judge recognized the ALJ’s failure to
provide

sufficient

fact-finding

reasoning,

expedition.

yet

He

he

still

stated

the

engaged

“ALJ

in

could

a

have

addressed Listing 11.14 in a more specific manner and made this
Court’s review easier.”
WL

4987135,

at

1:13-cv-00244,

*3
2014

Fox v. Colvin, No. 1:13-cv-00244, 2014

(W.D.N.C.
WL

Sept.

4987206

8,

2014),

(W.D.N.C.

Oct.

adopted
7,

by

2014).

No.
In

turn, the district court concurred because the magistrate judge
“was able to engage in a substantive, meaningful review of the
final decision of the Commission despite the ALJ’s error.”

Fox

v.

n.1

Colvin,

No.

1:13-cv-00244,

(W.D.N.C. Oct. 7, 2014).

2014

WL

4987206,

at

*3

Despite both courts’ recognition of

the ALJ’s error, they engaged in an analysis that the ALJ should
have done in the first instance.

To do so was in error.

Our circuit precedent makes clear that it is not our
role to speculate as to how the ALJ applied the law to its
findings or to hypothesize the ALJ’s justifications that would
perhaps find support in the record.
Inconsistent evidence abounds, and yet the ALJ “leaves
us to wonder” in such a way that we cannot conduct “meaningful
review.”

Mascio, 780 F.3d at 638; see also Radford, 734 F.3d at
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296.

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Dr. Armstrong

limitations:

states

Appellant

broad-based

gait;

(4) diminished
coordination,

among

numerous

had

(3) absent

feeling

in

others.

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times

(1) walking
reflexes
his

Appellant’s

severe

difficulty;

(2) a

in

his

legs;

Nonetheless,

lower

and
the

legs;

(5) limited
ALJ

makes

no

mention of how he discredited these diagnoses (or levelled them
with his findings) to conclude “the medical signs show only mild
to moderate limitations in his legs.”

A.R. 21.

Because the

ALJ’s opinion fails to provide any explanation connecting his
determination to that of Appellant’s failure to meet the listing
impairment, the ALJ’s analysis was insufficient.

See, e.g.,

Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987) (“[I]t is
simply

unacceptable

for

the

ALJ

to

adopt

one

diagnosis

over

another without addressing the underlying conflict.”); Smith v.
Heckler, 782 F.2d 1176, 1181 (4th Cir. 1986) (explaining that
the ALJ needs to filter through the evidence and explain “why”
the ALJ made the decision); Hammond v. Heckler, 765 F.2d 424,
426 (4th Cir. 1985) (per curiam) (stating that an ALJ has a
“duty

of

explanation”

of

what

informed

his

decision).

Accordingly, we must vacate and remand.
C.
Appellant also contends that the ALJ failed to accord
adequate weight to Dr. Armstrong’s opinion.

“Courts typically

accord greater weight to the testimony of a treating physician
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because

the

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treating

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physician

has

necessarily

examined

the

applicant and has a treatment relationship with the applicant.”
Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006) (internal
quotation marks omitted).

Thus, “a treating physician’s opinion

on the nature and severity of the claimed impairment is entitled
to

controlling

weight

if

it

is

well

supported

by

medically

acceptable clinical and laboratory diagnostic techniques and is
not

inconsistent

record.”

with

the

other

substantial

evidence

in

the

Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001);

see also 20 C.F.R. § 404.1527(c)(2).

“By negative implication,

if a physician’s opinion is not supported by clinical evidence
or if it is inconsistent with other substantial evidence, it
should be accorded significantly less weight.”

Craig v. Chater,

76 F.3d 585, 590 (4th Cir. 1996).
When denying an application,
[T]he
notice
of
the
determination
or
decision must contain specific reasons for
the weight given to the treating source’s
medical opinion, supported by the evidence
in the case record, and must be sufficiently
specific to make clear to any subsequent
reviewers the weight the adjudicator gave to
the treating source’s medical opinion and
the reasons for that weight.
SSR 96-2p, 61 Fed. Reg. 34,490, 34,492 (July 2, 1996).

Because

the ALJ failed to give “good reasons . . . for the weight [he]
g[a]ve

[Appellant’s]

treating

source’s

opinion”

and

did

not

provide any support as to why he was giving the physician less
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weight in certain areas, the ALJ’s analysis was insufficient and
merits vacating the judgment.
Here,

the

Dr. Armstrong’s
manipulative

20 C.F.R. § 404.1527(c)(2).

ALJ

provided

opinion

of

limitations

“less

Appellant’s

because

the

weight”

to

exertional

ALJ

believed

and
these

limitations were “not well[-]supported by the medical record.”
A.R. 22.

Such

a

cursory

and

conclusory

analysis

does

not

provide any reason, let alone a “good reason[],” why the ALJ
concluded

that

Dr. Armstrong’s

other medical findings.

opinion

whether

decision.

we

can

inconsistent

with

20 C.F.R. § 404.1527(c)(2); see also

SSR 96-2p, 61 Fed. Reg. at 34,492.
with

was

give

Once more, we are confronted

meaningful

See Radford, 734 F.3d at 296.

review

to

the

ALJ’s

Yet again, we cannot.

Accordingly, summary judgment for the Appellee cannot stand.
IV.
For

the

foregoing

reasons,

we

vacate

the

district

court’s judgment and remand the case with instructions to remand
the case to the agency for further proceedings consistent with
this opinion.
VACATED AND REMANDED

15